In the editorial “One-place principle and third-party organizers in the European sports model”, M. Stopper, Berlin, deals with the question of whether the one-place principle as the traditional organizational form of the federations of a responsibility for a sport exclusively is still up-to-date. This is because more and more other organizers of sporting events have appeared recently, e.g. the Super League discussed for football and the LIV Series in golf. The latter organizers or participating athletes are sanctioned by the previous federations.

The question of whether the one-place principle should be protected as the “European sports model” will soon be decided by the EU Court of Justice; so far only the ISU case was pending before the European Court.

In this context, it must be asked whether the objectives of Art. 165 TFEU on the promotion of sport are still to be applied when applying the so-called “Meca-Medina” proportionality test. European antitrust law and organized commercial sport do not have it easy to answer this question. For the indispensable symbol of sport: “Without training from grassroots upwards there would be no top athletes” has protected in any case.

Subsequently, P.W. Heermann, Bayreuth, in his contribution “Justification of sports association statutes and measures restricting competition according to the Meca-Medina test” examines the three-stage test developed by the EU Court of Justice to justify sport-related restrictions of competition according to Article 101 (1) TFEU.

Although this test scheme, developed in 2006, has been a reliable orientation, a wide variety of opinions on the consequences under antitrust law have been expressed for a long time and require further discussion.

First, the author deals with the prerequisites of entrepreneurial action and the restriction of competition under Article 101 (1) TFEU, according to which the Meca-Medina test can be applied. The individual stages of the test are also explained once again, i.e. firstly overall context and objective, secondly inherence and thirdly proportionality. Another detailed discussion is then the scope of application of the EU Court of Justice for the Meca-Medina test in general, likewise the other more recent approaches of the courts and the literature, which want to limit themselves to purely sporting regulations. In the author’s opinion, these newer approaches are not convincing overall. Therefore, the author deals with further concretizations and additions to the Meca-Medina test, for example, a coherent and stringent pursuit of objectives, furthermore, a broader scope of assessment and discretion of the sports associations as well as the burden of presentation and proof. For practical purposes, the author points out that the individual test steps and test requirements are usually not exactly separated from each other, as the courts’ decisions show.

In addition to the Meca-Medina test, the standards of Art. 101(3) TFEU and Art. 102 TFEU/§ 19 GWG must also be taken into account in any case.

In summary, the author points out that the Meca-Medina test serves to justify anticompetitive statutes or measures that emanate from sports associations, which has been concretized by the antitrust authorities and the and judicature. The sport-related restrictions of competition and market abuses are those which, according to the ECJ, “are inextricably linked to the organization of sporting competition and serve to ensure fair competition between sportsmen and women”.

In the article “The “Resignation” of the Coach”, the author Ph.Fischinger, Mannheim, deals with the classification under labor law and the consequences of such a “resignation” from the coaching post. Recently, there have been many examples of such a termination of the trainer’s contract, the reasons for which are known to be manifold. Examples are cited from the recent past, with reference to § 2 of the model contract for coaches of the Association of German Football Coaches.

First of all, the author points out the possibly misleading term, which should not be confused with resignation in the sense of § 323 BGB, because the continuing obligation of service and employment contract law does not know such a thing. Since an ordinary termination is ruled out due to Section 15 (2) of the Part-Time Fixed-Term Employment Act, an extraordinary termination according to Section 626 of the German Civil Code (BGB) can at best be considered for further consideration. The author explains the written form requirement of § 623 BGB and then examines the possible reasons. In particular, lack of sporting success comes into consideration, as well as non-payment of salaries, opening of insolvency proceedings, illness of the coach, private reasons, etc. These are either not justified or not justifiable. These are either not justified or weaken the legal position of the coach, which would immediately lead to the loss of future salary claims in the case of extraordinary termination. In this respect, also for tactical reasons, a termination agreement is the best option. Furthermore, the author describes in detail the further tactical procedure and the implementation of a termination agreement and also explains the question of whether such a “rescission of resignation” is possible and answers in the affirmative.

Finally, the author refers to the regulation under association law, according to which in Annex 8 to the Regulations on the Status and Transfer of Players of FIFA in Art. 4 both the club and the coach have the right to terminate the contract without payment of damages if there is good cause.

All in all, it depends on the tactics of the coach or the club; as a rule, a termination agreement is the best option.

In the article “Nomination Decisions in Sport: Only a Question of Discretion?” M. Kintrup and B. Hessert, Hamburg/Lausanne, comment on the recent decision of the Higher Regional Court (OLG) of Frankfurt, which is printed in the same issue and which rejected the claims for damages of two beach volleyball players after the first-instance decision of the LG Frankfurt had at least partially awarded them.

The Frankfurt Regional Court had already declared the arbitration agreement between the athletes and the federation null and void as general terms and conditions under § 305 et seq. of the German Civil Code (BGB), in this case § 307 BGB, on the grounds of unreasonable disadvantage; it also found that the arbitration agreement was not signed voluntarily because the athletes earn their living by practicing their sport, but at the same time partially awarded the claims for damages, while the Higher Regional Court came to a complete rejection. The authors first deal with the frequent question of the effectiveness of the arbitration agreement at issue here and repeat the arguments that have been put forward on various occasions, also referring to the decision of the European Court of Human Rights in the “Mutu and Pechstein” case. However, in contrast to this decision and also to the Pechstein decision of the Federal Supreme Court, the Higher Regional Court of Frankfurt clearly ruled that the arbitration agreement was null and void because it was involuntary. The authors also comment on the opinion of the OLG Frankfurt that one cannot speak of a real arbitration court here, as the necessary independence and impartiality is lacking, because the chairman of the association was always a member of the arbitration court according to the arbitration agreement.

The assessment of the claim for damages by the professional beach volleyball players, on the other hand, was more extensive. It was undisputed that the plaintiffs did not fulfil the nomination guidelines set by the association, as they had not been classified as a national or perspective team. However, in comparison to the landmark ruling of the Federal Supreme Court in the case of the triple jumper Charles Friedek, this is not relevant. In contrast, the sports association in question was entitled to waive the characteristics of a sporting best selection. However, the claim for damages due to the violation of a discretionary nomination right already failed due to the fact that the athletes did not sufficiently demonstrate that the association had exercised the discretionary right to which it was entitled in an erroneous manner. Undoubtedly, the state court has the competence to review the nomination guidelines and in particular the exercise of proper discretion. Although the result of the decision can be accepted and is comprehensible, the authors criticize that in this context the case law of the European Court of Justice is not sufficiently addressed in the question of the reviewability of sports association rules and underlying own value standards of the sports associations. This is because the review steps recognized in particular in the Meca-Medina decision in the form of the so-called three-step review would have been required here.

Finally, the authors deal with the OLG’s argumentation on the final rejection of a claim for damages as a result of the high requirements of a causality justifying liability and in connection with the uncertainty of sporting results. As a result, the explanation for their missed entry fees as lost profit in the sense of § 252 BGB was not sufficient, although the provision of § 252 p. 2 BGB provides for a rebuttable presumption of loss of profit. What, according to the ordinary course of events and special circumstances, can be considered lost or could be expected with probability. In this respect, it must also be stated here that proof of judicial conviction according to § 246 ZPO is difficult, whereby the authors state that this is almost hopeless. This is because sporting results depend on various circumstances such as the form of the day, the opponents or the physical and mental condition, which is impossible to reliably assess in advance. The authors elaborate on this in detail and look for suitable points of reference for performance forecasts, which can also be attributed to certain ranking positions under certain circumstances.

In the article “Swiss Sport Integrity” in operation since the beginning of 2022“, St. Netzle, Zurich, explains the working methods of this organization, which started operations on 03.01.2022 and is responsible for the independent investigation and sanctioning of all ethics violations in Swiss sport.

First, the author describes how the National Reporting Office came into being when Swiss artistic gymnasts denounced training methods at the National Performance Centre in autumn 2020. These reports triggered strong reactions in society, especially in parliament and in the Department of Defense, Civil Protection and Sport. The national sports federations were involved in the discussions from the beginning. A concept was developed and the central reporting office was installed in November 2021. It soon became clear that the reporting office alone was not enough, because an investigation must be followed by a legal basis for sanctions in accordance with the newly created “Ethics Statute of Swiss Sport”. The already existing independent foundation of the national anti-doping agency has been expanded, so to speak, so that at the same time as investigating and punishing doping cases, ethics violations are also investigated and punished; this organizational model, with which Canada, Australia and Finland, for example, have already had good experience, is thus being used in Switzerland.

The author then explains in detail the Ethics Statute of Swiss Sport, which serves as a legal basis and applies to all sports organizations and their member associations in Switzerland, including both athletes and coaches and organizers involved in sports operations. The Ethics Statute is to be applied to all conduct of this group of persons.

The offences covered by the Ethics Statute are breaches of ethics and abuses, in particular mistreatment, i.e. discrimination or unequal treatment, violation of psychological integrity, violation of physical integrity and violation of sexual integrity and, finally, neglect of a duty of care. The author explains these facts in detail, as well as the abuse of a function in a sports organization such as corruption, conflicts of interest, unsportsmanlike conduct and grievances. The author then explains the procedure for ethics violations in detail, starting with the principles of the reporting office procedure and its responsibilities in detail and continuing with the investigation, which is concluded in an investigation report and then submitted to the disciplinary chamber for assessment with corresponding applications for a sanction.

The decision of the disciplinary chamber can be appealed to the International Court of Arbitration for Sport in Lausanne (CAS) by the sanctioned person, by the victim of an established abuse, as well as by Swiss Sport Integrity, Swiss Olympic and the national sports federation.

In conclusion, the author states that this Swiss system for uncovering and punishing ethics violations must now prove itself; the daily confrontation with reports of possible abuses will thus show where this system meets expectations and possibly still needs to be improved.

In the article “Danger when hiking in the mountains: Liability for accidents with grazing livestock”, S. Pechtl, Innsbruck, explains the so-called “Pinnistal ruling” of the Austrian Supreme Court, which has been discussed extensively in the Austrian literature and prompted the Austrian legislator to take “clarifying” action. This ruling is about the liability for accidents of the livestock owner for his livestock on mountain pastures. This is of elementary importance for tourists in the mountains. In the case at hand, the farmer as animal keeper had to be liable for the injuries of a mountain hiker. The core issue was the question of what supervisory duties are required and what recognized standards of animal husbandry must be resorted to. As is so often the case, such questions depend on the situation at hand in each individual case. The legislator has now expressed this in paragraph 2 of the Austrian provision of § 1320 ABGB. The author sets out in detail the fundamental problem of the farmer’s liability for his livestock on pasture. There is no general obligation to fence off paths. In the mountains on alpine pastures, the required fencing obligations have also been reduced. Thus, it depends on details, especially whether the keeper is aware of a particular aggressive behavior of the animals or not. The author sets out the known liability standards in detail here and always refers to the individual case. Of course, the expected behavior of hikers is also discussed and their personal responsibility. The latter must of course behave with restraint and caution. Otherwise, contributory negligence within the meaning of § 1304 ABGB comes into consideration. The author also deals with the legal situation in Germany and refers here to the decision of the BGH of 14.02.2017 in NJW-RR 2017, 725. In this decision, the BGH once again explained in concrete terms what constitutes gainful employment within the meaning of section 833 sentence 2 of the German Civil Code (BGB), but also set out rules of conduct for the custody of animals in this context. These are presented by the author in an explanatory manner; in doing so, she comes to the conclusion in a comparative consideration of the German and Austrian legal situation that both are quite similar, so that it does not matter in detail for liability whether an attack by the animal on the human being would have occurred in Germany or Austria.

In the article “The legal application problem of video evidence in football”, J. Drechsler, Frankfurt, deals with the question of interpretation for the application of video evidence, which should only be applied in the case of obvious mistakes and clear excesses of discretion. At the outset, the author explains the regulation of video evidence and its application problem: This is the “decision-relevant use of (video) camera images recorded during a sporting competition”. The referee’s decisions during the match are reviewed by video assistant referees (VAR) trained for this purpose, whereby the absolute decision-making authority remains with the referee. The correct decision cannot always be made on the basis of objective criteria, and it is also a matter of dispute when there is a clear obvious error on the part of the referee, which must be understood overall as a problem of application of the indeterminate legal concepts of clarity and obviousness of an error.

The author explains this problem on the basis of two examples from the past European Championship 2021. The cases concern the penalty decision in the semi-final match between Denmark and England when the VAR did not intervene. There were discussions afterwards. The further decision was a yellow card. After that a red card was decided. The author attempts to systematize the application problem and deals with the argumentations that led to the installation of video evidence, making it clear that the scope of application of video evidence, according to its teleology, is to be limited to objectively ascertainable rule violations and obvious discretionary infringements. These are: 1. The fairness argument, which is the basic idea behind the introduction of video evidence: under no circumstances may unfair results occur. 2. The proportionality argument: the game may only be slightly affected by the video evidence and the typical sporting events may not be affected too much; the time schedule of the game must be taken into account. 3. The economic argument: refereeing decisions are decisive for the economic success of a club, which is particularly obvious in cup finals or the UEFA Champions League. 4. The acceptance argument: The support of the referee should lead to an increase in the acceptance of the referee’s decision as well as an increase in the acceptance of the referee himself. The referee cannot be subjected to criticism under any circumstances and must decide for himself. 5. The claims argument: In some cases, the introduction of video evidence is regarded as a contractual secondary or consideration obligation according to § 241, paragraph 2 of the German Civil Code (BGB) on the part of the associations organizing the competitions vis-à-vis the clubs. Possible claims under the law of obligations for incorrect decisions by the referee could thus be recorded on the basis of objective criteria.

Finally, the author mentions a possible challenge right, which has been called for on various occasions and according to which the teams should be entitled to have the referee’s decision reviewed. Whether this would influence the acceptance of the referee and his decisions cannot be clearly predicted. In any case, the discussion about the questions of interpretation of the designation of a clear error shows that video evidence suggests a restrictive interpretation of this constituent element.

Jurisdiction:

öOGH, Ur. V. 22.4.2022, Az. 8 Ob 41/22w (previously: OLG Linz, Urt v. 12.1.2022, Az. 3 R 158/21g-41; final)

Damages for a temporarily unavailable horse

§§ 305, 1131 AGBGB

If a horse loses the possibility to be used as a riding horse due to an accident, the owner of the animal is entitled to compensation for the costs of treatment as well as for the remaining reduction in value, but he cannot additionally claim compensation for the costs of adjustment and feed. (Editorial statement of the SpuRt editorial office)

BGH, Ur. V. 4.5.2022, Az. XII ZR 64/21 (previously: LG Osnabrück, Urt. v. 9.7.2021, Az. 2 X 35/21) (final and absolute)

Pandemic-related closure of a fitness studio as a legal impossibility

§§ Sections 275(1), 313(1), 326(1) and (4), 346(1) BGB; Art. 204(5) EGBGB

1. During the closure of a fitness studio due to the sovereign measures to combat the COVID 19 pandemic, it was legally impossible for the operator to grant the authorized user the possibility to use the fitness studio in accordance with the contract and thus to fulfil its main contractual obligation. For the period of closure, the authorized user has a claim to repayment of the monthly fees paid, provided the operator cannot make use of the “voucher solution” pursuant to Art. 240 § 5 (2) EGBGB.
2. An adjustment of contractual obligations to the actual circumstances is generally out of the question if the law determines the consequence of the breach of contract in the provisions on the impossibility of performance. Therefore, § 313 BGB cannot be applied if the facts of § 275 (1) BGB are fulfilled.
3. Article 240 § 5 of the Introductory Act to the German Civil Code (EGBGB) is a special statutory provision which   modifies the statutory legal consequences of impossibility and excludes the application of § 313 of the German Civil Code (BGB) within its scope of application.
4. The operator of the fitness studio therefore has no claim against its contractual partners for an adjustment of the contract due to disturbance of the basis of the contract to the effect that the agreed term of the contract is extended by the period of a pandemic-related closure of the fitness studio. (Official guidelines)

OLG Karlsruhe, Judg. v. 18.2.2022, Ref. 15 U 54/21 (previously: LG Heidelberg, Urt. v. 9.6.2021, ref. 11 0 3/21 KfH; legally binding).

No claim to players’ agent remuneration

§§ Sections 133, 157, 242, 280 sub-section 1, 652, 670, 677, 683 sentence 1 BGB; Section 354 sub-section 1 HGB

1. On the interpretation of conclusive party declarations and on the conclusion of a contract in the case of business contact between the sports director of a football operating company and a players’ agent and players’ consulting company, as well as on the differences between an agent and a broker.
2. The contact of a sports director to a player agency with the question of transferable players does not constitute an offer for the conclusion of an agent’s contract, but at most an offer for the conclusion of a broker’s contract.
3. For a football club’s enquiry to a players’ agency about players it represents makes it clear that a contract is to be concluded only with the agent with whom a player is under contract at the time of the final conclusion of the contract, because the agent can influence the player’s willingness to conclude a contract. As a rule, the requesting club has no interest in a mere verification service by the agency. (Guiding and orientation statements of the SpuRt editorial office)

OLG Frankfurt a.M., Judg. v. 28.4.2022, Ref. 11 U 169/230 (Kart) (final; previously: LG Frankfurt a.M., Urt. v. 7.10.2020, ref. 2-06 0 457/19)

Compensation for damages due to violation of internal association nomination guidelines

Art. 9 para. 1 GG; §§ 25, 280 para. 1, 311, 241 para. 2 BGB; §§ 1025 et seq., 1029, 1032, 1034 para. 2 ZPO

1. The arbitration court according to the legal system of the German Volleyball Association is not an ordinary arbitration court in the sense of §§ 1025 ff. ZHPO, because it lacks parity of influence in the composition of the arbitrators. Moreover, its independence and impartiality is not given due to the further procedural arrangement.
2. In view of the constitutionally guaranteed autonomy of the association, internal association nomination guidelines can only be reviewed by the ordinary courts to a limited extent. In view of its sporting objectives, the association has a discretionary power of selection, which it must, however, exercise without error of judgement with regard to the legal provisions. The courts examine whether the association has taken into account the interests of the participants worthy of protection when drawing up its guidelines or whether it has committed an error of judgement.
3. A claim for damages due to the violation of a discretionary nomination right is already ruled out if the non-nominated athletes do not prove that the association could only have exercised its discretionary leeway in the nomination decision free of discretionary error by having had to nominate the non-nominated athletes.

Cologne Higher Regional Court, decision of 10 June 2022, ref. no. I-4 W 27/22 (previously: Cologne Regional Court, decision of 3 June 2022, ref. no. 15 0 120/22; final and absolute).

No interim injunction against the hygiene concept of a sports association

Art. 9 (1) GG; § 25 BGB; §§ 935, 940, 1032 ZPO

1. The SARS-CoV-2 protection regulations laid down by sports associations for competitions are only subject to limited judicial review due to the autonomy of the association.
2. A hygiene concept of a sports association for the disabled, which makes participation in the world championships in para-swimming dependent on a Covid 19 vaccination certificate or compliance with the so-called 2G+ rule, does not prove to be manifestly unlawful (guiding principles of the SpuRt editorial office).

BSG, Urt. v. 8.12.2021, Ref. B 2 12/20 R (previously: LSG Nordrhein-Westfalen, Urt. v. 31.7.2020, ref. L 4u619/18; legally binding).

No non-profit status of the first men’s football team

§§ 133, 157 BGB; § 31 SGB I; § 8 SGB V; § 6 SGB VI; §§ 152, 153, 176, 178, 180 SGB VII; §§ 31, 31, 39, 45, 48 SGB X; §§ 54, 77, 78, 95, 123, 163, 170 SGG; §§ 14, 60a, 64, 155 AO

1. The charitable facilities of a football club include the children’s and youth sections, but not the facilities of the first men’s team and a bistro, which are each economic business operations under tax law according to § 14 AO.
2. Non-profit enterprises are to be included in the pension burdens in the sense of § 178 paras. 2, 3 SGB VII for the delimitable departments that run an economic business operation.
3. As long as a partial tax obligation of economic business operations exists, a partial obligation of the corresponding institutions to equalize and share the burden arises at the same time. (Guiding principles of the SpuRt editorial team).

NFV-BezirkssportG Hannover, Urt. v. 31.5.2022, Az. 30-21/22 (previously: NFV-KreissportG Region Hannover, Urt. v. 4.5.2022, ref. J18.21/22; legally binding).

No rescheduling after an erroneously premature whistle.

§§ Sections 14, 15, 16 28 RuVO-NFV

1. The legal remedy against the assessment of a match due to an early whistle by the referee is the “protest” according to § 16 RuVO-NFV, not the “objection” according to § 15 para. 2 RuVO-NFV.
2. The termination of the game due to the (wrong) perception of the referee that the playing time has expired is not a violation of the rules, but a factual decision.
3. A violation of the Rules by the referee only occurs if the established fact is followed by an incorrect derivation of the Rules and/or an incorrect application of the Rules.
4. (In the alternative) On the determination of the “probability bordering on certainty” that a violation of the rules by the referee must have on the assessment of the match as won or lost in order for a protestant to be able to invoke the alleged violation of the rules under § 16 (2) RuVO-NFV. (Guiding and orientation sentences of the SpuRt editorial office)

NOFV-Verbandgericht, Urt. v. 28.3.2022, Ref. 00015-2021/2011-VGRNOFV (final and absolute)

Legitimate change of the general schedule due to the Corona pandemic

§§ 126, 127, 314, 315 BGB; § 9 GO-NOFV; § 11 RuVO-NOFV

1. An electronic announcement of an administrative decision via the DFBnet mailbox to a club fulfils the written form required by the SpielO-NOFV for decisions of an administrative body and therefore set in motion the time limits for appeals.
2. The authority granted to the association as match director entitles and obliges it to examine and decide at its reasonable discretion how the sporting competition underlying the championship round can best be fulfilled under the changed framework conditions caused by the pandemic. Within the framework of its prerogative to assess and its scope for evaluation, the association is also entitled to make a decision regarding the pandemic-related change in the match schedule at its reasonable discretion analogous to § 315 sub-section 1 BGB (German Civil Code).
3. The change of the framework schedule also does not violate a football club’s right to equality of competition because all other clubs of the NOFV-Oberliga have to play the same number of match days. (Guiding principles of the SpuRt editorial office)