In its final assessment, the Federal Cartel Office considers the 50+1 rule to be permissible. However, the authority sees a need for improvements regarding the funding exemptions for Leverkusen and Wolfsburg, as well as the special cases of Leipzig and Hanover.
The Federal Cartel Office has declared the 50+1 rule in German football to be lawful. The authority announced this in a press release on Wednesday morning following an investigation that has been ongoing since 2018. However, the Office also made it unequivocally clear: “The prerequisite, however, is that it is applied consistently and without distinction – unless there is an objective reason for such a distinction. Having concluded its proceedings, the Office therefore sees fit to provide the German Football League (DFL) with guidance on how to apply the rule in a manner that ensures the greatest possible legal certainty.”
The 36 clubs from the Bundesliga and the 2. Bundesliga are now called upon to do their bit. And, particularly with regard to the previous exceptions – Bayer Leverkusen and VfL Wolfsburg, whose professional football companies are majority-owned and wholly-owned respectively by Bayer AG and Volkswagen AG – as well as the special cases of RB Leipzig and Hannover 96, they must find compromises.
The 50+1 rule is intended to fundamentally ensure in German football that the club’s members – and thus, ultimately, the members themselves – have the majority say in determining the fortunes of a professional football club, even if the club has outsourced its licensed match operations to an external legal entity, such as a GmbH or AG. The case of Leipzig, for example, is unique because the Saxon club’s e.V. (registered association) consists of just a handful of select members, all of whom are linked to the Red Bull Group, which provides the funding.
Clear message to RB Leipzig
“Taking into account the case law of the European Court of Justice (ECJ) on antitrust law in sport, the Authority has definitively concluded that it has no fundamental objections to the 50+1 rule,” the press release states. “Whilst the rule does restrict economic competition for investment in professional football, the aim of ensuring club autonomy and member participation is sufficient to justify an exemption from antitrust prohibitions.”
This means that this rule, which is essentially restrictive of competition, is compatible with EU law, but that it must also be applied with due rigour, as Andreas Mundt emphasises: “The 50+1 rule can still be justified by the aim of preserving the club’s identity and ensuring member participation. However, this is conditional upon it being applied consistently and without any objectively unjustified distinctions. Our assessment highlights aspects that the DFL should take into account if it wishes to apply the rule with the greatest possible legal certainty in future. Firstly, this means that the DFL must ensure open access to membership – and thus fan participation – for all clubs in the Bundesliga and 2. Bundesliga alike.”
That statement by the President of the Cartel Office is likely to be understood as a clear indication to RB that it should open the club up to further members. Accordingly, the letter goes on to state: “The investigations have revealed that, in its licensing practices, the DFL does not take sufficient care to ensure that all clubs in the Bundesliga and 2. Bundesliga consistently offer their fans the opportunity to be admitted as full new members with voting rights.”
Question marks over Kind’s vote and explosive statement
Mundt goes on to say: “Secondly, it should ensure that the provisions of the 50+1 rule are consistently observed in its own voting procedures as well.” This statement refers to an alleged vote by Hannover 96 investor Martin Kind contrary to the instructions of the parent club during the league’s partnership process – which was ultimately scrapped – when a multi-billion investment by a private equity investor was under discussion at the end of 2024. The authority criticised the league association for failing to consistently verify whether Kind had complied with the registered association’s right to issue instructions. A secret ballot had been held at the committee meeting in question.
As a further point of criticism, the head of the authority, Mundt, noted: “Thirdly, we see a need for improvement in the proposed new regulations regarding the protection of existing rights for the clubs currently receiving funding.” This demand is certainly explosive, as it essentially means that changes to the status quo will have to be brought about in both Leverkusen and Wolfsburg, where legal action had been considered in the event that the funding exemption were to be revoked.
Specifically, the Office states: “The removal of the funding exemption would eliminate the existing unequal treatment between standard clubs and clubs benefiting from the funding exemption. However, according to the case law of the European Court of Justice, the grandfathering provisions proposed to date for Bayer Leverkusen and VfL Wolfsburg are insufficient. In the opinion of the Federal Cartel Office, the case law of the ECJ requires that, in the long term, comparable competitive conditions apply to all clubs. To this end, it must be ensured – at least in the long term – that the parent club, which is open to new members, is granted comparable influence over the professional division as is the case with the other clubs.” The extent to which more far-reaching amendments to the articles of association might serve as solutions is now likely to be a matter for the lawyers to consider. However, the Office did not set a deadline for this.
In general, the authority regards the 50+1 rule as suitable for fulfilling the “public interest objective of providing broad sections of the population with opportunities to participate in decision-making within professional football in Germany”, and will therefore not take action against the 50+1 rule. Furthermore, it reinforces its criticism of external financial contributions: “A ban would result in the current opportunities for participation within the clubs being eliminated and the clubs in the Bundesliga and 2. Bundesliga being opened up entirely to investors. The Federal Cartel Office sees no public interest in this.”
Translated using deepl.com.
