Clarification From Germany’s Federal Labor Court: 3rd League Soccer Referees Are Not Employees

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Quick Hits

• Germany’s Federal Labor Court (BAG) ruled that third-division soccer referees are not employees, reversing the Cologne Regional Labor Court’s decision and determining that the legal dispute should be heard in civil courts.
• The BAG found that the framework agreement and actual constraints on referees did not establish an employer’s right to issue instructions typical of an employment contract, emphasizing the freelance nature of the referees’ work.

The decision clarifies the employment status of third-division referees and aligns with principles from the “crowd worker decision,” but leaves open questions about the application to referees in higher leagues with VAR supervision.

Facts

The employee was a soccer referee who had been assigned to the regional league since the 2021/2022 season but now wanted to be considered for the next higher third division, called 3. Liga.

The employer was a subsidiary of the German Football Association (Deutscher Fußball-Bund (DFB)), which is responsible for appointing referees for the professional leagues of the German Football League (Bundesliga, 2. Bundesliga, and 3. Liga). It had not included the employee on the DFB referee list for the 3. Liga for the 2024/2025 season. The employee then brought an action against it before the Bonn Labor Court for payment of compensation and damages for age discrimination under Section 15 (1) and (2) of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz (AGG)).

In connection with the examination of the legal recourse to the labor courts, the Bonn Labor Court ruled that the referee was not an employee and referred the legal dispute to the civil courts. The Cologne Regional Labor Court, which was called upon to rule on this matter, affirmed the employee status of 3. Liga referees and overturned the referral decision. In doing so, it focused on the fact that referees were at least de facto bound by instructions regarding the assumption of individual match officiating duties on specific match days, which resulted, among other things, from possible disciplinary measures under the referee regulations in the event of cancellations of match officiating duties and from the employer’s monopoly position.

Further details on the facts of the case and the legal basis can be found in August 2025 article on the decision of the Cologne Regional Labor Court.

Federal Labor Court’s Opinion

The Federal Labor Court, in turn, ruled contrary to the Cologne Regional Labor Court that the referee was not an employee and that the legal dispute should therefore be heard before the Frankfurt am Main Regional Civil Court rather than the labor courts.

The framework agreement that the employee and employer would have concluded if the employee had been assigned to 3. Liga would not have established the employer’s right to issue instructions to the employee regarding his assignment to individual games, as is typical in employment contracts. Such a right to issue instructions does not arise from the framework agreement, nor does it arise from the actual constraints on referees to be available for games. An obligation to officiate certain matches as part of the referee team arises solely on a consensual basis. This is because, within the framework of deployment planning, referees are initially free to enter certain dates on which they cannot or do not wish to officiate as “exemptions” in the “DFBnet” system in advance of the season. Referees are only assigned to matches for which no exemption has been marked. And even after this so-called “preliminary assignment,” the referee can still refuse to officiate the match before the “final assignment” of the specific dates.

According to Section 11 No. 1 of the Referee Regulations, the employer is authorized to sanction repeated unjustified and reprehensible late cancellations of match assignments by referees, up to and including exclusion from the referee list. However, this only applies to match assignments that had already been agreed upon beforehand. Even if referees were concerned that the employer would no longer include them on the list of referees in the future if they made extensive use of “exemptions,” this would not be sufficient to constitute personal subordination by virtue of de facto coercion. It is inherent in freelance employment relationships that contractors do not receive follow-up assignments if they are not available on a regular basis.

Furthermore, since each individual refereeing assignment would be remunerated at the same rate and would be economically rewarding in itself, referees would not only start to “earn money” once they had taken on an increasing number of assignments. The remuneration structure therefore does not give rise to any expectation of constant availability for work, which is characteristic of an employee—unlike, for example, in the case of “atomized microjobs,” which only become worthwhile when performed multiple times (see the BAG’S so-called “crowd worker decision” of December 1, 2020, Ref: 9 AZR 102/20).

Nor does Section 7 No. 2 of the Referee Regulations, according to which referees must regularly attend training evenings and keep themselves fit through athletic training, give rise to a right of direction typical of an employment relationship. This does not take into account any specific employer interest. Rather, the client also has a legitimate interest in imparting and maintaining the knowledge necessary for successful cooperation through further training within the framework of a freelance employment relationship. The physical fitness of referees is a prerequisite for officiating games in professional leagues.

In the opinion of the Federal Labor Court, the individual agreements on the refereeing of certain matches do not constitute an employment relationship, even when viewed in conjunction with the framework agreement. On the one hand, during the soccer game, the employee was not bound by instructions in the manner typical of an employment contract. Rather, due to the nature of their task in officiating games, referees are not bound by instructions. On the other hand, the employee’s involvement in the organizational framework of the game—for example, by specifying the location and time of the game and the clothing to be worn—does not constitute a specific feature of an employment contract, but rather results from the nature of the task, i.e., officiating a soccer league game.

Conclusion

The BAG’s decision provides legal clarity with regard to the classification of the employment relationships of 3. Liga referees and counteracts inconsistent assessments depending on the regional labor court district. In addition, the decision contributes to the further concretization of the principles regarding the “de facto” subordination of employees, which the BAG developed in its “crowd worker decision” of December 1, 2020 (Ref.: 9 AZR 102/20).

It remains unclear whether this reasoning can be applied to referees in the Bundesliga and 2. Bundesliga. In the present decision, the Federal Labor Court did not have to rule on whether referees are bound by instructions during a soccer match, which could possibly result from the “supervision” of referees by a video assistant referee (VAR). Such a system is not yet in use in 3. Liga.

Ogletree Deakins’ Berlin and Munich offices and Cross-Border Practice Group will continue to monitor developments and will post updates on the Cross-Border, Germany, and Sports and Entertainment blogs as additional information becomes available.

Dr. Martin Landauer is partner in Ogletree Deakins’ Munich office.

Niklas Thiel, a law clerk in Ogletree Deakins’ Munich office, contributed to this article.

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