Athletes, their freedom of opinion and expression and COVID-19: some thoughts on the dismissal of Joshiko Saibou

If the athlete and the club cannot reach an agreement out of court, a labour court will decide whether the dismissal without notice based on the above-described circumstances is valid. The following is a description of the general and sports-specific rules that need to be taken into consideration in such a decision.

The dismissal without notice is the most drastic measure available to an employer and results in the employment ending immediately. Consequently, there are strict requirements that need to be fulfilled in order for such a dismissal to be valid. According to Section 626(1) German Civil Code (BGB), service and employment contracts can only be terminated without notice if there is good cause for dismissal and the employer cannot reasonably be expected to continue the employment until it is due to end, or until the regular notice period would end.

There is no definition of what constitutes “good cause” and the courts also do not want any such definition to exist. Instead, whether a dismissal without notice is valid should be determined on a case-by-case basis. To this end, it is first examined whether the facts as such are suitable to constitute good cause for dismissal without notice. The second step is then to determine whether the concrete case and a balancing of interests permit a dismissal without notice. Doping, for example, is a circumstance that is generally suitable to justify an athlete’s dismissal without notice. In the individual case, however, the dismissal may nevertheless be invalid if the athlete did not intend to enhance his/her performance and was not aware of this effect when taking the performance-enhancing drug. This is indeed a risk because of the long lists of performance-enhancing drugs and agents (see the Prohibited List published by the National Anti Doping Agency of Germany (NADA): https://www.nadaindia.org/upload_file/document/1546524875.pdf

In order to establish whether the requirements for dismissal without notice were fulfilled in the case of Joshiko Saibou, a distinction must be made between two occurrences: while Saibou’s public statements in which he expressed his opinion might justify a dismissal without notice only under certain circumstances based on a detailed and comprehensible statement of the reasons for dismissal, his participation in the demonstration has, in my opinion, resulted in his further employment being unreasonable for Telekom Baskets Bonn, thus justifying his dismissal without notice. This assessment is based on the following considerations:

Saibou’s statements in social media fall within the scope of protection of the freedom of opinion and expression. The basic right under Article 5(1) German Basic Law (GG) enables each person to freely express and disseminate his/her opinions, on whatever topic. The exercise of basic rights may only be restricted within very narrow limits. This is why it is, rightly, almost impossible to give employees, including well-known athletes who reach a large audience, directions as to how they should appear in public. As a result, provisions in employment contracts which “discipline” athletes with regard to the design of their social media channels are generally invalid. However, if already a contractual clause that regulates the expression of the employee’s opinion is invalid, it is next to impossible to justify a dismissal without notice (for which strict requirements have to be fulfilled, as described above) which is based on the expression of the employee’s opinion. Even if the opinion expressed by athlete is contrary to the club’s view about the coronavirus pandemic, this is not a fact that is suitable to justify a dismissal without notice.

If the club provided good and comprehensible reasons, it could argue, if applicable, that the athlete’s statements have been bad for the club’s business activities. In that case, the concrete expression of the athlete’s opinion might constitute cause for termination. Should such an approach be adopted, the club would, however, be required to furnish evidence of the actual (financial) consequences of the athlete’s critical statements about the coronavirus pandemic. Another aspect that could be used as a reason for the dismissal, if applicable, is disturbances among the team and in the business resulting from the athlete’s statements. This is because a dismissal may be justified if it serves the purpose of maintaining peaceful relations within the business.

According to reports, it appears that the dismissal will ultimately be based on Joshiko Saibou’s participation in the demonstration. As the participation in a demonstration generally also serves the purpose of expressing one’s opinion, the participation as such cannot be used as a reason for dismissal. However, the case at issue is particular inasmuch as Saibou exposed himself knowingly to an increased risk of infection by taking part in violation of the general hygiene rules. This constitutes in any case a violation of his obligations under employment law: employees in general are obliged to conduct themselves in such a manner that their ability to work is maintained, if possible. Engaging in high-risks sports, for example, can be forbidden. Athletes in particular are obliged to pay special attention to their health and fitness; this obligation is usually even expressly regulated in the employment contract.

Joshiko Saibou breached these (ancillary) obligations by exposing himself to a risk of disease and doing so knowingly, as the transmissibility of the virus and the increased risk of transmission that results from participating in such an event without observing the protective rules are probably undisputed.  It is doubtful, however, whether this breach of duty alone would suffice as a reason for dismissal without notice.

Joshiko Saibou deliberately caused his inability to work by participating in the demonstration. As the club has a duty of care towards the other players, it must exclude Saibou from team training for the next two weeks. And even if no team training is scheduled to take place during the next two weeks, the club will be unable to allow the athlete to play again upon expiry of said two-week period, as the club must assume that Saibou will also in future fail to comply with the guidelines stipulated by public authorities and the hygiene concept of the easyCredit BBL. It would be irresponsible towards his team colleagues and towards players from opposing teams to allow Saibou to take part in training or in matches during the next few months and have very close physical contact with a large number of people. Yet, participating in training and in matches is the athlete’s principal obligation. Joshiko Saibou therefore deliberately caused his inability to work. This should justify the dismissal without notice by his employer in the case at issue.

The key words “athlete”, “freedom of opinion and expression” and “Covid-19” that are contained in the heading give rise to complex legal issues when combined with each other. The fact of being an athlete in combination with the freedom of opinion and expression often causes problems under employment law; in conjunction with the legal uncertainties resulting from COVID-19, the challenges to athletes, clubs and all people involved in working life have increased even further. This can be countered by taking preventive measures, such as informing people, entering into works agreements, etc., and possibly also by validly making use of the legal (sanction) options.