Carl Zeiss Jena complains – is the BGH overturning the collective penalties?

It is almost a philosophical approach that FC Carl Zeiss Jena is taking against the DFB. Can you be punished for something that you are not responsible for? What is the point of punishment then? Jena’s managing director Chris Förster formulates it almost like a mantra: “No punishment without guilt“.

And because Förster is not aware of any guilt, he does not want to pay the penalty from 2018. Because of three pyrotechnics incidents, the then third division should pay a fine of just under 25,000 euros. “Our security system is certified by the DFB and checked by Dekra. We even use sniffer dogs for pyro controls. The stadium is partially guarded the night before the game. In the case of risk games, we expand the event area in order to carry out several checks.

Jena has accepted the legal and procedural rules of the DFB

There can be no question of an offense or negligence worthy of punishment on the part of the Jena people. “I care about justice“, says Chris Förster. And that’s why the managing director of the traditional association from Thuringia has the case with an impressive persistence brought up to the Federal Court of Justice.

The DFB naturally sees the situation differently and insists on the constitutionally guaranteed association autonomy. Put simply, this means that sports associations can set their own rules and offenses against these rules can be tried by sports courts. Ordinary jurisdiction does not interfere. The legal and procedural rules of the DFB state that a no-fault fine is due for pyrotechnics. And FC Carl Zeiss Jena has also accepted it.

Are the laws of the DFB compatible with the Basic Law or not?

Shortly before the decision of the Federal Court of Justice, Förster strikes a sharper tone: “Ultimately, under the guise of association autonomy, the DFB has been punishing the clubs for something for which they are not to blame. That is already going in the direction of kinship liability.

From a purely legal point of view, the Federal Court of Justice has to decide: Are the DFB’s laws compatible with the Basic Law or not? Or is association autonomy such a valuable asset that the highest German court of justice waved through the sports laws of the DFB?

Divided opinion among lawyers

Jens Gerlach from the renowned Bucerius Law School in Hamburg has dealt intensively with the no-fault penalties of the DFB. “Opinion is divided in the literature, and there is a tendency for no-fault punishment to be ineffective.“He himself shares this assessment. But there are also sports lawyers who see the DFB in the right. From a legal point of view, Gerlach expects the BGH”a basic clarification with detailed reasons.

All clubs in Germany would benefit from this. Because many grumble about the sometimes very high collective punishments. So far, no club has dared to enter into a legal dispute with the powerful DFB, even outside of the sports jurisdiction. Then they preferred to pay. Around 15 million euros in the last ten years.

Victory for Jena would be an “earthquake”

How the BGH will ultimately decide cannot be foreseen. Because there is no case law on the specific case. If the DFB wins, everything will simply stay the same. What if FC Carl Zeiss Jena wins? “In my opinion, this would be tantamount to an earthquake in this fight against pyrotechnics, because this chosen path, this chosen practice of the DFB could no longer be kept in the future“says Gerlach.

How it will actually come about is only known after the BGH has pronounced the verdict.

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Carl Zeiss Jena complains – is the BGH overturning the collective penalties?