There is no triple punishment, Sepp!

To the German version of the text

The myth of an alleged “triple punishment” lives on. Even FIFA President Sepp Blatter twitters about it, saying it was “upheld” in the last session of International Football Association Board (IFAB) – the guardian of the laws of the game.

To make it very clear: Nothing like a “triple punishment” was upheld, the IFAB has simply not changed the traditional and consecutive understanding of the laws of the game. In this sense, the last part of Sepp Blatter’s twitter message expresses the correct assessment of the question.

Basically, this is a good thing, since most of the recent discussion has been remarkably imprecise. Even the wording “triple punishment” clouds the argumentation and has a populist lack of conceptual clarity.

Let’s try to clear it up a bit:

If I commit a foul in the box (coincidently preventing a goal), three things have to happen:

  1. The laws of the game provide – as a game-technical result – a penalty kick against my team.
  2. As a personal punishment, I will be sent off.
  3. According to the rules of my (local and) competent association, a time-limited ban will be imposed on me.

From the perspective of law doctrine, one can have a heated discussion on the question if the three aforementioned consequences are “punishment” in the sense of their material effect. Fewest of all the game-technical result “penalty kick” is a punishment, most of all the ban imposed by the football association is one.

The game-technical result (penalty kick) does not target the player, who infringes the laws of the game. It is simply the order of how the game is to be continued, after it was interrupted due to the foul. Thus, it is not “punishment”. Culpability or expiation is not involved; it merely outlines how to proceed with the game. And if the defense player did not manage to commit his professional foul in a timely manner and outside of the box, the consequence will be a penalty kick, because he simply fouls in the penalty box and that would lead to a direct free kick everywhere else on the pitch. Even according to the wording this is not a sanction, it is a “free kick”. This kick is “free”, because one receives it without contribution, just for the reason that the other team breaks the rules. The same applies to the “penalty kick”, although its name implies something else. At least in the German colloquial language the “penalty kick” has lost its potential character as a punishment for years, after being named “Elfmeter” (spot kick) – focusing more on the distance of the spot from the goal line. Moreover, the penalty kick was never meant to be a punishment historically. Its name obviously serves the purpose of describing its specific dangerousness, namely the highly increased likelihood of scoring a goal out of it. Hence, it is doctrinally an antecedent to a “technical goal”, known from other sports. It fulfills compensation of the violation of the laws of the game by the opposing team, however it does not fulfill expiation purposes. Consequently, a penalty kick is also a mere game-technical consequence.

The personal punishment for the player must be sharply divided from that. Herein, the personal misconduct of the player is sanctioned by the rules. This punishment is almost always based on culpability and expiates the breach of the rules against the opposing team. This punishment has general- as same as special-preventive aspects: The specific player cannot commit further violations of the rules in the respective match and generally the other players realize that unfair behavior is not accepted but sanctioned by the laws of the game: If you behave badly, you are no longer allowed to play with the others. Thus, they will avoid breaches of the rules in the future.

The next consequence is the ban of the player, who was sent off in the match, according to the statutes and regulations of the football association, in whose jurisdiction the match was carried out. For this consequence, starting point is the incident of the sent-off itself. However, valuation standard for the disciplinary proceedings is the actual behavior that ultimately lead to the sent-off. The sent-off and the subsequent ban are combined to an over-all punishment, consisting of several acts; the sent-off merges in the subsequent ban. This punishment shall animate the guilty player to rule-compliant – or ideally fair – behavior in the future. After all, this is the case for every sent-off, not only for those sent-offs being imposed due to a professional foul. This is no “double punishment”. Either one can understand the sent-off as a temporary ban until its final valuation in the association proceedings, or one can accept this fact as an allowed coexistence of disciplinary competence (like an ad-hoc exclusion from a competition after three false starts) and punishment competence of the respective associations. The severity of the misdoing can be taken into account during the subsequent disciplinary proceedings by the bodies of the football association. This means, that the player can be banned for a reasonable period according to his offence: In extraordinary cases he even can be acquitted. If he commits a “normal” professional foul – not jeopardizing the opponent’s health by holding onto his jersey for instance – a relatively short-time exclusion can be imposed to him, while a brutal attack must lead to a significantly longer ban. Anyway, even having the sum of all these consequences on my mind, I cannot identify any injustice here.

However surprising the insight may be that irregular behavior will lead to considerable consequences: this has nothing to do with “triple punishment”. Every foul that requires a sent-off brings the consequences described above. It might be a reasonable recommendation to play according to the rules, if one would seek to avoid negative consequences. That early sent-offs due to professional fouls would destroy “great games” or even “football itself”, is not apparent to me: We have seen several great fights of shorthanded teams, which have made a great match regardless of the reduction of team and even could win.

The IOC acts perversely and shamelessly [ENGLISH]

To the German version of the text 

Die IOC-Zentrale

The latest reports regarding preventive exclusion of athletes during the Olympic Games 2014 in Sochi are nothing short of scandalous and overshadow by far any other improper actions of international sports organizations. It is the perverse zenith of associational opportunism of a mock democracy, where civil rights are arbitrarily and flagrantly trampled on – before the eyes of the global community.  Out of pure fear, the IOC is caving in and tearing down the thin veil of its own inherent homophobia. The threatened arrest of athletes for violating the „Law against homosexual propaganda“ would disturb the rose-colored, anodyne sport coverage (beyond, of course, reports on the usual doping scandals to which we are now accustomed) resulting in a negative impact on the marketing of the Games. There is no doubt that the Russian government would enforce the „Law against homosexual propaganda“ against foreign athletes and punish them with fines accordingly.  The Kremlin bosses would surely find it far easier to ignore the potential uproar than the fury of the US government regarding the asylum of Edward Snowden. The primary motive of the IOC is obvious: even our own athletes will not be allowed to disturb our immaculate Olympic Games. And behind that there is – once again – only one thing: money.

Perverse and shameless – there is no better description of the juristic travesty, which the IOC is committing by disseminating the following argumentation on the subject as follows:

Continue reading

New Article: Explaining the Cologne Circumcision Decision

These are the first lines and the table of contents of my newest article „Explaining the Cologne Circumcision Decision“. It has been accepted for publication in the Journal of Criminal Law and will be printed in an immanent issue shortly.

Jan F. Orth*
Keywords: Religiously motivated circumcision; Circumcision as criminal assault; Consent to medical operation of minors; Parental rights; German criminal law

The decision of the Cologne Regional Court[1] (Landgericht Köln)[2] on religiously motivated circumcisions allegedly banned those circumcisions in Germany – or at least a part of Germany. The opinion of the court was discussed worldwide and was continually misconstrued as a broader signal emanating from Germany that reflects potential discrimination and ignorance of important religious groups and their needs. The author was the spokesperson of the court for this case, a judge himself at the Cologne Regional Court at the time. He explains the legal and factual background as well as the reaction of the German legislator to the decision. He clearly rejects the notion that this decision is discriminatory in nature. On the contrary, it shows a remarkably liberal approach, although references from its holding may indeed limit religious communities in practicing circumcisions.

For the English reader this article provides an illustrative presentation of the fundamental differences between the Civil and Common Law legal systems, an introduction to the German criminal law and therefore a distinction from “Gillick”[3], the leading case in the UK regarding consent and its necessity for medical actions on minors. In the case, the House of Lords held that minors can in some circumstances validly consent to medical treatment without additional consent from their parents and that “parental rights” are not an obstacle to this as they exist only in a sense to be a safeguard to the best interests of a minor. This article shows that there is a tension between this and the current German approach. Obviously, the German understanding of “parental rights” goes distinctly further. […]

Read more… in an immanent issue of the Journal of Criminal Law

Table of contents:
1. Initial Remarks
– Judges and Spokespersons.
– The Reputation of Germany in the International Community.
2. Should judges decide critical and complex socio-political questions?
3. The case history of the circumcision decision
4. The decision
– Proceedings.
– The law on medical operations.
– Contents of the opinion.
5. Binding effect and legal as well as practical consequences of the decision
6. Reactions to the court
7. Reaction of the German legislator
8. Reception in the German population
9. Outlook

 


* The author is a Judge and worked at the Cologne Regional Court at the time the Court rendered the circumcision decision. He was the Spokesperson of the court on duty for this particular case. Currently, he is seconded to the Ministry of Justice of North Rhine Westphalia. Moreover he is an Adjunct Professor at the University of Cologne. […] The views expressed in this article are the personal ones of the author only. They do not necessarily correspond with the views of the Judge concerned, the Cologne Regional Court, its Chief Justice (President) or the Justice of the State of North Rhine Westphalia. The author wishes to thank Mr Jeremy DeWaal, Nashville, for proofreading the text.

[1] Regional Courts (Landgerichte) in Germany have chambers for criminal and civil law cases, both as court of first instance and as court of appeals. In this case, the chamber acted as a court of appeals. “Landgerichte”, often translated also as “District Courts”, are intermediate courts, which have superior courts above them and lower courts below them. However, in order to distinguish them from the “District Courts” in terms of the US-American legal systems, it should be noted that German Regional Courts are state courts (not federal courts), which nevertheless apply and enforce federal German law, like the German Criminal Code (StGB) or the German Civil Code (BGB) for instance.

[2] The Cologne Regional Court is one of the largest Regional Courts in Germany. It has jurisdiction over more than two million residents in its district and about 150 permanently employed full-time judges.

[3] Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402.

 

Picture reference: Picture taken from http://commons.wikimedia.org/wiki/File%3ACovenant_of_Abraham.JPG. Attribution: By Cheskel Dovid (Own work) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC-BY-3.0 http://creativecommons.org/licenses/by/3.0/, via Wikimedia Commons

Robbie Rogers – No surprise that he is American

Another gay footballer has come out. Robbie H Rogers has earned our respect for taking this brave step and making public what most of us consider private: his sexual identity. His sexuality is of interest only because he is a football player and a celebrity. Who else would care if we put it on our blog? In the case of Robbie Rogers, the whole world cares. Even Sepp Blatter twittered about it; former teammates commented that the media coverage was enormous. Where were they when they were needed?

Apparently the gay football community still has not got what it ultimately wanted; Robbie Rogers, a good-looking footballer, an Olympic Games participant, a player in the US National Team, and – as a team member of Leeds United – a player of the Championship League in England, has come out. There is no doubt that Robbie, a flagship-sportsman, is someone you like to be associated with. He is not the Lionel Messi or Cristiano Ronaldo superstar type of guy, an outstanding champion and national team captain who can be deified by boys and girls – the kind of guy the gay community would worship as their all-time idol if he came out. Why are we still waiting for him? And though Robbie, with his record, is quite close to the prototype of such a hero, there is still the most unhelpful blemish: with his coming out he quit playing professional football.  We still will not know what it is like when an „out“ player enters the pitch in a packed Premier League stadium, what the opposing fans are going to yell at him in an away game, what his teammates will say when he walks into the shower room, and what the newspapers will write when his tackling is not manly enough. Whether our society is really ready to welcome and accept an „out“ gay footballer in the world of football, we will only know once these questions are answered. The fears that gay professional footballers have to experience are so great and the answers to these questions are obviously still so elusive that coming out as an active pro is not an option. This is the sad message: the societal deficit is the actual scandal behind Robbie Roger’s confession and a societal challenge we all have to face.

Until we are confronted with such a situation in the routine of League plays, all of the well-intended, and sometimes trustworthy, promises of all these prominent club managers, league as well as association officials, and Blatters around the globe offer nothing more than lip service. I truly believe that in the leading positions of the superior clubs and associations there are some very sophisticated, liberal, and open-minded persons, who really mean what they say if they address any conceivable support for a football pro who decided to come out publicly. I also believe that these people are open to gays and lesbians in their private life and have their promoted views on the everyday relevance of a person’s sexual identity. I feel that if the situation demanded, they really would act in a protecting and supporting way, taking the position that being gay or lesbian is naturally recognized and accepted in our modern society. My only fear is that they would still be in a minority in football.

Through my intense and long years in the organized structures of football, I could reach other conclusions. Though homosexuality, especially in football, is a problem of generations that the views of our youngsters have drastically shifted towards an understanding that being gay or lesbian is purely natural, the views of a remarkable number of persons in clubs and associations still differ from this ideal. They are usually older and have possibly never knowingly seen or spoken to a gay boy or a lesbian girl. From their intuition they know perfectly well that „diversity and tolerance“ must be promoted – and, of course, they claim publicly that homosexuality in football is not a problem, that it must be normal, and that its non-acceptance would be discriminatory. The very moment the word „gay“ leaves their lips, they have unnatural sodomy, paedophilia, and sexual availability on their minds. For them, homosexual love is inconceivable as anything other than sin. They feign acceptance because they have to, because it is modern and follows the zeitgeist when they are actually not free in thinking and acting. They are full of prejudices and are literally afraid of the great unknown. Homosexuality is suspicious. If these people know that someone is gay, a lifelong stigma is then attached to this person. If the majority of the people in football still thought and behaved like this, any pro who came out would go through hell.

However, football has another very positive side. There are educated and liberal decision-makers who steer this discussion in the right direction. Some few people completely free of homophobia and with trustworthy activities to fight it in the area of amateur football can also be found in my home association. The efforts and activities of the former president of the DFB (German Football Association), Dr. Theo Zwanziger, were always true and authentic. They led to the long overdue beginning of a discussion in German football on this matter. Today, the subsequent continuing work of the DFB on the topic, by a group consisting of distinguished experts under the lead of Prof. Gunter A. Pilz, ensures an ongoing discussion, necessary enlightenment, change in perception, and preparation for “the big case.“ Here, we are headed in the right direction. The challenge will be to break these insights down from peak level of organized football to the basis of the sport in the subdivisions and the local clubs – even in the sticks.

We know from the public reactions to Robbie Rogers coming out, that he will be safe. He does not have to fear any prospective disadvantages. I do not know where he is going to live out the remainder of his life; He could be planning on staying in London, as his blog says, or in the US, where he tweeted from last. I do not know what his professional plans are for his future. One thing I can say for sure is that his public coming out will not have an impact on his professional life – as long as he is not a professional football player. Either in the US or in Europe, as a gay man you can have a career. In the everyday labour life, outside of sports, one’s sexual identity does not seem to play a decisive role anymore. There are, however, still nuanced differences. Although Germany has a gay foreign minister and a gay mayor in our federal capital, during the time I lived in the US, I always had the impression that being gay was more naturally and professionally accepted in the American society than in my home country. Americans seem to be more educated and developed regarding this topic. It is not likely that this impression can have come from the proverbial small-talk abilities of American people, but when one tells of their homosexuality there, the pressure to justify oneself is not felt in the slightest. The further questions of the conversation partners felt a little more normal, and they seemed more honestly interested than they do back here. It really could be that the call for political correctness – sometimes ridiculed by Europeans – combined with a deep respect for individuality, personal space, and privacy – surely founded in the American history – tip the balance here.

For me, it is no surprise that Robbie Rogers is American. And, as this case perfectly shows, we all still have a lot of work to do over here, especially in football.