SpuRt Issue 3/2018
In the editorial “Short cut” S. Netzle, Zurich deals with the criticism of sports officials at the CAS about the doping acquittals of Russian athletes (clear evidence was not conditional).
Despite criticism, the independence of the CAS must not be infringed upon. Netzle, nevertheless, considers a reform of the arbitration is necessary. Netzle addresses the better training of judges, but in particular the long duration of the proceedings, here the parties are responsible to make concrete proposals for a draft. In particular, Netzle addresses CAS’s successful ad hoc procedures at the Olympics, which have proven to be successful, despite the speed, and it could be provided to CAS’s permanent department to handle certain cases more quickly.
Overall, the CAS and international arbitration is important for the sport.
The article “The Disclosure of Disciplinary Measures by Football Referees and their Effectiveness” is dealt with by B. Schiffbauer, Cologne, with the most recent incident, Nils Petersen. He had been warned with a yellow card without his knowledge, later he was given a yellow / red card. The paper deals with the conditions necessary for the effectiveness of disciplinary measures, in particular with the effective disclosure.
The rules and regulations of the DFB is not very clear. In Rule 5 (under number 7), although, the disciplinary measures are listed and explained, statements are lacking as to how the referee should actively pronounce these sanctions so that they are also recognizable to the person concerned. The judgment of the DFB Bundesgericht (Federal Supreme Court) published in the same issue of SpuRt also deals with this set of rules and can only state that “showing” the card is not sufficient. Overall, the various interpretations show that a disciplinary measure must be notified individually to both state law and association law, which is even required by constitutional law.
Schiffbauer deals extensively with the analogies of state law (civil law and public law), with the result that, for reasons of clear and explicit disclosure, the effectiveness of a disciplinary measure is necessary. Many referees need to be aware of this and therefore not only worry about the correct rule application, but also correct disclosure.
In the article “The Bremen Lex Football – a legal, sport-political and social mistake” PGP Muller-Eiselt, Munich deals with the legal issues in connection with the decision published in the same issue on page 122 decision of the OVG Bremen on 21.02.2018 for the cost of provision of police forces for security in Bundesliga games. The State of Bremen had issued a fee notice of € 125,000.00 to the DFL, the VG-Bremen overturned the decision in its ruling of November 2017 (SpuRt 2017, 260 ff), while the OVG Bremen confirmed the fee notice. An appeal procedure before the Federal Administrative Court is ongoing. The author first explains the provisions of § 4 para. 4 BremGebBeitrG and questions from a constitutional point of view.
From the point of view of the Federal Constitutional Court, only the tax is levied as a regular source of income for the state without any conditions, whereas any other form of levy requires special justification. This particular justification is missing here. The mere provision of police forces is not a sufficiently defined as a public service, which is why this standard is unconstitutional. Other constitutional concerns, such as, for example, the violation of Art. 12 GG in the event of a waiver of the event as well as a violation of Art. 14 GG are cited by the author. In addition, § 4 para. 4 BremGebBeitrG is a security policy mistake. The state cannot leave the core task of security precaution for the population to the private sector, rather a trusting interaction of security participants (state, associations, clubs and fans) must take place.
Also, the bremische fees regulation is a social mistake: It must be the goal to reduce the personal and financial burden on the police, which is an overall task in society. In contrast, the fee notice privatized the costs of the core police task – the public good security is commercialized with it. This makes the police a kind of private security service.
T. Schumacher, Wolfsburg and K. Schumacher, Bergisch Gladbach, make their contribution to the topic “Compliance Management Systems in Sport”. In the first part, the components of the Compliance Management Systems (CMS) were finally explained with 1. risk analysis, 2. risk limitation / training regulations and other communication measures such as 3. the monitoring processes.
Now the applications of the CMS to the sport are set out. For small associations or clubs, the risks are manageable, here it is probably sufficient to discuss the individual issues with the volunteers, which are not merchants or lawyers. Large associations, which deal with millions in sales in large commercial enterprises, the CMS is more significant. Here, the authors cite the example of the ADAC, where a Compliance GmbH is already installed, as well as the DFB already have various compliance measures, such as, for example A Code of Ethics, Ethics Committees have been introduced.
The basic compliance risks in sport are analyzed further in the article, mentioning in particular the sponsors and invitations, especially the case of Utz Claasen of the Federal Supreme Court, which specified in his decision the legal standards regarding an agreement on unfairness according to § 333 I StGB. Another risk is the awarding of sporting events that have been encoded in public in recent decades, particularly in the context of the officials of the IOC, FIFA and UEFA. As further examples, the authors address the ticket awards at major sporting events, to important sponsors, which would need to be made transparent, as well as the expense allowances for volunteers working in the organization. Even when working with consultants and match agents, details, agreements and cash flows must be presented transparently, and the usual regulations of FIFA and the DFB are not sufficient. Other examples are the Money Laundering Act of 26.07.2017, which must be observed, as well as antitrust aspects of marketing and their agreements. The authors conclude that all representative bodies must deal with these sports-specific risks and must consider and install appropriate measures to minimize these risks.
In the judgment comment entitled “Withdrawal of antitrust law from sport? The coughing signal case at the bridge tournament “– dedicated to M. Lorenz, Berlin, the verdict of the OLG Dusseldorf from 15.11.2017 in SpuRt 2018, 73.
In fact, the judgment gives the impression that it completely dispenses with the application of antitrust rules, in contrast to the lower court. Lorenz deals with the different case groups of recent decision-making practices in the field of sports, in particular procedures on the commercial side of the sport, such as, for example, competition law-compliant allocation of broadcasting rights of major events and continues to be concerned with the second case group, namely the relationship of individual athletes to the organizers of competitions and in general to the regulations of the sports associations. The present ruling falls under the second case group, analyzing the facts and the underlying questions in order to deal with the material. Here he notes that the recent case-law in the review of sports association sanctions has taken antitrust standards as the basis for a review of contested regulations or sanctions in the balancing of interests. This is shown by the judgments of the Higher Regional Courts of Frankfurt but also by the judgment of the ECJ in the Meca-Medina case with regard to Art. 1 I, III TFEU. The OLG Dusseldorf in earlier decisions, however, relied primarily on the GWB. The BGH has also relied on antitrust standards in the Pechstein case (see Stancke, SpuRt 2011, 46, 48). The BGH has used the civil-law general clauses to safeguard the protection of fundamental rights. Finally, the argumentation of the judgment to be discussed by the Higher Regional Court of Düsseldorf, which is based on the civil-law general clauses of § 138, 242, 307 and 315 BGB. However, this does not mean a “withdrawal from antitrust law” because the antitrust norms are the basis for the general clauses of civil law and their balancing of interests. Thus, antitrust law also remains an area of application in the relationship between athletes and federation.
The article “The merging of (soccer) clubs” by J. H. Punte, Hamburg, is about two Berlin football clubs, Viktoria 1892 and Lichterfelder FC 1892 Berlin e. V. two big clubs, which want to amalgamate, with the goal to rise to number three in Berlin football.
In his contribution, the author provides a guideline for the practice of the association and highlights the legal issues that arise, which are transferable to every registered sports club.
The author then explains the course of a merger according to the UmwG, namely the provisions of §§ 5 ff UmwG and the notarized deed of merger as a basis. Here, the exchange ratios of the shares and in particular the amount must be precisely fixed, as well as a merger report in accordance with § 8 UmwG necessary.
The registration of the merger according to § 16 ff UmwG then represents the final point of the merger of both clubs. Finally, it is important that in the entire procedure the association law provisions are not disregarded, here, for example, in the statutes of the DFL and the League Association, no regulations exist, however, the statutes of different national associations give in part regulations that explicitly deal with the merger of clubs. It is therefore advisable for those involved to contact the associations beforehand.
§§ 33 f. ForstG
Forest use for canyoning tours
Commercial events (such as guided canyoning tours) are not covered by the free use of the forest for recreational purposes and therefore require the consent of the forest owner.
Federal Constitutional Court
Art. 3 (1) Basic Law
Constitutional complaint about nationwide stadium ban
1. Article 3 (1) of the Basic Law does not disclose an objective constitutional principle, even according to the principles of indirect third-party action, according to which the legal relationships between private parties should in principle be governed by equality. Basically, it is part of the freedom of each person to decide according to their own preferences, with whom they want to conclude contracts and under which conditions.
2. Equality law requirements for the relationship between private individuals can, however, arise from Art. 3 (1) Basic Law for specific groups. Indirect third-party effect unfolds Art. 3 (1) Basic Law, for example, if individual persons are excluded by private law from events that are opened by private individuals by their own decision to a large public without respect to the person and if the exclusion for those affected to a considerable extent decides about participation in social life. The organizers may not use their decision-making power to exclude certain persons from such an event without a factual reason.
3. A stadium ban, even without evidence of a criminal offense, can be based on factual concern that the data subject will cause interference in the future. In principle, the persons affected must be heard in advance and, on request, they must be given a justification in advance. (Official Guidelines)
Top of Form
§§ 280 para. 1, 278 i. V. m. §§ 249, 252, 253; §§ 823 Abs. 1, 253 Abs. 2, 254 BGB, Training and Examination Regulations of the DHV for Gleitsegelführer (APO) i. d. F. v. 1. 1. 2011
Liability for lessons in hang gliding and paragliding
1. The purpose of APO is to ensure the protection and safety of student pilots during training and to avoid accidents and, in the same way, the list of obligations of the flight schools and their flight instructors.
2. A violation of the APO and a fundamental breach of duty to a student pilot exists if the instructor of a flight school knew the skills, knowledge and flight problems of a student pilot, but the student still had no radio during the flight and did not instruct him during the flight were issued and there was no flight instructor at the (prospective) landing site.
§ 249 BGB
SV Wilhelmshaven II – reintegration action
1. The plaintiff’s reintegration claim based on that it only existed in the 2014/15 season and is not possible because this season ( as well as all subsequent seasons) has already been completed. The seasons are each completed systems, which are characterized by the prevailing circumstances in each of these seasons. This is also the reason why reintegration is not scheduled for the 2018/19 season, because at that time there would be no state that would have existed in the 2014/15 season.
2. Since it is not disputed that the claimant would have been relegated (through sport performance) at the end of the 2013/14 season, the causality between the harmful act and the damage is lacking. This can only be otherwise, if the descent was arranged before the end of the season for the relegated (through sport performance) was the cause. For this purpose, the plaintiff is charged with evidence. Since the success of a team depends on a large number of factors, the plaintiff cannot successfully prove this with the evidence of the ZPO. (Guidelines of the editorial office)
Top of Form
§§ 276, 278, 280 Abs. 1 BGB
Unauthorized assertion of a nomination claim
The substantive reimbursement claims for out-of-court attorney’s fees incurred by a legal defense association against a nomination claim asserted against him without justification by an athlete represented by a lawyer.
§ 4 para 4 BremGebBeitrG
Art. 20 para. 3, Art. 104a ff. GG
Demands of the DFL (private limited company) for police costs at Bundesliga matches
1. Section 4 (4) BremGebBeiG is constitutional. The levying of fees for the use of additional police forces in accordance with § 4 Abs. 4 BremGebBeitrG satisfies both the constitutional requirements arising from Art. 104a et seq. GG and the determination requirement of Art. 20 para. 3 GG and does not violate any fundamental rights of the organizers.
2. Organizer i. P. D. BremGebBeiG is the host home club and the DFL German Football League GmbH together. The discretion granted to the competent authority in selecting a cost debtor among several joint and several debtors is very wide. (Guiding Principles of Editing)
§§ 10 AO, 9 Abs. 3 GewStG
Trade tax liability of the national and international football referee
1. Football referees are self-employed and participate in the general economic traffic.
2. An international referee does not establish a permanent establishment at the respective venue.
3. The income earned by the referees is not that of an athlete.
Sections 1 (1) (1), 4 (12) (a). UStG
VAT liability for the provision of sports facilities
1. The provision of sports facilities is not acc. Paragraph 4 (12) (a). UStG tax-free.
2. The term sports facilities is to be interpreted autonomously for VAT purposes. A squash court is such a facility for the practice of sport.
3. Although the rental of a sports hall can be tax-free. However, this pre-supposes that the mere granting of the land transfer outweighs the granting of the right to use a sports facility. An appropriate criterion for delimitation is the contract period.
4. Long-term letting of the sports facility cannot be assumed, however, only in the case of a multi-year letting without notice possibility in the case of a one-year contract term with an extension option.
DFB Federal Court
§§ 11, 12, 24 RuVO / DFB; Rule 12 Football Rules
Objection to ineffective yellow card (Petersen case)
1. The first yellow card underlying a yellow-red card can be challenged with the objection analogous to §§ 11, 12 RuVO / DFB.
2. Appeals pursuant to § 24 RuVO / DFB are admissible if the judgment of the DFB-Sports court is raised against such an objection.
3. A yellow card requires notification to the player to be effective. Any uncertainties concerning the effective disclosure shall be borne by the declarant, i.e. at the expense of the arbitrator. (Guidelines of the editorial office)