SpuRt 1/2019 2019-02-02T09:23:21+00:00

SpuRt 1/2019

In the editorial “The promotion of the Professional Lawyers League” T. Freudenberg, Frankfurt a. M., the decision of the bar association of the establishment of the specialist lawyer for sports law, in special recognition of its practical importance. Although sports law is not a closed legal area, in addition to state law, legal questions arise from the sports and game rules of the autonomous associations, plus the special sports jurisdiction. Only those who master these rules can recognize the additional sports law aspects of labor law, media law and criminal law and solve conflicts properly.

Another argument for the specialist lawyer sports law is the enormous social and economic importance of sport, more and more future specialist lawyers must meet the needs of top athletes and professional sports, but also the demand in recreational sports.

Whether the interest in the lawyers seeking legal advice, will show in the future, it is positive, in any case, that in the sports law of the recognized reliable specialized magazine SpuRt join together.

In the article “The effectiveness of so-called” non-use clauses “for the competition of the Bundesliga” B. Beck / P. Schulz, Frankfurt a. M., the effectiveness of these clauses – in the transfer business of European football, it is a practice for donor clubs to agree on such conditions with host clubs. The authors deal with association law, civil law and the law of fairness.

While there are no specific association regulations, Art. 18bis para. 1 of the FIFA Regulations on the Status and Transfer of Football Games stipulates that no club should interfere with the other club’s contract, which affects employment and independence. The almost identical provision is contained in the DFL statutes, § 5 a no. 1 LOS. The provisions of §§ 138, 134 BGB cannot be in conflict with such clauses, nor the rules of fairness, such. B. § 2 Abs. 1 No. 1 UWG. As a result, an agreement on a non-use clause is not ineffective, with regard to Art. 18bis of the FIFA transfer regulations and § 5 a no. 1 LOS. The competition level required under both regulations is not given with regard to the 34 agreed games of a player in the Bundesliga – there is no overall influence on another club.

Under the heading “Rise at any price?” P.H. Leitner, Vienna, with the State aid rules of Art. 107 ff TFEU in connection with the sporting ascent of TSV Hartberg in the Austrian Bundesliga. The Bundesliga license could only be obtained when in the last instance of the “permanent neutral arbitration “in the state of Styria and the municipality Hartberg began.

The necessary infrastructure had to be installed at the cost of about 5.4 million € in the small town of 6,000 inhabitants. The author examines the legality of such investments by the State under the State aid rules of Article 107 et seq. Of the TFEU and outlines the Commission’s practice to date and deals with the individual requirements of Article 107 TFEU, such as: Business as beneficiary, beneficiary effect, selectivity of the measure, distortion of competition, cross-border trade distortion and noticeability. He concludes that the state aid condition is met. The general block exemption regulation in Art. 55 is also relevant, so the TSV Hartberg must also fulfil these requirements for the stadium project.

The author assumes that all conditions are met, because the stadium of the TSV Hartberg is already approved for the Bundesliga; No objections came from the EU Commission. This case is therefore quite similar to the decision of the European Court of Appeal in Leipzig-Halle Airport of 24.03.2011, according to which construction and operation of infrastructures constitute an economic activity.

The article “Admissibility of employment contract binding of coaches with financing of license acquisition” by M. Stahm, Dortmund, is concerned with the legal effectiveness of contractual relationships of potential coaches, who can finance the training costs of interested clubs, against along term contractual commitment to the club.

The legal assessment is as follows:

Depending on the wording and use of an agreement, this may be subject to the content control according to §§ 307 ff BGB; In this case, there may initially be an impairment of freedom of occupation under Article 12 of the Basic Law, but the case-law of the Federal Labor Court basically justifies such agreements. It also depends on whether an employee termination is agreed or an employer side. It could be in an individual case an inappropriate discrimination of the coach. Further, the proportionate repayment obligation may be significant as long as the trainer is willing to extend or continue the employment relationship. He is unlawful if the club refuses. It could continue to be an unreasonable handicap in the interest of training. Where appropriate, the case law of the Federal Labor Court on the principle of proportionality is important. The author then makes a proposal for the practice of a secure arrangement of such an agreement. This takes into account both the commitment of the association and the interests of the trainer.

In the case of an individual contractual agreement, at most a breach of the principle of good faith according to § 242 BGB can exist with regard to the effectiveness, which the author explains below. Here, too, great caution is required when formulating the agreement.

Significant is the further contribution of M. Kubiciel, Augsburg and A. Dalinger, Frankfurt a. M., on the topic “Unknown risks of criminal liability in professional sports through the new version of § 299 StGB”. Since 26 November 2015, the new regulation has broadened the scope of bribery, and bribery in the business dealings to include an infringement, which can lead to the criminal liability of professional and contract-adverse behavior by professional athletes and other employees of sports clubs.

In recent years, sport has increasingly become the focus of criminal law, in particular through the new regulations, § 4 Antidoping law, sports betting fraud under § 265 c StGB and the manipulation of professional sports competitions according to § 265 d StGB. These criminal offenses and the ensuing liability risks for clubs and associations have already been the subject of intensive discussions (Kubiciel, SpuRt 2017, 188 ff). Another discussion follows on the newly introduced variant of the offenses under § 299 StGB. The authors explain several sports-specific case possibilities in the scope of § 299 StGB, in particular the liability risks in the field of sports sponsorship in the various forms. Also, the criminal liability of so-called “kick-back” payments is discussed. In the economy, there is a “kick-back” payment when the recipient of a cash benefit in a bilateral contractual relationship, part of this performance to a contracting third party is forwarded, but this has a proximity to another party. Such payments are subject to a criminal liability check.

These discussed criminal liability risks of the newly created § 299 StGB bring in consequence also liability risks for legal persons with itself, likewise hereby for legal persons the risk of a fine gem. Section 30 (2) OWiG in an amount of up to € 10 million.

“The Specialist Lawyer for Sports Law – Training and Requirements” is the topic of the article by Th. Summerer, Munich. On 26.11.2018, the constitutional assembly of the Federal Bar Association decided to introduce the Specialist Lawyer for Sports Law. This decision is also due to the influence and influence of the Arbeitsgemeinschaft Sportrecht in the German Bar Association. The decision strengthens the self-confidence of sports law and is a strong impetus for the further professionalization of legal counsel.

The author sets out the peculiarities of sports law, in particular some details on association regulations, the sports and arbitration jurisdiction necessary for sports law, which influence on state law. Now, the training and qualifications must follow the specialist lawyer for sports law. The author sets out the general requirements for the specialist lawyer on the basis of the provisions of § 2 ff FAO, including the theoretical knowledge and practical experience to be proven, in particular the duration of the course of 120 hours. Also explained in detail is the new regulation of § 14 q FAO, which sets out the specific knowledge to be proven in sports law on the basis of eleven paragraphs. The training by several commercial institutions, especially specialized lawyer courses, are scheduled to start in the middle of 2019.

Jurisdiction

Swiss Federal Court

Art. 182 para. 2, Art. 190 para. 2 IPRG; Art. 29 (2) BV

Obligation of resignations and consequences of parallel board elections within an association

1. Cancellation requests declared by Association Presidents cannot be withdrawn without further ado, after the approval of the Board.

2. Meetings of individual delegates taking place parallel to general meetings do not have any legal effects for the association.

3. The grounds of appeal of Art. 190 para. 2 lit. C IPRG (ultra or extra petita) is not already satisfied if the arbitral tribunal in its arbitral award deviates from the wording of the application or if it interprets a legal request differently, taking into account the relevant legal instrument.

BGH

Section 95 (1) no. 2 a and b AMG aF; § 4 para. 1 no. 1 and no. 3 Antidoping law; Art. 100 GG

Constitutional conformity of the criminal provisions of the AMG and antidoping law

On the constitutional conformity of Section 95 (1) (2a) and (b) AMG and Article 4 (1) (1) and (3) Antidoping law against the background of references to the active substances of the Doping Convention or the Doping Agents Ordinance.

OLG Cologne

§§ 823 para. 1, 1004 para. 1 BGB; Art. 2 para. 1 Art. 1 para. 1 GG; §§ 22, 23 KUG

Press coverage of national football player (“Captain Knutsch”)

On the limits of the press coverage of the private life of a national football player (editorial guide).

OLG Hamm

§§ 6 (2) sentence 2, 39 (3) GmbHG; §§ 263, 264, 265 c 265 d, 265 e, 266 StGB

Insurance obligations of the managing director when registering a change to the commercial register

When registering a change of managing director according to § 39 GmbHG to the commercial register, the insurance of the managing director according to § 6 Abs. 2 S. 2 Nr. 3 e) GmbHG does not have to come into force of the 51st Criminal Law Amendment offense of §§ 265 c to 265 d of the Criminal Code extend (deviation from OLG Oldenburg, Acc. V. 8.1.2018, Ref. 12 W 126/17, NZG 2018, 264).

LG Stuttgart

§§ 280 para. 1, 823 para. 1 and 2, 831 BGB

Liability in case of accident on the Boulder wall in a climbing gym

1. The duty of a climbing person to secure a climbing operation extends at least in a heavily frequented climbing gym also to the avoidance of infringements of property rights of third parties, on whose legal interests the abstract danger of the climbing process can affect. This applies in particular to people staying on the ground in front of the climbing wall, with whom the climber can collide in the event of a fall.

2. A climbing gym operator violates his obligation to provide public safety when he creates a state by the spatial distribution of climbing routes, in which the horizontal lintel spaces of two opposite and shared use of climbing walls overlap and the bottom surface between the climbing walls is also used as a passage area.

3. The fall of a climber, considered in isolation, does not constitute any delictual liability of the climber. The liability for infringements of property rights with third parties is only considered if he has violated due diligence in the selection of the person securing him or securing rules for climbing that have had a causal effect on the violation of rights. (Guiding principles of the sender).

LG Detmold

§ 25 BGB

Ineffectiveness of exclusion from a golf club

Resolutions on club penalties are subject to full judicial review with regard to whether the measure imposed has support in the law or the statutes, the statutory procedure has been observed, otherwise there have been no violations of the law or statutes and the facts underlying the exclusion decision have been correctly established in objective and rule-of-law principles (Guiding principle of the editors).

BFH

§§ 19 I 1 No. 1, 39 b VI, 41 c III 1, 42 d EStG; § 2 II No. 1 LStDV; Art. 15 I 2 DBA-Switzerland 1971/2010

German tax law with payment of a so-called signing bonus

1. Germany has the right of taxation with regard to the payment of a so-called signing bonus – a one-time payment payable to the employee resident abroad for an activity to be performed in Germany in the future – according to Art. 15 I 2 DBA-Switzerland 1971 / 2010 too.

2. The application for an exemption certificate has, in the main proceedings, been settled when the deduction of income tax and the employment tax declaration can no longer be changed and also the declaration of an employment tax has ceased

and that it is no longer possible to issue an employment tax reimbursement or liability notice.

SchiedsG of the equestrian sports association.

Art. 103 (3) Basic Law

Application of the double punishment ban in equestrian sports

On the applicability of the double punishment prohibition in association law and its application in harness racing in the imposition of a fine order against drivers on the one hand and directed against the owner of the horse withdrawal from the race placement on the other hand (editorial guide).