SpuRt 4/2017

In the Editorial “Wearables – Blessings or Curse?” K. Vieweg / Erlangen points out the risks of the so-called wearables which records health data from athletes. These helpful instruments should in any case certainly meet the high requirements of the Medical Devices Act.

The manufacturers must provide the technical prerequisites for a data protection-friendly use, i.e. user-friendly presets, the possibility to suppress data transfer as well as an anonymous or pseudonymous data expansion.

In the article “Social Media in Professional Football – Compulsive Violations of the Player and Claims of the Club”, M. Seip / Frankfurt deals with the use of social media by players and clubs – both benefit from this, but there are always conflicts in the context of self-marketing. Seip investigates the criteria of respect to obligation to work, loyalty, the interests of the players and the interests of the club. In such cases, the club may consider the termination of the game contract, at least omission and removal as well as damages. As a result, the respective club will have to deal with contractual penalties and injunctive and remedial claims in case of breaches of duty by the players and, in exceptional cases, also claims for damages.

In the article “Recourse  against individual interferents after conviction of a  total penalty – a case for the “total liability and limited liability “, A. Scheuch / Münster again deals with the interchangeable history of the question of a regression of the club against individual disruption after a federation decision by the DFB.

Finally, in its decision of 22.09.2016, the Federal Court of Justice (BGH) had affirmed the purpose of protection, which the OLG now justified in its decision of 09.03.2017 (in this issue) the liability of the spectator for this reason, however, only a part of the claim is considered justified. Now the BGH has to decide again, this is now the 5th instance. The article deals with the grounds of the Cologne Higher Regional Court of Cologne from 09.03.2017.

Scheuch notes at the outset that there is a fundamental possibility of an all-encompassing repression of association, for which there are several possibilities. One could consider whether it was a question of the liability of the perpetrator of the highest individual punishment, while at the same time permitting the other perpetrators to find a partial debt on the basis of the shares of the individual sentences in an individual penalty with a maximum cap according to the proportion of the sum of the individual sentences in the internal relationship.

These complicated weighing-up processes must now be taken into account by the BGH in its decision-making process. In addition to these considerations within a total penalty, which are clarified in the basic questions for the practice, however, the penalties provided by the clubs in the AGB`s are also to be included, which, however, is again problematic. The decision of the Federal Court of Justice (BGH) should be not easy, but it is necessary here to put forward a deeper idea of ​​a fair distribution of an association penalty, which is an opportunity here. The BGH should also be aware that its judgment could also serve as a model for other constellations, for example in the case of several false advice from different persons and a consequent imposition of a total fine – for example, in the distribution of cartel fines to directors.

In her contribution “Yesterday’s Recordings, Today and Tomorrow”, A. Jakob / Frankfurt describes the European Athletics Federation’s proposal to regain the credibility of European records – the subject of European records and world records for international athletics.

At the beginning of 2017, a project group was established at the instigation of the European Athletics Federation (EAA), which should examine the credibility of existing European records with simultaneous necessary recommendations for action. It should be ensured that the generation of today’s athletes establishes records under the same conditions as the existing European and world records. Credibility is necessary.

The EAA project group has submitted various proposals for the elimination of previous records, if these have been carried out under unfair conditions, or under a change in the technical rules. Jakob examines the practical consequences of the implementation of these proposals as well as the resulting legal questions, the legal nature of records, in particular their definition, and finally the practical record requirements and the topic of the record as a personality right of the athlete. Likewise, the prerequisites for the detection of a previous record have to be established. Obviously there is no uniform legal practice for this, and in any case an absolutely secure verification of the created record must take place with the corresponding regulations.

All in all, it should be noted that the EAA’s proposals are in principle feasible, but there is still a need for clarification requirements and a need for coordination. In any event, the proposed measures can only lead to the credibility of sporting top-level services if, finally, conditions for the recognition of records are presented in a transparent manner.

In the article “Private accident insurance for indoor climbing”, B. Rudisch / Innsbruck comments on the decision of the OGH of 9.11.2016, printed in SpuRt  2017, 64. This decision was certainly necessary as the climbing indoors in the last 10 years to a remarkable broad sport, therefore the accident insurance has to be ensured. The author states in his commentary that it is necessary that climbing in a hall is indistinguishable from the other risks of climbing in the open, and also from other risky sports where the insurers have provided appropriate disclaimer in their conditions. Such risks can not be compared with the climbing in the hall.

In “SpuRt aktuell“, F. Hellmund, Brussels, in his contribution “From the EU Office of Sport – Interdependence and Reality: The new Work Plan of the European Ministers of Sport 2017 – 2020″ presents the details of this work plan In three priority areas:

Ø integrity of the sport,
Ø economic dimension of sport and leisure
Ø Sports and Society.

For each of these priorities, a number of core issues and work structures have been specified in the annex to the plan. For the first half of 2019, a mid-term evaluation is foreseen.

The changes in the new work plan show that the Member States at least want to go in a new direction in terms of the structures and thus address the criticism of a lack of flexibility. The following proposals should be mentioned:

Flexibility in the selection of topics and work structures, cluster meetings and meetings of interested Member States.

The success of this work plan of European Labor Ministers will have to be measured by whether it actually offers added value for sport. This was not the case with the implementation of the work plans so far, but there were numerous opinions and recommendations, which were hard pressed in the expert groups but which did not involve any of the following activities. There is therefore the hope that European sport policy will not be subject to the reflexion of judging sport in the first line from the point of view of professional sport, but on the basis of the ideas demanded in the 2007 White Paper on Sport as a horizontal theme across all sectors to treat. Under the keyword “Mainstreaming of Sports”, overlap with policy fields such as aid, health, discussion, environment etc. are examined and elaborated.

Jurisdiction

öOGH

Requirement of a federation of associations against a member association of a national association as an association dispute

§ 8 VerG; § 42 JN

1. The inadmissibility of the legal process on the grounds of non-appeal of the conciliation body is not curable and is not subject to the dispute as to whether a conciliation procedure is being carried out or not.

2. A dispute arising out of the association may also be present if the structure of the association is organized in several stages and the defendant party is not a member of the complaining association itself but of a member association of the complaining association. The arbitration body of the complaining association is then responsible.

öBVerwG

Statutory accident insurance for participants in international competitions

Section 3, 4 ASVG

Athletes who are sent abroad by a sports federation to an international, several-week tournament are subject to the compulsory insurance according to the time of the tournament. § 4 para. 2 ASVG and are personally dependent employees of the sports association.

CAS

Fault of an athlete in case of error of the team doctor

Art. 2.1 IOC ADR, Art. 9 WADA Code

1. Even if an athlete is unable to choose the team doctor, his or her own decision is whether he follows the advice of the team mate.

  1. The principle of proportionality must be complied with, in the determination of a sanction for a doping offense, which, however, can lead to the exclusion of a doping sanction only in extreme exceptional cases.

CAS

Punishment of a national association for doping violations

Art. 42 ICF Articles of Association, Art. 2.1.1, 12.3.1, 12.3.1.1 ICF Anti-Doping Rules

1. A punishment of a national association based on Article 12.3.1 of the ICF Anti-Doping Rules requires proof of at least four anti-doping rule violations by athletes or other members of the Association.

2. These four anti-doping rule violations must have been established in a doping proceeding before the authority provided for in the statutes.

3. A sanction, pursuant to Article 12.3.1.1. Of the ICF Anti-Doping Rules can only be a suspension of the officials of a national association or an expiation, but not in a ban of the athletes.

OLG Cologne

Amount of the recourse against disturbing spectators after federation total penalty

§§ 280, 241, 249 BGB; Section 54 of the Penal Code

1. If a club is punished by a spectacle misconduct in the context of a home game, the club may redress the spectator in the full amount of the penalty.

2. If the association penalty was formed as a total penalty according to § 54 of the Criminal Code, the amount of the recourse against the individual perpetrators of the incidents is limited to a proportion of the total penalty. This proportion is determined by the proportion in which the individual sentence which is due to the respective incident is the sum of all individual sentences.

OLG Koblenz

Limitations of animals holding – liability in the event of damage to the animal custodian

§ 823, 833, 834, 254 BGB

If a horse is handed over to a self-employed horse economist for independent riding, and the training of the animal is completed after several weeks (5 times a week, 60 minutes each), the animal owner is not liable if the instructor rides the horse outside the riding school for the first time and has a  fall. In this case the strict liability of the animal owner is based on the full and long-term contractual agreement assumption of responsibility for the animal by the animal watch  in case of injury.

BSG

Expenses for school transport for sports lessons

Section 28 IV 1, 14 II SGB II

Anyone who visits a school which has a special focus on the content of the schools nearest to  home  is entitled to receive benefits for the student transport according to SGB II because it is the nearest school of the chosen educational program.

BSG

Football tournament as a corporate community event

§§ 8 I 1, 136 III No. 1 SGB VII; § 7 I 2 SGB IV

A  joint company event is, in any case, excluded from the scope of the event if the event is open from the outset to anyone who are not members of the company (here: family members and acquaintances).

Supreme  sports court of the Niedersächs.Football Association e. V. (NFV)

Impose a fine against a club without attribution of blame.

§ 9 No. 2, § 9 a RuVO-DFB §§ 34 Paragraph 1, 39, 42 No. 28 RuVO-NFV; § 1 AGG, § 242 BGB, Article 9 para. 1 Basic Law

1. It is not sufficient for the imposition of a fine that the “perpetrator” has acted culpably; On the other hand, the act must be attributable or blamed to the person who is the addressee of the association penalty.

2. Due to constitutional reasons, liability for indebtedness in accordance with the provisions of the RuVO of the DFB is not fully sustainable.

3. The penalty imposed by an association against the club participating in its league game has no guarantee of the competition. Therefore the federation autonomy can not displace the principle of negligence in this case.