The Sports Law Review: Germany
Organisation of sports clubs and sports governing bodies
i Organisational form
Sports clubs and sports governing bodies in Germany are traditionally organised in the form of (registered, non-profit) associations, according to Section 21 et seq. of the German Civil Code (BGB).
For an entity to qualify as an association, the following requirements must be fulfilled:2
- at the time of its foundation, the entity must be a voluntary organisation of at least seven persons;3
- it must have a certain purpose that is not only temporary and is independent from any change of members of the association;
- it must have a corporate structure and a name; and
- it must be registered in a register of associations at the local court.
If the above-mentioned requirements are met, an association has legal personality, meaning it can acquire rights and obligations under the law.4
Entities involved in sports choose to be organised in the form of an association for various reasons, one being that an association is generally not dependent on a particular number of members.5 Financial risks for members are limited, since association members typically are not liable for debts accrued by an association.6 Moreover, association members are generally equal and have the same voting rights in an association's general assembly, which is its prime decision-making body.7
Under German law, associations enjoy a wide degree of autonomy to regulate their own affairs, including the right to draw up internal regulations and set up an internal dispute resolution mechanism.8 If organised as non-profit associations according to Section 51 of the German Internal Revenue Code (AO), associations enjoy certain tax benefits. To be recognised as non-profit associations, organisations can still engage in secondary commercial activities (renting a stadium, selling tickets to a sport event, etc.), the financial return from which must be used to fund their non-profit activities.9 However, if an association generates a profit through sponsorship and merchandising, it will regularly transfer its commercial activities to a separate (commercial) legal entity.10
Because of this, since 1998, the German Football Association (DFB) has allowed clubs in the German Bundesliga to create commercial entities out of their professional football departments.11 Most of the clubs have taken advantage of this possibility and have transformed their professional football departments into stock corporations (e.g., FC Bayern Munich (not listed)), limited liability companies (e.g., Bayer 04 Leverkusen Fußball GmbH) or partnerships limited by shares with a limited liability company as general partner (e.g., Borussia Dortmund GmbH & Co KGaA (listed)).12
Section 5 of the Act on Measures in Corporate, Cooperative, Association, Foundation and Home Ownership Law to Combat the Effects of the Covid-19 Pandemic provides for temporary amendments to the law on associations, including the automatic renewal of terms of office for board members until a board member is recalled or a successor is elected; and that resolutions by the general assembly may be passed in a virtual meeting or by mail-in voting, even if the statutes do not provide for this.
ii Corporate governance
The corporate governance of sport organisations in Germany is not subject to any sport-specific national laws, but is upheld through the interaction of civil, public and criminal laws, and certain corporate governance guidelines of sport organisations such as the German Olympic Sports Confederation (DOSB).13
The relevant civil laws include provisions on the internal structure of associations,14 their liability and that of their representatives.15 Public laws provide for rules demanding the selfless activity of associations, the use of funds only for statutory purposes and not for the benefit of an association's officials, or that upon dissolution, the assets of an association may not be transferred to one of the association's officials but will have to be used for a specified common public interest.16
Relevant criminal matters include:
- insolvency offences (Section 283 et seq. of the Criminal Code (StGB) and Section 15(a) of the German Insolvency Code); covid-19 update: Section 1 of the Act to Mitigate the Consequences of the Covid-19 Pandemic in Civil, Bankruptcy and Criminal Procedural Law suspends the duty to file for insolvency until 30 September 2020, respectively until 31 March 2021 under certain circumstances, if the insolvency is based on the effects of the covid-19 pandemic and if it can be reasonably expected that a temporary inability to pay will be overcome;
- misrepresentation offences (e.g., Section 399 of the Stock Companies Act or Section 82 of the Limited Liability Company Act);
- breach of fiduciary trust (Section 26, StG);
- commercial bribery (Sections 299 and 300, StG);
- public bribery (Section 331 et seq., StG);
- tax fraud (Section 370, AO); and
- illegal gambling (Section 284, StG) (see also Section VIII.ii).17
Beyond the (general) legal framework set out above, the DOSB has passed the DOSB Good Governance Codex, the DOSB Code of Ethics and the DOSB Code of Conduct for Integrity in Federation Work.18 The DOSB Good Governance Codex contains binding rules on issues such as conflicts of interest and transparency, and is applicable to the DOSB organs.19 Compliance is supervised by the Good Governance Commissioner, who draws up an annual good governance report that is published on the DOSB website. The DOSB Code of Ethics claims to define the overall conduct and dealings within German sport and towards third parties. It is binding for volunteers, employees and members of the DOSB.20 Finally, the DOSB Code of Conduct for Integrity in Federation Work contains guidelines for the conduct of DOSB employees and volunteers in business dealings, including provisions on gifts, invitations, donations or the handling of public subsidies.
iii Corporate liability
Associations are legally represented by their boards. If a board member, while acting for an association, causes damage to a third party, the association is liable for that damage according to Section 31 of the BGB.21 This liability towards third parties cannot be ruled out in the statutes of an association.22 Moreover, the Federal Supreme Court of Justice (BGH) has extended the liability of associations to acts committed by managers and officials who are not board members (or who are not authorised to act on behalf of an association) as long as they had a meaningful and independent role within an association.23
The liability of an association does not supersede the liability of an individual committing an act that causes damage:24 the association and the individual will be jointly liable for that damage.25 According to the general rules of German contract and tort law, such an individual will be liable, inter alia, with regard to the failure to pay social security contributions or to file for the opening of insolvency proceedings in a timely manner.26 Considering the far-reaching possibilities for individual liability within the sport association context, managers and officials should consider taking out directors and officers liability (D&O) insurance.27
The dispute resolution system
i Access to courts
As in many other legal systems, under German law, sports governing bodies are prohibited from preventing an athlete, club or other sports stakeholder from challenging a decision by a sports governing body before a state court or arbitral tribunal.28 However, the rules and regulations of a sports governing body may prevent direct appeals against first instance decisions before a state court or arbitral tribunal if the sports governing body has an internal appeals body that may rectify the first instance decision. In practice, internal challenges against first instance decisions by sport organisations are hugely important, not least because of the enormous number of first instance decisions produced by sports governing bodies each year.29
As a result of this, an athlete or club intending to appeal a decision by a sports governing body before a state court or arbitral tribunal must in general exhaust all (internal) legal remedies available to it prior to the appeal. Sports governing bodies are allowed to set reasonable time limits regarding an internal appeal that, if not observed by the appellant, may lead to the appealed decision becoming final and binding.30 Only in rare circumstances may internal remedies be disregarded if an internal appeal would be unreasonable or a mere formality. This would be the case if the appeals body of a sports governing body declares that it will dismiss the appeal before the appeal proceedings have even started, if the appellant's right to be heard is violated or if the appeal body is constituted in an improper way.31
Once all (internal) legal remedies are exhausted, the question of whether a decision can be appealed before a state court depends on whether the parties have concluded a valid arbitration agreement. If an arbitration agreement does not exist or is invalid, or if a dispute is not arbitrable, an appeal may be brought before a state court.32
The scope of review conducted by a state court will typically encompass the following aspects:33
- Was the athlete, club or other sports stakeholder covered by the scope of the governing body's jurisdiction and sanctioning regime?
- Was there a sufficient legal basis for the decision contained in the rules and regulations of the sports governing body?34
- Were the procedural rules of the sports governing body respected?
- Were fundamental procedural rights observed?
- Was the decision legal in view of higher-ranking legal principles?
- Did the decision-making body establish accurately the facts that form the basis of the decision?
- Was the decision legal in the sense that it was neither arbitrary nor unjust?
If the sports governing body in question can be considered a monopoly, the court will also assess whether the rules and regulations of the sports governing body itself are substantively adequate.35
Typical requests for relief brought before a state court include:
- annulment of a disciplinary sanction;
- annulment of a sporting result;
- admission of an athlete or club into an association; and
- (preliminary) admission of an athlete into a competition36,37
ii Sports arbitration
The legal framework applicable to arbitration proceedings conducted in Germany is set out in Section 1025 et seq. of the Code of Civil Procedure (ZPO).
Section 1031 of the ZPO provides that the parties need to agree to arbitration in writing, either in a document signed by both parties or by making reference in a contract to a document containing an arbitration clause.38 The arbitration agreement must be sufficiently clear as to the scope of disputes that shall be submitted to arbitration.
An arbitration clause may also be contained in the statutes of an association.39 One of the issues in this regard is that the arbitration agreement contained in the statutes of an association is usually not entered into voluntarily by the athletes or clubs affected by it. The argument was raised in the fiercely debated case of German speed skater Claudia Pechstein, who was seeking damages before a German state court against the International Skating Union (ISU) after she had been banned for doping by the governing body and had lost subsequent proceedings before the Court of Arbitration for Sport (CAS) in Lausanne and the Swiss Federal Tribunal. In 2016, the BGH confirmed that, in sports matters, the need for international uniformity of decisions trumps the requirement for a 'voluntary' arbitration agreement.40
Sports disputes are arbitrable, according to Section 1030 of the ZPO, as long as they concern pecuniary matters.41 Labour law-related disputes, for instance between a player and his or her club, are generally not arbitrable under German law.42 Because the relationship between athletes in non-team sports and sports governing bodies rarely qualifies as an employment relationship, disputes between athletes and sports governing bodies are usually arbitrable.
A sports governing body is generally prohibited from excluding the right of an athlete or club to (also) seek preliminary measures before a state court.43 Only in those cases where the arbitral tribunal can provide the same degree of legal protection (with regard to preliminary measures) as a state court may the arbitral rules prohibit resort to a state court for preliminary measures. This is the case, for instance, with regard to the German Court of Arbitration for Sport (DIS-Sport), a division of the German Institution for Arbitration (DIS), which has a roster of arbitrators on call any day of the week.44
The DIS-Sport,45 which is the most important sports arbitral tribunal in Germany, was founded in 2008. It is based on a joint initiative of the German National Anti-Doping Agency (NADA) and the DIS. Disputes before the DIS-Sport include:
- breaches of anti-doping rules;
- disputes arising in the context of sports events;
- transfer disputes;
- disputes regarding licensing and sponsoring agreements; and
- membership disputes.
The DIS-Sport may decide cases as a first instance tribunal or on appeal against a previous decision by a sports governing body, provided that the association has implemented a corresponding arbitration clause in its statutes.46 In disputes regarding a breach of anti-doping rules, the DIS-Sport Arbitration Rules provide for a review of an arbitral award by the CAS.
An arbitral award has the same effect as a final and binding judgment by a state court, and enforcement requires the arbitral award to be declared enforceable by a state court.47 The recognition and enforcement of foreign arbitral awards is governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Note that disciplinary (doping) decisions of an arbitral tribunal are generally 'self-enforcing', in that the sports governing body has the power to ensure that banned athletes are prevented from competing.
Arbitral awards may be challenged by means of an annulment claim.48 The reasons for annulment according to Section 1059 of the ZPO are limited primarily to procedural issues. An appeal that the award is 'wrong' will not be heard.
Organisation of sports events
i Relationship between organiser and spectator
The legal relationship between an organiser and a spectator is not subject to any sport-specific national laws, but rather to the law of the land, and is primarily defined by the ticketing contract concluded between the parties.49 Apart from the general rights and obligations of the parties (the ticket holder being entitled to enter the venue and to follow the sports event from his or her assigned seat; the event organiser being entitled to receive the purchase price for the ticket), the ticketing contract will contain certain terms and conditions. The exact content of the terms and conditions will depend on the type of ticket that is purchased (e.g., match-day or season ticket), but will usually include limitations on ticket transfers, liability and security, as well as filming and photography.
To validly include the organiser's terms and conditions in the ticketing contract, they must be brought to the attention of the purchaser before the ticket is bought.50 Thus, printing the terms and conditions on the back of the ticket does not suffice if the ticket is handed out to the purchaser only after the ticketing contract is concluded. As a rule, a clearly visible notice about the terms and conditions at the place of purchase is required, or if the ticket is purchased online, the customer must agree to the terms and conditions prior to making the purchase.51
For security reasons, to ensure a widespread supply of tickets, and to prevent black-market trading and ticket speculations, organisers will regularly include a clause in the ticketing terms and conditions that allows ticket purchases for private use only.52
Regarding liability, the organiser will usually include a clause in the ticketing terms and conditions that will limit its liability, and that of its legal representatives or agents, to damage caused by intent or gross negligence.53 However, damage to life, physical integrity or health, and damage under product liability law or owing to fraudulent misrepresentation, will remain unaffected. Furthermore, the spectator will usually be prohibited from bringing fireworks, bottles, cans, intoxicants or pets into the stadium.54
Finally, the organiser will also stipulate in the ticketing terms and conditions that the use of cameras and other picture and film recording devices (e.g., smartphones) for commercial purposes is prohibited. At the same time, a spectator will consent to the free use of his or her image and voice in any type of media (e.g., for photographs, live broadcasts or other recordings by the organiser (or its agent) created in connection with the event).
If a sports event is cancelled and the organiser is unable to provide its service, generally it can no longer demand payment (see Sections 275 and 326 BGB). The obligation to reimburse the ticket holder cannot be excluded in the ticketing terms and conditions, at least not if the ticket holder is a consumer.55 If the event is postponed to a later date, tickets usually remain valid, while the ticket holder may have a right to withdraw from the ticket contract. On 20 May 2020, the Act to Mitigate the Consequences of the Covid-19 Pandemic in Event Contract Law came into force, according to which organisers of sports events can now issue vouchers for covid-19-related cancellations instead of reimbursing ticket holders. Vouchers shall be valid until the end of 2021. If not redeemed by the ticket holder in the meantime, the organiser must pay a refund. If accepting a voucher would be unreasonable for the ticket holder due to personal reasons, the latter can demand a refund instead.56
ii Relationship between organiser and athletes or clubs
In Germany, the legal relationship between an organiser and an athlete or club is not subject to any sport-specific national laws. It can either be defined by membership (if the organiser is an association of which the athlete or club is a direct member) or through a licence or another private agreement between the parties.
Because professional athletes or clubs are often not direct members of the organiser (if indirect members, a mere reference to the rules and regulations of a higher ranking governing body can be problematic),57 the athlete or club must submit to the rules and regulations of the organiser either by applying for and receiving a licence to participate in a certain competition or by concluding a participation agreement with the organiser.58 The BGH has decided that Section 305 et seq. of the BGB (which regulates the inclusion of terms and conditions into private agreements) do not apply to agreements by which an athlete submits to the rules and regulations of a sports association.59 It is sufficient that the applicable rules and regulations are provided to the athlete upon request.60
As an example, German Olympic athletes had to sign the DOSB Athletes Agreement61 ahead of the 2016 Rio Olympic Games, as well as the International Olympic Committee entry form, and eligibility conditions that, inter alia, also contained an arbitration agreement in favour of CAS.
Professional clubs usually submit to the regulations and the disciplinary powers of a sports governing body (e.g., a league) by concluding a licensing agreement with the governing body. Typical licensing criteria will include sporting, legal, personnel and administrative, infrastructure and security, and media and financial aspects.62
iii Liability of the organiser
An organiser may be liable not only towards its contractual partners (including athletes and spectators) but also towards third parties under the general rules of German civil law. The relevant statutory provisions, the application of which may be influenced by disclaimers contained in athlete agreements, ticketing terms and conditions or other types of agreements, relate to, inter alia,63 Section 280 et seq. of the BGB (damages for breach of contract) and Section 823 et seq. of the BGB (damages for unlawful conduct).64
Besides claiming damages (which are generally restricted to compensation without the possibility of claiming punitive damages),65 an injured person may also seek injunctive relief against a continued violation of his or her rights.66
The most relevant criminal provisions applicable to organisers are set forth in the StGB and include Section 223 et seq. (causing bodily harm); Section 229 (involuntary or negligent bodily harm); Section 212 (manslaughter); and Section 222 (involuntary or negligent manslaughter).67 The criminal offences set forth in Sections 223 and 229 usually require a complaint by the victim for a prosecution to be initiated. However, the prosecution service may also initiate an investigation ex officio when there is sufficient public interest in the prosecution.
iv Liability of the athletes
The explanations and provisions set out in Section III.iii regarding the liability of the organiser also apply with regard to the liability of athletes, particularly Section 823(1) of the BGB (or Section 280 in the context of a contractual agreement) and Sections 223 and 229 of the StGB. From a civil and criminal law perspective, athletes must respect a general duty of care when practising their sport, be it in a competition or in training.
A definition of the duty of care to be observed in an individual case will be based on the rules of the game of the respective sport.68 Courts will use the rules of the game as a foundation when assessing whether a certain conduct was illegal and culpable. If an athlete complies with the rules of his or her sport but nevertheless injures another athlete, the athlete will usually not be liable for any damage caused. In addition, in cases of only a slight violation of the rules of the game, liability will most often be denied. Courts will assess whether, in that particular moment, the athlete could have reasonably avoided the danger created for another athlete or third party. With regard to high-risk sports, including boxing and other combat sports, liability is regularly denied not only in cases of compliance with the rules of the game but even in cases of slight negligence.69 This far-reaching exemption from liability is justified by the fact that the injured person in general agrees to the dangers and injuries inherent in that particular sport, or that the injured person acted at his or her own risk.70
If an athlete is liable and has to pay compensation, he or she must restore the position that would have existed if the circumstance obliging him or her to pay damages had not occurred.71 This may include lost earnings and a moderate compensation for non-material damage (i.e., pain and suffering). When allocating the amount of compensation, any contributory negligence of the injured person will be taken into account.
v Liability of the spectators
The relevant statutory provisions concerning the liability of spectators can be found in Section 823(1) of the BGB (or in Section 280 if the spectator violates obligations under the ticketing contract), and Sections 223 and 229 of the StGB. If spectators invade the field of play, throw objects at athletes or physically assault athletes, they are generally liable and will have to pay compensation for damage caused according to Section 280 or 823(1) of the BGB, or both. A spectator cannot rely on the specific nature of sport in arguing that his or her conduct was not illegal or culpable, because spectators must behave in a way that does not increase risks for athletes in addition to those inherent in the sport itself.72 The liability of spectators also extends to violations of property rights, personality rights and other rights protected under Section 823(1) of the BGB.
If a particular perpetrator cannot be identified from a specific group of spectators, Section 830(1) of the BGB provides that each of the persons involved will be liable for the damage caused.73 A form of joint liability can even be found in criminal law, in Section 231 of the StGB, which allows punishment of a person for taking part in a brawl, for or an attack committed against one person by more than one person if the death of a person or his or her grievous bodily harm (Section 226, StGB) is caused by that brawl or attack. Violations of Section 231 of the StGB will be prosecuted ex officio.
vi Riot prevention
German law does not provide for any sport-specific national laws to prevent riots. The topic is generally dealt with under German public law, in particular, police law. In this context, in 2016, ahead of a Bundesliga match between rival clubs SV Darmstadt 98 and Eintracht Frankfurt, an order by the public authorities in Darmstadt, which banned fans of the opposing team from entering certain parts of the city on match day, was annulled by the public court in Darmstadt for being too vague and disproportionate.74
The debate75 about whether professional football clubs or the football league should be held liable for the costs of police operations in connection with Bundesliga games was settled in March 2019 by the Federal Administrative Court (BVerwG), which confirmed the legality of a new state law of Bremen76, according to which costs for police operations can be claimed from the person or entity (e.g., an event organiser) in whose interest the operation took place.77 The costs must be reasonable and cannot be charged to the event organiser and individual perpetrators (e.g., rioting fans) at the same time.
In football, the rules and regulations of the DFB show a twofold approach: the DFB obliges Bundesliga clubs to employ fan commissioners78 and subsidises several fan projects. On the other hand, Section 9(a) of the DFB Legal and Procedural Rules provides for the strict liability of clubs for the behaviour of their supporters and spectators.79 The rules go as far as to provide that both the home club and the away club are responsible for incidents of any kind in the stadium area before, during and after the game.
In June 2020, a much-debated legal dispute between the club SV Waldhof Mannheim 07 and the DFB was settled amicably, after in 2019 the Regional Court of Frankfurt (LG Frankfurt aM) had declared a sanction against the club for the use of pyrotechnics by fans unlawful.80 The first instance had found that the DFB was not entitled to deduct three points from the club owing to the behaviour of fans during two relegation matches in the previous season. The deduction of points would have violated the principle of fair play, because it had an effect on the entire next season without direct connection to the incidents during the relegation matches in the previous season. Also, the interests of the players would not have been taken into account sufficiently by the judicial bodies of the association. After the appeal instance later pointed out that the point deduction indeed might have been lawful in light of the autonomy of association, the parties settled the dispute amicably.81
Under German law, clubs that are subject to a financial sanction on the basis of Section 9(a) of the DFB Disciplinary Code because of rioting spectators are able to take recourse against those spectators. The BGH held that spectators have a legal obligation not to interfere in the course of a sporting event. If, for example, a spectator violates that obligation by throwing a firecracker into the stands and injuring several people, that spectator is liable for the damage caused, including a foreseeable financial sanction imposed on the responsible club pursuant to the applicable disciplinary regulations.82 It must clearly be proven that a spectator is guilty of the alleged misconduct; more precisely, the club cannot take recourse against a spectator if it is not entirely clear that the spectator committed the offence in question.83
Finally, the DFB also provides Guidelines for the Consistent Application of Stadium Bans.84 In this regard, the Federal Constitutional Court has confirmed that a club may impose a nationwide stadium ban against a rioting spectator on the basis of objective facts, if there is a risk that the person in question may engage in misconduct again in the future.85
Commercialisation of sports events
i Types of and ownership in rights
German law does not recognise a specific sports organiser right per se.86 It also does not recognise genuine broadcasting, sponsorship or merchandising rights. The question of whether, in what form and to what extent such rights exist, and to whom they belong, let alone how they might be transferred, is extremely difficult to answer. In the end, an organiser will have to rely on several different laws and rights to protect its event and investments.
Of central importance is the 'house right' set forth in Sections 858 and 903 BGB.87 Usually, the organiser of a sporting event is able to exercise the house right regarding the venue where the event is held, either because it owns the venue (e.g., a stadium or an arena) or because the venue owner has transferred the house right to the organiser for the time of the event. The house right allows the organiser to exclude unauthorised persons or media from the venue or to allow entry subject to specific contractual conditions. Other important rights derive from copyright law, competition law, trademark law and tort law.
With regard to transfer rights in team sports, these mainly derive from an existing employment relationship between a player and his or her club, and the protection of this contractual relationship under the law and relevant regulations of sports governing bodies.88
ii Rights protection
The difficulty of the protection of rights of a sports organiser under German law can be explained using the example of broadcasting rights.89 In view of the absence of a genuine broadcasting right, the protection thereof derives from the house right, as well as copyright law, competition law and tort law principles.
As has been mentioned, this right allows the organiser to regulate access to a venue in relation to spectators and third parties (including radio and television broadcasters).90 In a broadcasting deal, the organiser will waive its house right in relation to the broadcaster for the latter to produce a live feed from the sporting event in return for a fee paid by the broadcaster to the organiser. However, property rights cannot sufficiently prevent unauthorised filming of a sporting event from outside the venue (e.g., a high building next to the stadium or a drone).
Sporting events under German law are generally not protected by copyright law because they are not considered personal intellectual creations (Section 2(2) of the Copyright Act (UrhG)). In addition, organisers and athletes are not protected by copyright law (Sections 73 and 81 of the UrhG are not applicable). Athletes are not considered theatrical performers. Rarely are they protected by the right to control their own image, because they are public figures in the sense of Sections 22 and 23 of the Art Copyright Act. Section 94 of the UrhG protects at least the (host) broadcaster once it delivers or has delivered the pictures of a sporting event.91 Section 87(1) of the UrhG protects the television channel that is airing the broadcast.92
The Act against Unfair Competition (UWG) prohibits certain trade practices that are considered unfair, such as exploiting or taking credit for somebody else's work. The BGH has considered that Section 3 of the UWG could prevent third parties from unauthorised filming and broadcasting of a sporting event.93
It has also been suggested that the organiser of a sporting event who has made a considerable investment to hold a sporting event, or an athlete who has invested a lot in training, enjoy protection under Section 823(1) of the BGB against the unpaid exploitation of their investment.94
iii Contractual provisions for exploitation of rights
Contracts in the field of sports rights are manifold. It is indispensable for a sports rights holder to stipulate the rights that are transferred to a licensee diligently. At the same time, it is essential also to properly structure and manage all rights contracts to avoid conflicting rights deals and tap the full commercial potential of the rights holder.
As to the content of sports rights contracts, parties are generally free to agree upon the relevant rights and obligations. Limits to the parties' contractual freedom are merely provided by certain legal prohibitions (Section 134, BGB) or public policy (Section 138, BGB).
Taking broadcasting as an example, the main obligation of an organiser will be to grant complete access to the venue to the broadcaster for all contractual purposes. In return, the licensee (i.e., the broadcaster) will pay a licensing fee. Other relevant items in a broadcasting agreement will deal, inter alia, with:
- duty to broadcast;
- contract duration and termination; and
- warranty and indemnification.95
Statutory provisions that need to be observed in sports broadcasting contracts include those of German and European antitrust law, especially Article 101 of the Treaty on the Functioning of the European Union (TFEU). In today's converged media landscape, broadcasting rights and other media rights will usually be split up into different rights packages to meet antitrust obligations.96 Other relevant norms include the right to produce short news extracts97 in Section 5 of the Interstate Broadcasting Treaty or Section 4 thereof regarding 'listed events'.98
Professional sports and labour law
i Mandatory provisions
Employment relationships in sport are subject to the general rules of German labour law, including the following noteworthy provisions.
Section 611 of the BGB, Articles 1 and 2 of the Basic Law (GG)
An employed athlete has a right to play and train according to the terms of his or her employment contract. Degradation of a first-team player to the reserves or to a separate training group is most likely unlawful unless provided otherwise in the contract.99
Section 615, sentence 3 BGB
According to the business-risk rule, unexpected external events leading to a temporary inability to perform the employment contract as intended usually fall within the responsibility of the employer and do not provide for a compelling reason not to pay an employee.
During the covid-19 pandemic employers had the option of ordering their employees to perform 'short-time' work (Kurzarbeit), subject to certain conditions and approval by the Federal Employment Agency (Bundesagentur für Arbeit). The short-time work scheme allows employers to reduce the work time of their employees by up to 100 per cent. Accordingly, the employer can also reduce the employee's salary by up to 100 per cent. In that case, the employee is entitled to short-time work compensation of up to 67 per cent of his or her lost net salary to be paid by the Federal Employment Agency, which also pays the full social security contributions for the employee. Short-time work compensation is capped in the sense that only salary of up to €6,900 gross per month (in East Germany, €6,450) is taken into account. The net pay-out amount will depend on the employee's tax class and family maintenance obligations, if any. Voluntarily, the employer can pay an additional allowance on top of the short-time work compensation. In principle, the rules on short-time work are also applicable to professional player contracts.100
Section 616 of the BGB
An employed athlete can claim his or her salary although temporarily unfit to play because of injury. Details are set out in the Continued Remuneration Act.
Section 1 of the Federal Holiday Act
An employed athlete has a right to at least 24 business days of paid leave during the calendar year.101
Section 14 et seq. of the Act on Part-Time Work and Fixed-Term Employment Contracts (TzBfG)
Fixed-term contracts are only permissible if justified by an objective reason; otherwise, fixed-term contracts are only acceptable for up to two years. Moreover, a fixed-term contract may not be renewed more than three times. Athletes' and coaches' contracts can be for a fixed term because of the specificities of sport, including the necessity for clubs to restructure a team after each season.102 Accordingly, a controversial decision by the Labour Court of Mainz that a 36-year-old goalkeeper should be reinstated permanently with his former club, after the Court had found that the specificity of sport was insufficient to justify the fixed-term contract with the player, was overturned on appeal in 2016 and confirmed by the Federal Labour Court in 2018.103 The same reasoning does not apply to the employment of a sports director, whose tasks are substantially different from those of players and coaches, and where the necessity to replace the employee on a more regular basis is limited.104
Section 15 of the TzBfG
Under German law, (justified) fixed-term contracts are valid for a duration of up to five years.105 This also applies to fixed-term contracts with unilateral extension options, which are generally legal under German law. While a labour court in Ulm held in 2008 that a unilateral extension option in a player contract was invalid because it would constitute an excessive commitment for the player,106 the Federal Labour Court in 2013 held that a youth player's four-year fixed-term contract with a one-year unilateral extension option was valid under German law.107
Section 626 of the BGB
A party to an employment contract (permanent or fixed-term) may terminate said contract unilaterally (without a required notice period) if there is a compelling reason, meaning that the party terminating the contract cannot reasonably be expected to continue the employment relationship.
Tax and social security law provisions
The employer is obliged to withhold and pay income tax and social security contributions for his or her employees.
ii Free movement of athletes
After the Bosman decision of 1995,108 and in light of the freedom of movement for workers stipulated in Article 45 of the TFEU, German football has abandoned rules that used to limit the number of foreign EU players able to appear in Bundesliga matches. Since then, foreign EU players as well as players from other UEFA member associations can be transferred and fielded without limitation. However, Section 5 No. 4 of the Bundesliga Club Licensing Regulations requires that clubs have at least 12 German nationals on the squad. Because the overall squad size is not limited, the rule appears to comply with Article 45 of the TFEU.109 Moreover, Section 5(b) of the Player Licensing Regulations obliges Bundesliga clubs to have eight locally trained players110 on their squad, of which four must be directly trained by the respective club. Because the local player rule fosters youth development and applies irrespective of the nationality of locally trained players, it is also deemed compatible with European law.111
Other German league sports, including basketball and handball, have also dropped foreign player rules, while the clubs of the professional ice hockey league, DEL, have agreed not to register more than nine foreign players per season. The German Basketball League has introduced a domestic player rule that every team needs to have at least six German players on its squad.112
iii Application of employment rules of sports governing bodies
German law generally allows that employment-related provisions in the statutes or regulations of (international) sports governing bodies be incorporated into employment agreements with athletes.
In football player contracts, for instance, the parties will make reference to the statutes, rules and regulations of the DFB, and will accept to submit to the decisions and the jurisdiction of the DFB and the league. Furthermore, players are also asked to acknowledge as binding the anti-doping regulations issued by the DFB, UEFA and FIFA as well as the World Anti-Doping Agency and NADA Codes.
It should be noted that in those sports in which a player must obtain a playing licence to participate in league competition, the revocation of said licence does not per se affect the validity of the employment contract.113 Similarly, a club's ban from participation in a UEFA club competition for violation of the UEFA Financial Fair Play Regulations will most likely not entitle a player to terminate the employment relationship with the club prematurely.114
Sports and antitrust law
Besides the relevance of antitrust law regarding broadcasting rights (see Section IV.iii), antitrust law plays an increasingly important role in sport in general.115
The purpose of German and European antitrust law is to protect competition against market restrictions caused by undertakings or associations of undertakings (including sports governing bodies). It does so by prohibiting the abuse of a dominant market position (Section 18 et seq., Competition Act; Article 102, TFEU) and prohibiting restrictive behaviour between undertakings (Section 1, Competition Act; Article 101, TFEU). Infringements of antitrust laws can lead to fines and compensation claims. In addition, the Federal Cartel Office or the European Commission may prohibit the conclusion of a respective agreement altogether. Finally, agreements or statutes infringing antitrust law are also invalid according to Article 101(2) of the TFEU and Section 134 of the BGB.116
The Higher Regional Court of Frankfurt (OLG Frankfurt) confirmed again in 2016 that the conduct of sports governing bodies falls within the scope of Article 101(1) of the TFEU if it does relate to an economic activity and not merely to the practice of sport. If such conduct has a restrictive effect in a specific market, the question is whether it is necessary and proportionate, and, in particular, whether it is appropriate for the purpose of protecting the integrity and functioning of the respective sporting competition.117
In the much-debated decision of the Higher Regional Court of Munich (OLG Munich) in the Pechstein case,118 the judges had held that the arbitration agreement between Pechstein and the International Skating Union (ISU) was invalid because the ISU – having a monopoly on the market for speed skating competitions – had abused its market power by requiring the athlete to consent to an arbitration agreement in favour of the CAS, because the latter operated on a closed list of arbitrators appointed by the International Council of Arbitration for Sport (ICAS), a body dominated by representatives of sports associations.119 In 2016, the decision was ultimately overturned by the BGH, which found that the CAS was a 'genuine' court of arbitration and that the CAS Code contained sufficient guarantees for preserving the rights of athletes even if arbitrators had to be selected by the parties from a closed list prepared by the ICAS.120 According to the BGH, the influence of sports federations did not reach a degree that the federations had a controlling influence over the composition of the list of arbitrators.121
Antitrust law has been applied increasingly in sports disputes in Germany, including a case between handball clubs and the International Handball Federation and the German Handball Federation regarding player release rules, or the dispute between basketball clubs and the International Basketball Federation (FIBA) and FIBA Europe regarding sanctions in connection with the participation of clubs in the Euroleague.122 In 2017, the Regional Court of Düsseldorf (LG Düsseldorf) found that sanctions imposed against two amateur bridge players by the World Bridge Federation and the German Bridge Federation were invalid because they violated German antitrust law.123 On appeal, OLG Düsseldorf upheld the ruling on the invalidity of the sanction but refrained from assessing the case based on antitrust law, circumventing the question of whether antitrust law was applicable in a case of amateur players.124
In 2017, the German Federal Cartel Office launched an administrative proceeding for the suspected abuse of a dominant position against the IOC and the DOSB regarding the application of Rule 40 No. 3 of the Olympic Charter, according to which no athlete participating in the Olympic Games may allow his or her person, name, image or sports performance to be used for advertising purposes during the Games or for several days before and after the Games. In 2019, the Federal Cartel Office announced that an opening of advertising opportunities for German athletes and their sponsors during the Olympic Games had been agreed with the IOC and the DOSB and that new guidelines would take priority over the IOC rules with regard to German athletes.125
Sports and taxation
Athletes residing in Germany (Section 8, AO) and those who have a usual residence in Germany (i.e., more than six months in the year, with short-term interruptions not being considered) (Section 9, AO) are subject to pay income tax according to Section 1(1) of the Income Tax Code (EStG). The different categories of income mentioned in Section 2(1) and Sections 13 to 24 of the EStG are divided into different sources, including:
- commercial income (Section 15);
- self-employed income (Section 18);
- income from employment (Section 19); and
- other income (Section 22).
The taxable income from each of the above-mentioned sources is subject to different rules that will determine when, how and to what extent income tax is to be paid.126
Athletes residing in Germany and those who have a usual residence in Germany are subject to tax on their worldwide income. Double taxation of income earned abroad (e.g., by taking part in a competition in a foreign country) that is also subject to tax in the respective country is usually avoided on the basis of Section 34(c) of the EStG or a double taxation treaty.127
The taxation of sports governing bodies and sports clubs depends on their legal status and form (i.e., whether they are organised as registered, non-profit associations or as commercial companies).128
Foreign athletes and clubs who do not reside in Germany are subject to tax only with regard to income that has a special domestic connection to Germany (Section 49, EStG). In this context, entities making payments to foreign athletes or clubs may have to withhold tax according to Sections 50 and 50(a) of the EStG.129
Due to the covid-19 pandemic, several tax relief measures have been introduced. Value added tax is reduced from 19 per cent to 16 per cent (and from 7 per cent to 5 per cent respectively) for six months as of 1 July 2020. Also, if a business cannot afford to pay taxes due in 2020 because of the covid-19 pandemic, it can apply for a temporary, interest-free deferral of said payment. Applications can be filed until 31 December 2020. In addition, companies can request adjustments to their tax prepayments to boost liquidity. As soon as it becomes clear that this year's income will be lower than expected prior to the covid-19 pandemic, tax prepayments will be reduced and already paid prepayments can be refunded.130
Specific sports issues
Until recently, Germany did not have any specific anti-doping criminal laws, with the exception of Sections 6(a) and 95 of the Medicinal Products Act, which prohibit the distribution, prescription or administering of medicinal products to others for the purpose of doping, and the purchase or possession of doping substances in quantities above a certain amount. Other criminal laws that apply to situations involving doping include Section 212 of the StGB (manslaughter), Sections 223 and 229 of the StGB (causing bodily harm, negligent bodily harm), Section 263 of the StGB (fraud) and Section 29 of the Narcotics Act (illegal handling of narcotics).
Because the above-mentioned legal framework supposedly failed to tackle the issue of doping in sport properly (mainly because the undertaking of doping as such was not subject to criminal liability), Germany implemented a new Anti-Doping Act (AntiDopG) in 2016.131 The law, which consolidates provisions from different codifications, provides for prison terms for elite athletes (amateur athletes will not be affected),132 coaches, officials and doctors who are caught, inter alia, using, administering or being in possession of doping substances.133 Culprits could be imprisoned for up to three years. An offender who endangers a large number of people or who exposes someone to the risk of serious injury or death may face a prison term of up to 10 years.134
The new law was heavily criticised by legal scholars, athletes and anti-doping experts alike.135 Nevertheless, in 2017, the BGH confirmed a prison sentence of one year based on the new AntiDopG imposed against a bodybuilder for the unlawful possession of doping substances.136 Recent discussions have dealt with the question of whether the AntiDopG should be amended to include more comprehensive whistle-blower protection regulations.137
According to Section 284 of the StGB, providing unlicensed gambling and betting services is a criminal offence in Germany that can be sanctioned with a prison sentence of up to five years. Section 285 of the StGB provides that a person participating in unlicensed gambling shall be liable to imprisonment for up to six months or a fine.138
In the past, Germany had implemented a state monopoly on gambling through the Interstate Treaty on Gambling. However, in 2010, the Court of Justice of the European Union (CJEU) decided that this state monopoly on gambling violated European law and thus needed to be reformed.139 The shortcomings of the existing system should have been resolved by the First Amendment to the Interstate Treaty on Gambling in 2012, which abolished the old state monopoly and replaced it with a new licensing system for private gambling and betting providers. Licences should have been granted to a maximum of 20 private gambling and betting providers for an experimental phase of seven years.140 Under the amended Treaty, online gambling remained illegal in Germany.141 At the same time, in 2015, the Higher Administrative Court of Hessen (VGH Kassel) decided that the new licensing system was unlawful for being non-transparent and undemocratic.142 In February 2016, the CJEU ruled that a sports betting operator in Germany could not be charged under Section 284 StGB for providing customers with the opportunity to use a betting machine or computer offering bets by an Austrian betting provider without a German betting licence.143 In April 2016, a local administrative court in Hessen decided that there was no justification for the limitation to merely 20 licences, ordering that a sports betting provider should be granted a licence irrespective of the fact that 20 licensees had already been selected at the time.144 In May 2017, the VGH Kassel decided that the state was not entitled to crack down on a Maltese sports betting provider for not having obtained a licence in Germany. On the contrary, the Court held that the Maltese company was allowed to offer its services in the state without having a German licence.145
On 1 January 2020, a new amendment to the Interstate Treaty on Gambling entered into force, by which the maximum of 20 sports betting licences was abolished. Sports betting providers that fulfil the minimum requirements under the treaty are now able to apply for a licence with the Regional Council (Regierungspräsidium) Darmstadt.146 Currently, licences are granted until 30 June 2021. Thereafter, a new Interstate Treaty on Gambling shall enter into force once the notification procedure with the EU Commission147 has been concluded and the Treaty has been ratified by the states.
In the past, German law did not provide for a sport-specific criminal provision outlawing match-fixing. It was punished under Section 263 of the StGB, which deals with fraud, according to which a person committing fraud shall be liable to imprisonment for up to 10 years.148
Section 263 of the StGB was applied in the famous Hoyzer case in 2005, relating to the German referee Robert Hoyzer, who confessed to fixing and betting on matches in the second Bundesliga, the DFB Cup (DFB Pokal) and the Regional League.149 The arguments used by the BGH in the Hoyzer case have been applied and developed further in subsequent match-fixing cases.150
However, the previous legal framework did not address match-fixing if it was not related to betting (e.g., for sporting purposes only).151 This is why, after signing the Council of Europe Convention on the Manipulation of Sports Competitions,152 the German government implemented two new draft criminal provisions in 2017, specifically dealing with the manipulation of sports competitions. Section 265c of the StGB defines sports betting fraud as an agreement to manipulate a sporting competition on which bets have been placed. Section 265(d) of the StGB applies to the manipulation of 'high-class' professional sporting competitions, even if a connection to betting cannot be established. Both criminal provisions stipulate a prison sentence of up to three years or, in very serious cases, of up to five years.153
iv Grey market sales
As mentioned in Section III.i, ticketing terms and conditions will usually contain a clause that allows a ticket purchase for private use only. As a result, the purchase of tickets for the purpose of commercial resale (i.e., with profit) is prohibited unless there is prior consent by the organiser.154 Likewise, organisers tend to prohibit the unauthorised commercial use of tickets for advertisement purposes, as giveaways or as a part of hospitality or travel packages. If the organiser establishes that a purchase or resale of tickets occurred for commercial purposes without the consent of the organiser, it may refuse the ticket holder entry to the sporting venue and may even claim a contractual penalty.155
At the same time, sports governing bodies and clubs have created a secondary ticket market to allow ticket holders to transfer tickets they no longer need. OLG Hamburg decided in 2018 that clubs have to make sure that their justification to restrict ticket transfers (e.g., security reasons; guaranteeing a widespread supply of tickets; preserving a socially balanced pricing structure) must not be undermined by the clubs' intention to earn money on the secondary ticket market by participating in the sale of tickets far above face value.156
The year in review
Never before has sport experienced such a far-reaching disruption as in recent months. The covid-19 pandemic has not only led to the suspension and postponement of the most important sporting competitions on the globe (including the Olympic and Paralympic Games in Tokyo 2020, the UEFA EURO 2020 or national and international sports leagues), it has also brought all amateur and recreational sport in Germany and elsewhere virtually to a standstill.
The last few months have shown that the legal issues associated with the crisis for sport could hardly be more diverse. To list them here from A to Z would go beyond the scope and structure of this publication.157
In general, practitioners were confronted with many new challenging issues, from dealing with the Infection Protection Act (IfSG), to new laws meant to combat the effects of the covid-19 pandemic; or required a more in-depth examination of common contract law principles such as the impossibility of performance (Section 275 BGB) or the frustration of purpose (Section 313 BGB). In addition to the question, as to which party had to bear the economic consequences of the pandemic within a legal relationship, sport also and in particular had to deal with the regulatory implications of the crisis on the organisation of sport.
To date, German sport has dealt with the challenges of the pandemic comparably well and has attracted attention in particular due to a comprehensive hygiene concept of the Bundesliga, which allowed the German football league to finish the 2019/2020 season earlier than others did. The Bundesliga thus became a model for many other competitions around the globe. At the same time, short- and long-term implications of the covid-19 pandemic have yet to become fully transparent and it remains yet to be seen how the lesser prominent sports (all apart from football) will fair through the ongoing crises.
Outlook and conclusions
In light of the foregoing, the coming year will undoubtedly be another interesting one for sports law in Germany. Besides the legal challenges presented by the covid-19 pandemic, a decision by the Federal Constitutional Court is expected on the constitutional appeal by Ms Pechstein. The fact that Germany is a co-host of the UEFA Euro 2020 to be held in 2021, and has been awarded the UEFA Euro 2024, may also lead to important developments in the sports legal field.
1 Alexander Engelhard is a senior associate and Thomas Wassenhoven is an associate at Arnecke Sibeth Dabelstein. They would like to thank Dr Dirk-Reiner Martens for his valuable contribution and guidance in co-authoring the original edition of this chapter.
2 Haas/Martens, Sportrecht – Eine Einführung in die Praxis, Schulthess 2011, p. 22.
3 BGB, Section 56.
4 Palandt, Bürgerliches Gesetzbuch: BGB, Section 21(1).
5 However, according to BGB, Section 73, the local court has to revoke the legal personality of an association if the number of members drops below three.
6 Exceptions apply in situations in which a member mixes association funds with his or her own funds and if the association is used in bad faith to escape personal liability. For more details, see Heermann, Haftung im Sport, Boorberg 2008, p. 95. See also Section I.iii.
7 According to BGB, Section 32, the affairs of an association, to the extent that they are not decided by the board or another organ of the association, are dealt with in a meeting of the members (i.e., the general assembly).
8 Article 9 of the Basic Law for the Federal Republic of Germany provides for the freedom of association.
9 See Haas/Martens (footnote 2), p. 34.
10 For more details, see Lentze/Stopper, Handbuch Fußball-Recht, Erich Schmidt Verlag 2018, p. 971 et seq.
11 However, at the same time, provisions were put in place that required the majority of voting rights within such companies (i.e., more than 50 per cent) to be controlled by their parent member associations. For further information about the 50+1 rule, see Keidel/Engelhard, 'Football club ownership in Germany – Less Romantic than You Might Think', LawInSport.com, 20 July 2015 < www.lawinsport.com/topics/item/football-club-ownership-in-germany-less-romantic-than-you-might-think>; Rogers, 'The Billionaires Are Coming for German Soccer', Bloomberg, 22 March 2018 < www.bloomberg.com/news/articles/2018-03-22/billionaires-find-their-first-opening-to-german-soccer> (last visited on 6 August 2020).
12 For a recent assessment of the topic, see Punte, 'Die Kapitalgesellschaft als (zwingende) Rechtsform in deutschen Profifußball', SpuRt 2/2017, p. 46.
13 The DOSB is a non-governmental umbrella organisation of German sport. It was founded in 2006 as a result of a merger of the German Sports Confederation and the National Olympic Committee for Germany. The DOSB has 98 member organisations, including 16 regional sports confederations, 63 national (sport-governing) federations and 20 sport associations with particular tasks. For more information, see www.dosb.de (last visited on 6 August 2020).
14 For example, BGB, Sections 26 and 32.
15 See Section I.iii.
16 AO, Section 51 et seq.
17 For more details, see Fritzweiler/Pfister/Summerer, Praxishandbuch Sportrecht, third edition, 2014, p. 841 et seq.
19 In the preamble to the Codex, the DOSB suggests that its member associations implement similar regulations concerning the good governance of their respective organisations.
20 When compared with other ethics regulations in sport (e.g., the FIFA Code of Ethics), it can be seen to contain hardly any concrete and enforceable rules of conduct, but rather touches mostly on soft issues such as tolerance, sustainability and participation.
21 For more details, see Heermann (footnote 6), p. 67.
22 ibid., at p. 77.
23 ibid., at p. 67; German Federal Supreme Court of Justice [BGH], judgment of 30 October 1967 – VII ZR82/65.
24 ibid., at p. 82.
25 Regarding the internal relationship between an association and an individual who committed the act in question, the association will be able to recoup damages from the individual according to BGB, Section 840(2). However, BGB, Section 31(a) contains a liability privilege for an official towards the association and its members if an official earns less than €720 per year. In such a case, an official will only be liable if he or she acted intentionally or with gross negligence. See also Higher Regional Court [OLG] of Nuremberg, Order of 13 November 2015 – 12 W 1845/15.
26 For further examples, see Heermann (footnote 6), p. 83 et seq.
27 D&O liability insurance provides protection for managers and officials against claims that may arise from the decisions and actions they take within the scope of their regular duties. Intentional and grossly negligent (illegal) acts are typically not covered under D&O policies.
28 See Haas/Martens (footnote 2), p. 119. Any provision to the contrary in the rules and regulations of a sports governing body would be invalid.
29 Hilpert, Sportrecht und Sportrechtsprechung im In- und Ausland, De Gruyter 2007, p. 19. In German football alone, an estimated 400,000 first instance proceedings are conducted annually.
30 See Haas/Martens (footnote 2), p. 121.
31 ibid., at p. 121.
32 Regarding the requirements for a valid arbitration agreement and the question of arbitrability, see Section II.ii.
33 See Fritzweiler/Pfister/Summerer (footnote 17), p. 276 et seq.
34 See, for instance, NJW-Aktuell 42/2016, p. 12. In 2016, the BGH held that the Regional Football Association of Northern Germany was not allowed to order the relegation of the club SV Wilhelmshaven, as there was no sufficient basis for such disciplinary sanction in the rules and regulations of the governing body, despite the fact that the club had violated the FIFA Regulations on the Status and Transfer of Players. For a critical analysis of the decision, see Orth, 'Die Fußballwelt nach Wilhelmshaven', SpuRt 2017, p. 9.
35 See Fritzweiler/Pfister/Summerer (footnote 17) at pp. 279, 280. Confirmed by the Regional Court [LG] of Dortmund, judgment of 5 April 2017 – 3 O 108/17.
36 See Fritzweiler/Pfister/Summerer (footnote 17) at p. 265.
37 A good example is the case of German triple jumper Charles Friedek, whose request for a (preliminary) nomination to participate in the 2008 Olympic Games was turned down by LG Frankfurt and OLG Frankfurt (OLG Frankfurt, judgment of 30 July 2008 – 4 W 58/08, NJW 2008, 2925). On 13 October 2015, the BGH held that Friedek was entitled to damages from the DOSB for not nominating him for the Games even though he had fulfilled the nomination criteria. The case was referred back to the previous instance for it to decide the amount of damages to be paid (BGH, judgment of 13 October 2015 – II ZR 23/14). In 2016, the parties concluded a settlement agreement.
38 The ZPO provides in Section 1031 that an arbitration agreement in which a consumer is involved must be contained in a record or document signed by the parties. This is the case if the arbitration agreement relates to neither a commercial nor a self-employed activity of the athlete.
39 ZPO, Section 1066; see also Musielak/Voit, ZPO Zivilprozessordnung, 12th edition, 2015, Paragraph 7. The arbitration clause must be contained in the statutes (and not in other (lower-ranking) regulations) of the association. Non-members are generally not bound by the arbitration clause in the statutes even if the association and the non-member conclude a contract that refers to the arbitration clause in the statutes.
40 BGH, judgment of 7 June 2016 – KZR 6/15. For a summary of the proceedings, see Martens/Engelhard, 'Is the Pechstein Saga Coming to an End? German Federal Court of Justice Ruling on Claudia Pechstein v. International Skating Union', June 2016, Business Law International, Volume 18, No. 1, January 2017. Ms Pechstein has lodged a constitutional complaint against the BGH decision before the German Federal Constitutional Court; for a recent critical assessment see Thöne, 'Von (Un-)Freiwilligkeit und (Un-)Parteilichkeit in der Sportschiedsgerichtsbarkeit – ein Appell an das Bundesverfassungsgericht', SchiedsVZ 2020, p. 176; see also Section VI.
41 The term 'pecuniary matter' must be interpreted in a wider sense, and includes claims for admission into a competition if the monetary interests of the athlete or club are also affected. Antitrust issues are also arbitrable.
42 Labour Court Act, Sections 4 and 101.
43 See Haas/Martens (footnote 2), p. 133.
44 ibid., p. 134.
45 The DIS-Sport is currently recognised by 50 German sports governing bodies, including the German Basketball Federation and the German Athletics Federation. For further information about the DIS-Sport, go to www.dis-arb.de/em/57/content/about-the-dis-id46 (last visited on 6 August 2020). For information provided by the National Anti-Doping Agency, go to https://www.nada.de/recht/ergebnismanagement-disziplinarverfahren/sportgerichtsbarkeit/ (last visited on 7 August 2020).
46 DIS-Sport Arbitration Rules, Section 1.
47 ZPO, Sections 1055 and 1060.
48 See Haas/Martens (footnote 2), p. 123.
49 For further details regarding ticketing, see Lentze/Stopper (footnote 10), pp. 1141 et seq.
50 BGB, Section 305.
51 See Lentze/Stopper (footnote 10), p. 1160.
52 For details, see Section VIII.iv.
53 In the case of a negligent breach of a principal obligation under the ticketing contract, liability will usually be limited to foreseeable damage, while in the case of a negligent breach of a secondary or collateral obligation, liability will be excluded entirely.
54 See also Section III.v.
55 Orth in Schmidt, 'COVID-19, Rechtsfragen zur Corona-Krise', 1st edition, 2020, § 10 Sport, Para. 30.
56 For further details see Alte/Brugger, 'Auswirkungen der Corona-Pandemie auf Rechtsbeziehungen im Sport', npoR 2020, 165; see also https://www.bundesregierung.de/breg-de/aktuelles/gutscheinloesung-kulturbranche-1740010 (last visited on 5 August 2020).
57 Unlike Swiss law, German law generally prohibits 'dynamic' referencing to future editions of the rules and regulations of another (higher-ranking) sports governing body. See Haas/Martens (footnote 2), p. 70.
58 ibid., at pp. 66 et seq.
59 BGH, judgment of 28 November 1994 – II ZR 11/94.
60 If the rules are changed by the organiser during the term of the contract, the athlete has the right to withdraw from the contract if the change appears inappropriate and unacceptable. See Haas/Martens (footnote 2), p. 75.
61 The DOSB Athletes Agreement for the 2016 Rio Olympic Games contained, inter alia, the following obligations for athletes: (1) recognition of the World Anti-Doping Code, the National Anti-Doping Code, the Olympic Charter, and other regulations and fundamental documents; (2) acknowledgement of team orders and the DOSB's sole responsibility to nominate athletes; (3) acceptance of the DOSB dress code and the obligation to wear sponsor-related attire without changing or blocking any of the sponsors' logos, subject to a contractual penalty; and (4) acknowledgement of the rules on advertisements in the Olympic Charter and the prohibition of any form of advertising during the Games. The DOSB Athletes Agreement for the 2016 Rio Olympic Games is available at < https://cdn.dosb.de/alter_Datenbestand/Bilder_allgemein/Veranstaltungen/Rio_2016/RIO_2016_Athletenvereinbarung_beschlossen_am_12.04.2016.pdf> (last visited on 6 August 2020).
62 For more information on club licensing in the Bundesliga, see Lentze/Stopper (footnote 10), p. 863 et seq.
63 For more details on the civil liability of the organiser, see Heermann (footnote 6), p. 154 et seq.
64 For a recent assessment of the validity of disclaimers, see Jakob/Roebig, 'Wirksamkeit von Haftungsausschlussklauseln in Individuallizenzen', SpuRt 5/2017, p. 184.
65 BGB, Section 249.
66 See Heermann (footnote 6), p. 53.
67 District Court [AG] Garmisch-Partenkirchen, judgment of 1 December 2009 – 3 Cs 11 Js 24093/08 (Zugspitz-Lauf). In this case, the court found that the organiser of an extreme run up Germany's highest mountain, Zugspitze, was not guilty of negligent manslaughter, although two of the participants had died of hypothermia during the race. The judge justified the acquittal by stating that the organiser had informed the participants about the weather on the Zugspitze and that the participants had put themselves at risk.
68 See Haas/Martens (footnote 2), p. 179. If the sport does not provide for rules regarding on-field conduct, the duty of care is defined by comparing the conduct in question with that applied by a conscientious and considerate athlete.
69 ibid., at p. 183.
70 For a recent assessment of a case in handball, see Higher Regional Court [OLG] Frankfurt am Main, judgment of 14 November 2019 – 22 U 50/17.
71 BGB, Section 249.
72 See Heermann (footnote 6), p. 225.
73 ibid., at p. 225.
74 Local Administrative Court [VG] of Darmstadt, Order of 28 April 2016 – 3 L 642/16.
75 For more information, see Böhm, 'Polizeikosten bei Fußballspielen', NJW 2015, p. 3000; Klein, 'Fußballveranstaltungen und Polizeikosten – Die Verfassungsmäßigkeit einer kostenrechtlichen lex-Fußball in Bremen', DVBl 5/2015, p. 275.
76 Section 4 Fees and Contributions Act (Bremen).
77 Federal Administrative Court (BVerwG), judgment of 29 March 2019 – 9 C 4.18; see SpuRt 5/2019, p. 231, confirmed Higher Administrative Court [OVG] of Bremen, judgment of 5 February 2018 – 2 LC 139/17, which overturned VG Bremen, judgment of 17 May 2017 – 2 K 1191/16; for more information, see Weill, 'Die DFL als “Veranstalterin” und Schuldnerin von Verwaltungsgebühren im deutschen Profifußball', NVwZ 2018, p. 846.
78 Section 5(1)(i) of the League Statute.
79 For more information, see Haslinger, Zuschauerausschreitungen und Verbandssanktionen im Fußball, Nomos, 2010.
80 Regional Court [LG] Frankfurt am Main – 2-06 O 420/18.
81 Higher Regional Court [OLG] Frankfurt am Main, order of 16 April 2020 – 11 U 31/19; because the parties settled their dispute amicably, the judgment of the Regional Court [LG] Frankfurt – 2-06 O 420/18 is without effect and the deduction of points against the club became final and binding.
82 BGH, judgment of 22 September 2016 – VII ZR 14/16 overturning OLG Cologne, judgment of 17 December 2015 – 7 U 54/15. The case was referred back to the previous instance, which decided in 2017 that the damages to be paid by the spectator needed to correlate with his actual causal contribution to the financial sanction of the sports governing body against the club (OLG Cologne, judgment of 9 March 2017 – 7 U 54/15). For a detailed analysis, see Scheuch, 'Regress gegen einzelne Störer nach Verurteilung zu einer Verbandsgesamtstrafe', SpuRt 4/2017, p. 137.
83 LG Karlsruhe, judgment of 29 May 2012 – 8 O 78/12.
84 See 'Richtlinien zur einheitlichen Behandlung von Stadionverboten' < www.dfb.de/verbandsservice/pinnwand/stadionverbots-richtlinien> (last visited on 6 August 2020).
85 OLG Frankfurt am Main, judgment of 7 September 2017 – 1 U 175/16; for more information, see Staake, 'Stadionverbote und Grundrechtsschutz', SpuRt 2018, p. 138; Constitutional Court, judgment of 11 April 2018 – 1 – BvR 3080/09.
86 For more information, see the legal opinion of Hilty/Henning-Bodewig, Leistungsschutzrechte zugunsten von Sportveranstaltern?, Boorberg, 2007. For a more recent assessment on the implementation of a sports organiser's right, see Heermann, 'Neues zum Leistungsschutzrecht für Sportveranstalter', GRUR 2015, p. 232.
87 See also BGB, Sections 859, 862 and 1004.
88 For example, FIFA Regulations on the Status and Transfer of Player, Article 13 et seq.
89 For more information on German law regarding broadcasting rights, see Lentze/Stopper (footnote 10), p. 51 et seq.
90 BGH, judgment of 8 November 2005 – KZR 37/03, NJW 2006, p. 377 (Hörfunkrechte). In 2017, OLG Munich held that the Bavarian Football Association was allowed to exclude third parties from filming amateur football matches, or admitting them subject to payment of a fee, based on the house right (OLG Munich, judgment of 23 March 2017 – U 3702/16 Kart). For an analysis of the decision, see Reinholz, 'Münchner, “Bewegtbildurteil”: Kein Fall Hartplatzhelden II', Causa Sport, 2/2017, p. 138.
91 See Lentze/Stopper (footnote 10), p. 56.
94 See Lentze/Stopper (footnote 10), p. 68.
95 Schwartmann, Praxishandbuch Medien-, IT-und Urheberrecht, CF Müller, 2011, p. 426 et seq.; see also Lentze/Stopper (footnote 10), p. 80 et seq. or Fritzweiler/Pfister/Summerer (footnote 17), p. 455 et seq.
96 For more information, see ibid., at p. 414 et seq.; also the Federal Cartel Office, decision of 12 January 2012 – B 6-114/10. For an assessment of the latest Bundesliga TV rights deal, see Keidel/Engelhard, 'How the Bundesliga's new “no single buyer” rule has increased the broadcasting revenue for German football', LawInSport.com, 14 October 2016 < www.lawinsport.com/topics/item/how-the-bundesliga-s-new-no-single-buyer-rule-has-increased-the-broadcasting-revenue-for-german-football> (last visited on 6 August 2020).
97 For more information, see Soldner/Engelhard, 'Kehrtwende im Recht zur Kurzberichterstattung? – Die Rechtsprechung des BVerfG auf dem Prüfstand', Kommunikation und Recht, p. 488.
98 Listed events are major sport events that need to be broadcast on free television. In Germany, the list includes: (1) Summer and Winter Olympic Games; (2) the German national team's games in the FIFA World Cup and the UEFA Euro; (3) the semi-finals and final of the FIFA World Cup and the UEFA Euro, irrespective of the participation of the German national team; (4) the semi-finals and final of the German Football Association [DFB] Cup; (5) home and away games involving the German national football team; and (6) the finals of the European club competitions (i.e., UEFA Champions League and UEFA Europa League) if a German team is playing.
99 See Labour Court [ArbG] of Mannheim, judgment of 28 August 2013 – 10 Ga 3/13.
100 For more information on short-time work in professional sport, see Fischinger, 'Die Auswirkungen der Coronakrise auf Arbeitsverhältnisse im Profisport – Part 2', SpuRt 2020, p. 158.
101 Regarding the time when an athlete is able to take leave, the template DFB player contract provides that leave shall only be taken during the period in which no competitive matches are taking place, and shall always require the club's prior express approval. An English version of the template employment contract for footballers provided by the DFB is at < https://www.dfb.de/fileadmin/_dfbdam/136452-Mustervertrag_Vertragsspieler_ENG_01-2017.pdf > (last visited on 6 August 2020).
102 For further information on fixed-term employment contracts in sport, see Lentze/Stopper (footnote 10), pp. 384 et seq.
103 Regional Labour Court [LAG] of Rheinland-Pfalz, judgment of 17 February 2016 – 4 Sa 202/15; confirmed by Bundesarbeitsgericht [BAG], judgment of 16 January 2018 – 7 AZR 312/16; for an assessment, see Fritschi, 'Befristung eines Arbeitsvertrages im Profiteamsport aus Sicht der Verbandsautonomie und des Europarechts', SpuRt 3/2017, p. 90. See also LAG Köln, judgment of 15 August 2018 – 11 Sa 991/17, according to which the reasoning of the BAG also applies to fixed-term contracts in amateur football. This is not the case.
104 Labour Court [ArbG] Hannover, judgment of 15 January 2020 – 9 Ca 182/19.
105 Act on Part-Time Work and Fixed-Term Employment Contracts, Section 15(4).
106 ArbG Ulm, judgment of 14 November 2008 – 3 Ca 244/08.
107 BAG, judgment of 25 April 2013, 8 AZR 453/12.
108 Court of Justice of the European Union [CJEU], judgment of 15 December 1995 – C-415/93 (Bosman).
109 See Fritzweiler/Pfister/Summerer (footnote 17), at p. 729.
110 Locally trained players are either trained 'by the club' or 'by the federation'. A player trained by the club is a player who, in three seasons or years between the ages of 15 and 21, was eligible to play for the club. A player trained by the federation is a player who, in three seasons or years between the ages of 15 and 21, was eligible to play for a club affiliated to the DFB.
111 See Fritzweiler/Pfister/Summerer (footnote 17), at p. 729. See also Streinz, '6+5'-Regel oder Homegrown-Regel – was ist mit dem EG Recht vereinbar?', SpuRt 2008, p. 224.
112 See Fritzweiler/Pfister/Summerer (footnote 17), p. 729. For a recent assessment of the local player rule applied in lower-tier basketball in Germany, see Engelhard, 'Es gibt Argumente für beide Seiten – Zum möglichen Rechtsstreit zwischen der 2. Basketball Bundesliga und den Wiha Panthers Schwenningen', Interview in BIG – Basketball in Germany – Das Magazin, No. 65, 2017, p. 87.
113 See Fritzweiler/Pfister/Summerer (footnote 17), p. 302.
114 Drechsler, 'Financial Fairplay im Arbeitsrecht: Kündigung statt Millionenablöse?' NZA 2020, p. 841.
115 For an overview of antitrust law issues regarding sport in Germany, see Stancke, 'Pechstein und der aktuelle Stand des Sportkartellrechts', SpuRt 2015, p. 46; Stopper, 'Sportkartellrecht im Wirtschaftskartellrecht', SpuRt 2018, p. 190.
116 Stancke (footnote 114), p. 46.
117 OLG Frankfurt, judgment of 2 February 2016 – 11 U 70/15 (Kart).
118 OLG Munich, judgment of 15 January 2015 – U 1110/14 (Kart); SchiedsVZ 2015, p. 40.
119 ibid., at p 44. Regarding the criticism raised against the Court of Arbitration in Sport [CAS], see Duve/Troshchenovych, 'Seven steps to reforming the Court of Arbitration for Sport', World Sports Law Report, Vol. 13, Issue 4, April 2015. The Court's approach to assess the arbitration agreement in light of antitrust law had been criticised for different reasons. See, for instance, Duve/Rösch, 'Ist das deutsche Kartellrecht mehr wert als alle Olympiasiege?', SchiedsVZ 2015, p. 69.
120 BGH, judgment of 7 June 2016 – KZR 6/15. See also Martens/Engelhard (footnote 40). For a more critical assessment, see Rombach, 'German Federal Supreme Court on Claudia Pechstein v. International Skating Union', English translation, SchiedsVZ 2016, p. 268; Thöne, 'Von (Un-)Freiwilligkeit und (Un-)Parteilichkeit in der Sportschiedsgerichtsbarkeit – ein Appell an das Bundesverfassungsgericht', SchiedsVZ 2020, p. 176.
121 Also, according to the BGH, the list of arbitrators did include a sufficient number of neutral persons who were independent. Finally, the BGH held that sports federations and athletes were generally not in opposing 'camps' guided by opposing interests in the fight against doping in sport. In 2017, the CAS was described as an 'independent and neutral institution' by OLG Frankfurt in its judgment of 21 December 2017 (11 U 26/17 (Kart)).
122 See, for instance, LG Dortmund, judgment of 14 May 2014 – 8 O 46/13; OLG Düsseldorf, judgment of 15 July 2015 – VI-U (Kart) 13/14; LG Munich, 1 HK O 8126/16. Also, antitrust law was applied by OLG Frankfurt in a case concerning the DFB Player Agent Regulations, judgment of 2 June 2016, 11 U 70/15 (Kart).
123 LG Düsseldorf, judgment of 28 March 2017, 31 O 448/14.
124 OLG Düsseldorf, judgment of 15 November 2017, VI-U (Kart) 8/17; see also Lorenz, 'Rückzug des Kartellrechts aus dem Sport? Der Fall Hustenzeichen bei Bridge-Turnier', SpuRt 3/2018, p. 131.
125 See Bundeskartellamt.de, 'German Athletes and their sponsors obtain further advertising opportunities during the Olympic Games following Bundeskartellamt action – IOC and DOSB undertake to change advertising guidelines', press release dated 27 February 2019 (last visited on 6 August 2020).
126 For more information, see Fritzweiler/Pfister/Summerer (footnote 17), p. 916.
127 See Adolphsen/Nolte/Lehner/Gerlinger, Sportrecht in der Praxis, Kohlhammer 2011, p. 505 et seq.
128 ibid.; see also Section I.i. For a summary of recent decisions concerning the taxation of intermediaries and agents, see Nücken, 'Leistungen von Spielervetmittlern (erneut) auf dem Prüfstand', SpuRt 1/2017, p. 19.
129 See Adolphsen/Nolte/Lehner/Gerlinger (footnote 126), p. 517 et seq.
130 For more details see https://www.bundesfinanzministerium.de/Content/EN/Standardartikel/Topics/Priority-Issues/Corona/2020-03-20-Tax-measures-to-assist-businesses.html (last visited on 6 August 2020).
131 The Anti-Doping Act [AntiDopG], in force since 1 January 2016 < www.gesetze-im-internet.de/bundesrecht/antidopg/gesamt.pdf> (last visited on 6 August 2020).
132 AntiDopG, Section 4(7).
133 ibid., at Section 4(1) and (2).
134 ibid., at Section 4(4).
135 Steiner, 'Deutschland als Antidopingstaat', ZRP 2015, p. 51; Matthias Jahn, 'Noch mehr Risiken als Nebenwirkungen – der Anti-Doping-Gesetzentwurf der Bundesregierung aus Sicht des Strafverfassungsrechts', SpuRt 2015, p. 149.
136 BGH, judgment of 5 December 2017 – 4 StR 389/17.
137 Hauptmann/Klarmann, 'Whistleblower und Kronzeugen: Bedeutung und Regelungsbedarf im Interesse einer effizienteren Aufdeckung von Dopingverstößen im Sport', SpuRt 5/2019, p. 190.
138 See AG Munich, judgment of 26 September 2014 – 1115 Cs 254 Js 176411/13, in which the Court held that participation in gambling licensed in another EU Member State (without being licensed in Germany) is illegal.
139 CJEU, judgments of 8 September 2010 – C-409/06, C-316/07, C-46/08.
140 The single-handed approach by the state, Schleswig-Holstein, which issued temporary licences to several private gambling and betting providers, was stopped in 2013. Those providers that were able to obtain a licence were allowed to use it for a grace period in Schleswig-Holstein only.
141 First Amendment to the Interstate Treaty on Gambling, Section 4(4).
142 OVG Hessen, judgment of 16 October 2015 – 8 B 1028/15.
143 CJEU, judgment of 4 February 2016, C-336/14.
144 VG Wiesbaden, judgment of 15 April 2016 – 5 K 1431/14 WI.
145 OVG Kassel, judgment of 29 May 2017 – 8 B 2744/16.
146 The minimum requirements for a betting licence are mentioned online at https://rp-darmstadt.hessen.de/sicherheit/gl%C3%BCcksspiel/sportwetten/konzessionsverfahren (last visited on 7 August 2020).
147 Notification Number: 2020/0304/D (Germany).
148 Criminal Code, Section 263(3) defines fraud as causing or maintaining an error or distorting or suppressing true facts with the intention to obtain for oneself or a third person an unlawful material benefit by damaging the assets of another person.
149 BGH, judgment of 15 December 2006 – 5 StR 181/06.
150 BGH, judgment of 20 December 2012 – 4 StR 55/12.
151 See Fritzweiler/Pfister/Summerer (footnote 17), p. 841.
152 More information is provided on the Council of Europe website < www.coe.int/en/web/conventions/full-list/-/conventions/treaty/215> (last visited on 6 August 2020).
153 For more information, see Stam, 'Die Straftatbestände des Sportwettbetrugs (Section 265c StGB) und der Manipulation von berufssportlichen Wettbewerben (Section 265d StGB)', NZWiSt 2018, 41; Keidel, 'A Guide to Germany's new criminal law against betting fraud and match-fixing in sports', LawinSport.com < www.lawinsport.com/topics/item/a-guide-to-germany-s-new-criminal-law-against-betting-fraud-and-
match-fixing-in-sports> (last visited on 6 August 2020). For an assessment of the potential liability of clubs, see Kubiciel, 'Neue Haftungsrisiken für Vereine: die Straftatbestände gegen Sportwettbetrug und Spielmanipulation', SpuRt 5/2017, p. 188.
154 BGH, judgment of 11 September 2008 – I ZR 74/06, NJW 2009, 1504 < bundesligakarten.de>; see also LG Munich I, judgment of 2 August 2017 – 37 O 17726/16 and Wilkens/Müller, 'Rechtsnatur und Weiterveräußerbarkeit von Eintrittskarten', SpuRt 2018, 46 (differences between BGB Sections 807 and 808).
155 AG Hamburg, judgment of 8 October 2014 – 23 a C 90/14. See also OLG Munich, judgment of 20 September 2018; < https://beck-online.beck.de/Dokument?vpath=bibdata%2Freddok%2Fbecklink
%2F2010984.htm&pos=1&hlwords=on> (last visited on 6 August 2020).
156 OLG Hamburg, judgment of 13 June 2013 – 3 U 31/10. A legal analysis of the case is provided in MMR 2014, p. 595.
157 See instead, e.g. Alte/Brugger, 'Auswirkungen der Corona-Pandemie auf Rechtsbeziehungen im Sport', npoR 2020, p. 165; Fischinger, 'Die Auswirkungen der Coronakrise auf Arbeitsverhältnisse im Profisport – Part 1 and 2', SpuRt 2020, pp. 112 and 158; Haug, Neue Formen der Dopingbekämpfung im Zuge von COVID-19 CausaSport 2020, p. 151; Bechtel, 'Olympia-Versprechen für 2021: Sichere Klarheit oder klare Unsicherheit?', CausaSport 2020, p. 148; Fischinger/Knauer, 'Fussball-Clubinsolvenz unter «Corona»-Einfluss', CausaSport 2020, p. 168.