SpuRt 6/2017
The Association “Athletes Germany” – a revolution in sports?
In the editorial The Association “Athletes Germany” – a revolution in sports? C. Prokop / Regensburg describes the situation of the athletes, who increasingly come into conflict with their associations, be it in nomination decisions for international competitions or in connection with doping violations and multi-year competition bans.
The so-called athlete agreements created in 1997 have only partially resolved the legal issues, but in the field of anti-doping, the key issue of sporting success, and sports issues, the athletes’ representatives are largely overwhelmed by the complexity of many topics.
The influence of athletes on these situations is probably significantly improved by the association “Athletes Germany”, because it is in the spirit of the sport, if the main players, the athletes by appropriate advice have more influence on the conditions of the sport.
“Basic Problems with the Basic Contract? – A Civil Law Analysis“
In the article “Basic Problems with the Basic Contract? – A Civil Law Analysis “, A.Scheuch / Münster subjects the following issues to the increased financial participation of amateur clubs in football in the interview of E. Kupka in SpuRt 2017, 101. The starting point for this is the basic contract between DVB and DFL and the supplementary agreement not yet published.
Scheuch thoroughly examines the validity of the basic contract and the supplementary agreement in the framework of a confirmation resolution of the DFB-Bundestag in November 2016 in particular, due to the lack of knowledge of the delegates about their content. Here the jurisdiction of the BGH and the company law gives valuable information, however, one will have to assume that the confirmation decision was effective, because the eventual ineffectiveness was not criticized, also the point of forfeiture applies here. The supplemental agreement could be ineffective due to the overruling of the resolution authorization in relation to the agreement of a cap.
As a result, Scheuch means that the basic contract and the additional agreement are ineffective, why a duty-contrary behavior of the DFB representatives would be examined because of the admission on unfavorable contract conditions. Again, arguments are to be taken by analogy from the stock corporation law, namely the so-called Business Judgment Rule in § 93 para. 1 sentence 2 AktG: Although the responsible person has a wide discretion, a discretionary discretion could be given. Overall, the result of Scheuch’s investigation is that the charge of dereliction of duty against the amateur camp is justified.
The points of criticism of E. Kupka show in this respect a legal doctrine: The delegates should have been informed about the details. Furthermore, the delegates must be accused of having recognized the existence of the supplementary agreement that was not disclosed. The performance coverages according to the additional agreement are likely to be ineffective. It is to advice the DFB and the DFL, by convening an extraordinary German Bundestag to urgently bring a valid decision.
Current developments to the registered association as legal form for (professional) sport associations”
In the contribution “Current developments to the registered association as legal form for (professional) sport associations” C. Wettich and C. Vossen / Dusseldorf comment on the decision printed in the same issue of the so-called “KiTa decision of the BGH on the question of the economic activity of a registered association according to § 21 BGB. The BGH has ruled that the recognition of an association as a non-profit organization within the meaning of § 51 ff AO has an indicative effect that it is not geared to an economic business and can be listed in the register of associations. In the present case, there are many reasons for the assumption of an economic business, however, the BGH here confirms the 1983 deriving from the so-called ADAC judgment on Nebenzweckprivileg. For the classification as an “ideal club” is not only the statute of the association decisive, but especially in which form it actually works. This is justified in detail by the BGH. The authors deal with the question, which is of importance to professional sports clubs. For leisure / amateur clubs it is considered that the statutorily pursued purpose of promoting sport in the statutes is sufficient to recognize it as charitable in accordance with § 52 AO by the tax authorities. In such a case, the club can be sure to be recognized by the civil court as an “ideal club”.
Against for professional sports clubs, it depends on the decision of the Federal Supreme Court, whether the licensed players department is outsourced to a capital subsidiary or is operated in the parent club. With an outsourced licensing players department (see ADAC) taking place in the economic activity of the subsidiary capital company, the creditors are thereby sufficiently protected and the association is recognized as an ideal association according to § 21 BGB. The court also confirmed similarly in the case of the requested cancellation of the FC Bayern Munich eV in 2016.
It is unusual and more problematic with a non-outsourced license player department. To be sure, the argument of § 55 AO cited by the BGH also intervenes here, but this is at most an indication of the intervention of the auxiliary purpose privilege and the existence of an ideal club.
“Residual Control of a Club of the Bundesliga – Specific Conditions for the Valuation of Shares in a Complementary Company by the Example of Hannover 96“
In the article “Residual Control of a Club of the Bundesliga – Specific Conditions for the Valuation of Shares in a Complementary Company by the Example of Hannover 96” C. Müller / Cologne deals with the sale of 51% of the shares in the General Partner Hannover 96 to Martin Kind. This sale has already occupied the courts (LG Hannover, SpuRt 2017, 208, OLG Celle, SpuRt 2017, 2054). The article addresses the more commercial question of how the shares sold should be valued. The contingent legal contours are shaped by the relevant commercial and corporate jurisprudence. When evaluating the shares in the Hannover 96 Management GmbH Müller initially dealt basically with the net asset value method, the income value, also with the football KGaA as a peculiarity of German football, also the desired residual control of the general partner on the football KGaA as a value driver.
Müller finally comes to the conclusion that the courts LG Hanover and OLG Celle, which have approved the sale, would have omitted in their summary examination, under the above aspects, the mandatory for the application at the DFL share sale on its property as a basic business of the Hannover 96 eV to investigate. From a commercial point of view, these decisions are incomprehensible.In particular, however, there are no constitutional requirements, namely, who, and under what conditions and with whose consent a parent club could sell an outsourced licensed player department. This must still be determined by the DFB and the DFL according to regulations.
“Concept for pleading for a specialist attorney for sports law”
M. Nolte / Cologne and T. Summerer / Munich explain in their contribution “Concept for pleading for a specialist attorney for sports law” the long-detailed proposal of the Arbeitsgemeinschaft Sportrecht in the German Bar Association, and simultaneous application to the Bundesrechtsanwaltskammer for the advocacy the specialist attorney for sports law. The authors explain the status Quo Fachanwaltschaft and present the facts and legal dimensions of the sport, namely 27,000,000 memberships in nearly 100,000 sports clubs as the largest social subsystem in Germany. Not only leisure time activity, but also an aspect of the economy whose dimension is estimated at 3% of world trade. The sport-related demands of private households now amounts to 4.3% per year, alone the Bundesliga achieved in the 2015/2016 season with 3.24 billion euros the 12th consecutive record sales. The consequence of this is the resulting legal issues in sport and the autonomy of sports law with its special legal basis of the association’s rules and laws; Association tribunals and arbitral tribunals prepare in parallel with state courts in the fields of private law and public law. The presentation of the two authors provides a comprehensive overview of the areas of activity of a lawyer. In the last 20 years, an independent area of law has developed. Since 1982 there are several working groups for this area of expertise, since 1994 there are own series of publications and journals as well as the first practical handbooks.
The demand for the field of sports law is extremely high. Potential clients are private sports institutions such as clubs as well as other sports participants such as athletes, coaches and officials, as well as economic advisers and business enterprises.
The level of difficulty and the requirement of a specialist attorney require a specialization in legal practice, which is highly interdisciplinary and intradisciplinary and therefore requires special knowledge of the real problems. These requirements result in a curriculum, which should underlie the training of the specialist lawyer for sports law – in the hope that the opportunities for this specialist attorney are recognized.
“External view: professional football of the players?”
In the article “External view: professional football of the players?” Explains the sports journalist
B. Hofmann / Frankfurt a. Main the framework of the national and international football business with its current effects comes to the conclusion that for example, there has been a shift in power between clubs and the employed players, it is now up to the leaders to balance this.
The starting point is the turnover of 3.94 billion euros of football clubs worldwide in the last transfer period for player changes. Only the “Big 5”, the big European leagues from England, Germany, Spain, Italy and France spent over 3 billion euros in the 2012 transfer summer.
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Hoffmann further describes that partially exaggerated self-confidence of the player and their appearance. However, these issues have been around since 1995 at the time of the Bosman ruling of the EuGH.
Recent transfers from Neymar and Dembele are currently involving the UEFA Commission and some of the courts. Assuming that the Bosmann decision was a factor in changing the power structure in favor of the players, but despite gloomy expectations of the industry, the business with this model has been arranged quite well. Examples of the changing of various positions of players and clubs have been in recent years enough. Now, there are also experiences from the US and American football league, baseball, basketball and ice hockey . The question is asked: Is it possible to install such a domestic market as in the US also in Europe?
From this topicality, both players, as well as club representation for a variety of motives have a common goal: to change the existing transfer system. The advocacy group of professionals, FiFpro has since 2015 filed a complaint with the European Commission. It will be interesting to see if the earlier end of the transfer window and a salary cap will be the result.
“Sports law failed? Did Chile make a personal objection to the World Cup? “
In a short article “Sports law failed? Did Chile make a personal objection to the World Cup? “ S. Landgraf / Cologne outlined the causes of the departure of the national team of Chile from qualifying for the 2018 World Cup. The reason for that was the verdict of the CAS, which was passed at the instigation of the Chilean Football Association and to the consternation of many, so to speak, even after a goalless draw against Bolivia that resulted in qualification.
EuG
Article 7 (1) (B) and (2) of Regulation (EC) No 207/2009 (now: Article 7 (1) (b) and (2) of Regulation (EU) 2017/1001)
“Noticeably different” no registered EU trademark for 1 FC Cologne
A registration of the word mark “NOTICEABLY DIFFERENT”, as an EU word mark stands in the way of the lack of distinctive character as an absolute ground for refusal.
BGH
§ 21 BGB
Economic activity of a registered association
The recognition of an association as a non-profit within the meaning of §§ 51 ff. AO has indicative effect that it is not directed to an economic business and can be entered in the register of associations.
OLG Bamberg
Arts. 16, 20, 21 BayVersG; § 358 StPO
Prohibition on using facial disguises (e.g. masks) in a football stadium – extent of the binding effect of revision-juridical cancellation view
1. When a football match is played within a stadium that is structurally bounded on all sides, it is also an “open air” public event if the grandstand area is provided with a canopy. The decisive factor is that the event takes place in a public place accessible to everyone, which is not called into question by the fact that admission is granted only against admission or the organizer is entitled to exclude disturbers (confirmation from OLG Bamberg 3 Ss OWi 1176 / 15). (Guiding principle of the author)
2. The procedural binding of the (new) trial tribunal to the main revocation of the pre-occupied appeals or appeals court pursuant to section 358 (1) STPO also extends to the assessment of the constitutionality of applied laws. This applies exactly when the question of constitutional interpretation of the sanction standard in the area of protection of the judicial fundamental right under Article 103.2 of the constitution has been finally assessed by appeal court and has been based on the grounds for its revocation. (official guiding principle)
OLG Cologne
Paragraph 59, 61, 66 IRG
Confiscation and transfer of a doping sample to Italy in the course of legal assistance
In assessing the legality of the seizure and (complete) transfer of doping samples seized in Germany to another country (here: Italy) by way of legal assistance. The legitimate interests of the sports federations WADA and the accredited testing laboratory in a functioning doping control system are taken into consideration (eg the possibility of proof in appellate proceedings, implementation of follow-up inspections). As a result, the doping test may not be completely confiscated, but only partially confiscated and transferred abroad. (Guiding principle of the editors)
OLG Celle
§§ 21, 26, 27, 32 BGB
Refusal of a temporary injunction. Against 50 + 1 rule exception request
The board of the Hanoverian sports club from 1896 e. V. is also entitled, contrary to a simple decision of the General Assembly, to submit to the DFL a request for an exemption from the so-called “50 + 1 rule”. (Guiding principle of the editors)
LG Munich I
§§ 307 ff., 808 BGB; 3, 4 No. 4 UWG
Lawful prohibition of transfer of tickets and denial of access to the stadium due to general ticket business conditions (ATGB)
1. Football tickets are to be regarded as qualified legitimization papers within the meaning of § 808 BGB, whose transferability can be restricted with material effect, if they are provided with name imprint or – even without name imprint with other individualizing characteristics.
2. The AGB-legal limitation of the passing on and selling possibilities of tickets, connected with the possible blocking of tickets, would become neither intransparent and nor surprising but still contradictory in itself and does not disadvantage the customer inappropriately.
3. Due to the legal restrictions of the transfer and sale possibilities there is no breach of law within the meaning of § 3 a UWG, nor is this an unfair targeted obstruction of competitors within the meaning of § § 3, 4 No. 4 UWG to see. (Principles of the editor)
VG Bremen
§ 4 para 4 BremGebBeitrG i.V.m. No. 120.60 to § 1 InKostV
No collection of fees for police operations at football matches without a sufficiently defined charge.
1. The levying of fees for police operations is in any case unlawful if there is no sufficiently specific statutory fee.
2. Organizers of a game of the Bundesliga are the host club or the host company and the German Football League GmbH together. (Principles of the editor)
§ 5 KStG; § 52 AO
Charitable status of a Masonic Lodge
A Masonic Lodge that excludes women from membership is not charitable.
BFH
Arts. 63, 90 VAT Directive
Sales tax liability of players agents
The following questions are submitted to the Court of Justice of the European Union for a preliminary ruling:
1. Is Article 63 of the VAT Directive, having regard to the taxable person’s task as tax collector, to be interpreted as restricting the taxable amount of the taxable person to the amount to be collected?
a) is due
b) is at least unconditionally owed?
2. If the first question is answered in the negative: is the taxpayer obliged to pre-finance the tax owed for the benefit for a period of two years, if he can (partially) receive compensation for his benefit only two years after the chargeable event?
3. If the second question is answered in the affirmative: are the Member States entitled, under the provisions of Article 90 (2) of the VAT Directive, to base their taxable period on a correction under Article 90 (1) of the VAT Directive if the taxpayer fails to pay the amount to be recovered Maturity can only be received two years after the occurrence of the taxable event?
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