FC St. Pauli v secondary ticket market (415 HKO 73/24)

1. CASE SUMMARY

A. Summary of facts

The football club FC St. Pauli took legal action against a secondary market platform for selling match tickets without highlighting that the tickets were subject to resale restrictions in the club's General Terms and Conditions for Ticket Sales. Section 4.4 states, among other things, that consent will not be granted if visiting rights or tickets are sold via unauthorised online ticket exchanges, such as Viagogo, Seatwave and StubHub, either directly or through third parties.

The club argued that such sales through unauthorised platforms result in a loss of the right to attend the event. If a visitor is unable to attend, the ticket may only be transferred via the claimant’s online ticket shop.

B. Legal analysis

The court ruled that ATGB clauses restricting ticket resale are valid if they serve legitimate interests, such as maintaining affordable ticket prices and ensuring stadium security. The court found no antitrust violations in these restrictions under Section 19 of the German Act against Restraints of Competition ('ARC'). While the club dominates the market for its own home games, the resale ban will not be considered an 'unfair obstruction' if it is justified by these legitimate interests and reasonable alternatives are offered, such as an authorised secondary market or return options. Although there is no direct competitive relationship between a club (the primary market) and a platform (the intermediary), a mediated competitive relationship exists because the platform promotes commercial resellers who compete directly with the club's primary sales.

2. QUOTES

"While the ticket holders and contractual partners of the plaintiff have an undeniable interest in being able to transfer their tickets to third parties in the event that they are unable to attend or otherwise lose interest in the event, this interest is already taken into account in the Ticket Terms and Conditions. Although the General Terms and Conditions for Tickets stipulate that a private purchaser of a ticket or a private contractual partner of a visitor contract may only transfer the right of admission with the plaintiff’s consent, such consent is generally granted in advance. The restrictions under which this consent is granted are not so extensive that the plaintiff’s interest in a socially equitable pricing structure would thereby be deemed secondary." (free translation)

3. RELEVANT LEGISLATION

• Section 19 ARC

4. PRACTICAL SIGNIFICANCE

The judgment makes it clear that a ban of the onward sale of personalised tickets by football clubs is not a violation of the rules on dominance.