Terms and Conditions and Prohibited Clauses

Prohibited clauses in player contracts of esport teams

A few days ago, I reported how many types of contracts are in fact to be regarded as GTC. In addition to the employment contracts, player contracts or leases mentioned therein, things such as contracts for streamers of streaming networks, cooperation agreements for influencers as well as a contract for a freelancer, sponsorship contracts for esport teams are considered as GTC. The only condition for this is that the contracts, or even some of the clauses, were intended for multiple use and that the individual clauses and content were not really negotiable. In case of doubt, the agent of the contracts/GTC is in doubt for this circumstance. Often, simply from the business processes, it may even be difficult to impossible not to use gtC. That’s okay, too. This only means that, as a user of a general meeting, one should be aware of the consequences, even if only that contracts may not be as easy to formulate as clients often think. In fact, I assume that the vast majority of lawyers will find it difficult to completely circumvent all the problems of GTC law. As the person who has concluded a contract and who does not agree with a consequence of it or is surprised by it, one should also consider an examination with a lawyer. Because often enough clauses could be ineffective, whether one did not think it yourself and even though the contractual partner often shouts first “Why? You signed that? Then so it applies!”.

Which clause is not allowed to be used or, which are ineffective?

If contracts or sections of contracts are to be regarded as GTC, this means that these clauses are subject to the GTC law of the German Civil Code (BGB) and, in general, may not, in general, be detrimental to the recipient. But what types of clauses are a special no-go?

Clauses that contradict or deviate from applicable law as well as which violate basic ideas of central norms of German law are not permissible and ineffective. There is, of course, an almost unmanageable amount of court decisions. And often extreme details in the formulation are important. Clauses must also not be surprising (i.e. hidden somewhere and not connected to the actual purpose of the contract).

Important clauses

Particularly important for the areas i am looking after as a media lawyer are also

• The settlement of debts and claims between the contracting parties that have not yet been legally established is not permitted.
• The determination of flat-rate claims for damages is not permitted.
• The imply implay of a contractual penalty in the event of non-performance of the contract by the consumer is null and void
• The right of withdrawal in the event of defective delivery or the right of withdrawal in the case of distance contracts cannot be overridden.

In addition, it is not possible to state that declarations are to be made in a particular form.

Other problematic clauses

Especially in the case of contracts that start-ups do and who may want to sell their project to investors at some point, it should be noted that an automatic exchange of the contractual partner is not permitted.

It should also be noted that contracts for services and regular deliveries may have a maximum duration of 2 years when classified as GTC. Nor can it be regulated that the ordinary judicial proceedings are excluded.

Many other clauses can be ineffective or the exact wording depends. For example, a so-called double written form clause may be ineffective, at least as long as both sides are not merchants, which in turn is not necessarily the same as the fact that both sides act commercially!

In case of doubt, an entire clause is ineffective and the law is deemed to have been no contract at all. It is particularly important to know that it is not possible to reinterpret a clause to a possible level. Hopp or Topp applies here. In case of doubt, therefore, there are no important standards that have been expected. In principle, it is also possible, of course, if the contracts become known to competitors that a competitor sends a warning. This is often due to obvious clauses, such as the use of a salvatory clause!

There are, of course, a large number of other clauses that are prohibited, for example in the relationship between distributor and customer with regard to trade issues, price adjustments and other consumer rights.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.