SpuRt 1/2018

The editorial “The ‘third gender’ in the sport” by B. Pfister / Bayreuth deals with the decision of the Federal Constitutional Court on the protection of gender identity (printed in the same issue) and the consequences for sport. What does this mean for sports organized by the association and, in particular, the separation between women’s and men’s sports? It is basically justified on account of the different performance abilities. Do you have to set up another branch in the competitions called “third gender”? Certainly not. The associations must meet rules here and require more detailed investigations of the persons concerned. Neither the existing categories may be disadvantaged nor the athletes of the so-called third sex, this requires Art. 3 para. 3 of the Grundgesetz.  The associations have a lot of work ahead of them to address this issue.

In the article “eSports – Legal Issues of a Complex Ecosystem Overview (Part 1)” D. Frey / Cologne continues the discussion about eSports, which was already started in the article by Holzhäuser / Bagger-Schenk in SpuRt 2016/94. The question already raised, whether it is real sports and in what form this sport is incorporated into the classic sports federation, is not yet clear. Frey points to the continued high growth in sales, currently 50 million and by 2020, an estimated turnover of 130 million, as significant revenue from sponsorship, ticketing, merchandising, premium content. It is only a matter of time, then, that this sport would be included in the sports federation system for Germany.
The current view of the DOSB, the eSports industry is as an exclusively profit oriented business sector and could not be recognized as a sport because of this (because it is not charitable) they are not approved by the recent liberal view of the Federal Finance Court. Incidentally, your own typical sports activity is available at the eSports, even if technical equipment and no physical activities are used.
The legal consequences of a lack of recognition are diverse, considering that in many countries such as China, South Korea, Iran, Russia, Italy and Finland national eSports associations already exist and as a result of the international competition operation Germany  faces difficulties to enter competitions.. Likewise, providers of physical premises must assume that they do not receive a license to play according to § 33 i Gewerbeordnung. Furthermore, legal issues arise with regard to game manufacturers and competition organizers. Here Frey explains the problems in detail, which are based on copyright and also the difficulties in the organization of the sport fair and equitable game operation. Also occurring in eSports in each sport are the danger of illegal manipulation of the program flow by players, especially inadmissible technical aids. The problem is discussed in another part by the author in the following issue of SpuRt.

In the article “Fundamental Rights Violation risk of the so called Gefaerderansprache in the workplace?” By F. Bleckmann / Cologne, the legal consequences of the so-called “threats” are examined: For years, the police have been carrying out measures as further steps to refrain individuals from intimidation. The Association of Lawyers for Fans strongly criticize this and point to the violation of fundamental rights, which has no basis of authorization.
Bleckmann explains the individual cases and deals with the question of where the police see the basis of their authorization, namely in the general clause and in hazard prevention. Such an approach to a threat is basically permissible, provided that it does not exceed a certain intensity level. In the exact examination of the scope of a general personal right, the author comes to the conclusion that threatening speeches in the workplace mean serious interference and that there is no general suitable legal basis for this. The author therefore considers action by the legislator to be necessary.

The article “The Central Marketing of the Bundesliga and Area-Exclusive Licenses in Utilization Agreements with Rights Applicants” by H.-J. Hellmann and G. Cetintas / Mannheim / Brussels are investigating the decision of the Bundeskartellamt in 2016 on the central marketing of the Bundesliga, in which the exemption from the ban on cartels was tightened. A complaint against this by the media company Sky explained the OLG Dusseldorf is inadmissible.
The rapid digital development called for this decision of the Cartel Office.
The authors report on the details of recent developments and the antitrust assessment of the elements of the marketing model, in particular the live rights packages A-E and the over-the-top “OTT” package. Here, the hitherto practiced board of the Bundesliga is essentially maintained. Furthermore, the relevant markets and the restriction of the competition complex are presented, in particular the sole prohibition on the purchase, which precisely regulates that a single bidder may not (exclusively) acquire all live rights.

Following a dispute with the decision of the OLG Düsseldorf and the problem of the exemption of the restrictions of competition in this article, the antitrust assessment of the individual exploitation contracts follows. The authors conclude that it is necessary to wait and see whether the introduction of a ban on exclusive use by the Bundeskartellamt opens up competition. Sufferers of the sole prohibition of acquisition are the spectators, who would now have to buy a Euro Sports subscription in addition to the already available Sky contract, if they want to have all live games available.

Once again, the activities of the player agent are taken into focus, in the article “The player agent as a lawyer – a balancing act between the Legal Services Act and the Federal Lawyers Act” L. Küpper / Leverkusen and M. Stahm / Dortmund, deal with the activities of the players’ agents and the duties of a lawyer.

The activity of a player agent is varied, as well as extremely versatile, it is defined in the FIFA regulations and in the DFB regulations as activity for the negotiation of a labor contract on the one hand and a transfer contract between the clubs on the other.
The activity in detail, however, leaves open what is worked out in exact detail by the players’ agents. It is also not clear to what extent a legal examination of the individual case is required by the player agent, who is not a lawyer. It is clear that a legal service is part of the activity of each players’ agent.
On the other hand, it does not seem to be clear whether the professional image of the lawyer is compatible with a players’ agent who also works as a lawyer. The authors are therefore examining the details of the admission of the legal profession and its grounds for refusal and the most important judicial decisions. From this it may well turn out that the lawyer could have conflicts of interest with his job description and thus jeopardize his professional prospects as a lawyer.
However, according to the authors, such an outcome is rather unfortunate, considering that both FIFA and DFB have always privileged lawyers in the past, because it is desirable that a lawyer disseminate his professional knowledge and experience brings in the market of the players’ agent.
The authors therefore suggest that consideration should be given to whether a separation of the players’ agency on the one hand and the legal service on the other hand in the form of the legal advice of the player would be a solution. Players’ agents could bring with them respective proof of the possibility of a conclusion of a contract, as a result there could then be -a work of the employment contract, which would be a total of equality of arms guaranteed in practice.

R. Cherkeh / Hannover deals with a sub-aspect in the discussion about the fundamental contract  in its article “Fundamental contract  DFB and DFL – obligation to second and use of personal rights against remuneration?” (See Kupka, SpuRt 2017/101; Scheuch, SpuRt 2017/222), namely the question whether it is justified that after the determination of the § 5 I – III fundamental contract of the DFB to the DFL registered association for payment amounts annually to millions of Euros. In connection with § 5, § 4 of the fundamental contract contains a provision on the exact amount of compensation for the secondment. The author examines the reciprocal obligations and the related question of the duties of the management board of the DFB for proper asset management. Is the compensation of EUR 20 million defined in this agreement appropriate? The author examines the obligations to stand and the use of personal rights of national players. Finally, he comes to the conclusion that § 5 I 1 of the fundamental contract is factually and legally superfluous. It must be seen critically that the DFB promises the DFL e.V. an annual fee according to § 5 III Basic Treaty for the recognition and guarantee of the dismissal of the players for the national teams and their use of the personality rights. This promise is superfluous, it belongs in detail in the complex licensing agreement of players with the DFL e.V., which is why these obligations already result from the license agreement.

At best, the DFB itself could regulate the exploitation of personal rights with the players, without the need for a regulation with the DFL e.V.

Under SpuRt aktuell comments J. Kornbeck / Brussels in the article “ISU case decided: Loyalty clauses as antitrust infringement” the most recent decision of the European Commission of 08.12.2017 to the antitrust appeal of the Dutch speed skaters M. Tuitert and N. Kerstholt:
The International Ice Skating Union (ISU) has sanctioned the two athletes for participating in ISU-foreign competitions, i.e. events outside the ISU event calendar. Rule 102 of the Association Regulations prohibit participation outside the ISU event calendar. The athletes rightly saw a violation of antitrust law here, the ISU abusing their dominant position, which constitutes a violation of Art. 101, 102 TFEU. The athletes are hampered in their free competition, whereas the ISU cannot justify this regulation by wanting to secure their own income.
In its decision, the EU Commission considers the sanctions of the ISU to be disproportionate within the meaning of Art. 101, 102 TFEU and calls on the ISU to discontinue its unlawful conduct within 90 days and submit a revised version of Rule 102. Kornbeck comments on this decision, although it should be noted that similar cases have already occurred at the national level. These were already addressed by A. Jakob in 2016/240 and assessed in much the same way as the decision of the European Commission. It was to be expected that the top associations in sport, such as the IOC, behave similarly and support the ISU’s view. Likewise, however, that association regulations can continue to be suspected of being a cartel, which has been known since the Bosmann case. The judgment MOTOE from the year 2008 shows also the conflicts of interest. Finally, this complex has not yet been clarified at EU level. The ISU case is the Commission’s first major sports cartel case since 2001 and is particularly noteworthy because both complainants were athletes, unlike in cases previously decided by national antitrust authorities, as the author explains in detail.


Art. 3 ECHR

Inadequate investigation of clashes between police and football fans

If not all relevant investigative approaches are exhausted in order to alleviate identification difficulties by deploying helmeted policemen without identifying characteristics, who are accused of indiscriminate use of truncheons and pepper spray, to assault a football player at the expense of football fans (e.g . by interviewing all employed officers and evaluating video material), this may be a violation of the procedural and material guarantees of Art. 3 ECHR (prohibition of torture or inhuman or degrading punishment / treatment). (Guiding principle of the editors)

European Court of Justice
Art. 132 Directive 2006/112 / EC

Tournament Bridge is not a sport i.a.s. VAT Directive

Article 132 (1) (m) of Directive 2006/112 / EC (VAT Directive) must be interpreted as meaning that an activity such as Duplicate-Bridge, characterized by an insignificant physical component, is not covered by the term ‘sport’ this provision falls. (Guiding principle of the editors)

Swiss Fed.Cour
Art. 6 para. 1 ECHR; Art. 6.5 WADC; Art. 3.2 IMF ADP; Art. 70 (1) BV (Switzerland); Art. 190 (2) IPRG (Switzerland)
“Sample C- “: refusal of an alternative analysis method is not a violation of legal hearing

1. Where disciplinary action by private sports federations – in particular cases of anti-doping – is to be assessed, the principles of evidentiary character in the field of private law cannot be determined in accordance with the guarantees flowing from the ECHR.
2. By rejecting an alternative method of analysis, the Arbitral Tribunal considered that evidence to be ineffective and, in so doing, adopted an anticipated assessment of evidence, which did not constitute an infringement of public policy.
3. Neither the principle of the right to be heard nor the principle of equal treatment of the parties in the arbitral proceedings gives rise to a claim to carry out alternative analyzes in addition to the testing procedures provided for in the applicable anti-doping rules. (Principles of the editor)

Austrian highest Court
§§ 1295 ff. ABGB

Obligation to clarify when driving with “banana boat”

The scope of the boat company’s duty to inform when traveling on fun-powered recreational gear (“banana boat”).

Art. 2.1, 10.2, 10.5.2 and 10.11.2 World Anti-Doping Code (WADC); Section 12 and 13 NIF Statutes

Medical assurance does not relieve athletes of the obligation to test for doping substances

1. An appeal to the CAS may be filed against a national association that issued the contested decision and / or the tribunal that acted on its behalf.
2. Even in exceptional circumstances and with minimal fault, athletes are not relieved of their duty to continue to exercise the greatest possible care. Degree of duty of care is very high for top athletes because of their experience, their anticipated knowledge of anti-doping regulations and the public impact they have on their sport.

3. Errors of a doctor do not relieve the athlete of his personal responsibility. Athletes must check the assurance of a doctor, even if it is a sports medical expert. The prescription of medications by a doctor does not release the athlete from the obligation to check whether the medications contain prohibited substances. (Principles of the editor)

Federal Constitutional Court
Art. 1 para. 1, 2 para. 1 GG

Fundamental protection of gender identity

1. The general right to privacy (Article 2 (1) in conjunction with Article 1 (1) of the Basic Law) protects the sexual identity. It also protects the sexual identity of those who can not permanently be assigned to either the male or the female gender.
2. Article 3 (3) sentence 1 of the Basic Law also protects people who can not permanently be assigned to either the male or the female sex against discrimination based on their gender.
3. Persons who can not permanently be assigned either to the male or to the female gender are violated in both fundamental rights if the civil status law forces the registration of the gender, but does not allow any other positive gender entry as female or male. (Official Guidelines)

§§ 280 Abs. 1, 249 BGB

Amount of recourse when passing

The extent of the recourse in the event of the club passing on a club penalty to the annoying fan in the event of the formation of a total fine by the sports court for several punishable cases attributable to the club.

OLG Frankfurt
§§ 174, 823, 862, 1004 BGB, § 152 stop

Admissibility of the nationwide stadium ban

If, according to the principles developed by the BGH in its decision of 30.10.2009 (SpuRt 2010, 28), there is a risk that football fans will interfere with games, nationwide stadium bans imposed on them are generally lawful. (Guiding principle of the editors)

§ 5 para. 1 no. 9 KStG, sec. 52 para. 2 sentence 1 no. 21, 23 AO

Tournament bridge no sport

1. Tournament bridge is not a sport i.a.s. of § 52 (2) sentence 1 no. 21 AO.
2. Tournament bridge is also not covered by the so-called privileged leisure activities mentioned in § 52 (2) sentence 1 no. 23 AO

Section 162 (1) AO, Section 7 (1) No. 1 ErbStG

Waiver of compensation claim as generous donation

1. If a third party leaves employees and paid for by a football club to the full extent as a player, coach or supervisor and waives the assertion of a compensation claim for the transfer, the waiver is a generous donation of the third to the club.
2. In the case of a donation from a community of joint owners, the total trade in gift tax is considered to have been depleted.