In the editorial “Self-conception”, J.Orth, Cologne, discusses the behavior of the sports associations and refers, for example, to UEFA, which has given a clear signal about the values it represents by excluding Russian teams. On the other hand, he said, the behavior of basketball officials, who excluded a referee from competitions because he refused to shave his beard, was incomprehensible, which is probably a clear encroachment on the inviolability of one’s own body, as well as discrimination. In contrast, the Constitutional Court of the State of North Rhine-Westphalia showed an excellent understanding of itself in a decision on an emergency application by 1.FC Köln, which wanted to increase its spectator numbers on the grounds that, on the other hand, carnival was being celebrated without restraint. The rejection in the context of the weighing of interests in favor of health is certainly worth reading. Similarly, the federations in ice hockey and weightlifting had to accept that they cannot adopt old competition rules, because the sole characteristic of a differentiation of the “interpretation” of the sports rules is by no means sufficient. Rather, he said, it is necessary to continuously review and adapt the rules and regulations to ensure their legality.

“Legal Challenges in the Marketing of NFT Licensed Products” is the title of the study by D.Stadtfeld and T. Hahn, Wiesbaden/Würzburg. The market for NFT licensed products (“non fungible token”) is booming not only in the art scene, but has also long been in the field of sports. In particular, the US basketball league NBA sells video clips of game scenes, as well as NFT collectibles such as trading cards of successful athletes and the like. A lucrative secondary market has developed here, from which only sports clubs and associations profit, but not the producers.

The novel technology gives rise to different actors, such as rights holders, producers, first purchasers and second purchasers, which results in a multitude of unresolved legal issues. This paper focuses on the main legal challenges and how to overcome them for rights holders when remarketing NFT licensed products. First, the technical and legal fundamentals are explained: NFT’s are digital entities/data that represent an asset. When a copyright protected licensable content (content) is marketed, a right of use is granted.

It is important to distinguish between (ownership) rights in the NFT and (usage) rights in the content. In the case of NFT production, the intellectual property rights underlying the content remain unrestrictedly with the respective rights holder, who can only grant rights of use to the acquirers (§§ 31 ff UrhG). The prevailing opinion to date generally rejects digital ownership of data, since ownership and possession are only possible of things, i.e., physical objects (§§ 90, 854, 903 BGB). The legal system has so far not granted an exclusive right to data; data lacks the necessary physical separability and rivalry due to its independence from a storage medium and the unlimited possibility of identical reproduction.

In the marketing of NFT products, two basic models are conceivable for the rights holder: The rights holder can market the NFT’s itself, but can also market them by means of a license agreement with a licensee.

Overall, the decisive factor is the protection of the marketed rights by contract law and copyright law. The authors explain individual recommendable regulations in a license agreement, taking into account rights of use within the meaning of Section 31 (1) and (2) UrhG (German Copyright Act), as well as an exact regulation for revenue sharing in the initial and, above all, the particularly lucrative secondary market sales. In relation to the end users, recommendable regulations are given in the ABGs.

Legal claims for protection include, for example, trademark claims under Section 14 (1) of the German Trademark Act (MarkenG) in the case of Bundesliga video cards are possible. Furthermore, protection is provided by a claim for injunctive relief under copyright law pursuant to Section 97 (1) UrhG. Finally, in the event of unlawful acts of infringement, the provisions of sections 15 et seq. of the UrhG come into consideration.

All in all, the marketing of NFT licensed products gives rise to a large number of legal issues, which can, however, be dealt with by means of a precisely described contractual arrangement. Of elementary importance is the distinction between property rights to NFTs on the one hand and rights to use the stored contents on the other. A feared loss of rights should not stand in the way of exploiting the considerable potential of this new marketing model.

In the article “The case of Walijewa – The WADA code and minors” A.Jakob, Karben, describes the problems of the case of the 15-year-old Russian figure skater Walijewa, who won the team competition of the Russian team at the Olympic Games on 07.02.2022 and was provisionally suspended on 08.02.2022, because only at this time the test result of a doping control from 25.12.2021 was announced. The reason was a detected substance trimetazidine in her body in low concentration.

After preliminary hearing, in which it was expressed that the athlete, who drives and is picked up by her grandfather to the training and regularly eats lunch and thereby possibly came into contact with this detected substance, the provisional suspension would be lifted again on February 9, 2022.

This lifting was opposed by the IOC, WADA and International Skating Union (ISU) before the ad hoc CAS arbitration court in Beijing. The arbitration court lifted the provisional suspension on Feb. 14, 2022, with three arbitrators, so that Valiyeva could participate in the women’s individual competition that began on Feb. 15, 2022.

In doing so, the CAS states that with regard to minors, the WADA Code contains a gap which must be filled (Art. 7.4.2 WADA Code).

The author traces this case and deals in particular with the arguments of the parties, some of which requested a new decision and some of which wanted to declare the lifting of the provisional suspension invalid and thus the athlete ineligible to compete. Further, this decision rebuked the jurisdiction of the Ad hoc Panel and explained in detail further arguments in favor of the persons in need of protection and the minors, respectively.

In its decision, the CAS emphasized that the athlete must be treated more leniently because she is a minor and, moreover, that the conditions for imposing provisional measures are not present. It thus considers the lifting of the provisional suspension to be correct. This makes it clear that the authors of the WADC did not think through to the end the interests of the minors and other persons worthy of protection, which is why a correction must be made by WADA.

Finally, the author points out that in the final decision, the evidence of how the substance trimetazidine entered the body still needs to be clarified in detail. So far, too few convincing arguments have been presented here.

Ph. Fischinger, Mannheim, explains in the article “Final whistle 11:00 p.m.: The Youth Employment Protection Act and professional sports (or: “Julian Draxler 2.0″)” an important innovation in Section 14 IV 4 of the Youth Employment Protection Act (JArbSchG)”. According to this, employment of young people in sports is now permitted beyond 20:00 hours until 23:00 hours. The author describes the new regulation and points out weak points and the need for improvement.

First, the author describes the previous violation of the JArbSchG by professional sports, because until now this provision, not to employ young people in soccer games after 20:00, was neither observed nor punished. The example of professional soccer player Julian Draxler on January 25, 2011, who was deployed after 11:00 p.m. and scored the winning goal to boot, is recalled here. This ban on night work, tailored to classic factory work does not fit sports, which is why the legal change in the JArbSchG was long overdue. Sentence 4 of this paragraph reads: “Sentences 1 to 3 also apply mutatis mutandis to the work of young people as athletes in the context of sporting events”.

However, the author also notes shortcomings of this new regulation: Does this extension also apply to training in sports? In other words, is training also a “sporting event”?

After reviewing various other legal regulations, e.g. § 6 of the 18.BImSCHV understood in such a way that training is not to be counted among them. According to § 28 a I No. 8 Infection Protection Act (IfSG), training is again to be considered a sports event. Thus, a uniform line cannot be established. Thus, in case of doubt, underage athletes are only to be used until 8:00 p.m. for pure training. Another question arises as to how the so-called supplementary players are to be handled. Here, too, discrepancies arise; in the opinion of the author, these players are probably to be used on the substitutes’ bench. Also, it is still not clarified what has to happen if the final whistle is blown after 23:00? This regulation is also unclear and in no way meets the needs of practice. The legislator would therefore have to make decisive improvements here. Finally, it has not been clarified whether the many young people in eSports can fall under this regulation? Whether eSports should be counted among conventional sports is disputed. The legislator has not yet commented on this.

Overall, the new provision of § 14 VII 4 JArbSchG is well-intentioned, but in the author’s opinion it is not specific enough, which is why it needs to be improved.

In the article “Employment law aspects of so-called club or clan ties in eSports” by T. Bagger v. Grafenstein/L.Endrös, Munich, the actual market conditions in eSport and the particularities of labor law and contractual constellations between associations and clubs or clans are illuminated. The authors then elaborate on the legal structuring options for those involved in eSports competitions in order to bind athletes exclusively to competitions and teams.

By way of introduction, eSports is defined as competition between people using computer or video games. As an important manifestation of eSports, the so-called eFootball has developed, in which athletes compete against each other in soccer simulations on computers or consoles. Such soccer simulations have been particularly popular for a long time on the green lawn as a result of the extremely popular footfall and are experiencing great acceptance. As a result, the best-known soccer simulations have developed into the FIFA and DFL series of games.

There are parallelisms or interactions between eSports and conventional soccer, which is particularly significant for labor law. Clubs in conventional soccer are direct employers of the players; in eSports, many clubs in eFootball do not conclude a direct employment contract with the athletes, but employment here takes place via an agreement with responsible agencies or so-called eSports clans, which in turn employ the athletes and make them available to the clubs with a further agreement. In the case of these indirect employments of players via clans, the situation may arise where the players concerned compete in a competition under a “club flag” but in parallel compete in one or other competitions under a “non-club flag”. In this case, the organizers have a special interest in binding the respective athlete to the club or clan in the long term in order to increase the attractiveness of the competition. On the one hand, a comparable exclusivity must be achieved as a binding of the athletes to their clubs, on the other hand, an expansion of participations as an athlete of another team or clan must be prevented.

In order to outline the legal options necessary for this, the authors first examine the contribution-relevant background of the ecosystem in eSports. In conventional soccer, it is a matter of course that an athlete does not compete in parallel for another club or team, which is implemented by the statutes of the association. This procedure does not currently apply in eSports, which is due to the different association landscape that applies in eSports, as well as the system of eSports agencies. In contrast to the one-place principle that applies in traditional sports, structures based on club and association law have hardly formed in eSports so far, which is due to various factors, namely the high heterogeneity of the individual disciplines, the continued high volatility of the gaming landscape, the lack of legitimacy to the broad masses, which is why game producers take over the conventional tasks of associations, e.g. the establishment of league structures. The existing system of agencies and clans forms another factor of difference to the conventional sports and association structures.

The authors explain the further design possibilities for the prevention of double activities of the sportsmen: There can be a regulation as an admission requirement in the conditions of participation. Furthermore, a direct regulation in the agreement between the organizer and the athlete, and finally an indirect regulation as a requirement for the clubs or clans in the conditions of participation. They argue that an indirect regulatory option for the organizer is preferable to an indirect binding of the players, which is justified by the currently existing structures in eSports.

This means that the clubs or clans must contractually pass on these requirements to the athletes or agencies concerned. This must regularly be regulated in an employment contract, as the eSportsman earns his livelihood within the scope of his core contractual relationship by using his sporting skills. In this respect, in combination with the fulfillment of the further requirements of Section 611 a of the German Civil Code (BGB) – being bound by instructions, being externally determined and being personally dependent – an employment relationship results between player, athlete and clan, agency and club. As in conventional soccer, the athlete’s duty of loyalty, which flows from the employment contract with the respective club, implements the club relationship. In this case, there would be no risk of inducement to breach the contract with the athlete due to the athlete’s sole obligation under the employment contract.

In the article “Allez Opi Omi” – When Spectators Intervene in the Competition”, P. Lambertz, Düsseldorf, gives an overview of the liability towards spectators at sporting events outside stadiums.

The starting point is the incident at the Tour de France, when a woman who wanted to hold up a sign to the camera brought down a rider with serious consequences for the rider and his team. Since the liability of athletes and spectators in soccer stadiums has been discussed relatively extensively in case law and literature, the liability of spectators outside stadiums has been neglected so far. The author therefore examines this liability from the perspective of injured organizers, athletes, team/employers, and other spectators.

In the case of contractual liability to the organizer, the liability arises from the spectator contract, which is usually a contract for work and services, from which the obligation of the spectator to not disturb the sporting event arises. However, this obligation may also exist contractually if spectators were granted free viewing of the sporting event. A breach of duty towards the organizer can therefore be considered if the spectator has caused the disturbance. In the case of liability towards the athlete, the athlete’s employer and another spectator, contractual liability may exist via the institute of the contract with protective effect in favor of third parties. The author examines the prerequisites of this contractual institute with the result that liability can be considered. In addition to contractual liability, there is also tortious liability in these cases, the elements of which are always fulfilled in the event of a disruption of the game if an athlete or other persons are injured in this context. Furthermore, liability can also be considered under Section 826 of the German Civil Code (BGB) if the spectator has deliberately caused the disruption of the event.

In all these cases, contributory negligence must always be examined. Contributory negligence can be considered if the organizer has not secured the sporting event with appropriate safety precautions, i.e. protective grids or stewards. Contributory negligence on the part of the athlete or other spectators can also be also be considered if these persons have not behaved in accordance with the rules of the sport or in a manner appropriate to the sport.

Finally, the author also explains insurance law aspects and refers to any private liability insurance that may have been taken out, which could protect the injuring party from claims by the injured party. The insurer can refuse a benefit if, according to § 103 VVG in connection with section 7.1 AHB, the injuring party has deliberately acted unlawfully and foresaw the success as possible – both have to be proven by the insurer.

In the article “The use of third-party image and video material in the context of sports sponsorship“, F. Wittersheim, and J. Dahmen, Munich, deal with marketing in the area of sponsorship, which is increasingly taking place in the digital media. This marketing is limited by copyright and trademark law. The authors examine this area on the basis of two examples, namely on the occasion of an advertising film of the sponsor in the context of a partnership with the sports association and further in the context of a self-marketing of a sports association.

In the case of an advertising film for a sports association, the first step is the “filming” of sports video sequences from the YouTube portal. The inserted video excerpts show both the athletes in the context of the competition activity and the entire sports facility. In this context, it is important to distinguish a cinematographic work from a running picture within the meaning of copyright law. Section 95 of the German Copyright Act (UrhG) refers to the protective rights of Sections 88 ff UrhG. A cinematographic work is always characterized by a creative design in the quality of the UrhG, whereas the usual sports broadcasts are predominantly attributed to running pictures. If the latter is the case, no copyright protection is granted. Furthermore, it also depends on whether film or video sequences are filmed from platforms accessible under public law, where no protection rights exist. In contrast, a simple right of use within the meaning of Section 31 (2) UrhG exists for the YouTube video platform, which is why it is necessary to examine the extent to which a secondary use is required within the meaning of the YouTube terms of use.

At the same time, the general limitations of copyright law may apply, where Section 44 a UrhG must be taken into account. Likewise, the right of quotation under Section 51 UrhG may be relevant, although it should be noted that this provision does not explicitly mention the film quotation, but according to case law is considered permissible as a so-called small quotation under Section 51 (1) No. 2 UrhG.

The authors’ own marketing of the sports association or club on the basis of video material produced by the association itself must be judged differently. Here always an editorial use on the own channels, e.g. own web pages of the sport federation, is accomplished, whereby the format takes place thereby in each case in the form of an interview and whose background a sport meeting is to be seen. This also raises the corresponding questions of permissibility. In the case of the filming of a sports event, however, protection is extremely limited, because it lacks the work character of § 2 UrhG. It will rarely be possible to classify it as a work, since a sporting event hardly represents the author’s own intellectual creation.

On the other hand, the limitations of copyright law according to § 44 a to 63 a UrhG could intervene, although the filming of a TV image for the production of an editorial video content by the sports association is also unobjectionable here. The regulation of quotations according to § 51 UrhG as well as the limitation regulation according to § 57 UrhG could also come into consideration.

In addition to copyright law, a violation of the general right of personality could be considered in both case constellations, as could trademark law. According to Section 22 of the German Art Copyright Act (KUG), the special form of the right to one’s own image must be taken into account, with exceptions only applying to persons of contemporary history or to particularly prominent athletes. In trademark law, on the other hand, trademarks in sports operations in particular, e.g. Olympic rings or the club logo of a club, are trademarks worthy of protection, which must be taken into account under certain circumstances.

All in all, both the sports sponsor and the sports association must take particular care to observe the copyright provisions when producing sports video sequences, and must obtain information on the intended use of third-party image and video material in the specific individual case.

The article “Data Protection Law in Sports: Talent Scouting and the Risk of Fines?” by R. Rohrmoser and St. Lask, Berlin, deals with the data-based analyses of young sportsmen and sportswomen in the search for talented youngsters. The dream of many young athletes to be discovered for professional soccer and also other sports is great, the way to get there is difficult and associated with risks. In order to achieve the greatest possible success, clubs have their own scouting departments, where a multitude of data sources have to be evaluated in order to find suitable players. The associated data processing is getting out of hand, which is why it must be legally clarified which data may be evaluated and processed and where the legal limits are.

At the outset, the authors address the permissibility of scouting under data protection law and the legal limits in general. The authors refer to the fundamental article by K. Vieweg, Erlangen, “Sport data – systematization for protection and security” in our journal, volume 2020, page 163. Based on this, the legal basis for the diverse data processing and the balancing of interests between the athletes concerned and the club is Article 6 (1) lit. f) of the General Data Protection Regulation (DSGVO). Furthermore, the fundamental data protection right applies according to the principles of Art. 5 (1) DSGVO, according to which data processing operations must be transparent, lawful and foreseeable, and carried out in “good faith”. Much of the data of professional athletes is publicly viewable. It becomes more difficult, however, when scouting involves very young players and players in the lower divisions. This is because these athletes are not in the public eye.

Responsibility under the Data Protection Regulation arises according to the legal definition in Art. 4 No. 7 of the GDPR and thus in the context of Art. 26 of the GDPR, which clarifies that individual entities cannot be considered in isolation with regard to responsibility for data processing operations. The authors further deal with the sources of data and their lawful usability. First, there is an official league portal in which organizational, competition and training data can be viewed. Health data can also be viewed, although this is only partially available with regard to young players.

The social media profiles of the scouted individuals are particularly informative, as they can be used to analyze the character of the potential player. Here in particular, it is important to note that processing can only take place via the aforementioned weighing of interests pursuant to Art. 6 (1) lit.f) DSGVO. Especially in the assessment of underage players, it is important that data may only be processed if there is a predominant interest (Art. 6 para. 1 lit. f) as well as Art. 38 pp. 1 and 2 DSGVO).

Finally, the authors also explain the risks of fines under Art. 83 GDPR and point out that in March 2021, a fine of €300,000.00 was issued against VfB Stuttgart for negligent breach of the accountability requirement of Art. 5(2) GDPR. The competent data protection authorities have the power to impose fines under Article 58(2)(i) of the GDPR, although it should be noted that data protection violations do not necessarily have to result in a fine, as other and weaker remedial powers are available to the supervisory authorities (Article 58(2)(a) to (h) of the GDPR).

For a commercially acting club to make well-founded decisions, it is essential that data on future players must be processed. However, the special categories and technical possibilities identified here must be taken into account.

The article “Corporate Law Aspects of the Debate on the Establishment of a Super League” by J. Dechsler and J. Drögemüller, Frankfurt/Düsseldorf, traces the connections with the establishment of a Super League and aims to use corporate law facts to prepare for possible options for action in the event that a renewed discussion on the establishment of the Super League arises.

At the beginning the authors describe the developments so far after the publication on April 18, 2021, of the plan to establish this Super League of twelve European soccer clubs, which alarmed the sports world. After the announcement of the plan, the national associations as well as the European soccer federation UEFA threatened the clubs participating in the Super League with exclusion from national leagues and European competitions. German clubs did not sign the intended statement, and FC Bayern Munich and Borussia Dortmund in particular were dismissive. Such an installation would have had serious repercussions, in particular the new league would lead to a significant devaluation of UEFA and Champions League. After considerable public protest, for example from fans and politicians, some clubs cancelled their participation just two days after the announcement of the intended formation – the formation of the league is considered to have failed for the time being. However, a renewed discussion must be expected under certain circumstances, which is why possible options for action are to be pointed out by disclosing the interrelationships under company law.

Lowing the authors look at the legal forms of German soccer clubs and, in particular, the so-called 50+1 rule. As a rule, most German soccer clubs have spun off their professional department into a corporation. FC Bayern München is organized as a stock corporation, while Borussia Dortmund is a GmbH & Co.KG aA. Then, the authors deal with an overview of the interests of different stakeholders of the clubs in relation to the plan to establish a Super League. The main interest of the stakeholders is, of course, the expectation of profit, based on the income from tickets, merchandising products, and the sale of pay-TV subscriptions and sponsorship income. In this respect, the interests of stakeholders and fans are virtually identical. The establishment of a Super League would lead to a devaluation of soccer as a product in Germany, but the positioning on the establishment of a Super League is not uniform.

The authors then examine the decision-making processes of the two clubs FC Bayern Munich and Borussia Dortmund. In the case of FC Bayern München, it is shown that the board of directors has the authority to decide whether FC Bayern München AG should participate in a Super League and that this decision is likely to be legal in terms of content, regardless of whether it is positive or negative. Liability on the part of the Board of Management is regularly ruled out. Pursuant to Section 77 (1) of the German Stock Corporation Act (AktG), the Board of Management is responsible for participation in the Super League, whereas the Annual General Meeting is generally excluded from management. The correct decision by the Executive Board depends on the exercise of management discretion free of discretionary error. Essentially, two sets of opinions can be distinguished here, namely the stakeholder approach and the shareholder value approach. The authors also explain the liability of the management board, which against this background is regularly ruled out for or against participation in the Super League.

If one examines the decision-making situation at Borussia Dortmund GmbH & Co.KG aA, the constellation of interests is very similar. However, it is essential for the decision that the shareholder structures and the role of the management of BVB KG aA are more complex.

The overall result is to be noted: Due to the 50+1 rule applicable to both clubs, the two German clubs are controlled by their respective parent clubs, in contrast to a large number of foreign clubs. In addition to this structural peculiarity of German soccer, the plurality of interests of the shareholders as well as all stakeholders must be taken into account. However, on the basis of the business-judgment rule, the management’s decision can in principle be either in favor of or against joining a league. However, the differences in corporate law between the two clubs do not result in any difference with regard to the standard of liability of the management or the board of directors. Since the discussion about the introduction of an international Super League may be resumed in the future, the stakeholders of the German clubs should press ahead with forming their opinion. In any case, the interests of fans and spectators must be taken into account. They can be a useful source of support.

 

Jurisdiction:

Grenoble Administrative Court, Urt. v. 11.3.2022, Ref. 1906820 (final).

No recognition of British ski instructor license after Brexit.

Art. 26, 28, 126 Withdrawal Agreement, Directive 2005/36/EC, Directive 2013/55/EU, Art. R. 212-288 et seq. Code du sport

1. UK qualifications for sports professions obtained after the Brexit deadline (21.12.2020 as the end of the transitional period) will no longer be recognized as professional qualifications under the terms of Directive 2005/36/EC (amended by Directive 2013/55/EU).

2. The requirements of French administrative law apply to the processing of applications for the recognition of qualifications from other EU/EEA states with regard to the issuance of the professional ski instructor professional card required under French law. Formal errors may give rise to claims for damages but not the issuance of a professional card if the legal requirements are not met. (editor’s comments)

 

Constitutional Court of North Rhine-Westphalia, decision v. 18.2.2022, ref. no. VerfGH 20/22.VB-2

No interim injunction against corona-related restriction of the number of spectators in the stadium

§ Sec. 4 para. 5 a sentence 1 No. 2 CoronaSchVO NRW; Sec. 28a para. 5 sentence 1 IfSG; Secs. 18, 27, 55 VerfGHG NRW

1. The requirements for the statement of grounds for the appeal to be raised on the merits are already reflected in the requirements for the statement of grounds for the application for a temporary injunction (Section 27 (1) VerfGHG). Even if the time limit for filing and substantiating the constitutional complaint has not yet expired, the applicant must at any rate submit the documents required for a sufficient substantiation of the constitutional complaint (§ 18.1 sentence 2 half-sentence 1, § 55.1 sentence 1 and.4 VerfGHG) so that it can be examined at least summarily whether the future constitutional complaint is neither inadmissible, nor manifestly unfounded, nor manifestly substantiated.

2. In cases of particular urgency, only reduced requirements shall be imposed on the statement of grounds for the application for a temporary injunction in order to ensure effective protection of constitutional rights. If the specialized court almost exhausts the period for reaching and announcing its decision despite having announced its recourse to constitutional judicial protection in good time and if this leaves  a  window of opportunity for the constitutional court’s preliminary legal protection proceedings, the resulting difficulty in obtaining urgent constitutional court protection is to be taken into account by a situation-appropriate reduction of the requirements for substantiation that would otherwise be impossible or at best hardly feasible.

3. Whether the limitation of the permissible number of spectators at soccer matches to 10,000 persons, which is regulated in § 4 para. 5 a sentence 1 no. 2 of the Ordinance on Protection against New Infections with the Coronavirus SARS-CoV-2 (Corona Protection Ordinance – CoronaSchVO) of January 11, 2022 (GV.NRW. p. 2 b), last amended by Ordinance of February 16, 2022 (GV. NRW. p. 100a), is justified. 000 persons infringes the rights of the soccer clubs concerned to freedom or to equal treatment cannot be conclusively answered in the proceedings for interim legal protection because of the special standard of obviousness.

a) Insofar as the legislature has the prerogative to make an assessment, it must have exercised this prerogative without error. Information on whether this is the case, in particular whether the legislator has exercised its leeway without contradiction and also in other plausible ways, should regularly be provided first and foremost by the general justification required by Section 28a (5) sentence 1 IfSG. This is therefore likely to be the primary starting point for judicial review.

b) It remains to be seen how far the legislator’s prerogative of assessment extends in detail, in particular whether, for reasons of principle, this falls short of the scope for assessment of the parliamentary legislature, which is democratically legitimized in a special way. The same applies to the question of the consequences of the fact that the Corona pandemic no longer confronts the legislature with a completely new and complex decision-making situation, but that it can draw on an increasing number of reliable empirical values and scientific findings despite the continuing dynamic.

c) It also remains open whether the upper limit of 10,000 spectators – which is at least not obviously unconstitutional – is an expression of a consistent overall strategy on the part of the legislator, also in view of the simultaneous regulation of secured customary zones (carnival).

4. In the context of the weighing of consequences to be carried out if there is an open prospect of success of the main proceedings, it may be relevant whether the economic disadvantages asserted by the applicant alone are such that he must also plan for loss reduction if possible and whether they could have an effect on him that could endanger his existence. (Official guiding principles)

BGH, Urt. V. 2.2.2022, Az. XII ZR 46/21 (previously: OLG Celle, Urt. v. 27.5.2021, Az. 5 U 123/20) (legally binding)

Liability of the player for damage to the tennis hall in case of rented court

§§ Sections 535, 538, 241 para. 2, 280 para. 1 German Civil Code (BGB)

A tennis player may be responsible for damage to the tennis hall in which he has rented a tennis court, which is not covered by the contractual use, even if he cannot be charged with a violation of the tennis rules of the International Tennis Federation (ITF) (following Senate judgment of June 27, 2018 – XII ZR 79/17 – NJW-RR 2018, 1103). (Official lead sentence)

LG Bremen, Urt. v. 31.1.2022, Ref. 8 0 2016/20 (not legally binding).

No player agency commission in case of postponed transfer period.

§§ SECTIONS 133, 157, 652 BGB

The contractually stipulated due date on the last day of the transfer period of a commission share in soccer player placements is postponed according to the hypothetical will of the parties as soon as this is unexpectedly postponed. (Guiding principle of the SpuRt editorial office)

LG Kiel, partial acknowledgement and final judgment v. 30.3.2022, Ref. 17 0 248/20 (not legally binding)

Defamatory statements against an e-sportsmen on Twitch.TV

§§ Sections 823 (1), 1004 (1) BGB; Art. 2 (1) GG

1. The principles for the protection of the general right of personality against defamation also apply to statements made by e-sports competitors when streaming on “Twitch TV”. In assessing the illegality of an encroachment on the general right of personality thereby given, the contextual particularities, such as the level of awareness of the participants, the publicity of the stream and the pillorying effect to be achieved thereby, as well as the possibility of storing and linking the defamatory statements, must also be taken into account.

2. Such an infringement of honor can, taking into account the significance and scope of the encroachment, i.e. the extent of the dissemination of the publication, the sustainability and persistence of the damage to reputation, furthermore the occasion and the motive of the damaging party as well as the degree of fault, lead to the assumption of a serious infringement of the general right of personality, which obliges the payment of monetary compensation.

3. The known “rougher tone” on “Twitch” does not change anything in this assessment. A possible previous insult by the injured party on his part does not play a role in favor of the damaging party, at least if this was hours ago, because then neither the requirements of § 199 StGB are present, nor can a factual-psychological connection with the damaging insult be assumed. (Guiding principles of the SpuRt editorial staff)

 

ArbG Cologne, Urt. v. 25.2.2022, Case No. 7 Ga 11722 (final and absolute)

No right to attendance of a team coach at league games

Art. 1, 2 par. 1 GG; §§ 253 par. 2, 935, 940 ZPO; §§ 315, 611 a BGB; § 106 sentence 1 GewO

1. The interest of a team coach in being present on the team bench at a league match does not outweigh the interest of the employer in exercising its right of direction.

2. Attendance at league games as a partial aspect does not decisively shape the job description of a team supervisor/team manager, so that this does not constitute a corresponding claim under the employment contract. (Guiding principles of the SpuRt editorial office)

StSchiedsG-DEB, Schiedsurt. V. 8.2.2022, Ref. 2 S 02/20 (legally binding)

EU – Unlawfulness of a foreigner’s clause in ice hockey

Art. 60 DEB-SpO; Art. 18, 21, 45 TFEU; Art. 9 GG

1. The regulation in Art. 60 DEB-SpO, which limits the use of “transfer card obligated” – in particular also foreign-born – players to two per game in championship competitions of junior teams, provided that these players do not have German citizenship, violates in any case Art. 21, 18 TFEU and is thus unlawful. The regulation may not be applied to the detriment of EU citizens. The DEB e.V. has leeway in the necessary new regulation because, in the event of a declaration of nullity by the arbitration court, the use of any number of EU and non-EU foreigners would have to be feared.

2. A junior player who, due to the aforementioned unlawful regulation, must fear not being taken into consideration because of the lack of playing eligibility justified thereby, can have it determined before the arbitration court that, contrary to the regulation, he is eligible to play if he fulfills the further requirements for playing eligibility. (Guiding principles of the SpuRt editorial office)

BVDG Court of Appeal, Urt. v. 24.3.2022 (without Az.)

Ineffectiveness of a foreigner clause in weightlifting

Art. 18 TFEU; Art. 3, 9 GG; § 25 BGB

A clause in a championship announcement that provides for a waiting period of three months for “foreigners” when applying for a starting right for the first time after the end of the change period (here: No. 12 of the announcement of the German Weightlifting League) violates Union law and is invalid. (Guiding principle of the SpuRt editorial team)

DFB Sports Court, Urt. v. 8.4.2022, ref. no. 102/2021/2022 (legally binding)

No match assessment in case of short-term exceeding of the permissible team strength

§17 DFB-RuVO

1. On the discontinuation of the right to use substitutes and substitutes in soccer.

2. For the “if” of a substitution (time and selection of the players) the technical responsibility lies with the changing club, whereas for the “how” (for the implementation of the substitution) the responsibility lies with the referee team.

3. In the case of SC Freiburg vs. Bayern Munich, the referee team’s fault for the irregular situation (the presence of a twelfth player on the pitch) outweighs the very slight fault of FC Bayern to such an extent that fault and thus a rejection of the match cannot be considered, also from the point of view of proportionality. (Guiding principles of the SpuRt- editorial office)