Underpaid at the richest club in Germany? While the public prosecutor is still investigating; labor court proceedings are already underway. Lawyer Andreas Waldschmidt represents a trainer and provides insight into the process.
LTO: Mr. Waldschmidt; who do you represent and what do your FC Bayern Munich customers want?
Andreas Waldschmidt: We represent youth coaches at FC Bayern or former youth coaches who have been dismissed in employment law proceedings. Among other things; we claim back wages because trainers have been unfairly fired and the law on the minimum wage has been violated.
To what extent has the law on the minimum wage been violated?
The youth trainers worked an average of 100 hours per month and received 450 euros for this. That makes an hourly wage of 4.50 euros. However; from 1 January 2021; the legal minimum wage was already 9.50 euros. This falls by more than half below the minimum wage. Our customers no longer wanted to accept that.
What did the Bayern Munich officials say to their customers?
There the youth trainers were harshly rejected; saying: “If you don’t do it; we have many others who can do it for less than 450 euros or even for free.” That was certainly one of the sticking points around the vote. In short; these coaches are still big fans of Bayern. They didn’t like being treated like that.
The Minimum Wage Act; according to Article 22; third paragraph; does not apply to volunteers. A youth trainer is a volunteer; right?
There may be voluntary coaches at Bayern Munich. But the trainers who came to us are not voluntary trainers; they have a very normal employment contract. There is no additional agreement between you and FCB regarding unpaid or volunteer work.
The prosecution’s investigation is ongoing
Can you confirm that an investigation by the public prosecutor is also underway?
Yes; I have the subpoena from Customs Headquarters that my client is to be questioned. From this I can also deduce what the current official accusation of guilt is. Among other things; research is conducted into social security fraud; ie the withholding and embezzlement of wages. It is a criminal offence. In addition; there are administrative violations of the Minimum Wage Act; because the minimum wage has not been paid and timesheets should not have been kept or kept incorrectly.
What about the time registration?
FC Bayern had the youth coaches sign time sheets that were incorrect. If; for example; there was an away game – with arrivals and departures – the coaches were often only given two hours of work time. Travel time; preparation; accommodation and other matters were simply left out. Only playing time was recorded as working time. That is of course wrong. And according to Article 17(1) of the Minimum Wage Act; there is an obligation to keep proper timesheets. Failure to comply with this obligation constitutes an administrative violation within the meaning of Article 21; paragraph 1; number 7 of the Minimum Wage Act.
Who is the investigation aimed at?
Since we have no corporate criminal law in Germany; we will first investigate former and current board members of FC Bayern AG. But that doesn’t mean they’re ultimately guilty. Investigators must first find out who was actually personally responsible for the violations. This can reduce or even completely change the number of suspects. It happens a lot.
Bayern Munich wants to cooperate with authorities
What punishments threaten here?
Under the Minimum Wage Act; a fine of up to EUR 500;000 is possible. That would also work against individuals. In the case of Social Security fraud; the standard range of penalties ranges from a fine to five years in prison.
Why is the Underpaid Wage Related to Social Security Fraud?
Anyone who pays a wage that is below the minimum wage pays too little in total. Anyone who pays too little wages pays little or no social contributions to social security and that is punishable by law. Perhaps they defend themselves at FC Bayern by stating that the offense was committed carelessly. Only an intentional inspection is punishable.
However; whoever gives up work for employees who logically cannot be done during the agreed working hours; will probably not be able to plead negligence?
Yes that’s my opinion too. That is at least partly conscious.
The public prosecutor’s office carried out a search at FC Augsburg on the basis of similar allegations. The same is not known about FC Bayern. What do you think is the reason?
The responsible main customs office in Munich can provide you with better information about this. FC Bayern has now announced through Oliver Kahn that they will be working together. According to Mr Kahn; the association wants to cooperate with the authorities and help clarify the allegations. Such an attitude; of course; also serves to avoid a quest.
Bayern Munich also threatened with a long trial in the labor court
You sue the labor court for your mandate. With what purpose?
We actually want to come to an agreement with FC Bayern about a reasonable compensation for the loss of jobs and arrears of salaries. You have to see: the process before the labor court can be very long – there are many days of negotiations and extensive evidence with witness statements about the number of hours actually worked by the trainers. And they wavered too. It is therefore not so easy to calculate the exact amount of the wages withheld. So we’re looking for a comparison.
The trial has been running since February 2021. How has FC Bayern Munich behaved in court so far?
Last year there was a quality agreement with the aim of settling the case through a settlement. But FC Bayern did not even want to talk about a settlement. That is atypical for the labor court. As for my client’s resignation; the association says it is a necessary operational restructuring measure decided by the board of directors. At the same time; however; the club has hired other youth coaches; contradicting the necessity and operational nature of the termination.
Bayern Munich denies wages are too low
And what arguments does the association use to defend low wages?
FC Bayern has so far denied that the youth coaches have worked so hard; which they unanimously claim. That’s really outrageous: if you know that the coaches had to supervise; prepare and follow up three weekly training units; play one or two games on the weekend and also talk to parents; you can calculate that working ten hours a week is unthinkable . That just doesn’t work.
And what does the club say about the timesheets for away games where two hours of working time were agreed?
I have not yet received a statement from FCB about this. This time registration system has probably also been discontinued recently.
So have you paid the coaches better for away games?
No; you just kept paying $450 and just omitted the timesheets. Data was simply no longer kept or in any case no longer presented to the coaches for signature. But under the Minimum Wage Act; an employer is required to keep hourly records.
Criminal investigation could lead to more willingness to settle the Bavaria
FC Bayern Munich – it is actually an international company. And then a very rich one. Against this background; how do you assess the behavior of those responsible?
This problem will certainly exist at many football clubs. But that it happens at such a renowned and large club as FCB and in so many cases is outrageous. And of course they know the legal situation at FC Bayern Munich. In the hope that no one would complain; youth trainers were exploited here. And instead of approaching the trainer when the matter came to light; brick up and deny the obvious. These are relatively small amounts compared to FC Bayern’s turnover or player salaries.
The next hearing is scheduled for January. After that; witnesses can be called. Do you think FC Bayern Munich will make a settlement proposal in advance?
I am confident because it seems logical to me that both parties settle the matter through a settlement. FC Bayern will certainly try to get out of the case as best as possible under criminal law and the offender-victim compensation according to Article 46a of the Criminal Code is a decisive criterion for determining the penalty. Now that sounds a bit dramatic. The point here is simply that compensation to the young trainers should have a mitigating effect. For FC Bayern; something like that should also be bearable.
The LTO editors asked FC Bayern Munich for an interview and a statement about the allegations made; but received no response.
Interviewee Andreas Waldschmidt is an employment lawyer in Munich.
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