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Jul 13, 2011

Fifty plus one of a Kind - Part II

As its name indicates, today's club called Bayer Leverkusen goes back to a gymnastics club formed by, and for the workers of, the Bayer factory in what is now Leverkusen.

• Read Part I of the story here...

It seemed pretty strange to bar the Bayer company from having a controlling interest in an enterprise formed by a club that had enjoyed its support for almost a whole century. Heck, the city of Leverkusen itself was named after the man who had built the factory which became Bayer's headquarters!

So the DFB put a loophole into the 50+1 rule, known as "Lex Bayer": if a "commercial enterprise had been uninterruptedly and considerably supporting the sport of football at the parent club for 20 years prior to January 1, 1999", this enterprise could formally apply for the acquisition of a controlling interest in the football PLC. The exemption was tailor-made for Bayer Leverkusen, but it also applied to the Volkswagen company and VfL Wolfsburg. (Another case where even the city itself owes its existence to the company!)

Looking back on that October weekend now, almost 13 years later, you have to say that the revolution didn't lead to what the revolutionaries had hoped for. The "economic imbalance" Niebaum spoke of is bigger than ever, despite PLCs in the Bundesliga, and German clubs are no longer competitive on the European stage. Some people, men like Martin Kind, blame the 50+1 rule.

In roughly ten years, Kind, by now managing director of Hannover 96 Ltd. and chairman of the parent club, had pulled off a minor miracle - he'd turned Hannover 96 into a respectable and financially healthy Bundesliga team. Some fans disliked his gruff hire-and-fire methods, but there was no arguing with the results. However, a man used to expanding was about to hit a ceiling, and that must've annoyed him.

Kind looked at the Ltd. as a business. (Which, in a way, it was.) And in any other business, you could only get to the very top if you were smart enough and invested wisely. After all, he had proven that already with a hearing-aid company! But in football, it was different. After all, where could you find investors who would invest in a company they could never have a say in?

"If you don't go forwards, you go backwards," Kind said two years ago. "In football, that means we would someday be back in the second division. We have to create conditions that will allow Hannover 96 to prosper. Under the current situation, it's obviously unrealistic that we can take the next step and qualify for Europe. I want to take Hannover 96 to the top spots and this isn't possible without investors."

And, if we are to believe his words, there was another thing. Kind had, like quite a few other people, severe doubts that the 50+1 rule was legal under European law. It only took one investor frustrated enough to ask a court why he couldn't buy a company that wanted to be bought and there would be another Bosman moment - a ruling that sends the whole system crashing.

And so, in December 2007, Kind began his long and lonely crusade against the 50+1 rule. It was long because the DFB and the German Football League (DFL) were in no hurry to deal with Kind's motion to abolish the regulation. It was lonely because not even Bayern Munich or 1899 Hoffenheim, clubs some observers had considered potential allies for Kind, were willing to follow him and voted against his motion in 2009.

After that vote, Bayern's Karl-Heinz Rummenigge said: "I hope that Mr. Kind will not do what he's threatened to do and take the legal path now. I hope he shows solidarity with the league and accepts this majority decision." Which tells you Rummenigge didn't know Kind very well.

Even when more than twenty of his shops were besmirched by angry football fans in fifteen different cities, Kind marched on, undeterred. He lodged an action against the rule with the game's Permanent Court of Arbitration and was invited to a hearing last week where he was supposed to explain why the 50+1 rule was untenable.

But that's not what he did. During the hearing, Kind announced his main objective was no longer trying to topple the 50+1 rule. Suddenly he was mainly interested in the exemption granted to Leverkusen and Wolfsburg. What he was now asking for was the simple deletion of some two dozen characters, namely: "prior to January 1, 1999".

"This is a surprising turn in this case," said Udo Steiner, the judge who presides over the Court of Arbitration. But that's putting it mildly. Kind's new motion is bewildering, because it's not in line with the arguments he's put forth in the past.

If the Court of Arbitration rules in his favour, the former Lex Bayer would apply to any company that has been supporting a club for twenty years. It's hard to see how this would entice the investors Kind has been talking about for all those years, unless he's got someone at hand who doesn't mind spending millions and then waiting for two decades.

This led kicker magazine to speculate that Kind himself, involved in the club since 1997, is interested in owning the football PLC, saying Kind "could take over the majority of shares in 2017". This is a possibility, but it looks shaky to me.

First, Kind will have to wait six years to do something he's never said he wants to do. Second, the exemption explicitly mentions "commercial enterprises" (when Kind first got involved, in 1997, it was as a private person) and "uninterruptedly" (Kind stepped down as head of the parent club in August 2005 before returning to the post in July 2006), so I'm not sure he'll even qualify for a takeover in 2017.

Finally, Kind's new idea doesn't change the 50+1 rule as such and thus won't prevent the scenario he said he wants to prevent, namely a legal attack on the rule from someone like 1860's investor Ismaik.

It'll be interesting to see if Kind has simply tired of being everyone's bogeyman or if his own players have changed his mind. After all, Hannover 96 have just done what Kind said was "obviously unrealistic", by finishing fourth and qualifying for Europe.

Perhaps he's got an ace up his sleeve that is well hidden indeed, although the earliest we'll find out is in about two months, when the Court of Arbitration will decide whether Kind's new motion will sink or swim.

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