In the editorial “The IOC on the wrong track”, T. Summerer, Munich, denounces the current attitude of the IOC to allow Russian and Belarusian athletes to participate in the 2024 Olympics as “neutral athletes” if they fulfil the requirements of WADA and do not “actively” support the Russian war of aggression in Ukraine.

Summerer brings up the examples of the Olympic gymnastics champion Nagornij, who is an officer in the army, as well as the statement of the Russian Olympic fencing champion Posdnjakow, who calls participation in the war the honor for every Russian athlete and points out that according to estimates, about 80 % of all Russian athletes are members in the Russian army. Russia has violated the Olympic truce several times in the past. A clear stance by the IOC is required here, instead of reveries about a separation between sport and politics. After all, no Russian athlete denies his origins and his acquired patriotism. Governments from 35 countries on four continents have already spoken out against the IOC’s stance, as have other sporting organizations, pointing out that Russia has repeatedly violated the highest values of sport, namely peace and fair play. Unfortunately, it was only recently that the DOSB decided to take a clear stance against the IOC after extensive consultation.

In the article “Honorary office and employment relationship in the light of the § 22 Abs. 3 Alt. 2 MiLoG“, G. Thüsing and L. Bleckmann, Bonn, deal with the unclear legal regulation in the Minimum Wage Act (MiLoG), which is also not clarified by the fact that in § 22 para. 3 Alt. 2 MiLoG states that the law does not apply to volunteers. However, it is not clear whether this provision is intended to be a sectoral exception, which is why the authors attempt to clarify this in their article. In contrast to the employment relationship, which is clearly regulated in section 611 a of the German Civil Code (BGB), the concept of voluntary work is not defined in the Minimum Wage Act (MiLoG) or in any other way. It is further a question, according to the authors, whether there is an honorary employee or whether the two terms are mutually exclusive.

The authors first deal with the concept of honorary office. According to its literal meaning, it seems certain that it should be exercised unpaid, but this is also not a mandatory requirement. The legislature has indeed introduced a declaratory provision in section 22, subsection 3, alt. 2 MiLoG, but assumed that there is no employment relationship if an activity is carried out on a voluntary basis. Irrespective of this, in the opinion of the authors, the concept of voluntary work must be defined in distinction to an employment relationship, which is why the criteria of an employment relationship and voluntary work are examined in detail. A distinction between the two concepts can be made on the basis of whether the employee is bound by instructions, whether the activity is remunerated and, in particular, on the basis of the motive for the activity. There is also the question of whether there is an honorary employee, i.e. the possibility of combining both characteristics. As an interim result, two things are certain for the authors: employees should receive the minimum wage, but volunteers should not, from which it follows at the same time that those who are not employees do not receive a minimum wage. After a further examination of the Labour Office’s understanding of an activity-related characteristic, the authors summarize: Volunteers are, according to § 22 para. 3 Alt. 2 MiLoG, volunteers are excluded from the scope of the Minimum Wage Act. It is nevertheless not clear whether voluntary work and employment are mutually exclusive or whether the possibility of combining a mini-job and voluntary work is possible despite the statutory provision of section 22 (3) alt. 2 MiLoG is possible. A conclusive answer is hardly possible at present, which is why new food for thought is needed.

In another highly topical article, “The new FIFA Football Agent Regulations – a first stocktaking”, Ph. Rohdenburg and St. Schreiber, Cologne/Leipzig, deal with the FIFA regulations that came into force on 9 January 2023, known as the FIFA Football Agent Regulation (FFAR), which the German Football Association (DFB) must implement in national association law by 1 October 2023.

These regulations are intended to achieve more credibility in the professional football industry. The reports on corruption and money laundering scandals of recent years demand this. This will replace the previously applicable regulations of FIFA and the DFB as of 09.01.2023. These new regulations also require close scrutiny because an antitrust lawsuit led by a well-known consulting agency is pending before the Federal Supreme Court (BGH) against the previous set of regulations, in which various previous regulations are already said to be illegal.

The authors first explain the basic concept of the regulations. The previous designation of the player’s representative as “intermediary” or “player agent” is replaced by the term “football agent”, a designation that appears more neutral and is obviously intended to mean that this person is the player’s sole advisor and sole representative of interests. Furthermore, this agent can only act if he has a written representation agreement. Likewise, any representative of the player needs a license issued by FIFA. For transactions with an international dimension, the license regulation is directly applicable as of 01.10.2023. The DFB, on the other hand, has the obligation to implement this regulation in national circumstances until that date. The main addressees of the FFAR regulations, i.e. the players’ representatives who are not members of the DFB, will only be bound by a special implementation provision if they agree to this in a privately autonomously concluded agreement.

The authors go on to explain the most important regulations at a glance. Probably the most important new regulation is the reintroduction of a compulsory licensing system, which certainly clearly tightens the requirements for access to the advisor market and is intended to counteract the negative image of the advisor industry. In addition to the payment of an annual fee, the license is dependent on a successfully passed examination.

Binding remuneration ceilings are also set. If the player’s annual salary exceeds USD 200,000.00, the fee may not exceed 3 % of the player’s total remuneration. A mutual representation, i.e. of the player and a receiving club, is possible if there is an explicit written agreement. Special attention is paid to the representation of minors. Even stricter requirements apply here. For such representation, special further training and a final test are necessary, and the activity of an agent as such is also specially regulated. The prerequisite for an activity is, as mentioned, a written agency contract, which may only be valid for a maximum period of two years and must be amended thereafter. Automatic renewal clauses are invalid, and special explicit regulations apply with regard to extraordinary termination of this contract. In addition, FIFA shall set up a separate Agents Chamber to deal with disputes arising from the mediation process. In addition, all fee payments must be processed through a clearing house specially set up by FIFA, which is intended above all to ensure transparency within the transfer market. The regulations also describe in detail the mandate to the German Football Association (DFB) to implement them nationally. Here, FIFA also gives the national associations the option of enacting possibly stricter regulations that deviate from the FIFA regulations. The problem arises here that the DFB must certainly consider making certain deviations so that they do not contradict mandatory provisions of German law. The authors explain this problem in detail, as it will be significant in the future, especially as a result of the pending antitrust litigation before the BGH.

In summary, it can be said that the new regulations are to be welcomed in principle, as the stricter requirements for counselling players, especially minors, make sense. However, a dispute regarding validity and effectiveness in relation to the mandatory provisions of German law is certainly to be expected here.

In the article “Forbidden Solidarity?”, F. Hestermann, Berlin, examines the prohibition of political behavior for athletes contained in the statutes of sports federations in the tense relationship between sport, politics and law. Do these regulations stand up to scrutiny as to their legality?

By way of introduction, the author provides examples from the recent past, e.g. the wearing of shirts with the inscription “Where is Peng Shuai”, the Chinese tennis player who disappeared for several weeks, likewise the wearing of shirts by the Danish national team with the inscription “Human Rights for All” as well as the “One Love” armband of the captain of the German national team at the World Cup in Qatar. As examples of statutory regulations, reference is made to Rule 50 of the Olympic Charter of the IOC, according to which all kinds of demonstrations of political, religious or radical propaganda are prohibited; likewise, the rule of the German Football Association (DFB) in § 9 No. 1 DFB-RuVO according to which such behavior is also considered unsportsmanlike and worthy of punishment.

With regard to the question of legality, the question arises as to what extent a ban on political behavior stands up to scrutiny as to its legality under German law. First of all, it is a matter of binding the athletes to the regulations in the statutes. In Germany, this is done by means of the so-called athletes’ agreement, i.e. by way of submission through a legal transaction. Furthermore, the conditions of the IOC for participation are that the so-called “Eligibility Conditions Form” must be signed. The granting of a license by the German Football League (DFL) in Germany is also conditional on submission to the regulations of the sports federations.

As far as the verifiability and role of fundamental rights are concerned, the recognition of the law of associations takes place through a private-law agreement. However, according to Article 1 (3), fundamental rights only bind legislation, executive power and jurisdiction, which is why sports associations are in principle not bound. However, according to the case law of the Federal Constitutional Court, private associations with monopoly-like positions are covered. Another issue to be examined is the encroachment of the associations on the sphere of protection of the athletes’ freedom of expression under Article 5 (1) of the Basic Law. Is this encroachment justified? The author examines the justification of the encroachment according to the familiar criteria, namely the limits of freedom of expression and the conflicting rights. Furthermore, the extent to which sports associations are entitled to a right of constitutional rank under Article 9 (1) of the Basic Law (freedom of association). Finally, the criterion of negative freedom of expression and that of life and physical integrity. The conflict between the athletes’ freedom of expression on the one hand and the associations’ freedom of association on the other must therefore be resolved by means of practical concordance. Thus, a compromise can be considered that ensures both the optimal functioning of the sports associations’ freedom of association and the athletes’ freedom of expression, which is to be recognized as an interpretation of the norm that is in conformity with the constitution: According to this, universal political messages that are non-disruptive in nature are exempted from the prohibitions under required political conduct. The norm of § 9 No. 1 DFB-RuVO is therefore to be read in such a way that prohibited political conduct is not to be assumed if only universal political messages are communicated. Thus, sports association regulations that prohibit political behavior in the abstract must be measured against the athletes’ freedom of expression and interpreted in conformity with the constitution, thus limiting this prohibition in favor of the athletes.

A. Oppermann and T. Pörner, Wiesbaden, in their article “The “Füllkrug Case” in the Light of (Sports) Criminal and Administrative Offences Law“, analyze in detail the behavior of the Bundesliga professional Niclas Füllkrug, who, after the end of a football match, held a burning Bengal fire in the air in the East Curve to celebrate his promotion to the first Bundesliga. In this case, offences under core criminal law as well as explosives law, assembly law and sports association law come into consideration.

When Bengalos are ignited, heat of up to 2,500 °C can be reached, thus injuring persons in the vicinity. Therefore, the provisions of section 223, paragraphs 1 and 2, may come into consideration, as well as section 224, paragraph 2 of the Criminal Code. After a detailed examination, the authors come to the conclusion that the subjective side of the offence is missing. The situation is similar when examining breach of the peace under section 121, paragraph 1 of the Criminal Code, so that this element of the offence cannot be fulfilled either. The situation is different for the offences under explosives law. Here, even negligent behavior can at least constitute a misdemeanor.

The authors also examine the existence of possible criminal offences or administrative offences under sections 21 et seq. of the Assembly Act. For this to be the case, a football match would at least have to constitute an assembly or a procession within the meaning of the Assembly Act. After a detailed explanation of all the details, the authors come to the conclusion that these offences are not fulfilled. On the other hand, criminal consequences under sports association law could be feared. According to § 44 no. 1 of the DFB statutes, all forms of unsportsmanlike and unethical conduct as well as violations of the statutes and regulations of the DFB are prosecuted. In this case, therefore, the offence of unsportsmanlike conduct was committed by holding up the Bengalo torch, which is why the player was fined € 25,000.00. According to § 8 No. 1 lit. a DFB-RuVO, even a 6-month ban can be imposed as a punishment, which, however, did not take place in this case.

In the article “The Power of the Publisher in E-Sports”, V. Horst, Darmstadt, explains the position of the publisher who organizes or shapes video games – this is an important difference compared to the rest of e-sports. The publisher is fundamentally nothing other than a book publisher whose task it is to distribute a medium, in this case the video game. The competitive playing of video games is young and modern and still very foreign to many. However, it is nothing other than the continuation of sporting activity, namely a peaceful comparison of performance.

The purpose of this article is to present the fundamental unique selling proposition. There are no equivalent examples of the role of the publisher in the previous structure of traditional sport. Rather, the publisher pursues its own commercial goals in e-sports, which under certain circumstances collide with the self-image of the typical competitive culture of sport. The author explains the concrete manifestation of the publisher’s position of power, i.e. his software-technical possibilities of influence as well as his intervention in the competition scene due to his legal position. This naturally leads to risks and problems. This is because the integrity of the competition is strongly influenced by this, because a performance-based course of a competition cannot take place. Likewise, the publisher’s power also influences the continuity of content as well as organizational events and their continuity.

Thus, the author inevitably comes to the question of how the power of the publisher can be limited by existing laws. The introduction of compulsory contracts and possible compulsory licenses could be considered. Furthermore, compulsory contracts for video game contracts, as well as for competition participation contracts. Contractual obligations would also have to be introduced to restrict updates. Finally, the author identifies precisely the regulatory deficits that exist in this area and could be set by association law or state law: So far, the concerns of e-sports and the considerable consequences of the discontinuation of a competition format are not legally taken into account. Furthermore, the non-commercial e-sports player who is excluded from the use of the video game can hardly invoke a civil law obligation to contract. Finally, the publisher can use wide leeway to redesign his video game in the long term through updates – contract law only insufficiently protects this area here.

Finally, it is concluded that the regulatory deficits can hardly be overcome, which means that state intervention will be necessary under certain circumstances. This is because the right to self-organization that applies in sports law is only partially transferable to e-sports.

Jurisdiction:

ECJ (Advocate General Rantos), Opinion v. 15.12.2022, Case C-333/21 (European Superleague Company S.L. .7. UEFA and FIFA).

Recognition of the “European sports model” by Art. 165 TFEU (European Superleague ./. UEFA)

Art 45, 49, 56, 63, 101, 102, 165 TFEU

1. Articles 101 and 102 TFEU must be interpreted as meaning that they do not preclude Articles 22 and 71 to 73 of the Statutes of the Fédération internationale des football associations (FIFA) and Articles 49 to 51 of the Statutes of the Union of European Football Associations (UEFA). 49 to 51 of the Statutes of the Union des associations européennes de football (UEFA), which provide that the creation of a new pan-European football club competition is subject to a system of prior authorization, since, having regard to the characteristics of the competition envisaged, the restrictive effects of that system are linked to the attainment of legitimate objectives pursued by UEFA and FIFA which are linked to the specific nature of the sport and are proportionate.
2. Articles 101 and 102 TFEU must be interpreted as not prohibiting FIFA, UEFA, their member associations or their national lieutenants from threatening to impose sanctions on the clubs belonging to those associations if they participate in a project to create a new pan-European football club competition which could jeopardize the legitimate objectives pursued by those associations of which they are members. However, exclusion sanctions against players who are not involved in the project in question are disproportionate, in particular as regards their exclusion from national teams.
3. Articles 101 and 102 TFEU must be interpreted as not precluding Articles 67 and 68 of the FIFA Statutes in so far as the restrictions relating to the exclusive commercialization of the rights to the competitions organized by FIFA and UEFA are related and proportionate to the pursuit of legitimate objectives inherent in the specific nature of sport. Moreover, it is for the referring court to determine the extent to which the articles at issue may be covered by the exemption under Article 101(3) TFEU or whether there is an objective justification for that conduct within the meaning of Article 102 TFEU.
4. Articles 45, 49, 56 and 63 TFEU must be interpreted as not precluding Articles 22 and 71 to 73 of the FIFA Statutes and Articles 49 and 51 of the UEFA Statutes, which provide that the creation of a new pan-European football club competition is subject to a system of prior authorization, provided that that requirement is appropriate and necessary having regard to the specific characteristics of the competition envisaged. (Official proposed answers to the national court’s questions for a preliminary ruling)

Austrian Supreme Court, Urt. v. 18.10.2022, Ref. 4 Ob 59/22p (final).

Inadmissible general terms and conditions clauses in fitness studio contracts.

§§ 864 a, 879 ABGB; §§ 6, 28 ff. KSchG

1. The 16-month commitment of its customers by a fitness studio operator in its fitness studio contract used as a form is grossly disadvantageous. The description of a twelve-month waiver of termination as a “minimum contract period”, to which the notice period must be added, is non-transparent.
2. An extraordinary right of termination of the fitness studio operator provided for in the GTCs, which also permits its termination in the case of truthful statements or personal opinions of the customers, constitutes an unobjective restriction of the freedom of opinion and is grossly disadvantageous within the meaning of § 879 para. 3 ABGB.
3. A semi-annual “service fee” contained in general terms and conditions, which provides for an additional fee not merely to compensate for an additional service required due to special features in the individual case, but to compensate for a service normally associated with the fulfilment of contractual obligations, constitutes a fee clause with effects on the actual promise of performance and is thus subject to content control pursuant to § 879 para. 3 ABGB. (Guiding principles of the SpuRt editorial office)

Administrative Court of Appeal Paris, Urt. v. 16.12.2022, ref. 21PA04991

France: No liability for covid-related changes to the league fixture list

Art. 50-1 French. Constitution, Artt. L.131-14, L.131-16, L132-1, R.132-4 SportGB (Code du sport), Art. L3131-19 Health Code (Code de la santé publique), Art. L.761-1 JustizGB (Code de justice), Art. 7 Loi du 17 juin 2020 relative à diverses dispositions liées à la crise sanitaire.

The French State and the Ligue du football professionnel (LFP) in France are not liable for any damage suffered by clubs as a result of the measures taken by the State in the context of the containment of the Corona pandemic, the premature termination of the League 1 championship and the determination of the table according to the so-called quotient method. (Guiding principle of the SpuRt editorial office)

FIFA-DCR, Judg. v. 19.5.2022, ref. REF FPSD-3626 (“legally binding”)

Salary entitlement of a female player during pregnancy

Art. 18quater FIFA-RSTS; International Labour Organisation Convention No. 183

1. If a professional footballer and her employing club agree that the player will not stay at her place of work (here: Lyon) but with her family in her home country (here: Iceland) during her pregnancy, Art. 18quater para. 4 lit. a) cannot be applied because the parties agree that the player will not perform any sporting work during this period (para. 185).
2. In such a case, the employer is obliged to transparently explain to the employee the consequences under labor law resulting from this agreement. This applies in particular to the existence and the amount of the remuneration entitlement (marginal no. 189).
3. In order for Art. 18quater para. 4 lit. b) to apply, the employer must offer the employee an alternative employment opportunity within the meaning of the provision (marg. no. 190). If he fails to do so, he does not owe the player the reduced remuneration, but the full remuneration (marginal no. 193). (Guiding principles of the SpuRt editorial office).

OLG Frankfurt a. M., decision of 29.11.2022, ref. 16 W 52/22 (final; previously: LG Frankfurt am Main, decision of 21.5.2019, ref. 2-34 O 255/22).

Consent to dissemination of football images as club player also includes images as national player

§§ Sections 23, 23 KunstUrhG; Sections 823 1004 BGB.

If a professional football player gives his consent to the use of his name and likeness for trading cards, this consent also includes images of the player showing him as a national player (BeckRS editorial guideline).

OLG Düsseldorf, final judgement v. 1.2.2023, ref. VI U (Kart) 7/21 (not final; previously: LG Köln, judgement v. 9.3.2021, ref. 33 O 98/20 (Kart).

Transitional period under cartel law in the event of a change in association licensing rules

Art. 9 para. 1 GG; Art. 101, 102, TFEU; Sections 241 para. 2, 242, 280 para. 1, 311 BGB; Sections 1, 19, 33 a GWB

1. The exclusion of the review of the classification decision of an athlete made by the IPC provided for in the agreements with the International Paralympic Committee (IPC) “IPC Eligibility Agreement – Athlete” and “Athlete Evaluation Agreement Form” violates § 19 GWB and is therefore null and void pursuant to § 134 BGB because the exclusion of the ordinary legal process is only possible if instead of the state court proceedings an arbitration procedure is agreed which guarantees effective legal protection and meets minimum legal standards. This is not the case with an internal panel of the IPC.
2. The new IPC Classification Rules and Regulations for the classification of para-athletes, which have been in force since 1.1.2018, have been formally established in an orderly manner and are also fundamentally unobjectionable from a substantive law point of view.
3. A monopoly sports association that changes its competition rules (here: the classification rules for admission to competitions) without granting a transitional period and thereby prevents an athlete from being able to pursue his or her professional sport contrary to the previous set of rules commits a breach of contractual duty within the meaning of § 280 para. 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) that obliges it to pay damages, because the athlete must have the opportunity to adjust to this change.
4. This transitional period required by antitrust law begins with the athlete’s definitive knowledge that he will no longer be able to practice his previous professional sport due to the changes. It is based on the period of time the athlete needs for his professional reorientation. (Guidelines of the SpuRt editorial office)

Leipzig Regional Court, decision of 21.11.2022, ref. no. 5 Qs 62/22 (final and absolute)

Risk of repetition in the case of a DNA identification order

§81 g para. 1 p. 1 stop

The mere participation of a football fan, the intensity of which has not been determined, in acts of violence committed by a group against police forces on the occasion of a football match is not sufficient in itself, when taking into account his fundamental right to informational self-determination, for the assumption of a risk of repetition within the meaning of section 81g of the Code of Criminal Procedure to order a DNA identification. This applies in particular if the accused has no previous convictions and has not been involved in violent offences. (Editorial guideline of the SpuRt editorial office)

Cologne Regional Court, Judgement of 7.12.2022, Case No. 3 O 176/19 (not legally binding)

Compensation for pain and suffering due to landing during a tandem parachute jump

§§ 33, 45, 49b LuftVG; §§ 305, 309 BGB; § 287 ZPO

1. If the passenger is injured in the course of a tandem passenger parachute jump, the parachute company’s liability is also determined in accordance with §§ 44 ff. LuftVG.
2. A contract of carriage within the meaning of § 45 LuftVG exists if the service consists of transport by aircraft to the starting point to be reached for the parachute jump at a sufficient altitude.
3. In the case of a tandem passenger parachute jump, the contract of carriage by air ends only as soon as the passenger is able to control his or her own destiny, i.e. is on the ground and is no longer in the sphere of care of the air carrier. (Guiding principles of the SpuRt editorial office)

LG Frankfurt am Main, Urt. v. 25.1.2023, Ref. 2-16 O 22/21 (not legally binding).

Discrimination by age limit for DFB elite referees (Gräfe case)

§§ 1, 2, 6, 8, 10, 15 AGG

1.Even if there is no evidence in the DFB regulations for a rigid age limit of 47 years for DFB elite referees, the common DFB practice that reaching this age almost invariably leads to a different treatment of an applicant for the list of referees compared to younger applicants constitutes discrimination within the meaning of § 1 AGG on grounds of age.

2.This discrimination is also not justified by objective reasons within the meaning of §§ 8, 10 AGG. It is true that such an age limit may be suitable for achieving the legitimate aims of promoting young referees and maintaining a balanced age structure on the elite list. However, it is not necessary because the DFB has equally effective but less intrusive means at its disposal in the form of performance tests and certificates, which, moreover, are more accurately linked to personal aptitude. more appropriately linked to the personal suitability of the referee, namely to the physical characteristics of the age and not the “age on paper”.

3.In determining the compensation pursuant to § 15.2 AGG for the non-material damage suffered by the disadvantaged party, it must be weighed up that the disadvantage suffered by the plaintiff at the hands of the DFB, which has a strong economy and holds a monopoly position, is fundamentally serious because it was deliberate, without thoroughgoing insight and without a suitable approach to justification, which is why a high degree of fault is to be assumed.

4.In order to claim damages for material loss under section 15 (1) of the General Equal Treatment Act, the disadvantaged party must prove that he or she would actually have been taken into account without the disadvantage. (Guiding principles of the SpuRt editorial office)

BVerwG, Judg. v. 20.9.2022, Az. 9 C 2.22 (previously: OVG Münster, Urt. v. 27.8.2020, Az. 14 A 2275/19) (legally binding).

Municipal betting office tax inadmissible

Art. 105 para. 2 a GG; §§ 10, 11, 17 para. 2 RennwLottG (old version); § 4 no. 9 lit. b UStG

The levying of a municipal betting office tax is inadmissible because such a tax is equivalent to the taxes specifically regulated under federal law in the Racing Betting and Lotteries Act (racing betting and sports betting taxes) in accordance with Article 105.2 a of the Basic Law. (Official lead sentence)

BFH, decision of 3.8.2022, ref. XI R 11/19 (preceding: Lower Saxony Tax Court, judgment of 25.4.2019, ref. 11 K 134/17) (final and absolute)

Sporting events as special-purpose operations under § 67 a para. 3 sentence 1 AO

§12 para 2 no 8 letter a UStG; § 67 a para 3 sentence 1 no 1, § 67 a para 3 sentence 1 no 2, § 67 a para 3 sentence 2, § 67 a para 1 sentence 1 AO; Art 98 EGRL 112/2006; UStG VZ 2010; UStG VZ 2011

If, due to a lack of sufficient records, it is not comprehensible to what extent expenses were actually incurred by the individual sportsmen and sportswomen, and if it is therefore not verifiable whether the payment made to all sportsmen and sportswomen does not exceed an expense allowance, this precludes the assumption of a special-purpose enterprise pursuant to section 67 a, subsection 3, sentence 1 of the German Fiscal Code (AO). (Official guiding principle)

SprK of the LSB NRW, decision of 13.12.2022, ref. SprK 01/2022 (legally binding)

One-place principle at the LSB NRW (archers)

Art 9 (1) GG; §§ 25, 826 BGB; § 20 (5) GWB; § 7 statutes LSB NRW

1.If the statutes of an association determine that the general meeting is responsible for the admission of new members, the association’s courts cannot oblige the association, as the defendant, to admit the new member, because this decision is reserved for the general meeting. However, this does not prevent the possibility of an application for a declaratory judgement.

2.The concrete formulation of the one-place principle in § 7 (4) and (5) of the statutes of the LSB NRW (foundation of a joint umbrella association by the old and new member and admission of this new umbrella association if an association representing the sport is already a member) is unlawful because this does not constitute a reasonable substitute for the full membership applied for by the applicant.

3. The statutory criterion of the necessity of a minimum degree of organization (“power”) is also lawful in consideration of the monopoly position of the LSB NRW and entitles the LSB NRW to reject an application for membership. (Guiding principles of the SpuRt editorial office)