WDo you know what the difference is between Google, Amazon, Apple and the German sports associations? German sports associations need not fear antitrust law. The decision of the Antitrust Senate of the Frankfurt Higher Regional Court in the proceedings of the beach volleyball team Kim van de Velde/Cinja Tillmann, whose lawyer I was allowed to be, must be read in this way or something similar.
The two had sued the German Volleyball Association (DVV) because it had adopted very special nomination criteria for women for 2019. Instead of nominating the best teams according to the world rankings, the national teams and prospective teams were given priority for the tournaments. In other words, teams that were already supported by the association and thus had an advantage over all other teams.
This meant that teams sponsored by the DVV were sometimes nominated instead of the plaintiffs, although at the time of the respective tournament nomination they were placed behind van de Velde/Tillmann in the world rankings. A circumstance that prompted the lower court to attest to the DVV that it had suspended the principle of selecting the best in sport and had completely disregarded sporting performance criteria in the nomination decision.
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But the three judges on the appeal court saw things differently and did something that rarely happens in antitrust law. They granted the association discretion when drafting the nomination criteria and the nomination, which should only be judicially reviewed and evaluated in absolutely exceptional cases. In the specific case, they could not identify such a serious violation and dismissed the lawsuit. In doing so, they created a de facto safe haven for sports associations.
They can now be sure that the courts will hardly overturn a nomination decision in the future. Because if even the departure from the best principle should be covered by discretion, it is really difficult to imagine nomination circumstances in which the judges would find that the association exercised its discretion incorrectly.
In order to understand what this means in practice, one has to consider the legal area in which we are moving here. It is about the practice of professional sport, in the field in which sport is a profession. So not just in the area of leisure sports, which we should all be much more familiar with. Not where it might be annoying when association decisions prevent one’s own advancement, but in the area in which every association decision has an impact on one’s own professional activity.
Sports associations as bouncers
Athletes are young people who devote much of their adolescence to competing in sport at the highest level, making great personal and financial sacrifices. These then meet associations that are bouncers on the threshold of practicing professional sport. Because of the structure of international sport, there is usually only one institution that is authorized to send athletes to competitions. Associations are therefore flawless monopolists. But where antitrust law is supposed to protect the weak against the power of the strong, it fails when it comes to professional sport. At least that’s the case with the Frankfurt Higher Regional Court.
This is probably also because organized sport still enjoys an unjustified special role and it is difficult to apply the generally applicable rules of the law to it. The van de Velde/Tillmann case is an eloquent example of this if you reduce the dispute to its core.
