Federal Labor Court sets guidelines for distinguishing between employees and self-employed persons using the example of assistant referees

BAG, decision of December 3, 2025 – 9 AZB 18/25

An assistant referee in the third football league (3. Bundesliga) is not an employee of DFB Schiri GmbH, which is why legal recourse to the labor courts is closed.

Facts

The plaintiff has been assigned as a referee in the regional league since the 2021/2022 season. The next higher division, the 3rd league, is a professional league. Its matches are organized by the German Football Association (DFB). The defendant, DFB Schiri GmbH, is responsible for assigning referees, including assistant referees and fourth officials, to matches. To this end, it maintains so-called referee lists. Inclusion in the referee list for the 3rd league is achieved in particular by regional associations registering regional league referees for so-called DFB referee coaching positions. The plaintiff was not considered for the 2024/2025 season. As a result, the defendant did not offer him a framework agreement to work as an assistant referee in the 3rd league, which he considers to be discriminatory.

According to the framework agreement, an assistant referee is not obliged to take on match duties. Even after being assigned according to the availability entered in the DFBnet portal, assistant referees can still refuse their assignments. Assistant referees in the 3rd league are paid per assignment (without a basic fee); there are no video assistant referees in the 3rd league.

The plaintiff has filed a lawsuit with the labor court seeking compensation and damages under Section 15 AGG. The defendant has challenged the jurisdiction of the labor courts, arguing that the plaintiff did not work for them as an empoyee in the 3rd league.

Course of Proceedings

After the labor court ruled that the labor courts did not have jurisdiction and referred the case to the regional court, the regional labor court, upon the plaintiff's immediate appeal, declared that the labor courts did have jurisdiction. The defendant's appeal against this ruling was successful, resulting in the reinstatement of the first-instance decision.

Decision

According to the Federal Labor Court, if the plaintiff had been "hired," he would not have worked for the defendant as an employee. Neither the framework agreement nor the individual assignments as an assistant referee would have established an employment relationship between the parties within the meaning of Section 5 (1) sentence 1 ArbGG, Section 611a (1) BGB. The defendant cannot unilaterally instruct an assistant referee in the 3rd league to participate in a specific match as a member of the referee team on the basis of the framework agreement. If he does not agree to officiate a match, he does not face any sanctions under the DFB's referee regulations. If an assistant referee agrees to officiate a match in the 3rd league, the obligations arising from the framework agreement and the referee regulations are not subject to instructions and have not to be fulfilled in a personally dependent manner. The plaintiff would also not have worked for the defendant as a person similar to an employee within the meaning of Section 5 (1) sentence 2 ArbGG. In this respect, the necessary economic dependence was lacking.

Classification 

The decision of the Federal Labor Court on assistant referees confirms with welcome clarity the essential considerations of previous case law on (main) referees:

At the beginning of 2020, the Lower Saxony Regional Labor Court had already ruled that neither the one-year fixed-term referee framework agreements nor the resulting match assignments indicated an employment relationship. Prior to this, in March 2018, the Hessian Regional Labor Court had already denied the existence of an employment relationship and taken into account the unique nature of the sport in its landmark decision on refereeing.

DFB victory with Heuking in Hanover: Referees are Independent
(Second Chamber of Lower Saxony Labor Court, judgement of February 12, 2020 (2 Sa 172/19))

Referees are not employees: Deutscher Fußball-Bund e.V., the German Football Association, successfully defends an appeal with Heuking Kühn Lüer Wojtek
(Hessian Regional Labor Court, judgement of March 15, 2018 (9 Sa 1399/16))