Spurt 5/2018

The editorial “25 Years SpuRt – 25 Years of Sporting Law”by J. Orth, Colognefocuses on the development in sports law of the past 25 years on the activities in SpuRt, mentioning the beginnings of the Judicial Academy 1972 (Kauffmann) and Württembergischer Football Association from 1975 (Sengle) , as well as the Konstanzer Arbeitskreis starting from 1982, which founded the SpuRt. Leading with their exemplary scientific contributions were many such asUdo Steiner, Klaus Stern and Peter J. Tettinger). The journal has made a name for itself over the past 25 years with its dedicated contributions of sports law through: essays, case law and other text contributions for science and practice and laid a significant foundation.

This should be a great incentive for publishers and publishers to maintain and steadily improve the high level of publications.

The publishers feel obliged to also maintain their quality standards in the future. They continue to look forward to exchanging views with the readers and authors, who also determine the quality and content of the magazine.

In the article“Autonomy Problems of Sports – An attempt to Review”, U. Steiner, Regensburg,deals with the statement that autonomy is the main pillar of sport, as stated in Art. Abs. 1 GG, Art. 11 Abs. 1 ECHR and although Article 12 (1) of the EU Charter of Fundamental Rights includes the right to error, it does not cover all, certainly not the international sports federations. This shows that just the assurance of autonomy brings many problems.

Steinerdeals with these in detail and divides them into basic rights and fundamental freedoms in sport, as well as organized sport and the law that applies to all, autonomy and self-sufficiency, and finally money in sport. These topics are well worth reading and eventually lead to an attempt by the author:
FIFA and others World associations of sport occasionally carry this autonomy “like a monstrance in front of them” – they thereby protect the national associations more and more against state and political influence. The fact that the “moral picture” that the world federations give up, has undoubtedly harmed the idea of ​​autonomy and thus puts it on the defensive. this situation of the sport is not easy!
The sport can largely be preserved nationally and internationally due to its established association and association structure, which also makes its future possible. However, there is a need to maintain a balance in which state and European law must intervene and regulate, in particular to preserve sport from negative financial influences.

In“Sports antitrust law in economic antitrust law” the author M. Stopper, Munich,points to the enormous increase of sport in its economic importance, in proportion to the application of antitrust law in sport has increased.

A standardized sports cartel law does not yet exist, the case law has drawn the antitrust law in sport. The article promotes understanding of the need for antitrust law in sport. Introducing, the author summarizes the antitrust case law, starting with the decision of the Supreme Court in 1997 “European Cup home games”, ending with the decision Meca-Medina of the ECJ.
The following aspects of antitrust law in sports are drawn by the article:

Antitrust law is intended to enable, protect and promote competition on the market. Sporting competition is not synonymous with economic competition, but the dilemma is different: authorities and courts need to understand the sport better.
After his discourse on the antitrust issues in sport, the author summarizes:

The basic competition policy assumptions of economic antitrust law are not true for the sport: Where the economic competition is just beginning, the sporting competition is already at its destination. Therefore, the instruments of antitrust law must take the understanding of the sporting competition to make an application more predictable – only this creates a sports cartel law.

In the article “The dealings of the European Council with sport” R. Streinz, Munich, is dedicated to the further European law, which applies not only for the 28 member countries for the European Union (EU), but for the 47 contracted countries of the agreed right under European law, this concerns important areas such as, for example: the fight against doping, spectators and manipulation of sports competitions. For practical reasons, Streinzgives examples: the Bosman ruling, according to which UEFA and FIFA were unable to pursue their 6 + 5 rule plans, the MECA Medina ruling for the World Swimming Association, and finally the loyalty clause for the international skating union (ISU) in complaints is the European Court of Human Rights (ECtHR) responsible. In the case of “Pechstein” a procedure could be expected. Mr Streinzreferred to the issues addressed by the European Council, in particular the resolutions and recommendations on sport, as well as the regular meetings of EU ‘sports ministers’. At the same time, there are already international agreements on sport: The European Anti-Doping Convention (as early as 1989) and the European Convention on Violence and Misbehavior of Spectators at Sporting Events; In these, the details are agreed on how to better control any risks from fan groups. Also, the manipulation of sports competitions has been decided in an agreement, at least as an approach. Furthermore, Streinzbriefly discusses the judgments of the European Court of Human Rights (ECtHR) focusing on the case Ostendorf / Germany (NVwZ 2014, 43-49), the case Hentschel and Start (EuGRZ 2018, 142-154), as well as the complaints by Claudia Pechstein v. Switzerland based on the decisions of the Swiss Federal Supreme Court (EuGRZ 2013, 643-644).
Finally,Streinzpoints to the co-operation of the European Council with the sports associations, most recently the leaders of FIFA and the European Council have declarations of intent to restore cooperation. However, whether this can improve a deficient internal control of FIFA, remains doubtful.

In the article “The Future of Arbitration in Sport – Reform Proposals for the CAS”T. Summerer, Munich, openly addresses the rule of law deficits of the International World Sports Court CAS and makes proposals for reform. The compulsion in which every professional athlete is exposed, namely to submit an arbitration agreement with the exclusion of the state jurisdiction, if he wants to participate in athletic competitions, requires an urgent solution. For Summerer, the starting point is the broad criticism of the BGH judgment in the case of Pechstein, which declared both the arbitration agreement and the proceedings before the CAS to be lawful. Listing the critical votes against the BGH judgment, one comes to the further problem that the international sports federations feel particularly protected in Switzerland, since from there a way to a preliminary ruling of the ECJ under Art. 267 TFEU is denied.

After the certainly high value of the “fundamental right protection by procedure” of the basic law (kind 19 exp. 4 GG) the principles of the rule of law must be set high. They are listed as deficits of the CAS by the author, under the note that after a holistic consideration the CAS cannot be considered by the arbitral tribunal within the meaning of §§ 1029 ff. ZPO. The deficits are: no free choice of the referee, clear superiority of the associations to the arbitrators, no neutral business distribution plan, submission of the award to the Secretary General, burden of proof in doping cases to the detriment of the athlete, no resumption of new evidence, funding of CAS by IOC and sports associations,

The author presents detailed reform proposals for these deficits. In conclusion, Summereraddresses the necessary stricter standards for arbitration in sport which must be absolutely guaranteed. Especially in sports, the active athlete in particular must be convinced of the acceptance of the jurisdiction. The author points out that the CAS, the ICAS and the IOC president are obviously holding on to their previous position when they publicly announce that they are disappointed and surprised by the sentences handed down to the 39 Russian athletes whose lifelong blockages are over. It is to be hoped that something will change here.

The contribution “Association responsibility for sports damage – to the legal problem of concussion”begins with the statement of the author K. Vieweg, Erlangen, that there are still few legal studies on long-term damage in sports, especially missing significant medical scientific studies on concussions.

Viewegpoints to the cases of Chr. Kramer at the 2014 World Cup final and L. Karius in the Champions League final 2018, where concussions were discovered later. The author brings many scientific facts and medical details and refers to about 16 former Bundesliga players who lost the so-called gray matter.There is a need for research in every respect, in particular with regard to the causes of the so-called second impact syndrome, as well as is still unknown the trigger for so-called commercial symptoms.
The responsibility of the sports federations for the health of the athletes stands at the beginning of the autonomy of the federations within own rules. However, if the fundamental rights of the athletes are covered, the balance of mutual interests must be examined by means of practical concordance, in particular, by § 242, the extent to which there is an obligation under association law, with the specific content, an obligation to draw up detailed rules applicable to the interest pursuit of the members are essential.

Whether such a promotion and information obligation of the Swiss-based world sports federations FIFA and IOC exists, needs further investigations. These duties and responsibilities are cited by the author as follows:

Monitoring of injuries, accidents and health problems, documentation and evaluation of the observed injuries and health problems, commissioning of research in case of insufficiently clear information situation, taking measures to improve the situation by adapting the regulations.
Some of the sports associations have also taken action, e.g. For example, FIFA’s 1994 FIVA Medical Assessment, head injuries assessed in 20 FIFA competitions from 1994 to 2014 were evaluated. The results on head collisions as well as elbow / head collisions were evaluated. However, these have not yet received sufficient acceptance in arbitration circles in many cases – there is still a lot of action to be taken.
In summary, the author notes that a lot of research and action is needed here. Sports Federations should seek more research and provide information to their members in order to take transparent action, since accountability raises volatile legal issues, in particular liability requirements.

In the article “The Termination of Limited Player and Trainer Contracts”, the author W.-D. Walker, made an inventory of legal issues relating to the termination of players and coaching contracts that have been discussed in the SpuRt over the last 25 years.
At the beginning, the author refers to a period of grace and waiver of action, the 3-week period in § 4 sentence 1 KSchG and the general invalidity of an agreement to waive a claim (§ 1 a KSchG). The general conditions of effectiveness in §§ 130, 623, 174 BGB must be observed. Likewise, the regulation corresponding to § 15 Abs. 3 TzBfG, according to which the termination of a fixed-term contract is possible only with special agreement. Such an agreement can also be found by interpreting a text of the contract.

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The social justification necessary for dismissals must also be present in an agreement acc. § 15 Abs. 3 TzBfG ,which concerns preperson-related, behavioral and operational termination. Here,Walkerlists in detail the reasons for players and trainers that are eligible under the German Employment Protection Act and points to the decisions made in the SpuRt that were discussed in detail.
Extraordinary termination is considered to be premature termination if there is good cause. Again, the usual reasons are put forward in professional sports, such as, for example, success is irrelevant, such terminations are effective only with sufficient concrete factual presentation on behavioral and performance deficiencies: beyond illness and injury, as well as insults or injuries to players and coaches can sometimes play a role, here the author lists various decisions of the labor courts as well as the reasons for club-damaging statements.
The so-called termination of contract can be significant for both players and coaches as extraordinary termination, for example, when third parties threaten purely serious economic disadvantages; this may be especially the case of sponsors, other players, fans or media; Labor courts, however, have mostly considered termination of contract as ineffective. It is important, however, that the terminating party complies with the clarification period under Section 626 (2) of the German Civil Code of two weeks, from knowledge of the reason for termination; Often knowledge is difficult to prove.

Jurisdiction

ÖOGH
§ 25b IO; § 864 a ABGB; § 879 ABGB; Section 119 Insolvency § 242 Civil Code

Effectiveness of the insolvency-related forced relegation clauses of the Austrian Football Association (ÖFB)

1. Participation agreements between the association and the club are only valid for one championship season without the participating club being able to rely on the unchanged continuation of the underlying guidelines.

2. § 4 Abs. 4 ÖFB-guideline “Regionalliga Ost”, which provides in the case of pending insolvency on the assets of a participating club whose forced relegation, does not violate § 25 b IO, because the participation agreement is not aimed at the exchange of typical performance and contingent liabilities.

3. The forced relegation clause is not surprising i.S.d. § 864 a ABGB, because the clause applies to all participants of the championship and contributes to the establishment of uniform competition conditions.

4. Since the interests of the organizing association in an economically and athletically undistorted competition outweigh those of the participating insolvent club, the clause also holds a corresponding balance acc. Section 879 (3) ABGB.

BGH

§§ 546, 1029 para. 1, 1040 para. 3 sentence 2 ZPO

No right of action of NADA before the DIS sports arbitration court due to “old” form rally clause

1. Review by the Court of Appeal of the interpretation of a sports association’s formal arbitration agreement is not limited to whether the Higher Regional Court has infringed rules of interpretation, laws of thought or empirical principles.
2. If the parties submit to an arbitration agreement in the Rules of Procedure of an arbitral tribunal, such submission shall not, as a rule, include any subsequent amendments to the Rules of Procedure which broaden the scope of the arbitration claim.

OLG Munich

§ 3 a UWG; § 307 para. 1 sentence 1, para. 2 no. 1, para. 3 sentence 1 BGB; § 31 para. 5, § 32 para. 1, para. 2, § 95 UrhG

Video rights in amateur football II

If a sports broadcaster, in general business conditions, makes the admission to the stadium for the purpose of recording video game reports and subsequent distribution of the film recordings in its own media dependent on the provision of a copy of the game report under transfer of all rights of use and exploitation, such a clause shall not be subject to content control § 307 para. 1 sentence 1, para. 2 no. 1 BGB, since the transfer of rights of use and exploitation rights is a main service obligation of the media companies (§307 Abs. 3 Satz 1 BGB).

LG Cologne

Art. 9 (1) Basic Law, §§ 25, 661 (2) BGB

Rating of the 147th German Derby 2016 in Hamburg

1. The ordinary courts are limited by decisions of federation courts because of the constitutionally guaranteed club autonomy on one review of the legality of the decisions. They are prevented from judging a sports federation, withdrawing prize money or disqualifying.
2. Price decisions in horse racing can only be reviewed by ordinary courts in accordance with § 661 para. 2 BGB for serious procedural errors and violations of public order.
3. If a lower association court overrules a decision of a higher association court by “maintaining unchanged” its decision annulled by the higher court, rather than rethinking the case, the “maintaining” decision suffers from a serious procedural violation, which leads to determining their ineffectiveness by the ordinary courts.

LG Koblenz

§§ 276, 278, 280 Abs. 1 BGB

Unauthorized assertion of a nomination claim

1. An athlete who asserts a nomination claim against an association must first examine, in the context of a plausibility check, whether the nomination claim exists in principle.
2. If the athlete claims a nomination by setting a deadline and threatening an interim injunction, although this claim cannot exist because there are no clear requirements of the nomination guideline, this is a culpable breach of duty which commits him to pay damages for the association’s legal fees and Legal defense against the nomination claim. (Guidelines of the editorial office)

ArbG Bremen-Bremerhaven
§§ 46 para. 2, 48 para. 1 a ArbGG, 17 ZPO
Local jurisdiction of the Labor Court – DFB referee I
The local jurisdiction of the Labor Court in a declaratory action of a referee of the license leagues against the DFB. (Orientation sentence of the editors)

ArbG Verden
§§ 46 para. 2, 48 para. 1 a ArbGG, 17 ZPO
Local jurisdiction of the Labor Court – DFB referee II
The local jurisdiction of the Labor Court in a declaratory action of a referee of the license leagues against the DFB. (Orientation sentence of the editors)

FG Baden-Württemberg
§§ 20, 23 EStG
No taxation of profits from the private sale of high-priced tickets
In the case of Champions League final cards, constitutionally construed interpretations are securities which, since the Corporate Tax Reform Act, are no longer subject to the scope of application of section 23 of the Income Tax Act (EStG) and whose sale does not constitute a taxable event.

DIS Sports Arbitration
§ 1057 para. 1 ZPO
Reimbursement of legal fees in arbitration proceedings
In arbitration, the costs to be reimbursed include, in principle, attorney’s fees, which are calculated according to hourly rates. (Guiding principle of the editors)