In the editorial “Evaluation of the Anti-Doping Law: Tested and found too light”
Jahn, Frankfurt/Main, doubts the effect of the Anti-Doping Law that came into force at the end of 2015. In particular, the low number of cases at the public prosecutor’s offices shows this, furthermore, there is not yet a single legally binding verdict of a case, nor does the law show a deterrent effect. The federal government’s evaluation report, based on a study by criminal law scholars Hoven and Kubiziel, was well reasoned but sobering, because the underlying figures (about 100 case files) were meager. Also, there would be still no single legally binding judgement against the self-doping prohibition, the case Felix storm is decided soon with the BGH. After all, in Jahn’s opinion, they have thus confirmed the pessimistic forecasts of the past.
In the follow-up article “No-fault association penalties in professional soccer and the shift to disruptors and spectators” (Spurt 2020, 282 ff.), the authors J. Gerlach / S. Manzke, Hamburg, now set out reform proposals for a legally permissible and transparent fight against procedural violations by spectators. These reforms are expediently to be carried out on two levels, on the one hand in the legal relationship between the clubs and their spectators, and on the other hand in the legal relationship between the DFB and the clubs. In the former, a deterrent effect can be achieved by introducing corresponding regulations in the general ticketing regulations (ATGB) and the stadium regulations; in the ATGB, contractual penalties should be agreed in accordance with Sections 339, 307 of the German Civil Code (BGB), whereby the maximum penalties of EUR 2,500.00 would have become customary in practice. Likewise, the transparency requirement pursuant to § 307 BGB must always be complied with. Furthermore, the clubs could impose the corresponding stadium bans on the basis of their domiciliary rights, which would also have to be anchored in the ATGB.
At the level of the DFB to the club, in turn, in the interest of effectively combating pyrotechnics, a catalog of obligations of the club should be included in the association statutes and secured here with a fault-based association penalty. Similarly, standards for admission controls in stadiums should be drawn up by those responsible. Overall, the authors believe that this solution is more expedient than apportioning the fine to the offender by way of compensation, even though the Federal Court of Justice has in the meantime approved this approach.
In the article “Important Sports Law Cases 2020”, M. Stopper, C. Keidel, and P. Fischer, Munich, present a list of national and international sports law cases from the perspective of the autonomy of associations, which is always a useful instrument for decision-making. These legal cases are commented in detail, as they provide fundamental guidance for the resolution of legal issues related to sports.
- International decisions
- In the CAS arbitration of the dispute between the International Surfing Association (ISA) and the International Canoe Federation (ICF), the CAS made a compromise decision to the effect that the ISA administers the sport stand-up paddleboard (SUP)at the Olympic level, although there is no claim for either federation. However, the CAS did not decide the question whether the so-called one-place principle at Olympic level was a legitimate goal.
- In the Trabzonspor v. Fenerbahce Istanbul dispute before the Swiss Federal Court, the question of whether an oral hearing was necessary was disputed, along with the issue of alleged match-fixing. Following a CAS decision, the Swiss Federal Court had to rule, thus confirming an ECtHR decision on the necessity of an oral hearing. According to the authors, however, the reasoning is highly contestable.
- Similarly, in the Swiss Federal Court decision Caster Semenya v. IAAF, the appeal of the South African track and field athlete against the CAS decision was rejected. The CAS emphasized the unanimous opinion of the experts that testosterone is the main factor behind the difference in performance between the sexes in athletics. In the authors’ view, Caster Semenya’s case far exceeds the day-to-day challenge of a sports lawyer, because even when the medical issues are resolved by experts, complex ethical and socio-political issues follow that inevitably run full force against competitive sports’ aspiration to maximize equality of opportunity.
II. National decisions
- in the decision of the BGH in the case of SV Wilhelmshaven on reinstatement in the Regionalliga Nord (SpuRt 2020 185, SpuRt 2020 189), the authors state that an outcome of the sporting competition is unquestionably unpredictable, which is why this classification does not meet the statutory sporting requirements for a club to enforce a claim for damages.
- In a ruling of the OLG Frankfurt on relegation in the event of season cancellation due to corona (SpuRt 2020, 196), which declared relegation in the event of season cancellation due to corona to be lawful, the decision of the German Table Tennis Association (DTTB) with regard to distortion of competition and a club’s claim for the granting of a playing permit was discussed in detail. In a further ruling on this issue, the Mannheim Regional Court specified the right of determination of the association as match organizer and, like the Frankfurt Higher Regional Court, used Section 315 of the German Civil Code as a standard of review (admission contract of the association). In any case, the complexity of dealing with events of force majeure is to be regulated by a sports association and in any case legitimized by the will of the member clubs, because they express with their membership that they want to demand the purpose of the sports association and its organization.
- The decision of the OLG Frankfurt, in turn, on the recognition of the permanent arbitration court for the 3rd League as a genuine arbitration court (Spurt2020, 153) shows that the question of the genuineness of an arbitration court must always be clarified anew. A decision of the DFB Sports Court was confirmed by the arbitration court, which is why an appeal had to be filed with the Higher Regional Court. An arbitration court is always neutral if both parties can decide equally on its composition. This particularly strengthens the arbitration in the relationship between sports organizer and participant.
- The arbitration award of the Permanent Court of Arbitration of the 3rd League of September 21, 2020 on the decision of the DFB committees regarding the continuation of the season is lawful (SpuRt 2021, 47), whereby it must be noted that associations are generally obligated to stage their competitions in full. The Corona pandemic has posed a particular challenge to both clubs and associations, but so far, they have fully complied with their obligations.
M. Stahm, Dortmund deals with a new problem in his article “Short-term change of coaches as a comparison problem in competition” due to the increasingly frequent change of coaches in professional sports, especially in the case of team coaches during ongoing league competitions: clubs change their coaches earlier and earlier, who are then in turn contracted at short notice to a league competitor; coaches then take their knowledge and expertise with them for the following competitions for the competitor, which can lead to distortion of the ongoing competitions.
By way of introduction, the author details the cases of coaches A. Beierlorzer and P. Stöger that occurred in the 2017/18 player season.
Legally, both the labor law and the association law side is relevant here. Under labor law, it is unproblematic if the employment contract does not contain any special agreements here, so that this can be resolved on the basis of a termination agreement. There are likely to be problems with other agreements in the employment contract. In terms of association law, however, a solution to avoid such competition-distorting consequences could be found by introducing fixed changeover periods in the playing regulations of the associations, for example, the DFB’s playing regulations. The author discusses this approach on the basis of § 23 of the DFB’s match regulations and explains that such regulations would have to be introduced on the basis of the autonomy of the associations in Article 9 of the German Constitution. However, it must be taken into account to what extent such changeover periods constitute an encroachment on the scope of protection of the freedom to exercise one’s profession under Article 12 (1) sentence 1 of the Basic Law. In any case, the conflicting fundamental rights of the association under Art. 9 GG and the trainer under Art. 12 GG must be weighed up by way of practical concordance. The author explains that the association’s interests under Article 9 of the Basic Law, which are protected by fundamental rights, would probably prevail and that, in this respect, there would be no objections to the introduction of changeover periods in the respective association law from the perspective of fundamental rights.
In the article “Harmful Reporting in Sports” by F. Brugger, Stuttgart, the reporting of major sporting events and their elementary importance for sponsor associations and also athletes are discussed in detail, which as a result of the increasing commercialization of professional sports has led to a plethora of offers in the media. Here, a real battle for market share, topicality and exclusivity is often the order of the day, with the athletes and associations involved as well as sponsors often being severely affected by inappropriate or distorting reporting. At the outset, the author deals with the conflicting rights of those affected and the media’s freedom of expression in Article 5 (1) of the German Basic Law. Athletes can rely on their general right of personality in Art. 2 GG in conjunction with. § 823 para. 1 BGB, which are to be weighed against each other. Thereby by the author the possibilities with the concerning: Counterstatement, claim for rectification, omission, compensation.
The classic legal instrument against untrue factual allegations is the counterstatement, whose basis for claims and further requirements are regulated in detail in the respective state press laws. The basis for the claim for right of rectification is based on Article 5 of the German Basic Law (GG), the details are regulated by the provisions of Sections 1004 and 823 of the German Civil Code (BGB), whereby a distinction must be made between a full and a limited retraction. In addition to the counterstatement, the claim for injunctive relief against media publications is probably the most common way for those affected to defend themselves against further infringements, also on the claims basis of §§ 1004, 823 BGB. Here, the author explains in detail the prerequisites for the initial risk of infringement and the risk of repetition, as well as the elementary principles of proving an untrue statement of fact. Finally, the details of the claims for damages, here in particular the monetary compensation, are pointed out. As a result, athletes and clubs have sufficient rights of defense against untrue factual allegations and are advised to take targeted action against them in order to maintain a reputation.
In the article “Club Financing vs. Third Party Ownership 2.0”, T. Schneider and S. Karlin, Munich again deals with the problems of club financing, which must not be in conflict with the principles of third-party ownerships. The latter means that there must be no financial participation of third parties in the exploitation rights of players in international professional sports. More precisely, no contracts may be concluded by the club or players with third parties that could result in claims for compensation or other rights to matches in the event of a transfer. This protective purpose, which is based on the FIFA regulations (Regulations on status and transfer of players -RSTP-), is an extension of the protective purpose by the 50+1 regulation of the German Football Association at international level.
This issue is becoming more and more topical, see for example the investors in the soccer league club Hertha BSC Berlin in 2019, as well as those in other international clubs. Just like the instrument of the 50+1 regulation, this issue always occupies the association courts as well as arbitration courts. The authors explain in detail the current legal framework of Third Party Ownership`s in Art. 18 bis and Art. 18 ter RSTP, for which the FIFA Disciplinary Committee (DC) is responsible. There are no doubts about the legality of this FIFA rule, the rule has been confirmed in a CAS ruling as well as by the Swiss Federal Court and also the Brussels Court of Appeal in the RFC Seraing case. In the following, the authors present a detailed casuistryof the cases decided so far and briefly describe the facts of the case and the relevant findings, so that the reader can get an overview of the case law to date. In the future, new forms of financing will continue to be problematic, which have not yet been dealt with, so that an end to the disputes and the newly appearing judgments is not yet in sight. The authors discuss and explain their prognoses for the future, certainly these are again working bases for new variants of the club financing.
Constitutional Court of North Rhine-Westphalia
Interim legal protection against closure of fitness studios due to the CoronaSchVO
§§ 18, 27, 54 VerfGHG; §§ 9 para. 1, 18 CoronaSchVO
- In order to ensure effective legal protection, a constitutional complaint may exceptionally be decided pursuant to § 54 p. 2 Alt. 2 of the Constitutional Court Act before exhaustion of the legal process if the complainant would suffer a serious and unavoidable disadvantage if he or she were first referred to the legal process. This can be assumed if a statutory instrument challenged by the constitutional complaint is only of short duration and therefore legal protection by the non-constitutional court in the main proceedings can in all probability no longer eliminate a current particularly intensive encroachment on fundamental rights but can at best lead to a subsequent determination of its unconstitutionality, and if at the same time an application for the granting of provisional legal protection by the non-constitutional court is from the outset obviously hopeless.
- The prohibition of the operation of fitness studios ordered by § 9 para. 1 of the Ordinance for the Protection against New Infections with the Coronavirus SARS-CoV-2 (Corona Protection Ordinance – CoronaSchVO) of 30.10.2020 is in any case not obviously unconstitutional. Whether the concomitant encroachment on the fundamental rights of the operators is constitutionally justified requires detailed examination.
- In view of the current dangers to life and health posed by the Corona pandemic, a weighing of the consequences is to the detriment of the operators of fitness studios. Their interests in undisturbed participation in working life, which are protected by fundamental rights, weigh heavily. However, in view of the strict standard to be applied in issuing a temporary injunction and taking into account the legislator’s prerogative to assess the protection of life and health, these interests do not currently predominate.
Admissible arbitration in the Bavarian regional soccer league
§§ Sections 25, 134, 138, 242 BGB; 19 GWB; 1025 ff, 1032, 1052 ZPO
- The Permanent Arbitration Court of the Bavarian Regional Soccer League is a “real” arbitration court within the meaning of §§ 1025 et seq. ZPO.
- Despite the de facto monopoly position of the Bavarian Football Association and the necessity to conclude an arbitration agreement with it in order to participate in the regional league, this arbitration agreement is voluntary within the meaning of BGHZ 210, 292 (Pechstein), because the requirement of this arbitration agreement does not constitute an abuse of the market power of the Bavarian Football Association after a comprehensive weighing of interests, nor does it unreasonably restrict the clubs’ right to justice.
- in particular, the independence and neutrality of the Permanent Court of Arbitration of the Bavarian Regional League are sufficiently ensured. (Guiding principles of the SpuRt editorial team)
Bonn Regional Court
Statutory anchoring of the obligation to bear costs in association proceedings
Article 9 (1) of the Basic Law, Section 25 of the German Civil Code (BGB)
On the requirements for an obligation to bear and advance costs in association-internal sports court proceedings to be anchored in the articles of association. (Guideline of the SpuRt editorial office)
No voucher redemption in case of Covid-related event cancellation and sponsoring services
Art. 240 § 5 para. 1 EGBGB, §§ 286, 288, 326, 346 BGB
- professional events do not fall within the scope of application of Art. 240 § 5 para. 1 p. 1 Introductory Act to the German Civil Code (EGBGB) due to the typically higher fees and thus the liquidity commitment.
- VIP season tickets in connection with advertising services cannot be refunded as vouchers due to the clearly commercial context because they are not tickets to leisure events.
- advertising services at Bundesliga soccer matches, despite staggering of the fee for the 2nd Bundesliga, cannot be safely made up in accordance with the contract. (Guiding principles of the SpuRt editorial team
Entitlement to membership in association group in case of gender discrimination
Art. 3 para. 1 GG; §§ 25, 249, 826 BGB; § 18 AGG
- Despite its purely local significance, a local history and cultural preservation association may hold a monopoly position (in this case, over fishing in the town stream for the preservation of traditions) and is therefore exposed to indirect third-party effects of fundamental rights via general clauses such as §§ 826, 138, 242 BGB.
- A female member of an association may be entitled to membership in a subgroup of a non-profit association, which is intended for men only, in particular if the association has a considerable social significance due to its prominent cultural events in the locality.
- an according to today’s understanding objectively different treatment of women by an association statute can also not be justified by the article 9 exp. 1 GG, because traditional society pictures of the equal treatment mandate of the article 3 exp. 2 GG are to be broken up. (Guiding principles of the SpuRt editorial staff)
Extraordinary termination of a Sky subscription due to Corona pandemic
§§ 611, 626 BGB (GERMAN CIVIL CODE)
- The Corona pandemic and the associated cancellation of various sporting events constitutes good cause within the meaning of Section 626 (1) of the German Civil Code (BGB), which entitled the subscriber to extraordinary termination of a Sky subscription in March 2020.
- There was thus merely no temporary prevention of the provision of the entertainment owed. The subscriber also could not reasonably be expected to wait and see how the pandemic situation would develop further. (Guiding principles of the SpuRt editorial team)
No prohibition of professional basketball sports to combat corona
§§ 10 CoBeLVO RLP, 35 VwVfG, 80 para. 5 VwGO, Art. 12 para. 1 GG
- Official notifications about the prohibition of training and competition operations on the basis of pandemic control norms are to be qualified as declaratory administrative acts.
- A distinction between professional and elite sports on the one hand and amateur and recreational sports on the other hand shall be measured in the light of article 12, paragraph 1 of the German constitution.
(3) A club which participates with its basketball team in the “2nd Basketball Bundesliga ProB” division is engaged in professional sport. (Guiding principles of the SpuRt editorial office)
SchiedsG 3rd league
Legality of the continuation of the season in the 3rd league in the COVID 19 pandemic
Art. 9 par. 1 GG; §§ 25, 315 BGB
- The Permanent Court of Arbitration has a limited standard of review when reviewing decisions of the defendant DFB due to the autonomy of the association.
- The decision in the competent bodies of the DFB to continue the operation of the 3rd League in the 2019/2020 season as it happened was necessary, and in any case justifiable, under the circumstances, taking into account the obligations of the DFB under its statutes and under the admission agreements with the participating clubs of the 3rd League. (Guiding principles of the SpuRt editorial team)
DFB Federal Court
Equal treatment in the rescheduling of DFB Cup matches
Art. 3 par. 1, Art. 9 par. 1 GG; §§ 25, 242, 315 BGB, § 14 DurchfBest-DFB-SpO
- In the administrative appeal proceedings, the DFB Federal Court shall in principle only review for discretionary errors if the basis for the authorization grants the DFB administration discretionary powers.
- If, on the basis of the facts of the case, the discretionary power is reduced to zero in such a way that only a decision at the request of one of the parties involved can be considered, the DFB Federal Court may refer the matter to itself and decide on the merits of the case itself.
- on the grounds for postponing DFB Cup matches and on the right to equal treatment in competition. (Guiding principles of the SpuRt editorial team)