SpuRt 4/2019 2019-10-10T12:32:55+00:00

In the editorial on the occasion of the 70th anniversary of the Constitution entitled “More constitutional law?“, U. Steiner, Regensburg, asks the question whether sport actually receives more support from constitutional protection, (as repeatedly demanded in the past) at the same time Steiner negates the question with the remark that the state goal provisions in the constitutions are sufficient. On the other hand, professional sport has long been experiencing problems as a result of corruption in the associations, economic excesses and violent occurrences. The sport itself must clarify its questions, starting with the idea to organize an Olympic Games in the Ruhr area, as well as the protection against discrimination in the question of the so-called third sex. The sport has to clarify these problems even without the German Constitution.

In the article “On tax liability of referees – effects of the BFH judgment L. Bertling, Dusseldorf and Roth, Giessen, analyze the judgment of the BFH on the Trade Tax Liability of Referees. The BFH has subjected the internationally active professional football referees for several associations, FIFA, UEFA and DFB, to the Trade Tax Liability because, according to § 15 (2) EStG, they are self-employed individuals who participate in the general economic traffic. The authors explain they are looking for a demarcation of self-employment, and deal with the effects of this tax liability in the amount and scope according to § 11 Abs. 2 GewStG. Differentiation is the question to answer for purely nationally active professional referees. Here, it depends on the individual case, whether a given tax liability in the professional or amateur sector is sustainable according to § 15 para 2 EStG. In any case, the tax reduction according to § 35 EStG would apply, likewise the deduction amount of € 24,500.00 according to § 11 GewStG has to be considered. For the referees in the amateur sector it remains as the previous regulation, according to which an allowance of € 720.00 under § 3 EStG comes into consideration, also in individual cases, the so-called training leader fee of € 2,400.00 per year. The authors also discuss tax liability in other sports, such as handball, and equestrian sports. If, on the other hand, the refereeing activity is conducted as a hobby, that is, without the intention to make a profit, then any income under income tax law will be disregarded here.

In the article “Doping, Unfair Competition and the Anti- Doping Act (AntiDopG)“, F. Brugger, Konstanz, deals with the question to what extent the punishable self-doping prohibition of §§ 3, 4 Abs. 1, Abs. 2 AntiDopG influences civil claims, in particular, according to the law for unfair competition (UWG).

Under the competition law central concept of the business act according to § 3 UWG the self-doping can fall as defined in § 2 Abs. 1 Nr. 1 UWG. The author examines in detail the company relationship, i.e. the long – term economic activity as well as the independence, and the objective connection and comes thus to the result that doping violations have a market relevance in competition and a demand competition according to § 2 Abs. 1 No. 1 UWG condition. Furthermore, the doping athlete also violates the legal breach of § 3 a UWG. The claims from § 3 a UWG are thereby particularly influenced by the individual regulations of the AntiDopG, it does not apply to other UWG violations. In particular, for the enforcement of claims for damages from § 9 UWG, is of particular importance, if a proof of  lost profit according to § 252 BGB succeeds. This will continue to be problematic, so that the AntiDopG brings little progress in this regard for civil claims. However, in the personal opinion of the author a threat to the self-doping athlete compensation is significant and could have a deterrent effect.

In their article “The Collective Agreement of the Austrian Football League” T. Dullinger and S. Schwertner explain the Austrian professional football collective agreement, which regulates the employment conditions of the football players, for example working hours, holidays, remuneration continuation and termination. This was updated on 01.07.2018 and revised. The authors initially deal with the contractual capacity for a collective agreement, because this is largely absent from Austrian professional sports among the associations. In the detailed regulations of the employment first fee regulations, are considered, e. g. the minimum fee, which according to § 6 para 5 BL-KollV aF of the contract for the Bundesliga (now gross € 1,300.00) was set and will increase in 01.07.2020 to € 1,550.00. Herein, are also the variable remuneration components such as premiums and benefits. These monthly payments are to apply annually for a period of 52 weeks.

Up to now, the young players were exempt from the minimum wage regulations until the age of nineteen, now a discerned regulation is made, which is explained in detail,  including, the age discrimination according to § 6 Abs. 6 d. contract in general, in order to avoid any unequal treatment of young players. This provision makes it possible to undercut the minimum wage for young players who have not yet had an opportunity to distinguish themselves in the competitions of the Bundesliga. This provision must be consistent with Article 45 TFEU in every respect. The ECJ recently confirmed this in its decision of 13.03.2019 – EurothermenResort / Bad Schallerbach.

The termination of the contract is primarily concerned with the unauthorized unilateral extension options, which are only valid if they confer equal rights on each party to the contract and if the manner in which the option is exercised by both parties is equivalent.

Overall, the 2018 amendment significantly improved many conditions and details.

In the article “Hire and fire” in the Bundesliga: coach as a worker without employment entitlementF. Lenz, Augsburg, deals with the labor law aspects of the coach exemption in top football. Upon termination of a trainer’s employment relationship, which is mostly completed on a temporary basis, although an exemption is common, this is not without controversy, as the LAG Hamm on 11.10.2011, SpuRt 2012, 163 noted.

The author deals first with the employment entitlement and its limits, because only in exceptional cases, there is no employment claim under § 242 BGB. Similarly, a one-sided exemption of the employee may be possible in exceptional cases, to which the literature refers in detail. The author now focuses on the trainer’s particular interest in employment and also on the need for flexibility of the association, highlighting the peculiarities of the trainer’s work, which, of course, depends on success or failure, even though the trainer contract is a service contract. The mutual balance of interests must be considered here. Since there is not a  clear case law of the BAG, it depends on the fact that a coach in his case the employment claim can go up to the highest instance of a court.

In the article “Exclusivity clauses, antitrust and the use of the milder remedy”, J. Kornbeck, Brussels, commented on the decision announced by the International Swimming Federation (FINA) on 15.01.2019 that the athletes of his member federations would participate in FINA foreign competitions and other competitions the athletes will no longer be punished for attending these  events. This makes FINA the first international trade association that has been active since the decision of the European Commission in antitrust proceedings against the international skating union and has taken the appropriate consequences.

The FINA President said that it was about the development of all water sports and the well-being of the whole of the athletes, but FINA also has a margin of interpretation. As a result of this initiative, FINA has adapted its practice to the requirements of EU antitrust law, despite the fact that the Commission’s decision against the International Skating Union has been challenged before the European Court of Justice and has not yet been finalized. Similarly, in December 2018, members of FINA filed a US federal action against a threatened ban on FINA for a similar case.

Kornbeck now notes that the international associations have various possibilities to react to the antitrust problem and offers two solutions in the context of an application of the so-called “milder remedy”. Overall, the decision of FINA is in any case trend-setting, because under antitrust law it always complies with the principles of necessity and proportionality.

R. Cherkeh, Hanover, addresses the problem of the lack of leniency in his article “Strengthening the protection of informants through leniency in the AntiDopG”. This was last demanded in April 2019 before the Sports Committee of the Bundestag  explicitly by experts.

In § 31 of the AntiDopG preceding Narcotics Act (BtMG) such a rule is included – since the adoption of AntiDopG the lack of leniency was criticized. Cherkeh points out that the general leniency rule in § 46 b StGB and § 100 a paragraph 2 StPO does not help because § 4 (1) Nos. 4 and 5 AntiDopG does not provide for a minimum sentence of imprisonment. Nor does the option available in the NADA code help much further.

Cherkeh therefore presents possibilities for future practice which are suitable for the introduction of a leniency program in the AntiDopG and which it has already made accessible to the Sports Committee of the German Bundestag.

Jurisdiction

ECJ
Exclusion of EU foreigners at national championships
Articles 18, 21 and 165 TFEU; § 5.2.1. Order of the DLV

The Artt. 18, 21 and 165 TFEU must be interpreted as precluding the rules of a national sports federation such as that at issue in the main proceedings, according to which a Union citizen, a national of another Member State and for many years resides in the Member State in which the association is established and he is an amateur in the category of seniors, not like nationals of the Member State in that discipline may participate in national championships or only “out of class” or “unrated” without having access to the final and without the national championship title unless it is justified by objective considerations proportionate to a legitimate aim, which is for the referring court to examine. (official rate)

Federal Court
No collective doping suspension of Russian athletes
Art. 1.2, 2, 3.1 WADC; Art. 182, 190-192 IPRG; Art. 77 BGG

  1. Arbitration awards issued in national arbitration on Swiss territory are subject to content review by the Swiss Federal Supreme Court. However, there is no prejudice to the right of a party to a fair hearing in the context of an adversarial procedure because that party submits that the panel does not respond to some of the allegations or arguments it has made or the evidence it has or is proposing Have referred. Just like state courts, arbitration tribunals examine the legal scope of the facts freely.
  2. Even if there is a presumption of an organized and institutionalized doping program, the participation of individual athletes in such a program can by no means be inferred. Still less, can it be concluded that the violation of an anti-doping provision provided for in the WADC has occurred. (Principles of the editor)

BGH
Liability of sports teachers
§§ 680, 839 BGB; Art. 34 sentence 1 GG

  1. In case of improperly ignored first aid measures by sports instructors, in case of accident, during physical education, liability (§ 839 BGB, Art. 34 sentence 1 GG) is not limited to intent and gross negligence, since the liability privilege for emergency workers (§ 680 BGB ) does not intervene.
  2. In case of gross negligence, the principles of proof developed in the law of medical malpractice for gross treatment errors (reversal of the burden of proof), which according to the Senate case law apply accordingly to gross violation of occupational or organizational duties (core obligations) that specifically serve the protection of life and health, are not applicable since the teachers’  first aid duty  is not a primary but only a secondary obligation. (Official Guidelines)

LG
Proof of evidence for doping violations in equestrian sports
Art. 9 para. 1 GG; § 25 BGB

Relief in the sense of a prima facie evidence in favor of the punitive association in the event that a prohibited substance is detected in the blood of the racehorse, is not objectionable under the rule of law, because otherwise the associations have no chance for effective doping prosecution. (Guiding principle of the editors)

AG
Publication of the list of members to club members (Hannover 96)
§ 37 BGB

The legitimate interest of individual members of the association in the publication of a list of members by the association and the data protection law permissibility of the publication. (Orientation sentence of the editors)

LAG
Termination of the employment contract of a regional player
Section 14 (1) sentence 2 no. 4 TzBfG; § 8 No. 2 p. 1 DFB SpielO; Art. 2 No. 2 p. 1, 5, 6 FIFA Regulations

The considerations used by the Federal Labor Court for the limitation of an employment contract of a licensed player of the 1. Bundesliga according to § 14 Abs. 1 Satz 2 Nr. 4 TzBfG (“Heinz Müller” – BAG, Urt. V. 16.1.2018, Az. 7 AZR 312/16) can also be transferred to employment contracts of players in lower leagues. (Guiding principle of the editors)

BFH
Consideration of losses from a tutorial activity
§§ 3 No. 26, 3 c para. 1 EStG

If an instructor achieves tax-exempt income below the so-called “Trainer Allowance” according to § 3 Nr. 26 EStG, he can deduct the related expenses insofar as they exceed the income, if there is an intention to earn income with regard to the activity (following BFH judgment of 20 December 2017 III R 23/15, BFHE 260, 271). (official guideline)

BFH
Expenses for a Sky Bundesliga subscription as tax-deductible advertising costs
§§ 12 No. 1 p. 1 and p. 2, 9 p. 1 p. 1, 9 p. 1 p. 3 No. 6 EStG

The expenses of a football coach for a Sky Bundesliga subscription can be “advertising costs in the income” from non-self-employment, if in fact is a professional use.

Federal Court of the German Handball Federation
Protection of legitimate expectations in association information
§§ 7 para. 1, 17 para. 1, 22 para. 2 RO

  1. Clubs may, in principle, rely on the information and handling of the responsible game managing body. If the club has done everything possible to clarify a dispute, it comes to good faith protection.
  2. This does not exclude that it is the responsibility of each club participating in the game operation to have knowledge of the applicable law. Furthermore, a protection of good faith regularly eludes if the controversial issue already in the result deviating supreme court decision exists, which has been published. (Editorial principles)