The plaintiff, who had been a professional track and field athlete in the discipline triple jump since 1997, claims damages from the defendant German Olympic Sports Confederation (DOSB), a registered association, because the DOSB did not nominate him as a track and field athlete for the Summer Olympic Games in Beijing (15 to 24 August 2008).
The defendant association is the only one responsible for the final nomination of German athletes for the Olympic Games. The prerequisite for a nomination for the 2008 Summer Olympic Games was, among other things, a performance to be achieved in temporal proximity to the Olympic Games according to certain sport-specific nomination criteria. In the "Nomination Guidelines 2008", a so-called A and B standard was defined for the men's triple jump with the proviso that the Olympic standard was also fulfilled if the higher standard requirement (A standard) was not achieved, but the alternatively named standard requirement (B standard). A distance of 17.10 m was specified for the A standard, and "2 x 17.00 m" was specified for the alternative B standard to be achieved.
During the nomination period, the plaintiff achieved a distance of 17.00 m in the preliminary competition and a distance of 17.04 m in the subsequent final competition on the same day. In subsequent competitions he no longer achieved the distance of 17.00 m or only with an impermissible tail wind. The defendant then refused to nominate him because he was of the opinion that the requirement for the B standard of 2 x 17.00 m had to be achieved in two different competitions.
The plaintiff claimed damages from the defendant in the amount of at least € 133,500, alleging that he had lost, among other things, entry and prize money for events as well as sponsorship money due to the non-nomination. The Regional Court declared the action to be justified on the merits. The Court of Appeal dismissed it on appeal by the defendant. The requirements for a claim for damages due to the plaintiff's non-nomination in breach of duty were not met because the plaintiff had not performed as stipulated in the nomination guidelines. The defendant had rightly understood its nomination guidelines to mean that the two distances of the B standard had to be achieved in two different competitions.
The II. Civil Senate of the Federal Court of Justice, which is responsible for association law, among other things. The Second Civil Senate of the Federal Supreme Court, which is responsible for association law, overturned the appeal judgement on the plaintiff's appeal and dismissed the defendant's appeal against the basic judgement of the Regional Court. As a monopoly association, the defendant is obliged to nominate athletes who fulfil the nomination requirements set by the defendant itself. The defendant culpably violated this duty, as the Regional Court found without error of law. Contrary to the opinion of the court of appeal, the nomination guidelines of the defendant are to be interpreted with the required objective understanding to the effect that the plaintiff had fulfilled the Olympic standard in the triple jump by reaching the B standard twice in one competition. In the further proceedings, the Regional Court will now have to decide on the amount of the claim for damages to which the plaintiff is entitled on the merits.
Judgment of the BGH of 13 October 2015 - II ZR 23/14
Lower courts:
LG Frankfurt - Judgment of 15 December 2011 - 2-13 O 302/10 (CaS 2012, 67)
OLG Frankfurt - Judgment of 20 December 2013 - 8 U 25/12 (SpuRt 2014, 74 = CaS 2014, 48)
Source: Press release of the BGH
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
