SpuRt 1/2020 2020-01-27T08:17:15+00:00

The editorial “Russia after WADA’s four-year ban – Hardly more than a pennant ban” by T. Summerer, Munich, deals with the question of the effectiveness of the WADA sanction of December 9, 2019 against the Russian athletes who are allowed to participate in the Olympic Summer Games as so-called “neutral athletes” after an integrity check.  The athletes’ representatives had finally demanded a complete exclusion of Russia because of the state doping! This special treatment is unacceptable.

The International Paralympic Committee, which had completely excluded all Russian disabled athletes, was more uncompromising – the CAS approved this decision (SpuRt 2016, 260).

It will now be interesting to see how FIFA will act in case the Russian team should qualify for the World Cup in Qatar – after all, the FIFA President has now also been accepted into the illustrious circle of IOC members.

H. Grothe, Berlin, deals with this topic in his article “The Jatta Case: On the Subsequent Re-evaluation of Bundesliga Match Results” (see also SpuRt 2019, 263) and examines whether, according to the opinion of the DFB and DFL, Jatta’s eligibility to play is valid in the absence of evidence to the contrary for a deception of identity, and whether corresponding consequences would have to be awaited in the event of a subsequent different determination.

The author first examines the legal framework of an objection to the game rating, in particular the fact that he must have a non-game-entitled playing and that this playing has caused culpably. Furthermore, the author deals with the temporal effects of a revocation of the playing licence, taking into account parallels for administrative acts that are subject to revocation and the anti-doping law. In comparison, the rules of play of other team sports are also examined and the probably essential characteristic of the fault of the reinstating team is examined.

All in all, the author finally comes to the conclusion that a subsequent withdrawal of an entitlement to play could not have any retroactive effect, and likewise the bodies could rely on the official decisions and documents. For this reason, no decisions by the sports courts were necessary, and with such a situation and extremely slim chances of success, any appeals and possible decisions by the sports courts could have been avoided.

The “Revision of the World Anti-Doping Code (WADC2021) – An Overview” is the topic of L. Mortsiefer, Bonn, who will outline the meaning and objectives of WADC2021, which comes into force on 01.01.2021.

The WADC has been revised for the fourth time since 2003. It has been a great challenge to adapt it to the innovations resulting from practical experience. Part 1 deals with formalities, e.g. the emphasis on “Public Health”, the basic principles of the WADC and athletes’ rights, to which special importance is to be attached in the future. Many details were qualified in Art. 2 WADC and Art. 3 WADC (distribution of the burden of proof), as well as the fundamental changes to “Results Management” laid down in Art. 4.2.2 WADC. Numerous changes are described by the author below.

Part 2 of Art. 18 contains a new version of the area of prevention; for the first time, an international standard (ISE) is implemented, for which an extensive reduction of Art. 18 was necessary. Many changes have also been made in Part 3 “Competencies and Responsibilities”.

As a result, the new version of WADC2021 is the result of a targeted analysis based on practical experience since 2015. In many problem areas, trend-setting approaches to solutions are envisaged, and the principles of proportionality and human rights have been cemented.

It should be pointed out, that in Germany, NADA will now specifically address the implementation of WADC2021 in 2020. The goal is to bind all sports federations to NADC2021 by January 1, 2020. The creation of a model ADC is intended to support the implementation of the WADC2021 for the sports federations.

In the article “New Deal” for European consumers as a basis for a ticket protection law” F. Holzhäuser, Munich and S. Brost, Munich/Frankfurt, deal with the problem of the increasing number of completely overpriced event tickets. The consumers are not protected against this. German law does not offer sufficient legal protection for this. From the discussions to date, the authors have identified guidelines for effective ticket protection at European level.

In the introduction, the problem of the increasing number of brokerage platforms and online marketplaces is pointed out, with the consequence of excessive prices. The most frequently affected are especially the attractive cultural and sports events, for which there is a high demand. German policymakers have been aware of the problem of the grey-black market for years. At the beginning of January 2020, the new “Directive on the better implementation and modernisation of EU consumer protection legislation” of the EU came into force, which also contains provisions for regulating the secondary ticket market. However, in the authors’ opinion, this regulation is not sufficient. They therefore present a further need for regulation in Germany on the basis of applicable law in various court decisions, including that of the Federal Court of Justice (NJW 2009, 1508), in which key statements have been made that consumer protection is required. Up to now, organisers have had to rely essentially on contractual claims of their self-created ATGB terms and conditions in order to enforce their interests against the unauthorised secondary trading of admission tickets, whereas a statutory regulation could be of decisive help here. The German legislator is particularly motivated by the directive which has been in force since January 2020. Therefore, the authors present possible solutions in the context of an implementation of the new EU consumer protection regulations and refer to § 3 para. 3 UWG, § 312 d BGB in connection with § 312 d BGB in the context of the new EU consumer protection regulations. Art. 246 a) § 1 EGBGB and § 101 UrhG.

The article concludes by pointing out that the Federal Ministry of Justice and Consumer Protection, which is responsible for the implementation of the directive, would like to tackle such an implementation in order to strengthen consumer and event protection in the long term.

In the article  “Professional football – No business like any other?” A. Galli, Regensburg, comes back to the media reports on dizzying transfer fees in the football industry, further to the fact that the Spielvereinigung Unterhaching/Munich is going public as the second football club and wants to collect up to 12 million EUR, and finally to the financial investor Windhorst, who bought about 40% of Hertha BSC for 25 million EUR and points out that he wants to earn money. This “unbridled capitalism” in football should not be allowed, in the opinion of the author of the study, to be allowed under the general conditions from an economic perspective. Key points are: What characterises the business model of professional football? Furthermore, is professional football a business like any other?

In spectator sport, the service is characterized by the tension and uncertainty of the result, as well as the special requirements of the individual competitions. According to the author, this is consumed by the spectator like any other product and service and at the same time is presented in a supportive manner by the media.

A further aspect is the trading of rights in football; in hardly any other industry are assets strategically exploited as a performance, like in professional football. At the same time, one can speak of an escalation of expenditure in professional soccer of an endless need for financing. The sporting competition is therefore at the same time an economic competition! According to the author’s opinion, in the different capital resources of the individual football clubs, the performance capacity of the individual sports club is a real survivor. The author provides many examples of this from the area of financing of the individual clubs, their financial difficulties when they leave the league. The author names sustainable success factors for the clubs, among which the simple truth is at the top: No more money can be spent than is earned. Improvement of the economic situation can always be achieved by one’s own efforts, especially by mobilizing brands in the areas of licensing, merchandising, sponsoring and advertising.

The decisive factor in financing and capital provision, is of course, the investors’ right to a say, which is of course limited by the 50+1 rule that applies in Germany. All in all, every sports club will have to be aware of its position in the league in the fight for sporting success and the distribution of financial resources. Likewise, the value of the individual club also results from the encounter of other competitors, possibly with certain competitors within the league – they are always sporting and economic competitors, but also partners within the marketing of the league’s match operations.

Jurisdiction

BGer

Body injuries caused by tackling in football.

Art. 12, 125 StGB-Switzerland

  1. whether a player’s tackling committed in the course of a football match is to be qualified as a serious infringement of the Laws of the Game and how the Laws of the Game are to be interpreted in principle is not a question of fact but of law (E. 1)
  2. in order to determine whether the violation of the Laws of the Game is so serious that the tacit consent of the victim to the risk of bodily injury associated with football cannot be excluded, the limits applicable to criminal law cannot be taken over by the system of sanctions and warnings provided for under the Laws of the Game.
  3. in the present case, a tackling committed with one leg stretched out at a height of 10 to 15 cm above the ground, which the referee considered “dangerous”, must be qualified as a “serious violation” of the Laws of the Game, with which the perpetrator violated his duty of care In this respect, the offender could not invoke the principle of “volenti non fit iniuria” (E. 2). (Official Guidelines)

ÖOGH

Accident after summer training of an ice hockey player in an external ice rink

§ Article 175(1) and Article 176(1)(5) ASVG

If an unemployed ice hockey player has an accident on his way home from a non-club hall in fulfilment of the training plan prescribed by his future employer, this does not constitute an occupational accident within the meaning of Sections 175 and 176 ASVG.

Measures for the maintenance or restoration of health are in principle to be attributed to the uninsured personal sphere of life; insurance cover is not to be recognised simply because they serve both the maintenance and restoration of working capacity and thus also the interests of the company. The facts of the case, however, presuppose an upright compulsory accident insurance policy.

OLG Frankfurt a.M.

Liability in the event of player injury in handball

§§ 276, 823 BGB

  1. if the goalkeeper and an attacker collide during the jump shot in the area of the 6-metre area, compensation for injuries sustained by the attacker in the process can only be claimed, if the goalkeeper is given a red card with the report, in accordance with Regulation 8.6 of the International Handball Rules
  2. if only a match penalty in the form of a red card without report is imposed, which has no effect on further participation in the match and does not result in further sanctions, a civil law compensation obligation shall not be considered. (Official Guidelines)

OLG Cologne

No re-evaluation of the German Derby 2016 in Hamburg

Art. 9 para. 1 GG, §§ 661 BGB, 1025 ff. ZPO

  1. The review of the club’s internal decision-making process and in particular of the decisions of the racing courts by the ordinary courts is not excluded in principle, but is limited by § 661 (2) sentence 2 BGB with regard to the decisions of the race management at the derby and by Article 9 (1) GG due to the autonomy of the club jurisdiction. The scope of control of the state courts is therefore limited.
  2. The state courts can only pronounce the nullity of an association decision. They are not authorised, for example, to choose the winner of a derby. They cannot substitute themselves for the jury. (Guidelines of the SpuRt editorial office)

LG Karlsruhe

Terminability of marketing agency contracts

§§ Sections 305 (1), 611, 626, 627 (1) BGB

  1. the services of marketing agencies in sport can be “services of a higher nature” in the sense of § 627 para. 1 BGB.
  2. the right of termination according to § 627 para. 1 BGB can be excluded by individual agreement, but not by general terms and conditions
  3. through long and intensive negotiations on an overall contract, the entire contract can be considered as “individually negotiated”, although it contains individual clauses as defined by §§ 305 ff. BGB, which have not been discussed. (Guiding principles of the SpuRt editorial office)

AG Nuremberg

No claim for damages against the DFL due to alleged incorrect decision of the referee

§§ Sections 280 (1), 823 (1) and (2), 831, 278 BGB; 263 StGB; 495 a ZPO

A claim for damages against DFL GmbH for the loss of profit of a sports betting tipster due to an alleged unconscious mistake by the referee with an influence on the result of a match in a Bundesliga match does not exist from a legal point of view. (guiding principle of the SpuRt editorial office)

OVG Lüneburg

Unlawful detention of a merely alleged “hooligan/ultra”

§ Section 1(1) No 1 VwKostG ND; Section 17(2) GVG; Section 18(1) No 2 a SOG ND

  1. In the application and interpretation of § 18 para. 1 no. 2 a) of the SOG, a strict standard must be applied for constitutional reasons; it is necessary, inter alia, that the commission of a criminal offence is threatened precisely by the person to be detained.
  2. Indications for the commission of a future offence may be, for example, the announcement or incitement to commit an offence, as well as the carrying of weapons, tools or other objects that are obviously intended for the commission of an offence or that are used for such offences according to experience. Further findings may result from, among other things, investigations or criminal proceedings conducted in connection with crimes that are feared to be committed again.
  3. the presence of a person in a place where a group of other persons is simultaneously present, who may be threatened with the commission of criminal offences, is in any case, if the person is not demonstrably a member of the group, not sufficient in itself to justify the prognosis, even of the (individual) person threatened with the imminent commission of a criminal offence. (Official Guidelines)

Sports court of the DTV

Withdrawal of licence due to insufficient distance between a competition judge and athlete

§ 25 BGB; Section D, 10.1 DTV Tournament and Sports Regulations (TSO), Part. M, 1.2 TSO, DTV evaluation guidelines, DTV training regulations

If a competition judge demands from a tournament dancer via a chat app the sending of intimate pictures and for this purpose promises a positive evaluation of the tournament dancer at a tournament by him, this behaviour constitutes among other things a violation of the “ethical-moral principles” of the DTV training regulations. Such behaviour justifies the permanent revocation or permanent prohibition of a reissue of the judges’, coaches’ and tournament director’s licences that have been granted (and in the meantime returned). (guiding principle of the SpuRt editorial office)