In the editorial, U. Steiner, Regensburg, once again asks the question about the political statements of prominent professional athletes: how much politics belongs in sports and how much politics can it tolerate? Article 5 para. 1 GG protects the political messages of athletes everywhere. Outside the sports facilities, these can hardly be restricted, but especially in the case of team sports, the interest of the sports associations in industrial peace must be taken into account. Inside the sports facilities, however, regulations are possible for messages that have a temporal connection with the sporting event; here, freedom of expression can be restricted and prohibited. Of course, athletes in particular try to use the stage of sport to draw attention to ethnic conflicts, torture and oppression in their countries. In any case, however, demarcations are difficult here as well; in any case, sport and the right of every athlete to compete cannot tolerate any non-sporting interference.
At major sporting events, however, Steiner suggests, the establishment of a sanction-free forum might be a way to allow political messages, even if they conflict with the host country.
In the article “Corona and no/an end? Vaccination requirements in professional soccer”, A. Rombach and G. Müller, Frankfurt, examine the extent to which professional soccer players can be forced to be vaccinated at all and likewise whether spectators who are not vaccinated can be denied access to these reopened stadiums.
This issue is particularly important at a time when vaccines are currently in short supply. After all, professional players who fall ill will be absent for several weeks despite constant testing in the event of illness; likewise, the clubs, as well as spectators and fans, would again like to be able to gain access to the stadiums. Since there will be no legal obligation to vaccinate, vaccination requirements must therefore be sought at the level of private law.
In the case of professional soccer players, regulations on the part of the employer or other sports associations for vaccination requirements could be possible if they do not contradict legal requirements. The constitutional right to physical integrity cannot be interfered with, nor can the general right to privacy. The autonomy of associations in Article 9 of the Basic Law must also be measured against this. Likewise, the prohibition of abuse under antitrust law in Section 19 GWB and Article 102 TFEU protects professional athletes. The authors examine the case law on this subject on the basis of the cases “Meca-Medina” (ECJ) and “Pechstein” (BGH). The measures of vaccination requirements on the part of the association could also have a restrictive effect on competition, which is why it must be examined whether they would be proportionate.
Vaccination requirements, in turn, on the part of the club are analyzed on the basis of the model employment contracts applicable in the licensed leagues, according to which the clubs’ interest in vaccination must be weighed against the individual interests of the players and usually prevails. If the admissibility of a vaccination requirement for the players is affirmed, the question arises as to the legal consequences of refusing the vaccination in the case of a Corona – related work stoppage. The authors discuss these situations according to the relevant legal consequences arising from the violation of the duty to work, the employment claim, the remuneration issues, as well as in the case of a contractual penalty agreement and termination – they are to be assessed according to the respective contractual relationship.
Soccer clubs, on the other hand, have an easier time with their vaccination requirements for stadium visitors. Here, the stadium operators can rely on their private autonomy under Art. 2 of the German Basic Law, as well as on their private-law house rights, guaranteed by Art. 14 of the German Basic Law. However, the principle of equality in Article 3 of the Basic Law must be observed in relation to spectators who do not wish to be vaccinated, which is explained in detail by the authors with reference to the case law of the Federal Constitutional Court on the “stadium ban”.
These problems can also be applied in an international context as well as in the rest of the professional sports sector, especially to the upcoming major events in the summer, namely the European Football Championship and Summer Olympic Games.
In the article “The punishability of pyrotechnics in stadiums”, T. Pörner, Potsdam, makes critical comments on the current deliberations of the Conference of Interior Ministers on amendments to the Criminal Code, Explosives Act and Assembly Act. Since the use of pyrotechnics in German soccer stadiums is a major concern for the police, the aforementioned laws are to be amended in order to better combat the punishable acts.
In the Criminal Code, a reform of the breach of the peace under Section 125 (1) Alt. 1 No. 1 StGB is to be amended to the effect that those involved without being perpetrators can also be prosecuted, thus removing the protection of anonymity. In the author’s opinion, this will not make investigations any easier in practice, but this provision at least offers the chance of being able to punish participants from the surrounding area.
The amendments to the Explosives Act concern the extension of the exclusion of the privilege on the occasion of improper use in accordance with Section 40, Paragraph 5, Sentence 2 of the Explosives Act. This makes an extended act punishable, even in the case of approved pyrotechnics. The further proposal to create an abstract endangerment offense by inserting a new paragraph 3a in the provision § 40 SprengG is, however, to be viewed critically, because the elevation of such acts to a criminal offense does not seem adequate at all.
The planned amendments to the law on assemblies are equally concerned with combating the anonymity of crowds and the masking of perpetrators for effective criminal prosecution. According to Section 27 (2) of the Assembly Act, the participants in the respective event are already punishable, as are those who are on their way to the event. In this context, the extension of the elements of crime in § 27 para. 2, no. 2, VersammlG, according to which already the carrying of objects that prevent the identification of a person are sanctioned. Nevertheless, such an act cannot be made punishable, which is why this provision is at best inserted into the law as an administrative offense.
Finally, at the end of the article, the author explains the intended (problematic ) amendment to § 69 StGB, according to which the revocation of the driving license for violent soccer fans is being considered. According to § 69 para. 1 a StGB, the withdrawal should be possible if someone commits criminal acts in connection with a sporting event and thus the unsuitability to drive motor vehicles arises. After a discussion of this problem, however, the conclusion is reached that this provision can at best be supplemented to the effect that, in connection with a criminal offense, it should only be examined whether, according to dutiful discretion, an unsuitability to drive motor vehicles could result.
S. Klaus and F. Müller, Frankfurt a. Main, explain in the article “Employment Law for Foreigners: The Brexit and its Effects on Sports”, the manifold consequences and formalities resulting from the Brexit for professional athletes with British citizenship as well as their residence status and professional activity. So, what are the framework conditions for employment from the perspective of immigration law?
At the outset, the so-called Withdrawal Agreement of January 30, 2020 and the Trade and Cooperation Agreement of December 30, 2020 are explained in detail, because citizenship of the Union as a connecting factor will cease to apply and the professional athlete to be treated under European law will have to observe the special freedom of movement for workers from Article 45 TFEU. The authors now explain the Withdrawal Agreement and its regulations on the free movement of workers, here the federal legal regulation of the Free Movement Act/EU has had a meaning for British workers until 31.12.2020, they required neither a visa nor a residence or work permit. The term “British national”, which is regulated in Art. 2 lit. d of the Withdrawal Agreement, is of significance here.
Of particular importance are the rights of continuance from the withdrawal agreement according to Art. 13, Para. 1, according to which EU citizens and British nationals have the right to reside in another member state under certain restrictions and conditions. For this purpose, Art. 10, para. 1 of the Withdrawal Agreement requires the reference to British nationals that they have exercised their right to reside in a member state before the end of the withdrawal and continue to reside there afterwards. This group of persons is also referred to as “Old Britons”.
The implementation of the requirements of the withdrawal agreement for British nationals with existing rights, i.e. the group of “old Britons” according to Section 16 of the Freedom of Movement Act/EU, is complex and involves many formalities. They are explained in detail by the authors, as are the regulations of the trade and cooperation agreement with references to residence law.
British nationals, on the other hand, who do not have protection rights under the withdrawal agreement or those who come to Germany after Jan. 1, 2021 or later and are thus “new Britons,” must deal with the Foreigner Employment Law, i.e., the Residence Law, the Employment Ordinance, and the Residence Ordinance, which provide the framework for the employment of foreigners who are third-country nationals. These diverse details, e.g. the residence permit for professional athletes in general, furthermore the regular immigration process for third-country national foreigners and the changes brought about by the so-called 2nd Mantle Regulation are presented in detail – a complex body of laws and regulations that first has to prove itself in practice.
In the article “Sport in the crisis”: Obligations for managers and the new out-of-court restructuring procedure, F. Schäffler and M. Stopper, Stuttgart/Munich, deal with the crisis situation of sports clubs and the necessary responsibility of their managers. A lack of admission fees but constant costs have put the clubs in a difficult situation.
First of all, the authors explain the duties of the board members in crisis situations, in particular the insolvency application duties according to the new law for the further development of the reorganization and insolvency law of 22.12.2020. Practical hints are given for the particularities of the insolvency reasons insolvency and over indebtedness and likewise for the liability risks which result, in particular if the payment prohibitions according to § 15 b Abs. 1 S. 1 InsO are not kept. Furthermore, the authors explain the other liability elements of Section 15 a (4) InsO and the special features for the boards of directors of associations, in particular for honorary association directors. A special feature has arisen from the “Act on the Stabilization and Restructuring Framework for Companies” (StaRUG), according to which an obligation to recognize crises at an early stage with the consequence of a special crisis management has been established. According to this, the managing directors must continuously inform themselves about developments in the association that could endanger its continued existence and act accordingly – a highly responsible task. With the reform, the legislator has significantly tightened the grounds for filing for insolvency and the liability consequences for the managing directors.
The authors then deal with the instruments of the out-of-court restructuring procedure under the StaRUG, which closes the previous gap between out-of-court restructuring and insolvency proceedings: In the future, restructuring measures can also be implemented within an insolvency against the will of individual creditors. This will increase the incentive to take measures to overcome a crisis at an early stage. These measures are to be initiated in stages following the recognition of an imminent insolvency, namely a notification under Section 31 of this Act to the competent restructuring court, followed by the preparation of a restructuring plan, with the effect that any obligation to file for insolvency is suspended during the pendency of these proceedings. The most important instrument continues to be the restructuring plan, the details of which are explained in detail. The authors then explain in detail the consequences under sports law of insolvency or restructuring proceedings in professional sports. It goes without saying that in professional league sports, sustainable economic approach is essential, which is already required in every league as part of the licensing procedure. Sporting rules and regulations support this with sanctions, so that motivation for individual budgetary discipline is encouraged and at the same time economic misconduct by individuals is avoided. Such rulebooks exist not only in soccer, but also in other professional team sports such as basketball, volleyball, and handball. Finally, the authors conclude by evaluating the advantages and disadvantages of out-of-court restructuring as opposed to insolvency proceedings.
C. Dressel, Munich/Berlin deals in the article “Combination of condition and fixed term in the employment relationship in sports” with the ruling of the LAG Hessen of August 6, 2019 (Case No. 15 Sa 424/19), which clearly points to a problem that is equally relevant for sports: regular fixed terms are often decided on a condition about the start of the employment relationship, for example in the case of health and fitness tests conducted by the club doctor. Thus, the start of the employment contract is made dependent on the condition, which then renders it invalid according to the provisions of the Part-Time Fixed-Term Employment Act (TzBfG). In this respect, if a condition precedent is agreed, the start of the employment relationship must be correctly formulated in order to make the fixed-term contract effective. Such a condition has not been given sufficient attention so far, however, it is of importance and should be paid special attention to. In the aforementioned ruling of the Regional Court of Hesse, it is made clear that the combination of a fixed term and a condition is permissible in principle, and at the same time, specifications for the effective introduction of this combination are cited and explained here. Against this background, clubs, associations and athletes wanted to comply with these specifications in any case.
In the paper “Termination of an overweight player in professional soccer”, S. Unger and J. Stadtmüller, Mannheim, examine the extent to which termination can be justified in the situation. Several cases involving overweight and lack of fitness have recently led to dismissals. Employment contracts usually lack clear regulations on the weight of a professional footballer, as well as a precise description of physical fitness. The performance capacity in detail can likewise not be described in concrete terms, which is why a termination in such cases is highly problematic.
It is true that the athlete has the duty to achieve top athletic performance and also the performance capacity required for this; this is to be increased and fitness is to be built up or maintained. Violations of duty as a basis for termination cannot simply be proven in this case. The authors therefore deal with the scope of these duties in detail and take as their starting point Section 2 (1) of the DFL’s model employment contract, which states that the player must use his strength and athletic performance to the full for the club and refrain from doing anything that could be detrimental to this performance. The rule does not require such evidence to be provided either. A solution can only be found here if both contracting parties agree from the outset on a definition of physical fitness in the employment contract and then providing corresponding evidence. In any case, for a termination for cause pursuant to Section 626 (1) of the German Civil Code (BGB), it must be pointed out that a warning is required in advance in the event of an alleged breach of duty, after which the club may continue to observe the player. Furthermore, there must be an important reason according to § 626 para. 1 BGB, which makes it unreasonable to stick to the contract, which is difficult to prove in most cases.
The last article “Artificial turf and microplastics – legal analysis of the restriction proposal for ‘microplastics’ ” by M. Öttinger, Augsburg, deals with the proposal of the European Commission to ask the European Chemicals Agency to prepare a restriction proposal for “microplastics for artificial turf fields” in Germany and Europe. This proposal has led to a heated discussion, although it seems to be necessary due to the increasing environmental pollution caused by plastic waste. Sports clubs are particularly affected, but so are all sports fields and playgrounds. The author presents the background of this proposal and the individual scientific details, in which it becomes clear that this contribution must be made to reduce environmental pollution and to protect human and animal health. Nevertheless, he comes to the conclusion that the present “restriction proposal for microplastics” violates the requirements of the REACH regulation and that it must therefore be reviewed whether these proposals are justified or whether other means must be used to achieve the environmental protection goal.
Corporate tax advantages for soccer clubs as non-profit legal entities as illegal state aid
Art. 107 (1), (3), 108 (3) TFEU; Art. 1, 4 EU Regulation 2015/1589
Where, under Spanish law, the rate of corporation tax is particularly low for non-profit-making legal persons and the legislature requires Spanish professional sports clubs which had not achieved a positive result in the financial years preceding the enactment of the law to convert from that legal form into a sports limited company, the tax advantages for those clubs which are not required by law to convert constitute unlawful state aid that is incompatible with Community law. (Guiding principle of the SpuRt editorial team)
Infringement of antitrust law by sports association sanctions for unauthorized participation in competition
Art. 101, 102, 165, 296 para. 2 TFEU, Art. 7 Regulation (EC) 1/2003
- One of the obligations of a sports association with licensing power is to avoid arbitrary and abusive decisions in the design of its licensing rules which could impede access to the relevant market.
- Where licensing regimes are particularly vague, without distinguishing between infringements of different degrees of seriousness, and where the penalties provided for are particularly wide-ranging and may prevent athletes from making a living, without a clear link being established between the prohibitions and penalties and a legitimate objective, these circumstances may give the penalties in question an unduly dissuasive character.
- When assessing the antitrust relevance of association-based admission rules, where the risk of arbitrary application is inherent in the system, the severity of the sanctions provided for is of particular importance, as it may deter athletes from participating in non-association competitions, even if there are no legitimate reasons to justify such refusal, which may have the effect of foreclosing the relevant market in a manner incompatible with the internal market.
- The “three-step test” developed by the ECJ in the “Meca Medina and Majcen” judgment (judgment of July 18, 2006, Case C 519/04 P, SpuRt 2006, 195) applies mutatis mutandis to the antitrust review of association licensing regulations. 5.
- The considerations of the ECtHR in the “Mutu and Pechstein” judgment (judgment of October 4, 2018, Case No. 40575/10, 6747/10, SpuRt 2018, 253) apply in principle to an antitrust assessment of binding arbitration clauses that confer exclusive jurisdiction on sports arbitration institutions for disputes regarding non-admission decisions of the applicant. Such rules can be based on a legitimate objective, especially since the appeal to a single and specialized international arbitral tribunal strengthens a certain uniformity of the proceedings and enables legal certainty. (Submitter’s Guiding Principles)
Liability standard for first aid measures of table tennis coaches omitted contrary to duty
§§ 280 para. 1, 276, 680, 823 BGB
On the question of the standard of liability in the case of first aid measures of sports coaches omitted in breach of duty during a table tennis squad training. (Official lead sentence)
Nuremberg Higher Regional Court
Liquidated damages in the event of complete non-fulfillment of a sponsorship contract by the athlete to date
§§ 133, 157, 273, 275, 278, 320, 387, 611 BGB (GERMAN CIVIL CODE)
- On the interpretation of an English-language sponsorship agreement between a sporting goods manufacturer and a company that holds marketing rights to an internationally known athlete (hereinafter: marketer).
- If the interpretation of the sponsoring agreement shows that the marketer has assumed the obligations of the athlete to promote the products of the sporting goods manufacturer as his own obligations, the athlete is regularly to be regarded as vicarious agent of the marketer.
- If the sponsoring contract specifies concrete, time-related events for which the athlete is to advertise the products of the manufacturer of the sporting goods, then, if the athlete did not wear these products during the events in the past, the impossibility of the marketer’s obligation to perform for the period of time that has elapsed shall generally arise.
- if the services of the marketer are without interest and completely useless for the sports goods manufacturer due to the previous termination of the rights contract by the athlete, there is as a rule no claim to remuneration of the marketer.
- Even if the interpretation shows that the claim of the sporting goods manufacturer for payment of liquidated damages regulated in the sponsoring agreement is in a synallagmatic relationship to the remuneration claim of the marketer, the assertion of the liquidated damages does not always lead to the marketer being able to counter the claim for damages with his remuneration claims without further ado. (Sender’s guidelines)
Regional Court of Frankfurt
License revocation “in perpetuity” against an assaultive dance instructor
§25 BGB; Art. 9 (1), 12 (1) GG
On the review requirements and the prerequisites for a (trainer) license revocation “in perpetuity” by an association if the license holder as a competition judge demands that a dancer, whom he has to evaluate regularly, send intimate pictures in a chat. (Orientation sentence of the SpuRt editorial office)
Regional Court of Cologne
No surrender of commission paid by third parties in the event of double commissioning
§§ 662, 667 BGB
The player’s claim against his player consulting agency for surrender of the player agency commission received by the agency from the player’s former club for his successful “placement” of the player with a new club if a contractual relationship exists with the agency both with the player, which qualifies as an order within the meaning of §§ 662 et seq. BGB, as well as with the former club. (Orientation sentence of the SpuRt editorship)
Hall prohibition against rule-violating sport photographer
§§ 823 Para. 1, 903, 1004 BGB, 19, 20 GWB, Art. 5 Para. 2 GG
If an accredited sports photographer repeatedly enters the playing field of a handball match to take photographs, contrary to the applicable rules, and if this misconduct could be sanctioned by the handball association if it were known, the home club, as the main rights holder, is entitled to revoke the accreditation of the sports photographer and to impose a ban on his activities as a sports photographer. (Guiding principle of the SpuRt editorial office)
Cologne Tax Court
Supervisory board remuneration of a sports club is not subject to VAT
§2 UstG, Art. 9, 10 MwstSyStRL
The lack of a subordinate relationship or the lack of a binding instruction on the part of the supervisory board member of a sports club is not sufficient for the “independent exercise” of the activity as a supervisory board member, which is a prerequisite for entrepreneurial status under both Section 2 (1) sentence 1 UstG and Article 9 (1) sentence 1 of Directive 2006/112/EC (MwstSyStRL), so that payments to the supervisory board member of a registered club on the basis of a guaranteed claim for reimbursement of expenses are not subject to value added tax.(Guiding principle of the SpuRt editorial office)