SpuRt 6/2019 2019-12-16T14:48:50+00:00

In the editorial “Exciting Times” J. Orth, Cologne, refers to the current violence of right-wing and left-wing motivated groups who seriously endanger the free speech and freedom of doctrine with their opinion. The guaranteed freedom of opinion of the Basic Law is misunderstood and exploited here.

This social mockery has also affected sport, the DFB has to report that violent incidents on referees are increasing, bad videos on amateur sports fields can now be seen in the news on television. The umbrella organisation of the sports youth in the DOSB has formulated a clear statement against anti-Semitism and extremism, which is printed in this issue. But in this exciting time there are also reassuring constants, among them in sports law without doubt the emeritus judge at the Federal Constitutional Court Udo Steiner, whom we could congratulate on his 80th birthday and whose work in sport has helped to shape the country and gives hope to all.

In the article “Another German participation in the final of the UEFA Champions League”, J. Drechsler, Frankfurt am Main, deals with the question that a final of the UEFA Champions League victory took place for the first time in 2019 without the match being shown live on free-to-air German television. In the previous weeks, the media examined whether the State Broadcasting Treaty required the match to be broadcast on free-to-air television. The decisive factor here would be whether the participation of the German coach Jürgen Klopp should be seen as German participation within the meaning of Section 4 of the Interstate Broadcasting Treaty (RStV).

The contribution shows that there are indeed good reasons for the necessity of a live transmission of the match on German free-TV.

The author examines the provisions of § 4 (1) sentence 1 RStV as well as the history and purpose of § 4 (1) and (2) RStV and comes to the conclusion that there are good reasons for not limiting the requirement of German participation to the qualification of German club teams. Especially in such final matches without the participation of a German team, a socially significant integrative identification can be generated in which a German personality is involved whose broad social significance is comparable to that of a German team. The person Jürgen Klopp certainly represents the typical ideal case for this. However, it could be difficult to establish objectively measurable criteria in order to convincingly substantiate the argument of “German participation” according to § 4 RStV.

R. Schippel, Munich, deals with this new type of sports betting in the article “Fantasy betting – permissible sports bets or not?” Fantasy bets are bets on the outcome of a bet between two teams, which are paired together must not play against each other at the time of the bet. There are various legal opinions based on the previous gaming laws of the state of Schleswig-Holstein and the State Treaty on Gaming 2012 (GlüStV). The VG Schleswig evaluated this bet as a permissible combined bet of the gaming law Schleswig-Holstein, whereas the VG Augsburg considered this new form as inadmissible. The author examines the most diverse arguments of these decisions and comes to the result that due to the prohibition of bets on fictitious and simulated sport events (§ 12 GlüStV) such bets are inadmissible. However, it would have to be examined whether, according to the so-called channeling objective of § 1 sentence 1 no. 2 GlüStV, there is a possibility of considering this bet to be permissible in order to combat the black market.

In the article “European Court of Justice (ECJ) restricts the regulatory autonomy of sports associations also in the amateur sector” A. Jakob, Karben, deals with the decision of the ECJ of 13.06.2019 (published in SpuRt 2019, 169) in which the ECJ refused the regulation of the German Athletics Association (DLV) in § 5.2.1, according to which a Union citizen with the nationality of another member state and for many years resident in a member state, are not allowed  participation in a national championship. This means that the ECJ now intervenes in the regulatory autonomy of sports associations in the field of amateur sport in addition to professional sport. The author analyses the decision of the European Court of Justice and the argumentation of the DLV and the applicability of Art. 18, 21 and 165 TFEU. At the same time, the author examines the permissible restrictions of European law under Art. 18, 21, 49 TFEU.

As a result, the European Court of Justice finds that EU citizens are unequally treated compared to national athletes.

Such unequal treatment could lead to difficulties in integration into the society of the member state. As a result, the ECJ’s decision allows the national court to decide to what extent the access of EU citizens to the national championships is appropriate. In any case, the objective of Art. 21 (1) and 165 TFEU must be taken into account.

The article “False Identity – Aspects of Sports and Residence Law in Licensed Football” by W. Breidenbach and S. Klaus, Halle/Frankfurt am Main, deals with the following: The 21-year-old licensed player with the name Bakary Jatta is alleged to have deceived his identity by stating that he is the 23-year-old Bakary Draffeh.

During the match operation in the 2nd Bundesliga, the losing clubs, Nuremberg, Karlsruhe and Bochum, made claims against the match evaluation because allegedly necessary playing permission would have been missing.

The contribution examines whether an identity deception constitutes a violation of §§ 9 ff. of the German Civil Code. DFB Game Regulations. The authors interpret the regulation of the gaming license, player license and license regulations for players and check, for example, that “reaching the age limit” and the residence status. These provisions only justify action against the player if the following conditions are met

it has been proven that an identity fraud has occurred; the competent alien’s authority is currently still examining the transactions. However, the appeals against the match evaluation of the football clubs Nuremberg, Karlsruhe and Bochum are likely to be unsuccessful, if only because, from the point of view of sports association law, it is only possible to react with an effect for the future. Civil law effects on the license contract or on the employment contract with the club are out of the question, as the name deception is considerable.

M. Walker, Passau, examines in the article “Administrative practice as a result of the BVerwG’s police cost ruling in the light of European state aid law.” the effects of the decisions of the BVerwG in German football. This ruling stated that the Länder, as legal entities of the police, may allow football clubs to contribute to the police costs of so-called high-risk games.

In the absence of a legal basis outside the city-state of Bremen, the corresponding cost decisions should not be accepted in future, at least for reasons of competitive inequality and European state aid law.

The article therefore examines the current legal situation of the Free Hanseatic City of Bremen and compares it with the other federal states – in each case interpreting the police costs ruling of the Federal Administrative Court. In the case of the Free Hanseatic City of Bremen, the latter can, on the basis of § 4 (4) of the Contribution Act, make use of the organiser, i.e. the Werder Bremen football club, for the deployment of the additional police forces required to cover the additional costs incurred. On the other hand, the current legal situation offers the other federal states no legal basis for claiming the costs of high-risk games. This constitutes an advantage within the meaning of Art. 107 (1) AEUGV.

The case law of the European Court of Justice gives a great deal of scope to the orientation of Germany, which in turn does not constitute an infringement of European state aid law. This controversial dispute is unlikely to be over yet.

Jurisprudence

OLG Munich

Exclusion of liability for participation in racing events

§ Section 29 StVO; Section 315 c StGB

  1. The exclusion of risk provided for races in the AKB of an insurance applies to races of any kind, especially speed rallies, touring rallies and star rallies, as long as it is a matter of achieving the highest speed, this may also be lower in the absolute altitude under the given conditions than at racing events in the narrower sense.
  2. if the exclusion of risk requires a racing event according to the relevant AKB, then attempts made by road users in road traffic to drive past other road users, to overtake them or the attempts of the respective other road users to prevent this are not included, even if this is done in violation of traffic regulations (see OLG Bamberg, NJOZ 2011, 26). (Guiding principles of the SpuRt editorial office)

Higher Regional Court Hamburg

Withdrawal of boxing licence for health reasons

Art. 9 para. 1, 12 para. 1 GG; Sections 242, 280 para. 1, 823 para. 1, 826 BGB; Sections 33 para. 3 sentence 1, 19 para. 1 ARC

  1. if a socially powerful boxing association withdraws or refuses a professional boxer the licence to practise his sport professionally for health reasons, this measure, like a disciplinary measure, is completely subject to judicial review as to its fairness.
  2. If both the correction for the withdrawal of the licence and the authority to refuse the start permit under the association’s statutes are linked to the fact that there is a risk to the health of the athlete, the standard – the existence of medical concerns – applies equally to both licence areas.
  3. The granting of the start permit is the decision which is more dangerous for the health of the athlete and for the reputation of the sport in public. On the one hand, the start permit crosses the threshold from abstract to concrete danger and, on the other hand, it gives the association the opportunity to protect a basically healthy athlete – in this case a professional boxer – from being endangered by an unequal fight. Therefore, the refusal of the start permission is the milder means compared to the general license withdrawal.
  4. The term “medical concerns” in the articles of association refers to risks that go beyond the usual level of health risks in boxing and are therefore unacceptable in the well-understood interest of the member concerned and of the club as a whole. The greater the threat to health, the lower the requirements for the probability of damage. This is a prognosis decision.
  5. In the context of the fairness test based on the standard of good faith (§242 BGB), it is important whether the refusal of the start permit preserves the limits of freedom to choose an occupation drawn by Article 12 (1) GG. For the association, its right to an autonomous design of the association’s internal rules for the licensing of professional boxers, which is protected in accordance with Article 9 (1) of the Basic Law, disagrees.
  6. These principles also apply to any antitrust claims. (Official Guidelines).

OLG Frankfurt am Main

Opening of main proceedings against former DFB officials in connection with the 2006 World Cup

§§ 4 EStG, 370 AO

The question under which conditions a payment in favour of a third party can still be regarded as a business expense within the meaning of § 4 (4) EStG. (Orientation sentence of the processor).

OLG Frankfurt am Main

Licensing procedure of the DFB for the 3rd league

§§ Sections 19 ARC, 269 (3) sentence 2 ZPO

  1. The DFB is a monopolist on the relevant product market for the operation of the third league and is therefore dominant in that market.
  2. on the right to equal treatment and the mutual duties of protection and consideration of the clubs in the licensing process and the DFB.
  3. on the decision on costs pursuant to § 269 (3) sentence 2 in interim injunction proceedings after the proceedings have been settled as a result of an arbitration decision on the licensing procedure. (Principles and guidelines of the SpuRt editorial office).

LG Cologne

Increased due diligence of a kitesurfer

§§ 823 para. 1, 249 et seq. GERMAN CIVIL CODE

  1. by operating the equipment, a kitesurfer creates a source of danger beyond the normal level, the opening of which is not prohibited in itself, but which leads to an increased responsibility to avert or at least limit the resulting harmful consequences.
  2. the kitesurfer has to make sure that there is enough space available for the starting process, so that a danger to others is excluded as far as possible. He must observe this circumstance continuously. (Principles of the SpuRt editorial office)

LAG Baden-Württemberg

Employee characteristic of an assistant trainer

§§ 2 Para. 1 No. 3, 5 ArbGG, § 611 a BGB (German Civil Code)

An activity as a assistant trainer in a sports club can be performed both within the framework of an employment relationship and as an independent activity. If there are no sufficient indications that the employment is dependent, such employment cannot be derived solely from the activity of ” assistant trainer ” or “co-trainer”.

BFH

Value added tax liability of players’ agents in the case of payment by instalments

§ Article 13(1)(a), second and third sentences, of the VAT Act; Articles 63 and 63 of the VAT Directive

Traders may invoke direct application of Article 64(1) of the VAT Directive in the case of intermediary services remunerated in instalments. (official guideline)

FG Düsseldorf

SFN surcharges on rides by professional athletes in team buses

§§ 3 b Paragraph 1, 40 Paragraph 1 No. 2 EStG

  1. Trips of professional athletes in the team book can be Sunday, holiday or night work.
  2. Professional athletes perform actual work during the travel periods as defined in § 3 b Para. 1 1st half of the EStG.