J.F. Orth, Cologne, discusses in the editorial “Responsibility” the question raised in public whether the professional soccer player Kimmich has fulfilled his role model function and responsibility by his statements on non-vaccination. Does he actually have to be a role model? The prominent media scientist Th. Schierl denies this! It is to be asked whether the load of the responsibility must not be demanded by the high salaries and remunerations. Also, the courses of action of prominent sportsmen are followed and adapted by the society, in particular the youth, without criticism. With such a socially relevant health issue and the potential damages, such responsibility can be demanded.
In the article “ Labor law issues relating to the premature announcement of a change of club,” H. Reiter and Ph. Fischinger, Fankfurt a. M./Mannheim, examine the question of whether the announcement of coaches’ club changes during the soccer season and the consequence of poor match results by soccer clubs, as recently occurred, constitute breaches of duty under the employment contract.
By way of introduction, the authors explain a diverse material of data on the coaching changes of M.Rose (Borussia Mönchengladbach) and A. Hütter (Eintracht Frankfurt) as well as H.Flick (Bayern Munich) and Nagelsmann (RB Leipzig). The basis for a breach of duty can be § 241 II BGB, according to which in a contractual obligation each part is obliged to consider the rights, legal interests and interests of the other part. Thus, the interests of the club and the interests of the trainer must be weighed accordingly. The club has a considerable interest in keeping the performance and motivation of the players high, whereas an interest in an early announcement of a club change by the coach is not evident. Thus, there will regularly be a breach of duty, which is why the authors examine the legal consequences. The possibilities of extraordinary termination are now presented, as is a release from the employment contract. However, neither of these options is in the club’s economic interest, which is why they hardly ever come into play. In addition, there may be a violation of the Trade Secrets Act. A violation exists if, pursuant to Section 2 No. 1 of this Act, damage is caused by a publication that is not generally known or accessible and also represents an economic value. However, such requirements are not met.
Since these legal consequences cannot be helpful for the club, the authors explain in detail the contractual design options that are recommended when concluding the employment contract in order to avoid such consequences. A contractual penalty agreement is to be measured against the provisions of §§ 307 et seq. BGB, in particular §§ 315, 317 BGB. Likewise, special conditions can be included in the exit clause of the employment contract. Finally, the authors examine the legal situation with regard to sports directors, players and assistant coaches. Here, the aforementioned principles are likely to be transferable only in rare exceptional cases in the case of a change of coach.
In the article “System Problems in Doping Proceedings? – The protection of the athlete against lengthy cost-intensive proceedings”, M. Klarmann, Frankfurt a.M., asks whether the protection of the athlete in the association and criminal court proceedings for doping offenses is sufficient. After all, a great deal of effort is put into the control and testing procedure compared to the number of sanctioned athletes. In addition, the costs incurred by the athlete in the course of these proceedings are considerable. Certainly, the discrepancy between the doping athletes and the sanctioned athletes must be reduced, but at the same time an excessive burden on the athletes must be prevented.
The author presents in detail the burdens that arise in arbitration proceedings under association law, first the testing procedure under the WADA Code as well as the NADA Code and the subsequent proceedings of the German Arbitration Service (DIS) as well as the following proceedings, in particular the duration of the proceedings. As a rule, such proceedings last six to nine months and in some cases also require a longer period of time. Little use is regularly made of the possibility of first-instance proceedings before the Court of Arbitration for Sports (CAS) without prior disciplinary proceedings before the national arbitration courts. Of practical relevance is rather the appeal procedure at the CAS against the first-instance award of the National Arbitration Court. Here, the author examines the possibilities of shortening these proceedings, but comes to the conclusion that the CAS should by no means be limited in its full fact-finding in the appeal proceedings.
In addition to the aforementioned long duration of the proceedings, the author describes the different cost burden in the association proceedings and the state jurisdiction. The first-instance proceedings before the DIS Court of Arbitration for Sport regulate that the unsuccessful party bears the costs, but in some cases there is a proportionate division at the discretion of the court. In the appeal proceedings before the CAS, compensation for party costs is rather unusual, even in the case of a complete victory. Thus, the athlete incurs considerable costs in these time-consuming proceedings, which the author describes in detail on the basis of the provisions of the CAS. In contrast, the burdens in judicial criminal proceedings are considerably lower, but in the author’s opinion, a particular system problem cannot be found. In his conclusion, the author points out that there is still room and need to significantly improve and strengthen athletes’ rights in association and arbitration proceedings. This has already been pointed out in detail by Cherkeh/Vieweg, among others, in an article in SpuRt 2021, 250 ff.
In the article “Will the transfer of players become a data transfer ? “, N. Winter, Düsseldorf, and L. Rexin, Cologne, examine the question of whether and how the right to data portability will have an impact when players change associations and clubs.
In competitive sports, digitalization has long since arrived in the medical and training science fields. Data analyses on players in training and competition are the order of the day. The data recorded during training and competition are the basis for important decisions in sports. The question thus arises to what extent there is a right to transfer this data.
The authors first provide preliminary considerations and classification of these rights, since data portability and the right to it under Article 20 of the General Data Protection Regulation (DSGVO) is a legal novelty. Both the donating sports club and the receiving sports club have a special interest in this data. Data portability according to Art. 20 DSGVO is also applicable to the employment relationship. In principle, the person whose data is to be demanded is entitled to make a claim. In turn, the person who is responsible for the data processing is obligated.
The authors then address the claim requirements in detail:
According to Art. 20 I DSGVO, the demand for surrender of the data relates to the personal data of the athlete. All data collected in the course of training are personal data and the subject of the claim. Decisive is furthermore the definitional element “provided”. This is the case if the data is provided by the athlete through an active action or if the data is processed with the athlete’s knowledge and intention. In the opinion of the authors, the decisive factor is probably the athlete’s consent or a contract as the basis for data processing. The latter usually takes place on the basis of the employment contract between the athlete and the club. As a legal consequence, there is then a claim to surrender collected performance data in a common format, i.e. in a structured and machine-readable format. The question of the scope of this claim arises from the division into primary data and secondary data, namely unprocessed data and further processed data.
This fundamental claim is, however, subject to certain restrictions. It depends on the extent to which there are agreements between the club and the athlete that may limit this claim; however, these must be negotiated individually. It could also be agreed that this data can be used commercially or may not be transferable in order to protect the club’s own rights. Overall, however, a careful balance must be struck between the fundamental right to data transfer and the corresponding restrictions, which must under no circumstances lead to the right to transfer of the athlete’s data being undermined. As a result, athletes regularly have a right to the release of their performance data in the form of primary data, but not to the release of processed performance data, i.e. secondary data.
M. von Collberg and T. Conraths, Frankfurt a.M., deal with the rapid development of eSports and its integration into traditional sports with their clubs and associations in their article “The organization of an eSports competition from the point of view of a sports league – Which legal questions need to be clarified here?”
Due to the Corona pandemic since March 2020, eSports has once again gained in importance. In the eSport-Bund Deutschland (ESBD) alone, 58 pure eSport clubs and 25 multi-sport clubs with eSport offerings are now organized. In the implementation of eSport competitions, new legal questions arise again and again, starting with the competition format to the design of the legal relationships to the clubs and games, furthermore the implementation of sports and arbitration jurisdiction as well as the aspects of marketing. With this article, the authors aim to provide an introduction to the relevant topics of eSports.
As far as the competition formats are concerned, there is still a lot to develop. The publishers, as organizers of the competitions, are constantly designing new formats and structures, about which no generally valid statement can yet be made because of the constant innovations. A distinction can be made between professional team tournaments and amateur tournaments. In the case of the former, in particular, a license is required for participation. Mixed forms and variations are also carried out, a final structure is not yet foreseeable. The competition regulations are also essential, which differ in each case according to the competition formats, also according to whether the participants are amateurs or professional players. Here, of course, the conditions of participation are also different, as well as how large the individual teams of participants are, where the local headquarters of the team is, as well as the age of the players. Any tournament rules must be designed to ensure the viability and integrity of the competition. In this regard, there is little difference from tournament regulations in conventional sports. The authors explain the specifics of the exceptions of eSports, which must arise for the tournament rules due to the specificity of the sport.
Furthermore, the authors set out the details of the disciplinary bodies in tournaments and their arbitration tribunals. Unlike in conventional sports, referees in a virtual sports simulation cannot make decisions of the so-called in-game action – here a close cooperation between the match referee and the referee further appointed by the tournament management must be distinguished. Of particular importance in the events of eSports competitions is their media exploitation, because this contributes significantly to the success of a competition. However, some eSports-specific particularities must be taken into account here, namely the exploitation rights to legal positions of third parties, here again the legal position of the publisher and the legal positions of the participants, and on the other hand the own exploitation rights of the sports league as organizer. In summary, the authors conclude that the status of eSports continues to rise and new target groups are constantly being tapped. In this context, new structures have to be created again and again. Overall, the further development of eSports is extremely exciting.
In the article – The legal sanctioning of the so-called “streakers” – T.Pörner, Potsdam, deals with the criminal and civil law evaluations of this unauthorized entry into the stadium interior.
The so-called “streakers” (spectators who enter the playing surface without permission) have a decades-long history in the field of professional soccer, recently they have again appeared topically, e.g. at the European Football Championship in the summer of 2021, when a young man with a rainbow flag entered the pitch. The media attention for often political statements is enormous, nevertheless they have criminal and civil relevance.
The author first examines the elements of the offense of trespass under Section 123 (1) of the German Criminal Code ( StGB) and deals in detail with the soccer stadium as a business premises or pacified property. It also deals with the further elements of trespass and trespassing under this provision. Since these characteristics are undoubtedly given, the question of a justification and guilt is also explained in detail. In this context, the legal provisions of self-defense and state of necessity (§§ 32 and 34 StGB) come into consideration for the author, because there could possibly be an imminent violation of legal rights if he demonstrates against political grievances or laws. However, this must be clearly rejected. Also, a possible prohibition error after § 17 StGB would hardly come into consideration, why the facts of the trespass are clearly fulfilled.
The author also examines possible consequences under civil law, and in this respect examines the spectator contract and the respective general ticket terms and conditions, according to which the spectator must comply, which is why there is probably clearly a breach of contract, from which claims for damages can result. If damages are incurred here, for example as a result of additional expenses incurred by the security service or possible association fines imposed by the club as a result of inadequate security service, these could be claimed under certain circumstances. In addition, a stadium ban will be imposed on the so-called “streaker”.
In the article “Players’ agent compensation in the event of a postponement of transfer periods?”, Ph. S. Fischinger, Mannheim, deals with the question of how, in the event of a pandemic-related postponement of transfer periods, partial compensation claims of players’ agents are paid out.
Currently, amidst many legal issues, it has remained undiscussed how the postponement of a season and change in the transfer period affects annual instalment compensation claims of player agents. Typically, the claim is dependent on the player still being employed by the club within the change period on the cut-off date – under the current regulations of Section 4 No. 2 of the DFL Licensing Regulations and Section 23 No. 1.1 of the DFB Match Regulations, August 31 of any given year. How does a postponement of the change period in pandemic times affect this claim? The author presents the facts of the case, based on the current case before the Bremen Regional Court, and in this context discusses a supplementary interpretation of the contract that would be suitable for the solution: What provision would the parties usually have agreed upon if they had taken into account the development that has occurred? There is much to be said for such a hypothetical construction of a supplementary interpretation of the contract to solve this problem. After all, the choice of the cut-off date of August 31 of the respective year in the provisions of the DFL Licensing Regulations and DFB Match Regulations have not been made arbitrarily, but deliberately on the last day of the change period I .
Finally, the author then formulates in detail a proposal for future contract designs , to better handle this situation in the future.
Madrid Commercial Court
ECJ referral on the admissibility of a Super League under antitrust law
Art. 45,49, 56, 63, 101, 102 TFEU; Art. 22, 49, 51, 67, 68, 70, 71, 72, 73 FIFA Statutes; Art. 6 FIFA Regulation Governing International Matches
The following questions are referred to the ECJ for a preliminary ruling:
- Is Article 102 TFEU to be interpreted as prohibiting an abuse of a dominant position consisting in the fact that FIFA and UEFA, in their statutes (in particular, Articles 22 and 71 to 73 of the FIFA Statutes, Art. 49 and 51 of the UEFA Statutes and any article of corresponding content of the statutes of the member associations and national leagues) stipulate that prior authorization by these bodies claiming exclusive competence to organize or authorize international competitions for clubs in Europe, is required for a third body to set up a new pan-European club competition such as the Super League, in particular in the absence of a procedure regulated on the basis of objective, transparent and non-discriminatory criteria and taking into account the conflict of interest which may exist in FIFA and UEFA?
- Must Article 101 TFEU be interpreted as precluding FIFA and UEFA from making provision in their statutes (in particular, Articles 22 and 71 to 73 of the Fifa Statutes, Articles. 49 and 51 of the UEFA Statutes and any article to the same effect in the statutes of the member associations and national leagues) require prior authorisation by those bodies claiming exclusive competence for the organisation or authorisation of international competitions in Europe in order for a third body to set up a new pan-European club competition such as the Super League, in particular in the absence of a procedure regulated on the basis of objective and non-discriminatory criteria and taking into account the conflict of interest which may exist in the case of FIFA and UEFA?
- Are Articles 101 and/or 102 TFEU to be interpreted as prohibiting action by FIFA, UEFA, their member associations and/or national leagues consisting in threatening to impose sanctions on clubs participating in the Super League and/or their players because of the deterrent effect which such sanctions may produce? In the event that the sanctions of exclusion from competitions or prohibition of participation in matches of the national team are imposed: Would these sanctions, without being based on objective, transparent and non-discriminatory criteria, constitute a breach of Articles 101 and/or 102 TFEU?
- Are Articles 101 and/or 102 TFEU to be interpreted as being incompatible with Articles 67 and 68 of Fifa’s Statutes to the extent that they refer to UEFA and its national member associations as the “original owners of all rights attached to the competitions …. which may arise in competitions falling within their jurisdiction”, thereby depriving clubs participating in alternative competitions and their organizers of original ownership of the said rights, with the result that UEFA arrogates to itself exclusive responsibility for their commercialization?
- if FIFA and UEFA, as bodies claiming exclusive competence to organize and authorize international competitions for soccer clubs in Europe, prohibit or refuse to organize the Super League on the basis of the aforementioned provisions of their statutes: Is Article 101 TFEU to be interpreted as meaning that those restrictions of competition may fall within the scope of the exception set out in that provision, since production is significantly restricted, the appearance on the market of alternative products to those offered by FIFA/UEFA is prevented, and innovation is restricted by preventing other formats and designs, thereby eliminating potential competition on the market and limiting consumer choice? Is there any objective justification for such a restriction which would allow the assumption that there is no abuse of a dominant position within the meaning of Article 102 TFEU?
- Are Articles 45, 49, 56 and/or 63 TFEU to be interpreted as meaning that a provision such as that contained in the FIFA and UEFA Statutes (in particular, Articles 22 and 71 to 73 of the FIFA Statutes, Articles. 49 and 51 of the UEFA Statutes and any article of corresponding content in the statutes of the member associations and national leagues) constitutes a restriction which infringes one of the fundamental freedoms recognized in those provisions by requiring prior approval from FIFA and UEFA for the establishment of a Europe-wide club competition such as the Super League by an economic operator of a Member State?
Madrid Commercial Court
Penalty threat against FIFA/UEFA for disregarding interim injunction in the case of Super League
Art. 709-11, 721, 738 Ley de enjuiciamiento civil
Failure to comply with the interim injunctions from the judgment of May 11, 2021 against FIFA/UEFA with the content of not imposing disciplinary measures against the initiators of the European Super League during the pendency of the referral proceedings before the ECJ constitutes a criminal contempt of court under Spanish law.
Munich Regional Court II
Criminal law consequences of “Operation Bloodletting”
§§ Sections 95 para. 1 no. 2 a, para. 3 no. 2 lit. B), 6 a para. 1, para. 2 AMG; Sections 2 para. 2 no. 2, 4 para. 1 no. 2, para. 4 no. 2 lit. B), para. 5 AntiDopG in conjunction with. Annex I to the International Convention against Doping in Sport; Sections 27, 223 para. 1, 224 para. 1 no. 1, 53, 51 para. 4 sentence 2, 70,73, 73 c, 74 StGB (Criminal Code)
- on the criminal law assessment of the doping activities of the so-called “Doping Doc”, which were investigated as part of “Operation Bloodletting”.
- on the criminal liability of so-called “blood doping” under the AMG and the AntiDopG.
- the principles developed by the supreme court jurisprudence for narcotics criminal law on the formation of valuation units in the case of a uniform turnover of goods, for example in the case of “trafficking” within the meaning of the BtMG, can be transferred to uniform (seasonal) doping penalties.
Paderborn Regional Court
Extraordinary dismissal of sports manager due to dissemination of untrue facts to the team
- the dissemination of an untrue fact by the managing director towards his own team is a breach of duty which may constitute good cause under § 626 (1) BGB.
- statements regarding the reasons for a planned salary waiver of the players by the released managing director sports towards the players affect a legitimate interest of the company.
- The increased duty of loyalty of the managing director of a company shall continue to apply even if he leaves his own team after having been released from his duties.
Würzburg Regional Court
No extension of gym contract by corona downtime
§§ 1, 2, 5, 8, 9 UWG; §§ 275, 309, 326 BGB; Art. 240 § 5 EGBGB
- If a fitness studio operator informs a consumer in response to his notice of termination that the training-free period will be regarded as an extension of the contract or that the term of the contract will be postponed by the period of the corona-related closure, this is not merely a legal opinion intended to substantiate its own view, but a factual assertion by which the consumer is to be induced to accept a specific form of adjustment to the contract. It can only be understood by the consumer in such a way that the claimed extension of the contract actually occurs despite his termination, and is therefore misleading and thus unfair in the sense of § 5 para. 1 sentence 2 no. 7 UWG. 2.
- the fitness studio’s claim to remuneration pursuant to §§ 275, 326 para. 1, 4 BGB (German Civil Code) lapses for the corona-related closure periods, with the consequence that both fitness operators and their customers are released from their respective obligations.
- it is likewise misleading to state in customer letters in response to their termination of the fitness studio contract that there are “already several court rulings on the constellation of facts now relevant” and in doing so to make reference to more specifically designated court rulings in which no decision was made on the permissibility of a unilateral extension of the contract by the period of an officially ordered closure.
No action for a declaratory judgment on the duty of the general meeting to hold meetings
§§ 25, 36 BGB, 256 para. 1 ZPO
- An action for enforcement of an annual general meeting is more intensive in terms of legal protection than an action for a declaratory judgment on the fundamental existence of the association’s duty to convene an annual general meeting.
- Therefore, there is no interest in a declaratory judgment for an action for a declaratory judgment on the existence of an obligation to convene an annual general meeting by a member of the association as stipulated in the association’s articles of association.
Soccer coaches are not artists under social insurance law
§Section 25 (1) KSVG, Section 27 (1 a) sentence 2 KSV
- 1.According to supreme court rulings, there is no obligation to pay social security contributions for artists when active athletes are commissioned for advertising purposes. A trainer is not an athlete in this sense. However, this case law is to be applied to him, so that an activity as a brand ambassador proves to be an annex to his coaching activity. In the case of a trainer activity, the idea of competition is also in the foreground.
- The question of whether an advertiser can be replaced by an actor is irrelevant. This delimitation is without contours. Rather, the assessment of the duty to pay contributions under the Artists’ Social Security Act must be based solely on the actual circumstances.
- For the determination of the term “artist” in § 25, Subsection 1, Sentence 1, KSVG, the professional activity of the respective person must be taken into account.
- An activity as an artist shall be deemed to exist in any case if the person exercises an artistic profession on a full-time basis.
- In the absence of divisibility, all remunerations paid shall be included in the obligation to pay social security contributions for artists.
- In the course of a tax audit with regard to the obligation to pay social security contributions for artists, the pension insurance institution conducting the audit shall be entitled to amend and revoke any notices of social security contributions for artists that have already been issued.