SpuRt 2/2018 (March/April)

In the editorial “European Law and Sport: Professional Freedom and Antitrust Law” R. Streinz, Munich, encourages greater control of the world sports associations. For example, in the IOC by the ECJ through a referral procedure under Art. 267 TFEU for antitrust relevance, Art. 102 TFEU. Because of the many measures and sanctions, for example, as the prohibition of participation in current Olympic Games, the evaluation of measures, such as imposing on the Russian doping system, as well as a control of the “World Sports Court” CAS regarding the much-discussed arbitration of athletes. Although the Federal Constitutional Court and the European Court of Human Rights were appealed, a submission to the ECJ was omitted, although the relevance of antitrust law prevails. Article 165 TFEU certainly does not contain a sector exception for sport, but only makes it clear that the specific features of sport must also be taken into account in antitrust law. In particular, the professional freedom of the athletes should be protected, as was already shown in the case of Bosmann 1995. The case of Meca-Medina has shown that an antitrust investigation was justified. Also, in the recent case of the ISU’s blocking of athletes, the connection between professional freedom and antitrust law has been confirmed (Art. 101, 102 TFEU), as Kornbeck has already pointed out in SpuRt 2018, 22, 24.

J. Wilkens, Frankfurt and P. Müller-Eiselt, Munich, discuss the decision of LG Munich I in SpuRt 2017, 258 in their article “The Legal nature of tickets and their resalability” – in this decision, the transfer of tickets to the General Ticket Terms and Conditions was declared lawful. The authors deal in detail with the small bearer securities (§ 807 BGB) and the qualified credentials (§ 808 BGB) and explain the effects of these securities qualifications and the differentiation criteria as well as their effects on the tickets. Specifically, in their analysis of the judgment of the LG Munich I, they state that the resale restrictions are transparent and not surprisingly, adequate and effective. As a result, the authors consider that the judgment is of great importance for the practice, as it strengthens the legal position of organizers of sports events and gives clear instructions for effective action against the unauthorized secondary market – thus the organizer can impose effective resale restrictions. It is also important and decisive that the arguments of the LG Munich I and their findings are not contradictory in the decision of the BGH “Bundesligakarten.de” in SpuRt 2009, 73 ff.

T. Schumacher, Wolfsburg and K. Schumacher, Bergisch Gladbach, point in its contribution “Compliance Management Systems in Sport (Part 1)” to the urgent need to run a Compliance Management System (CMS) in sports associations. This was already pointed out by Kubiciel in his article on liability risks in match-fixing in SpuRt 2017, 188, 193. Schumacher / Schumacher express their astonishment that the sports federations in their organization have not yet implemented CMS. After the major scandals in German industry (such as Siemens), this would have recognized the need, but not in the national and international sports associations such as IOC, FIFA and UEFA, which have long been operating as a commercial enterprise and are hit by similar scandals. The civil liability for a missing or deficient compliance management system is generally undisputed, the liability arises exemplarily on the basis of § 93 AktG. The so-called “Neubürger judgment” of the LG Munich I from the year 2013 has clearly established the danger situation and necessary damage prevention, as well as the judgment of the BGH in the case of “HSH-Nordbank” of 12.10.2016 Responsible bodies in the major sports associations are also warned of the high fines (in the millions) in the case of their breaches of duty in accordance with § 30 OWiG and should strive to introduce a CMS as soon as possible. Characteristic of this is first a risk analysis of their company, further building on this a prevention to limit the risk and finally a sufficient monitoring process. For some sports associations, according to the authors, approaches already exist in an installed code of behavior and guidelines on anti-corruption and conflicts of interest and in an ethics code. However, this is in no case sufficient. (The article will be continued in the next issue 3/2018)

D. Frey, Cologne, continues his article “e-Sports – Legal Issues of a Complex Ecosystem at a Glance” from SPuRt 2018/1 ff. There, the lack of legal recognition as a sport in Germany is addressed, with the result that the connection to international competitions is difficult. This sport lacked the traditional under construction of well-being and broad sports-oriented clubs. If one looks at the central issues of e-sports, one recognizes an interesting investment opportunity due to the high economic growth. In the structure of the organization of the “clans” there are corporations that operate a trade with contractual relationships in the form of service or employment contracts (§§ 611 a BGB). Problematic in the view of the author are the performance rights of the players on § 73 UrhG in so far as the performances in publicly held competitions are protected by factory performances – they should not be treated differently from performances in other sports disciplines. The author continues to discuss the issues of marketing e-Sports e. g. that there is a comparable home right of the organizer, sponsorship and advertising in connection with sporting events, in particular the conflict situation in the form of advertising “in-game advertising”, the most famous virtual counterpart to real football, “In game advertising”. As with the other sports, there are issues of laudability and the comparable regular restrictions on radio and tele-media. As a result, the author states that the attractiveness and future of e-sports will continue to depend on wider public perception. It certainly requires a clear positioning of the DOSB, as well as recognition by the IOC as an Olympic discipline. The industry as a whole must work on this and ensure a transparent (international) association structure.

In the article “External view: The video evidence in professional football – an interim assessment” A. Feuerherdt, Cologne, a referee expert, summarizes the previous problems of video evidence together: Use of video recordings to review decisions of the referee during a game by trained Video Assistant Referees (VAR) were already decided by the FIFA on 05.03.2016. Central to this is on the one hand, that there is the possibility of a review only in game situations, which can have a serious impact on the party and its course, namely goal scoring, penalty area situation, red cards and player confusion. The core questions are not here: “Was the decision correct? But was the referee’s decision clearly wrong? “So, the VARs are assistants, members of the referee team, like on the sidelines, and the fourth officials. This is often misunderstood. Important is that referee on the field has the last word. The author explains the details of the procedure and the known meantime questions about the VAR system.

It is well known that the DFL and the DFB have already started a test in the Bundesliga at an early stage and have had decisive experience here in recent times. Technical defects have been corrected in the meantime. Clearly, however, the regulations and comments on their interpretation are in some cases not yet clear, but the interim misunderstandings, which the author lists here in his contribution, are largely resolved. It will be announced soon whether video evidence will become a permanent fixture in football. (Note: what has happened in the meantime.)

The judicial section contains the following judgments:

ECHR:

“The Whereabouts” in the context of doping control is not permissible interference with the right to privacy

Article 8 ECHR

The legal framework created by the French legislator for the national implementation of “The Whereabouts” according to the World Anti-Doping Code (WADC) does not violate Art. 8 ECHR as far as the right to privacy is concerned.

Federal Court (Switzerland):

Case “Platini”: sanctions for violation of FIFA Code of Ethics confirmed

Art. 77 BGG; Art. 176 ff. IPRG; Art. 353 et seq. ZPO; Art. 75 ZGB; FIFA Ethics Code

An arbitration procedure is international if the seat of the arbitral tribunal is in Switzerland and at least one of the arbitration parties did not have their domicile or habitual abode in Switzerland at the time the arbitration agreement was concluded.

A donor is “third person” in the sense of the FIFA Code of Ethics in relation to the recipient. This is not affected by the fact that both are FIFA Officials because one official will receive an advantage or gift and a second official will offer that benefit or gift.

A ban on “all football related activities” acc. FIFA Code of Ethics only refers to organized football, that is functions within international and national associations, so that no one is prevented from attending a game as a spectator.

Düsseldorf Higher Regional Court:

Nullity of life-long player blocking in the absence of disciplinary authority of the World Bridge Federation (WBF)

§§ 1031, 1032, 1066 ZPO, Art. II, VII para. 1 UNÜ, Art. 6 para. 1, 11 para. 4 Rome IVO, Art. 75 ZGB, § 242 BGB

The CAS arbitration clause contained in Art. 13 WBF statutes (version 2012) is not applicable to individual bridge players. Under Swiss law, Art. 75 ZGB does not apply to invalid decisions of the association. The disqualification of a national team by the World Federation can only be challenged by the national association, not by the individual team members. The nullity of life-long barriers.

Higher Regional Court Munich

No likelihood of confusion of a “farm olympiad” with the Olympic Games

§ 3 para. 2 no. 3 OlympSchG.

The use of the term “farm olympiad” for a commercial event offered for companies working on a farm with their typically existing materials and equipment (eg hay bales, horseshoes, wheelbarrows) in athletic competitions, does not justify the risk of confusion with the Olympics and does not take unfair advantage of the appreciation of the Olympic Games.

Frankfurt Higher Regional Court:

Admissibility of exclusive review of doping restrictions by CAS

§ 134 BGB i. V. m. Section 19 (1) (4) no. 2 GWB; § 128 BGB; §§ 1025 ff. ZPO

The submission to the association jurisdiction and the recognition of the CAS as the only court of appeal demanded by a sports association does not constitute an abuse of the dominant power of the association and thus is effective. The limitation of the verifiability of a doping ban by the CAS and the associated exclusion of ordinary courts are not abusive.

LG Cologne:

Prima facie evidence in the collision of skiers

§ 823 Abs. 1 BGB

In the event of a collision of the following skier with the one ahead, the proof of the first appearance speaks of careless behavior of the following skier, as he must ensure, according to FIS Rule # 3, that the vehicle in front is not endangered.

AG Munich:

Implied cancellation of a training contract

If a personal trainer increases the price of the training performance and if not received , it can be seen as an offer to cancel the contract.

AG Bonn:

No reimbursement of attorney’s fees in the case of failures to report failure owed by doping inspectors

§§ 280 (1), 241 (2), 249 et seq. BGG; §§ 128, 137, 1032 ZPO

On the reimbursement of attorney’s fees incurred by the athlete for the legal representation in the context of the “administrative review” of a doping failure to register, the review leads to the settlement of the allegation of a mandatory negligence against the athlete.