50+1 proceeding – commitments offered by DFL to be declared binding

In the proceeding assessing under competition law the so-called 50+1 rule, the Bundeskartellamt intends to declare binding the amendments to Deutsche Fußball Liga’s (DFL’s) League Statutes that DFL has committed to, and to conclude the proceeding on this basis. Under the commitments offered by DFL, the basic 50+1 rule will be maintained but the possibility to grant benefactor exemptions will be deleted from the League Statutes. Moreover, with regard to the benefactor exemptions that DFL has already granted to the three football clubs TSG Hoffenheim, Bayer Leverkusen and VfL Wolfsburg, the status quo will be protected, on stricter conditions: the clubs will not only have to continue to comply with existing conditions but also be obliged to allow more members to participate and to share the benefits by paying a compensation amount (link to press release of 8 March 2023).

Andreas Mundt, President of the Bundeskartellamt: “DFL’s commitment to deleting from its League Statutes the possibility to grant benefactor exemptions removes our concern that a coexistence of clubs of which only some have been granted benefactor exemptions may run counter to DFL’s sport policy objectives. It is true that professional sport, and sport associations in particular, continue to be subject to competition rules, and restricting participation in league matches to not-for-profit membership clubs continues to constitute a restraint of competition that has to be legitimised by a sport policy. Nevertheless, the commitments offered by DFL appear generally appropriate to dispel our preliminary competition law concerns.”

The Bundeskartellamt has today sent the draft decision meaning to declare DFL’s commitments to be binding, to the parties to the proceeding. This respects DFL’s, Deutscher Fußball-Bund’s (DFB’s) and the involved clubs’ right to be heard before the final decision is issued. They have previously also been given the opportunity to comment on DFL’s commitments.

When the Bundeskartellamt issues a decision under Section 32b of the German Competition Act (GWB) declaring commitments to be binding, it can, if necessary, and without having to initiate a new proceeding, enforce that the parties meet these commitments.

The assessment of the 50+1 rule by the Bundeskartellamt goes back to an initiative of DFL. In 2021 the Bundeskartellamt had reached the preliminary conclusion that the basic 50+1 rule was potentially unproblematic under competition law due to the sport policy objectives it pursues. However, the authority considered it problematic that in its current version the rule’s uniform application and enforcement was not ensured. The assessment primarily concerned the possibility provided for in DFL’s League Statutes to grant benefactor exemptions from the 50+1 rule. DFL did not maintain its original request for the authority to assess how the 50+1 rule was to be applied and construed with regard to DFL's licence granting practice. Neither does the Bundeskartellamt currently see a need to initiate a corresponding examination ex officio. It is in fact up to DFL itself to ensure a non-discriminatory and consistent application and assessment practice regarding the granting of licences under the soon to be amended League Statutes.