SpuRt 5/2019 2019-10-10T13:42:27+00:00

In the editorial “Using, protecting and securing sports data” K. Vieweg, Erlangen, points out the importance of data in the present, e.g. for industrial companies, search engines and social networks. In sports, too, the digital transformation through digitalisation, microelectronics and wireless communication shows a multitude of usable possibilities.

With the European Basic Regulation on Data Protection, its importance has come to the attention of the public. For clubs and associations, this means that compliance requirements must be met, as must the legal requirements and data protection laws of the federal states and the federal government. These requirements vary depending on the type and ownership of the sports data; the following categories can be differentiated here: Organizational and administrative data (name, address, age), competition data (participants, results), movement data (training, competition), health data (resilience, injuries).

The ownership of the data is still not conclusively clarified, commercialization options and business models, contractual arrangements depend on it. The article on the so-called tracking data in SpuRt 2019, 198 points out the various problems and provides a good introduction to this subject.

In the article “Whistleblowers and Leniency Witnesses: Importance and Need for Regulation in the Interest of More Efficient Detection of Doping Violations in Sport”, M. Hauptmann and M. Klarmann, Frankfurt am Main, examine the question of how doping violations can be better detected. According to a survey conducted in 2016, around 89% of Germans currently assume that doping cannot be prevented in top-level sport. The authors present an overview of the current regulations for whistleblowers and make better proposals for their more effective inclusion in the anti-doping regulations.

First the authors deal with the terms whistleblower, the importance of whistleblowers for effective detection and the EU whistleblower directive. In particular, this directive contains a comprehensive ban on direct and indirect reprisals against whistleblowers. In the current analysis of criminal and sports law provisions to protect whistleblowers, the authors argue that the Anti-Doping Act 2015 does not contain any leniency provisions and are not the first critics to point to this shortcoming. They also note that the leniency rules in the Criminal Code are inadequate. In the authors’ view, the protection of whistleblowers in Art. 10.6.1.1. of the NADC (NADC) is also unhelpful, as it offers hardly any particular appeal to them.

Furthermore, the authors refer to the special laws in Germany and the USA which offer whistleblowers more comprehensive incentives and concrete protection, e.g. the law on the protection of trade secrets which came into force in 2019. The protection regulations in the USA also go further and are explained in detail. The authors come to the conclusion that more effective detection and prosecution of doping violations can also be achieved in sport if the parties involved provide the disciplinary bodies and investigating authorities with original information.

S. Karlin and L. Endrös, Munich, deal with the legal basis, scope and limits of exploitation in their article “Tracking data – the new “gold” of sport”. Tracking data are movement and position data of athletes and sports equipment, they serve the performance analysis and marketing of associations, clubs as well as sponsors and media partners. The focus is on copyright classification as well as data ownership and data protection law. The authors first deal with the terminological classification of these phenomena: game data must be divided into game information, game event and position data, master data is information that is subject to few changes, game information data, on the other hand, contains information about a game as well as game event data, in particular the number of shots on goal, throws, passes, duels, serves, etc. The authors then discuss the terminological classification of these phenomena.

The legal basis for the assessment of these phenomena is first and foremost the ownership rights at the event location according to § 858 ff., § 903, § 1004 BGB (German Civil Code) of the event organizer.

The copyright law can grant a property right protection of the data content, which is why the question arises as to whether a copyright on tracking data exists or can exist. According to an analysis by the authors, copyright law offers completely justifiable legal approaches according to § 4 Para. 2 UrhG or in the form of database protection according to § 87 a UrhG.

As a result, however, these legal bases hardly suffice for the future; details must be contractually designed for the protection of all parties involved. What is needed in any case, is greater protection, more legal certainty for all parties involved.

The article “Problems of employment prohibitions for loan players” by Ph. Fischinger and S. Unger, Mannheim, is current. Recently, the “Hannover 96 case” and the “SC Freiburg case” caused a sensation. In the “Hannover 96 case”, the club would have been obliged to buy the player if he had been used, and the club management therefore prohibited the trainer from using him. In the “case SC Freiburg” the player was not allowed to be used according to a clause with a play against the club of the owner.

First of all, a right of the club management to issue instructions to the coach is examined in detail, with the result that this is effective and the coach must comply. The further question as to whether the rights of the player are violated in the event of a prohibition of use must be answered in various ways: this is not the case with the imminent purchase obligation if the prohibition is also based on sporting considerations; otherwise the rights of the player are violated if he has to waive use bonuses or points bonuses. If the player is prohibited from playing against the owner, the player’s rights will not be infringed if he was aware of this agreement before agreeing to the lei deal.

The authors then provide information on the contract design of the loan contract to the effect that the player who has to comply with a duty of loyalty must have obtained exact knowledge beforehand. Finally, with regard to the legal position of the coach, it is advisable to expressly restrict his right of sole decision. If it is a purchase obligation depending on the assignment, it is absolutely necessary to stipulate in the contract that not only sporting but also economic reasons can justify deliberately undercutting the minimum number of assignments. For competitions against the owner of the player, the latter should be expressly informed of this.

Jurisdiction

CAS

Effectiveness of IAAF DSD Regulations for Athletes Case Semenya

Nos. 1 ff. IAAF-Eligibility Regulations for the female Classification

  1. The IAAF DSD Regulations for Athletes with an Intersexuality Problem are gender discriminatory because they impose restrictions on a subset of the female/intersexual totality which are not imposed on male Athletes. They are also discriminatory on the basis of innate biological characteristics in so far as they refer to the presence of 46 XY-DSD and the androgenising effect resulting there from.
  2. From a sporting point of view, it is necessary to divide performance classes in top-level sport and in athletics into two separate performance classes – one male and one female – in order to protect a group of athletes from participation in competitions by other athletes who enjoy certain biological competitive advantages. Therefore, it may be legitimate to make the right to participate in a competition dependent on biological factors and not only on legal factors.
  3. In this sense, the IAAF’s DSD rules constitute a legitimate and proportionate (and ultimately) appropriate, necessary and proportionate restriction of participation for female athletes with an intersexuality problem. The discrimination of female/intersexual athletes inherent in this is justified by the necessity of separate performance classes in top-level sport.
  4. To the extent that practical difficulties may arise in implementing the DSD rules (such as fluctuations in testosterone value for which the athletes are not responsible), the DSD rules may prove disproportionate at a later stage if they cannot be implemented in a fair manner (i.e. not at all or only with particular difficulties). A sufficient factual basis for such an assessment is currently lacking. (Editorial Guidelines)

CAS

No lifelong exclusion of a sports minister from the Olympic Games – Mutku case

Art. 188 IPRG; Rules 44, 59 Olympic Charter

  1. The exclusion of an individual from participation in the Olympic Games for life for undesirable past conduct shall constitute a disciplinary sanction within the meaning of CAS case-law.
  2. Neither Rule 44 nor Rule 59 of the Olympic Charter (OC) constitute a sufficient legal basis for this.
  3. Rule 44 OC regulates in particular the registration of athletes for Olympic Games by the National Olympic Committees. The circumstances regulated there thus obviously differ from the present one; the provision is not applicable. A corresponding application is ruled out because it would constitute a prohibition against the prohibition of analogy (against the principle of legality in the sense of a permanent CAS jurisprudence).
  4. Insofar as Rule 59 OC undoubtedly provides a legal basis for very substantial sanctions for the IOC, an individual person such as the appellant obviously does not fall within the circle of persons named there. (Guidelines of the SpuRt editorial office)

ÖVwGH

Compulsory insurance as an employee for a forerunner at the Ski Flying World Championship

A forerunner working at a Ski Flying World Championship on the basis of the FIS regulations, who receives a “pocket money” of 100 EUR per day and thus a total of 600 EUR for this activity for six days, must be qualified as an employee in accordance with § 4 Para. 2 ASVG and is therefore subject to compulsory insurance in health, accident, pension and unemployment insurance.

BGH

Permissible “Simply Olympic” – Advertising

§§ Sections 2, 3 (2) sentence 1 no. 2 old. 2, 3 (2) p. 2 OlympSchG; § 4 no. 3 lit. b UWG, § 14 (2) p. 1 no. 3 MarkenG

  1. Specific characteristics of sports textiles may be advertised as ‘simply Olympic’ if no express reference is made to the Olympic Games or the Olympic Movement in words or pictures.
  2. An unfair exploitation of the appreciation of the Olympic Games or the Olympic Movement does not already lie in every use which may impair the optimisation of the commercial exploitation of the Olympic designations by the holders of property rights pursuant to § 2 of the Olympic Protection Act. However, the limit to unfair exploitation is crossed where a close reference to the Olympic Games exploits their esteem for the advertising of products and their characteristics in a way that only an official sponsor is entitled to or, for example, a sporting goods manufacturer who is not a sponsor but whose products are used by athletes at the Olympic Games (continuation of Federal Court of Justice, judgment of 15 May 2014 – I ZR 131/13, GRUR 2014, 1215, marginal 32 = WRP 2014, 1458 – Olympic discount).
  3. The combination of sports symbols not protected under the Olympic Protection Act with the use of Olympic designations for the description of prizes or products which is permitted under general usage shall not constitute an unfair exploitation of a reputation within the meaning of § 3 (2) sentence 1 no. 2 case 2 of the Olympic Protection Act. (official guidelines)

LG Darmstadt

§ 280 para. 1 BGB (German Civil Code)

Association membership with pre-emption rights for admission tickets as obligation for a contractual injunctive relief against black market ticket dealers

  1. the obligatory relationship required for a contractual injunctive relief against black market ticket dealers pursuant to § 280 para. 1 BGB (German Civil Code) can be defined in the membership in an e. V. if this results in an option right for the preferred purchase of further admission tickets in the future. It does not matter whether the e. V. itself organises the games or whether this has an outsourced corporation.
  2. There are no objections to the effectiveness of the content of the relevant ATGB for restrictions on the commercial and/or commercial resale of admission tickets on the basis of the model ATGB of the DFL (2017).
  3. The definition of the term “commercial” in the relevant ATGB as “with profit, after deduction of transaction costs if applicable” has a declaratory, admissible function. Conversely, it is not required for the definition of the term “commercial” in the sense of the Model GTGB of the DFL.
  4. The threshold to commerciality and concrete competitive relationship is to be set at a low level in the case of supposedly “private” ticket trading: even purchase and sale transactions in the lower two-digit range over several years may involve a quantity that can no longer be explained by pure private demand. This is particularly the case if further circumstances arise such as an unusual type of booking (e.g. booking 2 tickets in different names in different blocks using the same means of payment).
  5. there is an abstract risk of making a profit when offering tickets on eBay by auction with a starting price of EUR 1. A concrete profit is not decisive for the assessment of commerciality. (Guidelines of the editors)

Federal Administration Court

Police costs for high-risk games in professional football

Artt. 20 para. 3, 3 para. 1, 12, 14, 104a ff. GG; § 4 para. 4 BremGebBeitrG

  1. Fulfilment of the tax liability determined by the principle of ability to pay, does not entitle the taxpayer to free use of particularly attributable state benefits. Anyone who makes special use of a public good (in this case the state security provision), for the purpose of making a profit may in principle be charged a fee for this.
  2. A provision of state law (in this case § 4 para. 4 BremGebBeitrG), which imposes a fee on the organiser of a profit-oriented major event, which, due to the experience of expected acts of violence, foreseeably requires the deployment of additional police forces in the spatial and temporal context of the event, to cover the additional expenditure, is in principle in accordance with the principle of the tax state (Art. 104 a ff. GG).
  3. Such a fee, which does not claim the organiser as a disrupter of public safety but exclusively as a beneficiary of the increased police presence, does not conflict with police law. In order to avoid an inadmissible surplus cover, however, “double settlements” with the organiser and the disrupter must be avoided.
  4. Article 12 (1) of the Basic Law stipulates that the organiser’s fee is agreed if, taking into account the nature of the event, it is regularly in a reasonable relation to the economic result which the organiser can also achieve thanks to the increased use of police force. (official guidelines; excerpt)

VG

New artificial turf pitch permitted

§ 55 (2) sentence 2 LBO (BW); § 30 (1) BauGB; § 15 (1) sentence 2 Alt. 1 BauNVO

  1. Microplastic, as it is present in the granulate and released by abrasion of the artificial turf, does not currently constitute a substance harmful to health or the environment within the meaning of REACH Regulation (EC) No 1907/2006 because it is not listed in its annexes. The fact that an amendment to this effect is to come into force in 2022 does not change this.
  2. The applicant has no claim that the city or third parties must comply with any possible future law today. However, they run the risk of receiving subsequent conditions in the event of a possible entry into force to change the materials already used. (Editorial Guidelines)