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What is the regulatory governance structure in professional sport in your jurisdiction?
Denmark has a long tradition of voluntary and self-governing clubs, societies and associations, both in the world of sport and in a broad spectrum of other important areas of life.
The overarching governing body for competitive sports is the National Olympic Committee and Sports Confederation of Denmark (DIF). DIF organises as an umbrella organisation 62 member federations (national sports federations), some 9,300 sports clubs and more than 1.9 million individual members out of a population of 5.75 million. The Danish Gymnastics and Sports Associations organises over 1.5 million people actively involved in voluntary community sport, while the Danish Federation for Company Sports represents about 80 local company sports associations and some 370,000 members, encouraging workplaces to engage in company sport and healthy lifestyle promotion.
DIF receives its financial support from the Ministry of Culture, but generally the government seldom interferes in sports matters, and the sports sector therefore benefits extensively from being covered by the principle of freedom of association, enjoying a high degree of independence and autonomy.
Protection from liability
To what extent are participants protected from liability for their on-field actions under civil and criminal law?
An athlete will only rarely incur liability under civil law for on-field actions unless the wrongdoer, for example, caused an injury deliberately or by the use of reckless force, and provided that the wrongdoing has no reasonable link to the specific sporting competition.
If the action is of the above nature, it must be assumed (with caution) that the courts’ assessments from a criminal liability point of view will not, as a general rule, differ only because a specific criminal offence has been committed during the practice of a sport. However, we have to some degree seen a tendency of the courts, in their sentencing, to take into account the passion, excitement and intensity that exist during sports practice as partially excusable factors. However, notwithstanding their tendency to take into account the existence of these factors during sports practice, the courts have not regarded them as excusable factors in cases of violence against referees.
What is the regulatory framework for doping matters in your jurisdiction? Is there also potential secondary liability for doping offences under civil or criminal law?
Anti Doping Danmark, a non-profit organisation that has been set up to promote the fight against doping in sport, and DIF has accepted and implemented the World Anti-Doping Agency’s World Anti-Doping Code and, in 2015, the two organisations adopted the National Anti-Doping Rules. The National Anti-Doping Rules generally apply to all athletes under DIF who engage in competitive sports. They do not apply to athletes who exclusively engage in fitness sports since these athletes are instead covered by the Danish Anti-Doping Rules for Fitness Sports.
Outside the realm of sports, production, import, export, sale, delivery, distribution or possession of particular doping substances (for instance, anabolic steroids, testosterone, derivatives and growth hormones) is an offence punishable by a fine or imprisonment for a term not exceeding two years under the Anti-Doping Act.
Moreover, the Criminal Code provides that the following acts are punishable by imprisonment for a term not exceeding six years: any person who, in contravention of the provisions set out above, supplies doping substances to a considerable number of persons in return for a large sum of money or in any other particularly aggravating circumstances; or any person who, with the intent to supply, produces, imports, exports, delivers, distributes or possesses doping substances.
What financial controls exist for participant organisations within professional sport?
The vast majority of Denmark’s non-professional sports associations are organised as voluntary associations run by a team of unpaid volunteers. This does not apply, however, to most of the sports clubs that undertake professional sports activities on a comprehensive scale, as these typically operate in corporate form (ie, either as a public limited company (A/S) or as a private limited company (ApS) under the provisions of the Danish Companies Act).
However, associations as well as limited liability companies are separate legal entities under Danish law and accordingly, in case of bankruptcy, subject to the provisions of the Bankruptcy Act.
With regard to football, UEFA’s Financial Fairplay Regulations apply to the Danish Superliga and first division clubs.
Who has jurisdiction over the resolution of professional sport disputes in your jurisdiction, and how is this determined?
As a general rule, athletes, clubs and other sports stakeholders may have a sports law dispute settled by the ordinary courts of law unless express provisions have been made to preclude such access to the courts.
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 body, 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.
How are decisions of domestic professional sports regulatory bodies enforced?
Decisions made within the sports dispute resolution system, thus decisions made by a member federation’s dispute resolution body or by the DIF Board of Appeal can only be enforced on members of DIF and may eventually lead to the expulsion of the member.
As to arbitration, a valid arbitration award made by a Danish arbitration tribunal in Denmark has a binding effect within the borders of the country, and is enforceable under the same rules as those applying to the enforcement of judgments and orders rendered by the ordinary courts of law.
Can the decisions of professional sports regulatory bodies be challenged or enforced in the national courts?
Decisions made by a Danish arbitration tribunal cannot be challenged before the Danish courts. Refusal of recognition or enforcement of an arbitration award is allowed only if the party against whom the award is invoked so requests and proves that one or more formal defects in the proceedings have been specifically identified.
Decisions rendered by DIF can in theory be challenged before the Danish courts, but this practically never occurs.
Sponsorship and image rights
Concept of image rights
Is the concept of an individual’s image right legally recognised in your jurisdiction?
The Danish Trademarks Act and the Danish Copyright Act leave famous sports professionals with limited protection of their image rights, including their picture, name, signature or other special features. Instead, protection has been developed through 50 years of case law with reference to the general provision of the Danish Marketing Practices Act (section 1) and the application of general legal principles. An individual’s image right is something that occurs in connection with the person becoming known and thus gaining a commercial value, more than something that is easily registered.
Commercialisation and protection
What are the key legal considerations for the commercialisation and protection of individuals’ image rights?
As a sports professional’s commercial value increases, he or she may become exposed to third parties potentially trying to take unfair advantage of the professional’s name, picture, signature or special feature, which in fact can be detrimental to his or her reputation or privacy. Commercialisation of a person’s image rights is therefore considered, roughly speaking, as unauthorised unless consent has been obtained from the person concerned.
How are image rights used commercially by professional organisations within sport?
As mentioned above, the athlete’s image right is personal and, as a general rule, only available to third parties if consent is obtained by the athlete. Accordingly, image rights agreements are to a large extent drafted to commercialise players’ image rights. These image rights agreements must carefully set out the scope of the agreement to prevent the athlete from infringing the rights of his or her club, national team or sponsors on account of overlapping agreements.
How can morality clauses be drafted, and are they enforceable?
It is not uncommon for employers to draft a code of conduct as an appendix to the athlete’s employment contract. The code of conduct must state the athlete’s desired behaviour as well as the kind of behaviour that will be regarded as material breach of contract, for instance, consumption of prohibited substances. The code of conduct and its morality clauses are not enforceable per se, nor are they a condition for terminating a player’s contract if he or she has displayed unethical behaviour, for instance by consuming a prohibited substance, but the code will be deemed a key factor in the materiality assessment of the potential breach of a contract.
Are there any restrictions on sponsorship or marketing in professional sport?
The Danish Gambling Act has been adopted to protect players by ensuring that gambling is provided in a fair, responsible and transparent manner, for example, by requiring a licence to organise games where participation in such games is subject to the payment of a stake.
With regard to commercial advertising and promotions of sporting events, there are no statutory restrictions that apply specifically. However, all marketing efforts must be socially responsible. As such, and as a general rule, marketing efforts are not allowed to associate alcoholic beverages with ‘active participation in sporting activities’. This does not, however, prevent producers of alcoholic beverages from sponsoring sports teams.
How can sports organisations protect their brand value?
From a legal perspective, brand value is best protected by protecting the organisations’ intellectual property rights. Danish laws protecting intellectual property rights are in compliance with EU legislation. Accordingly, trademarks and designs can be registered and protected, either as national registrations or at the EU level. National and EU registrations are equivalent with regard to enforcement. Subject to the condition being fulfilled, both registered and unregistered trademarks are recognised and protected in Denmark. In addition, Danish law provides for protection against counterfeits under the Marketing Practices Act. Enforcement is handled through the courts, the customs authorities or in some cases by the police if the requirements are met. Turnaround times vary, but action at short notice can be obtained in urgent matters.
How can individuals protect their brands?
See question 13.
How can sports brands and individuals prevent cybersquatting?
Cybersquatting is regulated by the Danish Internet Domain Act. According to the Act, it is prohibited to register and maintain a domain name registration for the sole purpose of resale or distribution. The statute applies to Danish internet domains (.dk) and internet domains otherwise associated with Denmark.
How can individuals and organisations protect against adverse media coverage?
In Denmark we value freedom of speech highly and acknowledge that most adverse media coverage is fair scrutiny that holds individuals and organisations to account. To protect and ensure that the adverse media coverage is in fact informed, true and based on fact, especially when defamatory, Denmark has adopted the Media Liability Act. According to the Act, the content and conduct of the mass media must be in conformity with good press ethics. This includes being critical to news sources and ensuring that information that may be harmful or infringing to anyone is verified and that the information is submitted to the person or organisation concerned before being disclosed to the public. Failure by the mass media to comply with the Act may result in financial compensation or criminal liability.
Which broadcasting regulations are particularly relevant to professional sports?
The Danish Copyright Act provides that radio or TV broadcasts may not be retransmitted to the public without the consent of the broadcaster. The holder of the broadcasting rights has exclusive powers to license public screenings of the particular sporting event.
Restriction of illegal broadcasting
What means are available to restrict illegal broadcasting of professional sports events?
Unauthorised public viewing activities may be challenged through various routes. The holder of the broadcasting rights may choose to bring a private cause action against infringers though the civil courts system by filing claims for injunctive relief and damages. The courts in Denmark are generally liberal in the awarding of preliminary injunctions compared to what is the case in common law jurisdictions. In case of intellectual property infringements, injunctive relief for practical purposes is considered the rights holders’ primary remedy. Instead, or in combination, unauthorised public viewing may be pursued through criminal prosecution. Thus, grave infringements of a broadcaster’s retransmission rights are punishable by imprisonment.
What are the key regulatory issues for venue hire and event organisation?
There are no statutes that specifically regulate matters regarding venue hire or event organisation. Instead, organising and conducting sporting events, whether large or small, in reality involves the formation of a large number of legal relationships and agreements (express as well as implied), including but not limited to agreements on venue, conditions of participation, participants’ fees or prizes, and spectator access.
What protections exist against ambush marketing for events?
Ambush marketing is combatted by the Danish Marketing Practices Act, which specifically prohibits this type of activity and implements EU Directive 2005/29/EC concerning unfair business-to-consumer commercial practices. Also, in severe instances liability under the Criminal Code may arise.
Proceedings for violation of the Danish Marketing Practices Act may be instituted either by the private entity whose rights are being infringed or by the Consumer Ombudsman. Both may call on other government agencies, such as police and customs authorities, to assist with the enforcement proceedings if needed.
Ticket sale and resale
Can restrictions be imposed on ticket sale and resale?
The Act on Resale of Tickets for Cultural and Sporting Events prohibits the resale of tickets at a price higher than the price at which the tickets were originally bought (including handling and fees), unless otherwise agreed with the event organiser. Any violation of the provisions of the Act is punishable by a fine, and violation occurs at the time when tickets are offered for sale in contravention of the provisions, regardless of whether such an offer results in a sale. On the other hand, nothing prevents such tickets from being given away for free - for instance, in connection with customer events - or from being offered or sold at a price lower than or equal to the original purchase price paid.
Apart from the above-mentioned Act, there is no legislation that specifically regulates the transfer and use of tickets or accreditation passes for sporting events. Accordingly, terms and conditions applicable to tickets for sporting events are merely governed by general contract law. Under Danish contract law, contract provisions will be upheld unless contrary to mandatory code provisions.
Work permits and visas
What is the process for clubs to obtain work permits or visas for foreign professional athletes, and coaching and administrative staff?
As Denmark is a member of the EU, workers and other professionals, including athletes, coaches and administrative staff from other EU member states or from the EEA or Switzerland are free to reside and work in Denmark. Such foreign nationals may reside freely in Denmark for three months, and six months if they are seeking employment. In order to stay for more than three or six months, a foreign EU national or EEA national must obtain a registration certificate. To apply for a registration certificate, athletes and other sports professionals are required to submit various documents. Detailed information can be found at the State Administration’s website. Moreover, athletes and other sports professionals are advised to visit an International Citizen Service office in Copenhagen, Aarhus, Odense or Aalborg if they need assistance with the paperwork.
Generally, for a non-EU and non-EEA national to be eligible to work and reside in Denmark, the person has to apply for a residence and work permit. However, the special individual qualifications scheme has been introduced to make it easier for non-EU or EEA athletes and coaches to obtain a Danish residence and work permit. To meet the conditions set out in the scheme, (i) employment must be based on athletic reasons, (ii) salary and terms of employment must comply with Danish standards, (iii) employment must be undertaken for a certain number of hours, and (iv) the relevant sports federation must contribute to the application by providing a statement.
What is the position regarding work permits or visas for foreign professional athletes, and coaching and administrative staff, temporarily competing in your jurisdiction?
See question 22 for EU, EEA or Switzerland citizens.
Athletes who are citizens of a country with a visa requirement can apply for a short-term visa for cultural visits to take part in a sporting event. The athlete must be able to document the purpose of the visit. The short-term visa will allow the athlete to stay for a maximum of 90 days in any 180-day period in Denmark and is normally valid for the entire Schengen region.
What residency requirements must foreign professional athletes, and coaching and administrative staff, satisfy to remain in your jurisdiction long term or permanently?
Athletes and other sports professionals covered by the EU regulations on freedom of movement can apply for a permanent residence permit after five years of continuous legal residence in Denmark.
Athletes and other sports professionals who are not covered by EU regulations need, as a starting point, to have resided in Denmark legally for eight or more years. In addition, they need to meet several basic requirements such as passing a Danish language test, accept a declaration of integration, provide proof of employment for at least three years and six months, and prove current employment.
Do the family members of foreign professional athletes, and coaching and administrative staff, legally resident in your jurisdiction have the same residency rights?
If an athlete or other sports professional obtains a work permit (see question 22), permits may also be granted to his or her spouse, registered or cohabiting partner, and resident children under the age of 18. The accompanying family members must be able to document a relation to the athlete and reside at the same address as the athlete. Furthermore, the family members must have valid passports, including children, and the athlete must be able to support them financially.
Incorporation and regulation
How are professional sporting unions incorporated and regulated?
Collective agreements are fundamental to the Danish labour market model, and trade unions therefore exist in large numbers in Denmark, each covering different industries and professions. This is no different when the union is focused on sports. A common feature of the sporting unions is that they are non-governmental and fully independent associations, each safeguarding different interests.
Can professional sports bodies and clubs restrict union membership?
Restriction of union membership is prohibited according to the Danish Freedom of Association Act. An employer cannot require the employee to join a sporting union either. It is the employee’s right to choose whether or not he or she will be a member of a sporting union. If restriction occurs, it is for the employee to prove that his or her membership of a sporting union had an influence on the employment relationship.
Furthermore, discrimination because of membership of political or religious associations is prohibited and regulated by the Danish Act on Prohibition of Discrimination on the Labour Market.
Are there any restrictions on professional sports unions taking strike action?
As mentioned above, the Danish labour market model consists of numerous collective agreements. One feature common to these collective agreements is that they impose a duty of truce on the parties until expiry, preventing them from taking strike action or at least regulating the conditions to do so.
With regard to Danish football, a Main Agreement has been made between the Danish Football Player’s Association and the League Association to facilitate the bargaining process and narrow the scope of the collective agreement. The Main Agreement sets out the overall framework for the cooperation between the parties, whereas the collective agreement sets out the player’s minimum working and living conditions. Strike and lockout action has been governed by the Main Agreement from since 1999. The Main Agreement decides when, how and on what conditions strike action may be launched.
What is the legal framework for individual transfers? What restrictions can be placed on individuals moving between clubs?
As a member of the European Union, Denmark is subject to EU rules on matters such as the free movement of labour and cross-border competition.
In its rules regulating the Danish Superliga and the first division, the League Association has introduced the home-grown rule, which means that a club, in order to have the maximum number of players accepted on its player list for the tournament in question, is required to register at least eight ‘home-grown’ players, four of whom must have been trained at the club, and the other four of whom must have been trained at another Danish club. If a club fails to comply with these rules, the number of players on the club’s player list will be reduced by the number of missing home-grown players.
Ending contractual obligations
Can individuals buy their way out of their contractual obligations to professional sports clubs?
In contrast to the Danish labour market, which is characterised (and also distinguishes itself from other EU member states) by a high degree of flexibility with respect to termination of employment in terms of ease and low cost, sports contracts are often made non-terminable during the contract period.
Unless the parties, at the time of signing the contract, specifically agree to incorporate such a term into the contract, none of the parties will generally be able to buy their way out of the contract during the contract period.
When a contractual relationship exists between two parties, it will consequently be treated as actionable conduct if a party fails to comply with the agreed terms of the contract.
What are the key athlete welfare obligations for employers?
The Danish employment law system is governed by various statutes containing both mandatory and non-mandatory provisions that, together with general legal principles, set the framework for the formation, management and termination of an employment relationship, based on the freedom of contract existing between the parties, including collective agreements. These rules and provisions basically apply to sports contracts of employment in the same manner as they govern other employment relationships.
As an example of mandatory provisions, the Act on an Employer’s Obligation to Inform Employees of the Conditions Applicable to the Employment Relationship lays down minimum requirements for the amount of information an employer must give in writing to an employee at the time of the formation of the employment relationship, thereby ensuring that documentation is available to prove on a balance of probabilities what has been agreed between the parties.
However, in addition to the minimum requirements set out in the Act, the employer is obliged to inform the employee in writing of all important conditions that, in the world of sport, could include, inter alia, agreements on future transfers, rights and internal disciplinary sanctions.
Any non-compliance with the requirements of the Act imposes on the employer a duty to pay financial compensation to the employee.
In addition to the Danish Act on Employers’ Duty to Give to Employees a Written Statement of Particulars of Employment, the Holiday Act, among other legislation, contains a series of mandatory provisions that cannot validly be derogated from, not even by express agreement between the parties, to the detriment of the employee, unless otherwise specifically provided by the Act.
Are there restrictions on the employment and transfer of young athletes?
As a general rule in relation to the conclusion of contracts of employment, young people under 18 cannot validly enter into such contracts under Danish law unless consent is obtained from a custodial parent. In addition, a number of special protective provisions apply to the employment of young people under 18.
What are the key child protection rules and safeguarding considerations?
In addition to the above (see question 32), Danish law sets out mandatory provisions requiring sports associations to collect criminal records on employees working with minors under the age of 15. Failure to comply may result in fines or criminal liability for the association.
Furthermore, the member federations themselves are safeguarding minors by sports-specific provisions. For instance, the Danish Football Association (DBU) is subject to the Regulations on the Status and Transfer of Players, including article 19, for the purpose of protecting young players from exploitation and other unfair terms.
Club and country representation
What employment relationship issues arise when athletes represent both club and country?
The main issue is often whether the club is obliged to release the player for participation in national or officially selected teams. This differs from sport to sport, but is mainly governed by the contract between the athlete and the club or by the Sport Federation’s statutes. For instance, section 7 of the DBU model player contract states that ‘the Club will release the Player for participation in any training gatherings, international matches, etc. for which the Player is selected by DBU and/or the local Union. If the player is not a Danish citizen, the rules issued by FIFA from time to time in respect of releasing players for international matches will apply.’
Selection and eligibility
How are selection and eligibility disputes dealt with by national bodies?
The Member Federations Dispute Resolution Bodies, as mentioned in question 5, will deal with disputes regarding selection and eligibility. With regard to selection, these disputes are rarely referred to the resolution system since the coach, club or member federations have exclusive competence to set the team.
What are the key taxation issues for foreign athletes competing in your jurisdiction to be aware of?
Athletes should be aware that Denmark has the highest income tax rate as a percentage of total tax revenue among OECD countries and that the general tax rules apply to them.
However, some foreign athletes may be entitled to be taxed on particularly favourable tax terms for a limited period according to the tax scheme for foreign research. The tax scheme was originally founded to attract scientist and key employees; however, it is possible to apply the scheme to, inter alia, athletes and coaches provided that they satisfy the qualifying conditions. For example, one requirement is that the employee, within the calendar year, must receive a monthly salary of at least 65,100 kroner (2018 level) before the deduction of ATP contribution (the Danish Labour Market Supplementary Pension Scheme).
Update and trends
Are there any emerging trends or hot topics in your jurisdiction?
In the autumn of 2017, on top of having won silver medals at the European Championships, heated and protracted negotiations regarding the National Team Agreement between the women’s national football team (represented by the Danish Football Players’ Association) and the Danish Football Association (DBU) led to the cancellation of the World Cup qualifier against Sweden. The women’s national team refused to play unless a new National Team Agreement was in place, and as well as lack of consensus on several financial matters, the parties had not reached an agreement on the Danish Football Players’ Association groundbreaking demand that the DBU should in future be regarded as employer of the women’s national team. Such a formal status as employees would imply, for example, rules on holidays and equal treatment, including rules on maternity leave, and notice on termination of employment. In the end, the parties came to an agreement that improved the women’s national team’s financial conditions without changing the formal status of the players and thereby the sports system as we know it. A hot topic now is that the men’s national team is about to negotiate its new National Team Agreement with the DBU. As the men’s national team is also represented by the Danish Football Players’ Association, we are in for an exciting year in Danish football.