Sports Law: Federal Supreme Court Finds German Olympic Sports Confederation Liable for Failure to Nominate Athlete for Olympic Games

Willie_Banks_Jr__in_Seoul_1988Charles Friedek, the former triple jumper who was world champion in 1999, had sued the German Olympic Sports Confederation (Deutscher Olympischer Sportbund, DOSB) on the basis that DOSB wrongly failed to nominate him for the 2008 Olympic Games in Beijing. The German Federal Supreme Court (Bundesgerichtshof) has today confirmed the first instance judgment that had held DOSB liable for damages in principle. Friedek is claiming lost revenue, made up of foregone appearance fees, price monies and sponsorship deals.

At the time, the DOSB nomination guidelines (Nominierungsrichtlinien) for triple jump provided for a so-called A norm of 17.10 meters and, in the alternative, a so-called B norm of two times 17.00 meters. During the nomination period, Charles Friedek exceeded 17.00 meters twice during one competition. In subsequent competitions, however, he did not exceed 17.00 meters, or only under impermissible wind conditions. The DOSB failed to nominate him, and took the position that the B norm had to be interpreted to the effect that the 17.00 meters had to be exceeded in two different competitions.

The District Court Frankfurt (Landgericht) in 2011 found in Friedek’s favour, whereas the Court of Appeals (Oberlandesgericht) Frankfurt in 2013 dismissed his action and followed the interpretation provided by the DOSB. Of particular interest is the fact that an arbitral tribunal under the rules of the German Track and Field Association (Deutscher Leichtathletikverband) had also found in Friedek’s favour. The Court of Appeals had held that this finding was not binding upon it.

The Federal Supreme Court reversed the appeal judgment. The court held that the defendant DOSB was legally obliged, since it had a monopoly for the nomination of athletes to the Olympic Games, to nominate all athletes that met the requirements set by itself. This duty was wrongfully violated (schuldhaft verletzt). The nomination guidelines had to be interpreted objectively. Based on an objective reading of the guidelines, Charles Friedek had met the norm by exceeding the B norm of 17.00 meters twice in the same competition. On quantum, the matter is now sent back to the District Court (Landgericht) to decide upon. So far, only the press release has been published. It remains to be seen whether the full judgment discusses, and be it as an obiter dictum, the interplay between the proceedings in the state courts and the decision of the arbitral tribunal under the rules of the German Track and Field Association.

This judgment adds to the growing body of case law develped by the state courts, rather than internal arbitral bodies of the sport institutions. It provides clarity on the legal duties owed by sport associations towards the athletes governed by their rules and guidelines.

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The photo by Ken Hackman shows US athlete and former triple jump world record holder Willie Banks jr. competing at the 1988 Seoul Olympics, as  I was unable to find a Charles Friedek photo in the public domain.

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