Bernd Weller
Seitz, Frankfurt
b.weller@seitzpartner.de

Introduction

A professional football player with the club Bundesliga from Mainz, Germany, with Dutch citizenship, Moroccan descent and a wife from Palestine, commented repeatedly on his private social media accounts about the situation in October and November 2023 – following the Hamas terror attack on Israeli civilians on 6 October 2023.^[1]

As part of the employment contract, his club and employer had agreed with the football player that the club’s reputation is of key importance for the economic success of the Club and that accordingly, inter alia, the player undertakes to:

• do everything possible to increase the club’s reputation on and off the football pitch;
• refrain from any extremist, provocative or offensive behaviour and statements; and
• always make any public statements in such way that the reputation of the club would not be compromised.

Furthermore, any infringement of the obligations set out in his employment contract may be subject to contractual penalties, warning letters and dismissals – depending on the infringement.

Clearly, any citizen enjoys the constitutional right of free expression – which, however, in Germany is ‘subject to the limitations set forth in general laws, statutory provisions for the protection of minors, and the right to personal dignity’ (Art 5, German Constitution).

Consequently, the case triggered questions as to whether the football player’s freedom of speech was legitimately limited by the employment contract and whether the player’s public statements were breaching constitutional boundaries.

The statements

In a series of statements, the player posted the following statements.

8 October 2023

A day after the Hamas terror attack: ‘You don’t need to be Muslim to stand up for Gaza, you just need to be human.’ The message was written on a picture of him with a Palestinian flag.

The statement sparked some public discussions as it was understood as supportive of the terror attack. In consequence, there were discussions held between club and player. The player confirmed vis-à-vis the club that he supports of following message on the club’s social media accounts: ‘he did not by any means condone the murder of hundreds of innocent Israeli civilians by a terrorist organisation like Hamas.’

Between 12 and 15 October 2023

The football player posted four posts on his various social media accounts. The posts showed support for Palestine and the suffering of people there. The final post, which appeared on both X and Instagram, read:

‘This is not war.

When one side cuts off water, food and electricity on another then it’s not war.

When one side has nuclear weapons then it’s not war.

When one side is getting funded with billions of dollars then it’s not war.

When one side uses AI pictures to spread misinformation about another then it’s not war.

When social media is censoring the content of one side and not the other then it’s not war.

This isn’t a conflict and it’s not war.

This is genocide and mass destruction and we’re witnessing it happen live.

From the river to the sea, Palestine will be free.’

Under German criminal law, the last sentence ‘From the river to the sea […]’ is a criminal offence as it is understood as the claim of Hamas (a proscribed terror organisation under German law) to negate any right of existence to the state of Israel.

At the Club’s request, the player deleted the last post within seven minutes of posting. In the following days, several meetings and discussions between player and club took place. The player expressed his regret; he said that in particular he would neither condone the terror attacks of 7 October 2023, nor does he negate the right to exist to the state of Israel. The player was temporarily released from his work. The club sought a jointly agreed statement to demonstrate that the player was not negating Israel’s right to exist. Such statement, which according to the club should read as follows, was not reached:

‘I condemn the terrorist attack against civilians in Israel on 7 October 2023. My thoughts and prayers are with the victims of this attack. I am committed to a peaceful and integrated Middle East region. I would therefore like to formally apologise for any misunderstandings that may have arisen in connection with my recent social media posts.’

27 October 2023

The player did make the following public statement:

‘I condemn the killing of all innocent civilians in Palestine and Israel. My sympathies are the with innocent victims of this conflict irrespective of their nationality. I am committed to a peaceful and integrated Middle East region. To the extent my previous statements on social media have been misunderstood, I would like to make clear that I stand for peace and humanity for all.’

30 October 2023

The club made the following press release:

‘The player has received a warning from the club [...] for posting a message on social media two weeks ago. In the post, the 28-year-old Dutchman had commented on the conflict in the Middle East in a manner the club found unacceptable. The club immediately suspended the player from training and games following the post. […]

Since then, in several conversations with the club’s board, he has distanced himself from the post on his Instagram account, which he himself had deleted after just a few minutes. He expressed regret over the publication of the post and its negative impact, especially on the club as a whole. In this context, the player also clearly distanced himself vis-a-vis the Executive Board regarding terrorist acts such as the one carried out by Hamas, which had led to a renewed escalation of violence in the Middle East two weeks ago. He emphasised his sympathy for the victims of this attack as well as for all victims of this conflict. He made it clear that he does not question Israel’s right to exist. During discussions with the player, the club’s board made it unmistakably clear that it expects its employees to be committed to the club’s set of values. This implies a special responsibility toward the State of Israel and the Jewish people, which stems from German history as well as from the club’s own history, including its Jewish co-founder […]’

The club further stated that the player would now return to work or the pitch.

31 October 2023

The following day, however, the player commented the club’s press release on social media as follows:

‘For the avoidance of doubt, my statement on 27.10.2023 was my only and final statement both to C-Stadt and the public relating to the social media posts made by me over the last few weeks. Any other statements, comments or apologies to the contrary attributed to me are not factually correct and have not been made or authorised by me. My position remains the same as it was when this started.’

Following that distancing from the club’s public statement, the player was dismissed for cause and without notice.

Court decision

Both, the local labour court and the Higher Regional Labour Court of Mainz held the dismissal invalid. It considered the player’s statements before 31 October 2023 as irrelevant for the dismissal justification – as the club, with its press release of the previous day, had shown itself that it would not use that behaviour as justification for a dismissal but ‘only’ for a warning letter, Consequently, these statements were ‘consumed’ by the club’s decision published in the press release.

Regarding the player’s statement of 31 October, the courts came to the conclusion that this statement could not be seen or interpreted as a repetition/reconfirmation of any previous statement to support the Hamas terror attacks and/or to negate Israel’s right to exist. In particular, he had very quickly deleted his post of 15 October with the incriminated ‘From the river to the sea […]’ statement. The post of 31 October 2023 could not be seen as a re-posting/ repeat of that very post. All other posts, according to the court, were still in line with the freedom of expression. Furthermore, the player’s repeated statements concerning the club had to be considered to his advantage. He had indeed shown support for the club’s first public statement on 7 October 2023. His reaction to the club’s post of 30 October 2023 must be seen as the player criticising that the pain of Palestine people not be reflected in the club’s statement.

Therefore, in a nutshell, the court did not have to decide whether or not the incriminated use of the ‘From the river to the sea’ phrase on a private social media account was sufficient to justify a dismissal. However, it is evident from the ruling that the Court gave this matter serious consideration. To some jurisdictions, this surprising point of view is due to the fact that in Germany, freedom of expression is limited by law – namely criminal law. German law considers the phrase as a criminal offence as it is considered: to be the phrase of a terror organisation (Hamas); to negate Israel’s right to exist; and, in consequence, ignites hatred. Furthermore, the fact that the player had signed a respective ‘public statement’ clause in his employment contract, and the nature of both his level of fame and the club’s dependency on its reputation would justify a dismissal.