Manuel Neuer, the greatest goalkeeper in my lifetime, has sadly broken his leg whilst skiing, following Germany’s exit from the World Cup. The Bayern Munich and Germany number 1 has been ruled out for the rest of the season. Gute Besserung an dieser Stelle.
As a key player and indeed the club captain, Mr. Neuer’s absence will no doubt cause his employer, Bayern Munich, significant problems on and off the pitch as he will miss the end of the season. A number of journalists and fans are questioning how a professional footballer in the twilight of his career and already nursing a shoulder injury can have been permitted to go skiing and therefore risking his health. In his defence, it is reported that his employment contract did not expressly prohibit him from skiing and most professional athletes I know find it mentally refreshing to actively do sport during their few holidays; many are not the types to sit on the sofa and read a book. Putting the question of ethics aside, the unfortunate incident does raise a couple of interesting employment law questions, namely what can an employee do (or be prohibited from doing) when off-duty and who funds the employee’s salary when they are unable to work.
Prohibiting certain activities in the employee’s free time
Clearly, during working time, the employer will essentially be able to dictate the activities the employee can engage in. In short, the employer is paying the employee for him or her to work as directed. Things are murkier outside working time when an employee can – within reason – do as they please.
Whether the employer could lawfully prohibit certain (riskier) leisure activities in the employment agreement is debatable. We think that on balance, such clauses may be valid for certain kinds of employees, such as professional athletes. However, in principle, the employer cannot dictate to the employee what they do during their free time. This applies not only to playing dangerous sports, but also, for example, to a ban on travelling to certain countries on vacation or a general obligation to maintain a “healthy lifestyle”. Such orders would be legally unenforceable, meaning a breach would be inconsequential.
Who pays the employee when they are unable to work?
Employees in Germany benefit from generous statutory paid sick leave. If an employee is unable to continue working due to sickness or injury and the employee is not at fault for the absence, the employer is, in principle, required to pay the full salary for up to six weeks per illness/injury per year. Some employees such as management and key staff often agree a contractual extension of the six weeks to a few months. Employers have little to no ability to question a medical note excusing absence.
If employees are on sick leave for more than six weeks due to the same illness or injury, publicly insured employees have the right to receive sick pay from statutory health insurance for up to 72 weeks. This is capped at EUR 112,88 gross per day in 2022, i.e. a maximum of EUR 3,386 gross per month. There is a little more for occupational accidents.
The pertinent question therefore is when is the employee “at fault” for the absence. The answer: rarely. According to case law, even if the employee was unable to work due to an injury or illness caused by their own recklessness, this would not justify an employer ceasing to pay the salary. However, if an employee was proven to be particularly reckless or even acted with intent to avoid working, the employer may be able to avoid paying the salary for the requisite six weeks. Specifically for sports accidents outside an employee’s working hours, case law distinguishes between dangerous and non-dangerous sports. A sport is defined as dangerous if the risk of injury is so great that even a well-trained athlete could not avoid this risk by careful conduct. To the best of our knowledge, German courts have so far only classified kickboxing as a dangerous sport, and motorbike racing, amateur football, boxing and hang-gliding have all been deemed to be non-dangerous. Against this background, skiing will probably also not be considered dangerous by definition, unless the employee took considerable risks.
The Manuel Neuer situation
Bayern won’t be thrilled by Neuer injuring himself whilst skiing, but given his exceptional contribution to their success over the years and his standing with management and fans, it would be surprising if he was sanctioned or criticised in public. With Manuel Neuer’s salary reportedly more than EUR 20 million per year, one might expect that his club, Bayern Munich, will not quibble about paying him in full for six weeks or whatever period they have agreed to pay him in full. After that period he is likely to be covered by his own private insurance, as EUR 3,386 per month would be a huge shortfall if he were to rely on the state system. He will, however, miss out on gametime, and will accordingly presumably forgo appearance fees and win bonuses, as well as affording another keeper the opportunity to prove they can succeed him.
His absence will at least force Bayern’s hand to consider the unthinkable sooner than anticipated – a team without goalkeeper Neuer between the sticks and leader Neuer in the locker room.
Back in the real world
Outside of professional football, and back in the real world, when faced with the six-week full-pay requirement with little to no ability to query medical certificates, employers may feel their hand is forced: many may seek to contractually prohibit dangerous pursuits (which may not be legally enforceable if challenged) and encourage fitness, wellbeing and a positive working culture, to reduce the risk of paying employees who are unable to work. Only the most crass cases will give the employer the chance to refuse to pay sick leave salary or even take disciplinary action against the employee.
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For further information, please contact:
Matthew Devey, Partner, Linklaters
matthew.devey@linklaters.com
