Our co-editor, U. Steiner, devotes his editorial “Money and Sport” to the enormous amount of money spent on sport and athletes and formulates: “Big sport requires big money”. If there is lack of money (as there is now) in the professional leagues of all sports in the Corona pandemic, this stimulates the discussion. Therefore, the abolition or modification of the 50+1 rules is currently being discussed in order to strengthen the financial power of professional football. Also, on the cost side of the sport, the salary cap is again being discussed, which may be introduced within UEFA. The “expert soldiers” have already been sent out.

The German football industry in particular knows that it must address the problems arising from the complex system of state, sport and market. The reservations in politics and society about professional football, with its difficult to understand characteristics (player salaries, transfer fees and lifestyle of the professionals), are difficult to convey to society with fair consideration, even if the details are more likely to be a matter of detail. Thus, the task force “Future Professional Football” is expected to be curious and inquiring about how the problems will be dealt with.

In the article “The injury of an opponent by a doped but rule-compliant athlete”, T. Hülskötter and N. Raabe, Münster, examine the question of whether the civil law privilege of liability in sport should also apply if the violator, acting according to the rules, was demonstrably doped?

The reason for this is the conviction of the professional boxer Felix Sturm to a prison sentence by the Cologne Regional Court (LG Köln) for the blows delivered to his competitor during a boxing match in connection with a proven offence of deliberate self-doping. Because of this circumstance, the opponent’s usual consent to bodily injury in a boxing competition was not effective.

The authors use case law and literature to explain the privilege of liability currently applied in civil law in sport. Subsequently, the application of the sports liability privilege is examined by means of an example. The link between the act of doping on the one hand and the act of injury on the other hand is analyzed. This raises the question of the causality which gives rise to liability. The central point is probably the examination of the question whether a violation of a sports rule relevant to liability law can be caused by doping. In conclusion, this must be negated, since the violation of doping rules is never covered by the typicality and reciprocity of the actual practice of a sport – which in turn means that the sports liability privilege does not apply in the case of proven doping violations.

As a result, the application of the sports liability privilege is in any case dependent on the type of doping and rule violation in question: the liability privilege does not intervene in the case of doping violations that lead to an increase in strength and mass.

Although there are various sports rules relevant to liability law (rules with integrity protection character), the typical nature of the infringing act is usually not given.

It is to be hoped that an athlete will dare to take the step and, in the event of an infringement, take legal action against an opponent who has been doped but otherwise acts in accordance with the rules.

In the article ” The antitrust examination standard in sport “, M. Stopper, Munich, points out that sport continues to seek reliable guidance on the application of antitrust law in its field. His contribution is intended to develop an examination standard.

The awarding of media rights for live Bundesliga matches is currently under discussion, with the aim of ensuring a fair decision for the end consumer. The complexity of the balancing of interests is an example of the lawful central marketing of Bundesliga rights. Another topical issue is the discussion on the introduction of salary ceilings in European football – this is also a question of an antitrust test of proportionality.

Starting points for an examination yardstick are the so-called “Meca-Medina 3-step test”, the concept of the sporting rule and finally the special nature of the economic interest; these key points have already been addressed several times in the discussion and, in the author’s opinion, they should be deepened and concretised; they should be based on Art. 101 (1) and Art. 101 (2), Art. 103 TFEU.

The 3-step test in the ECJ decision “Meca-Medina” shows the test steps for a proportionality test, and is regularly and reliably applied in German case law. It also follows from the Walrave and Koch decision in 1974 that sport is part of economic life, as well as from the Bosman decision that sporting rules are to be considered as subject to Community law.

Finally, the author argues that sporting rules must always be assessed as a matter of antitrust law, as has been repeatedly assumed in the literature to date, and that the sporting rule can ultimately be regarded as a point of reference for assessment criteria.

In conclusion, Stopper finally arrives at the following examination scheme:

First, the restriction of competition and a possible abuse by the market must be subsumed under the elements of Art. 101, 102 TFEU, then a proportionality test must be carried out, which must be based on the sporting rule. This must be interpreted broadly and the economic relevance must be established. The last step then consists of a 3-step test, which based on the “Meca-Medina” decision, contains several stages for a proportionality assessment.

As the Corona crisis, with its economic consequences for professional clubs, has reignited the discussion on the spin-off of the licensed players’ departments from the registered club, F. Wittersheim, Munich, in her contribution “The possible way to spin-off the licensed players’ departments of Bundesliga football clubs”, deals with various possibilities of spin-off.

Traditional football clubs Schalke 04, Freiburg, Mainz, Düsseldorf and Union Berlin are proud to be able to maintain the legal form of a registered association, but they too may have to fear deletion from the register of associations due to a violation of legal form under § 375 FamFG.

The author introduces the reader to the distinguishing features of the ideal association (§ 21 BGB) from the economic association (§ 22 BGB), with particular reference to the so-called secondary-purpose privilege and the necessary creditor protection. The current KiTa decision of the BGH of 16.05.2017 is analyzed with the result that there is agreement that non-profit associations may not distribute profits to their members and may not grant them any other benefits. The author then goes on to outline the possible ways of restructuring and explains the legal framework conditions, in particular the requirements under association law, in this case with reference to the so-called ADAC case law from 1982, but also the requirements under association law according to the statutes of the umbrella organizations DFB and DFL; the exemption provision in Article 8 (3) of the DFL statutes, according to which another legal entity which has continuously and substantially promoted the football sport of the parent club for more than 20 years, is particularly explosive.

The possible legal forms for a spin-off, namely the limited liability company (GmbH) and the public limited company (AG) are discussed as well as the partnership limited by shares (KGaA).

It becomes apparent that a club has a wide margin of maneuver for the spin-off of the licensed players’ department. The choice of legal form is likely to depend primarily on the particular interests of the club, its members and the orientation of the club.

Finally, the author summarizes that, because of the current uncertain financial situation and the continuing commercialization of professional football, the following aspects are particular: the security of the club (the “parent club” should be able to continue to exist without any losses), the avoidance of liability risks and insolvency (the “parent club” should be secured exclusively through its membership fees), new ways of financing must be found in any case, and finally, there is co-determination of the “parent club” and its members by allowing them to participate in the hived-off legal form.

In a further contribution “Spin-off of football licensed player departments in the regional league“, N. Wolf, Ulm, deals with the legal possibilities of spin-offs in amateur clubs, because these clubs have also tended more and more towards separation in recent times, particularly because the clubs want to protect themselves from the insolvency of their professional departments and also fear losing their non-profit status. In addition, regional league clubs increasingly have to meet the requirements of professionalization and have an ever-increasing need for capital.

The author notes that the restructuring measures for these clubs are extremely challenging and complex because the voluntary management of the clubs is not always up to the task, despite the necessary support of professional advisors.

The choice of legal form and the drafting of the statutes will depend on what capital requirements are necessary and to what extent the DFB’s so-called 50+1 clause must be taken into account.

Likewise, the mandatory organs of the corporations must be installed. The legal form of a GmbH will be of particular importance if there is no additional capital requirement because this is already secured by long-term sponsoring contracts. The sporting orientation of the club, for example which match operation units are to be spun off, is also important in the spin-off, as is the extent to which the promotion and integration of young talent is necessary. The risks of a spin-off in the regional league must also be taken into account, such as possible relegation, as the regional associations do not permit the use of corporations in their match operations.

It therefore remains to be seen how many clubs in the regional league will decide to outsource their professional teams in the future. There is currently a trend towards outsourcing in the regional league, which is noted with relief by the tax authorities in particular. However, the question of whether, from the point of view of the clubs, restructuring and hiving off is appropriate will certainly have to be examined closely.

In the article “Transferred restructuring of sports corporations“, S. May, Haan, examines new possibilities for the restructuring of sports corporations. In contrast to the usual insolvency proceedings, the transferable reorganization represents a new development, as often in the case of football clubs or sports corporations the essential values in tradition, fan loyalty, player contracts, advertising contracts or the league license cannot be liquidated. In particular, the league license is a major problem in restructuring.

Transferable restructuring is generally accepted as an instrument of corporate restructuring and is widely used in contrast to the usual insolvency plan procedure. Due to the specificities of sport and in particular the very limited transferability of the right to participate in the operation of a certain league (league license), the transferable restructuring has so far received less attention in sport. For this reason, the author uses an example of a spun-off sports capital company of a sports club to illustrate the possibilities and issues arising from a transferring restructuring with the result that it is a real alternative.

The transferring reorganization can take the form of an asset deal, a share deal or a merger. Each asset is to be transferred in accordance with the regulations applicable to it. When transferring the league license, particular attention must be paid to the rules of the respective league. Here the author uses an example of the spin-off and reintegration of the new corporation into the league to explain the individual procedure under the circumstances of the respective statutes.

Thus, the transferred restructuring is an attractive new means of reorganizing sports corporations and securing the operation of the game.

A further special structuring option in the event of the insolvency of a football club or corporation is presented in the article ” Plan insolvency as a restructuring option for football clubs in the Corona crisis ” by J. Laschinski and J. Kührt, Halle/Wittenberg. This insolvency plan procedure is described in §§ 217 ff. InsO and offers football clubs in particular an opportunity to transfer league licenses and the transfer of players’ rights to a new legal entity.

The authors first explain the course of the insolvency plan proceedings in detail, after the insolvency plan has been discussed with the creditors it is a question of their confirmation, after which the effects of the insolvency plan according to § 254 I 1 InsO then occur. Self-management, regulated in § 270 InsO, gives the debtor the possibility to wind up and reorganize his business under the supervision of a custodian with the consent of the creditors. The authors also deal with examples and details of the implementation of this procedure.

Finally, in the Corona crisis, the legislator introduced a mitigation of the consequences of insolvency in civil, insolvency and criminal proceedings law, also a simplification of the application for short-time work benefits. A special feature of the legislator was the obligation to file an insolvency petition, as stipulated in § 15 a InsO, and the extension of this deadline until 30.09.2020.

In the article ” Bookkeeping, recording and accountability obligations in the legally constituted association “, M. Oehlrich, Darmstadt/Bad Homburg, describes the bookkeeping obligation in all details for legally responsible associations. These duties are primarily of importance for commercial associations or ideal associations which have a commercial purpose which, by its nature and scope, requires commercial business operations.

In principle, §§ 1, 238 HGB apply to the bookkeeping and recording obligations.

It should be pointed out that the board of directors is basically obliged to the association as a contractor in accordance with §§ 664, 670 BGB (§ 27 Para. 3 BGB) if it does not receive remuneration for its activities. According to § 266 BGB, the executive board is obliged to provide information to the association; the member as an individual is entitled to information rights by analogy with § 131 (3) AktG.

In terms of tax law, § 1 (1) No. 4 KStG and § 8 (1) Sentence 1 KStG in conjunction with § 5 (1) Sentence 1 EstG must be taken into account, as must §§ 140, 141, 143 et seq. AO.

The obligations focus primarily on commercial accounting and the preparation of the annual financial statements. The purpose of this bookkeeping is to contribute to informing the relevant balance sheet addresses as a preliminary stage to the preparation of the balance sheet. This also includes securing the liability mass in order to prevent over-indebtedness under insolvency law in accordance with § 42 (2) sentence 1 BGB. In any case, accounting in accordance with Section 238 (1) Sentence 2 of the German Commercial Code (HGB) should be designed in such a way that it can provide an expert third party with an overview of the business transactions and the situation of the company within a reasonable period of time. Even if no specific system is prescribed, double-entry bookkeeping is considered to be permissible almost exclusively.

The obligation to prepare annual financial statements is also governed by Sections 264, 264 a of the German Commercial Code (HGB). Associations with legal capacity that are not subject to the Publication Act are not obliged to disclose information, in contrast to the disclosure obligation of corporations under Section 325 (1) sentence 1 HGB. Likewise, the tax regulations for bookkeeping and recording in §§ 140, 141 AO must be observed.

The only thing to be noted is that legally responsible associations, which are large companies within the meaning of the Publication Act, are largely on a par with corporations in terms of their preparation obligations, so that in addition to the balance sheet and the profit and loss account, an additional management report must be prepared and disclosed.

In “Football Bundesliga tickets in the light of the corona crisis”, J. Drechsler and P. Harenberg, Frankfurt a. Main, explain current aspects of securities law with regard to the secondary market.

The secondary market for Bundesliga tickets is in constant controversial discussion, which highlights issues relating to securities law. What is new in the current Corona crisis, in which match operations are closed by official order and continue with the exclusion of spectators, is the fact that tickets sold before the outbreak of the pandemic now require a differentiated classification of tickets. It should be noted at the outset that the previously flourishing Bundesliga, with record turnover and ticket sales of a considerable amount, is now struggling to survive, despite the fact that match operations are continuing in part with “ghost games”.

The Bundesliga clubs reacted quickly to the spectator restrictions and refunded tickets with quite creative options. As a result, the fans do not suffer any immediate financial losses, which is why the discussion focuses primarily on the consequences of the secondary market.

The starting point is the constant conflict of interests on the secondary ticket market, which has been the subject of legal debates in the past, including in our magazine (most recently SpuRt 2020, 14, SpuRt 2020, 64). The secondary ticket market can be divided into multiple resale of tickets via ticket exchanges organized by clubs (so-called authorized secondary market), which is also controlled by the clubs. However, tickets can also be resold outside these platforms (so-called unauthorized secondary market).

The authors explain the characteristics of the contracts for the purchase of tickets; on the primary market, a contract for work and services is regularly concluded between the purchaser and the club; in the case of authorized secondary purchases via club-owned ticket platforms, the secondary purchaser takes the place of the first purchaser and is ultimately the creditor of all services owed under the contract for work and services. In addition, the general ticket conditions apply. The tickets are classified, partly as small bearer papers (§ 807 BGB), partly as qualified identification papers according to § 808 BGB.

With regard to the effects of the Corona crisis on the secondary ticket market, a distinction must be made in the light of the considerations under securities law regarding the reversal of tickets acquired on the secondary market. The first purchaser has a right of rescission in accordance with § 326 (5) BGB and can demand repayment of the ticket price already paid. This also applies to the authorized secondary market. The possibility of giving the purchaser a voucher instead of reimbursement of a ticket price paid under the newly created Art. 240 § 5 EGBGB has hardly any practical significance. The regulation of ticket purchasers on the unauthorized secondary market is more complicated; it must be differentiated according to whether the ticket is bearer paper (§ 807 BGB) or registered paper (§ 804 BGB). These differences are explained in detail.

In any case, it should be noted that purchasers of Bundesliga tickets who have sold their tickets on the secondary ticket market under reproachful or deliberate have acquired tickets in violation of the resale restriction must in any case be able to contact their contractual partner on the secondary market for the tickets in registered form. In relation to the latter, there is the possibility of a contractual adjustment in accordance with § 313 I BGB, according to which at least the original ticket price can be demanded back.

In the article ” Blocking clauses when a professional footballer changes clubs “, T. Eisenbarth, Konstanz, explains the situation of a blocking clause of a player in the case of a complete club change. So far, this blocking clause has only been discussed in connection with questions relating to loaned players (SpuRt 2019, 202 ff.). The article deals with the transfer of the player Vincenzo Grifo from TSG Hoffenheim to SC Freiburg, whereby the club was prohibited from using the player Grifo in the Bundesliga match of 15.09.2019.

The question to be asked at the outset is whether a future employer may have a so-called “anticipated right of instruction”? This question must be answered in the negative, which is due, among other things, to the fact that the employer is not free to exercise its right to issue instructions and cannot decide for itself. The employee’s interest is of course also decisive. There are many arguments that can be put forward here, but the fact remains that such an interference by a third party in the employment contract must be rejected.

The previous employer also has no right to issue instructions. In addition, a so-called post-contractual non-competition clause can be used as an argument, although this also encroaches on the employee’s freedom to exercise his or her profession. The author explains further points of argumentation, for example the payment of a special compensation, which can play a role, which, however, is not clear in the facts of the case, furthermore a special business interest of the previous employer. Furthermore, it could be decisive whether it is customary in the industry to conclude such an agreement and also whether other aspects argue against an effective non-compete obligation. In this context, the case law of the BAG, NJW 2017, 2363, must be taken into account, according to which this ban could not be imposed by Hoffenheim on the player Grifo and could also not be enforced by Freiburg.

All in all, the author states that the questions raised will still have to be discussed. Due to the unusual nature of the industry and the arguments that continue to be presented, a general illegality of these blocking clauses can be assumed.

 

Jurisdiction

ÖVwGH

No postponement of military service because of ongoing training as an ice hockey player

§ Section 26 (3) WG 2001

An ice-hockey player who began his training at the age of four and whose only professional basis is his activity as an ice-hockey player does not complete training or other vocational preparation within the meaning of Paragraph 26 of the Austrian Law on Military Service 2001 which would justify postponing military service until he reaches the age of 26. Rather, he is in constant further education and daily training, which applies to almost all professional sportsmen and women. (guiding principle of the sender)

Conseil d’Etat

Relegation rules in French football suspended due to Covid-19

Art. L. 222-2-4, 131-16, 132-4, 132-9 Code du Sport; Articles 102, 106 TFEU

1. By virtue of the powers delegated by the French legislature to the sports federations, their decisions are by their very nature administrative acts and are therefore subject to review by the administrative courts.
2. In so far as the Board of Directors of the Ligue de Football Professional (LFP) took decisions within the framework of the applicable national law and the relevant provisions of the law governing associations, etc., it cannot be criticized for mis-appraising the limits of its powers, for making an error of law by misapplying the law, for an error of fact, or for a manifest error of assessment. Consequently, the legality of the decision as a whole is not called into question.
3. The decision to relegate two clubs in League 1 to League 2 was liable to have a serious and direct adverse effect on the interests of the clubs concerned, which have to manage their staffing and recruitment policies, in particular with a view to the 2020/21 season. Neither the interests of other clubs nor the public interest in the proper conduct of the League 1 championship in the 2020-21 are suitable to outweigh this impairment. The relegation decision should therefore be repealed. (Guidelines of the editor)

 

OLG Frankfurt am Main

No setting aside of the Permanent Court of Arbitration for the 3rd League (Jena case)

§§ 1025 ff. ZPO; § 9 a RuVO/DFB

1. The Permanent Court of Arbitration for the Third Division is a genuine arbitral tribunal within the meaning of §§ 1025 et seq. ZPO
2. The strict liability of § 9 a RuVO/DFB does not contradict the ordre public interne. (Official guidelines)

 

LG Cologne

No violation of personality in the case of illegal sanction measures

Article 1, 2 (1), 9 GG; § 823 (1) BGB; Article 42 (1) EGBGB

1. The argument in a pleading that German law is applicable constitutes an implied offer to conclude a choice of law agreement under Article 42 of the Introductory Act to the Civil Code. Such an offer may be accepted in judicial proceedings in accordance with Article 147(2) of the Civil Code until such time as, in the normal course of proceedings, receipt of a statement from the addressee of the declaration is to be expected.
2. An unlawful sanction imposed by an association does not per se constitute an constitutes a serious violation of personality which may justify monetary compensation.
3. The correctness of a factual claim does not have to be positively established, rather the existence of significant and incriminating evidence for the correctness of the claim is sufficient to deny a serious violation of personality rights of the addressees of the factual claim.
4. The autonomy of an association under Article 9 of the Basic Law gives an association a certain scope for sanctioning measures, which is why not every decision based on an error of judgement can lead to payment claims.
5. The previous case law on the refundability of lawyers’ time fees in arbitration proceedings cannot be transferred without restriction to proceedings before association courts. (guiding principles of the sender)

 

AG Singen

The second purchaser’s claim for damages against the first purchaser when selling tickets?

§§ Sections 453 (1), 433 (1) sentence 2, 435 sentence 1, 437 no. 3, 249,252 BGB

If a football club blocks tickets for a Bundesliga match on the assumption that the first purchaser has infringed the General Terms and Conditions of Ticket Sales by selling them without authorization and denies the ticket holders, in this case third-party purchasers, access to the stadium, the first purchaser is not liable for the second purchaser. (guiding principle of the agent).

 

DTTB Federal Court

Seasonal scoring with different number of players is an abuse of discretion.

§§ 25, 26, 315 BGB; §§ 21 ff. Statutes DTTB

1. the DTTB Presidium is called upon to decide on the termination and evaluation of the season if it is by nature a measure of the management and thus a genuine executive decision, which neither concerns a basic business nor a matter which is mandatorily reserved to the General Assembly of Members by the statutes or by law.
2. the evaluation of the current standings at the time of the end of the season only constitutes a suitable yardstick for promotion and relegation decisions if the clubs have played an equal number of matches. (Guiding principles of the SpuRt editorial staff)

 

DFB Federal Court

Legality of the continuation of the season in the 3rd division

Article 9(1) of the Basic Law; Article 31 RuVO/DFB

1. There is no right of appeal against legislative resolutions of the DFB Bundestag. There is no obligation on the associations to create such an appeal – as is the case, for example, with the action for review of legislation under state law.
2. The different lengths of preparation time available to the individual teams after the corona-related interruption of the season due to the different state regulations in the individual federal states do not violate the fair play principle.
3. The decision to continue the season in view of the corona pandemic and its consequences is within the scope of the decision-making and organizational freedom granted to the associations by Article 9 (1) of the Basic Law of the Federal Republic of Germany and does not violate any overriding right. (Guiding principles of the SpuRt reaction)

 

BSSG (Federal Sports and Arbitration Court of the Federation of German Cyclists)

Ineffectiveness of rigid age limits for pacemakers in track cycling

Art. 2 (1), 12 GG; §§ 72 ff. ZPO

The setting of rigid age limits for  Derny and standing races in track cycling requires, firstly, a concrete indication of the specific physical and mental demands to be made on the activity and, secondly, a plausible justification as to why a specific age limit of 65 years is necessary in the light of these demands. (guiding principle of the SpuRt reaction)