Bayern München, Borussia Dortmund and the Business Judgment Rule in a Transfer Window

What an approriate post in the run-up to tonight’s Champions League clashes between Arsenal/Dortmund and Chelsea/Schalke: If you were a supporter and/or shareholder (which may or may not be the same thing) of Borussia Dortmund, could you hold the club’s management responsible for not having transferred Robert Lewandowski to Bayern for a hefty fee this season, rather than letting him join the arch-rivals for free next summer? If you though that Bayern München spending EUR 37,000,000 to sign Mario Goetze was madness, would that argument have legs in a court room? 

It was about time that someone opined on these burning issues, and I am happy to tell you that my partner Ulrich Reers and his co-author did just that and reveiwed the position under German law. Here’s the summary of their recent article:

“The transfer of professional football player Mario Götze and the prevented transfer of his colleague Robert Lewandowski, in each case from Borussia Dortmund to Bayern München, have been discussed in almost every non legal media. While the ad hoc relevance of the Götze transfer has already been subject to sporadic statements in the specialized legal press, the obligations of the management of a football club in the legal form of incorporated companies in connection with Transfer decisions in professional football under company law have yet – as far as can be seen – not been examined. The article shows that these are to be assessed as corporate decisions under the business judgement rule and highlights the requirements for acting in line with the corporate duties in the case of a transfer decision. Furthermore, the authors show that the previous understanding in literature of the ad hoc relevance of player transfers is too extensive and ad hoc publication requirements concerning transfers of so called key players can only occur in exceptional cases.”

Uli made sure that the authors provide a balanced view – one is a Dortmund, the other a Bayern supporter.

*****

Klaus Cannivé and Ulrich Reers: Die Fälle Lewandowski und Götze – eine gesellschafts- und kapitalmarktrechtliche Nachlese aktueller Transferentscheidungen im Profifußball, CORPORATE FINANCE law 2013, 182 (CFL0610831).

 

 

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