Dealing with Doping as a Criminal Offence
The Danish Anti-Doping Act (Dopingloven) stipulates that production, import, export, sale, delivery, distribution or possession of particular doping substances is a criminal offence punishable by a fine or by imprisonment of up to six years in severe cases.
Illegal doping substances include anabolic steroids, testosterone and growth hormones.
In May 2020, a 42-year-old man was found guilty of being in possession of a large amount of doping substances and was sanctioned with two years' prison.
Anti-Doping Denmark (ADD) is a non-profit independent state organisation that promotes integrity in sports by fighting the use of doping.
The Sports Confederation of Denmark (Danmarks Idrætsforbund, DIF) is the most important governing body in the sector. DIF is an umbrella organisation in which 62 specialty sports associations are members, consisting of more than 9,000 sports clubs with approximately 2 million individual members – a remarkably high number, bearing in mind that Denmark has a total population of approximately 5.8 million.
ADD and DIF have accepted and implemented the World Anti-Doping Agency's (WADA) World Anti-Doping Code. In 2015, the two organisations adopted the National Anti-Doping Rules in which the Code was implemented.
The specific substances that are listed on the WADA prohibited substances list (eg, anabolic steroids or ephedrine) are also prohibited in Denmark.
Elite or Competitive Level
The National Anti-Doping Rules apply to all members of DIF that practise sports on an elite or competitive level. A violation of the rules may be sanctioned with a ban of up to four years.
DIF's Anti-Doping Committee (Dopingsnævnet) is the overseeing body handling cases regarding doping, and decisions made by this committee can be appealed to the DIF’s Highest Instance of Appeal (DIF-idrættens Højeste Appelinstans). In cases related to athletes competing on an international and professional level, decisions can also be appealed to CAS.
Elite competitive athletes are under an obligation to participate in doping controls on a regular basis at the competitions, as well outside of the competitions. Athletes who fail to comply with controls may also be sanctioned.
Hobby Level and Grassroots Sports
ADD has made separate anti-doping rules that apply for sports practised on a hobby level, covering the rest of DIF's members and the Danish Gymnastics and Sports Associations (Danske Gymnastik- & Idrætsforeninger, DGI), the Danish Federation for Company Sports (Danmarks Firmaidrætsforbund) and association-based gyms.
A violation of the rules may be sanctioned with a ban of up to two years. The Doping Committee for sports practised on a hobby level is responsible in handling these cases; their decisions are subject to appeal to the Doping Instance of Appeal.
ADD has also made separate anti-doping rules that apply for the commercial gyms who have entered into collaboration agreements with ADD. A violation of the rules may be sanctioned with a ban of up to two years. The owners of the different gyms are responsible in handling the cases.
Recent Noteworthy Cases
It is evident from Anti-Doping Denmark’s annual report of 2019 (2020 has not yet been released) that in 2019 there were 12 elite/professional athletes that were found guilty of doping offences.
In three cases the maximum ban of 4 years was applied, as follows.
In recent years, former professional bicycle riders such as Rolf Sørensen, Michael Rasmussen, Brian Holm and Bjarne Riis (winner of Tour de France 1996) have all publicly admitted to having used doping.
Morality clauses are in general used in professional sports clubs as codes of conduct to help regulate the behaviour of athletes. These morality clauses are normally an appendix to the athlete's employment contract and state the desired behaviour of the athlete and the consequences of breach of such behaviour – eg, consumption of prohibited substances on the WADA anti-doping list.
Match-Fixing and Other Misconduct
Match-fixing is governed by public law and private rules – for example, by the Sports Confederation of Denmark (Danmarks Idrætsforbund, DIF) and the Danish Football Association (Dansk Boldspil Union).
In their Regulation No 8 – The prohibition of manipulation of sports competition (match-fixing) and corresponding unethical behaviour – DIF has defined match-fixing as: "Actions that result in an irregular change or impact on the course or outcome of a sports competition or its individual events in order to gain an advantage or gain for oneself or others and remove all or part of the uncertainty normally associated with the course and outcome of sports competitions". [our translation]
Furthermore, DIF has specified some concrete examples of such actions – for example, intentional underperformance or defeat and bribery, threats or participation in other coercive behaviour towards a person to change or influence a particular outcome of a sporting event.
DIF has its own match-fixing committee which – in accordance to the rules stipulated in Regulation No 8 – can sanction clubs, judges, officials, players or any other that falls within the jurisdiction of DIF.
In the aforementioned regulation, DIF decided not only to sanction match-fixing but also corresponding unethical behaviour such as use of inside knowledge and sports betting on players' own competitions and tournaments.
The sanctions to be imposed by DIF in cases of match-fixing or corresponding unethical behaviour include:
DIF takes aggravating as well as mitigating circumstances into its assessment when determining the sanction. The decision made by the committee can be appealed to DIF's Highest Instance of Appeal (DIF-idrættens Højeste Appelinstans).
There have not been many cases of match-fixing or corresponding unethical behaviour in Danish sports, but some of the most recent cases are:
Additional Steps Taken to Deal with Integrity Offences
DIF, the most important sports governing body in Denmark, and the Danish Football Association are both members of the national platform for combating match-fixing. In addition to these, the platform also includes the Ministry of Culture, the Danish Gambling Authority, the State Prosecutor for Serious Economic and International Crime, the Danish Online Gambling Association and Anti-Doping Denmark.
The platform was created by the Ministry of Culture in 2014 with Denmark's ratification of the Council of Europe Convention on the Manipulation of Sports Competitions. The platform is the leading initiative in Denmark in terms of combating match-fixing.
DIF has also created an independent ethics committee and whistle-blower scheme in which, for example, players can anonymously report unethical behaviour.
In Denmark, betting can legally be offered by any operator who holds a licence granted by the Danish Gambling Authority (Spillemyndigheden) in accordance with the Danish Gambling Act (Spilleloven).
The Danish Gambling Act and the executive orders on land-based and online betting govern betting in Denmark.
It is not, under the currently applicable Danish legislation, illegal for athletes to bet on sports. There is an ongoing political debate about banning professional athletes from betting on sporting events where they participate themselves, but under the current legislative regime it is up to the contracts of the athletes and the ethical rules of their clubs and national sports association to place any restrictions on athletes' access to sports betting. The main argument for introducing such prohibition is that athletes' gambling problems can make them vulnerable and receptive to coercion and threats from match-fixers to actively engage in match-fixing.
In 2014, the Danish national platform for the combatting of match-fixing was established. One of the main purposes of this platform is to share information between betting operators and sportsbooks, the governing bodies of the Danish sports associations and the relevant Danish authorities.
There have not been any cases where athletes have been sanctioned merely for placing bets on sports, as such action is not currently illegal under Danish law.
A sport's governing body – such as the Sports Confederation of Denmark (Danmarks Idrætsforbund, DIF) – will, depending on its assessment of the specific case, initiate a disciplinary proceeding.
The sanctions to be imposed by DIF in cases of doping, match-fixing or corresponding unethical behaviour include:
Denmark has had problems with "ambush marketing" – ie, when companies or associations associate themselves with popular athletes or sports clubs' brands and logos without prior consent.
Commercial rights’ proprietaries are heavily engaged in combating "ambush marketing" and have so far been successful in civil suits against the infringers in the Danish courts.
Ticket Sale and Resale
The Danish Act on Resale of Tickets for Cultural and Sporting Events (lov om videresalg af billetter til kultur- og idrætsarrangementer) regulates the reselling of tickets and prohibits resales at a higher price at which the tickets were originally sold for, unless consent is given by the organiser. However, companies may buy tickets to the events and give them away or resell them at a lower price.
The Use of Sponsors in Denmark
Sports are generally very popular as entertainment in Denmark, and this popularity makes sponsoring sports events an attractive way to promote a brand in the country.
Often sponsorship agreements allow sponsors access to the sports rights-holders data and allow participation in the promotion of a popular event to enhance awareness of the sponsor’s brand and products.
Attracting Sponsor Investments
Sponsor agreements often allows sponsors a wide range of opportunities, from getting the brand name included in the name of the event, access to athletes as ambassadors for the brand of the sponsor to tickets and merchandise for the event and/or the team.
In addition, private networking events are often also offered to the sponsors.
The Normal Scope of Sponsorship
There are few statutory restrictions that apply in regard to commercial advertising and promotion of sporting events by the sponsors.
Generally, marketing for pharmaceuticals, alcohol and tobacco products are prohibited. In addition, advertisement for gambling products targeted at persons under the age of 18 is also prohibited. This, for instance, excludes the sale and marketing of merchandise in children's sizes when one of the sponsors who have a logo or name on the merchandise is a gambling operator.
Broadcasting Rights in Denmark
In Denmark, the broadcasting rights are in general owned by the sports federations and their clubs jointly, normally with a monopoly on the broadcasting rights for the sports federation in question.
The broadcasting rights to a specific event such as a football match are normally sold on an exclusive basis, whereas the broadcasting rights to a tournament including all the matches are sold exclusively or to different buyers depending on the tournament, the division and the media in which the broadcasting is to take place.
For example, The Danish Football Federation (Dansk Boldspil Union) has sold the broadcasting rights of the first-level football league, Superligaen, to the two private companies Nordic Entertainment Group and Discovery Networks; however, in regard to the third-level league (2 Division) it is sold exclusively to the private company Ekstra Bladet.
To secure the required permissions for each sport event would be resourceful. In practice, the solution has been intermediary companies buying the TV rights and then offering packages including rights of transmission of most sport events.
In general, broadcasters make their profit through these intermediary companies or by selling their rights directly to, for example, TV stations. Furthermore, the broadcasters may also enter into advertising agreements and may also offer subscription services to view their matches.
Restriction of Illegal Broadcasting
Unauthorised public viewing activities may be dealt with by various means, the normal procedure being to bring a course of action against infringers to civil courts by filing claims for injunctive relief and damages.
In general, the Danish courts are liberal in awarding preliminary injunctions compared to common law jurisdictions. Instead, or in combination, unauthorised public viewing can also be pursued through criminal prosecution.
The proprietary rights in sports events are mainly pertaining to broadcasting, trade marks and copy rights.
The sport event organisers control the rights such as access and obtaining footage of the event by entering into specific partnerships and agreements prior to the event.
The general provisions of consumer protection law will always be applicable in cases where a professional sports event organiser enters into contracts of participation, etc, with consumers.
Also relevant in terms of broadcasting rights are the provisions of the GDPR and the proprietary rights to the individuals’ name, etc.
Organisation and Management of Sport Events
The organisation and management of sport events are dealt with in accordance to the specific rules adopted by the different sports federations. Thus, all the federations – such as the Danish Tennis Federation (Dansk Tennis Forbund) and the Danish Swim Federation (Dansk Svømmeunion) – have their own specific rules. Normally, the rights between the federation and the clubs are decided in the rules and also to which extent the clubs/sport event organisers may differ from the rules.
However, there are mandatory laws such as the Act on Safety at Certain Sporting Events (lov om sikkerhed ved bestemte idrætsbegivenheder) that must be complied with when organising a sport event.
The same applies in regard to the participation in sport events, as this matter is also subject to some mandatory laws and is also specifically dealt with in the different rules of the sport federations.
Duty of Care in Denmark
The organiser of any event is always responsible and liable for the safety of the participants under Danish law and, as such, the organisers have a duty of care towards the participants as well as the spectators of an event.
This is primarily regulated in the Danish Torts Law (Erstatningsansvarsloven) and the vast case law connected with this piece of legislation.
Liability for gross negligence and wilful conduct can never be excluded by an event organiser under Danish law. It is a generally accepted principle that participants accept the risk of participation in an event, and that the organiser of the event is not liable for any damage or injury which may occur during the participation in the event, provided that such incident and/or injury is not unusual for this kind of event – for example, a dislocated shoulder as a result of a legal tackle in handball.
How Can Athletes' Liability Be Limited?
Athletes will seldom incur a civil or criminal liability as it is the general rule that participants or spectators in a particular sport accept the inherent risks of that sport.
However, an athlete can be liable for his or her own actions during the sporting activity – for example, if the athlete injures an opponent or a spectator deliberately or with gross negligence, especially if the wrongdoing had no reasonable connection to the specific sport activity.
There has been a tendency in regard to criminal cases in which injuries were made against opponents, in which the courts have taken the passion and excitement that exist during sport activities into consideration as a mitigating circumstance. However, this does not apply in cases of violence against referees.
Organising a Safe Sporting Event
At bigger sporting events, both orderlies and security guards of the event organiser and the police are usually engaged in ensuring safety inside as well as outside of the facility where the event takes place, and preventing violent interaction between overly enthusiastic fans.
It is also a generally accepted and commonly used measure to exclude and ban individuals that have shown aggressive and violent behaviour in the past from being present at sporting events. For example, football hooligans usually get banned from entering any football stadium in Denmark.
Some sport federations have adopted rules and measures in which they are competent to sanction the clubs involved if sporting events are not conducted safely.
Recently, The Danish Football Association (Dansk Boldspil-Union, DBU) sanctioned the Danish football team Brøndby IF with a fine of DKK10,000 as one of their fans had thrown a draft beer in a plastic cup at the referee in the match against FC Midtjylland.
In a noteworthy case, DBU sanctioned both football teams due to their fans’ behaviour during a match in December 2019, there being pyrotechnics and fireworks during the match. FC Copenhagen was sanctioned with a fine of DKK200,000 and Brøndby IF was sanctioned with a fine of DKK50,000. It is perhaps worth noting that it was the 17th time that Brøndby IF have been sanctioned by DBU during a period of 12 months.
Denmark has a long and rich tradition of voluntary sport clubs and associations. The voluntary commitment of managers and administrators is not only the foundation of sports in Denmark, but also a cornerstone in Danish cultural life in general.
Legal Forms of Sporting Bodies
Non-professional sports clubs benefit from being covered by the principle of freedom of union and enjoy a high degree of independence and autonomy that this legal form contributes. They are generally financed by their members paying membership fees and sponsors. The members of management, usually unpaid and based on voluntary commitment to a sport or an association, are ultimately personally financially liable for the association in which they constitute the management.
The most successful sports associations in the major sports such as football and handball would typically establish their professional teams in a limited liability company.
In modern professional sports the financial aspects are often significant and it becomes relevant to protect the amateur sports activities of the sports clubs and the management of the sports club from financial difficulties in the professional department.
In addition the structure of a limited liability company allows the options of raising funds by trading shares on the stock exchanges and/or to get large, financially strong owners to support the professional sports activities of the club.
Any Sport-Specific Corporate Governance Codes?
Most sports federations, associations and clubs are organised as associations or clubs.
Other than basic principles and a few key cases from the courts developed over more than 100 years of organised sport, there are no specific laws or regulations governing sports clubs and associations.
The few cases that have made it to the courts are typically cases which touch upon corporate governance setting guidelines for, in particular, management of the finances of the sports club.
These guidelines, however, are not unique to sports clubs but apply to all associations in Denmark including body corporates in apartment buildings, art associations, etc.
The only fixed set of rules to abide by are the by-laws of the association. These are determined and approved by the general members meeting, which must be held once a year.
Non-compliance with the bylaws and the basic principles established by case law is typically personal liability for any loss of a third party, including creditors in case of bankruptcy or similar.
The consequences of a bankruptcy from a sports point of view will typically be disqualification from professional sports, which will lead to relegation to the amateur leagues for a football team.
How Is Sport Funded?
Danish sports are mainly funded by membership fees from the members of the sports club, and some public funding.
The local municipalities have a legal obligation to make available both indoor and outdoor facilities to support sports activities and the cultural enlightenment and education of the Danish population.
In addition to making available the infrastructure and facilities, the municipalities have legal authority and obligations to support sports associations and other associations financially.
A part of the profits from the state-owned gambling operator’s (Danske Spil A/S) activities from the so-called "monopoly games" like the national lottery, scratch cards and similar games of chance not covered by a casino licence is distributed to sports clubs by the two largest umbrella organisations, the Danish Sports Confederation (Danmarks Idrætsforbund) and the Danish Gymnastic and Sports Association (Danske Gymnastik- & Idrætsforeninger) both of whom own 10% of Danske Spil A/S.
Certain elite sports in which sports organisations and the Danish government see potential for Danish athletes winning large international tournaments and competitions such as the World Cup, European Championship and the Olympics get additional funding to support and develop the most-talented Danish athletes in the sports in which Denmark has traditions and historically has achieved great success. This funding comes from the state of Denmark rather than the municipalities.
Impact of the COVID-19 Pandemic
See 9.1 Impact of the Pandemic for the impact on Danish sports of COVID-19.
Private and Foreign Investments
In alignment with recent trends within Danish football, the professional football team of Esbjerg fB has recently been bought by an American investor.
With the purchase of Esbjerg fB, there are now nine Danish top league clubs that are either fully or partly owned by foreign investors. Furthermore, the national trend is in alignment with the wider trend of European football that wealthy private investors own several football clubs in different countries and leagues.
One recent noteworthy deal is the acquisition of 22.5% of the shares in the listed company owning the Danish football team FC Copenhagen (ie, Parken Sport & Entertainment A/S) made by the Danish businessman Lars Seier Christensen in March 2019 with private equity funds. Lars Seier Christensen has previously invested in other sports clubs within cycling, ice hockey and esports.
Fighting for Athletes’ Rights
An important development in regard to the athletes and their rights has been that athletes have, through their associations, brought forth claims/demands of employment status equal to that of salaried employees.
So far, however, the athletes have only succeeded in getting public attention to their uncertain employment conditions. Recently an attempt to secure maternity leave rights for the players on the women’s national football team failed.
How to Register Trade Marks
There are two ways to obtain proprietary rights to a name/trade mark in Denmark.
The best regulated and most secure protection against infringement is to register a trade mark with the Danish Patent and Trademark Agency (Patent- og Varemærkestyrelsen) in accordance with the provisions of the Danish Trademark Act (Varemærkeloven). A trade mark intended to have wider protection can also be registered as an EU trade mark in accordance with European Union law, and through WIPO registered rights to any jurisdiction can be obtained. It is a prerequisite for maintaining the protection of the trade mark registration that the trade mark is being used in connection with a commercial activity.
In regard to non-professional sports, the solution has been to apply a lenient interpretation in which the non-professional sports associations’ sales of merchandise at their sporting events has been considered sufficient to qualify as commercial activity.
Alternatively, using a name or trade mark in connection with commercial activities is sufficient to obtain protection for the trade mark in connection with the sale of goods or services constituting the commercial activity. The scope of protection in this regard is very limited and does not extend outside of Denmark.
Words that are not distinctive but part of the everyday language cannot, as a default rule, be registered. A word or name in connection with a logo can almost always be registered as a figure mark or logo.
In regard to the requirement of distinctiveness, there was an interesting court ruling in 2013 by the Danish Maritime and Commercial Court (Sø- og Handelsretten). The case was between football’s Danish League (Divisionsforeningen) and the partly state-owned entity for Danish gaming (in Danske Spil). The highest league within Danish football is the Superligaen and the Danish League is the owner and administrator of this league. The matter of the dispute was whether or not Danske Spil were entitled to use the trade mark "Superligaen" as the Danish League claimed that it was a trade mark with sufficient distinctiveness. The Danish Maritime and Commercial High Court ruled in favour of the Danish League and found that the trade mark had sufficient distinctiveness, thereby entitling protection.
Advantages of Registering a Trade Mark
The obvious advantage of registering a logo (eg, the logo and name of a sports association) is an undisputed right to use this name and logo in connection with commercial activity. This extends to the right to sell official merchandise, and also to prevent and prohibit the use of the trade marks by any third party, and it is an important legal tool to fight copies of official merchandise, as well as other infringing use of logo and player uniforms (eg, from gambling companies).
Copyright in Denmark
The principal source of law in Denmark relating to copyright is the Copyright Act (ophavsretsloven), which is based on various EU directives.
A person creating a literary or artistic work has instantaneously copyright and the right can only be validated or annulled by the courts in an infringement court case. Thus, there are no requirements for copyright registration or other formalities under Danish Law. This also extends to the creation of a database which will enjoy independent copyrights as a database.
Furthermore, copyright protection is applied to performances of performing artists, producers of moving pictures, etc. Thus, live transmission of sport events may enjoy copyright protection.
The duration of the copyright protection is normally 70 years after the year after the author's death (Section 63 of the Copyright Act). The protection of foreign works generally lasts as long as for Danish works.
No separate administrative body deals with general copyright disputes in Denmark and these are subject to normal court and alternative dispute resolution proceedings such as arbitration.
The Danish Ministry of Culture (Kulturministeriet) has issued an executive order giving copyright protection in accordance with the Copyright Act for all works originating from countries that have acceded to the Berne Convention, the WIPO Copyright Treaty or the WIPO Performances and Phonograms Treaty, among others.
The Danish High Court (Landsretten) ruled in July 2020 in favour of the Spanish La Liga Nacional de Fútbol Profesional against Puerto 80 Projects SLU in their claim that Puerto 80 Projects SLU's publicly accessible live transmission on the internet of the claimant's football matches constituted a violation as transmission of their football matches were subject to copyright protection. The protection was given as the High Court found that claimant's recordings of the football matches were made by the claimant's own employees or collaboratives in which free and creative choices were made.
The copyright notice "©" has no legal effect in Denmark. However, the label may be used to indicate that the owner of the work considers it to be copyright-protected.
What Are the Common Defences and Exceptions?
The most common defences of an alleged infringer are to claim:
In Danish legislation, there are no general doctrines of "fair use" or "fair dealing".
Any person or legal entity performing an infringing act can be sued for copyright infringement.
The Copyright Act does offer situations in which the use of copyright-protected works without consent are allowed. In this connection, the Supreme Court's Ruling (Højesteret) in the case between Koda and FOF of 30 October 2017 is relevant. In the judgment, FOF was exempted of infringing Koda's copyrights of music (Koda being the Danish collecting society of musicians) as the Supreme Court found that FOF's use of the music in their sports classes happened for educational activities, which is one of the exemptions of using copyright-protected works without consent.
Thus, as long as music is used during a sports-related educational activity, one may be exempt of infringing the copyright. However, this requires a specific interpretation of whether or not the sport activity falls under the category of "educational activity".
How to Enforce the Copyrights and Available Remedies
A first step in enforcing a copyright is often through a preliminary injunction, as this generally provides the fastest remedy to immediately stop the infringing activity. Copyright infringement proceedings can also be initiated and are required to obtain compensation or damages. In general, a preliminary injunction must be followed up by regular court proceedings or it will be lifted.
Criminal proceedings may also be initiated if the infringement was committed intentionally or through gross negligence.
The available remedies in a copyright infringement action are:
Sports Image Rights
In Denmark, there are no laws governing the legal recognition for sport image rights. However, the basis for legal sports image rights is derived through general legal principals, the general provision in Section 1 of the Marketing Practices Act (markedsføringsloven) and case law in which the Supreme Courts (Højesteret) established the basis in its verdict No 126 of 1965, the Buster Larsen case.
In Denmark, sports associations and federations are active in claiming their image rights, as seen in other countries such as England and the USA.
The Supreme Court case No 174 of 2008 dealt with sport image rights. The case was between the media company Aller Press A/S and the Danish women’s national handball team's goalkeeper at that time, Karin Mortensen. She claimed that the media company had violated her image rights by printing posters of her and given them as attachments to their magazine when purchased by the readers. The Supreme Court found that the media company had violated her image rights as the posters were not found to be of an editorial nature and there had been a commercial exploitation without consent, thereby entitling her to damages.
An athlete's image right is personal and in general only available to third parties if consent is given. Image rights agreements are therefore used to commercialise the athlete's image rights. It is important when drafting these agreements that attention is given in regard to not infringing the rights of other entities such as the athlete's club, national team or sponsors as overlapping agreements may cause conflicts.
Sports clubs and athletes normally exploit their IP rights through licensing by means of partnerships or agreements.
These partnerships and agreements are subject to freedom of contract (with exception to the mandatory Danish provisions) in which the main law governing contracts is the Danish Contracts Act (Aftaleloven). Thus, it is important that the scope of the partnership or agreement is fully described.
Ultimately there are no restrictions on assigning IP rights under Danish law, with one of the very few exceptions being that an artist/inventor or other IP right-holder always has a right to be mentioned as the creator or inventor of something enjoying IP rights. This right of recognition cannot be assigned.
Sports data is based on various sources and pertains, amongst others, to:
The data is typically gathered and analysed by the different stakeholders such as marketing companies, broadcasting companies or gambling companies. The data is used for different purposes, but mainly for boosting sales or gaining a competitive advantage in the actual competition or in a sports bet.
There is no specific data protection law that only governs sports data – the data is governed by the European General Data Protection Regulation of 25 May 2018 (GDPR), which in Denmark is implemented in the Data Protection Act (Databeskyttelsesloven).
The GDPR entered into force on 25 May 2018 and was the toughest privacy and security law within data protection yet seen. Thus, new restrictions and obligations were implemented in Denmark and, even though we are now approaching the third anniversary of the GDPR's implementation, many companies are still failing to comply with the "new" rules.
This is also the case for the various sports federations, associations, clubs, etc. These entities deal with information that falls under the scope of the GDPR rules, mainly in respect of the information on their members.
The Danish Data Protection Agency (Datatilsynet) is the controlling authority and is quite active in securing compliance. However, the agency has so far focused on bigger companies, with Ddesign A/S receiving a fine of EUR200,000 for non-compliance.
The top-level Spanish football league received a fine of EUR250,000 as they were found to have used a mobile app which violated the GDPR rules. It is an example which shows that compliance within the sport sector should be taken seriously.
It is worth highlighting that the GDPR does not only impose obligations on European countries – it also imposes obligations on organisations anywhere in the world if they target or collect data related to people in the European Union.
Exhausting Governing Sport Bodies' Internal Dispute Resolution Mechanism
Sport federations have as a general rule organised and stipulated their own dispute resolution systems and rules. The Sports Confederation of Denmark (Danmarks Idrætsforbund, DIF) consists of more than 60 special federations with their own rules and systems, such as the national federations for football, handball and swimming, with a total of more than 9,000 sports clubs.
The 60-plus special federations have jurisdiction over their members and their decisions are subject to appeal to DIF's Highest Instance of Appeal (DIF-idrættens Højeste Appelinstans). which is the highest court within the sports dispute resolution system. Stakeholders that fall within the jurisdiction of DIF must exhaust DIF's international dispute resolution mechanism, the Highest Instance of Appeal, before being able to bring the matter before the Danish courts.
While the Instance's decisions can be challenged before the Danish courts, this almost never occurs in practice. An exception to this rule is decisions made in doping cases regarding Danish professional athletes that have competed in an international competition. These cases are only subject to appeal to CAS.
Sports disputes that fall outside of DIF's jurisdiction (which are rare) can be brought before the Danish courts unless the parties have agreed to alternative dispute resolution.
In addition, an association or federation is allowed to organise its dispute resolution system at its own discretion. The 62 member federations of DIF have their own dispute resolution bodies, but DIF’s Board of Appeal is the highest judicial sports body in Denmark, with jurisdiction across all of DIF’s 62 member federations. This does not, however, apply to decisions made by the arbitration tribunal of a federation.
The Danish National Courts and Their Role in Sports Disputes
The court system in Denmark has three levels in its hierarchy:
Unless a case started in the High Court as first instance, appeal to the Supreme Court requires a special permission.
The Danish Administration of Justice Act (Retsplejeloven) does not distinguish between normal civil cases and sports cases.
Sport federations have as a general rule organised and stipulated their own dispute resolution systems and rules. These alternative dispute resolution (ADR) mechanisms must be followed prior to involving the national courts.
Other than the dispute resolution rules and procedures of the sport federation, these alternative dispute resolutions are governed by Danish legislation pertaining to alternative dispute resolution in Denmark such as:
There are various ADR systems in Denmark as each federation may have implemented their own rules in regard to dispute resolution. There are by-laws made within the different federation in regard to the ADR process but also to the field-of-play decisions.
The dispute resolution under the Sports Confederation of Denmark (Danmarks Idrætsforbund, DIF) is of most importance in Denmark. Furthermore, as stipulated in 4.1 Legal Sporting Structures, DIF has more than 60 associations under it and more than 9,000 sport associations and thus is the biggest sports federation in Denmark.
DIF is organised as a "triangle" with the DIF Board of Representatives at the apex as the highest governing body; in their by-laws, it is a requirement for the federations that they have established an internal and independent ADR process.
The different federations' ADR decisions are all subject to appeal to DIF's Highest Instance of Appeal (DIF-idrættens Højeste Appelinstans) which is the highest ADR instance within DIF and has roots back to the establishment of DIF in 1886. The Instance of Appeal, also in referred to as the "supreme court of sports", is a very cheap ADR process as it is in general based on voluntary work.
DIF's Instance of Appeal's remedies include the following:
Furthermore, DIF also has ADR rules and bodies in regard to anti-doping and match-fixing (please see 1.1 Anti-doping and 1.2 Integrity). The decisions of these are also subject to appeal to the Instance of Appeal but may also be brought directly to the civil courts.
Even though it is possible, the decisions of DIF's Instance of Appeal are seldom brought before the courts, mainly due to the fact that:
Sports governing bodies have the power, through their rules and general conditions for membership and participation, to exclude any association and/or athlete who does not comply with the rules of the governing body and decisions of the Instance of Appeal.
If an athlete or sports club does not comply with the Instance of Appeal’s decision, the specific sport association can, according to their specific rules, impose further sanctions such as:
The different sport federations’ decisions within the Sports Confederation of Denmark (Danmarks Idrætsforbund, DIF) are all subject to appeal to DIF's Highest Instance of Appeal (DIF-idrættens Højeste Appelinstans), which is the highest alternative dispute resolution instance within DIF.
The Instance of Appeal's decisions may be brought to the civil courts, but in practice this seldom happens. However, if the case is an anti-doping case in which the athlete is a professional athlete at an international level and the case is pertaining to an international competition, then the case can only be appealed to CAS.
The federations and other entities may agree to different dispute resolution mechanisms (eg, CAS arbitration) and will under these circumstances be bound to such an alternative dispute resolution process.
Employment of Athletes
The employment conditions of athletes differ considerably depending on the sports and the clubs. In some cases, the athletes are employed on normal conditions entitling them to the rights that follow the Act on Salaried Employees (Funktionærloven) – for instance, protection against arbitrary termination, salary during illness and paid maternity and paternity leave.
In other cases, the athletes are employed on the basis of individual sports contracts that fall outside the scope of the Act on Salaried Employees.
In countries such as the USA and Australia it is normal that the specific sports associations agree to a limit on the amount of money that a team can spend on players’ salaries (ie, salary caps). This is very seldom the case in Danish sports.
Issues in Regard to Representing Club and Country
A problem for sports clubs is their athletes' participation in national team activities such as matches, tournaments, training, etc, as these athletes are missed in the clubs during their participation.
The question of whether or not a club is obliged to allow the athlete participating in the activities depends on the specific sport and the individual agreements made between the club and athlete and also the agreement made between the clubs and the sport association.
In most sports, especially handball and football, the agreement is that the athletes are free to participate in national team activities and competitions.
Ending Contractual Obligations
There exists a high degree of flexibility in Danish labour law in regard to termination of employment in terms of ease and low cost of dismissal for normal employed athletes on the basis of the Act on Salaried Employees.
However, for athletes employed on the basis of individual sports contracts, the practice has been that the contracts are non-terminable during the contract period.
Unless specifically agreed between the parties, a party may not buy its way out of terminating a contract prior to the fixed termination date. An unjustified termination of the contract may constitute a material breach of the agreement entitling a party to claim damages. Thus, consultancy with adequate legal advisers prior to such termination is highly recommended.
An important recent development in regard to the rules governing employer/employee rights in a sport context is that athletes through their associations have brought forth claims of changing the structure under which they are hired by the national teams.
The athletes are claiming that the national teams are effectively employers and so should hire the athletes as employees in accordance with the Act on Salaried Employees (Funktionærloven). This would change the legal status of the athletes, entitling them to various benefits.
A noteworthy dispute that recently has arisen is the case between the woman's national football team and the Danish Football Association (Dansk Boldspil Union), in which the woman's national football team brought forth such claim but were unsuccessful, as the Danish Football Association denied their claim due to the enormous financial burden that it would impose. See also 4.4 Recent Deals/Trends.
Denmark is a member of the EU and this means that workers and other professionals from other EU member states or from the EEA and Switzerland are covered by the EU regulations on freedom of movement and may freely reside and work in Denmark. This principle was also established to be applicable for athletes by the European Court of Justice in the landmark Bosmann ruling.
This means that in terms of capping the number of foreign athletes, distinction must be made between EU/EEA foreigners and foreigners from the rest of the world.
The imposed restriction on capping the number of athletes varies depending on the specific sport and the applicable rules in the sports federations. For example, in Danish football the UEFA "home-grown rule" means that Danish football clubs in the country's first and second-level leagues must have at least eight "home-grown" players (ie, players of Danish nationality). Furthermore, the rule requires that four of these have trained at the club and the other four have trained at another Danish club.
For a non-EU, non-EEA and non-Swiss national, it is the general rule that they must apply for a residence and work permit to be eligible to work and reside in Denmark. However, with the implementation of the Special Individual Qualification Scheme it is now easier for such application and obtainment of relevant permits for certain people, including athletes, coaches and administrative staff.
To comply with the regulations, it is a condition that an employment relationship based on athletic reasons exist and the salary and conditions of employment must comply with Danish standards and, most importantly, the relevant sports federation must contribute to the application by providing a statement.
If an athlete or other staff obtains a work permit, permits may also be granted to his or her spouse, registered or cohabiting partner and children.
In general, it is the Danish Agency for International Recruitment and Integration (Styrelsen for International Rekruttering og Integration) that is the relevant governmental authority when applying for the above-mentioned permits.
Denmark is among the leading countries within esports (electronic sports). The main esports played in Denmark are Counter Strike, Call of Duty, League of Legends and FIFA.
Esport has existed since the 1970s, with simple games such as ping-pong, but it was at the beginning of the 2000s that esport's popularity rose, and since then it has shown precedented growth rates.
Danish esports now have upwards of 500,000 active players, making it one of the most popular sports in Denmark.
Denmark has some of the leading teams within esports (eg, Astralias and North), and the country is currently ranked in second place behind South Korea in the ESL Intel Extreme Masters, which is the longest-running global pro gaming tour in the world.
Furthermore, the Danish Esport Society is very active in regard to hosting esports events, competitions and LANs (local area networks) such as GGW, NPS and Copenhagen Games which have experienced numbers of players exceeding 4,000.
Today there are more than 250 esport associations in Denmark, with the main federation being Esport Danmark. The federation was founded in 2007 and was financed and driven on a voluntary basis until recent years, at which point the Ministry of Culture allocated resources to the federation. Esport Danmark helps the 250-plus esport associations in regard to various matters such as management, establishment, by-laws, sponsors, funding, events, webpages, etc.
Esports in Denmark is generally organised within associations; few clubs are organised and founded as companies. The Danish esport club Astralis Group is the largest esport club in the country and was publicly noted on the First North Growth Market in December 2019 with a market value of +DKK500 million.
Legal Issues within Esports
As esport is relatively new, it operates within untrodden areas, where the regulations and applicable rules are still being developed by applying some principles from existing sports regulation principles and evolving new regulations to meet the special requirements and circumstances around esports.
There are still no well-established dispute resolution organisations within esports comparable to the systems of DIF (see 6.2 ADR, Including Arbitration).
Nonetheless, the associations have raised the need of such an ADR organisation as there have been unsettled disputes in which players or teams have been banned from participating in games or tournaments.
In many sports, such as football, rules have been adopted in which fees are paid to the clubs training the professional athlete through, for example, training compensation and solidarity contribution. Such rules are yet to be adopted within esport.
The legal challenges in esport generally pertain to the same issues as normal sports – employment, trade marks, funding, broadcasting, sponsorships, etc.
COVID-19's Impact on Esports
COVID-19 has been the reason for some esports (especially LAN) events being cancelled. However, due to the nature of esports the organisers of events have been able to reschedule events to only take place online with the possibility of online streaming.
COVID-19 has arguably had a positive impact on esports in Denmark as, due to lockdown and social distancing, the number of players involved and the time spent have risen.
The COVID-19 pandemic has had a tremendous impact not only on sports events but also on the sport clubs' training opportunities.
Many clubs have not been able to facilitate normal/regular training of their athletes during the COVID-19 lockdowns.
The extent to which the different sports have been affected by COVID-19 has varied depending on the nature of the sport.
Indoor sports have been affected to a larger extent than outdoor sports. Indoor water sports such as swimming and water polo have been shut down completely as swimming pools have been completely closed, with the exception of a few weeks. Conversely, outdoor sports such as biking, running and sailing have not been restricted to any severe degree.
It was clear at an early stage of the COVID-19 pandemic that it would have an extensive and unprecedented impact. For example, Japan's Prime Minister Shinzo Abe and the International Olympic Committees decided in late-March 2020 to postpone the Tokyo 2020 Olympics.
Therefore, it came as no surprise that most of the sport events that were scheduled to take place in Denmark were either cancelled or postponed once Denmark experienced an extensive shutdown during spring 2020.
Some professional events took place in Denmark: the 2020 European Women's Handball Championship and the Danish Superligaen (the highest league in Danish football) were allowed to take place, although with practically no spectators.
According to specialists’ calculations, Danish professional football stands to suffer losses of more than EUR100 million from missing ticket sales.
COVID-19 Relief Packages
The Danish government and a united Danish Parliament have passed several COVID-19 Relief Packages for all businesses in Denmark, including sport clubs, sport events and sport associations. Furthermore, the Relief Packages also includes fully foreign-owned companies operating in Denmark.
The Ministry for Industry Business and Financial Affairs (Erhvervsministeriet) administrates the relief packages. Some of the relief measures adopted which are relevant for sports are:
Following Brexit, the UK is no longer bound by a series of EU legislation such as the rules in regard to trade marks and in regard to the freedom of movement.
Thus, when applying for a European trade mark, a person or company will now have to apply separately for the UK. Furthermore, UK athletes, coaches or administrative staff may no longer freely move to Denmark in order to work.