Legal certainty for the 50+1 rule: DFL ExCo adopts proposal for Federal Cartel Office!

With the aim of further increasing the legal certainty of the 50+1 rule and dispelling preliminary antitrust concerns of the Bundeskartellamt (Federal Cartel Office) against the overall rule (50+1 basic rule in conjunction with the funding exemption), the Executive Committee of the DFL Deutsche Fußball Liga has unanimously agreed on a proposal for commitments. This proposal has now been submitted to the Bundeskartellamt. Among other things, there should be no further funding exemptions from the 50+1 rule in the future. For the clubs that have already been granted a funding exemption in the past on the basis of the respective statutes of the DFB or DFL, grandfathering is provided for under conditions. The purpose of these conditions is to make the funding exemptions more consistent with the 50+1 basic rule. In the next step, the Bundeskartellamt will assess the proposal after consulting the parties to the proceedings.

The audit goes back to an initiative of the DFL Executive Committee on July 18, 2018. At the time, the panel had applied to the Federal Cartel Office for a decision pursuant to § 32c GWB in order to examine possible antitrust concerns regarding the 50+1 rule and its application and interpretation. The starting point was a DFL General Assembly of 22 March 22, 2018: At that time, the majority of the clubs voted on the basis of a motion for a “process to improve legal certainty as well as further considerations regarding changed framework conditions while retaining the 50+1 rule.”

On May 31, 2021, the Bundeskartellamt explained its preliminary assessment at a meeting with representatives of the DFL and subsequently submitted it in writing to the DFL and the parties previously invited to the proceedings. Among other things, it stated: “While the basic rule in itself would probably be neutral under antitrust law due to the sports policy objectives pursued, this result no longer results in conjunction with the funding exception.”

This preliminary assessment was followed by an intensive, sometimes controversial, but constructive exchange between representatives of the DFL Executive Committee and DFL, the so-called Förderclubs and the Bundeskartellamt. From the point of view of the DFL Executive Committee, the aim was and is to develop solutions in accordance with antitrust law on the basis of the current statutes of the DFL e.V., which protect the basic rule 50+1 and thus actually achieve the goal of “improving legal certainty”.

Should the proposal now submitted by the DFL Executive Committee be declared binding by the Bundeskartellamt after the subsequent evaluation and consultation process pursuant to § 32b GWB and then the DFL General Assembly approves a corresponding amendment to the statutes of the DFL e.V. by resolution with a two-thirds majority, the preliminary concerns of the Bundeskartellamt would be dispelled and thus the aim of the original application of the DFL Executive Committee to the Federal Cartel Office. reached.

The key points of the proposal submitted by the DFL Executive Committee in terms of increased legal certainty of the 50+1 rule:

    The possibility of funding exemptions from the 50+1 rule will be deleted from the statutes of DFL e.V. in the future.
  • The clubs that have been granted a funding exemption in the past (Bayer 04 Leverkusen, TSG Hoffenheim, VfL Wolfsburg) can continue to receive a licence to participate in the Bundesliga or Bundesliga 2 in the sense of grandfathering. This grandfathering is granted only under certain conditions. These include, among others, the following innovations:
    • The Förderclub is obliged to participate and be transparent towards the members of its former parent association. The specific proposal is that the parent association must be granted the right to appoint at least one representative to the supervisory body of the corporation, which has powers of control and approval. This representative must have the full rights of a member of the body or a shareholder – this includes in particular the right to speak, the right to information and access as well as the right to vote.
    • Due to the importance of identity-forming characteristics of a club, decisions relating to, for example, the name, logo and colours of a club, the registered office and a significant reduction in the number of standing places in the stadium may only be made with the consent of the supervisory body or the shareholders’ meeting. The representative of the former parent association has a veto right – changes cannot be decided against his/her vote.
  • With regard to existing profit and loss transfer agreements, a compensation amount is paid if loss compensation has been made by the controlling sponsor during the period under review (analogous to UEFA regulations: three years) and this loss compensation exceeds a threshold of 7.5 percent of total income. For a sum exceeding this threshold, a compensation amount (equal to the respective 12-month Euribor interest rate plus one percentage point) is payable.
  • With regard to a silent participation of a controlling promoter/majority shareholder, a compensation amount is paid if, during the period under review (analogous to UEFA regulations: three years), the majority shareholder and/or an affiliated company compensates for a loss of the corporation or participates in losses as a silent partner through contributions made after the exemption from the 50+1 rule has been granted and the latter loss compensation exceeds a threshold of 12.5 percent of total income. For a sum exceeding this threshold, a compensation amount (equal to the respective 12-month Euribor interest rate plus one percentage point) is payable.

TSG Hoffenheim and Mr Dietmar Hopp announced on March 1, 2023 that Dietmar Hopp would in future waive the exemption from the 50+1 rule, which came into effect on July 1, 2015, and transfer the majority of his voting rights back to the club without compensation, whereby TSG would return to the circle of “50+1 regular clubs”. As long as this retransfer has not been effectively completed, TSG Hoffenheim will remain covered by the aforementioned commitments.

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