Draft:Stadionverbots-Decision

The Stadionverbots-Entscheidung (Beschl. v. 11.04.2018, Az. 1 BvR 3080/09) (literally: Stadium-Ban-Decision, also known as the Stadionverbots-Beschluss) is a decision by the Bundesverfassungsgericht, the German federal constitutional court, in which a football fan unsuccessfully attempted to have his ban from german stadiums to be found to be unlawful. The court set a higher standard for banning a fan from all stadiums for alleged misconduct, declaring some applicability of mittelbare Drittwirkung in regards to procedural rights and equality to their treatment of fans. However, general bans remain permitted even if the subject is not proven to have committed a crime, as long as there is a reasonable concern about future disruption. The decision impacted how other actions of structurally powerful companies, particularly social media companies, are evaluated.

Legal Proceedings
The constitutional complaint was filed by a fan of FC Bayern Munich and member of the Ultras, who at the age of 16 visited the club's football game against MSV Duisburg in 2006. At the game, he was alleged to have been part of a verbal and physical confrontation with fans of the other club, and was among the around 50 people arrested. The criminal complaint for breach of the peace was discontinued by the prosecutor as being insignificant. Nevertheless, FC Bayern München removed his club membership and his season tickets. Additionally, at the suggestion of the local police force, MSV Duisburg issued a stadium ban, which prohibited him from entering any football stadium in the country until 2008, without allowing the fan to be heard by the decision-making body.

The suit began with the goal of having the original decision lifted, and continued afterwards with the desire of having the actions retroactively found to be illegal. The lower courts denied the claim, and the Bundesgerichtshof found that the organisation may not act arbitrarily and needed to respect basic rights insofar they were included inside civil law. However, they may base their decision on future risk (based on past conduct) even without a criminal conviction, as was the case here.

The fan claimed that the lower courts did not sufficiently consider the Drittwirkung of Art. 3 Abs. 1 and Art. 2 Abs. 1 of the Grundgesetz (GG), which led to his Verfassungsbeschwerde being accepted. However, while the complaint was accepted, the fan ultimately did not succeed before the court.

Being the first time that the court considered a case of Art. 3 Abs 1. GG, the court affirmed that there is no general requirement to be non-discriminatory within private business relationships. Therefore, there is no general "Kontrahierungszwang", a requirement to enter a contract against your will. According to the decision, a stadium ban per se would not trigger the requirements for equality; however, the impact of this ban, which was enacted nationwide due to a cooperation between the clubs, did ("spezifische Konstellation"). Therefore, the lower courts have to apply standard derived from administrative law to such private actors, leading to claims that they are now partially obligated to respect basic rights in the same way the state is.

Impact
The ruling altered the requirements for equality for access to public events. The decision, which was made by the full senate, which only rules jointly every few years, confirmed the applicability of the Drittwirkung to this type of cases, mandating the an explanation, justification and that the affected person must be heard. Robert Golz, an Attorney with a specialisation in sport and media law, argued that the significance of the ruling may be applicable to a variety of similar situations, such as the exclusion of critical journalists from press conferences or the exclusion of users from social media platforms without an adequate reason.

In particular, this decision combined with other decisions means that large and structurally powerful social media companies such as Facebook do not have a general right to arbitrarily delete legal content, but must instead respect procedural right and the principal of equality, particularly providing the user with an explanation for the action and the right to be heard, if the company is not selective about their users and has a large impact on social life.