During the last months of 2023, our sports law section continued to litigate in a number of football-related matters, including a number of noteworthyl issues. Here is an insight into one of these issues that are relevant to the international football world, but certainly also to civil (labor) law practice in the Netherlands and Germany.
I) Jurisdiction of the Dutch court (in Maastricht) in a representation agreement with a German player deliberately “diverted” into Dutch/Dutch law by a German agency. Mandatory German provision(s) applicable despite choice of law for Dutch law?
In 2023 we already wrote about this procedure that was initiated at the beginning of 2023 by a German agency, or at least German that is what the player always assumed. After all, as a German player in Germany, he had contact with a German agency with German employees. As it turned out, just before the player had signed the representation agreement (hereinafter ’the agreement’) at the age of 18, this German agency had established a Dutch B.V. in Maastricht (without actually having an office there) and this Dutch B.V. signed the agreement. as an intermediary and declared Dutch law applicable to the agreement and the court in Maastricht (the Netherlands) was designated as the competent court in the event of any disputes.
A dispute subsequently arose between the parties because the player no longer wished to use the services of the intermediary. The intermediary then referred to the agreement. Under mandatory German law (Paragraph 297, no. 4 SGB III), an intermediary cannot exclusively bind a job seeker (in this case the player), which is why the intermediary office had apparently attempted to circumvent this German mandatory provision under Dutch law. However, it was also remarkable that this B.V. was not officially registered as an intermediary with either the KNVB or the DFB and that it was not even clear which representative of the B.V. had signed the agreement with the player in the first place.
On May 17, 2023, the Limburg court already ruled on the jurisdiction issue (see link: https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:RBLIM:2023:3158). The Limburg District Court, seated in Maastricht, considered itself competent to hear the dispute. In that context it was considered: “Article 7(5) of the Agreement shows that the parties have made an exclusive choice of forum for this court. Rogon Europe B.V. relies on this provision, while the validity of this clause has not been disputed by the defendant. The forum selection clause is part of the Agreement itself, which has been drawn up in both English and German. The court is of the opinion that the forum selection clause therefore meets the requirements set by the recast EEX-Vo.” The Limburg District Court, seated in Maastricht, therefore declared itself competent to hear the dispute. On January 31, 2024, the Limburg court subsequently issued a final ruling in this matter (see link: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBLIM:2024:524&showbutton=true&keyword=Rogon&idx=1), after an oral hearing had taken place there on November 2, 2023 at the hearing location in Maastricht, which was attended on behalf of the player by Mrs. Blakborn and (Maastricht-born) Van Dort, who played a “home match” there. It was argued on behalf of the German player – also playing football in Germany – that he could not be bound by such an agreement for several reasons (contradiction with German mandatory law, the intermediary is not a registered intermediary with a football association, there are provisions in the representation agreement that conflict with the regulations). In its ruling, the court agrees with the player that he could not be held to the agreement with the intermediary and therefore rejects all claims of the intermediary. The court is of the opinion – just as in the jurisdiction issue regarding the choice of forum – that the choice of law clause has been legally agreed between the parties, and that in principle Dutch law applies to the agreement. However, the court does agree with the player that on the basis of Article 3 paragraph 3 of the EC Regulation “Rome I”, this mandatory German provision as expressed in Paragraph 297, no. 4 SGB III cannot be bypassed with Dutch law through the choice of law.
In that context, the court considered:4.6“Article 3(3) Rome I provides that, if all other points of contact existing at the time of the choice of law are in a country other than the country whose law has been chosen, the choice of law made by the parties shall result in the application of the legal rules of that other country. country from which no derogation may be made by agreement.. … In the opinion of the court, the present case is not formally considered a national case, but in fact there is an equivalent situation as referred to in Article 3, paragraph 3, Rome I. 4.7“It is not in dispute that Rogon is a Dutch entity in a legal sense because of its corporate form and place of business in the Netherlands (Maastricht). However, in this case this does not mean that (player) cannot rely on Article 3(3) of Rome I. During the oral hearing it became apparent that Rogon does not employ any employees and that its director, Mr (), only works for Rogon on a temporary basis. It has also been established that the only thing that Rogon (possibly) took care of from the Netherlands was drawing up the agreement and sending it to the (player). All other work was carried out by ROGON GmbH & Co. KG, sole shareholder of Rogon, carried out in Germany. In addition, as (player) rightly argued, at the time of conclusion of the agreement, no other leads pointed to the Netherlands. After all, it concerns an agreement with a German footballer. Who plays football in Germany for German football clubs and who has only had contact with employees of ROGON GmbH & Co. KG. The actual supervisor of (player), Mr (), also lives and works in Germany. Finally, the agreement was signed by (player) in Germany. 4.8In view of the foregoing, the court is of the opinion that a situation as referred to in Article 3 paragraph 3 Rome I occurs. This means that the present dispute must be assessed under Dutch law, but that assessment may also be affected by mandatory German law provisions. Now that Rogon based its claim against the player on the exclusivity provision known – and in the Netherlands permitted – in many representation agreements in the Netherlands (“you may only be represented exclusively by this intermediary x/y for two years“), but such an exclusivity provision is in conflict with the mandatory German provision in Paragraph 297, no. 4 SGB III, the Limburg court rejected Rogon’s claim on the basis of this provision. This provision reads:
“Unwirksam sind
- Vereinbarungen, die sicherstellen sollen, das ein Arbeitgeber oder eine Person, die eine Ausbildung oder Arbeit sucht, sich ausschließlich eines bestimmten Vermittlers bedient“
Or in English:“To be invalid4. Provisions that ensure that an employer, or a person looking for an assignment or job, can only be served by one specific intermediary.” The court first examined whether in German law this provision also applies in full to professional athletes as employees and, more specifically, to professional football players.Secondly, the court also examined whether the aforementioned provision was mandatory German law. A ruling of the Oberlandesgericht Hamm of 7 January 2010 (ref. 12 U 124/09) cited by the player showed that this is indeed a provision of mandatory German law. The court thus concluded its investigation under legal consideration 4.14 with the following conclusion:“The court finds that the agreement therefore contains an exclusivity clause, which has no effect. Whether this also means that the entire agreement between the parties is null and void can remain open to question, because Rogon’s claims (almost as discussed below) are based exclusively on the alleged violation of this exclusivity clause. Now that it cannot be judged that (player) has violated the exclusivity clause, Rogon’s claims fail.” The player was therefore free to unilaterally terminate the agreement with Rogon and to be advised/represented by another intermediary regarding negotiations on the conclusion of an employment contract.
We will again be fully active in this beautiful and always fascinating area of law during 2024 and will continue to keep you informed of developments in this and other matters.If you have any questions about these or other football-related matters or about other aspects within (international) sports and labor law, please contact Joes Blakborn or Max Hazewinkel or Elin van Dort, lawyers specialized in football and other sports-related issues, at Van Diepen Van der Kroef Lawyers from Amsterdam.
Amsterdam, February 12, 2024
