At the beginning of November, the Federal Court of Justice rejected the regional league club’s lawsuit. Accordingly, it is legitimate for the DFB to punish FC Carl Zeiss regardless of fault. In this specific case, the DFB fined the Jena team almost 25,000 euros for misconduct on the part of their fans.
BGH avoids Jena argument
The reason why Jena does not want to accept the verdict lies in the reasoning of the verdict of the highest German court. There it says that the DFB penalties are not penalties at all, but preventive measures. In doing so, the BGH circumvented the central approach of the Jena argument. That means: no punishment without guilt.
Even the Cologne law professor Jan Orth, who is also a DFB federal judge, criticizes the reasoning of the BGH. The impression is created that “the BGH can only do justice to sports law issues with lexical relabeling,” he writes in an article in the Neue juristic Wochenschrift (NJW).
Law Professor Orth: Violation of the principle of guilt
In the MDR interview, Orth was clear: “I mean, it’s a real punishment. And if a punishment is imposed without guilt, then it’s a violation of the principle of guilt.”
The decision of the constitutional court could depend on a word, suspects sports law expert Orth. The word means: unbearable. “Is maintaining a corporate penalty against the principle of guilt an intolerable interference in the legal system?” There are different views in sports law.
Jena: “Several break points”
The association itself also justifies its approach to the constitutional court with the reasoning of the BGH. There one would have “identified several fracture points after a thorough examination.” The central approach remains the position: no punishment without guilt. “The decision made by the Federal Court of Justice violates FC Carl Zeiss Jena’s constitutionally guaranteed fundamental rights,” writes the club in its press release.
The FCC is optimistic because the Federal Court of Justice recognized in its decision that the principle “no penalty without guilt has constitutional status”.
And how does sports lawyer Orth see the chances of success for the traditional Thuringian club? “The people of Jena are not completely without a chance, because legal scholars are of the opinion that it is a punishment.” But the people of Jena must also demonstrate that it is a violation of the constitution.
Do previous penalties become void?
Should Jena be successful before the constitutional court, then “all previous decisions would be declared invalid. The DFB’s punitive practice would be assessed as a violation of principles that have constitutional status,” said Michael Daniel, the lawyer for FC Carl Zeiss. And the consequences would be far-reaching: “The DFB would have to stop or reform its previous practice of clan liability and no-fault punishment,” said the lawyer.
From a purely statistical point of view, the chances for FC Carl Zeiss are slim: 5,000 to 6,000 constitutional complaints are received in Karlsruhe every year. Just under two percent of them are approved. According to the press office, it is “unforeseeable” when the constitutional court will deal with the Jena complaint. In the best case it only takes a few months, in the worst case several years.