SpuRt 3/2019 2019-06-27T09:50:31+00:00

In the editorial J. F. Orth, Cologne, points to the long period of time, that difficult sports issues need to solve them. That’s how the doping case in question, Claudia Pechstein, for which she was convicted, and which dates back to the year 2009, currently is before the Federal Constitutional Court for review. The case of Caster Semenya (which also started in 2009), this is about the question of the so-called “third sex”, under which conditions must be made in case of doubts about belonging to a competition. The CAS has now found after a suspension of the athlete by the IAAF a viable sustainable solution, according to which the testosterone level limit for women’s competitions of the athlete must be provided. Competitive performance in competition is increasingly becoming a tough prerequisite for survival that an athlete has to provide. On the other hand, secured sports law findings are denied again and again by courts, which Orth points out, at the same time, again, the controversial anti-doping law has a suitable use on the occasion of the Ski World Cup in Seefeld / Austria. However, here too, until there is a secure solution, this will need to be looked at again.

Following the editorial, T. Summerer, Munich, commends the merits of the recently deceased co-editor Bernhard Pfister, Bayreuth, as a pioneer in sports law, who has been a decisive influence on the magazine SpuRt since the beginning of 1994.

In the article “The autonomy of sports organizations: More legal security through purposeful content control”, P. Fischer, Munich, initially devotes fundamental questions of autonomy to sport, and then draws conclusions from the content control of the association’s regulations.

What is the autonomy of sport? In an analysis, the author differentiates the so-called internal autonomy as the self-legislation for the internal affairs of a club or association of the organizational autonomy, which protects against sovereign interference. For the organizational autonomy it depends crucially on the purpose of a club, which is the actual accessibility of the sports association in the monopoly position. At the same time, the primary purpose of sports federations, namely the organization of competitive sports, is significant. From this result, in order to fulfill this purpose, the necessary regulations come to fruition within the framework of the so-called internal autonomy.

For the content control of the rulemaking then it follows that in this core area no comprehensive content control according to § 242 may be made; however, here again, a distinction must be made between necessary and unnecessary organizational regulations in the context of content control; In this case, it is possible to turn to the general review criteria of the judicial review, amongst other things, whether the person affected is effectively bound by the regulation, there are no violations of the law and the regulation is not immoral or not grossly unreasonable. Thus, the autonomy of the sports federations will be better taken into account and a predictable standard will be created for the entire competitive sport area.

Chr. Kirchhain, Bonn,  in the article “Membership fees VAT exempt? Deduction of VAT in danger!” The BMF letter dated 04.02.2019 apart, according to which this communicated that the membership dues in the clubs, which were previously taxable, with the result of a deduction of input tax now (also partially retroactively) would be treated as tax-free, this has caused a great unrest among the clubs, because this would eliminate the previous handling of a deduction.

The tax authorities have until now taken the view that the membership fees are not charges, as they would not constitute a claim of benefits of the association. On the other hand, since 2002 the ECJ has held the opposite view, namely that the association permanently provides sporting facilities and related benefits to its members. The Bundesfinanzhof (BFH) also takes this view, namely that according to § 1 (1) no. 1 sentence 1 UStG there is an exchange of services. The clubs have therefore consistently adhered to the legal concept of the BFH, which is why in a change in the financial management just the large sports clubs paid for sports articles, as well as advertising services, recorded high revenues and therefore can also make high deductions. A withdrawal of the deduction procedure would have enormous adverse consequences and could endanger the economic existence of some clubs.

The author points out with detailed justification that the view of the tax authorities in the BMF letter is very doubtful and that it does not hold any retrospective application of this procedure legally tenable. A reaction would, for example, be contrary to the recognized view of the protection of legitimate expectations, there would also be a violation of the legally regulated economic blocking in § 176 a AO. Therefore, it is necessary to advise the tax authorities to suspend the measure at least until the decision of the European Court of Justice on the BFH’s resolution of 21.06.2018. If the ECJ were to arrive at the legal opinion at issue here, the question of the VAT exemption of membership amounts would be assessed solely in accordance with German law, so that the view of the tax authorities could no longer be upheld.

In the article “Doping in boxing = injury to the disadvantage of the opponent?” T. Lisner, Dusseldorf, checks the possible criminal liability of the professional boxer Felix Sturm, who had doped with anabolic substances and possibly injured in the boxing match the opponent. The prosecution’s charge was initially withdrawn, but the main proceedings were opened in response to the complaint. Lisner examines the criteria of dangerous bodily harm in a scholastic way, with the result that here, according to evidence, the facts can be realized. The decisive factor is probably the question as to what extent a justifying consent of the counterparty could exist. Consent can be ineffective from the point of view and a deception about the doping, but especially from the immorality according to § 228 StGB. A blame of a deliberately doping boxer could be, from the point of view of error, the immorality according.
There will also be a avoidable ban on errors, taking into account the prohibition of self-doping in §§ 2, 3, 4 AntiDopG.All these points of view may be the subject of intense debate by the judge, which is why the Cologne Higher Regional Court rightly opened the main proceedings. In addition the professional boxer Felix Sturm had revealed only a small concentration of doping traces in the urine test, so its claim that there is only an accidental ingestion of doping before, by contaminated meat products, might be justified.

Chr. Weber, Münster explains in an article “The accounting of transfer payments for coaches in German professional football“. More and more coaches move to another club before the contract expires. While the transfers requiring a transfer have long been common practice and the principle has been largely clarified, the transfer of football coaches poses the question of an asset capable of being capitalized.

The author first explains the basics of commercial accounting of player values ​​and refers to the two judgments of the Federal Finance Court from the years 1992 and 2011 and to the provisions on a one-sided termination and the licensing rules players of the German Football League. It also depends on the details of the coaching license and the coaching contract. At the heart of the commercial law accounting of these transfer payments are the abstract ability to capitalize a value for the approach of trainer values, as well as for the evaluation of trainer values, the access valuation and subsequent assessment.

Thus, the author summarizes that the activation object is not the coach itself, but the solution to the coach for its economic transferability is relevant. An asset subject to capitalization exists if the balance sheet of the paying club is to be recognized as an intangible asset in the amount of the acquisition cost. This trainer value is to be amortized on a straight-line basis over the term of the employment contract.

Jurisdiction.

öOGH
For climbing on the via ferrata in private accident insurance

The Supreme Court is not entitled to interpret General Conditions of Insurance (AVB) “in any case”, but only if the Appeals Tribunal has disregarded supreme court jurisprudence or if significant questions have to be resolved for legal unity or legal development. Such a case does not exist here.

CFI
Article 107 (1) TFEU
State aid granted by Spain to certain football clubs

The granting of a tax concession to a football club, which is due to him under his lawfully chosen legal form under national law, does not necessarily lead to the assumption of illegal State aid. (Editorial’s Editorial)

CAS
FIFA Code of Ethics (FCE): Articles 13, 15, 16, 18, 19 and 41; Art. 10 FCE (Version 2009) or Art. 20 FCE (Version 2012)
10-year ban for violations of the FIFA Code of Ethics (“Jérome Valcke” case)

  1. According to the FIFA Code of Ethics, the standard of proof is the personal conviction of the judges. However, before the CAS, the standard of “sufficient satisfaction” developed by him as part of the lex sportiva is also applied to disciplinary cases involving FIFA officials.
  2. Whether other persons at FIFA knew of, participated in, or even committed breaches of ethics of the plaintiff is irrelevant to a violation of the FIFA Code of Ethics and any sanctioning of the plaintiff.
  3. In CAS proceedings, accused persons in a disciplinary procedure cannot easily invoke the right contained in the European Convention on Human Rights not to incriminate themselves.

BGH
Section 95 (1) no. 2 a i.V.m. § 6a para. 1 and 2 AMG a.F .; Art. 100 sec. 1 sentence 1, 103 sec. 2 GG
Prohibited marketing of medicinal products for doping purposes

On the constitutionality of the criminal norms on the prohibited marketing of drugs for doping purposes in sport according to § 95 para. 1 no. 2 a AMG in the version valid from 13 August 2013 to 17 December 2015. (Orientation sentence of the editors)

BGH
§§ 4 para. 1 no. 1; 2 para. 1 no. 2 AntidopG, 29 para. 1 no. 1 BtMG
Unauthorized commercial trafficking with doping agents

  1. The penal provision of § 4 para. 1 AntidopG is constitutionally unobjectionable
  2. In the interpretation of the constituent element “action” in §§ 4 para. 1 no. 1, 2 para. 1 no. 3 AntidopG must resort to the same principles developed in § 29 para. 1 no. 1 BtMG principles. This applies both with regard to the minimum findings and with regard to possible legal valuation units, if one and the same goods turnover is the subject of the criminal assessment. (Editorial principles)

OLG Cologne
§§ 3 para. 1 sentence 1 no. 1, para. 2, 4 para. 1 no. 4, no. 5, para. 7 no. 2 AntiDopG, §§ 223 para. 1, 224, 230 para. 1 StGB, §§ 203, 210 stop
Opening of main trial of Felix Sturm for doping allegation

LG Frankfurt
Art. 9 para. 1 GG; §§ 25, 242 BGB
Judicial review of decisions of the DFB Federal Court

When reviewing the content of an administrative punishment by the ordinary courts, the “fair play principle” laid down in the preamble of the criminal association statute must also be taken into account in relation to the players of a team affected by punishment, if the club is the addressee of the club penalty. The ensuing consideration of player interests may result in a penalty of the association against the club and thus according to § 242 BGB is unequitable and ineffective. (Guiding principle of the editors)

ArbG Verden
§§ 611 a BGB, 84 Abs. 1 S. 2 HGB
Employment relationship with referees of the DFB-Lizenzligen II

  1. There is no employment relationship between the DFB and the referees of its licensing leagues for either a season or a game.
  2. Referees of the DFB-Lizenzligen are not bound by instructions regarding the actual takeover of a game or the execution of their work task, and also the embedding in the framework of the DFB does not change. (Editorial principles)