Some weeks ago Borussia Dortmund (BVB) faced the closure of its so called “yellow wall” (which is how they call the south stand at Signal Iduna Park) for one match following a recent spate of crowd trouble during a Bundesliga match against RB Leipzig. This was due to a penalty imposed by the internal court of the German Football Association (DFB). As a result 25,000 fans were banned from watching the league match against VFL Wolfsburg. BVB provided compensation to the fans affected: holders of season ticket were offered a proportional refund of the ticket prices whereas holders of day tickets were offered free admission to the last season match against Werder Bremen.
Fair enough, but as a matter of fact: BVB supporters who planned to watch the Wolfsburg match, and who could not be blamed for any misbehaviour, were being punished for the stupidities of a few so called “fans”.
That fans are the ones to suffer from fines imposed by the Sports Court against associations is nothing new in Bundesliga history. The German Federal Court of Justice (BGH) recently decided that clubs who have been sanctioned by DFB due to actions of troublemakers shall be entitled to reclaim fines imposed from the causing spectators (BGH, decision of 22/09/2016 – VII ZR 14/16). Other than a stadium ban these sanctions target hooligans whose behaviour directly led to the punishment of the club.
Locking out fans who bought a ticket for the Wolfsburg match raises legal issues as ticket holders acquire a title to enter the stadium. What if they insist to watch the game at Signal Iduna Park?
The following legal questions arise:
- Do fans are entitled to access the stadium despite DFB’s order?
Anyone who buys a ticket for a Bundesliga match is given a contractual title against the home club to watch the match in the stadium. Under German law, the club shall be released from this obligation if (a) fulfilling the obligation becomes impossible or if (b) the DFB order eliminates the basis on which the contractual parties (BVB and ticket holder) mutually decided to enter into a contract on visiting the match.
There are strong reasons for assuming that obligations to provide entrance to the stadium become legally impossible because the club, such as BVB, are subject to statutes of DFB which oblige them to follow the instructions in the imposed penalty (and result in further penalties as consequence of non-observance of any such DFB decisions). However, being unable to provide seats to fans requires that (a) the stadium is sold out and therefore no other seat in any other part of the stadium can be alternatively allocated to the ticket holder or that (b) DFB has ordered a match to be completely carried out “behind closed doors” (so called “ghost matches”). In these cases the club becomes free of any obligations to provide entrance to the stadium whereas the ticket holder becomes free of his obligation to pay the ticket price. As a result the ticket holder must at least be refunded the ticket price.
- Do the fans concerned may claim for further compensation?
The law allows the ticket holder to claim for any losses due to the fact that obligations of the club become “impossible” to meet. However, any additional losses in favour of the ticket holder are unlikely. Where applicable, damages incurred by travelling expenses may arise. Grounds for compensation for personal suffering due to a lost visit of the stadium do not exist.
- In case of such penalties: Do clubs may release from their obligation towards the ticket holder by clauses in their terms and conditions?
A contractual release from obligations may be laid down in terms and conditions on the sale of tickets. When buying a ticket the fan usually has to declare consent to the terms. The terms become essential part of the contract on the ticket the parties enter into. With regard to the BVB case, terms and conditions may rule that the ticket buyer forfeits his right arising from the ticket in such (rare) cases where matches are ordered to be carried out without any spectators (ghost matches) and in cases parts of the stadium are closed due to penalties imposed by DFB. In any case such clauses must be clear and precise. The ticket buyer must be able to clearly identify under which circumstances he loses his rights resulting out of the ticket contract. In addition, general terms and conditions are subject to laws that prevent clubs to (a) use unclear terms or to (b) use terms that entitle them to release themselves from contractual obligations for no justified reason or to (c) disadvantage the buyer inappropriately. Such clauses can be declared invalid by a court.
Borussia Dortmund uses terms whereupon it shall be entirely released in case matches are being abandoned, cancelled or in case of ghost matches, as long as the club is not responsible for the circumstances leading to such measures.
Such clause is invalid under several aspects. Above all, the clause lacks of transparency as the cases in which it applies are not clearly defined. The ticket holder is not able to recognize, whether abandoning or cancelling matches are the result of penalties set out by DFB or other football associations or if there shall remain any other reasons.
As far as the clause refers to cancellation of matches due to fan riots, it de facto always applies at the expense of the “innocent” fan, because clubs are not at fault if their fans kick over the traces. Penalties imposed by football associations such as DFB are considered as no-fault-liability, which the courts exceptionally allow in cases where sports associations sanction their members. However, cases where clubs are liable for the behaviour of their fans are hardly to imagine and the ticket will face high hurdles to prove fault on the part of the club. Thus, such clause is unfairly disadvantaging.
Moreover, BVB not only reserves the right to release from its obligation to grant access to the stadium but also refuses to refund the ticket price. This clearly disadvantages the ticket holder to an unreasonable extent, as he bears the full risk of the club’s failure to fulfil contractual obligations as a result from third parties’ misbehaviour.
Conclusion: Fans of BVB may likely not successfully claim access to the stadium in case the stadium is closed for spectators in full or in part as result of DFB sanctions. But they definitely can claim refunds of ticket prices as well as material losses. Clubs may successfully release from their contractual obligation to grant access to the stadium either by law or due to clauses in their terms and conditions. Contractual clauses shall be clear, precise and the grounds for release must be clearly stated. Otherwise clauses are void. It is unlawful to curtail the ticket holder’s right of ticket-refund by using general terms.
