SpuRt 2/2019 2019-04-10T14:41:47+00:00

SpuRt 2/2019

In the article “The one-place principle on the sidings”, Th. Summerer, Munich, points out that the one-place principle, which ensures uniform rules for each sport and championship in The Association pyramid, gradually loses its significance. It often led to disputes in the associations, in a sport where several sub-associations existed. The former DSB abolished the one-place principle, in 2004, after being protected by antitrust law, but is still subject to the influence of crime.  Some argue that the one-place principle does not necessarily belong to the necessary content of autonomy and is therefore ineffective. The European Commission also took this view in the case of the International Skating Union (ISU) (see Kornbeck, SpuRt 2018, 22). Therefore, care should be taken to ensure that the umbrella associations set up the one-place principle in their statutes and registrations without discrimination.

 

M. Sachs, Cologne examines the phenomenon of “Equality in sport”, which seems to be a contradiction, because one wants to determine the different performances, especially in sports competitions. Nevertheless, there are different types of equality in sport, Equal opportunities, for example, which must grant equal access to sport in order to achieve equality in sport.

Sachs examines equality as a constitutional issue and sets out the basic principles for dealing with the application examples in the field of sport in detail. These equality questions are, for example, the different state funding for various sports of grassroots sport, as well as different types of coverage of various sports in public broadcasting, or the privilege justified by special laws, Olympic associations for the marketing of Olympic symbols in Germany by the Olympic act. As an example of direct, differentiating state action, the author treats the Federal Youth Games (Bundesjugendspiele)  and its possible differentiating treatment between boys and girls and considers this to be unconstitutional under Article 3 (3) sentence 1 GG. He also deals with indirect state action and, in particular, the promotion of elite sport, which in part raises constitutional concerns. The article concludes with an examination of the extent to which the equality rights are applied to private ones, which at the same time entail protection obligations. In the example of the different prize money for men and women, the author believes that there is no violation of the principle of equality because they would take part in separate competitions and not in the same competition. Overall, the author sees contradictions here to the principle of equality in sport, as far as the state would interfere with prohibited distinctions in the sport.

 

S. Karlin and D. Bischoff, Munich deal with their contribution “GDPR Vs. Photographic image ownership rights – Practical effects at sporting events ” with the conflicts between the General Data Protection Regulation and photo image ownership rights, arise more and more often in spectator admissions at sporting events. So, can the publication of spectator photographs be subject to particularly severe sanctions if these provisions are applied directly? The article deals with this question. First of all, it is stated that the publication of photographs is subject to the processing under Art. 2 I DSGVO and, furthermore, that there is no protection under §§ 22, 23 KUG. The legal basis for the production of spectator images is accordingly Art. 6. para. 1 sentence 1 lit. f DSGVO, on which a legitimate interest can be protected. Here, the consent of the persons concerned can be obtained, but this is a problematic issue for the general ticket terms and conditions. In addition, the information requirements in accordance. §§ 13, 14 DSGVO.

The authors conclude that the production and publication of spectator images should be differentiated, depending on whether it is for journalistic or commercial purposes. It should be noted that in recent years, and in particular since the applicability of the GDPR hardly any complaints to the organizers or supervisory authorities (Article 77 GDPR) has occurred.

 

The article “Embargo-law compliance management in sports: an overview” by J. Schäffer, Berlin clearly shows how sport is apparently inextricably linked to the economy. The word “embargo” is used for the “prohibition on export of certain goods (embargo lists)” it can be used as a synonym with the more common term sanction. It deals with embargoes and sanctions under EU law in order to implement measures of common foreign and security policy, following the decision of the Council under Article 29 TEU, which is implemented on the basis of Article 215 TFEU. The author interprets the thematic points of contact, amongst other things, stricter requirements for sanctions in large associations as opposed to a voluntary sports club.

The EU rights embargo can thus refer to rights of a citizen of an EU member state, as well as to legal persons, which were justified after the EU law. Likewise, the EU embargo law applies to transactions carried out by a Union, as well as those on board the aircraft and ships subject to the jurisdiction of an EU member state. The author explains capital market-related as well as commodity-related sanctions with their penal consequences, and takes a detailed position on the question of the “US problem”, i.e. US sanctions for anyone on the US territory. As a result, the author argues that the embargo right should not leave the sport cold, because it is also possible to find violations of personal financial sanctions and capital market restrictions.

 

Again, the so-called “50+ 1 rule” in the spotlight, the contribution “Statute change – The amendments to the constitution of Hannover 96 in the light of the 50+ 1 rule” by P. Köstner, Munich, themed the changes in the statutes adopted in September 2018 at the football club Hannover 96. As a result of these amendments to the Articles of Association, the Supervisory Board had to retain far-reaching competencies for measures of regular business operations.

The article examines whether the first amendment to the statutes constitutes a violation of the “50+ 1 rule” and to what extent the second amendment to the statutes changes this assessment and what consequences the licensing player division of Hannover 96 might have faced in the event of a breach. The article first examines the content of the “50+ 1 rule”, the basic structures of the limited partnership on shares, as well as the structure of the football club Hannover 96; Furthermore, the details of the first and second amendments to the Articles of Association are presented and analyzed, with the result that, as a result of the amendments to the Articles of Association, there is a breach of Section 16 of the DFB Articles of Association and Section 8 of the DFL Statutes, and thus a breach of duty under the License Agreement. What are the consequences of these violations? Reasons for a license withdrawal would have been enough, with the following, that a renewed change would have been necessary before the beginning of the licensing procedure for the new play time. In any case, this would have caused a license withdrawal under § 10 paragraph 2 lit. c). However, with regard to the ongoing discussion on the general admissibility of the “50+ 1 rule”, such a measure had from the outset been regarded as doubtful, which is why the participants consistently sought a solution in joint talks.

 

In the article “Non-profit sports clubs and Tax ComplianceM. Knittel, Speyer, raises the question after the decision of the LG Frankfurt a.M. of October 15, 1818 whether tax control systems must also be present at non-profit associations, and not only apply to large associations, but also for all non-profit associations in the amateur field. The LG Frankfurt a. M. it was generally known, did not open the case against the accused officials.

The task of a tax compliance management system is to be introduced as an objective for the clubs to maintain their charitable status. After discussing the legal requirements for a charitable status according to §§ 51 et seq. AO, the author explains the possibilities for avoiding the loss of the status of non-profit through a tax compliance system and introduces the supporting elements of this system: The starting point is accounting. According to the principles of proper accounting and financial reporting, in order to avoid interest-driven interference, independence of the person responsible for accounting must be ensured, as well as the independence of the persons responsible for the preparation of tax returns; Finally, technical advice from third parties is essential in the case of material individual questions, as is an annual audit of accounting by independent third parties. Finally, the appointment of a Tax Compliance Officer is recommended, as well as the reporting of tax compliance violations, as well as the documentation of the Tax Compliance Management System.

 

Jurisdiction.

ECJ
Art. 63, 64 para. 1 VATSysTL; §§ 13 para. 1 no. 1, 20 UStG
The sales tax liability of players agents

 

öOGH
§§ 1295, 1304 ABGB; Section 502 (1) ZPO
Traffic safety obligation of the lift operator on the path to the bus stop

  1. Due to the obvious open access to reach the location, and bus stop located in the immediate vicinity of the valley station via an underpass, a lift operator is required by the transport contract to either keep it in a safe condition or to warn unequivocally, before using it.
  2. The use of ski boots on the way from the valley station of a cable car to a bus stop is not untypical and does not cause any contributory negligence to a fall, due to an ice plate.

 

KG Berlin
Art. 9 I GG, §§ 242 BGB, 184 GVG, 142 Abs. 3 ZPO
Content control of association sentences of a Harness Racing Association.

  1. Decisions of a confederate court are subject to only limited control by a state court because of the constitutionally guaranteed association autonomy.
  2. In case of doubt, it can be assumed that the rules of a federation statute do not contain any stricter rules than the regulations which, according to the Code of Civil Procedure or the GVG, apply to the examination of first-instance decisions under state appeal or revision law.
  3. Confederation sanctions may base their findings on proof of first appearance without violating the rule of law based on the principle of the rule of law, as the strict application of the presumption of innocence in competitive sports would make effective prevention of doping impossible. (Editorial principles)

 

OLG Munich
§§ 826 BGB, 20 Abs. 5 GWB
Admission claim in monopoly association and one-place principle

  1. According to the settled case-law of the BGH, an association or a federation holding a monopoly position or, more generally, an economic or social sphere of superior power may, according to Art. §§ 826 BGB, 20 Abs. 5 GWB for the admission of an applicant, if there is a significant or fundamental interest in the acquisition of the membership.
  2. Whether and to what extent individual admission requires admission must be determined in accordance with the principle that rejection of admission does not result in unjustifiably justified unequal treatment and undue disadvantage to a candidate applying for admission, taking into account their mutual interests.
  3. If the so-called “one-place-principle” found in the statutes of a monopoly association in a form that can become a constant source of discrimination and discrimination of multiple sports associations, so it is up to the monopoly association, the principle of a shape which excludes the discriminatory consequences. (Editorial principles)

 

LG Cologne
§ 4 para. 1 no. 4, 5, § 3 para. 1 or 2 AntiDopG, § 224 para. 1 no. 4 StGB
No major case against Felix Sturm

On intentional punishability of self-doping and dangerous bodily injury, from the point of view of the degree of the opponent’s consent in boxing because of the presence of a very small amount of a doping substance in the urine sample. (Orientation sentence of the editors)

 

LG Nuremberg-Fürth
Art. 16 para. 2 no. 1, 20 para. 2 no. 6 BayVers.G; § 27 StGB
Aid to breach the muffling ban by supporting holding the block banner

  1. Anyone who participates in a coordinated action in the fan block using the block banner as a screen in the knowledge of pending offenses, makes itself punishable by aiding and abetting these acts.
  2. If the block banner spreads as a visual protection on the fans and acts of the defendant by their own will deliberately with it, to move this flag as a privacy in the appropriate position and to hold, he takes it, at least approvingly, that he helps the persons who are disguised and use pyrotechnics.
  3. In particular, the fact that the whole action is fluid, goal-directed and effective, so that it must have been planned and agreed upon beforehand, speaks in favor of the auxiliary mate. (Principles of the editor)

 

AG Hannover
Section 37 (2) BGB
No early general meeting at Hannover 96

A convening authorization for the general meeting by the district court according to § 27 Abs. 2 BGB does not require a minority in the association in every case, if the executive committee has put the coveted resolution item on the agenda of an imminent general meeting. (Guiding principle of the editors)

 

AG Hannover
Arts. 3, 20 GG; § 25 BGB
No club exclusion because of a planned third-party conflict

  1. The mere agreement on a physical confrontation in a group against another group or an involvement in this conflict does not include a commitment against the free democratic basic order as such.
  2. The club is not responsible for a planned third-party dispute even if the people are wearing the club colors. (Editorial principles)

 

OVG NRW
§ 58 VwGO; §§ 6 para. 10, 70, 75 BauO NRW
No triggering of clearance surfaces by escape lighting masts

  1. An addressee-neutral appeals policy is regularly addressed without restriction to anyone who believes that he has been violated by the decision in his rights. Such an abstract (passive) version of the legal remedy is in any case also i.S.v. with regard to possible third parties. Section 58 (1) VwGO.
  2. A floodlight mast with a diameter of 70 cm and a height of 20 m does not necessarily trigger clearance areas according to § 6 Abs. 1 BauO NRW. In any case, an effect equivalent to a building does not apply if, from the point of view of the property concerned, it merges into a large part of a stand which is harmless in terms of the area of ​​the stand area.
  3. The extent of the binding effect of a building decision for a subsequent building permit, which covers the neighbors. (Official Guidelines)

 

Association Court of the West German Table Tennis Association e.V.
Art. 20 para. 3 GG
Use of non-EU players in table tennis

The principle of trust based on the rule of law pursuant to Art. 20 (3) Basic Law with regard to assurances given by association officials on the legal position, falls short of the principle of binding to “law and order” if the statutes of the association conflict with the statements. (Guiding principle of the editors)