Bavarian Legal Works — SC Freiburg Appeal Edition: What will happen with Bayern Munich?

It was 17 seconds that shook the world.

In the last match against SC Freiburg, with Bayern Munich up 3-1 against the home side, an administrative error took place. Bayern’s staff programmed Kingsley Coman’s old number into the substitutes’ board (29 instead of the correct 11) and the Bayern winger stayed on for a few seconds too long. Eagle-eyed defender Nico Schlotterbeck spotted the error, the referee stopped the match and Bayern had played for all of about 17 seconds with 12 players. Nothing of any significance happened in that period. Coman then left the field, the game was restarted with a drop ball to Freiburg and the match finished 4-1.

There is plenty of embarrassment to go around out of this event. A Bayern staffer made an administrative error, the fourth official failed to control substitutions as he was charged to do, and the referee restarted the game with a drop ball rather than perhaps a direct free kick. But nothing happened that impacted on the result of the match, or favoured the winning side in any noticeable way.

But SC Freiburg’s board have decided that an appeal should be filed to change, or even reverse the result of the match. But oh, it so pains them to do so.

As they were filing their appeal to the DFB Sports Court, on the internet they were publishing a long statement about how bad they felt about doing so, and how they really were innocent victims in the whole matter. And this after head coach Christian Streich had said, “I expect we will not have to appeal anything.”

Freiburg’s social media statement is a complete mess. It is impossible to demonstrate how tortured it is without reproducing the whole thing:

The managers of the Sport-Club Freiburg e.V. discussed in an intensive and extremely differentiated process how to proceed after the changeover error of FC Bayern Munich in last Saturday’s Bundesliga match. All aspects that can be significant in the context of the overall responsibility for the association, especially in economic, sporting and legal terms, were illuminated and intensively discussed. First of all, we are in an innocent dilemma. SC Freiburg had no share or influence in the events surrounding the changeover process. Nevertheless, the DFB’s legal and procedural regulations formally oblige us to play an active role in order to have the proceedings reviewed legally. In principle, we have no interest whatsoever in this active role, which we have inherited from a procedural point of view against our will, and we feel very uncomfortable in it. We therefore consider this procedural arrangement to be inappropriate in its entirety. Ultimately, it places the totally uninvolved club - in this case us - on the responsibility for investigating an obvious breach of the rules. Nevertheless, after intensive discussions at different levels and a legal review, the board of Sport-Club Freiburg e.V. decided to appeal against the valuation of the game. In particular, the following points were decisive for the decision: - Creation of the possibility for the sports court to assess and answer the questions that arose here concerning the exchange error of FC Bayern Munich from a sports point of view. - Creation of future legal certainty in comparable cases also for other clubs. - Consistent action by SC Freiburg in the event of violations of the rules completely irrespective of the specific situation. For the association in economic as well as sporting terms and taking into account the interests of stakeholders. Legal prospects of success in sports court proceedings in connection with the existing loyalty obligations of the board towards the association and liability issues that arise. A detailed written justification will reach the Sports Court within the deadline.

Ouch.

While some media outlets have bought into this narrative of Freiburg’s innocence and existential angst at having to file this appeal, it is flimsy nonsense.

Freiburg have filed an appeal asking for the outcome of the game to be changed. No more, no less. And they have done so in an attempt to get more points and potentially more money, which is all fine. But to dress it up as some sort of noble cause they have been forced into is a flimsy ruse.

If all Freiburg really cared about was clarifying the rules or setting a precedent going forward they simply could have referred the problem to the DFB and asked them to set up a committee to study the event and recommend rule changes over the summer without trying to overturn the result of the match.

They chose a different road.

Freiburg also complained about the fact that the party that feels aggrieved by the rules violation has to file an appeal to get the process started. That is how rules and appeals work. The DFB cannot be expected to commence and carry such procedures themselves as that would take them out of a neutral position. Freiburg is whining about having to step forward to protect their own interests. Perhaps they should have asked their mother to file the appeal for them instead.

While their public announcement expresses faux distaste and reluctance they are nonetheless filing “a detailed written justification” for having the result of the game overturned. Perhaps instead of publishing their tear-stained justification for being forced into appealing they could be so good as to publish their actual filing before the Sports Court so we can see what they are really pitching rather than being forced to wade through that third-rate PR drivel.

The likelihood is that the DFB Sports Court will make no change to the outcome of the match. One of the underlying premises of natural justice is proportionality. The idea of overturning the results of 97 or so minutes of competition due to an error that conferred a negligible advantage over less than 20 seconds of play is absurd. Changing the outcome of the match, where there is no clear precedent for that kind of punishment, would be shocking.

No clear timeline as to when we can expect the decision is available.

We will wait patiently to see if SC Freiburg will publish their appeal filings so we can assess if their actions match their rhetoric.