Sports Arbitration: Update on the Wilhelmshaven Case

SV WilhelmshavenIn February 2015, I wrote about the Wilhelmshaven case: The Bremen Court of Appeals (Oberlandesgericht) had found in favour of SV Wilhelmshaven, a northern German amateur football club, in its dispute with FIFA and the German Football Association, DFB. I looked at the case primarily from an arbitration perspective – I viewed it as a variation of the theme in the Pechstein case: Yet another matter where the state courts criticize the system of, or rather, the design of sports arbitration. In his blog, Jan F. Orth has published a preview of a forthcoming case* note that defends sports arbitration as we know it, and predicts that the Bremen judgment will not stand the scrutiny of the Federal Supreme Court (Bundesgerichtshof).

To briefly recap: The Bremen Court of Appeals had held a CAS Award in favour of Argentinian clubs for training compensation payable by SV Wilhelmshaven to be unenforceable, because the FIFA system of training compensation amongst football clubs was in violation of Article 45 of the EU Treaty, the free movement of workers. In addition, it had held that SV Wilhelmshaven could approach the state courts directly and did not have to do through the German Football Association’s internal dispute resolution system.

From the summary of their article, it appears that Jan and his co-author believe that the judgment is wrong both on the arbitration aspect and on the European law dimension of the training compensation system. On the latter, they concede that is capable, in principle, to be an obstacle to the free movement of football players. However, they believe that this effect can be justified in the interest of the general public in social and sustainable youth system (soziale und nachhaltige Nachwuchsarbeit im Fußballsport). On the procedural aspect, the authors believe that the court failed to understand, and give proper weight, to the autonomy of the internal dispute resolution system of the German Football Association.

Jan F. Orth is a judge in his day job, and a judge in his free time as well: since 2010, he sits as a judge (arbitrator) on the Body of Appeals (DFB-Bundesgericht) for the German Football Association (Deutscher Fussballbund, DFB). In that sense, he is of course an insider of the system that the Bremen Court of Appeals has criticized. First, let me state that I have a lot of respect and admiration for people like Jan who support the sport and its inner workings – the job is not glamorous, most of the time their efforts do not get the appreciation they deserve and if their work gets noticed by the wider public, then most likely because someone disagrees and criticized them. Second, as Jan’s case note on the first Pechstein case has shown, he is not an uncritical devotee of sports arbitration or a defender of its status quo per se. So the full article in Spurt certainly will be worth reading.

*Martin Stopper and Jan F. Orth, Entscheidungsvollzug in der Verbandspyramide und Ausbildungsentschädigung, Spurt Zeitschrift für Sport und Recht, 2/2015.

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