Lotka case Lotka legally complex

Fischinger has been the owner of the Chair of Civil Law, Labor Law, Sports Law and Commercial Law at the University of Mannheim since 2014. Lotka was still number 5 in the goal of Hertha BSC in winter, now he is number 1 - and plays on Saturday with the club, which already announced his farewell, but no longer wants to let him go, with the club with the he signed a two -year contract for the U 23 at the beginning of the year.

Borussia Dortmund insists on a supposedly lawful two -year contract with Marcel Lotka, Hertha BSC, in which the extension option attributed until April 30 - and an extended contract until 2023. Which club has the better arguments, Prof. Dr. Fischinger?

This is difficult to say because the case is legally difficult and complex. In my opinion law, Dortmund has the better cards. From the outset, only the club can "win", which has an employment contract with the player on July 1, 2022. This is the case with Dortmund in view of the agreement. At Hertha, on the other hand, the question arises whether the previous contract was effectively extended.

You alludes to the fact that a one -sided extension option, which is only said to be due to the club, is legally controversial.

I agree. A one -sided extension option is ineffective according to the predominant view of the lawyers, who I also think is correct because it disadvantage the player. So one could say: Hertha could not achieve an extension even when the - supposed - option is exercised.

Why is the case so delicate?

Well, first of all, because the Federal Labor Court has not yet made a highest judicial decision over one -sided extension clauses and the question of their effectiveness is also complicated. Therefore, it cannot be ruled out that the clause pulled by Hertha would "hold" in front of the dishes. Then it would be quite complicated. Because then Lotka would be in two employment relationships from July 1st, 2022. But that would be inadmissible due to the competitive situation of the clubs. Above all, this would not be compatible with the Working Hours Act (ArbZG). Because if Lotka wanted to fulfill working obligations for both clubs, he would have to work longer than the ArbZG allows. In such a case, the Federal Labor Court says that the second employment relationship is ineffective.

What would be the second employment relationship here?

This is the next, difficult question. Berlin could argue that they have had an employment relationship with the player for a long time, which is now "only" continued - and therefore they have the first employment relationship with him. On the other hand: In relation to the time from July 1st, 2022, an employment contract with Dortmund was first concluded. This suggests that the contract with Dortmund justifies the first and that with the Hertha the second employment relationship. If you see it that way, the employment contract with Hertha would be ineffective from July 1st 2022 and that would be valid with Dortmund.

Until the matter has been clarified, Lotka could only appear for Berlin, but not for Dortmund.

Philipp S. Fischinger

What would the DFL say?

That is also an interesting question. In addition to the - state - labor law, the association's rights of the DFL or the DFB always play a role in such cases. As is well known, a player may only be used in competitive games for a club if he is registered with the association for this club and thus has a player license for this club. According to § 9 No. 2 of the "DFL license order player", however, it is now the case that an existing player permit continues in the event of a dispute over the effectiveness of an employment contract until the legally binding conclusion of a state court procedure. As long as it is not possible to register the player for a new club. This means that until the matter is clarified, Lotka could only appear for Berlin, but not for Dortmund.

Both clubs communicated the player to Dortmund on March 1st. Can the Hertha now fall on your feet legally?

Yes, that can - and thus vice versa Dortmund play in the cards. Because even if you agree with Hertha that a one -sided extension clause is effective, this public statement from Hertha could be interpreted as a tacit waiver of its extension right. This shows: Even if, contrary to my opinion, the extension clause as such was still permissible, one could argue that there was still no extension. The result would be that there would be no contract between Hertha and Lotka from July 1, 2022.

After everything you hear, there should have been an oral, but no written assurance to Borussia Dortmund at the beginning of the year, to do without the exercise of the option clause. If that's true: Were the BVB and Lotkas then naive on this point?

I would not go so far. Verbal (preliminary) agreements are completely common in the business and generally just as binding as written. But of course it would have been more skillful to regulate it clearly and demonstrably at the time. At the time, the - supposed - extension option of the Hertha should have been expressly eliminated, then you would not have a legal problem now.

Lotka, who has been number 1 in goal at Hertha for a few weeks now, now wants to stay in Berlin. Does he improve Hertha's cards when he recognizes the effectiveness of the option drawn by Hertha?

I have doubts about that. A problem for Hertha would then be off the table: the extension could then no longer only be based on what I think is ineffective extensive extension option clause, but on a new - two -sided - agreement with the player. The problem mentioned above with the two possibly colliding employment relationships and the Working Hours Act - that is, the question, what is the second employment relationship? - would remain. And in der Constellation, in my opinion, even more spoke in favor of the contract with Hertha is the second employment contract, the agreement was clearly in terms of time after that with Dortmund.

Hertha managing director Fredi Bobic says: "It will be a legal thing." Both clubs play against each other on Saturday and then want to talk about the personnel. How, do you think the case will go out?

I cannot predict whether the clubs agree or can be found for both sides. From a legal point of view, this would certainly be "the safest" way for those involved. Because in a legal dispute, both clubs have a not inconsiderable process risk, and it can take a long time until a final decision. In my opinion, a realistic scenario to avoid this would be that the Hertha to Dortmund pays a certain amount so that BVB releases Mr. Lotka from the employment relationship by termination agreement. Then he could continue in Berlin, which is currently in his best interest.