Doping control officers as dependent employees

LSG Baden-Württemberg from 18.3.2025 - L 13 BA 3631/22

Doping control officers are not freelancers, but dependent employees. This was recently decided by the Baden-Württemberg State Social Court. The reason for this is, among other things, the mandatory standards to be observed during the tests.

Facts of the case

The plaintiff is an ISO-certified limited liability company that carries out doping tests in competitive sports for national anti-doping organizations as well as international and national sports federations. In addition to permanent employees, it also uses freelancers who receive individual orders on the basis of a framework agreement.

Following a tax audit by the defendant pension insurance institution, the latter asserted an additional claim in the amount of EUR 159,967,03 in a decision dated December 3, 2015 after hearing the plaintiff. in the amount of EUR 159,967.03. The doping control officers employed by the plaintiff were dependent employees and therefore subject to compulsory insurance.

The claimant lodged an appeal against this decision, which was rejected. The plaintiff then brought an action before the Stuttgart Social Court, which upheld the action. The defendant then lodged an appeal with the Baden-Württemberg Regional Social Court.

Decision

The Baden-Württemberg Regional Social Court considered the appeal to be well-founded and overturned the judgment of the court of first instance.

Since there was no continuing obligation with services on call, the assessment of the insurance obligation was – in the opinion oft he Court – to be based solely on the circumstances that existed during the execution of the individual orders. The fact that the framework agreement did not provide for an obligation to accept individual orders was, however, irrelevant for the question of the obligation to follow instructions, so the Court.

The regional social court affirmed that the inspectors were bound by instructions, as they were subject to the company's specifications in terms of both content and time. The supposedly freelance employees had to carry out the checks at the specified time, which was determined by the competition schedule, among other things. In terms of content, they had to "strictly" observe the regulations of the doping agencies.

According to the Court, the inspectors are also integrated into the company's operational organization, which is reflected, among other things, in the fact that they act as the "executive body" of the doping agencies vis-à-vis the athletes. Furthermore, they used their test kits and also used their infrastructure in other ways.

Finally, in the opinion of the Court, the inspectors do not bear any significant entrepreneurial risk, as they receive a flat fee regardless of the quality of the inspection.

In the overall assessment of the Court, dependent employment is to be assumed after all of this.

Practical note

The ruling by the Baden-Württemberg State Social Court shows once again that the distinction between dependent employment and self-employment poses a variety of problems, particularly in competitive sport. However, it is always a question of the individual case. The ruling in no way suggests that self-employed activities are not possible in competitive sport in principle. On the contrary, the Bonn Labor Court (decision of 12 February 2025 - 4 Ca 2061/24) recently denied the employee status of a referee - despite the prescribed rules of the game. The Bonn Labor Court thus confirms the line taken by the Hessian State Labor Court and the Lower Saxony State Labor Court, which also did not consider arbitrators to be employees in specific individual cases.

Particular importance should therefore be attached to the drafting of the contract.