Frankfurt 
Sport on the horizon?
We live in unprecedented times. It seems hard to remember a time when we, as a society, were not in lockdown due to the Coronavirus. Everything from the workplace to a person’s social habits have been massively, and perhaps to a certain extent permanently, affected by the continuing worldwide limitations on movement and social gathering. But now, as countries are beginning to focus on cautiously lifting some of the more stringent measures, we may start to see some slow movement back toward normalcy. An example of such is the murmurings around the restarting of sporting events, with officials in German football suggesting that the Fußball–Bundesliga (DFL) could start again as early as May 16th (though this has by no means been confirmed and would need to be agreed upon in cooperation with the governing Deutscher Fußball Bund (DFB) and the German Government).
This restart, although welcome news to many sports fans, poses a multitude of questions. Will the games, for example, be played behind closed doors? Should we be even considering a restart whilst many around the world continue to perish? How can the safety of those involved in the games be assured? We would like to touch on the latter question and provide some insight into this question from an employment law perspective.
What is the current situation?
Sports people around the world remain in limbo. The vast majority of sporting events have been cancelled and, as a result, many of those involved with these sporting entities have been placed on Short-time allowance (furloughed in the United Kingdom), suspended or, unfortunately in many cases, terminated from their employment. The sporting world has been rather impatiently waiting for the go ahead to resume activities and, as above, there does seem to be some movement in this regard. But is it too soon? Can we be 100% certain that the safety of the players would be assured? Could returning to training, playing matches, or supporting the playing of these matches constitute an unsafe working environment?
Despite the fact that the various associations have stated that player and support staff safety is paramount in their decision making, many of the playing staff have questioned whether or not returning is a good idea. Very understandable, as many questions remain. Sporting events such football require by their very nature large groups of people engaging in a contact-based competition, so how can player safety be assured? Sporting athletes are usually in tremendous physical condition, so their likelihood of serious health problems as a result of the Coronavirus is minimal, but what of their loved ones? With the possible 2-week incubation period and the asymptomatic transmission of the disease, passing on the virus to the more vulnerable in our lives remains a strong possibility.
There have been several examples of athletes questioning the proposed return. After 3 players from 1. FC Köln tested positive for the virus, there have been multiple rumours of discontent among the playing staff. In Scotland, Kilmarnock FC captain Gary Dicker gave the example of essentially not being able to see his wife and children for months due to the ill health of his spouse’s mother. Add in the fact that players are likely to be kept isolated in hotels for months on end, players returning from foreign lands are likely to be quarantined for 2 weeks before even being able to train and are likely to have be tested before each and every game, it is easy to see why players may be questioning if they are within their rights to claim that returning to football, or general sporting, environment constitutes being asked to work in an unsafe environment.
How to define an unsafe working environment
The specifics regarding an unsafe working environment will be dictated by the employment laws of the land but, generally, the same themes will apply in most developed countries. In Germany, for example, the laws relating to occupational safety are governed by the Safety and Health at Work Act (Arbeitsschutzgesetz) and assure workers of the following:
- Employers are required to assess working conditions to ensure the health and safety of their employees, focussing on the specific activities their employment entails
- This must include all safety aspects relating to both physical and psychological stresses
- Once the assessment is complete, employers must take necessary measures to ensure the safety of those in their employ
- Employers are responsible for the overall occupational safety of the workplace and must dedicate resources, such as compliance officers and health workers, to this end.
As above, the wording of these laws will vary from country to country but the ethos in most lands remains the same. The employer must do everything in their power to ensure the safety of the person working and, if they cannot, the employee has the right to refuse to work and take action against the employer, should they insist.
Can my employer assure me of a safe working environment?
Sporting governing bodies, national leagues and clubs have been quick to assure players that they will take any and all measures to ensure the safety of the players and the staff, should they decide to resume. The question remains ‘can these measures ensure my safety in my place of work?’. The simple answer is, unfortunately, probably not. Given the communicability and incubation period of the virus, even the most stringent testing regimes and distancing methods seem very risky indeed. As above, psychological health also must be taken into account and the stresses’ relating to the potential catching and spreading of the virus must be taken into consideration. We have taken football as the primary example in this instance, but the same logic applies to other team sports such as Rugby, Ice Hockey or Basketball, or even to individual sports such as Cycling, Swimming or Golf. The risks involved in the restarting of any of these sports are considerable.
What are my options?
This is unchartered territory for the sporting world but the right to a safe working environment has assuredly not changed. Should you be involved in the sporting world and feel that you are being placed under unfair pressure to return to an unsafe working environment, we at ZELLER & SEYFERT would like to help. Our Employment Law expert Atty Dr. Christian Zeller has a huge amount of experience in dealing with matters relating to workplace safety suits and would welcome the opportunity to fight your corner. Christian can be contacted by telephone on +49 (0) 30-40 36 785-80 or by email on mail@zellerseyfert.com. We look forward to hearing from you.