The DFB's "50+1 rule" is controversial. It prevents investors from exerting too much influence on a football club. In the opinion of Dr Jan-Henric M. Punte, this does not make it any more legal. The lawyer analysed the rule in his doctoral thesis.
Specifically, it means that Investors are not allowed to acquire the majority of voting rights in a football club. The parent club must hold 50 per cent plus one voting right. "In the German league, this rule is the absolute exception in view of the other top European leagues," says Punte, whose doctoral thesis was supervised by Prof. Dr Jürgen Taeger (Chair of Civil Law).
To football absurdistan and back again
The influence of foreign investors can go very far. Punte also knows this: "If an investor acquires a stake in a football club, it is clear that he will gain influence - the more money he invests, the greater his influence". The traditional Swiss club Xamax Neuchatel is a cautionary tale. It was acquired by Chechen businessman Bulat Chagayev in May 2011.
With consequences: Chagayev had a Chechen symbol and a laurel wreath added to the club's crest. He put a large part of the old staff on the street. The scoreboard in the stadium now also featured Cyrillic script, which investors could understand, and videos from Chagayev's home country appeared during half-time breaks. And he intervened in the team line-up.
A story from football absurdistan - which would be unthinkable in the Bundesliga thanks to the 50+1 rule. For Punte, this does not change the fact that there is an irresolvable tension - "between the freedom of the associations to set their own rules on the one hand, and European antitrust law and fundamental European freedoms on the other". Essentially, Punte considers the 50+1 rule to be unlawful: because the ban applies almost without exception, it should be considered disproportionate.
Counter-proposal: "25+1 rule"
In addition, the football clubs would not be forced to sell their majority shareholdings if the standard were lifted. "This would leave them free to decide for themselves whether - and if so, to whom - they sell shares. This ultimately gives them the power to retain control over the management, to take the risks of the capital market and to preserve their tradition."
Punte's counter-proposal is to abolish the "50+1 rule" and introduce a 25+1 rule. This would oblige the parent club to hold at least 25 per cent of the voting rights plus one voting right in the spun-off football company. Investors would be permitted to acquire 74 per cent of the voting rights in the football corporation. "This would give investors control over the operating business, which would significantly increase their general willingness to invest money in German football corporations."
Veto rightremains
This could also significantly improve the performance of the clubs and the quality and balance of the competition. A negative scenario like that of the traditional Swiss club Xamax Neuchatel is ruled out. "Due to the blocking minority granted to it, the parent club ultimately always has a kind of veto right on major decisions and serious structural changes - and therefore the final say."
Punte now sees an urgent need for action on the part of the league association. "It's only a matter of time before an investor who feels penalised by the current regulations brings an action before the European Court of Justice." Punte is certain that the chances of this are not bad.
Dr Jan-Henric M. Punte: Die Kapitalgesellschaft als Rechtsform professioneller Fußballclubs im Spannungsfeld von Verbandsautonomie und Europarecht
Vol.38, XXIV, 305 p., Edewecht 2012, € 59.80
ISBN-13 978-3-939704-83-6