Bundesliga club Mainz 05 has released its player El Ghazi because of an Instagram post about the situation in Gaza. Can an employer prohibit his employee from expressing his opinion? Questions for SWR legal editor Christoph Kehlbach.
SWR Aktuell: The football club Mainz 05 has suspended the Muslim player El Ghazi because he posted on social media with the slogan: “From the river to the sea, Palestine will be free.” shared. Is such a statement still covered by freedom of expression?
Christoph Kehlbach: Freedom of expression is regulated in Article 5 of the Basic Law. The second paragraph of this article expressly states that there are limits to freedom of expression: “These rights find their limits in the provisions of general laws, the legal provisions for the protection of young people and in the right to personal honor.” The statement is therefore covered by freedom of expression as long as it does not violate legal regulations, such as criminal law.
According to some lawyers, that could be exactly the case with this sentence. A prohibited “condonation of crimes” (Section 140 of the Criminal Code) could come into question. This is particularly conceivable if the statement is made in direct connection with the most recent terrorist attacks by Hamas. Because then the impression is clearly conveyed that the area “from the Jordan River to the (Mediterranean) Sea” should be free of Jews and the State of Israel. And this would also legitimize Hamas’ mass murder of Jews.
If the criminal courts see it that way, a criminal law would be violated and the statement would no longer be covered by freedom of expression. However, since current events have only just happened, there are of course no judgments on this question yet.
ARD legal editor Kehlbach
SWR Aktuell: The Palatinate CDU member of the Bundestag Johannes Steiniger is calling for it Expulsion of Bayern professional Noussair Mazraoui, because he wishes the “Palestinian brothers” victory over Israel. Are employers allowed to sanction such statements or those of Mainz player El Ghazi under labor law? So is the exemption OK?
Kehlbach: “Employees do not give up their right to freedom of expression when they sign an employment contract,” says Mannheim law professor Philipp Fischinger. In principle, employees can also rely on freedom of expression. This is even more true if statements are made in a private environment and have no direct connection to work. However, if public statements harm the employer, for example because they disturb the peace in the company, then they can have consequences under labor law.
In case of doubt, the courts must decide whether a sanction from an employer, such as a release, warning or even termination, is legal.
Christoph Kehlbach, SWR legal editor
This can be the case in individual cases if employees commit crimes with their statements. According to labor law expert Fischinger, it plays a crucial role whether the statements “reflect” on the employer – for example by putting him in a bad light or otherwise putting a strain on the employment relationship or the overall peace in the company.
And: According to Fischinger, even statements that are covered by freedom of expression and are not punishable can lead to consequences under labor law. Imagine, for example, an employee constantly publicly badmouthing the products that his or her employer produces. This is a permissible expression of opinion, but it can certainly be problematic under labor law.
In case of doubt, the courts must decide whether a sanction from an employer, such as a release, warning or even termination, is legal. Especially in labor law, it always depends on the specific individual case.
SWR Aktuell: Do different rules apply to celebrities – for example athletes who have a large reach on social media – than to “ordinary citizens”?
Kehlbach: In terms of labor law, publicity could actually make a difference: There is no fixed number of followers for whom different rules would suddenly apply, but: For most “normal” employees, strangers simply don’t know who they work for. Statements made in private life – for example online or at demonstrations – are not so quickly associated with the respective employer. And therefore not so quickly relevant to labor law.
Things are different with well-known football professionals: they are in the public eye. And when they say something, many people immediately know: “He plays for Mainz 05, the other for Darmstadt 98 and this one for FC Bayern.” In these cases, there is much more of a repercussion on the employer and his concerns.
SWR Aktuell: In the current situation, isn’t there a risk that criticism of Israel will be fundamentally suppressed?
Kehlbach: In principle, criticism of the policies of the State of Israel is possible without immediately threatening labor law or even criminal consequences. The same applies to expressions of sympathy or pity for the civilian population suffering from Israel’s current military actions. Whether these are permissible under international law can also be discussed publicly. By the way, freedom of expression also protects outlandish opinions that are rejected by a large part of the population.
Fundamental rights are always the rights of minorities. And according to the Basic Law, society must also tolerate the opinions of minorities as long as they do not violate the law. Public statements become legally relevant if they condone serious crimes – or incite hatred or violence.
More information about the El Ghazi case
Information on the topic of safety for Jews in RLP
