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How German Works Councils Could Affect esports

Volume 37 , Number 3

The German Bundestag, a constitutional and legislative building in Berlin, Germany.

The booming esports industry has already impacted various employment regulations and could potentially influence several legal practice areas. Another facet it could affect are works councils, which are European labor organizations that are similar to trade unions and are especially popular in Germany. To better understand how esports might change works councils in Germany and potentially in Europe, the authors of the ACC Docket article “Genesis of an Industry: The Emerging Workforce and Regulations of esports” spoke with Dr. Christopher Jordan, partner and global co-head of Employment & Pensions Group. Dr. Jordan works in the Cologne-based office of CMS, a global law firm with 73 offices worldwide. Here, the authors elaborate on works councils and ask Dr. Jordan if pro gamers will be the driving force that modernizes work councils and labor laws in general.

Works councils

A works council, or Betriebsrat in German, is roughly akin to a “shop-floor” organization. The works councils operate as a local complement to trade unions, but are independent of unions. Given the level of control that teams exert over professional gamers — their apparel, the number of hours required for practice and streaming, and even their residential living conditions — the German works council system might be an interesting model when coupled with a collective bargaining agreement.

German law provides for the establishment of works councils in workplaces with a minimum of five employees over the age of 18.1 Works councils may be formed by employees calling a meeting to form an election committee. This committee is then responsible for compiling the list of voters and administering the election. All employees below the level of executive management are eligible to vote and to be elected to the works council.

Works councils possess a number of rights, ranging from the right to be consulted by the company through full co-decision-making powers with the company in matters like daily work schedules. They have rights to information about the company’s general business matters, and future plans involving personnel and new technology. They have a right to be heard on certain business matters. The employer, in turn, may listen to works council suggestions and consider them. They have limited approval and veto rights with respect to hiring and firing.

A works council is not a union. It does not engage in collective bargaining, and cannot call for industrial actions, such as strikes or work slowdowns. However, it does negotiate “works agreements” that cover workplace issues not covered in the collective bargaining agreement.

Dr-Christopher-JordanQ&A with Dr. Christopher Jordan

Do you believe pro gamers will consider creating a works council (WC) in Germany?

Dr. Christopher Jordan: Generally speaking, when we are talking about a German-style WC, we rarely find WC in the sports industry, either on the player side or on the producer side. WCs have traditionally been popular with older industries, such as metal, chemical, and automotive companies.

Do you have a sports-related client who is working with a WC?

Dr. Jordan: We have an esport client, on the producer side, who just established a WC. It is my understanding that the employees’ goal for the WC is to add additional job security. WC establishes a greater level of protection for those involved. Employers find it harder to dismiss those serving on a WC.

How do you believe pro gamers will view WC?

Dr. Jordan: Uncool. The perception is that a WC is for those traditional industries and the youth of today look at WC as less sexy or old-fashioned. WC are not really seen by the younger generation as a vehicle to express their concerns.

Would WC help pro gamers who are deemed by their employers to be independent contracts become employees?

Dr. Jordan: Yes. It is common in Germany and in other EU jurisdictions. Once a WC is created, it often triggers a look at misclassified workers. Consequently, once the misclassified independent contractors are properly classified as employees, the WC benefits by adding members.

What is the future of WC?

Dr. Jordan: The WC laws will need to be modernized. For example, current German law often requires communication between the parties to be in “writing” and mandates other formal procedures. Clearly, pro gamers do not often communicate with paper and pen. Thus, in order to capture the younger generation, the law will need to incorporate electronic communications as a permitted mode of exchange of ideas. Otherwise, I don’t see pro gamers buying into the old-school communication/procedural requirements. And that’s just one issue.

1 As provided in the Works Constitution Act of 1972. The Act was amended in 2001.

About the Authors

Ellen-ZavianEllen M. Zavian was the first female NFL agent and has represented US women’s soccer, softball, break dancers, and extreme athletes. She is now working on forming a players organization for Overwatch. She currently teaches sports/negotiation law at George Washington University in Washington, DC, and she serves as a coach to the GWU Law Students Moot Court program. She was previously CLO and GC of KMStandards, a patented contract drafting technology company. [email protected]

Jim-SchmitzJim Schmitz is a veteran union organizer and strategist based in Maryland. He served as the National Organizing Director for AFSCME for 12 years. He is currently an advisor to the United Automobile Workers union. [email protected]

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