Spotlight: organization and marketing of sporting events in Germany

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All the questions

Marketing of sports events

i Types of rights and ownership of rights

German law does not recognize any specific rights for sports organizers as such.86 It also does not recognize actual broadcast, sponsorship, or merchandising rights. The question of whether, in what form and to what extent these rights exist, and to whom they belong, let alone how they might be transferred, is extremely difficult to answer. Ultimately, an organizer will have to rely on several different laws and rights to protect their event and their investments.

The “ownership right” defined in sections 858 and 903 BGB is of paramount importance.87 Usually, the organizer of a sporting event can exercise ownership of the venue where the event is taking place, either because he owns the venue (for example, a stadium or an arena), or because the site owner has ceded the right of ownership to the organizer for the time of the event. The right of use allows the organizer to exclude unauthorized persons or media from the venue or to authorize access to it subject to specific contractual conditions. Other important rights arise from copyright, competition law, trademark law and tort law.

Transfer rights in team sports derive primarily from an existing employment relationship between a player and his club, and the protection of that contractual relationship by law and the relevant regulations of the sport’s governing bodies.88

ii Protection of rights

The difficulty of protecting the rights of a sports organizer under German law can be explained using the example of broadcasting rights.89 In the absence of a true broadcast right, protection for it derives from house law, as well as principles of copyright, competition law, and tort law.

house law

As mentioned, this right allows the organizer to regulate access to a venue vis-à-vis spectators and third parties (including radio and television broadcasters).90 In a broadcast agreement, the organizer waives its right of ownership to the broadcaster for the latter to produce a live stream of the sporting event in exchange for a royalty paid by the broadcaster to the organizer. . However, property rights cannot sufficiently prevent unauthorized filming of a sporting event from off-site (eg, a high building next to the stadium or a drone).

copyright

Sports events under German law are generally not protected by copyright law because they are not considered to be personal intellectual creations within the meaning of § 2(2) of the Copyright Act. author (UrhG). Furthermore, organizers and athletes are not protected by copyright (§§ 73 and 81 UrhG do not apply). Athletes are not considered theater performers. They are rarely protected by the right to control their own image, as they are public figures within the meaning of Sections 22 and 23 of the Art Copyright Act. § 94 UrhG at least protects the broadcaster (host) once he has delivered or has delivered the images of a sporting event.91 Paragraph 87(1) of the UrhG protects the television channel broadcasting the programme.92

Competition law

The Unfair Competition Law (UWG) prohibits certain business practices that are considered unfair, such as exploiting or crediting the work of others. The BGH considered that Article 3 of the UWG could prevent third parties from filming and broadcasting a sporting event without authorization.93

tort law

It has also been suggested that the organizer of a sporting event who has made a considerable investment to organize a sporting event, or an athlete who has invested heavily in training, would benefit from protection under Article 823, paragraph 1 of the BGB against the exploitation of their investment without payment.94

iii Contractual provisions for the exploitation of rights

The contracts in the field of sports rights are numerous. It is essential for a holder of sports rights to diligently stipulate the rights to be transferred to a licensee. It is also essential to properly structure and manage all rights contracts in order to avoid conflicting rights agreements and to fully exploit the commercial potential of the rights holder.

With regard to the content of sports rights contracts, the parties are generally free to agree on the relevant rights and obligations. The limits to the contractual freedom of the parties are simply provided for by certain legal prohibitions95 or public policy.96

If we take the example of broadcasting, the main obligation of an organizer will be to grant the broadcaster full access to the site for all contractual purposes. In return, the licensee (ie the broadcaster) will pay a license fee. Other relevant elements of a broadcasting agreement will, among other things, address:

  1. exclusivity;
  2. licensed;
  3. territory;
  4. production;
  5. dissemination duty;
  6. duration and termination of the contract; and
  7. warranty and indemnification.97

Legal provisions that must be observed in sports broadcasting contracts include those of German and European competition law, in particular Article 101 of the Treaty on the Functioning of the European Union (TFEU). In today’s converged media landscape, broadcast rights and other media rights will typically be divided into different sets of rights to meet antitrust obligations.98 Other relevant standards include the right to produce short extracts from news99 in Section 5 of the Interstate Broadcasting Treaty or Section 4 thereof regarding “listed events”.100

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