In the editorial “Legal Aid for CAS proceedings – a doubtful aid” K.Vieweg, Erlangen, analyzes the regulation of legal aid in CAS proceedings. While the regulation of legal aid (comparable to legal aid according to § 114 ff. ZPO)of the DIS Court of Arbitration for Sport ensures that a fair trial does not fail because of insufficient financial means, this is only insufficiently regulated in the Guidelines on Legal Aid, because it is left in detail to the discretion of the Commission of the ICAS how legal aid is provided, i.e. a high risk for the athletes, because, especially in CAS proceedings, high amounts could be incurred by lawyers, translators and experts in addition to the court costs.

Cost assistance can only be effective if a final decision is made on the cost risk and its support at the beginning of the proceedings, as the author points out.

In the article “The Anti-Doping Act in Practice”, E. Hoven and M. Kubiciel, Leipzig/Augsburg, present their central findings of the evaluation study on the Anti-Doping Act. Because a complete account of the study, including reform proposals, is being prepared for publication in a book, the authors limit themselves to the main findings in this article. The study has two methodological approaches, namely a qualitative and quantitative evaluation of all procedural files between October 2019 and June 2020, as well as expert interviews on practical experiences with the Anti-Doping Act, in particular with § 2 AntiDopG.

As a result, the authors summarize at the outset: The fundamental concerns during the legislative process have evaporated, and the representatives of federations and athletes interviewed are now much more open to the law than before. Nor have there been any indications that the criminalization of self-doping has led to a weakening of sports law procedures or even to a restriction of the core areas of sports autonomy.

Imbalances in the law have, however, arisen in practice, e.g. over-criminalization of sub-sectors of popular sport in contrast to competitive sport. To correct this, several reform proposals have been included in the report, e.g. the expansion of focal prosecution offices and improvements in the area of whistleblower systems. Similarly, there must be an increase in the threshold values of the Doping Substances Quantities Ordinance pursuant to Section 2 (3) Anti-Doping Act, as well as an introduction of the leniency program to decisively help the investigating prosecutors, which has been demanded in particular by NADA, the DOSB, the DAV and the athletes’ associations. Another point is also the abolition of the restriction of the circle of offenders under Section 4 (7) Anti-Doping Act. This has proven to be a central substantive legal problem of the prohibition of self-doping in the investigation.

In conclusion, the authors state that the Anti-Doping Law was an important step in sports policy to safeguard the integrity of sport. Notwithstanding this, several starting points for improvement have become clear, which the evaluation report sets out in detail and is intended as a call to the legislature.

In the article “The Youth Employment Protection Act (JArbSchG) and the Employment of Young People in the German Soccer League – Quo vadis?” Chr. Hautkappe, Wiesbaden, deals with the contradictions between the legal regulation of the JArbSchG and the actual situation on German soccer fields of national and international leagues. Young soccer players before the age of 18 are by no means a new phenomenon; Ronaldo, Messi or Mbappé took part in soccer matches for the first time as minors, and recently the 15-year-old Youssoufa Moukoko made headlines. At the beginning, the author explains the regulations of the JArbSchG and the effects on employment for persons under 18 years of age with their special working hours daily and weekly as well as the rest breaks and proper health protection. There has long been no doubt about the applicability of this law to professional soccer, however, as early as 2011, the use of Julian Draxler, then 17 years old, was closely followed when he was substituted in the 116th minute of the match – well after 8:00 p.m. – but without any legal consequences. The author sets out the criminal and regulatory consequences of such a violation. According to the law, there is a threat of heavy fines. It is clearly explained that employment on Saturdays, Sundays and public holidays is not permitted without restrictions. This may be of importance for soccer in the future, as the DFL decided on March 31, 2020 to lower the age limit in the German Soccer League to 17 years of age. Junior players are to be granted a playing permit as soon as they reach the age of 16.

In this respect, it follows that a reform is urgently needed. Some EU Council directives on the protection of young people at work have already been issued, but so far only exceptions for cultural, artistic and sporting events have been permitted in a few exceptional cases. The legal responsibility for a new draft law is difficult, because both the Federal Ministry of Labor and Social Affairs and the Federal Ministry of the Interior are responsible.

M. Schütz, L. Schütz and S.Schütz, Karlsruhe/Augsburg/Hamburg deal in their article “On the Temporal Limitation of Coaching Contracts in Professional Football Due to the Deterioration of Motivational Power” with the regulation in § 14 I 2 No. 4 Teilzeitbefristungsgesetz (TzBfG), according to which the limitation of an employment contract depends on the “peculiarity of the work performance”. In this regard, case law has affirmed the short working life of professional soccer players as a fundamental prerequisite for the specific nature of the work performance, but has denied this for the work performance of a sports director. Likewise, the special nature of work performance due to so-called “wear and tear” is questionable for so-called team managers, coordinators, and scouts; it could also be questionable for soccer coaches, since the motivational power and special wear and tear could play a role here.

The authors therefore examine in detail the special motivational power of a soccer coach, an important aspect that has not yet been considered in case law. This is significant because a fixed-term trainer contract can only be concluded if the club substantiates that the described motivational ability of a trainer is deteriorating and thus the “peculiarity of the work performance” according to § 14 I 2 No. 4 TzBfG is present. So, what facts and arguments support a prognosis about a possible loss of motivation? The authors answer this in a detailed analysis and present facts and arguments for and against a wear-out prognosis.

As a result, in their opinion, it cannot be proven that motivational power is subject to a process of attrition. Coaches work with special specialists, e.g. mental coaches, fitness trainers and team and sports psychologists. As a result, against this backdrop, the wear-and-tear factor is generally not demonstrable in the case of professional soccer coaches.

In the contribution “Change ban” in Bavarian amateur soccer during the COVID 19 pandemic – violation of Art. 12 (1) GG?” then M. Merwald, Augsburg, examines the regulation of the change prohibition after § 47 No. 3 S. 4 of the play order of the Bavarian soccer federation regarding its compatibility with Article 12 exp. 1 GG. This change ban had been decided by the clubs of the Bavarian Football Association, in contrast to most other state associations, during the Corona pandemic in connection with the suspension of the 2019/2020 season, with a view to a possible continuation into 2021. This was necessary to avoid distortion of competition.

Internal association standards must comply with general statutory regulations, in this case in particular sections 134 and 138 of the German Civil Code, despite the autonomy of the statutes. Since the DFB and its state associations have an economic significance and monopoly position, they must allow themselves to be measured against Article 12 (1) of the Basic Law via the principle of the third-party effect of fundamental rights. In this respect, the author examines a violation of this fundamental right according to the standards of the scope of protection and the encroachment on the right to freely choose and exercise one’s profession, workplace and place of training and its possible constitutional justification according to the usual criteria. The focus of the examination is also on proportionality, according to which a legitimate end must be achieved by a legitimate means; likewise, this end must be suitably necessary and appropriate. Thus, it soon becomes clear that the regulation of the Bavarian Football Association is not appropriate and the limits are not respected, which is why, as a result, the provision of § 47 No. 3 S. 4 of the SpielO, which applies to everyone, is null and void. Although the Bavarian special path had good intentions, the interests of the athletes were thus not taken into account enough, because the freedom of choice of profession and thus the change to other clubs were restricted.

In the article “Essential Innovations in Austrian Anti-Doping Law,” T. Petschinka and S. Reifeltshammer, Vienna, deal with the Austrian Federal Anti-Doping Act, which came into force on January 1, 2021. Austria thus followed the anti-doping law in Germany, which came into force in 2015 (see above the article “The Anti-Doping Law in Practice”).

The authors first lay out the foundations of anti-doping law by addressing the obligation to implement international doping law into national law, referring here to the Council of Europe Anti-Doping Convention and the UNESCO Convention. Likewise, the World Anti-Doping Code imposes an obligation to implement its body of rules.

The main innovations to the previous Federal Anti-Doping Act 2007 in force in Austria are presented and explained in detail below. These are in particular the protection of whistleblowers, which from a practical point of view proves to be necessary, similar to the regulation now required in the German Anti-Doping Act 2015. The implementation of the recreational athlete is also addressed. Recreational athletes are those who have not participated in any international competition in the five years preceding the commission of the violation and in no more than five competitions at the national level, furthermore do not belong to any testing pool and have not already committed a doping violation. Doping prevention has also been restructured in the new law, and there are also procedural economic facilitations, which the authors explain in detail. As a result, one may be curious to see how the innovations of this law prove themselves in practice.

A.Fischer, Düsseldorf, in the article “Can the real injury causality of sports betting fraud (§ 265 c StGB) be empirically proven?”, examines this criminal offense, which came into force in April 2017, whereby manipulation agreements between an advantage taker and an advantage giver with regard to the course or the result of a sports competition, which is the subject of a public sports bet, are criminalized.

This raises the question of whether the integrity of the sport can be violated at all (real causality of violation) and whether such a connection of damage can be empirically substantiated. Already during the legislative process, the legislator was heavily and variously criticized. It was argued that the elements of the offense were far too vague and that the advancement of criminal liability was not justified. In addition, the difficulties of proving pecuniary loss, which were perceived in the case of general criminal liability for fraud, were merely postponed.

The author therefore examines in detail whether the legislature has fulfilled its duty to establish a real causality of injury, because high demands are placed on this. In the author’s opinion, the result is that the legislator can only rely on unconfirmed conjectures and hypotheses. Therefore, these hypotheses are analyzed and verified in detail. The hypotheses that sport is a role model, that sport has a value-conveying function and that trust in the integrity of sport is lost are not confirmed, nor is the hypothesis that the public’s interest in sport is lost as a result and that the social values attributed to sport are damaged within society.

Therefore, the overall result was that the opinions and assertions were largely empirically unconfirmed or even refuted, so that real injury causality was not proven.

 

Jurisdiction

BGH

Doping verdict against Felix Sturm legally binding

§§ 3, 4 AntiDopG; § 223 para. 1 StGB (German Criminal Code)

On the extent of the legal force of the district court’s judgment against the boxer Felix Sturm. (Guideline of the SpuRt editorial office)

Düsseldorf Higher Regional Court

Scope of claims for damages in the event of unlawful association sanctions

Art. 1 Para. 1, 2 Para. 1, 9 Para. 1 GG, Sections 253 Para. 1, 823 Para. 1, 1004 Para. 1 Sentence 2 BGB, Section 23 Para. 1 RVG, Item 2300 VV RVG

1. In the case of legal representation in association court proceedings, only the statutory fees and not the agreed hourly fees may be claimed by way of compensation. However, fees according to numbers 3100 and 3104 VV RVG (appointment and procedural fee) do not accrue in association court proceedings.
2. The accusation in an association sanction that the sanction addressees had cheated in a bridge tournament in violation of the rules only affects them in their social sphere and does not constitute a serious encroachment on their general right of personality which could trigger a claim for monetary compensation.
3. The prerequisites for a claim for injunctive relief in the event of an unlawful encroachment on the general right of personality. (Guiding Principles of the SpuRt Reaction)

 

Münster Regional Court

IfSG compensation claim of the club for the wages of the segregated professional soccer player

§§ Sections 326 (1), 611 a, 615 p. 1, 616 p. 1 BGB; Sections 56 (1) p. 2, (5), 57 (1) p. 1, 30 (1) p. 2 IfSG

1. A licensed player who completes only minor and basic training sessions in domestic quarantine during an officially ordered period of segregation does not perform his work performance as a whole vis-à-vis his club as employer and loses his entitlement to remuneration, Section 326 (1) BGB.
2. Such a licensed player is also not entitled to remuneration under section 615 sentence 1 BGB because his club would not be in default with the acceptance of the work performance. In particular, the club is not obligated to demand specific training services from the player, which it would not have been allowed to provide anyway due to the official segregation order.
3. A 14-day segregation in the context of the pandemic does not constitute a “relatively insignificant period of time” within the meaning of Section 616 sentence 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB).
4. If the compensation claim of the segregated player against the club ultimately lapses due to the official segregation order and the player is therefore reimbursed by the tax authorities pursuant to Section 56 (1), (3) IfSG, the authorities are obligated to reimburse the player’s employer for pension insurance contributions pursuant to Section 57 (1), sentences 3, 4 IfSG within the framework of the continuing pension insurance obligation if the club has paid the contributions in advance. (Guiding principles of the SpuRt editorial team)

 

Mannheim Regional Court

No right to promotion to the regional league after Corona-related season cancellation

§§ Sections 315 (3), 709, 826 BGB, Sections 33, 20 (5) GWB, Sections 41, 47 No. 1 Spielordnung-RL, Sections 1, 11 Zulassungsordnung-RL

1. The application for provisional admission to the Southwest Regional League raises not insignificant doubts as to its admissibility. Provisional admission to a season can lead to distortions of competition and actual occurrences (e.g., injuries and suspensions) that cannot be reversed. There is thus a risk of anticipation of the main case, which is only permissible if irreparable disadvantages are imminent that cannot be adequately compensated by way of damages.
2. The conditions under which teams are entitled to participate in a given division shall, in principle, be determined by its organizer. In seasons which cannot be fully implemented due to a pandemic situation, the match organizer may, at its reasonable discretion, set sporting qualification requirements for promotion which go beyond the existing regulations, and in principle also during the season.
3. It is not unreasonable to attribute no sporting significance to a round of matches that ended prematurely with less than half of the scheduled matches and thus not be sufficient for promotion eligibility.
4. The decision of the organizing company on the requirements for sporting qualification does not constitute a basic transaction. A unanimity requirement is therefore not given. (Guiding principles of the SpuRt editorial office)

Munich Regional Court I

No interim injunction against relegation due to application of the quotient rule

Art. 9 (1) GG, §§ 25, 242, 315 BGB, § 93 BFV-SpO

1. If an application for a temporary injunction is based on the invalidity of a basis for authorization by the association and not on an incorrect application of the law of this norm, the time lapse is to be measured by reference to the enactment of the norm and not to the time of the decision applying the norm. If a defendant does not take any action against the enabling provision for more than 9 months, but only defends itself against the decision to implement the provision, its application for an injunction shall lack a ground for injunction. 2.
2. The decision of an association to use the quota system to determine the promotion and relegation of clubs in its leagues is not inequitable for the purpose of regulating the special situation caused by the pandemic, but is merely one of several evaluation options, all of which are associated with advantages and disadvantages. (Guiding principles of the SpuRt editorial office)

 

Stuttgart Regional Court

Cancellation of the soccer premier league championship round due to the Corona pandemic

§§ Sections 18 (1), 19 (1), (2) no. 1 case 1, 33 (1) GWB, Sections 4, 4 a wfv-SpO

1. Applications for interim injunctions to determine the nullity of association resolutions shall be inadmissible insofar as effective legal protection can be achieved otherwise. Corresponding applications for the annulment of such Association resolutions are in principle precluded by the prohibition of anticipation of the main proceedings. They are therefore also inadmissible.
2. The cancellation of a championship round in which only 30% of the matches could be played is not objectionable in the absence of sufficient sporting significance. A valuation would disadvantage the teams immediately behind them, which have a realistic chance of occupying one of the top two places in the table after the championship round has been played in its entirety.
3. A cancellation decision also does not meet the requirements of an abuse of the right to obstruct pursuant to Section 19 (1), (2) no. 1 case 1 ARC. If the governing body of the playing division adheres to its own association rules, decisions based thereon cannot be inequitable. (Guiding principles of the SpuRt editorial staff)

 

ArbG Hanover

Limitation of the employment contract of a sports director

§Sec. 626 BGB, Sec. 14 (1) TzBfG

1. The requirements for extraordinary termination due to statements made by the employee to the employer that are subject to freedom of opinion.
2. The case law of the Federal Labor Court (Bundesarbeitsgericht – BAG) on the fixed-term nature of employment contracts of professional soccer players, according to which under Sec. 14 (1) Sentence 2 No. 4 TzBfG an objective reason for the fixed-term nature of an employment contract may exist because the specific nature of the work performance justifies the fixed-term nature, is not transferable to employees in the management area of professional soccer clubs. (Guiding principles of the SpuRt editorial team)

 

DFB Federal Court

Legality of point deduction in the event of insolvency

§Sec. 25 BGB Art. 9 (1) GG, Secs. 103, 119 InsO, Sec. 6 No. 6 (2b) DFB-SpO

1. On the legal nature of the league licensing agreement, the legal consequences of the occurrence of insolvency at a licensed club and its purpose.
2. Section 6 no. 6 of the DFB-SpO does not contradict the legal values of state insolvency law, such as the insolvency administrator’s right of choice pursuant to Sections 103 and 119 of the German Insolvency Code (InsO).
3. The scope of the right to equal treatment under club and association law in the event of an amendment to a provision of the DFB Spielordnung with regard to the Covid 19 pandemic. (Guiding and Orientation Statements of the SpuRt Editorial Office).

 

FLVW Association Sports Court

Restriction of automatic suspension after yellow-red card due to the Covid-19 pandemic

Art. 9 (1) GG, § 25 BGB, §§ 8 (4), 9 (3) WDFV-RuVO

1. An interpretation of Section 8 (4) sentence 6 WDFV-RuVO shows that an automatic suspension (here: due to two warnings) is to be removed by the sports court in any case if the automatic suspension leads to a grossly disproportionate sanctioning of the player.
2. In a constellation in which a player is de facto suspended for 6 months and 26 championship matches for the first team of his club due to a yellow-red card as a result of a pandemic situation, because he has been sent off in a match of the second team, whose competition has been abandoned in the meantime, and therefore the automatic suspension effect of § 9 Para. 3 WDFV-RuVO occurs and continues, this constitutes an unjust and completely disproportionate sanction which can be eliminated by the sports court. (Guiding principles of the SpuRt editorial team)