In the editorial “Total mess of Claims of rule” is the theme of J. Orth, Cologne, who discusses the recent riots of the fan groups during the Bundesliga game Hoffenheim against Munich (with the consequence of a 12-minute interruption of the game). At this low point in German football, neither of those involved, neither the DFB nor the fans are innocent, he said.

First and foremost, the DFB is called upon here to rectify its previous failures, with the consequence of racist and discriminatory outbursts, crying out for a solution: not only must the personally affected sponsor Hopp be protected, but the amateurs and ordinary fans at grassroots level, who have been neglected up to now, are also demanding that the DFB’s responsible parties finally intervene.

It will not be easy to bring the parties involved together at one table. Even though the DFB is undeniably responsible for shaping football, the fans make important contributions to their club and the mood of football as a sport at grassroots level.

In the article “Police costs at football matches”, G. Müller-Eiselt, Munich, discusses and evaluates the constitutional questions raised by the ruling of the Federal Administrative Court of 29 March 2019 on the partial passing on of costs for high-risk matches to the organizer in accordance with § 4 Paragraph 4 of the BremGebBeitrG.

The author gives detailed reasons for the fact that this provision is unconstitutional, contrary to the opinion of the BVerfG in its judgment. Since the DFL (Deutsche Fußballliga GmbH – German Football League) has filed a constitutional complaint against the ruling, this article is of particular importance.

The regulation of fees by the police for averting danger, which is the subject of this case, continues to affect numerous questions under financial constitutional law regarding the prerequisites and limits for levying non-tax charge. The author explains (the inconsistently) integrated guidelines of the BVerfG’s case-law on the law on fees and charges, and then, on the basis of these criteria, he presents the constitutionality of the chargeable event and analyses the justification of the BVerfG in this case. In addition, the conclusion of the contribution is significant: Even if, contrary to expectations, the decision of the BVerfG is confirmed in Karlsruhe, there are a further number of problems for the practical handling of the chargeable event, which the author briefly outlines in a further outlook.

In the article “Have ticket platforms ‘sold out’? – Civil and criminal law impulses against the unauthorized secondary ticket market” I. Bott, Düsseldorf and S. Karlin, Munich, deal with the civil and criminal law approaches against the unauthorized secondary ticket market.

This so-called “ticket black market” in sports and other industries has long been a nuisance for organizers, clubs, fans and consumers. Sports law papers as well as court decisions are already available. Civil law in contract law, within the framework of general terms and conditions, as well as in the law of unfair competition (UWG) of the illicit competition law. In terms of criminal law, fraud, usury and possible sanctions against companies are also possible, but they are by no means sufficient.

With the civil law approaches, the authors initially act within the framework of the general terms and conditions of business, the so-called General Ticket Terms and Conditions (ATGB), whereby the negotiability in competition law according to §§ 807, 808 BGB plays a role. In the case of the competition law approaches, reference should be made to the decision of the Federal Court of Justice (BGH) in 2008 in the black market for tickets (BGH, SpuRt 2009, 73 ff): in the decision, the BGH explains in detail the breaches of contract by the reseller to the second buyer and also the anti-competitive nature of the contract under Section 4 No. 10 UWG. In the wake of this ruling, further decisions have been made in various civil courts, but it must be noted that there is not sufficient effective protection against the activities of the ticket black market. The authors continue to deal with the approaches in criminal law and examine in particular under the fraudulent circumstances the sales of practically non-existent tickets, furthermore the sale at extortionate prices as well as the sale of blocked and invalid tickets, but also the sanction law risks with regard to ticket platforms and their operators.

In conclusion, it should be noted that the civil and criminal law approaches are unclear and, in contrast to the legal situation in other countries, by no means sufficient for the organizers.

F. Thumm, Stuttgart, devotes his article “Sports and politics don’t mix: On the legal handling of saluting players in football “ to the problems of sport and politics, for which there are many examples, e.g. the boycott of the USA and other Western states at the 1980 Olympic Games because of the invasion of Soviet troops in Afghanistan. Also, the protest of US sprinters in 1968 at the Olympic Games in Mexico on the occasion of the victory ceremony with raised black leather glove fists against racism is well remembered.

The question has to be asked to what extent the freedom of opinion of athletes can be restricted; it is regulated in the Olympic Charter, as well as in other international federation regulations, which the national federations apply even to amateur sport. The author first gives several examples of expressions of opinion in football in recent years and addresses the principles in the association rules and regulations according to which violations are punished; in particular, § 9 no. 2 DFB-RuVO is considered a ban on discrimination. According to this provision, players can be fined heavily. This offence requires a clear degrading action, i.e. a non-verbal gesture that has led to a human injury. This is to be determined on the basis of an objective explanatory value of saluting. Similarly, sanctioning as unsportsmanlike conduct in accordance with §§ 1 No. 4, 9 No. 1 can again follow DFB-RuVO.

For sanctions to be imposed, however, an exact assessment of the respective action is required, e.g. the saluting of Turkish players in 2019 during football matches was to be seen as an expression of sympathy for the Turkish military for their actions in Northern Syria. In any event, a prerequisite for sanctioning is that the referee, as part of his disciplinary authority, has pronounced a punishment during the match in accordance with Football Law 12. If no such pronouncement has been made, a penalty can only be imposed under the strict conditions of § 8 no. 4, again DFB-RuVO.

In the article “The reformed facts against discrimination in football according to Article 13 FIFA Disciplinary Code” by B. Hessert, Zurich and O. Ofosu-Ayeh, Essen, examine the provision and the question is answered as to whether it is suitable for effectively combating discriminatory acts and expressions of discrimination in football.

The article refers to the statements made by FC Schalke 04 official Tönnies, who has made discriminatory statements against Africans and against whom no sanctions have been imposed.

The authors first examine the potential group of persons; the provision states that any person could be subject to the discrimination. This broad wording is considered to be the legal regulation of associations under the Swiss Civil Code direct and indirect members of FIFA refers in particular to associations and their official members, official players or match consultants. By contrast, supporters of clubs are not affected.

Furthermore, the provision must be interpreted and the concept of discrimination must be clarified. This always involves the exclusion or disparagement of a person or group, which is linked to a frowned upon distinguishing feature, which the authors explain in detail.

A further topic of Art. 13 FDC to be discussed is the discrepancy between the salaries of women and men in professional football. Such a discrepancy could constitute discrimination, but in view of the constitutionally protected autonomy of sports associations under Article 9 of the Basic Law, it would require a detailed examination. Finally, the racism and intolerance of this provision require constant and detailed examination; any kind of racial discrimination may be possible here. The further question of whether these facts refer to discrimination in direct connection with a football match, for example on the pitch, also requires an answer, as the provision is silent on this point. After a precise analysis and a systematic interpretation, it can be concluded that this is only discrimination related to the playing field, which, however, appears very questionable in its practical consequence. In this respect, one must also come to the conclusion that the meaning and purpose of the norm can only mean that all racist expressions or discrimination in connection with football are present. However, the future will show how relevant this provision actually is in practice.

T. Bagger von Grafenstein and D. Bischoff, Munich, deal with the “Creation of eSport structures in the club”, because as a result of the development of eSports, more and more sports clubs are adding this new sport to their range of services.

eSport is a broad term, after the positioning of the DOSB the generic term is “electronic sports simulation (eSportsimulations) and eGaming. In the field of eSports Simulations, real sports are simulated in the virtual world (e.g. eFootball, eIce Hockey or eTennis). In eGaming, on the other hand, the game/competition form is not based on a real sport.

The article provides a large number of suggestions and advice on how this sport can be organized within an existing sports club and how it can be constructed in accordance with the statutes and the law. First of all, the authors deal with the organization of eSports in a registered club: In a preliminary consideration, the purpose of the association with its direct effect of the recognition of a non-profit status must be considered (§ 52 para. 1 AO). Here, the promotion of sport and also of youth welfare must be considered and formulated in detail if the field of eSports is to be accommodated in an existing registered association in the form of a department. When founding an independent new eSports club, the statutes and their underlying organ must be designed in the same way as for any ordinary club according to § 21 ff. BGB. The authors provide many practical examples of this type of legal design and explain them so that this is a valuable aid in creating a new organization in eSport.

A further structure for the operation with eSports can of course take place in a corporation. Here, also, the known advantages of a corporation compared to an association, offer various possibilities for the creation of personnel structures under exclusion of risks, however, under denial of a non-profit status as with an association. The authors present here the preliminary considerations of legal forms and corporate objects, for example a legal form of the GmbH, the GmbH & Co. KGaA as well as the AG and also provide practical examples.

All in all, the practical and actual circumstances in the individual case must be seen and taken into account when creating eSport structures. In this respect, the article offers an extensive collection of suggestions for the various practical cases.

Case law

ÖOGH

Illegal player violation in ice hockey hobby league

§ 1295 ABGB (Section 1295 of The Austrian Civil Code)

1. The danger associated with the practice of the sport is not illegal if the rules specific to the sport in question are observed Usual minor violations of sports rules, through which bodily injuries are inflicted when practicing a martial art, as well as typical rule violations, are generally not illegal.
2. If a player only wanted to play on the puck, this does not release him from any care towards the opposing player who has the same objective. The rules of the game shall be observed as far as possible, especially those that are intended to prevent injuries. In the specific case, the player has grossly disregarded this rule and an atypical risk has arisen which the rules of the game are intended to prevent (the sender’s guidelines)

ÖOGH

Puck injury in a cordoned-off area of an ice rink

§ 1295

1. The operator of an ice rink has the general duty to protect spectator stands from the risk of a puck flying over the boards by means of appropriate protective devices (Plexiglas protection).
2. The sole fault of the injured party shall be deemed to lie with the injured party if the latter, as a long-time ice hockey player, was aware of the usual course of an ice hockey game and the associated dangers as well as the local conditions in the ice sports facility and therefore knew that, contrary to the state of the art, this facility did not have a safety device made of dimensionally stable transparent material on the long sides of the ice rink. In particular, the team also knew that the puck can be moved beyond the board into the area outside the ice rink during a play. (Guidelines of the sender)

OLG Linz

Obligations to cease and desist under competition law for unauthorized online ticket exchanges

§§ Paragraphs 1, 2(1) of the UWG (Austria)

It is a misleading practice under competition law for market participants if unauthorized online ticket exchanges do not disclose the type of ticket (in particular whether it is a personalized ticket), the original ticket price, the method of calculating the processing fee, the identity of the seller and his entitlement to sell tickets for public events. (guiding principle of the processor)

BGH

On the constitutionality of Section 6a of the German Medicines Act (AMG) in the trade in anabolic steroids

§§ 2, 6 a, 95 AMG

1. The interpretation of the concept of medicinal product under Paragraphs 2 and 95 of the AMG in the sense of Union law has already been clarified by the case-law of the European Court of Justice in such a way as to leave no reasonable doubt.
2. The dynamic reference to the annex of an international agreement does not lead to the conviction of the unconstitutionality of Section 6a (2) sentence 1 AMG for the decisive period. Nor does the legislature’s amendment of the regulatory technique for the Anti-Doping Act change this. (Guidelines of the SpuRt editorial staff)

OLG Frankfurt

Search of a stadium to find prohibited pyrotechnics

Article 13 GG, §§ 38, 40 HSOG

1. A storage room for fan paraphernalia, flags and banners underneath a stadium grandstand may constitute an apartment within the meaning of Article 13 of the Basic Law.
2. An interview with the president of a football club with an alleged connection to pyrotechnic objects can objectively have a risk-increasing effect. (Guiding principles of the SpuRt editorial office)

Hamburg District Court

Due diligence in cricket by untrained players at the audition

§§ Sections 280 (1), 281 (2), 831 BGB

In a cricket training match with tennis balls, the coaches and referees involved have no greater duty of care than in a match played strictly according to cricket rules. In any case, the parties involved are not liable if their conduct is in accordance with the cricket rules. (guiding principle of the SpuRt editorial office)

 

VG Karlsruhe

Residence ban against members of a “violent fan area”

§ Section 27 a (2) PolG BW

On the requirements for a police residence ban against an alleged member of the violent supporters’ area of a football club. (Orientation sentence of the SpuRt editorial office)

Workgroup Hannover

Fixed-term employment contract of a sports director

§ Article 14 TzBfG

The limitation of the employment contract of a sports director of a club in the German football league cannot be effectively justified on the basis of the specific nature of his or her work management pursuant to art. 14 paragraph 1 sentence 2 no. 4 TzBfG. The circumstances cited for professional coaches and professional players cannot be transferred to the sports director because the employment patterns differ too much. (guiding principle of the SpuRt editorial staff)

Permanent Court of Arbitration for the 3rd league at the German Football Association

Liability of clubs for the burning of pyrotechnic articles by fans

§ Section 9 a RuVO/DFB, Section 25 BGB, Article 9(1) GG

1. The no-fault liability of the football club for its supporters, as provided for in Section 9a(1) and (2) RuVO/DFB, is effectively ordered in the context of the DFB’s autonomy as an association
2. If the DFB Control Committee and the DFB courts consistently apply the “Guidelines for the Work of the DFB Control Committee in Sports Court Proceedings against Clubs and Corporations” (Appendix to the RuVO/DFB) when calculating penalties for violations due to the burning of pyrotechnic objects, there is usually no room for the Permanent Court of Arbitration to reduce the fixed fines. (Guiding principles of the SpuRt-editors)