SpuRt 3/2017 2017-11-20T11:51:56+00:00

SpuRt  3/2017

In the editorial “Sport for All” , U. Steiner, Regensburg, emphasizes the importance of the state’s promotion of sport, since sport undoubtedly serves as a role model and imparts valuable competencies. Almost all of the German national constitutions promotion and support for the sport. Eight Federal State Parliaments have enacted sports promotion laws. They assume the broad-based and competition sports in Germany are organized in associations, run in 91,000 gymnastics and sports clubs. However, fewer and fewer children and young people are available for increasingly more sports, and the clubs are also competing with the fitness industry. It is therefore necessary that sporting promotion by the Federal States and municipalities be assisted by clubs. Rightly so, the focus of the laws is to offer free access to the sports facilities in public sponsorship. A new sports promotion law of the sporting Federal State of Thuringia is gratifying, which offers the use of sports and play facilities of public institutions free of charge to the local clubs. It would be desirable in Steiner’s view, however, to make the promotion of sport through rural districts and municipalities a compulsory task in order to promote sport further, even if constitutions and legislations could not guarantee effective sport promotion.

J. Fritschi, Munich introduces new ideas for the case  Heinz Müller, currently at the BAG, in his contribution ” Limiting a work contract in the professional sport from the point of view of the federation autonomy and the European Court of Justice”.

According to Fritschi, the relevant provision of § 14 I, 2 No. 4 TzBfG must, in its interpretation, take into account both the federation autonomy as well as European assessment according to Directive 1999/70 / EC.

The constitutional autonomy as a justification for setting time limits because the associations and players as a contracting partner are closely connected with the right of association, or many stipulations for the contracts resulting from the right of association. Licenses also result from the right of association as well as the maximum duration of the permissible fixed-term contracts. The time limits are necessary in order to ensure the safeguarding of sporting competition and equality of opportunity in areas of transfer rules.

Similarly, Directive 1999/70 / EC as a framework agreement for fixed-term employment contracts is a compulsory requirement. In addition, the specificity of sport in the European Union, including the sports policy objectives under Article 165 of the AFEU, as well as the Commission and Parliament and the White Paper on Sport within the EU – the Commission has, for example, adopted the currently applicable FIFA transfer rules within the usual time limit. The judgments of the EuGH are, of course, also included in the appraisal and evaluation of time-limits.

As a result, the time limit for the player  in the professional sport of the European ranking according to Art. § 14 I, 2 TzBfG do not oppose.

The contribution “UEFA’s restriction of multiple participation in football clubs” by J.H. Punte, Dusseldorf investigates whether Red Bull GmbH has a corresponding influence or control over the clubs RB Leipzig and RB Salzburg, which would lead to the exclusion of one of the two clubs in the Champions League competition according to the UEFA statutes. Punte first examines the effectiveness of the respective UEFA Champions League regulations with regard to their effectiveness (a corresponding regulation is also found in the statutes of the DFL e.V. in Germany). In addition, the protection of the integrity of competition and trust in the honesty of football – both the basis of the regulations – is investigated and the examples of the dangers of violating an integrity are presented. How does it look with the control and influence of the Red Bull GmbH with regard to the mentioned two clubs, asks J. Punte. For this purpose, RB Leipzig and RB Salzburg will be involved in the participation arrangements on the basis of the present statutes and the various persons in the two clubs which are authorized to make decisions in accordance with the Articles of Incorporation. As a result, however, a detailed analysis reveals that RB GmbH is at most capable of exerting influence over its “representatives” in RB Leipzig e.V. on RB Leipzig GmbH. A legally mediated influence on a legally mediated control over Austrian RB Salzburg GmbH is not available. In view of this finding, it is to be expected that both RB Leipzig and RB Salzburg could start in the next season in the UEFA Champions League in the event of their qualification.

The article “The blocking of the South stand – Admissibility of the exclusion of spectators according to sports court judgments in the light of the general terms and conditions” by N. Korff, Wedel deals with the recent barriers of Borussia Dortmund and also other football clubs, according to the judgments and partial rights imposed by the DFB Blocking the stadium because of the massive fan riots. According to the person responsible, this resulted in damages of half a million, apart from the damage of the club’s image. Through such restrictions, approximately 25,000 spectators are excluded from the game. The question is whether the clubs are able to make arrangements through the ticket sales area. Korff is reviewing the terms and conditions of the BVB – with the result that it is agreed here that individual spectators do not come to the stadium and cannot get their money back. It should be pointed out that the AG Frankfurt has given a similar case by means of an interim injunction to the plaintiffs’ spectator (this decision is printed in the same issue) on the grounds that the holder of the permanent ticket has a contractual right to the admission ticket.

Korff examines the terms of the AGB regulations and notes that a content control according to § 307 II No. 1 as well as No. 2 BGB is possible, also a content control to § 307 I BGB.

Korff comes to the conclusion that BVB’s approach to has the risk of partial stadium lock-outs to the spectators due to sports court judgments is not legally permissible. The problem of necessary punishments of the football clubs for their fans on the one hand, the consequences for uninvolved spectators on the other hand, is thus still not clarified.

In “Sport Aktuell” the lawyer E. Kupka Munich, gave an interview on the subject “Is the basic contract – Grundlagenvertrag implemented correctly?”

In the Football League, high revenues are recorded, but amateur clubs still feel disadvantaged by the basic contract. As the spokesman for the initiative “Save the amateur clubs”, founded in January 2017, E. Kupka, formerly a member of the DFL-League board, raised the question of whether the contributions of revenue to the amateur clubs is compatible with the basic contract, especially since the new distribution of the media rights by DFL GmbH until the year 2023.

Controversies of this kind occur in similar situations, also in other sports. In addition to the economic situation, it also has a legal dimension. Concretely, it deals with the effective conclusion of decisions, possible conflicts of interest, as well as the interpretation of the basic contract and its so-called “additional agreement”.

The interview, in which the problem presented in his view, was submitted to the DFB for their comments. The DFB did not want to comment and referred only to its website, where under the heading “News” the official statement “Grundlagenvertrag: Questions and Answers”.

So the discussion will continue.

Jurisdiction

öOGH

Ski accident on a locked race track

§§ 1294, 1311 ABGB

If a skier rides on a locked race track and is thereby injured by a deficient “Schidoo”, neither liability for infringement of the law nor a liability for violation of a traffic safety obligation is given.

CAS

Exclusion of Russian athletes from the Rio 2016 Olympic Games

Rules 22.1 (a) and 22.1A IAAF Competition Rules, Rule 27.3, 40 and 44.4 Olympic Charter

1. The arbitral tribunal notes that Rules 22.1 (a) and 22.1A of the IAAF Competition Rules are legally valid and enforceable under the specific circumstances of the Arbitration Procedure.

2. In accordance with the Olympic Charter, the Russian Olympic Committee is not authorized to nominate Russian Athletes to participate in the Olympic competitions if they are not eligible to participate in IAAF Competition Rules 22.1 (a) and 22.1A.

3. The International Olympic Committee is not a party to the Arbitration Proceedings here, the CAS has no legal jurisdiction to decide whether the International Olympic Committee is entitled to accept the participation of Russian athletes in the 2016 Olympic Games or reject them if they are not entitled to participate in accordance with Rules 22.1 (a) and 22.1A of the IAAF Competition Rules.

CAS

Infringement of the FIFA Ethics Rules (The Blatter case.)

Article 11 of the FIFA Ethics Regulations (version 2006), Articles 3, 5, 9 and 10 (version 2009), Articles 51 and 52 (version)

1. Payments without any contractual basis to other FIFA Officials shall be assessed as an unfair advantage to “third parties”, with no prejudice being required.

2. Proof of personal conviction coincides with “sufficient conviction”, which is higher than the standard of civil law “equally high probability”, but less than the criminal standard “proof that excludes any reasonable doubt”.

3. According to the case-law of the CAS, only limited checks are to be made on association penalties; In the present case, the punishment is not to be regarded as inappropriate, but rather as reasonable and fair.

BGH
Computer fraud through sports betting and game manipulation

§ 263 a StGB, §§ 154 a, 261 StPO

1. A deception equivalency to be assumed in the event of computer fraud (in this case, by unauthorized use of data) is in any case to be affirmed in cases where bets are automatically concluded via the Internet if the data processing programs by the setting of maximum limits for betting of single bets, betting on manipulated games at all or not to the given bets.
2. In these cases, in which the bets pay out the profit calculated according to the agreed quota and thus result in a loss of assets in the amount of the difference between the betting bet and the winnings.

OLG Munich

Exercise of the house right for the protection of media rights

§ § 8 para. 1, 4 no. 4 of the UWG, § 33 para. 1, 19 GWB, § 5 para. 1 RStV, §§ 858 ff, 1004 German Civil Code

1. The legal conformity of accreditation directives to produce video films is based on the

exercise of domestic law. In particular, in association with the clubs in the amateur area, an association can exercise its domestic right which is not restricted to individual games.

2. A contractual provision whereby sports federations require their affiliates to allow the access of media companies for film purposes only, in the event of a valid accreditation of the company does not infringe either the right of fairness or antitrust law.

3. In the position of accreditation directives against the associations there is no unfair, targeted restriction of competitors according to § 4 No. 4 UWG as well as no unjustified hindrance of the media companies in the sense of § 19 paragraph 2 no. 1 GWB.

AG Frankfurt a. M.

Purchase rights of a permanent cardholder after the closure of the spectator

Section 275 of the German Civil Code (BGB)

A sports club is obligated to allow a permanent card holder the right to purchase an entry ticket even if, according to a sports court judgment, a partial exclusion of spectators is made and the place of the permanent card holder is affected; This is the case in any case where a declaration of the claimant is not entitled to make use of his right of purchase for a place not affected by the viewer’s exclusion.

VG Cologne

Federal sports promotion for non-athletic sports federations

Art. 3 I GG, §§ 113 V 1 VwGO; Budget of the Confederation; DOSB promotion system

1. In the absence of a legal regulation, only the provision of funds in the federal budget of the Federal Republic of Germany (i.V.m. The principle of equal treatment accorded to the administrative practice pursued under Article 3 (1) of the Basic Law. (Official motto)

2. If the eligibility requirements are laid down in directives, they must be applied evenly by the competent licensing authority. (Official motto)

3. The administrative court’s examination is limited to whether the application of the respective funding guidelines has affected the equality rate in individual cases or the framework drawn by the legal purpose in the underlying budgetary law / budget has not been respected. (Official Guide)

4. Article 3 (1) of the Basic Law does not confer any entitlement on the part of the applicant, to be treated in the same way as a third party recognized by the licensing authority as being illegally promoted in the past, provided that the earlier, erroneous decision granting authorization is merely an outlier and is not an expression of a former Administrative practice. (Official motto)

DFB Federal Court

Doubtful prognosis for judging decisions in sports criminal proceedings against football clubs

§ 7 a DFB legal and procedural regulation

1. If a football club is responsible for sporting injuries during a current period of probation again, a twofold prognosis decision must be taken, namely the revocation of the probation and the suspension of the new penalty.

2. As a rule, it is to be assumed that in the case of a new misconduct under probation, the expectation which was the basis of the suspension of punishment has not been fulfilled and the penalty suspension has to be revoked. Only in exceptional circumstances can a revocation of the probation be waived.

3. In the case of the possibility of adjourning the suspension of the partial exclusion of the viewer, the expected effect of a partial exclusion of the audience, which is still to be enforced by the revocation of the previous probation, can be considered.