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Corona vaccination in sport: This is how controversial 2G is for football professionals

2021-11-19T20:16:04.636Z


Some consider it "difficult to implement", others as overdue: lawyers disagree about the legality of a 2G regulation for professional athletes. Criticism comes from the Bundesliga. The most important questions and answers.


Enlarge image

2G wristbands at second division Hannover 96

Photo: Demy Becker / dpa

Why is?

The prime ministers of the German federal states want to examine whether unvaccinated football professionals can be denied access to games in the future.

At least that's what North Rhine-Westphalia's Prime Minister Hendrik Wüst (CDU) communicated on Thursday in Berlin.

"In the preliminary meeting of the country bosses, we very quickly agreed that if spectators in the stadium have to pay attention to 2G, which in our opinion should also apply to the professionals," said Wüst.

In view of the small number of professionals and the lack of professional contacts with risk groups, it is more likely a decision with a symbolic effect: In the past few weeks, the case of national player Joshua Kimmich and a corona case in the German national soccer team had caused controversy.

What is the position of the German Football League (DFL) so far?

At the end of October, the DFL said it had recommended vaccination against the corona virus to all those involved in the game.

At this point in time, they had waived a 2G certificate, which, as they said, would be tantamount to a “mandatory vaccination requirement under the law of the association”.

After Bavaria's Prime Minister Markus Söder had already spoken about the 2G regulations for football professionals on »Bild« -TV in the run-up to the Prime Minister's Conference, DFL boss Christian Seifert reacted with the following words: »We have heard enough ideas in the last twelve months.

In the current, undoubtedly difficult pandemic situation, it must be the task of politics to look for practicable solutions and implementable concepts «.

If politics were to create the legal possibilities for compulsory vaccination in certain professional groups, the DFL would of course immediately and intensively discuss such an option.

How high is the vaccination rate in German professional sport?

The DFL had given the vaccination quota among the players, coaches and supervisors in the Bundesliga and 2nd Bundesliga at the end of October as "more than 90 percent".

In other team sports, the rate is even higher, according to official information: The German Ice Hockey League (DEL) spoke of over 93 percent.

The basketball league BBL made headlines with an almost 100 percent quota before the start of the season in autumn.

What are the legal interests in relation to the question?

On the one hand, there are the rights of the individual professional athlete, such as the right to physical integrity, the right to self-determination and the general freedom of action from Article 2 of the Basic Law and the freedom of occupation from Article 12, says sports lawyer Gregor Reiter to SPIEGEL.

On the other hand, there would be the right to life and physical integrity of everyone, as well as their right to self-determination.

Here, too, freedom of occupation and entrepreneurial activity are affected as part of the general freedom of action.

“One has to weigh up these legal interests.

If this balancing turns out to be in favor of the legal interests of the general public, then the encroachment on fundamental rights with the individual would be justified, «says Reiter.

How do lawyers evaluate the initiative?

Labor law expert Thomas Schulz considers a vaccination requirement for professional athletes "not compatible with applicable law".

From a purely legal point of view, the footballers are “normal employees”.

A general 2G regulation for employees only exists in certain exceptional groups, but not for the general public.

Sports lawyer Reiter, on the other hand, says: »From my point of view, it is mandatory to introduce› 2G ‹, especially since› 2G ‹only affects certain areas in which experience has shown that there are many people, i.e. there are many contacts.

The question is, can I extend “2G” to those who have to enter these areas because they do their work there, such as the bartender in a discotheque or the professional footballer in the stadium.

In my opinion the answer is yes. "

Reiter says that he considers the Chancellor's argument that leisure and work must be viewed separately to be wrong when the two meet, for example in a football stadium. The general public's right to physical integrity or the right of entrepreneurs to pursue their business is more important. “What I don't think is possible is the differentiation demanded by Prime Minister Wüst. If the professional soccer player has to meet ›2G‹, then this also applies to the security forces in the stadium or the cameramen present. Either all employees in the stadium ›2G‹ or none. "

Constitutional lawyer Hans Michael Heinig does not rule out a 2G regulation either.

"I would advise the federal states to take the risk of litigation," said Heinig.

However, the legal situation is somewhat unclear.

It was "generally about the dangers emanating from mass events, and even professional footballers cannot completely avoid them," said Heinig.

The sports and labor lawyer Martin Schimke, however, considers the initiative to be "difficult to implement".

"Because that is disproportionate due to the high vaccination rate among the players," said the lawyer.

In addition, compared to carers, for example, the players are not in contact with vulnerable groups, according to Schimke.

What reactions are there from professional sport?

Cologne's head coach Steffen Baumgart has opposed vaccination requirements for professional footballers. “We have a vaccination rate of 90 percent in the Bundesliga, if we had that in society, then we would be through. It's not up to the footballers. "You have" no special status, neither positive nor negative, "said Baumgart.

The responsibility would lie with politicians: »In the summer we talked about the fact that autumn could be a difficult situation. Now we are talking about the fact that politics reacted too late. The question is whether you shouldn't clean up your own stable beforehand and not think about what the footballers could do, ”said the Cologne coach. “We have been living with the disease for two years now, so I ask myself the question, where are the intensive care beds, where are the nurses? We have enough construction sites to start working on, but it's not the footballers. "

Marco Rose, coach of Borussia Dortmund, believes that a vaccination requirement only for professional athletes is wrong.

“The same rules for everyone,” said Rose: “I wouldn't differentiate between footballers and construction workers.

You have to find a way, «says Rose.

But one is "in a situation in which it makes sense to get vaccinated".

Handball boss Frank Bohmann said it would be "to drill a murder board in order to create a legal basis, in principle a professional ban would have to be pronounced."

Bohrmann is calm, however, in the handball Bundesliga (HBL) only three professionals are not vaccinated.

Could a club terminate an unvaccinated player in the event of a mandatory 2G regulation?

Reiter points out that a ›2G‹ regulation is only an obligation and not an obligation for the individual.

The athlete who refuses to be vaccinated in such a case is not acting unlawfully.

"Refusing this obligation, however, means that the player is no longer allowed to play in competitive games and can no longer meet his work obligation," says Reiter: "Since the athlete is no longer allowed to work, the club as an employer can also ultimately do so quit.

The case can be compared with a professional driver who permanently loses his driver's license.

The transport company can also terminate this, ”says the lawyer.

Could professional athletes demand compensation from the clubs - or vice versa, clubs could demand money from the players who are no longer allowed to play?

It is not the association as employer that introduces the regulation, but the state as sovereign.

A compensation claim by the player against the club is excluded, says Reiter, because the club is obliged to implement the regulation.

The association cannot claim any damages either, since the individual is free to follow an obligation or not.

"If I do not pay attention to the obligation, then I have to accept legal disadvantages, but I am not acting unlawfully and therefore cannot make myself liable for damages," says Reiter.

With material from sid and dpa

Source: spiegel

All sports articles on 2021-11-19

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