SpuRt 6 /2018.
In the editorial “Claudia Pechstein: Little News in the West!”, J. Orth, Cologne points to Claudia Pechstein’s odyssey through German and European courts, mentions the decision Seraing vs. FIFA and Pechstein vs. Switzerland before the ECtHR (both reprinted in the same issue). In the case of Seraing, it was decided that other courts besides Switzerland could have international and local jurisdiction. In the case of Pechstein, the ECtHR left some questions unanswered, which is why another decision will be brought before the chamber of the ECHR against the Chamber’s decision. In a dissenting opinion, two judges had not confirmed the necessary impartiality and dependence of the CAS: the composition of the ICAS, the appointment of the arbitrators, etc. not accepted. – Any bad appearance of an arbitral tribunal must be avoided.
The CAS is important for the sport, which is why this high goal must be achieved.
In the article “Exclusivity clauses in cycling”, C. Becher, Cologne and H. Burbach, Bonn analyze the importance of the ISU decision for the professional sports sector and amateur sport of the European Commission of 08.12.2017 against the International Speed Skating Association (ISU). The decision removes the ISU’s association law prohibiting licensed speed skaters from attending commercial events, being anti-competitive and assessed as a violation of Article 101 TFEU.
Similar decisions were taken by the Commission in 2011, and the Federal Cartel Office also initiated antitrust administrative proceedings against the DOSB and the IOC on the grounds that its market power had been abused. The authors point out that such exclusivity clauses are not unique in sport and refer to FINA, the governing body of all national swimming federations and the International Hockey Federation (FIH), which have similar regulations.
The authors examine the exclusivity clauses in cycling, they start with the federation structure, and rules of the international cycling federation UCI, as well as rules in the German amateur cycling and evaluate the starting prohibitions for the drivers of the license classes A and B, which the permission obligation of commercially organized cycling sports events. There is no doubt that the offer of private “Amateur events” in cycling has increased enormously as well as the attractiveness of cycling. For the anti-competitive exclusivity clauses, therefore, there is an enormous need for reform, because these offers are limited for no apparent reason, and the best amateur riders the start of these “amateur events” is denied. In the view of the authors, therefore, the Federation of German Cyclists (BDR) tries to enforce its own economic interests at the expense of the competition, and thus ultimately harms cycling as a whole. The BDR has already initiated a structural reform of the licensing system, thus responding to the problems presented. The ban for participating for elite amateurs will be lifted completely from the 2019 season. Whether this reform is sufficient, has yet to be reviewed.
In “Judicial process and local jurisdiction of the labor courts for disputes between arbitrators and the DFB” W.-D. Walker, casting the probably rather rare problem for suits of referees against the DFB. The question of the employee status of arbitrators is in Essential, various complaints were dealt with before the labor courts in Bremerhaven and Verden, SpuRt 2000, 226 and ArbG Frankfurt, SpuRt 2017, 211.
The legal recourse to the labor courts is the issue at issue, is it an employment relationship or not, if there is a consistent case law of the Federal Labor Court, even if the mere legal assertion of the plaintiff’s employment results (BAG NZA 2007, 53). According to the case law of the BRG, this is a so-called “double relevant fact”. The local jurisdiction of the labor courts is problematic for arbitrators because there are three points of contact: the general jurisdiction of the DFB, the special jurisdiction of the place of performance and finally the special jurisdiction of the place of work. Finally, the provision of § 48 I a, 2 ArbGG is of particular importance, according to which, if the place of work cannot be ascertained, the ordinary place of work of the arbitrator comes into consideration. All these requirements are not met, which is why the general jurisdiction of the DFB, thus the ArbG Frankfurt a. M. is considered.
S. Klaus, Frankfurt a.M. explains in his article “Aliens Employment Law:” Statutes “Employment of Foreigners in Professional Sports” the regulation which must be complied with. Their employment involves two different groups, namely EU or EEA nationals and Swiss nationals to whom the special privileges apply and the second group, who are subject to the Residence Act and require a so-called residence permit.
In § 1 II no. 1, the residence law delimits the scope of application in relation to the privileges of the citizens of the European Union or the EEA and the Swiss from the other persons. Employees, in particular professional athletes, enjoy the freedom of movement for workers and receive no declaratory certificates; for Swiss nationals, Art. 3 f. the freedom of movement agreement the necessary privilege.
All foreigners who have not the above mentioned nationalities are subject to the obligations of the Residence Act and must apply for a so-called residence permit.
In this case a check has to be made about the existence of a license subject to authorization, furthermore a so-called fiction of a non-occupation according to § 30 employment ordinance or § 7 I SGB IV.
This may be considered for persons who have reached the age of 16 years, the association or the institution pays a gross salary, which is at least 50% of the income threshold for the statutory pension insurance and finally the responsible for the sport top association in agreement with the DOSB the athletic qualification of the athlete or the professional suitability of the trainer confirmed. Furthermore, in this context, the permit to enter, in particular the Schengen visa and national visa and so-called hybrid visa. The author then presents in a clear table necessary connections for cases of longer-term stay, which are particularly significant for the practitioner.
The “Legal Principles of Association and Association Judicial Proceedings” are presented by C. Krähe, Konstanz and J. Fritzweiler, Burghausen / Munich.
Major sports associations have mainly installed a federation jurisdiction, which must be passed before the state courts. Under strict conditions, state courts can be called if for example, the rules of association do not comply with the generally valid procedural principles.
At the outset, the authors set out in detail the current case law, in particular that of the BGH, which requires that “certain general procedural principles must be observed so that the procedure does not become arbitrary and the person concerned can defend himself properly”. Furthermore, the authors first explain the necessary constitutional principles for the association’s court proceedings and examine the legal procedural principles in the federation regulations of the sports association courts. A total of 40 sports associations will be examined. Then the compulsory general procedural principles to be observed are listed as such. For example, the independence of an association court, the right to be heard by the parties and the principle of fairness, non-compulsory procedural principles are explained and the legal consequences for non-compliance with general legal consequences set out: The Association breached its duties from the membership ratio, which interferes with the protected Membership right under § 823 I BGB.
Finally, there is an indication that there are still some sports federations that call it a breach of the law, when the ordinary court is called without first taking the inter-governmental appeal. This sanction is in any case a major encroachment on the core area of membership law.
Gym contracts keep throwing up problems. In the article “Prepayment clauses in gym terms and conditions” explains S. May, Dusseldorf the problem of cautious prepayment clauses, according to which in case of default all the contributions are due until the end of the contract. These cases have repeatedly led to legal proceedings. There is agreement on the classification of the contract type as a mixed contract with service and rental components, as well as with the applicability of the content control according to § 307 Abs. 1 BGB.
The effectiveness of such a clause depends on § 307 Abs. 1 BGB on whether it deviates from the normal mission statement, as well as the interests of the contracting party affected. Attention must also be paid to possible inappropriate discrimination.
However, the key issue is the extent to which the clauses are to be evaluated for significantly longer contract periods, in particular for a term of 24 months.
The OLG Celle and the OLG Brandenburg have seen the effectiveness clause as inappropriate discrimination, whereas other courts want to see the legitimate interest of the operators of the gym and want to make a trade-off. Specifically, the risk of insolvency to which the user of the fitness studio is exposed must be taken into account, especially in the case of gym student contracts with a lease-type character, in particular the provision of § 556 b I BGB.
As a result, a breach of contract by the customer must not lead to a particular disadvantage.
Art. 6 ECHR
Independence and impartiality of CAS (cases Mutu and Pechstein)
1. The CAS is considered a “law-based court” i.S.d. Art. 6 para. 1 ECHR. Sport arbitrations before them are “prescribed” or “forced” arbitration i.S.d. ECtHR jurisprudence and must therefore comply with the guarantees provided for in Article 6 (1) of the ECHR.
2. The financing of the ICAS, the selection of arbitrators, the compilation of the list of arbitrators for the CAS and the verifiability of judgments by the CAS Secretary General do not give rise to any serious concerns as regards independence and impartiality against the CAS or the composition of the panels, which decide in accordance with the Rules of Procedure in cases.
3. The non-publicity of the oral proceedings in their arbitration proceedings before the CAS violates the appellant’s right under Article 6 (1) of the ECHR, which guarantees the publicity of the legal proceedings. Switzerland is therefore obliged to pay damages to the complainant. (Guiding principles of the SpuRt editors)
Appellation Court Brussels
Arts. 18th, 18th FIFA Transfer Regulations; Arts. 45, 63, 101, 102 TFEU; art. 2 UNÜ; Arts. 2 para. 1.5 para. 3.6 para. 3 LugÜ
FIFA arbitration clauses in Belgium invalid (“Seraing” case)
1. The FIFA arbitration clauses are not based on a “specific legal relationship” (Article II New York Convention) and therefore cannot be classified as an arbitration agreement under Article 1681-1682 (1) of the Belgian Code of Civil Procedure. Under Belgian law, they have no legal effects.
2. Art. 18bis u. The 18th of the FIFA Transfer Rules (TPO Prohibition) infringe EU free movement law (Articles 45 and 63 TFEU). This infringement entitles the claimant to damages.
3. According to Article 6 (1) of the Lugano Convention, it may be useful for a majority of litigants to negotiate more than one joint decision and decision in order to avoid, in the case of separate decisions, results that could possibly be incompatible with each other. The prerequisite for this is a close connection, which undoubtedly exists in organized sport due to its pyramidal organizational structure. (Principles of the editor)
§§ 241 Abs. 1, 311 Abs. 1 BGB
No claim to use of your own boat type when rowing
In order to require athletes in nomination guidelines to use only one sports equipment of a particular manufacturer when participating in international competitions, sports top federations regularly have a legitimate (economic) interest, which supersedes the athlete’s interest in using a sports equipment he prefers. (Guiding principle of the editors)
§§ 11, 17, 18, 19 NSOG; Art. 104 para. 1 GG
Inadmissible custody of an “ultras”
Without further circumstantial evidence, being a fan of the “ultra scene” and rating it as a fan of category “B” does not allow for a hazard prediction that could justify its preventive detention. (Guiding principle of the editors)
LG Frankfurt on the Main
§§ 4 EStG, 40, 370 AO
No tax evasion by DFB officials in connection with the 2006 World Cup
On the tax criminal assessment of a payment of the WM OK 2006 in the amount of 6.7 million euros in favor of a third person, amongst other things, was booked under a wrong purpose. (Orientation sentence of the editors)
Section 4 (22) (b) UStG; §§ 51 ff. AO; Article 132 (1) (m) VAT Directive
ECJ template for sales taxation of clubs
The following questions are submitted to the European Court of Justice for a preliminary ruling:
1. Does Article 132 (1) (m) of the VAT Directive, which provides that ‘certain services closely related to physical activity and exercise of non-profit making to persons exercising sports or physical training’, have direct effect, if non-profit institutions can invoke this provision directly in the absence of implementation?
2. If the first question is answered in the affirmative: is the ‘institution without profit motive’ within the meaning of Article 132 (1) (m) VATSysRL a concept to be interpreted autonomously under European Union law or are the Member States authorized to rule on the existence of such a body of conditions such as 52 in connection with § 55 AO (or §§ 51 ff. AO in its entirety) to make dependent?
3. In the case of a concept to be interpreted autonomously under European Union law, a non-profit institution within the meaning of Article 132 (1) (m) of the VAT Directive must have rules in place in case of dissolution, in which case it must transfer its existing assets to another entity without Profit striving to promote sports and physical exercise has to transfer?