In its statement, the League contradicts the Cartel Office’s criticism of the exceptions to 50+1 and seeks a dialogue.
The DFL Executive Board’s announcement to the Bundeskartellamt is clear: “The DFL e.V. does not share the preliminary assessment that the 50+1 rule in its entirety is contrary to cartel law based on a synopsis with the so-called funding exception (…).” This sentence is found in the league’s 16-page response to the authority in the 50+1 review proceedings. The office had stated that 50+1 could be unobjectionable under anti-trust law because of its sporting policy objectives, but warned that the funding exceptions were problematic.
50+1 states that the parent club must own the majority of votes in a spun-off professional football corporation. However, the league granted exceptions to Bayer AG in Leverkusen, VolkswagenAG in Wolfsburg and billionaire Dietmar Hopp in Hoffenheim after at least 20 years of high funding. The professional football divisions of VfL and Bayer 04 are wholly owned subsidiaries of the group, and Hopp holds 96 per cent of the Kraichgauer’s football Spielbetriebs-GmbH. Martin Kind also sought an exemption for Hannover 96, but withdrew the application when a rejection became apparent. The DFL presidium subsequently initiated the investigation procedure in 2018, and in May the cartel watchdogs issued their preliminary assessment.
The submissions give the impression of trying to buy time
In its reply, the League cites “legal arguments and facts” that “have not yet been taken into account or have not been sufficiently taken into account”. Obviously, there are no completely new aspects, the submissions give the impression that they want to gain time. In any case, the leading heads of professional football do not want to deviate one millimetre from the current solution. This was already apparent in July after an incendiary letter from Bayer, VfL and TSG and a meeting of the 36 DFL members. Now the league submits: “The presidium of the DFL e.V. is anxious and desires, in close dialogue with the Federal Cartel Office, to dispel the preliminary concerns under cartel law.”
In the eyes of the eight members of the presidium, the soon-to-be departing DFL boss Christian Seifert, Oliver Leki (SC Freiburg), Steffen Schneekloth (Holstein Kiel), Jan-Christian Dreesen (FC Bayern), Alexander Wehrle (1. FC Köln), Rüdiger Fritsch (Darmstadt 98), Oke Göttlich (FC St. Pauli) and former Schalke CFO Peter Peters, who, like Seifert, will soon be leaving, “the objectives pursued with the basic rule are not counteracted by the funding exceptions granted, but are consistently continued in the funding exception regulation – albeit in a different form”. The league also lists the trio’s social, sports and health-promoting commitments in the race.
Apparently, there are different interpretations of the club character of the competition. In any case, the league presidium writes: “Following on from this wording, it is correct that the aim of the ’50+1′ rule is to ensure that clubs with a club character participate in the Bundesliga and 2nd Bundesliga competitions. The further statements of the Decision Division seem to indicate that ‘club-based’ is primarily understood in the sense of ‘club-member-based’ and that the question of the remaining member participation is also taken into account when examining the proportionality of the funding exception (cf. BKartA letter, p. 12)”. This does not take sufficient account of the fact that participation and transparency also depend on the legal form of outsourced normal clubs and that sporting and sporting-social interests are safeguarded.
The arguments can hardly be transferred to RB Leipzig
However, on the subject of club imprinting, one club could slide into the focus of the competition authorities that has not been officially objected to so far: RB Leipzig. The parent club holds only one per cent of the shares in Rasenballsport Leipzig GmbH, but the majority of the votes. However, it has a restrictive policy with only slightly more than 20 members. In order to obtain the second-division licence in 2014, RB had to offer a sponsoring membership that allowed participation in e.V. members’ meetings without voting rights.
Dr Holger Jakob wanted to become a RB supporting member on a trial basis in 2020. “When asked, the association refused to send the statutes, although the contents of the statutes are acknowledged by signing the application for sponsor membership. So you have to agree to the statutes without being given the opportunity to read them,” says the lawyer and Union Berlin fan. He says he was offered the chance to see the statutes at the office. Jakob thinks: “This is a legal action, but not in the sense of the actual regulatory body, the DFB or DFL. In fact, it is a circumvention. Who says that other companies don’t do the same?”
A fair question. Because the DFL presidium argues with regard to Hoffenheim, Leverkusen and Wolfsburg that even with the sponsorship exceptions, the club values can be preserved “without the parent club having a dominant influence in any other way”. For example, through the duration of the sponsorship or the close ties between the group or patron and the club: “Bayer 04 Leverkusen e.V. and VfL Wolfsburg e.V., as so-called ‘works clubs’, were already ‘group-shaped’ insofar as a large number of club members and also members of the executive bodies were employed by the respective group company.
17 clubs in Europe demonstrate balance
A ‘detachment from a club imprint’ did not take place after the granting of the exemptions, at least not in a clear material form, since the club had already been closely connected with the group for decades in terms of personnel structure, organisation as well as economically through subsidies and sponsorship agreements of the group. A similar influence on the club by the long-standing sponsor was also present in the case of TSG 1899 Hoffenheim.” Arguments that are difficult to transfer to Leipzig, where the Red Bull Group had taken over the starting rights of SSV Markranstädt for the Oberliga in 2009.
The presidium tries to invalidate any advantages that might be obvious if loss compensation mechanisms were in place with two arguments: the fact that since 2015 – when Hopp was given the go-ahead to take over a majority stake in TSG – “in addition to the three clubs mentioned above, four other clubs have played continuously in the Bundesliga”, and the fact that 17 different Bundesliga clubs have qualified for European club competitions since 2010. This demonstrates the “long-term balance of the Bundesliga competition”. After all: “In no other of the top European leagues have more clubs qualified for the UEFA Champions League (UCL) or UEFA Europa League (UEL) in this period than in the Bundesliga, which is organised by the DFL e.V. “