Damages for failure to nominate for Olympic Games

Where an athlete achieves the objectively stipulated performance requirements for nomination to a particular sporting event, he has an enforceable claim to nomination. In the field of athletics, the German Olympic Sports Confederation (DOSB) is responsible for the final nomination of German athletes for the Olympic Games. A prerequisite for nomination is the fulfilment of sport-specific nomination criteria in temporal proximity to the sporting event.

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With regard to the 2008 Olympic Games in Beijing (15 to 24 August 2008), the DOSB established the "2008 Nomination Guidelines", which stipulate so-called A and B standards for male triple jumpers. The standards could be satisfied alternatively, whereby the A standard provided for a distance of 17.10 m, the B standard "2 x 17.00 m".

The triple jumper Charles Friedek achieved a distance of 17.00 m in the preliminary round and 17.04 m in the final round at a single competition within the nomination period. In subsequent competitions, he did not achieve a distance of 17.00 m again, whereupon the DOSB rejected nomination with reference to the nomination guidelines. In its view, the B standard could only be achieved through corresponding performances in two different competitions.

The athlete subsequently sued the DOSB in court for damages in the amount of over EUR 130,000 for allegedly lost appearance fees, prize money and sponsorship fees. The Regional Court (LG) initially granted the claim in principle, but had not yet decided on the amount of damages. The Court of Appeal (OLG) took a different view and dismissed the claim on the grounds that the athlete had not achieved the performance requirements under the correctly interpreted nomination guidelines (B standard) in two different competitions and had therefore not met the criteria.

The Court's decision

The Federal Court of Justice (BGH), which was seized with the appeal against the appellate court judgment, annulled the latter by judgment of 13.10.2015 (Az. II ZR 23/14) and thereby restored the first instance judgment in favour of the claimant. The DOSB, as a monopoly association, is obligated to nominate all athletes who meet its self-imposed nomination criteria. According to the court's view, this obligation was culpably breached. The nomination guideline is to be interpreted to the effect that the B standard can also be achieved by achieving a distance of 17.00 m twice in a single competition. The Regional Court (LG) will now have to decide on the amount of damage incurred and to be compensated in a second proceeding.

Conclusion

The judgment once again demonstrates that athletes are not left defenceless against the monopolistically organised sports association system. However, the missed opportunity can hardly be fully compensated due to the passage of time, particularly in sport, where the window for peak performance is very limited and missed competition successes cannot be made up. It is to be hoped that ultimately at least the economic loss will be fully compensated.