In the editorial “State spectator exclusions in the Champions League”, Wolf-D. Walker, Gießen, deals with the first state spectator exclusion in Naples. Here, as a result of the fans who had nevertheless travelled from Frankfurt, there were serious violent riots among the fans and with the police in the city centre.

The state exclusion is to be questioned here, both with regard to the restriction of the passive freedom to provide services under European law and from the point of view of proportionality. From a sporting point of view, it also leads to a distortion of competition. UEFA judges this exclusion in the same way, but in Walker’s opinion it could only change the rules and regulations of UEFA’s association law as a countermeasure. For example, in the event of a state spectator exclusion, the home match of the host club could be moved to another venue, possibly abroad, or a so-called “ghost match” could be ordered in order to undermine state spectator exclusions.

In the article “The protection of sporting competition through criminal law“, Xinyi Liu, Beijing, deals with the question of what protection criminal law offers through the provisions of the Anti-Doping Act since 2015 and the provisions of § 265 c StGB (sports betting fraud) and § 265 d StGB (manipulation of professional sporting competition) and how the protection is to be assessed. In the past, critical voices have been raised about these provisions in the literature. Their application in practice can also be evaluated in the meantime.

The author begins by providing an overview of the protection afforded by these provisions under criminal law and then examines their significance and scope of application. In the case of self-doping, criminal liability under § 3 is restricted by § 4 para. 7 AntiDopG to athletes who are subject to training controls or who earn income from their sporting activity, which has been the subject of considerable criticism. In the case of §§ 265 c, 265 d StGB, punishability is again restricted with regard to the scope of the sporting competitions involved. Whether there is decisive comparability in this regard, however, is disputed. The legislative materials show that the legislator wanted to justify the limited criminalisation in both the AntiDoping Act and §§ 265 c, 265 d StGB with the publicity and the economic connection of the sport. These two criteria are analysed in detail by the author. In doing so, he deals in particular with the principles in sporting competition, i.e. the observance or violation of the performance principle, and especially with self-doping as the regrettable result of the performance principle.

In addition, there are also differences in the way sport is attacked. For self-doping is an internal attack on sporting competition, while match-fixing is always an external attack. Finally, both provisions have in common that the punishability is, so to speak, brought forward, because it occurs at an earlier point in time than the actual injury. The practical effects are also examined in detail with the help of an empirical study of police crime statistics as well as surveys by the public prosecutor’s office on the prosecution of doping offences.

As a result, the author then presents proposals for the further development of the criminal offences de lege ferenda: In his opinion, the state must become more active from its previous passive role and, in addition to the negative obligation to refrain from unlawful interference with freedoms and rights, also to switch to a positive obligation in order to protect citizens. In the field of sport, it is important to remedy the deficiencies in development and to intervene in its structure. In any case, the criminal protection of sport that has taken place so far is to be welcomed. In addition, however, there are suggestions for improvement in the specific facts. In doing so, the author proposes to delete the restriction of the circle of perpetrators in self-doping according to § 4 para. 7 AntiDopG without replacement. With regard to the punishment of match-fixing agreements, he also recommends lifting the restriction to professional sports competition under § 265 d of the Criminal Code, as well as considering converting §§ 265 c, 265 d of the Criminal Code into a separate criminal offence of manipulation in the future and alternatively setting up sports betting as a qualification.

ewIn the article  “Selected legal questions on the legal status of elite football referees“, Ph. Fischinger, Mannheim,  deals  with questions raised by the decision of the Frankfurt Regional Court of 25.1.23 ( SpuRt 2023,151 ) on discrimination by age limit. Going to the ordinary courts was certainly expedient, because the Higher Labor Court of Hesse, but also the Labor Court of Frankfurt, have each denied the employee status of the arbitrators, although the opinion has recently spread more and more in the literature that the framework agreement concluded between the referees and the German Football Association (DFB) is to be qualified as an employment contract. Despite the fact that a referee is not bound by instructions and is not obliged to work, it must be assumed that he or she is part of the DFB’s organisation, as recently stated in the so-called crowdworking ruling in a different context. So it can only be hoped that the Federal Labor Court could be given the opportunity to make an accurate decision on this question in the near future.

The author deals in detail with the “age limit 47”, at which there is an inadmissible discrimination. The author deals in detail here with the personal scope of application of the General Equal Treatment Act (AGG) and here with the provisions of §§ 6 I No. 3, 6 III AGG, according to which the arbitrator is also subject to these provisions. There is also age discrimination. The questions of justifying this age limit for the arbitrator are also addressed according to the aspects of § 10 AGG and in particular the characteristic of a balanced age structure and the promotion of young talent. Age discrimination exists overall and, as the Frankfurt Regional Court has decided, is not justified either under §§ 10 AGG or 8 AGG due to special capabilities and performance requirements. As a result of this inadmissible discrimination, the arbitrator is thus entitled to compensation under § 15 II AGG as well as further claims for damages, as the BGH has ruled for some time.

In the article “Fines against clubs as an effective means against the burning of pyrotechnics – according to the Federal Court of Justice of Jena”, D. Monheim, Munich, again deals  with the Federal Court of Justice ruling of 04.11.21 (SpuRt 2022, 44 et seq.), with its constitutionality and the view for the future in order to prevent the realization of the dangers associated with pyrotechnics. This judgment has repeatedly raised questions in the past and has also been discussed in our journal  by Walker in SpuRt 2022,10, among others, and also by Orth in NJW 2022, 220.

At the outset, Monheim points out that the DFB,  encouraged by the Federal Court of Justice, which accepted § 9a of the DFB legal and procedural regulations as a no-fault association penalty, continues to prohibit the Bengalos without exception and impose considerable fines. Since the question of the constitutionality of § 9a of the DFB’s legal and procedural regulations is in question, a constitutional complaint was filed against the decision of the Federal Court of Justice. Since hardly a weekend goes by in German professional football without pyrotechnics burning off, a solution must be sought. The DFB’s guidelines for improving security at national matches require in § 24 no. 1 that the club must do everything possible to avoid pyrotechnics, but a solution is far from in sight.

The author again examines in detail the provision of § 9a of the DFB’s legal and procedural regulations on the responsibility of clubs with regard to security and order and, as a consequence of non-compliance, the criminal provision as well as in detail the possible unconstitutionality of the decision of the Federal Court of Justice and the arbitral tribunals. The current views are repeated on the question of “nulla poena sine culpa” and the violation of the principle of certainty and proportionality of the fine imposed.

In conclusion, this leads to the observation that, apart from these legal issues, it cannot be ignored that the phenomenon of pyrotechnics is not disappearing, but is increasing, despite sometimes high fines. Therefore, it cannot be in the interest of the DFB to continue to miss the goal of keeping match operations free of pyrotechnics with demonstrably unsuitable measures.

In the article “Responsible Ownership and Professional Football – A Form of Organization for Value-Oriented Clubs?”  J. Brand, Frankfurt am Main, and V. Franke, Potsdam, examine  the question of whether so-called responsible ownership can be considered for professional football in order to achieve the right balance between the pursuit of profit and the common good. Responsible ownership is increasingly an object of entrepreneurial practice. Here, personal profits of the shareholders are perpetuated and questions of succession are regulated.

According to the authors, this question of how clubs and associations should align themselves also arises again and again in professional football. In any case, the starting point is the existing 50+1 rule. In its form, the discussion is primarily legal and economic, but at its core it is also a discussion of values. Clubs and associations have to conduct this discussion with all parties involved in order to then make decisions, which is why the question arises as to whether so-called responsibility ownership is an alternative for those associations that are committed to member participation in social participation and responsibility.

First of all, the authors deal with the problem of the lack of legal form in the association and the fear of investors. The status quo in professional football is, of course, the requirements of association law, football company law and the ownership of the clubs. Since it has been clarified in the development of professional football that the registered club is an inappropriate legal form, it is a question of the spin-off of the licensed clubs. These well-known facts are presented by the authors and, with regard to the 50+1 rule, the question is asked whether it is still sufficient and up-to-date.

When discussing whether responsible ownership can be the solution for professional football, the criteria of this term are presented in detail at the beginning and the question is raised as to how it can possibly benefit professional football clubs if they want to secure their values for a long time. According to current law, the solutions could result from the foundation models or from the so-called veto models in the area of a limited liability company. One comes to the conclusion that responsible ownership by no means solves all problems in professional football, which is why the authors come to the following conclusion: An organization of professional soccer clubs in responsible ownership is generally considered, but the foundation models presented currently fail due to the 50+1 rule, whereas an organization in the veto model would be conceivable. However, the organization in responsible ownership can also entail competitive disadvantages – which is why further developments must be awaited.

In the article “Inadmissible clauses in gym  terms and conditions”, R. Minderock, Linz/Austria, gives an insight into Austrian law on general terms and conditions clauses and at the same time on the system of representative action in the focus of the decision of the Austrian Supreme Court of 18.10.2022, who  dealt with a lawsuit brought by the Federal Chamber of Labour regarding five clauses of his gym chain, in particular clauses relating to long contractual commitments, extraordinary reasons for termination as well as data protection clauses and additional fees.

First, the association process in Austria and its general purpose is explained. The representative action exists in various manifestations, especially in competition law and in disputes on clause-specific issues, altogether a system that is very similar to German law. Subsequently, the author explains general information on the general terms and conditions clause control, which is also designed here in a similar way to German law, namely validity control, transparency requirement and content control. In the above-mentioned decision of the Austrian Supreme Court, five clauses were in dispute. First of all, the clause of a three-month notice period under a waiver for the first twelve months of the contract. The Supreme Court, as well as the lower courts, described these as non-transparent in detail. The second and third clauses concern the right of the gym operator to terminate the contract prematurely if “actions and statements of a member are detrimental to the provider’s business” and there are important reasons, in particular “actions of a member aimed at reducing the provider’s customer base (poaching)”. This clause was judged by the Supreme Court to be grossly discriminatory according to § 879 ABGB according to the previous case law in Austria, with the consequence of nullity. Finally, the fourth clause, by which the operator equips all parts with a video camera and stores its recordings, was judged to be invalid, because this is indisputably an invasion of privacy. Finally, the fifth clause was considered invalid because it charged other fees to the administration in addition to the usual fee.

In summary, the author notes that the Supreme Court does not proceed according to the usual system, namely validity control, transparency requirement, content control, in its clause review, but rather proceeds from a practical point of view according to the severity of the violation. Likewise, this Supreme Court decision results in a change in case law with regard to the possibility of control, this with regard to loan processing fees. In the future, this could be important for all special charges and additional services in other contract areas, e.g. mobile phone contracts.

In the article  “Sports law “perennial favorite” and NADA-system criticism – the Vuskovic case”, J. Kleen, Düsseldorf,  discusses  the decision of  the DFB Sports Court of 30.03.2023 ( Spurt 2023,255 ) in the Vuskovic case, which raised a lot of legal questions. After  a positive training check in September 2022, during which EPO was detected, professional footballer Mario Vuskovic was provisionally suspended by the DFB Sports Tribunal in November with immediate effect until the DFB Sports Tribunal’s decision on the merits. The player complained about the course of the test procedure. The sample had only come to the laboratory after four days, was supercooled and not sealed immediately after the test. A confusion of the sample with another player was also brought forward and further errors in the test and analysis procedure carried out. In a decision in March 2023, the DFB Sports Court then imposed a two-year ban, thus reducing the four-year ban under Section 8 b (1) a) RuVO-DFB according to various aspects of proportionality. This ruling was appealed to the DFB Federal Court and the CAS. In the meantime, the DFB Federal Supreme Court ordered that the appeal proceedings be temporarily suspended during the other proceedings before the CAS.

In her analysis, Kleen points  out a number of legal issues in this case, in particular the procedure used by NADA to prove EPO, as well as the question of proportionality in connection with the reduction of doping bans. Furthermore, there are critical voices against the involvement of WADA’s expert committees in the review, which have participated in the WADA regulations and therefore cannot be independent. Finally, there is also the aspect that the association’s internal path is to be exhausted without the procedure being suspended for the time being, as is the case here. The author first examines the sports court proceedings before the DFB Sports Court and, in particular, the question of the extent to which NADA, as a party to the proceedings, can be entitled to conduct an independent evidentiary procedure. At the same time, it is questionable whether the DFB’s control committee is entitled to appeal. The legitimacy of NADA is also in question.

It is particularly questionable why the DFB’s Federal Supreme Court is suspending the appeal proceedings until the CAS has decided. After all, the CAS also deals with the facts of the case in the appeal proceedings and makes a final and binding decision. Again and again, the issues of sufficient anchoring of penalties in the statutes while ensuring the binding of the association members to the statutes of the umbrella organization are controversial. In any case, however, the player is bound by the anti-doping regulations of the DFB via his license agreement and employment contract with the club. Highly controversial, the so-called SAR-PAGE procedure can hardly be sufficient when it comes to the question of proof of taking the EPO. In the question of whether proportionality is maintained on the occasion of the reduction of the standard penalty, the author explains the basic aspects, but also uses the already judged cases  of Squizzato and Guerrero in comparison.

Overall,  the Vuskovic case  and the ruling of the DFB Sports Court offer a large number of classic sports law issues. In addition, it will be interesting to see the result of criminal liability under the Anti-Doping Act, in which the public prosecutor’s office investigates in parallel and in which, unlike in sports court proceedings, the principle of strict liability does not apply.

Jurisdiction:

ECJ, Urt. v. 9.2.2023, Az. C713/21 (final)

VAT when participating in tournaments with other horses

Kind. 2 para. 1 Directive 2006/112/EC

Kind. Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the single supply provided by the holder of a training stable for competition horses, consisting of the accommodation, training and participation in competitions of horses, constitutes a service for consideration within the meaning of that provision where the owner of the horses provides that service by assigning half of the price paid to him in the event of a successful participation in the tournament of his  horses are entitled to the prize money won. (Official answer to the question referred)

ECJ (GA Szpunar), Schluss A v. 9.3.2023, Az. C-680/21

Compatibility of UEFA homegrown players rules with the free movement of workers

Kind. 45, 165 TFEU

1. Art. 165 TFEU addresses only the Union, but not the Member States or private sports federations.
2. Art. Article 165 TFEU does not preclude the development of a European model of sport by the Union, but does preclude the transfer of tasks from the Union to private sports federations.
3. Restrictions on the free movement of workers pursuant to Art. 45 TFEU are to be assessed only on the basis of general principles, which, however, are to be evaluated with recourse to Art. 165 TFEU.
4. Art. 45 TFEU must be interpreted as precluding rules on youth players laid down by football associations, which require clubs to enter on a list of a maximum of 25 players, which must include a minimum of eight young players, in order to participate in the competitions in question, in so far as such young players may come from another club of the national football association concerned (see also paragraph 83 of the applications). (Guiding principles of the SpuRt editorial team)

Zivilappellgerichtshofe der Provinz Madrid, 28. Abteilung, Beschl. v. 30.1.2023, Az. 1578/2022 (Superleague Company SL ./. Liga Nacional de Fútbol Profesional, Real Federación Espanola de Fútbol, UEFA)

Re-establishment of provisional measures in the Superleague

Kind. 102, 165 TFEU; Kind. 53-54 UEFA Statutes; Kind. 726, 728, 730, 736, 743 LEC (ZPO Spain)

1.FIFA/UEFA’s concerns about the expected income from the intended business of the Superleague are not sufficient to justify any anti-competitive behaviour on the part of FIFA/UEFA.

2.Due to imminent danger, interim measures aimed at deterring UEFA and its national associations from threatening or, if necessary, imposing sanctions against potential Superleague founders/partners shall be reinstated while the proceedings before the Commercial Court of Madrid and the ECJ are pending. (Guiding principles of the submitter)

FIFA-DRC, Urt. v. 1.2.2023, Az. FPSD-6826 (not legally binding)

Transfer ban against 1. FC Köln after inducement to breach of contract

Art. 13 ff., 17.4 FIFA-RSTS

On the requirements for the “valid reason” for a (unilateral) termination of the contract i.S.d.Art. 13 et seq. FIFA-RSTS (compliance with the principle of ultima ratio), for the calculation of compensation pursuant to Art. 17 para. 1 FIFA-RSTS and on the sporting sanctions against the player and the host club if the player terminates the existing contract with the selling club without good reason. (Orientation sentence of the SpuRt editorial team)

BVerfG, 2nd Chamber of the First Senate, dec. v. 2.2.2023, Az. 1 BvR 187/21 (formerly: LG Itzehoe, judgment of 5.11.2019, ref. 7 O 104/19; Schleswig-Holsteinisches OLG, Urt. v. 16.12.2020, Az. 9 U 238/19)

Expulsion of an NPD member from a sports club

Kind. 2.1, 3.1 and 3, 9.1, 20.3 of the Basic Law; §§ 25, 38 BGB

If a private amateur  sports club expressly aims at an orientation towards the free democratic basic order with its statutes and opposes extremist, racist and xenophobic tendencies, this is constitutionally unobjectionable. (Guiding principle of the SpuRT editorial team)

BGH, dec. v. 28.7.2022, Az. I Zr 11/22 (formerly: OLG Munich, judgment of 25.11.2021, ref. 29 U 5825/20) (legally binding)

Work Feature of Football Player Caricature

Kind. 103.1 of the Basic Law; Section 544 (9) of the Code of Civil Procedure; § 2 UrhG

An attributive drawing of professional soccer players and an associated slogan can be combined to create a copyrighted work within the meaning of the German Civil Code. § 2 UrhG. (Guiding principle of the SpuRT editorial team)

LG Koblenz, Urt. v. 2.9.2022, Az. 9 O 140/21 (legally binding)

Compensation for pain and suffering for bicycle accident with riding horse

§833 BGB

Already by the surprising turning of a riding horse with its rear end in the direction of a cyclist, so that he has to brake hard to avoid a collision and falls, the specific animal danger of § 833 BGB is realized. (Guiding principle of the SpuRT editorial team)

LG Bremen, Urt. v. 24.2.2023, Az. 4 O 674/21 (not legally binding)

No compensation after forced relegation (SV Wilhelmshaven III)

§§ 280 (1), 31, 823 (1), 249 (1) BGB; Section 287 of the Code of Civil Procedure

1. A forced relegation of a football team ordered by the association is not causal for the alleged economic damage to the club as a result of this relegation without further proof if the team concerned was already in a relegation place and would therefore have been relegated for sporting reasons.
2. The fact that the forced relegation would necessarily result in a loss of motivation of the players would have to be proven by the course of the season, whereby the players have a special interest in recommending themselves to other teams through particularly good performances in view of the established forced relegation.
3. In determining the hypothetical assets of a football club, league affiliation is not only associated with higher revenues, but also with higher expenses, e.g. For player salaries and travel expenses. (Guiding principles of the SpuRt editorial team)

LG Bremen, Urt. v. 28.3.2023, Az. 2 O 307/23 (legally binding)

No injunction against pyro-induced partial spectator exclusion

Art. 9 Abs. 1 GG; § 25 BGB; § 9 a RuVO-DFB; § 38 NFV-Satzung; §§ 935, 940 ZPO

1. From the point of view of a necessary statutory basis for authorisation for the imposition of an association penalty, it is not objectionable if the association’s statutes only provide for a complete exclusion of spectators for home games (and not also expressly a partial exclusion) as a sanction. This is because the partial exclusion is included in the complete exclusion of spectators as a minus.
2. The proportionality of the imposition of a partial exclusion of spectators by a football association against a regional league club for the burning of pyrotechnics at an away match in the event of significant criminal offences under sports law. (Guiding and orientation sentence of the SpuRt editorial team)

AG Frankfurt a.M., Urt. v. 30.3.2023, Az. 30 C 1081/22 (nothing final)

No entitlement of a junior to play for the A-Juniors

1. Direct and indirect members (clubs and their members) of a national football association have no basis for entitlement, on the basis of which the association could be obliged to create a desired regulation or to launch a pilot project. This is necessary because of the autonomy of the association according to Art. 9.1 of the Basic Law is reserved for the formation of the association’s will and thus for the bodies responsible in accordance with the statutes.
2. A member club and one of its players shall not be entitled to be granted a right to play against a national football association organising the competition if the desired right to play is not provided for by the association’s rules. This applies in particular to the granting of a (female) junior to the (male) A-juniors of her club. (Guiding principles of the SpuRt editorial team)

VG Frankfurt a.M., Beschl. v. 17.2.2023, Az. 5 L 485/23.F (not legally binding)

Prohibition of residence and entry for an out-of-town football fan

§31 para. 3 HSOG; §§ 80, 88, 122 VwGO; § 16 HessAGVwGO

1.The condition for the order of the residence ban is that, according to the police assessment, the prognosis was made ex ante without any error of law on the basis of facts that the person concerned would commit criminal offences in the specified place or places during the relevant period. There must be verifiable events that are accessible to evidence from which it can be concluded with the necessary certainty that criminal offences are imminent by the person concerned.

2.By wording prohibiting a person from entering “this area”, the first sentence of Paragraph 31(3) of the Hessian Law on Public Safety and Order (HSOG) refers to the preceding criterion of the ‘specific local area within a municipality’. Accordingly, the residence ban is to be limited locally to one or more parts of a municipality and cannot be decreed across the board for the entire territory of a municipality. (Official Guidelines)

ArbG Gelsenkirchen, Urt. v. 27.7.2022, Az. 2 Ca 563/22 (not applicable)

No limitation of the trainer contract due to risk of wear and tear

§14 TzBfG

1. The abstract danger in professional football of the imminent wear and tear of the personal relationship between the coach and the individual athletes cannot become acute due to the high fluctuation of the team in the head coach of a senior team.
2. In the absence of objectifiable criteria, it cannot be assumed when concluding a coach’s employment contract that the motivational power of the coach of the senior team would decline across the board after one year. Rather, the agreed contract extension in the event of promotion shows the possibility of continued successful motivation of the players by the coach.
3. The interest of the football club in offering other coaches a perspective with the post of head coach of the senior team and in training its own coaches cannot justify the limitation of the employment contract of the head coach under § 14 TzBfG. (Guiding principles of the SpuRt editorial team)

LAG Niedersachsen, Urt. v. 17.11.2022, Az. 5 Sa 341/22 (formerly: ArbG Hannover, judgment of 29.3.2022, ref. 1 Ca 147/21)

Permissible transfer of a coach to the junior section

§611 a BGB; § 106 GewO; § 8 SpO-DFB

1. In the case of a rehabilitation and athletics coach employed by a professional football club, the employment contractually agreed employment in the “licensed player area” does not preclude a transfer within the framework of the right of direction to an area of responsibility as a rehabilitation and athletics coach in the youth section of the youth performance centre if the athletes supervised there are also “licensed players”.
2. For the interpretation of the term “licensed player”, the provision in § 8 SpO-DFB is decisive, according to which a licensed player is a player who operates the football match on the basis of a written contract concluded with the licensed club or a corporation and is admitted to play by concluding a written license agreement with the DFL. (Guiding principles of the SpuRt editorial team)

DFB-Sportgericht, Urt. v. 30.3.2023, Az. 218/2022/2023 (not legally binding)

Reduced doping ban for Mario Vuskovic

§8 RuVO-DFB

1.The requirements for the detection of rEPO in the doping sample.

2. The ban of four years for a first doping offence pursuant to § 8 b No. 1 a) aa) of the DFB Legal and Procedural Regulations – in the presence of a prohibited non-specific substance – is disproportionate in the individual case given here and must be reduced, because the Sports Court in the present case assumes at most a one-off offence with a small amount of the prohibited substance by a very young first-time offender,  where such a long ban – unlike athletes in other, less popular sports – would regularly mean the end of his career and the economic impact on him would also be more intense. (Orientation and guiding principle of the SpuRT editorial team)