In the editorial, Jan F. Orth, Cologne, discusses the recent decision of the Federal Constitutional Court (BVerfG) of 3 June 2022 in the Pechstein case, which came as no surprise to most lawyers and which is published in the same issue (SpuRt 2022, 322). The BVerfG thus overturned the decision of the Federal Supreme Court (BGH, SpuRt 2016, 163). The court clearly substantiates the deficiencies of the CAS arbitration Pechstein v. International Skating Union (ISU) and the legal assessment of the BGH. This decision is not a final victory, but initially a sporting rehabilitation. The author traces the further path of the legal proceedings that must be taken after the BVerfG has referred the case back to the OLG. Although this decision clearly declared the BGH’s judgement unconstitutional, the author believes that the BGH was just able to save face in the face of the BVerfG’s various indications.
Ph. S. Fischinger, Mannheim, explains in his article “Legal Issues of the Trial Training of Team Sportsmen” the range of issues from association law, labor law, insurance law and liability law that arise when a club considers trial training to be a prerequisite before concluding an employment contract. This may involve “contractless” players or players who are under contract with a “parent club”, are eligible to play for that club and are to be transferred (tied players). In the first instance, the regulations apply to football, but also to other sports.
Regulations under association law are extremely rare, e.g., in the case of tied players, only the consent of the parent club is required for a friendly match as a guest player (§ 15 DFB Spielordnung II § 11 No. 4). In contrast, neither a trial training nor the participation in guest matches for licensed players requires a general match authorization (§ 1 DFL-Lizenzordnung Spieler).
Of importance, however, is the form of the contractual relationship between player and club, where a so-called “empathy” or employment relationship comes into consideration, for players without a contract as well as for tied players. An “empathy relationship” is characterized by the fact that there are no obligations under labor law, no obligation to pay remuneration and no right to issue instructions. This relationship can be terminated at any time; it constitutes a sui generis contract. In case law, such a relationship of empathy is assumed if at the time of conclusion of the contract the clear intention of the association is recognizable that it does not want to establish an employment relationship. In most cases, time limits of a few days, at most a week, are agreed, otherwise mandatory provisions of labor law would be circumvented. The only thing to bear in mind is that in the case of a longer duration or integration into the normal course of the club, a permanent employment relationship could be assumed, which could, however, be terminated with ordinary notice. An alternative for a trial training could be a fixed-term employment contract, but it would have to be agreed in writing according to § 14 IV TzBfG. Such a contract would have advantages and disadvantages. The advantage is a clear regulation; a disadvantage for the club would be that the player could be entitled to statutory minimum wage.
In the case of tied players who are under contract with another club, the agreement of a trial training is more complicated: a suspension of the main employment relationship must be agreed, especially if the two employment relationships exceed the time limits of §§ 3 ff. Working Hours Act. Furthermore, the question arises as to whether it is a question of hiring out employees according to section 1 of the Temporary Employment Act (Arbeitnehmerüberlassungsgesetz). This must also be clarified, as must a possible non-competition clause vis-à-vis the parent club or whether a secondary activity exists under labor law, which in turn requires approval from the parent club. This raises the question of whether the trial training is detrimental to the interests of the parent club. In any case, the parent club must be notified in advance of any trial training; it is advisable to contact the parent club.
Accident insurance cover is also important in the case of trial training: In the case of a fixed-term employment contract, accident insurance cover is to be affirmed in accordance with § 1. no. 1 SGB VII, 7 I SGB IV – a short duration is not an obstacle here. Accident insurance protection is more complicated in the case of an “empathetic relationship”; here, protection under § 2 I No. 14, a) SGB VII could be considered for a player without a contract, which must be clarified in advance in any case. In the case of a tied player, the question arises as to whether accident insurance protection with the parent club can be considered via § 2 I No. 1 SGB VII, 7 I SGB IV. Likewise, the questions of statutory health insurance protection in the case of trial training (§ 5 I No. 1 SGB V) as well as in the case of trial training of an empathetic relationship, where under certain circumstances the provisions of the health insurance of the parent club (§ 5 I No.1 SGB V) come into play, must be clarified. Furthermore, the author also explains the liability issues during a trial training as well as questions of trade secret protection and the special features of minors, as well as various questions of reimbursement of costs, which must of course be expediently fixed in writing.
In the article “Psychological violence in (competitive) sport – a definition”, lawyer F. Rettenmaier, Frankfurt a.M., and psychologist F. Wilhelm/Frankfurt, examine the concept and definition of psychological violence, because this is increasingly coming into focus as a result of cases of abuse in the training of athletes, especially in the case of minors. The latter need special protection. The question arises here whether the legal provisions are sufficient.
The term psychological violence is an undefined term. However, it needs to be narrowed down in order to be classified legally, for which it is necessary to have recourse to the specialist definitions of psychology. The starting point is therefore the psychological definition of the term. Points of reference here are disapproving behavior as well as psychological abuse and mental violence. In the further psychological investigation, the previous literature is examined and a system of categories for describing psychological violence, as an objectifiable behavior, is presented. It starts with verbal and derogatory behavior, continues with exploitative and unhealthy behavior and ends with terrorizing or threatening violence. Here, the effects on the psyche of the victim are particularly taken into account. As a result of this investigation, it is determined that what matters is both the objectively determinable behavior of the actor as well as the concrete effects on the victim; from a psychological point of view, psychological violence is said to occur when the victim’s well-being is impaired.
In the following legal definition of the term, the considerations begin with the recognized methods of interpreting laws. In the authors’ opinion, the interpretation of the concept of psychological violence is to be carried out in the order of grammar, meaning and purpose, as well as by way of a legal comparison. The grammatical definition of the term is based on the general linguistic understanding of the term in the present. It must also be distinguished from the definition of physical violence; psychological violence can also occur without the use of physical force. Overall, psychological violence is to be understood as a psychological or physical impact on another that has a certain materiality and leads to a psychological injury. Furthermore, the meaning and purpose of the concept of psychological violence is to be determined according to the point at which behavior unlawfully violates the psychological integrity of another. For the comparative legal definition of the term, it must be assumed that precisely here, in this investigation, a comparative legal definition is virtually impossible due to the lack of a legal definition. However, the possibility of psychologically influencing others can be fulfilled by means of comparisons on the basis of other statutory offences such as bodily harm and coercion according to §§ 223, 240 StGB. As a result, the previous definition of psychological violence must be supplemented to the effect that the exercise must have resulted in a psychological injury, i.e. a negative psychological impairment. In a summary, the authors then define a legal psychological definition as a synthesis of terms. According to this, psychological violence is to be understood as a form of behavior which, due to its intensity or repeated occurrence, can be attributed a degrading character and which causes psychological injury to the person affected. However, it is sufficient that the actions of the perpetrator are abstractly capable of causing corresponding injuries.
In the article “The secondment to the second team”, A. Jens, Hamburg, examines secondment to the second team of the same club for the Bundesliga and second Bundesliga, which has repeatedly occupied the labor courts, but there is no supreme court decision.
The model contract of the German Football League (DFL) is to be taken as a basis, in which it is stipulated that the player must “contribute his entire working capacity to the club and use his entire footballing capacity exclusively for the club”. As is well known, no firmly defined individual sporting performances or individual exercises are agreed in the employment contract, because this is also not possible in comparison to other employment contracts. The work performance of a professional footballer or other competitive athlete cannot be described in any other way than in the DFL model contract.
In this case, the employer’s right to issue instructions pursuant to § 106 Gewerbeordnung (Trade, Commerce and Industry Regulation Act) or § 611 a (1) BGB (German Civil Code) comes into consideration. The employee must therefore accept instructions for the work in detail; in this respect a tension arises between the employer’s need to issue instructions on the one hand and the employee’s interests on the other. There is much need for discussion in this area, especially in competitive sport, which is why there have repeatedly been different decisions by the labor courts. For this reason, the DFL’s model contract was amended in 2016 with the aim of putting the employer’s (i.e. the coach’s) decisions on secondment on a secure footing. According to this, the following applies: The player is obliged to take part in matches or training of another team of the club if instructed to do so, provided that this team plays in at least the 4th division or the 5th division and the coach of this team is at least a holder of the football instructor’s license or coach’s A-license and, finally, the training takes place in team strength.
Thus, according to the case law of the Federal Labour Court on the examination of the effectiveness of transfer clauses in employment contracts, this clause is to be examined according to the principles of the effectiveness of general terms and conditions (AGB). In his article, the author further examines this clause of the DFL model contract according to the principles of general terms and conditions of business in terms of its reasonableness pursuant to § 307 I 1 BGB as well as its transparency pursuant to § 307 I 2 BGB. An examination according to § 305 a ff. BGB is also necessary. Overall, the author comes to the conclusion that the right to determine the team in the DFL model contract stands up to scrutiny under the law on general terms and conditions. As a concretization of the sporting performance obligation, the regulation is exempt from the appropriateness control of § 307 I 1 BGB (§ 307 III 1 BGB). The question of whether participation in the training of the second team is an equivalent activity is therefore irrelevant. This is because by signing the player employment contract, the player undertakes to provide football services as a player in return for payment. A further limitation of the footballing performance obligation to and for the first team cannot be inferred from the contract; in particular, there is no “professional profile of a licensed player”, but only that of a professional football player.
In the article “The discrimination offences of the German football associations”, Th. Vester/Tübingen and S. Reif/Konstanz explain the process of development and the work of the German Football Association (DFB) and its state associations on the discrimination provisions in their regulations. According to § 4 no. 2 d) of the DFB’s statutes, the DFB and the associations are expressly obliged to promote integration and diversity and to prevent and eliminate discrimination. It should be noted that in the past, referees did not always act consistently or the so-called 3-step plan was not always concretely enforced in the playing season since 2019/2030. Therefore, a review of this issue is absolutely necessary.
The authors begin with the basics of sports association anti-discrimination law. Here, the regulations of FIFA and UEFA are presented, according to which the national associations have been obliged since 2006 to include the characteristics of race, skin color, language, religion and origin in their discrimination regulations, and the FIFA and UEFA regulations are presented in detail with their sanctions. Likewise, the regulations in § 9 No. 2 Para. 1 Sentence 1 RuVO of the DFB and their sanctions are explained in detail.
These discrimination offences are also included and standardized in all member associations of the DFB; the individual discrimination norms of the state associations contain similarities, but also differences. These are also discussed in detail with regard to the target group and the specific acts of discrimination are discussed. The question arises, for example, whether an explicit list of characteristics such as origin, language, religion, disability should be conclusively standardized. The level of penalties also varies and is still under constant discussion. For example, in some cases a ban of at least five weeks is standardized for a committed offence, as well as fines of between € 12,000 and 100,000.00. Such penalties, especially the fines, must of course be regulated differently with regard to the amateur and professional sectors. It is surprising that only the Saxon football association has standardized that writings, sound or image carriers, data storage media, images and other representations with discriminatory content are sanctioned. Both the DFB has no such regulation in its RuVO as well as other state associations, although communication in these areas is very common. The authors evaluate these existing regulations of the DFB and the comparison to the state associations in detail and come to the following conclusion: In principle, it is left to the state associations to regulate the discrimination facts themselves within the framework of their association autonomy, as long as the DFB does not provide concrete specifications. This mechanism of self-regulation is limited, for example, by the fact that the DFB member associations must report discriminatory behavior to the DFB within one week (§ 50 No. 3 Para. 2 DFB Statutes). Thus, the DFB Control Committee itself can file a complaint with the DFB Sports Court, even if a state association remains inactive in such a case.
There are certainly pros and cons to the problems outlined here, but regardless of how discrimination is defined, it is crucial that the responsible bodies or the persons acting here on the football pitch recognize discrimination and sanction it as a matter of sporting law. The content of the new terms becomes clear when, for example, anti-Semitic incidents are dealt with in more detail. However, the focus should always be on the fact that discrimination offences exist so that the sport of football resolutely sanctions inhuman behavior.
S. Löw, Vienna, in his contribution “The football training camp – a package tour?” deals with the question of what rights and claims accrue to a football club when organizing a training camp in the event of disruptions to performance and other obstacles to performance. The decisive question here is whether a trip with many organizational obligations in a football training camp constitutes an all-inclusive travel contract as defined in §§ 651 a ff. of the German Civil Code (BGB). According to § 651 a para. 3 BGB, a travel destination, accommodation including catering as well as other tourist services are present here, which is why the scope of application of package travel law is given.
The author then examines the individual questions in this regard, e.g. whether a sports club, which concludes the contract with the tour operator for the persons of the football club, is also specifically covered by the term traveler, and answers in the affirmative – the football club is thus actively legitimized. In the case of the tour operator as the contractual partner of the football club, there is also no problem. As the organizer of the training camp, the tour operator is an entrepreneur within the meaning of § 14 BGB. It should be noted here that all services covered by the contract are shown together in an all-inclusive contract.
In the event of default of performance, the contractual rights of the football club result from the material protection provisions in §§ 651 f and 651 g BGB with the possibilities of withdrawal in § 651 h BGB. It is important to note that according to § 651 y BGB, these provisions cannot be deviated from to the detriment of the football club.
The author goes on to explain in detail the changes in prices and services as well as the possibilities of withdrawal under § 651 h BGB and the individual rights of the traveler in the event of disruptions to services. In the case of a training camp, the focus is on the fact that physical training is the main objective of the tour operator’s contractual performance, which is why the promised training grounds and training facilities constitute a main obligation and not merely a defect in the travel service. In the event of a significant impairment, this entitles the football club to terminate the contract without notice in accordance with § 651 l para. 1 of the German Civil Code, whereupon the organizer must demand the return- transport of the team members without delay and without charging additional costs in the case of a flight. Likewise, in this case, according to § 651 n para. 2 BGB, a claim for reasonable compensation in money is also to be paid due to the uselessly spent holiday time.
J. Götz/Regensburg examines the status of contract players under labor law in his article ” District league footballers as employees? “This topic is topical because an investigation by the ARD (German public broadcaster) “Milliardenspiel Amateurfußball” (Billion-Dollar Game in Amateur Football) found that a considerable amount of money flows into amateur football. The question therefore arises as to whether contract players in amateur sport also qualify as employees.
According to the study of more than 10,000 amateur football players, clubs and their supporters allegedly pay around 1 billion euros a year to players from lower leagues, possibly bypassing tax and social security, by way of a so-called “black money culture”. The players are said to receive a monthly allowance of approximately €200 to €500. According to records at the German Football Association (DFB), however, only about 8,500 player contracts exist for about 700,000 amateurs who are eligible to play. First of all, the status of contract players as employees has to be examined in accordance with § 611 a BGB (German Civil Code) and the specifications therein: the contract players conclude a contract under private law which, according to § 8 no. 2 DFB (German Football Association) playing regulations, has to be concluded in writing and provides for a monthly remuneration of at least € 250.00. However, these are requirements under association law, which could at best have an indicative effect on the contract players’ status as employees. The sport-specific general performance obligations of the contract player are unproblematic, as are his more extensive performance obligations, which the author examines in detail with the result that the performance obligations under contract law are present without doubt. Likewise, in distinction to the contract (§ 662 BGB), there is a work performance which is performed for remuneration. The designation in the contract as an “expense allowance” is irrelevant. In connection with the examination of whether there is a contractual service for remuneration, it must always be examined to what extent the pure amateurs playing in a team also receive benefits. In any case, it must also be examined whether the amount of the remuneration is intended to be a serious compensation for the sporting performance rendered and is thus in a performance relationship and not a payment for expenses and other expenditures. Rather, the remunerative nature of the performance is always to be determined according to the circumstances of the individual case.
As far as personal dependence is concerned, i.e. the central characteristic of an employee, this in turn depends on the fact that the employee is bound by instructions, the integration into an externally determined work organization and an overall assessment. The Federal Labour Court (Bundesarbeitsgericht, BAG) thus sees personal dependency as a typological concept that is not subject to a conclusive definition of its content, but is rather to be determined according to the overall circumstances. As a result, in the author’s view at least, the status of employee can only be determined in a clear demarcation between duties under association law and, beyond this, special duties to instruct an employee.
Overall, therefore, the special consequences for practice must be taken into account, which is why first and foremost attention must be paid to the fact that the most diverse regulations under labor law and social security law as well as those under tax law must be observed. Otherwise, apart from corresponding back payments, those involved may even face penalties for embezzlement and tax evasion as well as liability of the association and its organs according to the provisions of the tax code and § 823 para. 2 BGB in conjunction with § 266 a StGB. § 266 a StGB. Likewise, the provisions of the Minimum Wage Act must be taken into account, because here, too, high back-pay obligations can arise, even if after the introduction of this law a top-level discussion took place between politicians and sports associations and assurances were given that the Minimum Wage Act was generally not applicable to contract players; this political promise does not provide a reliable basis, especially because there has been no concretizing amendment to the law.
As a result, it can be stated that a blanket determination of employee status and, for example, a status of contract players cannot be determined, but can only be clarified in individual cases. Nevertheless, from the perspective of labor law, it can be concluded that due to the financial motivation of the players, an employment relationship must probably be assumed more often.
BVerfG, Beschl. V. 3.6.2022, Az. 1 BvR 2103/16 (legally binding).
Lack of public hearing before the CAS (Pechstein case)
Art. 2, para. 1, 20 para. 3, 12 para. 1, 92, 101 para. 1 sentence 2, 103 para. 1 GG; Art. 6 para. 1 ECHR; §§ 93 a para. 2 letter b, 93b sentence 1 BVerfGG; § 134 BGB; § 19 GWB, Art. 13.2.1 WADC
- When interpreting the provisions on the recognition and enforcement of arbitral awards and the effectiveness of arbitration agreements, the guarantee content of the general right to the protection of justice under Article 2 (1) in conjunction with Article 20 (3) of the Basic Law must be taken into account.
- The failure to take into account the principle of publicity of oral hearings of arbitral proceedings before the CAS contradicts the requirements of Art. 6 para. 1 ECHR as developed by the case law of the ECtHR as well as the guarantee content of the right to the guarantee of justice.
- The normative structure of the procedure, which is decisive for the effectiveness of an arbitration agreement concluded between the athlete and the federation with regard to the CAS, did not at the time (in 2009) satisfy either the guarantees of Art. 6 para. 1 ECHR or the corresponding requirements of the athlete’s right to justice.
- Article 101.1 sentence 2 of the Basic Law guarantees that the individual in the specific case stands before a judge who represents a non-participating third party with sufficient neutrality and distance from all parties to the proceedings. In this respect, the guarantee of justice under Article 2.1 in conjunction with Article 20.3 of the Basic Law can go beyond the guarantees of Article 6.1 of the ECHR as interpreted by the European Court of Human Rights. (Guiding principles of the SpuRt editorial office)
BGH, Urt. V. 19.5.2022, Ref. 3 StR 322/21 (final; previously: LG Mönchengladbach, Urt. V. 11.5.2021, Ref. 21 KLs 22/20)
Sentencing requirements for trafficking in doping substances in not insignificant quantities
§§ Sections 2 para. 1, 4 para. 1 no. 1, para. 4 no. 2 lit. B, para. 5 AntiDoping Act
On the presentation requirements for the “not small quantity” in a conviction for trafficking in doping substances in not small quantities and on the calculation of the “free active substance” in the case of doping substances that are not themselves on the WADA list of prohibited doping substances but merely contain an active substance named therein. (Guideline of the SpuRt editorial office)
BGH, Urt. v. 19.5.2022, Ref. 3 StR 370/21 (previously: LG Mönchengladbach, Urt. v. 14.4.2021, ref. 21 KLs-700 Js 1201/12-11/21) (legally binding).
Active substance content of doping substances in the case of transfer in a not insignificant quantity
§§ Sections 2 sub-section 3, 4 sub-section 1 no. 3 AntiDoping Act; Section 27 sub-section 1 Criminal Code (StGB)
The requirements for the presentation of the active substance content in the first instance judgement in the case of a conviction for aiding and abetting the distribution of doping substances in non-little quantities. (Guideline of the SpuRt editorial office)
OLG Brandenburg, decision of 20 April 2022, case no. 7 W 44/22 (previously: AG Potsdam, decision of 8 March 2021, case no. 61 AR 143/19 P) (final).
Appointment of a board of directors
§§ 27 I, 40 S. 1, 58 no. 3 BGB
- If the statutes entrust another body of the association with the competence to appoint the executive board instead of the general meeting, it is permissible, but not necessary, to regulate the procedure by which the body is to make the appointment decision in the statutes. The articles of association may assign to the appointing body an internal organizational competence which also includes the regulation of the procedure for the appointment of the board of directors.
- The appointment of a board member in violation of the articles of association shall remain effective from the beginning of the actual exercise of office until the assertion of the defect, for which a revocation of the appointment or a resignation from office by the board member is required. (Official guidelines)
LG Potsdam, Urt. v. 15.8.2022, ref. 8 0 160/21 (nothing legally binding).
Legitimate re-election of the association’s executive board
§§ 27, 32 BGB; § 256 ZPO; §§ 24 ff. AktG
- The general meeting of an association according to § 32 BGB can be replaced by a delegates’ meeting, but for this it is mandatory to determine its concrete form in the statutes of the association.
- An invitation to the general meeting which contains both the agenda and a notice that the meeting may be postponed monthly due to the pandemic shall be deemed to be a proper notice. A further notification a few days before the meeting, which merely confirms the date announced in the previous notification and contains further information regarding a Corona hygiene concept, does not constitute a change in time or content in the sense of a new convocation.
- Due to the personnel composition of the incumbent executive committee, which by its very nature is fixed from the beginning, a recall election en bloc by the general meeting is permissible, in contrast to a new election, in which an impermissible advance election would take place through groupings of persons. (Guiding principles of the SpuRt editorial office)
VG Berlin, Urt. v. 22.4.2022, Ref. VG 24 K 284.20 (legally binding).
Permit requirement for out-door sports courses
§43 VwGO; §§ 1, 2, 6 GrünanlG Berlin
- The holding of fee-based outdoor group fitness training courses in public parks for one’s own clientele constitutes commercial use of green spaces.
- The commercial use of green spaces in the form of group sports courses is a special use requiring authorization under section 6(5) GrünanlG Berlin. (Guiding principles of the SpuRt editorial office)
ArbG Hannover, Urt. v. 29.3.2022, Ref. 1 Ca 147/21 (not legally binding).
Transfer of a trainer within the club
§§ Sections 305 et seqq., 315 (3) BGB; Section 106 GewO
- The employment contractually agreed activity of a trainer “in the field of professional players” means the activity in the professional field of a football club.
- An employee who is contractually employed in the professional area may not be transferred to the junior department of the club. (Guiding principles of the SpuRt editorial office)