7. December 2022

Football is our life

The song “Fussball ist unser Leben” (Football is our life), sung by the German World Cup winning team in 1974, may perhaps cheer up the sad football minds after their elimination from the 2022 World Cup. In any case, it fits two decisions that revolve around the round ball.

The first comes from the Higher Administrative Court of North Rhine-Westphalia on 28 November 2022 (case number: 5 A 2808/19). In this case, a woman had objected to a photo that the police had disseminated of her on Twitter. The photo showed the plaintiff waiting to be admitted to the guest block in Duisburg. It was a so-called “risk game” in the 3rd Bundesliga. About 100 fans of the visiting team put on rain capes before the admission control. According to the leader of the group, this was supposed to be part of a fan choreography in the stadium. The police, on the other hand, feared that the fans were more concerned with preventing searches and thus wanted to smuggle pyrotechnics into the stadium. They posted the following message on their Twitter account: “#MSVFCM traffic jam at guest entrance, some fans put on rain capes to prevent search.” The fan felt that this violated his personal rights and filed a lawsuit. The Düsseldorf Administrative Court initially dismissed the complaint, but the plaintiff’s appeal to the Higher Administrative Court was successful.

The court ruled that the woman had been recognisable in the photo published on Twitter (this had been disputed by the police). Interestingly, the original tweet could no longer be used for this purpose, as the police had it deleted due to doubts about its legality. Also, the original police photo file could no longer be found. Thus, the court had to judge on the basis of a printout of the tweet. According to the court, this violated the principles of the Federal Constitutional Court, as the presumption could not be proven that the fans had put on the rain capes to prevent searches. In any case, the police should have made the uncertainty of their presumption known in the tweet.

What do we learn from this? Anyone who puts on a rain cape at the entrance to a football match makes himself particularly suspicious in the eyes of the police …

The second decision comes from the Higher Regional Court of Frankfurt am Main (decision of 30.11.2022, ref. 16 W 52/22). There, a German professional footballer playing in England defended himself against the use of his photo on football trading cards of the German national team. He was of the opinion that he had only given the rights to be used in the context of the English team. But according to the contract, the player had given his club the rights “to use the defined properties of the applicant … To exploit. As properties … … are defined as the name, likeness, likeness/appearance and photographs of the applicant”. The court did not see this as a restriction to photos that only showed him as a player in the England team. Rather, the club could also grant the rights to use the photos in the context of the national team.

The Qatar squad of the German national football team included the following Premier League players: Kai Harvertz, Armel Bella-Kotchap, Thilo Kehrer and İlkay Gündoğan. Now you can guess who had complained here.

The author

Philipp Beck

Fachanwalt für Urheber- & Medienrecht
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