In the article “Black lives matter – and the fairy tale of apolitical sport” Jan F. Orth, Cologne, raises the question whether the athletes are allowed to show their solidarity with George Floyd, who was killed by American policemen, and the Black-lives-matter movement. They should!
Although not on the sports field and during the competition, this is certainly not what the rules say. You must not be distracted from the competitions. However, responsible athletes should be able to express their opinion during the sport. Therefore, the federations must finally give up their previous opinion that sport must remain apolitical. In this respect, the author clearly criticizes the federations. As part of the population, athletes must be allowed to express their views on fair play as well as their position on equality, equal rights and anti-discrimination. They would have done so on various occasions, whereas in the following discussion the federations did not take a clear sovereign position, but rather only expressed different and vague protests.
In the article “The effects of the corona crisis on employment relationships in professional sport”, P.S. Fischinger, Mannheim, continues the discussion of wage issues, the possibility of reducing wage costs and exit clauses in employment relationships in professional sport.
With regard to wage issues, the employer is obliged to pay the basic remuneration even if the gaming operation has been closed down due to official measures. The situation is similar with regard to bonuses, as part of the remuneration, where it depends on the individual circumstances of the payment of bonuses, e.g. bonuses for games played, goals scored or such bonuses that depend on the total number of games of the individual player. In any case, the starting point is the so-called loss of earnings principle pursuant to § 615 sentence 1 BGB, according to which the employee can demand the remuneration which he would have received if the default of acceptance had not occurred. In the case of bonuses for a total seasonal performance, the individual point of reference will always be decisive, namely whether it is an individual success or a team success.
The question of the extent to which there are possibilities for the club to reduce wage costs as a result of an interruption of the season or a termination of the current employment relationship will address the various possibilities, e.g. an amicable salary waiver, the introduction of short-time work (see Fischinger/Hengstberger, NZA 2020, 559). In Fischinger’s opinion, a change of notice of termination to reduce the remuneration payment is not ruled out in principle, but is possible only under strict conditions due to the intervention in connection with the duty to work and the duty to pay wages.
Finally, Fischinger also deals with the fate of exit clauses, according to which players have the right to withdraw from the current contract before the end of its term: Here, the question of how far the expiry date can be adjusted to suit the circumstances is particularly important, as is whether a reduction in the amount of the exit clauses is possible on the basis of supplementary interpretation of the contract.
In the article “Sports data – systematization for protection and security”, K. Vieweg, Erlangen, Germany, takes on the task of systematizing sports data, because their diversity and quantity require this in order to comply with the requirements of the basic data protection regulation, also, data protection and data security requires this. The author proposes a structure for the systematization of 8 categories.
As a starting point, the questions that arise include which information is to be regarded as data within the meaning of the Basic Data Protection Regulation (DS-GVO) and the data protection laws of the Federal Government and the Länder (German states)? Who may generate this data and under what conditions? To whom does this data belong? Such answers have to be differentiated according to the persons responsible for sports and their relationship to the group of persons concerned.
Systematization must be based on personal data (Art. 4 No. 1 DS-GVO) and on data relating to persons in need of special protection (Art. 9 para. 1 DS-GVO). Vieweg now proposes categories for systematization which are linked to various occasions and purposes for the collection of sports data and which are intended to facilitate practical handling by those responsible. These are in particular organizational data, competition data, training data, residence data, medical examination data, other event data, occasion data and donor and sponsor data. These categories are described and explained in detail by the author.
Finally, Vieweg gives recommendations for practice, based on the valuable advice of the DOSB and some state data protection officers:
The starting point for determining the lawfulness of the processing of personal data is Art.6 Paragraph 1 DS-GVO, a norm as a prohibition, subject to authorization, for which precise facts are given in Art. 6 Paragraph 1 DS-GVO. A further starting point for determining data protection principles is also to be found in Article 6 (1) DS-BER, which, however, refers to other provisions of the DS-BER, from which, inter alia, the transparency requirement arises, as well as the principle of purpose limitation, the principle of necessity and the principle of factual accuracy. With regard to practical handling, it should be noted that the sports data managers must first systematically record and also document the sports data collected in their organization. This then results in the task of the specific admissibility check, which always causes practical problems.
All in all, this practice-related contribution offers data protection officers a comprehensive overview for precise work. First of all, the concept of performance data is explained and brought into consideration in accordance with Art. 9 Para. 1 DS-DVO, according to which the special categories, in particular health data, are to be defined.
N. Winter, Cologne, also deals with the data protection requirements for the analysis of training data in the article “Performance data in the context of data protection law”. As is well known, professional sports clubs process a large amount of data from their games in order to use them specifically and effectively in training, also to avoid injuries caused by incorrect loading and to prevent overloading. Data protection law plays a major role in this.
The central question, on which legal basis the collection and analysis of training data can be based, is explained in detail by the author and the problem is described. First, the concept of performance data is explained as a starting point.
Furthermore, the author deals with the legal bases for the analysis of performance data, which he discusses in particular with Art. 4 No. 2 DS-GVO, also with data processing for the purpose of carrying out the employment relationship according to § 26 para. 1 p. 1 BGSG, which is particularly important for sports clubs. The obligations of sports clubs are examined in detail, in particular their obligations in the analysis of health-related data. The model data protection declaration provided by the DFL is also analyzed and described by the author as a good basis for the work in the clubs.
Finally, in the article ” The professional football player’s income tax “, S. Kranz, Düsseldorf, deals with the recently published ruling of the Federal Fiscal Court, which examines the income of professional football players in its entirety, i.e. not only the salary of the football clubs, but also all other sources of income, e.g. from advertising and other activities related to his profession. The author points out in particular that the club has enormous obligations with regard to the taxation of its salary payments and may also have to answer for errors in its processing.
According to the so-called subjective income tax liability, the player is responsible and liable to income tax according to § 1 paragraph 1 EStGB for his entire income at home and abroad, i.e. the “world income”. The most varied types of income are to be differentiated according to § 2, paragraph 1, sentence 1 EStG, because there are usually major problems of delimitation with the types of income. The author gives examples of the various problems which played a role in the BFH ruling in detail. Also, the regulation in the sample contract of the DFB as well as the DFL GmbH are exactly analyzed and explained on the basis the BFH principles.
Finally, the author deals with other aspects of income from employment, such as the non-cash benefits which every taxpayer, including professional football players, has to pay tax on.
The article shows that the income tax of professional football players is a complex field and needs to be examined closely by both the player and the employing club.
Insufficient independence of the Turkish Football Federation Arbitration Court
Art. 6, 35, 41 ECHR
- The fact that a state party to the ECHR has underpinned sports law arbitration by a statutory provision remains irrelevant under Article 6 (1) ECHR if this provision does not sufficiently safeguard the independence and impartiality of the members of an arbitral body.
- If an arbitral body is established by law without protecting its members against influence – in particular by the organization which appoints and remunerates the members of the arbitral body – the national law establishing the arbitral body violates Art. 6 para. 1 ECHR.
- If there is a violation of Art. 6 para. 1 ECHR thereafter, the defendant state must take the necessary measures to remedy the fundamental systemic problem of the arbitral tribunal. (Guidelines of the editor)
FEDERAL HIGH COURT OF JUSTICE.
No reintegration into a league as compensation (Wilhelmshaven II)
§§ 249 251 BGB
- Sporting qualification, i.e. membership of a league, is not a fixed status independent of the season in which the game is played, which as such can be restored for the future, i.e. the next upcoming season, regardless of the season in question. Rather, this entitlement to play in a league exists from the outset only for a specific season and ends when that season expires.
- Therefore, a club can only be reintegrated into its original league under tort law, from which it had to leave by decision, if there is a sufficient probability that it would still be playing in this league at the time of reintegration if it continued to participate in the game.
- It cannot be assumed that SV Wilhelmshaven, had it been able to participate in the Northern Regional League in the 2014/2015 season, would still be eligible to play in that league today. (Guiding principles of the SpuRt editorial office).
FEDERAL HIGH COURT OF JUSTICE
No reintegration into a league as compensation (Wilhelmshaven II)
§§ 522, 522a ZPO; § 249 BGB
On the claim for reintegration into a higher league by way of in rem restitution and on the burden of proof in this regard. (Orientation sentence of the SpuRt editorial office)
FEDERAL HIGH COURT OF JUSTICE.
Requirements for the custody relationship in the sports club
§ Article 174 paragraph 1 no. 1 of the Criminal Code
- A relationship of custody within the meaning of § 174.1 no. 1 of the Criminal Code presupposes a relationship between offender and victim, from which the offender has the right and the duty to monitor and direct the upbringing, education or lifestyle of the protected person and thus his or her mental and moral development, whereby the concepts of upbringing, education and care in lifestyle overlap in their meaning. A relationship of dependence of the young person on the respective carer, in the sense of subordination or superiority, which encompasses the personal, generally human sphere, presupposes that the young person is entrusted with the requirements of the provision; whether such a relationship exists and the extent of it is to be assessed regularly according to the actual circumstances of the individual case (established case-law).
- Membership in a sport club alone does not in itself regularly establish a relationship of care between the young person as a member and the board members or trainers involved in the work of the club. An activity as a (substitute) trainer or as a competition judge can be sufficient in the starting point for this, but the court must then in individual cases make further statements that the coach/competition judge also had the right and duty to monitor and guide the mental and moral development of the young people.
- A relationship of guardianship existing during a training camp does not automatically continue for the following period. (Guiding principles of the SpuRt reaction)
Operational risk and fault in the event of an accident with sports equipment
§§ Sections 33(1), 41 LuftVG; Section 823(1) BGB, Section 823(2) BGB in conjunction with Section 229 StGB; Articles 9, 10 of Italian Prasidial Decree No 133/2010
- A hang glider is considered to be more dangerous to operate than a paraglider because of its higher speed, reduced braking capacity and mobility, and limited visibility due to its design.
- Limited visibility due to the nature of a hang glider does not exempt you from the obligation to have an overall view of other pilots in its vicinity at all times. Rather, it is precisely because of these characteristics that the pilot has behaved in the flight envelope in such a way that he has the greatest possible area of visibility. This cannot be assumed when making tight turns. (Guiding principles of the SpuRt editorial staff)
Judicial review of DFB penal decisions
§ 25 BGB
On formal and substantive requirements for the imposition of (point deduction) penalties by DFB courts and the extent of their control by the ordinary courts. (Orientation sentence of the SpuRt editorial staff)
No interim agreement against relegation after corona-conditioned season interruption
§§ 567 et seq., 935, 940 ZPO; §§ 249 para. 1, 315 BGB
On the basis of a “frozen table”, the reason for and the right to an injunction in the event of an application for a temporary injunction against relegation after a corona-induced seasonal interruption. (orientation sentence of the SpuRt editorial staff)
Divestment of UEFA Champions League tickets
§§ 20, 23 EStG, §§ 797, 807, 808 BGB
- UEFA Champions League tickets are among the ‘other assets’ which may be the subject of a private sale transaction within the meaning of Section 23(1)(1)(2)(1) of the Income Tax Act.
- § 23 (1) sentence 1 no. 2 EStG also covers income from the sale of securities, provided that it does not fall under § 20 EStG.
- Champions League tickets are not objects of daily use within the meaning of § 23 (1) sentence 1 no. 2 sentence 2 EStG. (Official guidelines)
Association court of the BTTV
No general league ranking at the end of the table tennis season
§ ARTICLE 25 BGB
- Even without an explicit statutory basis for authorization, the BTTV Presidium is authorized by its general management competence under the statutes to make a decision on the technical handling of the Covid 19 pandemic in the BTTV leagues.
- Since there is no regulation for the cancellation of a season for reasons of a pandemic, general regulations and values of sport must be applied, which always claim validity: Health protection for athletes and coaches, equal opportunities for athletes and clubs, competition integrity and membership loyalty obligations. In this respect, the association has a discretionary power. However, the general principle applies that every decision must be proportionate.
- The cancellation of the table tennis season in the BTTV for health protection reasons due to the Covid 19 pandemic is overall reasonable, proportionate and legal.
- A rating decision at the end of the season, which merely “freezes” the table without hardship provisions, is not a proportionate decision overall and therefore invalid. (Guiding principles of the SpuRt editorial office)