Spurt 4/2018

In the editorial “50 + 1 times outsourced” A. Jakob, Frankfurt ventures a glimpse into the future, on the occasion of the 20^th Anniversary of the decision of the DFB to amend the statutes for the spin-off of licensing departments from the clubs.

In particular, the legal discussion of this regulation but also the economic controversy about it (also in our journal) will continue.

The last 20 years of the DFL showed considerable success in terms of sales and media effects. Also, the maximum salaries and transfer arrangements and sales have changed significantly from the employers and have become at least among the top stars, increasingly independent entrepreneurs. Will football become show business and what is the influence of the clubs and their members despite the 50 + 1 rule? The importance of football fans has increased enormously and needs to be given more attention! After all, is the 50 + 1 rule still sustainable in the future? The money of the investors must be in balance with the achievements, whether the clubs with their amateur groupings keep pace with this, therefore, will be followed with great interest.

In the article “Stadium bans and fundamental rights protection” M. Staake, Bremen with the recent decision of the Federal Constitutional Court in SpuRt 2018, 113 about the rejected constitutional complaint against the decision of the Supreme Court (SpuRt 2010, 28) on the stadium ban, which noted that a nationwide stadium ban can be pronounced if there is a factual reason for feared future disturbances.

This ban intervenes decisively in the fundamental rights protected positions, such as, for example, domestic authority and principle of equal treatment . In particular, Staake investigates the relevance of fundamental rights in order to present formal and material requirements for a legally valid stadium ban. An indirect third-party effect may constitute an infringement of the principle of equality, which, in the view of the Federal Constitutional Court, constitutes an objective constitutional principle according to which legal relationships between private parties should be fundamentally shaped by them. The violation of the general right to privacy was again questionable in the opinion of the Federal Constitutional Court.

The formal and material requirements of a stadium ban have already been raised by the Federal Court of Justice and the Federal Constitutional Court, Staake explains this in detail. Also, various sports federations and associations have long been issued guidelines for stadium bans in which the requirements are met. First, the victims must be heard, as well as formally follow a precise justification in writing. The factual reason must be particularly detailed in the reasoning and set out in case of a feared disturbance in the future. A limitation of a stadium ban also requires a precise justification, in repeated serious cases, this can be set up to 60 months. The range of a stadium ban is locally determined only for a stadium; however, the practice is also familiar with local stadium bans. A legitimate stadium ban constitutes a ground for termination or resignation for existing spectator contracts. They represent an exception to the basic obligation to contract.

In the article “Gender as Sporting Access Regulation” – “Intersexuals in International and German Competition Sport”, A. Jakob, Frankfurt gives a summary of the previous debate on the question of the distinguishing characteristics for intersexuals using the example of athletes Caster Semenya and Dutee Chand. Both were able to start at the 2018 Commonwealth Games, because the IAAF temporarily suspended its rulebook with the judgment of the CAS.

Jakob brings a summary of the events since the World Championships in Berlin in 2009 until the decision of the CAS 2018. Due to the increased testosterone levels, both athletes were not admitted, as these values ​​are more likely to be assigned to the male competitors. Jakob thoroughly examines the reasons for gender segregation in competitive sports for the division into men’s and women’s competitions. The so-called “two-gender model” is essentially based on the physical and psychological differences between men and women. This gender-based connotation has changed over time – but sex continues to be a sporting access regulation. Jakob thoroughly examines the findings so far on gender identification and the problem of intersexuals in the national regulations. The key question is whether the hormone value as sporting access regulation can contribute something. As a result, she notes that as the sole distinguishing feature, physical performance justifies classification into women’s and men’s competitions, not the level of testosterone levels. Even if women fall out of the usual categorization of too high a testosterone level, a result close to male values ​​does not mean an increase in male performance at the same time. The introduction of a possible third starting class is therefore not the target.

“Labeling requirement for sport-related advertising in social media”, is the article by F. Holzhäuser and C. Dressel, Munich. The authors point out that often the regulations for the labeling of advertising in the social media are not fully implemented, although all advertising opportunities are fully exploited. It is important to carry out the labeling, because State Media Authorities [Landesmedienanstalten (LMA)] can impose fines in individual cases according to the broadcasting agreement [Rundfunkstaatsvertrag (RStV)], up to € 500,000.00. The authors explain in detail the provisions of the RStV in §§ 2 (1) sentence 3, 6 (1) TMG and § 5 a (6) UWG. The aim of the regulations in the RStV is to ensure the visibility of advertising and transparency, the authors explain the flagship activities according to the RStV and the abstract characteristics of the RStV. Specifically, there are recommendations for labeling by the state media authorities that must be considered. The authors set out in detail the correct labeling of advertising in sports in the social media, because the recommendations of the State Media Authority for advertising blockers also apply to clubs, associations, or the athletes themselves. The service provider is always responsible for compliance with the regulations of the RStV according to § 60 I RStV and § § 7ff, and § 2 No. 1 TMG.

In summary, the authors point out that the participants do often not consider that these discussed labeling obligations are implemented, although much has been agreed in the contracts of sponsors and suppliers. Since there is still a lack of specific case-law in this area, it is necessary in particular to refer to the LMA recommendations, although they cannot be legally binding.

In the article “Junior athletes in host families and the license of care according to § 44 SGB VIII” explains M. Benner, Leipzig the issue of whether the accommodation of junior athletes in host families a license of care of the Youth Welfare Office is required under § 44 SGB VIII, because an unauthorized permission has criminal consequences (§§ 104 I No. 1, 105 SBG VIII). The author explains the requirement of a license of care according to §§ 44 I SGB VI, as well as of stays up to 8 weeks, as well as the student and youth exchange with success, that the mediated admission of junior athletes is subject to permission.

In order to have legal certainty regarding the scope of § 44 SGB VIII, the author recommends to get in touch with the youth welfare office in any case and seek advice.

In summary, it should be noted that the seasonal provision of host families (mediated by sports clubs) admitting junior athletes in their household due to an analogous application of § 44 I 2 No. 5 SGB VIII require no care permit. In any case, as the budget would be criminally relevant in a different opinion, the sports clubs should ensure that the host families have the necessary legal certainty.

Case Law

SchwbG
Art. 54 para. 1, 77, 106 and 107 BGB; Art. 176, 178 and 190 ff. IPRG

Waiver of a CAS award for lack of arbitration agreement

1. According to Art. 178 para. 2 IPRG (Switzerland), the validity or the conclusion of an arbitration agreement shall be judged according to the rules of the case, in particular, those applicable to the main contract or Swiss law.

2. The interpretation of an arbitration agreement depends primarily on the consensus of the actual parties. However, a corresponding subjective interpretation is based on the evaluation of evidence, which is fundamentally removed from the Federal Supreme Court’s review. If there is no actual consensus of the parties, the arbitration agreement shall be interpreted in accordance with the principle of trust, i.e. the presumed will must be determined in such a way as it could and must be understood by the respective recipient of the declaration in good faith.

3. When interpreting an arbitration agreement, it should be noted that the waiver of a state court cannot be easily accepted, so that in case of doubt, a restrictive interpretation is required. (Guiding principles of the sender)

OGH, Urt. v. 17.1.2018, Az. 6 Ob 213 / 17t

§ 3 para. 1 öVerG

Association exclusion from golf club

About the validity of the prohibition of double jeopardy, the extent of the right to be heard and the permissible time between an offense and a sanction for the exclusion of a member from a golf club for conduct contrary to the club. (Orientation sentence of the editors)

CAS, award v. Apr 23, 2018, Az. 2017 / A / 5379 (Legkov./ IOC)

Art. 1.2, 2, 3.1 WADC

Doping block of Russian athletes to Sochi – Legkov case

The arbitral tribunal must be convincingly presented with individual actions or omissions by an athlete in order to prove his or her guilt in a specific anti-doping rule violation. The possible existence of a comprehensive sample exchange and concealment system at the Olympic Games is not sufficient. (Guiding principle of the editors)

LG Munich I, Urt. 25.4.2018, Ref. 37 O 7111/17 (not legally binding)

§§ 826 BGB, 20 Abs. 5 GWB

Admission to monopoly association

1. According to the settled case law of the BGH, a club or association holding a monopoly position or, more generally, in the economic or social sphere, has a superior position of power, according to Art. §§ 826 BGB, 20. Abs. 5 GWB be obliged to accept an applicant if there is a significant or fundamental interest in the acquisition of the membership.

2. If a monopolistic association rejects the admission of a membership applicant based on a statutory restriction on admission, the purpose of which is objectively justified, the admission restriction may nonetheless be ineffective if any purpose can also be achieved by a different, “milder” constitution, which would enable the applicant’s membership.

3. The mere fact that the one-place principle finds widespread application in world sports does not justify a legitimate interest of the defendant in maintaining it. (Guiding principles of the sender)

BAG Urt. 16.1.2018, Az. 7 AZR 312/16

§ 14 para. 1 sentence 2 no. 4 TzBfG

Time limit for employment contracts in professional football – Heinz Müller case

The limitation of the employment contract of a licensed player of the 1. Bundesliga is regularly objectively justified according to § 14 Abs. 1 Satz 2 Nr. 4 TzBfG by the peculiarity of the work performance.

LAG Frankfurt a. M., Urt. 15.03.2018, Az. 9 Sa 1399/16 (not legally binding, previously: ArbG Frankfurt am Main, judgment of 14.9.2016, Az. 6 Ca 1686/16, SpuRt 2017, 211)

§§ 611 BGB, 17 TzBfG, 4, 7 KSchG

Employee status of the DFB referee of the licensees

The written agreements concluded between the DFB and the referees of the licensees (and the third league) before the season, constitute a framework agreement and do not establish an employment relationship. (Guiding principle of the editors)

DFB Federal Supreme Court, Urt. 27.2.2018, Ref. 2/2017/2018 (legally binding)

§§ 25 BGB, 260 StPO; Arts. 9 para. 1, 103 para. 3 GG

Subsequent punishment of racist and discriminatory incidents in football

1. The prevention of racist and discriminatory incidents in football is of particular importance to the DFB and its members. They also receive special treatment in the statutes and legal provisions because such incidents are diametrically opposed to the central values ​​and goals of the association.

2. Also, in proceedings for such violations, which can be operated according to statutory order “ex officio” by the competent legal body, are at the question of possible acceleration, investigation and sentencing the competent district court, the honorary structure, and the specifics of the law to take into account.

3. In the case of procedures that can be carried out “ex officio” according to the statutes of a football association, there is no need for an application from the president or presidium of this association. Its absence does not create a “procedural obstacle sui generis”.

4. The criminal procedural principle “ne bis in idem” unfolds in the association’s criminal law only under consideration of the peculiarities applicable there. In the specific case, however, even according to the standards of state criminal law, there is no violation of the double punishment ban. (Guiding principle of the editors)

BFV-VerbandsG, Urt. May 11, 2018, Az. 00063-17 / 18-VG (final)

§§ 11c, 46 SpO / BFV, § 23 RVO / BFV, § 33 AtO / BFV

Game rating after unauthorized use of players from a higher team.

1. If a club violates § 11 c of the rules of the BFV (SpO), according to which in a lower team not more than two over 23 players from a higher team may be used, in the four immediately preceding competitive matches of the higher team can only be used twice if they are used more than twice the game according to § 46 no. 1 lit. C alt. 1 SpO is given 3: 0 goals in favor of the opposing team.

2. If such an infringement is challenged by an objection of the opposing club according to § 23 of the Legal and Procedural Regulations of the BFV (RVO), there is a ground for refusal pursuant to § 23 no. 6 lit. a then, if the ruled process has influenced the game outcome with a high probability but not crucial game. The decision on this must be made by way of a forecast decision. It falls to the detriment of the club, which has violated the unauthorized use of over 23 players against § 11 c SpO, if the use of the over 23 players led to increasing the dynamic of the game.

3. For the purpose of § 23 no. 6 lit. A forecast decision to be made is to be based on the unauthorized playing of all unauthorized game, by the use of the facts of § 11 c SpO is met. (Guiding principle of the sender)

VJSG FVM, Urt. 7.2.2018, Az. 2/18 (legally binding)

§ 25 BGB; §§ 1, 19 ff. RuVO / WDFV

Inadmissibility of an exclusion from qualifying matches by a district committee

On the need for a sufficient authorization basis for the exclusion of a team from the game operation (special squad qualification games) on the basis of implementing regulations at the district level in the youth amateur football.

(Orientation sentence of the editors)