In the editorial “Assaulting Justice” Jan. F., Orth Cologne, refers to the decision of the Regional Court Munich I, which condemned the Bavarian Football Association by means of a temporary injunction, guaranteed the Club Türkgücü Munich participation in the DFB Cup and also obliged the German Football Association to ignore its own set of rules.
This decision completely disregards the autonomy of the association, which is enshrined in the Basic Law (Article 9 of the Basic Law), which is why it is worth considering the limits of control by the state courts, even though the Munich I Regional Court has meanwhile corrected its decision and condemned the soccer association to a new decision free of discretionary error. What is more worth thinking about, is the legal justification that the association abused its market-dominating position; these decisions will soon be published in SpuRt. The Frankfurt Regional Court also based its decision on an antitrust violation in which it refused to nominate 2 beach volleyball players by the association on the grounds that a sporting performance criterion was missing. This ruling is also unacceptable.
These decisions show that a concrete fine-tuning of the antitrust law justification on the one hand and the autonomy of the association on the other hand is more than necessary and needs to be worked on.
In the article “Fault-Independent Association’s Penalties in Professional Football and their Shift to Disruptors and Spectators”, J. Gerlach and S. Manzke, Hamburg, examine the not undisputed practice of the German Football Association, which sanctions clubs and spectators with collective penalties for the misconduct of individual disruptors. This is based on a no-fault penalty clause regulated by association law, to which the clubs have subjected themselves, this practice violates the limits of no-fault liability clauses. The sanctioned associations then transfer the punishments imposed on them to the troublemakers, which is still disputed.
The goal of the contribution is to find a legally unobjectionable solution; the respective club should sanction the misconduct of the troublemakers, while the German Football Association regulates its interests by means of concrete definitions in the case of violation of traffic safety obligations of the clubs by statute.
The 1st part of the contribution deals with a stock-taking of the current practice, in particular with the legal relations between associations, clubs and spectators and the association-independent and the no-fault punishment and further the shifting of these punishments on the individual troublemakers. Starting point of the sanctioning is the § 9 a DFB-RuVO, which defines the responsibility of the associations. This regulation is based over § 25 BGB on the federation autonomy in art. 9 GG, however, this is with disciplinary measures of associations with outstanding power position is problematic according to the established case law and is subject to a strict examination standard. The authors continue to examine a possible violation of moral standards under § 9 a RuVO with regard to the interests of the offender; however, there is no violation of moral standards, nor is there a violation of criminal law principles. In contrast, the violation of § 9 a RuVO against the civil law principle of fault is explained in detail, whereby in the end it can be stated that this norm is not in an appropriate relationship to each other with regard to the elements of the offence and legal consequences, as can be seen from the case law of the Federal Constitutional Court.
The authors further explain in detail the burden on the spectators as a result of the association penalty, i.e. first the recourse of the association for the association penalty and then the consequences of a match not being played in public.
With regard to the liability for recourse of the disruptive party, it should be noted in the case of contractual liability that the club is in effect, on the basis of the case law of the Federal Court of Justice, assessing its own economic circumstances and subjecting itself to a fault-based penalty with the consequence that it interrupts the attribution of the penalty. In this respect, this is not the consequence of the event giving rise to liability, but rather a normative disproportionate reaction. From a tort law point of view, recourse by the aggressor is also problematic, because, as explained in detail, the individual elements of tort law are not fulfilled.
Finally, as will be further explained, in the event that the DFB Sports Court sentences a club to a game played not in public, ticket holders have no claim to an alternative seat or reimbursement of the ticket price, as the corresponding clause in the General Terms and Conditions for Tickets violates § 307 (1) sentence 1 BGB and is invalid. The article will be continued in issue 1/2022 of SpuRt.
R. Cherkeh, Hannover and C. Heyn, Göttingen, deal in the article “Publication of doping arbitration awards by means of the NADAjus database – from the perspective of data protection law in particular” with the publication practice of the NADA of doping arbitration awards and judgements on the NADAjus database. This is done by means of so-called wanted posters, in which the information about the prohibited substance, the offence of the sanction, the association and the first name with first letter and surname, so that the arbitral awards can be found. The “wanted posters” also contain further data about the athlete and his environment.
An athlete has now lodged a complaint against this publication practice with the State Commissioner for Data Protection of North Rhine-Westphalia, which is why an examination of the data protection issues is appropriate.
The legal basis for this practice is initially Art. 4 No. 1 of the DS-GVO for personal data, relating to identified or identifiable natural persons. As a result of the publications mentioned in the “wanted posters”, it is clear that here the data is disclosed to the unrestricted public, which is something that needs to be investigated. The legal basis for this is once again Art. 6 Para. 1 DS-GVO, a prohibition regulation with the reservation of permission. The authors explain that there is no justification for this publication practice under Art. 6 I DS-GVO. The consent of the athletes is missing (Art. 6 I a), Art. 7 DS-GVO), furthermore there is no reference to the possibility of revocation in Art. 7 III DS-GVO and finally there is no transparency according to Art. 7 II DS-GVO, there is no voluntary nature, Art. 7 No. 11, Art. 7 IV DS-GVO.
The NADA, on the other hand, bases its publication practice on the provisions of §§ 9, 10 AntiDopG in conjunction with Art. 6 I e, Art. 6 III DS-GVO, which is by no means valid, because according to this provision, at most, the results could be published.
Furthermore, the legal basis of the WADC and Art. 14.3 NADC could be considered in connection with a legal authorization according to Art. 6 I e DS-GVO. Overall, the authors conclude that the processing of personal data by NADA is unlawful and that the processing is also disproportionate.
The authors therefore suggest possible solutions, because a publication practice should not be neglected despite all this. One could therefore introduce access restrictions for the published arbitral awards, with possible passwords, so that certain groups of persons who have a legitimate interest in the notification of the sanction could be granted access. Such restrictions are also common in other areas, which is why the NADA is recommended to review or adapt its publication practices.
In “The Limits of Justifying Consent in Sport when Doping the Opponent” D. Friedrich and C. Hook, Passau, again discuss the current case of the boxer Felix Sturm, and the judgement of the LG Köln is printed in the same issue. Does the forbidden taking of doping substances by a boxer now constitute a punishable bodily injury in addition to the punishability according to the AntiDopG, since an effective consent may be lacking? The authors deal with the question whether a legally effective consent of the opponent can be present here.
The question is examined in detail to what extent consent could be meaningless due to immorality. In case law, § 228 StGB is interpreted restrictively, the immorality refers exclusively to the severity of an imminent bodily injury and not to whether doping could offend against decency. Furthermore, there could be a lack of effective consent due to a violation of the rules of sport. However, consent for an injury in sport can only refer to the rules of the specific practice of the respective sport, for example the opponent’s boxing punches, and not to a concomitant phenomenon in the practice of the sport, namely doping.
As a result, the opponent of the doped athlete does not have the justifiable consent of the doped athlete, because he does not know the fact of doping. This is a genuine lack of will when the declaration of consent is given, which is why it is invalid. The LG Köln has, despite the correct judgement in the result, only briefly dealt with this topic and also with a different justification why the detailed clarification in this article was necessary.
Further, S. Unger, Gernsheim, discusses “The employee characteristics of coaches in amateur soccer“.
According to the author, this question has not yet been answered centrally or explicitly by the labor courts. Various labor courts tend not to grant the trainer in amateur soccer employee status.
However, the author points out in his presentation that one must assume that the coach in amateur sports is an employee, depending on the circumstances and details of the contractual agreement. The requirements are regulated in detail according to the newly introduced § 611 a para. 1 BGB. First of all, the contract must be a contract for payment, which means that it must be a contractually regulated remuneration, not merely a reimbursement of expenses.
Furthermore, it depends on the personal dependency due to the fact that the trainer is bound by instructions, which is usually already the case if the trainer has to perform his work at a certain place and within a certain time. In most cases, the employer club specifies the specific training times, which the trainer will naturally follow. This is only not the case if a trainer is able to determine the details of some sports, such as tennis or golf himself.
In the article “Herne-West: shift in the shaft? – or: Where coal is no longer worth anything….“, P. Küting, Bochum, describes the sporting and economic situation of the Bundesliga club FC Schalke 04 e.V. According to its 2019 Group Management Report, this club is pursuing “its long-term goal of becoming one of the top clubs in Europe – in sporting, economic and emotional terms”. The author clearly doubts this and states that the economic situation of FC Schalke 04 e.V. is disastrous. In contrast, the group management report would state that the 2020/2021 season is “solidly financed” – which is completely surprising in detail.
The author describes the details of the club’s history as well as its finances and describes the current balance sheet as presented acrobatics and predicts that this set of figures is likely to deteriorate massively with a view to the next balance sheet date 31.12.2020. In conclusion, the real problem of the club is that it has been doing bad business for years, and furthermore that such failed business models in soccer are artificially maintained by tax money. Under no Case law circumstances can it be possible that professional salaries in the millions will end up being paid with tax money.
Descent because of Covid-19 not basically illegal
Art. L. 521-1, 761-1 code de justice administrative (CJA) (French administrative court-PO)
- The decision of a professional league to maintain a league format with 20 clubs, while relegating the two clubs on the last two positions on the list, does not disregard the principles of equal treatment and sporting fairness, given the risks and uncertainties inherent in a championship. Its legality is not affected by any negative economic and sporting consequences for the clubs concerned and their players.
- As long as it does not bring about a change in the already established sporting results of previous competitions, the application of new rules to competitions that are in progress but have been interrupted in return cannot be regarded as a deviation from a previously secured legal situation, nor does it violate the prohibition of retroactive effect if the new rule n serves exclusively to determine the league participants and thus makes an exception to the principle of using the table at the end of the season (guidelines of the editor).
OLG Frankfurt a. M.
Exclusion of liability for joint sportive bicycle rides
§§ 276, 823 BGB; § 5 Abs. 4 S. 2 StVO
There is no general exclusion of liability for accidents caused by each other during a sport training ride of cyclists. (guiding principle of the NJW editorial staff)
Criminal liability for trespassing in case of existing stadium ban
- In the case of a conviction for trespass for violation of a nationwide stadium ban, there must at least also be findings from which it can be seen that the holder of the domiciliary right was effectively represented when the nationwide stadium ban, which is to be regarded as a ban, was issued.
- Whether further-reaching findings are required to establish whether the nationwide stadium ban was also issued in a materially effective manner, i.e. whether it does not violate the general personal rights of the excluded person and the arbitrary ban, appears rather doubtful. (Official Guidelines)
Doping detection at low steroid concentration (Felix Sturm)
§§ 3 para. 1 p. 1 no., 1, p. 2, para. 2 and para. 3, 4 para. 1 no. 4, no. 5, para. 7 no. 2 AntiDopG; § 223 StGB
To detect an intentional violation of the AntiDopG in the presence of an extremely low steroid concentration in the urine sample. (Orientation sentence of the SpuRt-editorial staff)
Contractual relationship with the player’s agent as an order
§§ 662 ff., 666, 667, 670, 652 ff. BGB
The classification of a contract between a Bundesliga player and a player consulting agency as an assignment within the meaning of §§ 662 et seq. BGB. (Orientation sentence of the SpuRt editorial staff)
LG Frankfurt a. M.
Compensation for non-nomination to beach volleyball tournaments
§§ 280 para. 1, 305 ff. 307 para. 1 BGB, 253 para. 2 ZPO
- Athlete or cadre agreements may be subject to general terms and conditions as defined in §§ 305 ff. BGB. An arbitration agreement contained therein which permits the formation of an arbitration tribunal, which does not necessarily have to include “lawyers”, involves the athletes inappropriately and is void under § 307 BGB.
- Access to state courts may be waived in favour of arbitration only if the parties’ submission to the arbitration agreement and the associated waiver of the decision of a state court of law is voluntary. However, in the case of competitive athletes who make their sport a profession, it is to be assumed that the decision is involuntary if they are faced with the choice of accepting an arbitration clause in order to be able to earn their living by practising their sport on a professional level, or not accepting it and completely waiving their living by practising their sport on such a level (contrary to BGHZ 210, 292 = SpuRt 2016, 163 with reference to EGMR SpuRt 2018, 253 – both Pechstein)
- If a sports association completely waives characteristics of a best selection of athletes in its registration decisions for international tournaments, there is no objective reason for the unequal treatment of athletes not registered for this reason, which is why the association entitled to nominate is liable for damages according to §§ 33a, 19 (1), (2) No. 1 GWB because of the abuse of a market-dominant position. (Guiding principles of the SpuRt editorial office)
Press release of a local court on the indictment of ex-football professional
§4 PresseG NRW, Art. 2 para. 1, Art. 1 para. 1 GG
- A local court may issue a press release informing the public of an indictment it has received, in individual cases also stating the name of the applicant and the acts, including offences, of which he is accused.
- The always necessary weighing up of the conflicting interests of freedom of information of the press on the one hand and the protection of the personality of the person concerned on the other hand can lead to a priority of the public interest according to the circumstances of the individual case, if a prominent person is accused of crimes which particularly affect the public (here: acquisition and possession or creation of possession of child and youth pornographic writings). (Official Guidelines)
Arbitration Court of the German Rugby Federation
Bundesliga license after dissolution of a lottery syndicate
§25 BGB; § 1 number 7 SpO-DRV
- For the interpretation of a provision of the Laws of the Game that requires the former members of a lottery syndicate to agree to remain with one of the participating teams in order to retain the right to play for one of them.
- If a provision in the by-laws stipulates that the former members of a lottery syndicate without agreement on the right to play must necessarily start with the team in the lowest division after its dissolution, this constitutes a disciplinary measure that requires a basis in the by-laws. (Guiding principles of the SpuRt editorial office)