In the editorial “Sport Law without Sport”, M. Stopper, Munich, addresses the additional legal issues that the lawyer is now confronted with in the Corona Pandemic. This is about a further dimension of the uncertain future and its recommendations for action for moving targets, such as the continuation of sports operations, competitions, league operations, as well as evaluations of ascent and descent.

The pyramid of the sports organization, from professional to amateur sports, must be taken into account in each case when making decisions. In addition, there is the additional dimension of the economic consequences of the current bans on sporting events.

In sport, but especially in football, a lot of money is transferred and especially now in the crisis it is becoming apparent that it is no longer available. One should and could now also think about whether, if and to what extent that the Corona pandemic is overcome, sport could not get by with less money and return sport to its true ideals.

In the article “Three days awake? On the criminal liability of doping in eSport ” F. Ruppert, Bayreuth, deals with the rapid development of eSports and its major tournaments, which already have a turnover of $ 1 billion in 2019. This development is downright tempting to get larger numbers of successes in competitions by doping.

The author therefore first examines the criminal liability according to the anti-doping law. Here, the first question is whether eSport is to be recognized as a sport, because the Anti-Doping Act requires the concept of sport. The DOSB currently still refuses to recognize eSport as a sport.

The author therefore deals with whether this view can be justified and therefore examines the prerequisite structure of the Anti-Doping Act. Referring to a fundamental skepticism of the criteria for refusal as a sport, the author deals with the relevant perspective of the Anti-Doping Act, in particular its legal purpose, and therefore comes to the conclusion that eSport must be subject to the Anti-Doping Act, even if it lacks equality with conventional sports. In addition, the author deals with the criminal liability for fraud under general criminal law and proves that, in addition to the criminal liability under the Anti-Doping Act, there is also the offence of cheating against the competitor and the runner-up, as well as cheating at the expense of the organizer, because the financial relevance is always given and also claims its validity when applying § 263 StGB.

In conclusion, the author warns against underestimating the development of eSports from a mere pastime to a game of millions, because the lure of this sport increases the risk of criminal liability through doping.

In the first part of the article “The effects of the corona crisis on employment relationships in professional sport”, Ph. Fischinger, Mannheim, deals with the contract terms of professionals in threatened season breaks, the continuation and interpretation of these contracts.

In the case of season continuation beyond the end of June of a football season (now especially for the year 2020), the problem could be that the contracts of many players are limited to 30 June 2020. In the DFB’s model employment contract under Article 11 no. 1, the clause referring to the “end of the season” is located next to the date 30 June. In the case of an interpretation, it can largely be assumed that the contract does not take place on 30 June 2020 but only “after the end of the 2019/2020 season”; in this case, the author endeavors to interpret the contract in accordance with the wording, the interests of the club and the player, the orientation towards changing periods, the avoidance of distortion of competition and finally, exceptionally, the interpretation of the purpose limitation, with the result that the player must be informed of the imminent achievement of the purpose for 14 days, taking into account Section 15 II of the Part-Time Limitation Act. According to the prevailing opinion, the player is only free after the last day of the match, even without such an establishment.

More problematic is the interpretation of an employment contract without reference to the “end of the season”, as provided for in the DFL’s model employment contract; here the contract automatically ends on 30 June of a match year. In this constellation, the usual interpretation of the contract is out of the question, but a supplementary interpretation of the contract can be considered, provided that both parties have misjudged the development of the situation; this is why the interpretation options mentioned above are also used. The same result can be reached if a supplementary interpretation of the contract is made according to the principles of disturbance of the basis of the contract according to § 313 I BGB, which the author deals with in detail. Even in this constellation, the contract term is extended to the end of the day on which the club plays its last compulsory match.

But even here there are special cases: What has to apply if the new employment contract is to begin on 01.07. of the relevant match year at the new club? Especially if the player earns significantly more at the new club than at his current club? In principle, the player’s legal acts with the new club must not affect the term of the current club’s contract, which is why such financial interests must take second place to those of his current employer. However, a contract adjustment with a possible salary supplement cannot be excluded. A further special situation can occur if the contract is a loan contract, because here there are contractual relationships between several parties. Due to the close relationship within the framework of a loan transaction in the case of contracts concluded, it is only reasonable to have a uniform solution for all parties involved: Either the end of the season occurs at the end of the 30.06. of the season or the employment contract with the hirer and the loan contract continue until the actual end of the season. Further problems arise here, which the author explains in more detail.

Often the contract term is linked to mission-dependent extension clauses, which causes problems for both parties in the event of a season interruption. The author explains these issues in the second part of his article in the next issue of SpuRt.

A. Türk, Saarbrücken, highlights the connections between e-sports and labor law in his article “E-Sport as a challenge of labor law – an introduction”. This sport has experienced an enormous upswing, both with the players involved and the spectators. This sport, as mentioned several times, is not yet recognized by the sports organization, neither nationally nor internationally, but the legal questions must be clarified.

The organization of the competition is carried out by clubs, which form so-called clans as man-ships. The players, so-called gamers, conclude contracts with the clubs, which is why the question of an employment relationship arises. The author presents the common opinions according to which the computer game has to be regarded as work, similar to the other sports. The gamers are also personally dependent on the club, so that they have to be considered as employees. Special questions arise in connection with the underage gamers, here the author deals with the provisions of the JArbSchG and clarifies the questions of weekend work and night work, which is prohibited for minors.

The author deals in detail with employee data protection, namely the question of the consent of the players as the most important basis for the processing of employee data as well as the further question of the necessity of data processing according to § 26 Federal Data Protection Act.

Finally, the duration of the employment relationship between the gamer and the club is important, in particular the possibility of a time limit according to § 14, paragraph 1, no. 4 of the Part-Time Limitations Act, which is to be affirmed. In individual cases, an employment relationship can be terminated by extraordinary notice, especially if internal misconduct or possible manipulation occurs. It should be noted that in e-sports by far not all legal questions, in particular also in labor law, have been clarified.

In a further article “After the game is before the next game”, S. Mandler and A. Steinert, Leipzig, respond to a contribution by Weber, ” Accounting of transfer payments for coaches in German professional football “ in SpuRt 2019, 115. Weber comes to the conclusion that in the case of a player obligation, the transfer of the trainer for the purpose of the transfer payment creates an economic value which can be capitalized both abstractly and concretely. The object of activation is therefore not the coach himself, but the exclusive right of use of the coach resulting from the conclusion of the contract. In the opinion of the authors, these  call for a contradiction, because an analogy between a trainer’s obligation and a player’s obligation can be found. This is explained in detail in the article, especially by the differences between a player, namely the participation in the game, and the trainer.

In conclusion, the authors make it clear that the recognition of an intangible asset is not appropriate; rather, a prepaid expense item is to be formed for the redemption payments, which is to be released to expenses over the duration of the coach’s employment contract.

Jurisdiction

Austrian Administrative Court

No compulsory insurance as an employee or freelancer under a sponsorship contract with a motorcycle manufacturer

§ Article 4(2) and (4) ASVG

1. a sponsoring contract between an athlete and a motorcycle manufacturer does not give rise to any compulsory insurance as an employee or freelancer within the meaning of § 4 ASVG, because there must be an exchange relationship between the provision of services for the employer and a consideration (“remuneration”) provided by an employer.
2. in a “sponsorship contract” or “advertising contract”, a company regularly provides services as a sponsor in the form of cash or material resources – including sports equipment, for example – to an athlete or other personality or associations in the sporting, cultural or scientific field. The consideration of the sponsored party is usually the provision of “advertising”, with which the products or the brand of the sponsor are made known to the public or the positive image of the sponsored party is transferred to the sponsor. In the case of an athlete, this can be achieved in particular by the fact that, according to the agreement reached, the athlete generally appears with a label (lo-go) or with products – such as sports equipment or clothing – of the sponsor when practising his sport or at specifically defined sports events and other public appearances and receives remuneration for this.

In individual cases, a free service contract may exist if the sponsored party is assigned tasks for the sponsor in the course of the sponsor’s business activities (e.g. in the course of the distribution of the sponsor’s products or services) in addition to the provision of advertising services.

CAS

Suspension after manipulated doping sample – case of Sun Yang

Articles 2.3, 2.5, 10.3.1, 10.5.2, 10.8 FINA DC; Articles 5.3.3, 5.4 WADA ISTI

1. Where athletes have doubts as to whether there is a proper request for testing, they may not refuse or stop the Sample Collection Session, but must complete the Sample Collection Session under protest and document their objections to the legality of the Testing in as much detail and as early as possible
2. Doping control officers must not be overly demanding when an uncooperative athlete needs to be persuaded to continue with the Sample Collection Session In such circumstances, DCOs have a duty to (i) inform the Athlete of the consequences of any failure to comply, (ii) document the facts in a detailed report and (iii) report the circumstances.
3. The principle that an Athlete is responsible for his/her own actions and cannot shift responsibility to his/her support staff is enshrined in CAS jurisprudence If, after warnings of the consequences, a sample container is nevertheless destroyed, thereby excluding the possibility of analysis of the samples already collected, such conduct by the Athlete is wholly inappropriate.

Higher Regional Court Koblenz

No players’ agent commission without a brokerage contract

§ Section 652 (1) sentence 1 BGB

1. if a professional player’s agent brings The Sports Executive Committee of a German football league club into contact with the chairman of the supervisory board of another German football league club for the first time and if – approximately one year later -The Sports Executive Committee moves to this other German football league club, the player’s agent can only demand a commission from the sports executive committee if a brokerage agreement subject to commission has been concluded between him and the sports executive committee.
2. A contract may also be concluded by implication if the interested party accepts the agency services and knows or must know that the players’ agent will demand remuneration from him for these services upon conclusion of the intended main contract.
3. The exploitation of the acquired knowledge alone cannot justify the acceptance of a provision agreement if the interested party does not request further action by the agent and/or expressly rejects a commission promise. (guiding principles of the sender).

OLG Brandenburg

Exclusion of insurance in case of intentional damage caused by gross foul play in football

VVG § 103 VVG; AHB number 7.1; §§ 823, 276 BGB

If the policyholder of a private liability insurance policy for football as a goalkeeper with an outstretched leg jumps purposefully in the direction of the opposing player, the external course of events can indicate that he has accepted injuries to the opposing player. The liability insurer can refer to the exclusion of intent pursuant to no. 7.1 AHB (§ 103 VVG). (Guiding principle of the SpuRt editorial office)

LG Cologne

Terminability of sports management and marketing agreements

§§ Sections 305 (1), 307 (2) no. 1, 611, 627 (1) BGB

1) A sports management and marketing agreement of a boxing professional is a service contract for the provision of services of a higher kind in the sense of § 627 BGB (German Civil Code), even if other service obligations are regulated in the contract.

2) The fact that one of the parties to the contract has obtained legal advice after submitting a contract and that requests for changes have been included does not prevent the assumption that a clause in the contract which has not been changed is a general terms and conditions in the sense of § 305 ff. BGB is concerned.

The exclusion of the right of termination according to § 627 BGB for a marketing contract of a professional boxer over a longer period of time is invalid due to violation of § 307 para. 2 no. 1 BGB, as it is not compatible with the basic ideas of the legal regulation. (Guidelines of the SpuRt editorial office)

District Court Tübingen

Liability requirements for cheerleading

§§ 280 para. 1, 823 para. 1 BGB

A cheerleader trainer who only lays out protective mats during a training exercise and supervises several groups at the same time does not violate her supervision and monitoring duties. (guiding principle of the SpuRt editorial staff)

LAG Lower Saxony

Employment relationship with referees of the DFB Licence II

§§ 611 a BGB, 106 sentence 1 GewO

Neither the framework agreement concluded between the DFB referees and the DFB nor the actual assumption of a match administration establishes an employment relationship between the referee and the DFB in the sense of § 611 a BGB. (Guiding principle of the SpuRt editorial office)

ArbG Chemnitz

Dismissal of a professional footballer for racism allegations

§§ 611 a, 626 para. 1, 241 para. 2 BGB

1. The attendance of a professional footballer of the away game of one’s own team does not constitute behavior in the purely private sphere that is outside the sphere of influence of the employer.
2. A joint visit to a stadium with the former leader of an extreme right-wing fan group alone does not constitute good cause within the meaning of § 626 I BGB to justify extraordinary dismissal. (Guiding principles of the SpuRt editorial office)