Israel, Hamas and freedom of speech in German football

"Every person shall have the right freely to express and disseminate his/her opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship."

These are the words of Article 5 of the German Basic Law, which then clarifies: "These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honor."

In other words, everyone can say what they want, as long as they do not insult or defame anyone or incite crime, hatred or violence.

So much for the basically clear legal situation. Far less clear and unambiguous, however, are the interpretation and understanding of how someone might have meant something, and whether a statement or social media post actually has criminal content.

Anwar El Ghazi doubles down

In recent weeks, several Bundesliga footballers have found themselves in the eye of the storm.

Noussair Mazraoui, a Moroccan international who plays for Bayern Munich, had wished "victory to Palestine" in a social media post.

Anwar El Ghazi, a Dutchman with Moroccan roots playing for Mainz, caused a bigger stir with posts on social media including the slogan: "From the river to the sea, Palestine will be free."

The phrase refers to the belief that a Palestinian state should stretch from the Jordan River to the Mediterranean Sea, thereby denying Israel's right to exist.

Mainz officials initially suspended the 28-year-old, saying his posts were not compatible with the values of the club, only to lift the suspension on Monday this week after holding talks with the player.

"El Ghazi has since distanced himself from his post on his Instagram account, which he deleted minutes later, in multiple conversations with the club," a club statement read.

"He regrets publishing the post and was remorseful about its negative impact. El Ghazi explicitly distanced himself from terrorist acts such as those committed by Hamas two weeks ago. He expressed his condolences to the victims of the attack and to all the victims of the ongoing conflict. He also stated that he does not question Israel’s right to exist."

On Wednesday morning, however, El Ghazi doubled down, disputing the statements and apologies attributed to him by the club as "not factually correct" and "not authorised."

"I do not regret my position and have no remorse. I am not distancing myself from what I said," El Ghazi said. He added: "I will stand until my last breath for humanity and the oppressed."

Much to the "surprise and incomprehension" of his club. Mainz announced its intention to "legally examine and then evaluate" the matter. Speaking after Mainz's 0-3 cup defeat to second-division Hertha Berlin on Wednesday night, club sporting director Martin Schmidt said that the issue would now be discussed "at board level."

"We're going to put our heads together and come up with a solution as soon as possible. We'll give a statement in the next couple of days."

Thin legal ice

But El Ghazi's comments have put Mainz in a precarious legal position. His suspension could be challenged under labor laws and any attempt to remove the player from his contract or request him to make no further comment on the matter, would put them on thin legal ice.

"Everyone has a right to privacy, and the employer basically has no way of influencing an employee's expression of opinion or actions outside of his or her working hours," explained Paul Lambertz, a specialist lawyer for sports law.

When Lambertz made this statement to various media last month, it created a stir on social media, with some politicians, including member of the Bundestag for the conservative opposition CDU Johannes Steiniger, who demanded that, in the case of Mazraoui, he should not only be kicked out of Bayern Munich but that deportation from Germany should also be considered — a demand has no legal basis.

"As a rule, I can only deport if there is a right of residence, if crimes of considerable importance are committed," Bavaria's home secretary Joachim Herrmann of the CSU told Bayerischer Rundfunk. "Bayern has to take care of this itself."

That's what the club did by not imposing sanctions on the player and simply announcing that they had spoken with Mazraouri and confirmed that he is a "peaceful person."

To have gone any further would have risked a legal challenge.

'Absolutely antisemitic'

Alon Meyer, president of Makkabi Deutschland, the Jewish gymnastics and sports association in Germany, praised Mainz's initial suspension of El Ghazi but expressed strong disagreement with Bayern's decision. 

Bayern's reaction was "absolutely out of the question and unacceptable for anyone who even remotely respects our society," Meyer told German public broadcaster ZDF. "If you take a unilateral position and wish the Palestinians victory — victory over what? — that is absolutely antisemitic."

Meyer described Bayern's handling of the situation as inadequate. "At no point was the massacre mentioned or condolences expressed. At no point is the state of Israel mentioned – maybe because [Mazaoui] doesn't recognize it — and at no point, and this is crucial, is there any hint of an apology. And Hamas is not condemned either."

German football wanted to set a sign "for peace" and there have been minute's silences at football stadiums across the country to condemn the violence and loss of life. In Freiburg, the stadium announcer said that "all people who have become victims should be remembered" while Union Berlin announced that "the victims of terror and war will be remembered" without explicitly mentioning Israel or Hamas.

Hamas is considered a terrorist group by the US, the EU, Germany, and many others.

This article was adapted from German.

While you're here: Every Tuesday, DW editors round up what is happening in German politics and society. You can sign up here for the weekly email newsletter Berlin Briefing.