The editorial “Sexual abuse in sports – action must be taken!” by J. Fritzweiler, Burghausen/Munich, deals with the fight against sexual abuse in sports as well; the work following the cases of abuse that have become public is now underway in the associations. Their task now is to formulate concrete requirements for combating cases of abuse in their rules and regulations and also to impose sanctions. So far, the federations have only drawn up general codes of ethics in accordance with the requirements of the IOC. However, these are by no means sufficient, which is why the federations are called upon to draw up concrete regulations with bases for prevention and sanctions as quickly as possible. It is also absolutely necessary to install a “National Agency for Safe and Nonviolent Sport” to provide those affected with assistance that is independent of the federations.
In the article “CAS Appeal Proceedings: Cost bearing and the requirement of effective legal protection”, R. T. Cherkeh, Hanover, and K. Vieweg, Erlangen, deal with the still controversial de facto compulsory arbitration in the arbitration proceedings for the athletes and the associated considerable costs that the athletes have to bear. If an athlete has been convicted by the German Court of Arbitration for Sport in an anti-doping proceeding and intends to appeal against this to the CAS, considerable costs are incurred here; the athlete must pay an advance on costs of CHF 20,000 at the outset. In total, about 100,000 CHF are to be estimated for the arbitration proceedings before the CAS alone. In addition, there are the lawyer’s fees in a considerable amount.
The question arises whether the constitutional requirement of effective legal protection is violated and therefore the arbitration agreements are invalid. It is true that there is also a kind of legal aid before the CAS according to their regulation. However, this is insufficient, since it is ordered in the discretion of the CAS arbitration court whether and in what amount a cost assistance can take place. The authors explain the individual regulations in detail and come to the conclusion that the legal aid does not meet the constitutional requirements, similar to the regulations in Germany according to § 114 ZPO.
This has the further consequence that the Legal Aid regulations applicable to the CAS do not comply with the requirement of effective legal protection and procedural equality of arms and are therefore ineffective. It is therefore also questionable to what extent the arbitration agreements as a whole can be effective. In the opinion of the authors, the review of the content of the arbitration agreements to be carried out in accordance with the case law of the Federal Court of Justice (BGH) under Section 242 of the German Civil Code (BGB) leads to the conclusion that they are invalid.
In the article “Legal Effectiveness of Age Limits for Referees in German Professional Football,” D. Kranz and M. Pröpper, Cologne, address the question of whether an age limit of 47 years set by the German Football Association for elite referees is effective – a well-known referee is suing the civil courts against this handling because he was no longer included in the DFB’s squad planning.
First, the authors examine the legal basis of the DFB according to which this decision was made. The DFB’s referee regulations, §§ 13 ff. contain the regulations as well as the DFB’s procedure, according to which certain selection criteria apply to all referee positions under the corresponding performance records in detail. A directly applicable rigid age limit of 47 years does not exist in this set of regulations; it is merely stated in a selection decision by the DFB in its squad planning prior to the start of the 2021/2022 playing season that, according to performance aspects, the activity of a referee on the pitch ends with an age of 47 years and that the referee in question is no longer part of the line-up of impartial referees in the Bundesliga, but at the same time activity as a video assistant (VA) is possible. This regulation opens up the scope of application of the protection against discrimination pursuant to § 1 of the General Equal Treatment Act (AGG).
For the applicability of the AGG, it is not relevant whether the arbitrator is to be considered an employee or self-employed, so that the provisions of §§ 2, 6 AGG apply. Is there a justification for this age discrimination according to §§ 8, 10 AGG? It is established in the case examined here that the plaintiff arbitrator received the best rating of all arbitrators considered, so that his professional suitability is beyond question. The authors now examine the recognized and contested age limits outside of sports operations on the basis of existing case law, e.g. for pilots in commercial air traffic as well as for other personnel in air traffic, and come to the conclusion that static empirical and medical data are always required here when an age limit is set.
In a further examination of a legal preparation for the sports sector according to §§ 8, 10 AGG, it can be seen that according to the legal regulation, it is expressly intended to prevent discrimination on the grounds of age. From the aforementioned justification of the DFB for the non-inclusion of the referee concerned in the squad planning, it is clear that this was based exclusively on the age of the referee and that performance, both physical and mental, was not taken into account at all. Thus, the authors come to the conclusion that the age limit of 47 years used was discriminatory and should not be upheld in a judicial review.
In the article “Quo vadis, Königsgrau?“, P. Küting, Bochum, follows on from his article in SpuRt 2020, p.310, and provides an update on the sporting and economic situation of the soccer club FC Schalke 04 e.V., which was forced to drop down to the 2nd Bundesliga in the last season.
The author describes the disastrous situation at the FC Schalke soccer club and points out the serious mistakes made by the ex-supervisory board members, which were characterized by a desire for power, a lack of competence and cluelessness. Thus, it is no wonder that costly erroneous purchases were made and a “characterless collection of mercenaries” was put together to form a team. The author brings then in the further one analysis of the (consolidated), fortune and financial situation as well as the cash flow development with consideration of the audit opinion of the chartered accountant company KPMG. The treasurer and tax advisor already pointed out the basic problem since 2005, namely the missed participations in the UEFA Cup or the Champions League over several years – with serious balance sheet and liquidity problems. The financial position and net assets were therefore more than sobering, as was the earnings situation and cash flow development, which is presented in detail and with tables.
The auditor’s report in accordance with § 322 of the German Commercial Code (HGB) issued by the tax auditing firm KPMG clearly points out the disastrous figures and also assesses the club’s opportunities and risks for the future and provides a commercial forecast for future corporate planning, and this also in view of the reduced personnel costs in the licensed player area at a 2nd league level. It concludes that there are considerable uncertainties for the future that raise significant doubts about the club’s ability to continue as a going concern and constitute a going concern risk under § 322 (2) sentence 3 HGB.
In his concluding remarks and outlook, the author mentions the statements made in public by the new CFO, which are positive in the sense that the intention is to strictly align expenses with income in the future. Finally, the author also criticizes the licensing procedure of the DFL, which in his opinion is not up to date because it is based only on a liquidity-oriented examination of economic performance. Despite all this, one can only wish the club that it achieves economic and sporting consolidation.
The behavior of fans in soccer stadiums is the focus of the article “Criminal and Regulatory Risks for Sports Clubs and Their Officials Due to Fan Offenses” by S. Diener, Düsseldorf. In particular, the ignition of pyrotechnics and the display of so-called “hate banners” repeatedly raises criminal and liability law issues, especially for those responsible for the club. Regardless of whether the individual perpetrators can be identified, the DFB’s sanctioning instrument exists in § 9a of the Code of Laws and Procedures (RuVO), under which clubs can be held liable for the behavior of their fans, regardless of any fault on the part of those responsible. The article discusses in particular the criminal law aspects of an omission under § 13 StGB or a criminal aiding and abetting under § 27 StGB, but also the regulatory law aspects, in particular the violation of the duty to supervise, which is punishable by a fine under § 130 OWiG:
Thus, according to § 13 StGB, criminal liability is given for the person who fails to avert the success. The author examines the guarantor’s duty to avert success from the point of view of the stadium owner’s domiciliary rights, as well as from the point of view of a duty to ensure safety, and affirms both. A violation exists if it can be proven that appropriate measures for prevention are omitted. However, in practice it is not unproblematic how a causality proof of the possibility to prevent success can be proven. The guarantor must always have had the possibility of prevention.
A similar assessment must be made of the breach of the duty of supervision under § 130 OWiG, which, in the absence of proof under § 13 StGB, can be considered in the form of the imposition of a fine. This can amount to up to € 1 million according to paragraph 3 of this provision. The author examines the constituent elements of this provision and comes to the conclusion that, as a result of the incidents that have occurred in stadiums over many years, there is a fundamental obligation to avoid extensive supervisory measures to prevent business-related violations; the organizer is certainly obliged to provide evidence in this regard, but not to prove it. In any case, the clubs are obliged to install an efficient compliance management system, which must be designed to prevent legal violations. In this context, absolute attention must be paid to the implementation of events with a zero-tolerance strategy and this must also be publicized in any case.
In the article “Potential Collective Bargaining Parties in German Professional Sports”, F. Stark, Stuttgart, once again raises the question of the extent to which interest groups representing athletes could conclude collective bargaining agreements – due to the Corona pandemic, the question was once again raised in professional sports. Collective bargaining agreements in professional sports have long been common practice in the USA – professional leagues, but in Germany they have not played a role to date. However, possibilities could arise if one deviates from tariff-dispositive rest and takes into account the sport-specific peculiarities. Is it possible, then, to accommodate these special features under the provisions of § 1 (1) of the Collective Bargaining Act (Tarifvertragsgesetz – TVG) by including certain standards, such as for content, forms of conclusion and termination?
The first question, however, would be who could be a party to a collective bargaining agreement in professional sports in Germany on the employee side or the employer side. First, the author examines the collective representation of employees’ interests – i.e., the players’ side. Players’ associations already exist in soccer, handball and basketball, as well as ice hockey, and their details and activities are explained in detail, followed by the question of whether players’ associations can be considered trade unions under § 2 (1) Alt. 1 of the Collective Bargaining Act (TVG). This question can only be partially answered or assessed, as too little information is known. On the employer side – i.e. clubs, as well as corporations – their structure is also being examined in detail, with the result that, to date, collective agreements can only be concluded between the players’ associations and the clubs. However, this would not achieve the goal of uniform working conditions, which is why it remains to be seen whether the conditions for an organization with collective bargaining capacity could be created on the employer/sports association side.
“Cheating in e-Sports” is the title of the article by F. Meisheit, Kiel, which deals with the question of whether so-called cheating can be a punishable offense under § 263 StGB (German Criminal Code) or § 303b StGB (German Criminal Code). Cheating presents the organizers of e-sports competitions as well as fellow players and opponents with major problems in this new sport, which is still struggling to gain recognition as a sport.
The author presents the different ways of cheating in three categories, namely the so-called “gameplay” as well as further the “ghosting” as person-cheat and the DOS-attack as performance-cheat. After examining the individual courses of action in terms of their criminal relevance according to §§ 263, 303b StGB, the author comes to the conclusion that there is no criminal liability according to
§263 StGB, but that there is criminal liability according to § 303b para. 1 no. 2 and para. 2 StGB. Organizers in the e-sports industry must therefore make an effort to take action against cheaters, probably by amending their rules and regulations or implementing collective punishments in their general terms and conditions (GTC), although caution is advised in this regard.
Higher Regional Court of Hamm
Safety obligations for utility services in a soccer stadium
- 823 (1) BGB
- The covering of utility services at fairs and other large events with mats may in principle be sufficient to comply with the duty to maintain safety.
- However, it constitutes an independent duty to maintain safety – which has been breached here – if the covering mats themselves represent a source of danger requiring remedial action because they are wavy at the edges/protrude from the ground and can hardly be perceived by spectators streaming out of a large soccer stadium in a dense crowd.
- The delegation of a duty to ensure safety can – as in this case on the part of the organizing club – also take place de facto if the transfer is nevertheless so clear and unambiguous that the elimination of dangers is reliably ensured.
- In individual cases – as in this case – the delegating party can fulfill its control and monitoring obligations if it controls the laying of the covering mats and has no indications that unsuitable covering mats are being used by the delegating party.
- The injured party does not have to have a voluntary performance of the delegating party credited against his claims against the delegate by way of benefit sharing. (Official guidelines)
Munich Higher Regional Court
No injunction against relegation based on quotient rule due to Covid 19 pandemic
Article 9 (1) of the Basic Law, §§ 25, 38, 242, 315, 823, 826, 1004 of the German Civil Code (BGB)
- A provision of the statutes that determines promotion and relegation in a league competition following a pandemic situation by means of the so-called “quotient rule” (here: § 93 SpO/BFV) does not constitute a punitive provision. The relegation decision made on the basis of this rule is not a sanction.
- Provisions of the statutes of sports associations that regulate the sporting handling of the consequences of the Covid 19 pandemic do not constitute a fundamental decision that is essential for the life of the association, which is why it is not usually necessary to convene an association meeting for this purpose.
- The decision of an association to use the quota system to determine the promotion and relegation of clubs is merely one of several possible evaluations, all of which would have had advantages and disadvantages. It is not inequitable when all the interests to be taken into account are weighed up. (Guiding principles of the SpuRt editorial staff)
Entitlement to membership in association group in case of gender discrimination (Memminger Stadtbachfischer)
Art. 3 exp. 2, 9 exp. 1 GG; §§ 21, 25, 249 exp. 1, 280 exp. 1, 826 BGB; § 18 exp. 2 AGG
- The statutory non-consideration in a club-internal group of a tradition care association (here: Group of the city brook fishermen, whose exclusively male members have the sole authorization to “fish out” of the Memminger city brook on the fishermen’s day) does not lead for an excluded woman to a claim for admission against the association into this group from § 826 BGB or § 18 exp. 2 AGG, because it does not concern with the affiliation to this group and the activity made possible thereby an essential interest, which a woman must be able to pursue for the realization of economic goals or for the development of its personality in social regard. By not being admitted, she does not suffer any serious disadvantage.
- The general political goal of a woman to enforce equality between women and men is also not a sufficient interest of her own in the sense of the case law on §§ 826 BGB, 18 para. 2 AGG on a compulsory admission.
- However such admission requirement results from § 280 exp. 1 BGB i. V.m. the association-legal equal treatment requirement, because there is no objective reason for an exclusion of women from the association group and thus from “fishing out” of the city brook on the fishing day. (Guiding principles of the SpuRt editorial office)
Objections of the driving range operator against development plan of the neighboring property
§1 (7) BauGB, § 1 (10) Bau NVO, Article 14 GG, § 47 (1) VwGO
- If an application for the control of standards is (undoubtedly) initially filed only by a civil-law partnership, a subsequent “clarification” that the application should also be deemed to have been filed by the partners personally is a subjective extension of the application – inadmissible here due to the time limit.
- The interest of an operator of a golf practice facility in being able to continue to hit a neighboring property previously designated and used as an agricultural area with misfired golf balls without a legal basis is not a weighty consideration that can be held against the designation of this area as an area for public use with the aim of using it, inter alia, for a day-care center.
- This applies all the more if the building permit granted for the golf course already expressly provides for the possibility of installing ball catching fences in a subsidiary provision in the event of a future development of the neighboring property and it was clarified by an expert during the plan preparation procedure that such protective measures fundamentally guarantee sufficient protection of the newly planned uses. (Official guidelines)
Commercial income of a poker player
§15 para. 2 sentence 1 EStG, § 2 para. 1 sentence 3 GewStG, Article 103 para. 1 GG, § 96 para. 2 FGO
- If the sustainable activity of a poker player exceeds the limit of commerciality, it makes no difference whether the player obtains the profits with poker tournaments or with plays in Casinos.
- A trade tax measuring amount can be determined as an occupation of poker player only if the player maintains a permanent establishment in the country. In this regard, the FG has to make findings. (Official guiding principles)
Legitimate classification of 2nd Bundesliga Field Hockey after Covid-related season cancellation
Art. 9 par. 3 GG, §§ 275, 315 BGB, §§ 14 par. 2, 29 par. 2 statutes DHB
1. Despite the lack of regulations in the playing rules, the German Hockey Federation is permitted to terminate the season of the 2nd Bundesliga during the Covid 19 pandemic.
- The termination of the season due to a pandemic situation with official match restrictions is not a basic business of the club and therefore the Match Regulations Committee is responsible for this according to general rules of the association statutes, unless otherwise specified.
- The DHB’s decision to terminate the season is also free of discretionary error when measured against simple equity in the Covid 19 pandemic with high and uncertain implementation difficulties.
- The federation cannot be forced to amend the playing rules to implement the season with a different possibly implementable mode to determine the promoted team.
- The decision of the federation to the valuation of the broken off season for the consideration of the table after played Hin – and Rückrunde is lawful and not subordinate to a possible quota regulation. (Guiding principles of the SpuRt editorial office)
DFB Federal Court
Legitimate reduced continuation of the BFV cup competition
Art. 9 (1) GG, §§ 25, 315 BGB
- A violation of the principle of fair play and the principle of equal treatment enshrined in the DFB’s bylaws may permissibly be challenged as a violation of federal law by means of an appeal pursuant to § 43 no. 1 b) of the DFB bylaws.
- The decision of a DFB member association to continue a regional association cup competition only with the remaining regional league teams in view of the Covid 19 pandemic does not constitute a sanction. Nor does it contradict the principle of fair play or the principle of equal treatment, but rather – in the specific case – lies within the scope of discretion to which this regional association is entitled, even if there were other conceivable continuation scenarios. (Guiding principles of the SpuRt editorial office)
DFB Federal Court
Loss of match due to exceeding the permissible substitutions in the DFB Cup
Art. 9 par. 1 GG, §§ 25 BGB, Soccer Rule 3 no. 3, §§ 17, 18 DFB-RuVO, § 51 DFB-SpO
- It constitutes organizational negligence on the part of a club participating in the DFB Club Cup if the information given to it about the number of possible substitutions and substitutions in this competition is not present to the team officials on the bench during the match with the necessary certainty.
- Such an original organizational fault is also not compensated by a possible false information or a control error of a member of the referee team (here: the 4th official). This is because the referee (and his assistants such as the 4th official) only has a control function in the substitution process – also with regard to the number of permissible substitutions. He has to work towards compliance with the rules and regulations. He can point out a substitution that he believes is excessive or otherwise against the rules. He cannot prevent it.
- The club substituting a player (represented by its representatives on the sidelines) is solely responsible for ensuring that the substitutions were made in accordance with the applicable rules and regulations and are permissible. (Guiding principles of the SpuRt editorial team)