SpuRt 5/2017 2017-11-20T11:57:33+00:00

SpuRt 5/2017

Table of contents

Contributions

JF Orth, Cologne, took a look at the initiative of the DFB President, R. Grindel, which had been held weeks ago. The “Ultra Group” was the focus of the editorial “Bringing men   together!” The new “Dialogue between DFB and fans”. Of the fans’ scene a comprehensive dialogue offered  with the simultaneous suspension of the criminal proceedings of the DFB control committee and pardon of the spectator exclusions announced by the DFB Sportgericht.

This initiative surprised not only the sports jurists, but also the DFB judges, which were not discussed. Many questions are raised here. Is the President really allowed to give a pardon? Who are the legitimate representatives of the fan scene?

It is necessary in any case that both “parties” cultivate a constructive exchange, says Orth, it means to go to one another, without an “authoritarian claim” on the one hand, and to recognize the achievements of associations and corporations responsible for football. After all, a passionate football game  in Germany is at stake on both sides.

In his contribution “Regulatory Proposal for Dynamic References in charters of association”, P.G. Müller-Eiselt, Munich, focused on the legal uncertainties of the dynamic statutory references, nevertheless these are in practice reality and are applied. In his analysis, the author points out that dynamic statutory references are not constitutionally unconstitutional and justifies his proposal at the end of the contribution with the simple legal modification requirements to three aspects of the association: the dynamic referral bypasses the basic sole responsibility of the members’ meeting for associations, the constitutional form of the association constitution was prescribed, and finally, the constitutive conditions of effect for the amendment of the statutes, which were foreseen in the association register. The author, on the other hand, emphasizes the influence of the higher-ranking association on the content of the association’s statutes and, at the same time, deals with the principle of the constitutionality as well as the publicity obligations and transparency. As a result, the author then proposes the technical regulation by creating a new paragraph 25 a BGB, in which, among other things, the members’ meeting of a club may be contrary to a dynamic reference.

In the article “Effectiveness of exclusion of liability –  clauses in individual licenses”, A. Jakob, Frankfurt and B. Röbig, Hamburg, first examine the various licenses, usually certified as licenses, for sports events given by sports federations. The license for the  league division  require different conditions than the individual licenses. Both financial and sporting qualifications have to be fulfilled here. The licensing, registration and reporting procedures are also different. The athletes’ agreements between the associations and their athletes are deducted from individual athletes. If clubs or individual athletes fulfill the prerequisites for the approval of a sporting event, the organizers are obliged to ensure the proper and safe performance of the sporting event. In case of violation of the present traffic safety requirements, claims against the organizer may exist. The effectiveness of licensing agreements for liability has already been examined in detail by the BGH in 1994 (BGH NJW 1995, 583 = SpuRt 1995,43). These principles have not changed. To this extent, each license and the liability exclusion  agreed there must be examined in detail, depending on the type of sport and the agreement, in each individual case as to whether they are effective.

In the article “New liability risks for associations: the criminal offenses against sports betting fraud and game manipulation”, M. Kubiciel, Augsburg, emphasizes the importance of the recently entered into force of the sports betting fraud, § 265 c StGB and the manipulation of professional sport competitions, § 265 d StGB, and points to the risk of liability threatened by §§ 30, 130 OWiG for the club’s responsibility.

Criminal law aims to protect sport from the corrupting behavior of athletes, coaches and officials – as a result of the rapid development of the importance of sport in the economy and the internationally networked betting fraud a huge task, as the fight against doping shows.

Kubiciel explains the scope and extent  of these criminal offenses and the consequences for the accused and associations, as well as their criminal consequences. In this case, he is particularly sensitive to the criminality of managerial staff according to the so-called “business principal  liability” (in the case of stock companies  AG, GmbH, KG, aA). In addition, there are the major liability risks for sports clubs, which can then be particularly relevant in amateur sports.

In total, the responsible persons must install effective compliance management systems for their own security against liability for damages, in order to prevent offenses according to §§ 265 c, 265 d of the German Criminal Code (“Neubürger – Verdict” LG München  I, WM 2014, 947 ff ).

  1. Kornbeck, Brussels, responded to the contribution of Hellmund, SpuRt 2017, 145 in his contribution “EU Sportpolitik Anno 2017: Much soft Law, but also Hard Law”. In this article Hellmund described the 3rd EU Work Plan for Sport (2017 – 2021) and regretted the absence of “hard-law issues”. This criticism is probably justified, but requires an additional comment. The previous work plans cannot be denied success, in particular Article 165 AEUV (contract about the manner of work in the EU ) in the efforts of the sports federations whose initiatives could be implemented in a legally relevant way. The criticism of the application of the EU antitrust law of Hellmund’s was legitimised, however, the hard law put itself through. Kornbeck justifies the development and the work on the individual relevant topics in detail. The discussion as to whether sports federations can ultimately be cartels or not has not yet been definitively clarified in sports law, which is why the outcome of the ISU case will also be of great importance to the Commission.

Jurisdiction

öOGH

  • § 1295, 1311 ABGB

Averting possible dangers on the ski slop

If a ski instructor injures a ski student  by means of a push to bring him out of a supposed danger area, he is unlawful and culpable if he  fails to prove his resistance to a reasoned imminent danger.

öOGH

  • 292 item 1 EO

Tennis – Coach lessons for youngsters as special needs

The cost of supporting and training a minor, particularly talented player is not subject to the rule of alimony law, but rather to a specialized  alimony..

CAS

Art. 3.2.1 IOC ADR, Art. 6.5 IOC ADR

Doping-Sanction  after later second analysis

Negative doping samples can be re-analyzed within the statutory period of limitation and sanctioned in case of a positive result.

LG Dortmund

  • 10 (1), § 13, § 16 (2), § 19 As. 2, § 81 para. 2 SpO, § 242 BGB

The legality of points  penalty when a player is used illegally

  1. In examining the legality of a sanctioning decision by a federation, the State Court must fully examine whether the decision can be based on a statutory or statutory legal basis, whether the procedure of the federation is in accordance with fundamental principles of the law and has been respected The facts underlying the facts.
  2. In addition, the sanctioning in respect of subsumption and punishment is, in principle, justifiable on the basis of the self-determination right of private associations, only on gross inefficiency and arbitrariness. However, a more stringent standard of equity applies to socially powerful associations.

AG Helmstedt

LG Braunschweig

  • § 25, 32 of the German Civil Code (BGB)

Consideration of a “constant exercise” in the club

  1. As a matter of principle, the action against the impaired association measures to be levied on the part of a member of the club concerned is not time-bound.
  2. Since members of the association are not entitled to retention of a statute contrary to the statutes of the association, they can not rely on a protection of the vested right or the protection of their trust.
  1. It is true that in the interpretation of the statutes of an association in exceptional circumstances, a permanent exercise (supplementary) can be taken into account. Such an exercise can, however, only be taken into account, given the general validity of the statutes and the binding effect of future members, if it can be presumed to be generally known and, on the other hand, not explicitly or unequivocally determinable – the purpose of the articles of association and wording.

LG Hanover

  • § 21, 26, 27, 32 of the German Civil Code (BGB)

Request for an exemption from the 50 + 1 rule (Hannover 96) by means of an interim injunction

  1. A simple majority decision of the General Assembly of the Hannoverschen Sportverein of 1896 e. V. does not bind the board of this association.
  2. At the Hannoverschen Sportverein of 1896 e. The so-called “executive committee” is set up by the statutory regimes in the sense that the decision of the board of directors is entirely independent of the decision-making powers which are independent of the opinion of the members’ meeting.

ArbG Frankfurt a. M.

  • § 14 para. 1 TzBfG, 106 p. 1 WpO, 1 ff. Refereeing Ordinance / DFB (SRO)

Working relationship with referees of the DFB licensees

  1. There is no need for any further detailed instructions to guide the local and temporal presence of arbitrators in the DFB area and the DFB’s gameplay as the content of the tasks they have undertaken.
  2. Referees of the DFB-licensors are not employees due to the lack of instructions, with the result that § 14 TzBfG is not applicable to the contractual relationship.

BSG

Handball Training – Work Accident

  • § 2 I No. 1.8 I, 136 III No. 1 SGB VII, 7 I SGB IV, 163 SGG
  1. A handball player may be insured during the training in the statutory accident insurance if she is an employee of the management of her team.
  2. The payment of a fee is not a compulsory condition for the insurance cover of athletes.

BFH

Promotion of tournament  bridge non – profit

KStG 2002 § 5 para. 1 no. 9, art. 3 para. 1, art. 19 para. 4 Basic Law, § 52 AO

  1. It is clear from the general clause of § 52 (1) AO and a comparison with the catalog purpose “chess” mentioned in section 52 (2) sentence 1 no. 21 that the promotion of tournament bridge is also to be declared charitable
  2. A “corresponding” promotion i. P. 52 (2) sentence 2 of the AO requires that the purpose promote the public in a manner comparable to the purposes set out in section 52 (2), first sentence, points 1 to 25.
  3. If the purpose pursued by a body fulfills the requirements of section 52 (2) sentence 2 AO, it is to be declared as non-profit; there is no discretion of the administration.