In the editorial “Attitude” J. Orth, Cologne, talks about standing up for ethical values, which is closely connected to fairness in sport, especially as a part of the rules of sport. Therefore, it is precisely the ethical values of sportsmen and sports organisers that should be upheld. There are examples of this time and again, such as the withdrawal of the beach volleyball pros from the World- tournament in Qatar because of clothing regulations.

Sport must show more attitude in the future, especially in the fight against right-wing extremism. Sustainability is appropriate here, because sport is also committed to this attitude, namely equality, reconciliation, friendship and respect, as well as respect in competition. Sport stands for our pluralistic society, it must show more attitude than before and stand up for these values.

In the article “Urgent legal protection in sport”, M. Schneider and D. Bischoff, Munich, provide a guideline for the review of decisions on the organisation of competitions, taking into account the autonomy of the associations. This is still topical because the dispute of the club “Türkgücü München” against the Bavarian Football Association and the German Football Association showed that the legal issues of interim legal protection in sports have not yet been finally worked out and recognised. The focal point here is again and again the scope of the autonomy of associations in Article 9 of the Basic Law with regard to monopolists in the sports sector and their possible abuse under Section 19 of the ARC.

In this context, sportsmen and sports associations always fight for admission to competition, for the amendment of sporting assessments or the annulment of association decisions — in interim injunction proceedings, the question of fundamental admissibility and the reasonable justification.

The guide begins with an examination of the arbitration defence under section 1033 of the Code of Civil Procedure, according to which the interim protection of the ordinary courts can be excluded, but must be clearly and unambiguously agreed, otherwise the ordinary court remains competent for interim protection. Furthermore, the aspect of “anticipation of the main issue” is always problematic, especially in the fast-moving sports business, this is a central issue of the dispute, which is explained in detail by the authors, as are the special urgency requirements and the necessity of a comprehensive weighing of all interests when examining the grounds for an injunction.

The complex of injunctive Protection deals with the spillover effect of the autonomy of associations in Article 9 of the Basic Law and also with the judicial standard of review and the special features of the antitrust aspects in sport, which are explained in particular on the basis of the leading decisions of the ECJ, especially in “Walrave” and “Meca-Medina”. In conclusion, the authors state that it is to be hoped that the courts will deal with this complex problem in an even more differentiated manner problem situation arising from protectable interests and the particular concrete consequences of the urgent decisions. In any case, premature legal protection harms all parties involved, as the case of the dispute between the club “Türkgücü München” and the football associations mentioned at the beginning showed.

In the article “The remuneration obligation of (football) clubs during the coronary pandemic”), M. Henseler, Cologne, addresses the loss of income of football clubs as a result of the so-called “ghost matches” and makes suggestions as to how the consequences of such exceptional situations can at least be contained in the future through appropriate contractual arrangements.

Of course, contractual relationships in team sports are standard employment relationships, which is why the question of the employer’s obligation to pay compensation in the pandemic situation very quickly brings up the importance of the doctrine of operational risk under section 615 of the German Civil Code (BGB) and the supreme court case law on the subject. Although the prohibition of gaming operations by government measures is likely to be a special case, the prevailing view is that an operating risk is realised here, with the consequence that the clubs are obliged to pay compensation.

What possibilities are there for adjusting the contract? The introduction of short-time work does not offer a solution; the same applies to a notice of termination of a change of contract and to an adjustment of the contract by way of § 313 BGB (German Civil Code), because in the case of a temporary adjustment of the contract further problems arise. Thus, the only remaining options are those for drafting new contracts, which the author then lists.

First of all, the fundamental waiver of Section 615 of the German Civil Code is discussed, which poses problems especially in the case of blank-form employment contracts, likewise in the implementation in practice. This is because the mutual balancing of interests in sport poses difficulties; however, it is possible both in the case of a complete cessation of league operations and in the case of playing in front of empty stands. In the author’s opinion, the most effective and probably most sensible option is to agree on a reservation of revocation, whereby the club reserves the right to withhold part of the remuneration promised to the player if certain conditions are met. In order to be effective, such a reservation is bound by the provisions of § 307 (3) BGB and § 308 no. 4 BGB. In particular, this reservation must be made transparently, which is why it is probably advisable not to use such a provision in a blank-form contract. It will of course be expedient to agree such a reservation only with regard to a part of the remuneration, in particular a part of the basic remuneration. Likewise, additionally granted bonus-payments may fall under such a reservation, but the principles developed by the Federal Labour Court must be taken into account, in particular the 25% limit must not be exceeded. In practice, there may be problems, because in addition to the player, the player’s advisor must also be convinced to conclude such an agreement. It therefore remains  to be seen what solutions will be chosen here. After all, the employer is not always the party that dictates the content of the contract. However, in minimising the operational risk, the club is also dependent on the players’ cooperation, so both sides have to make concessions.

The article “Statute of Limitations in the European Football-Financial-Fairplay – ManCity ./. UEFA” by H. Grothe, Berlin, deals with the meaning and effect of the limitation period in Art. 37 of the UEFA regulations on club financing. The author scrutinices look at the case of Man City v. UEFA, in which UEFA sanctioned the football club for serious financial violations. The club was overwhelmingly successful in its appeal against this at CAS because it invoked the statute of limitations due to the large lapse of time, as the club’s offending contributions went back to 2011. It was therefore extremely difficult to compile the complex contributions and investments. Although UEFA had already complained in 2013 and 2014 and initiated investigations in 2019, the misconduct had occurred more than 5 years ago, the standard limitation period.

The author examines in detail the calculation of the limitation period, namely the start and expiry of the period, which is not clearly defined in the regulations. The limits of the interpretation of the wording are examined, as well as the retroactive calculation from a certain point in time into the past and its inhibition. Finally, the respective national laws can also have an effect on the time limits; in the present case, Swiss private law was applied due to the UEFA regulations.

In conclusion, the author points out that UEFA’s action against Man City was a bold step compared to previous proceedings in the past. Even if this procedure was not successful, the 5-year time limit of Art. 37 UEFA regulations can be maintained, but it should be made clear that UEFA’s investigations can inhibit the expiry of the time limit once the club concerned has been notified of the investigation.

The contribution ” The Modification of the implementation criteria in Sports” by P. Meier, Würzburg, deals with the highly topical question: Are club regulations unalterable or may the association adapt them? Especially in the current situation of the pandemic, the question of whether rules for competitions, league systems or even qualification criteria can be changed after the start of the season is particularly important; courts have already had to deal with this recently.

The starting point is the legal assessment of the federation rule — it has been disputed for a long time. Case law and literature advocate the modified norm theory, according to which the members of the association are directly bound. This dispute can be left aside because the norm theory has no meaning in modern sport when it comes to the relationship between clubs and associations, whose individuals are usually not members themselves. Athletes are usually bound to the federation’s rules by so-called rule recognition contracts in order to obtain the right to start competitions.

The previous statement on the federations’ power of amendment merely states a unanimous agreement that clubs and federations have to comply with the regulations set by them. This also applies to qualifications for the following season, in particular promotion and relegation and other implementation regulations. However, this does not yet lead to a compelling consequence on the question posed at the beginning, whether existing regulations may be adapted after the start of the competition, but before its end. There is a widespread denial of the right to make adjustments, which is based on the constitutional prohibition of retroactivity.

However, since constitutional law considerations are not directly applied to relations between private individuals, considerations must be derived from civil law criteria: Since civil law establishes an equal order of all persons involved, an amendment or adjustment can accordingly only take place with the consent of all parties involved. This may involve a contractual agreement to a change, which is examined and considered in detail by the author. Similarly, in the private sphere, change clauses can be agreed between the parties (for example, the power to determine performance, §§ 315 ff. BGB). The author does consider amendment clauses in association regulations by way of rule recognition agreements and GTCs under §§ 305 ff. BGB, but then excludes them. In addition, a further power to amend or adapt could arise from a statutory provision, which the author also examines, e.g. based on §§ 242 and 313 BGB (fundamental change of circumstances). Quite comparable to natural disasters, political upheavals and states of war, which make it impossible to hold competitions, the author sees as prerequisites for a change and adaptation of the regulations. The various consequences of this, i.e. postponements and extensions of competitions, the abandonment of competitions as well as the qualification for further competitions are discussed and explained in detail. The principles of equal opportunities for all participants as well as absolute freedom from discretionary error must be taken into account.

In the contribution “Ways to avoid a knowledge transfer in the case of a short-term change of coach”, P. S. Fischinger, Mannheim, supplements the contribution by Stahm in SpuRt 2021, 11 ff. Stahm’s contribution illuminated the problem of short-term changes of head coaches to league competitors during the current situation and elaborated on the knowledge transfers that are not insignificant in such changes, which definitely bring advantages to the new club. This impairment of fair competition, a central element of any sporting competition, must be avoided. Fischinger adds to the problems already mentioned by Stahm. First, the old club can prevent a short-term transfer of the released coach to a competitor by refusing to agree to the termination agreement. This in turn, the released coach could retaliate by giving extraordinary notice of termination of his own contract in accordance with § 626 BGB, possibly on the grounds of an unjustified release. As an alternative, the club could agree on a post-contractual non-competition clause in a termination agreement to be concluded. In this non-competition clause, the protection of trade secrets (which undoubtedly include the knowledge gained in coaching the previous team and its strengths and weaknesses) could be agreed. In this context, the provision of § 74 a I HGB must be taken into account in particular. Thus, a transfer of knowledge detrimental to the previous club can be achieved by agreeing on a precise post-contractual non-competition clause.

Jurisdiction

ÖOGH, Appeal Judgement

Liability of a skier for a collision due to a fall?

Art. 4 para. 1 Rome II Regulation, §§ 1295 ff. ABGB, FIS Rules

A collision with another skier, which occurred as a result of a fall and after a wide and laterally offset slide, is not typical of a negligent misconduct prior to the fall, which favours a collision, notwithstanding the tilting squared which caused the fall.

BGer

Bias of a CAS arbitrator who tweeted racist comments

Art. 30 BV, Art. 54, 66, 68, 100, 121, 124 BGG, Art. 176, 190a IPRG, R34 CAS Procedural Rules, Art. 2.5 FINA Doping Control Rules

1. Short messages posted on the short messaging service Twitter (“tweets”) may justify the removal of a CAS arbitrator from a specific proceeding if his tweets provide sufficient indications that the independence of that arbitrator may be compromised in the specific proceeding.
2. According to the case law of the ECtHR (Pechstein), private arbitral tribunals must select their arbitrators according to similar criteria as state courts select their judges. In particular, they must meet comparable standards of independence and impartiality. Independence and impartiality must not only be objectively-structurally guaranteed, but also subjectively-visible and perceptible.
3. CAS arbitrators may participate in political debates, but must exercise restraint in their contributions commensurate with their function and, in particular, must ensure that no proceedings in which they are involved are prejudiced in such a way that their independence and impartiality may be called into question. (Editorial of the sender)

BGH

Legal duty of safety obligations of the property owner at the horse show

§§ 426, 823 para. 1, 840 BGB, § 256 para. 1 ZPO, § 86 para. 1 VVG

1. The duty of a landowner to ensure safety for children (in this case: the organisation of a horse show).
2. The assertion of a present legal relationship between the parties is a special procedural requirement for an action for a declaratory complaint. For a present legal relationship, relationships between the parties are sufficient which already form the basis of certain claims at the time the action is brought. A legal relationship that does not yet exist but can only arise in the future under conditions whose occurrence is still completely open is not sufficient. The mere prospect of acquiring a claim in the near future does not establish a present legal relationship (here: payments to be made in the future by a liability insurer and transfer of claims under § 86 (1) sentence 1 VVG). (Official guidelines)

Karlsruhe Higher Regional Court

Terminability of marketing agency agreements

§§ Sections 305(1), 611, 626, 627(1) of the German Civil Code (BGB)

1. In the case of a sports marketing agency contract, “services of a higher nature” within the meaning of § 627(1) BGB are agreed because the activities owed require particularly qualified skills and knowledge in the field of professional sports marketing.
2. The right of termination under section 627(1) BGB can be excluded by contract. 3.
3. A clause in general terms and conditions is not “posed” within the meaning of section 305(1) sentence 1 of the BGB if its inclusion corresponds to the state of negotiations which have already begun and which have also been significantly influenced by the contractual partner burdened by the clause.
4. For the negotiation of a concrete contractual condition (here: exclusion of the right to terminate the contract) within the meaning of Section 305 (1) sentence 3 BGB, it is sufficient that the negotiation of the parties extends to areas which directly presuppose this contractual condition in factual terms and that the parties have also included this condition in their intention to formulate the legal transaction. It is not necessary that the contractual condition is explicitly addressed or that its content is changed.
5. On the extraordinary right to terminate a sports marketing agency contract. (Guiding principles of the SpuRt editorial office)

LG Munich I

Unfair competition in the resale of personalised football tickets

§ Sections 3 (2) and (3), 4 UWG

1. The so-called “surreptitious purchase” of tickets of a well-known football team in order to resell them without authorisation to interested parties contrary to the organiser’s general terms and conditions despite personalisation constitutes a deliberate obstruction within the meaning of § 4 No. 4 UWG.
2. The resale of tickets acquired by so-called “surreptitious purchase” may be deemed to constitute deception as to the marketability of the tickets.
3. The request to tell the untruth after a ticket sale during admission controls (here: the customer was invited by a certain company) constitutes a disregard of entrepreneurial diligence. (Editorial guidelines)

Mannheim Regional Court

No interim injunction against the resumption of the Regionalliga Südwest

§§ 315 BGB, 1032 ZPO

1. The agreements in the admission contract for the Southwest Regional League, which also provide for the arbitration tribunal provided for therein to be competent to issue interim regulations, do not thereby exclude interim legal protection by the ordinary courts with sufficient clarity, so that applications for interim injunctions can still be permissibly brought before them.
2. The decision to resume the men’s football regional league Southwest as of 11 December 2020 is not inequitable within the meaning of § 315.3 sentence 1 BGB. (Guiding principles of the SpuRt editorial office)

Mainz Regional Court

No jurisdiction of the Cartel Chamber for admission claim against monopoly association

§§ Sections 826 BGB, 20 (5), 87 GWB, 281 ZPO

An undifferentiated inclusion of sports law disputes as cartel cases would call into question the characteristic of cartel law as a specifically economic field of law if this would lead to a boundless extension of the Act against Restraints of Competition to persons who are not in any economic competition at all but pursue non-material purposes. (Guiding principle of the SpuRt editorial office)

ArbG Munich

Club’s obligation to apply for licence for professional ice hockey players

• § Sections 241 (2), 611 (1), 611 a BGB, Section 62 (2) ArbGG, Sections 935, 940 ZPO

1. A professional ice hockey player can demand by way of an interim injunction that his employer make the necessary application for the granting of a licence of the German Ice Hockey League for the coming season, because this licence is a condition for the validity of the employment contract. This connection also justifies the issuing of a performance injunction. Furthermore, this results in the urgency necessary in interim injunction proceedings when the start of the season is imminent.
2. The rejection by an individual professional player of a club-internal “voluntary” salary change agreement prompted by the Covid-19 pandemic does not justify his suspension. (Editorial Guidelines of the SpuRt Editorial Office)

ArbG Offenbach am Main

Extension option of a football player’s employment contract in the event of termination of the season due to Covid-19

§§ Sections 162 (1), 313 (1), 611 a, 622 (6) of the German Civil Code (BGB)

1. A player under contract has no right to be used in matches in order to reach the minimum number of appearances for an extension of his employment contract. The only limit here is the player’s disloyal failure to play.
2. Despite the termination of the season due to the Corona pandemic, there is no unreasonableness in holding on to an extension option under the employment contract. A claim for adjustment of the contract pursuant to § 313 (1) BGB is therefore not given. (Guiding principles of the SpuRt editorial office)

Düsseldorf Tax Court

Contributions to sports disability insurance not income-related expenses

§§ Sections 9 (1), 4 (4), 10 (1) No. 2, No. 3 or No. 3 a EstG

Contributions of a professional football player to sports disability insurance are not deductible as income-related expenses in his income from employment. (Guiding principle of the SpuRt editorial office)