Competitions in the mountains

Literature

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Materials

Bericht des Bundesrates vom 10. Dezember 2021 zur Strafbarkeit des Selbstdopings im Sport (zit. Bericht zur Strafbarkeit von Selbstdoping); Bericht des Bundesrates vom 7. November 2012 über die Korruptionsbekämpfung und Wettkampfmanipulation im Sport (zit. Bericht über die Korruptionsbekämpfung und Wettkampfmanipulation im Sport); Botschaft zum Sportförderungsgesetz und zum Bundesgesetz über die Informationssysteme des Bundes im Bereich Sport, BBl 2009 8189 ff.; Doping-Statut Swiss Olympic vom 26. November 2021 (zit. Doping-Statut); Dopingliste Swiss Sport Integrity 2023 (zit. Dopingliste); Empfehlung der Ad-hoc-Kommission Schaden UVG Nr. 1/94 Kostenvergütungen (Rettungs-, Bergungs-, Reise- und Transportkosten, Unterkunfts- und Verpflegungskosten) vom 18. November 2016 (zit. Empfehlung der Ad-hoc-Kommission Schaden UVG); Europäische Kommission, Das Europäische Sportmodell, Diskussionspapier der GD X, November 1998; Gönnerbestimmungen der Rega (aktualisiert am 1. Juli 2022); Internationale Wettkampfordnung (IWO), Band IV, Gemeinsame Bestimmungen Ski Alpin, Ausgabe September 2022 (zit. internationale Wettkampfordnung der FIS); Normen des Schweizerischen Ingenieur- und Architektenvereins (SIA; zit. SIA-Normen); Rahmenvereinbarung zwischen der Schweizerischen Eidgenossenschaft und der Stiftung Swiss Sport Integrity vom 9./16. Dezember 2021 (zit. Rahmenvereinbarung 2022 bis 2025); Reglement betreffend das Verfahren vor der Disziplinarkammer des Schweizer Sports (VerfRegl; zit. Verfahrensreglement der Disziplinarkammer); Richtlinien der Kommission für Rechtsfragen auf Schneesportabfahrten der Seilbahnen Schweiz (SBS; zit. SBS-Richtlinien); Richtlinien der Schweizerischen Kommission für Unfallverhütung auf Schneesportabfahrten (SKUS; zit. SKUS-Richtlinien); Statuten Swiss Olympic vom 26. November 2021 (zit. Statuten Swiss Olympic); Swiss Ski-Wettkampfreglement 2023 Ski Alpin; The World Anti-Doping Code (WADA; zit. WADA-Code); UCI- und nationales Reglement des Radsportverbands «Swiss Cycling», Teil 4, Mountainbikerennen; Verhaltensregeln des Internationalen Skiverbandes (FIS; zit. FIS-Regeln); Wettkampfreglement Zermatt-Marathon 2023; Zusatzbotschaft vom 19. September 2014 zur Änderung des Bundesgesetzes über die Unfallversicherung, BBl 2014 7911 ff.

I. Introduction

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Switzerland is known as a mountain and winter sports nation as it is geographically shaped by the Alps to 60% and has around 250 ski areas with over 7,000 km of slopes, cross-country ski trails of 5,500 km length, and mountain bike routes of 9,800 km length (Switzerland Geography - Facts and Figures; Slope Kilometers; Cross-Country Ski Kilometers; Trail Kilometers).

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The sports competition is at the center of societal interest and carries the values and virtues attributed to sport to the outside. No later than with the appearance of the song "Alles fährt Ski", well-known in Switzerland and set to music by Vico Torriani in 1963, in which the rise of skiing to popular sport was recorded in music history, and the successes of the Swiss ski national team at the end of the 60s and the beginning of the 70s, alpine ski races are given great societal importance (Ski-NZZ). Thus, spectators flock en masse to the ski races, including in Adelboden and Wengen (see for example Ski Races-Adelboden). Also, popular races held in the mountains, like the Engadine Ski Marathon in winter or the Jungfrau Marathon in summer, are immensely popular, both with athletes and the public. In events of this magnitude, a variety of legal questions can arise. The following contribution provides an overview of various legal issues related to the organization and execution of a competition in the mountains.

A. Definitions

1. The Sports Competition

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The Swiss legal system does not contain an actual legal definition of the term "sports competition". Only in connection with the doping provisions in Art. 75 para. 2 SpoFöV, a description of the term "sports competition" is made, according to which all sports events that are organized and carried out by the umbrella organization of Swiss sports and the sports associations affiliated to it, as well as their subordinate associations and clubs, or according to the provisions of an international or national sports association, are considered such (Rauch/Schönenberger, Rz. 15). A further definition of when a competition is considered as such can be found in the doping statute of the Swiss Olympic Association (also called Swiss Olympic) and in the respective valid so-called doping list. According to the definitions in the appendix of the doping statute, a competition is in particular a single race, a single fight, a single game or a single sports competition, such as a basketball game or the final of the Olympic 100-meter sprint in athletics. Furthermore, the doping statute states that in stage races and other sports competitions where prizes are awarded daily or at other time intervals, the delineation established in the rules of the respective International Sports Federation for competition and competition event applies (Doping Statute, p. 57). The respective valid doping list also conclusively states that in principle, the period from 11:59 pm on the day before a competition for which athletes are set up until the end of this competition and the sample collection in connection with this competition, counts as in competition (Doping List, p. 3).

2. The Concept of the Mountain

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The term "mountain" is neither defined nor limited in the Swiss legal system, even though Art. 50 para. 3 and 85 para. 3 BV refer to the so-called mountain areas. The special situation of the mountain areas primarily results from their geographical-topographical location, which is characterized by high-lying settlement areas and production areas, a low population density, and scattered settlements (see Art. 7 FiLaG). The agricultural production register offers guidance for the demarcation of mountain areas (see BSK BV-Meyer, Art. 50 N 40). The importance of the distinction between city, agglomeration, and mountain areas is low in connection with sports competitions. The same legal provisions apply for competitions in the city as well as in the mountains. Any mountain-specific peculiarities, especially in the field of environmental protection and rescue, are pointed out in the corresponding section (see below Rz. 105 ff. or 111 ff.).

3. The Association, Society, and Club

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Both athletes (or professional sportspeople) and hobby mountain sportspeople can be members of a society or sports club. Swiss association law does not know a legal definition of a society. The majority opinion defines the society as a corporately organized personal connection with a fundamentally ideal (non-economic) purpose, to which its own legal personality is attributed (Hausheer/Aebi-Müller, Rz. 1172; Tuor/Schnyder/Schmid/Jungo, § 14 Rz. 14; Meier-Hayoz/Forstmoser/Sethe, § 20 Rz. 5; BSK ZGB I-Scherrer/Brägger, before Art. 60-79 N 1).

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The colloquial term "club" is not a form of society of the Swiss legal order and accordingly not a legal person per se (BSK ZGB I-Reitze, before Art. 52-59 N 6). However, clubs are mostly organized as societies in the sense of Art. 60 ff. ZGB, which is why these two terms are often used synonymously in general language use.

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The sports society (or sports club) represents the designation of the lowest organizational unit in the pyramidal structure of sports (Hügi Sports Law, pp. 4, 60 f.). This structure has historically grown "from the bottom up" - namely through the founding of societies, which eventually merged into respective sports-specific specialist sports federations and cross-sports umbrella organizations (Hügi Sports Law, p. 61).

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An association is generally understood to be the merger of natural persons, societies, or other corporations into a mass organization of significant economic, social, or political importance (Philipp, p. 9; Gurovits Kohli, p. 292). The athletes and hobby mountain sportspeople are, as members of the society, indirectly also members of the respective associations (Federal Supreme Court Decision 119 II 271 E. 3.b; Zen-Ruffinen, Rz. 385 ff.; Baddeley Diss., pp. 103 ff.; Pachmann Sports Federations, pp. 28 ff., 325 ff.; Philipp, pp. 109 ff.; Steiner Submission, pp. 130 ff.; Adolphsen Doping Sanctions, pp. 70 ff.; Hügi Sports Law, pp. 61 f.).

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The so-called umbrella organizations, which represent the interests of the respective sport at the national or international level, as well as all other associations - as long as they are domiciled in Switzerland - are usually also constituted as a society in the sense of Art. 60 ff. ZGB (Gurovits Kohli, p. 292). Associations and societies are free to organize their sport largely by themselves. This freedom is the result of the private-law association or society autonomy, which is not explicitly anchored in law (unlike the freedom of association in the sense of Art. 23 BV). Express statutory restrictions on this autonomy only occur in relation to the design of the organization and membership relations (see Art. 63 ZGB) and generally by the provisions of Art. 52 Para. 3 ZGB and Art. 19 Para. 1 OR (Philipp, pp. 22 ff.; Fenners, p. 53 f.; BSK ZGB I-Scherrer/Brägger, before Art. 60-79 N 9; Gurovits Kohli, p. 292).

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On the one hand, a distinction is made between sport-specific specialist sports federations (e.g. the International Ski Federation [FIS]) and cross-sports umbrella organizations (e.g. the International Olympic Committee [IOC], the Swiss Alpine Club [SAC], or the Swiss Mountain Guide Association [SBV]), the latter of which are only rarely directly involved in competitive sports (Hügi Sports Law, p. 4). On the other hand, there are sport-specific federations at different hierarchical levels - for example, the national ski federation "Swiss Ski" and the regional ski federation "Berner Oberländische Skiverband" belonging to it (The European Sports Model, p. 3; Hügi Sports Law, pp. 59 f.).

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In Switzerland, Swiss Olympic is both the National Olympic Committee and the umbrella organization of Swiss sports. The members of Swiss Olympic include 83 national sports federations and 27 partner organizations (Overview Swiss Olympic). In total, this indirectly makes 18,310 societies part of the umbrella organization "Swiss Olympic" (Details Swiss Olympic). Members include, among others, the Swiss Ski Federation "Swiss-Ski" and the Swiss Hang Glider Association "SHV". Almost all the sports or their federations considered in this mountaineering commentary are members of Swiss Olympic.

B. Tasks of the Federations and Societies in Mountain Sports

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The aforementioned private autonomy of the federations and societies (so-called right of self-determination) enables them to enact their own statutes (so-called design autonomy) and to administer the federation affairs within the framework of the applicable regulations (so-called application autonomy; Philipp, p. 23 f.) (Gurovits Kohli, p. 293). Due to the need for uniform rules for the respective sport and the respective competition, the enactment and enforcement of these rules always proceed "from top to bottom" (Zen-Ruffinen, para. 103 ff.; Pfister, pp. 15 f., 187 f.; Mätzler, pp. 55 ff.; The European Sports Model, p. 3; Hügi Sports Law, p. 61).

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The pyramid structure implies that the federations and societies, on the one hand, have to thoroughly check the compatibility of the new regulations they intend to implement with the superior law. On the other hand, they have to ensure that the rules they enact always correspond with the rules of the federations superior to them, as these rules are constantly being adapted.

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Often, the federations or societies also act as organizers of sports competitions. The organizer is defined, not uncontroversially, as the one who is responsible for the event in organizational and financial terms, takes over its preparation and execution, and bears the entrepreneurial risk (Heermann Liability, N 9; Eichenberger, p. 11; Kubli, p. 23; Heermann/Götze, p. 22; but see Wiegand Law of Obligations, p. 17; Groda, p. 52; Reichert, p. 75; Arter/Gut, p. 22).

C. Regulations of the Federations and Societies

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Due to their design and application autonomy, the federations and societies can largely freely shape the relationship with their members and thus also with the athletes. They can enact, apply, and enforce their respective internal law if necessary (Bodmer, p. 42; BSK ZGB I-Scherrer/Brägger, before Art. 60-79 N 20; Philipp, p. 23). Limits are set to the federations and societies on the one hand by the statutes they have enacted themselves and on the other hand by mandatory law (law, public order, personal rights, and good morals; BSK ZGB I-Scherrer/Brägger, before Art. 60-79 N 21; Gurovits Kohli, p. 293).

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This law – detached from the state legal system – autonomously enacted (so-called self-regulation) is referred to as lex sportiva (Adolphsen lex sportiva, p. 281 ff.; Rigozzi, p. 627 ff.; Buck-Heeb/Dieckmann, p. 84 ff., Mätzler, p. 139 ff.; Wax, p. 173 ff.; Hügi Sports Law, p. 26). In addition to this law set by the federations and societies, the general legal principles of sports belong to the lex sportiva. These are further developed by the case law of the "Tribunal Arbitral de Sport" (or also "Court of Arbitration for Sport"; short "TAS" or "CAS"), which is usually the exclusively and finally competent arbitration court of the sports federations (cf. for exceptions following para. 24 f.) (Schleiter, p. 76 ff.; Buck-Heeb/Dieckmann, p. 85 f.; Mätzler, p. 139; Hügi Sports Law, pp. 26 f., 59).

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Typical examples of self-regulations are the competition regulations enacted by the sports federations. In addition to sport-specific rules of conduct and measures, these also contain the rules for judging internal disputes within the federation (Fenners, p. 27; Gurovits Kohli, pp. 293 f.).

1. General

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The statutes enacted by the federations and societies mainly serve the organization and regulation of the relationship to the members. They are enacted in the competition area by the international and possibly national sports federation and are qualified as implementing provisions, which supplement sport-specific rulebooks (von der Crone/Pachmann, pp. 107 ff.; Vieweg, pp. 10 ff.; Koch, p. 928). The main goal of these rulebooks is to standardize the respective sport and to ensure its comparability (Vieweg, pp. 10 f.; Thaler Sports Rules, p. 136; von der Crone/Pachmann, p. 109; Zen-Ruffinen, para. 103).

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The requirements for these rulebooks increase in terms of the principle of legality under the law of societies with the size of the society, higher level of hierarchy, and the associated smaller influence of the addressees (von der Crone/Pachmann, pp. 117 f.). The rulebooks can be divided into organizational rules, which concern provisions on the separation of powers, responsibilities, or controls; the game or competition rules, which directly regulate the actual course of the competition and indirectly also typify the competition (Vieweg, pp. 10 f.); and finally the sports rules, which include all other rulebooks determining the practice of sports (such as admission or disciplinary rules) (Hügi Sports Law, pp. 101 ff. m.w.H., 106).

2. The Competition Rules in Particular

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Competition rules primarily serve the equality of opportunities and should ensure the orderly and smooth running of a competition (Heermann Association Autonomy, pp. 361 f.). In this context, game or competition rules in the narrow sense can be distinguished from those in the broader sense (Hügi Sports Law, p. 103).

a. The Competition Rules in the Narrow Sense

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Competition rules in the narrow sense concern the entire order in which a single competition (such as the Jungfrau Marathon), a competition series (such as the Alpine Ski World Cup), or a championship (such as the Mountain Bike World Championship) is held. On the one hand, it is about defining the competition as such in its basic form and setting the rules of action that directly determine the course of the competition typical for the sport (Fenners, p. 118). On the other hand, competition rules also specify how the result of the competition or the result of the entire competition series is to be determined concretely (Fenners, p. 118; Pfister, p. 25).

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Competition rules in the narrow sense are enacted by the national sports federations for national competitions (possibly according to the specifications of the international federation) and by the corresponding world sports federations for international competitions (Hügi Sports Law, pp. 103 f.). For example, the national ski federation "Swiss Ski" has enacted a competition regulation, which must be taken into account by all organizers, their auxiliary persons, and the participating athletes in competitions listed in the national competition calendar (see provision 200.1 of the Swiss Ski competition regulations 2023 Alpine Ski). In contrast, the international competition rules of the FIS always apply to competitions listed in the competition calendar of the International Ski Federation (FIS) (see their provision 200.1). Finally, certain competition regulations exist for a specific competition, such as the competition regulations for the Zermatt Marathon.

b. The Competition Rules in the Broader Sense

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Competition rules in the broader sense refer to all other rules typical of a sport that only indirectly affect the course of the competition (Adolphsen Sports Law Practice, N 146 f.). These include so-called inventory rules (such as provisions on the size, weight, shape, or elasticity of sports equipment), personnel rules (such as provisions on the number of participating athletes, team size, or athlete attire), or space rules (such as provisions on the layout of the competition venue). These often contain safety regulations primarily to protect athletes, with their application, as is generally the case with the application of association or federation rules, having to be proportionate (Heermann Association Autonomy, pp. 362 f.; Hügi Sports Law, p. 106). For example, in UCI and the national regulations of the Cycling Federation "Swiss Cycling", Part 4, in § 7, the permissible equipment of athletes for mountain bike races was determined, and in provision 4.1.022, it was stipulated for safety reasons that athletes are only allowed to use the course during the race and official training.

c. Justiciability

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The competition rules in the narrow sense, which directly affect the course of the competition, were long classified as not justiciable because they cannot be subjected to judicial review with an action for annulment under Art. 75 ZGB as they are (final) factual decisions. In contrast, the justiciability of the competition rules in the broader sense, which are understood as legal rules in the proper sense, has always been affirmed (based on Kummer, pp. 34 f., pp. 77 ff; on factual decisions m.w.H. Scherrer/Muresan/Ludwig, pp. 335 ff.; del Fabro, pp. 280 ff.; Hügi Sports Law, p. 104).

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The fact that state courts can influence competition results in this sense and thus intrusively interfere with sport is strongly criticized in the literature (Kummer, pp. 40 ff.; Scherrer Stocktaking, p. 181; Scherrer/Muresan/Ludwig, pp. 295 ff.; Pfister, pp. 25 ff.). Accordingly, the distinction between competition rules in the narrow and broad sense is particularly significant. According to constant federal court jurisprudence, the boundary between legal rules and game or competition rules is fluid (Federal Supreme Court decision 103 Ia 410 ff. E. 3.b), which is why it is also regarded as inappropriate by the majority of scholars (Scherrer/Muresan/Ludwig, p. 296; Scherrer Stocktaking, p. 182; Baddeley The Athlete, pp. 242 ff.; Oehninger, pp. 67 ff.; Pachmann Sports Associations, pp. 232 ff.; Philipp, p. 10; Schillig, p. 54; see also Heermann, Association Autonomy, p. 363). The Federal Court has at least clarified part of the legal dispute and decided that the application of a game or competition rule by an association body is fundamentally not accessible to judicial review, not even under the aspect of equal treatment of association members (Federal Supreme Court decision 108 II 15 ff., E. 3; Hügi Sports Law, pp. 104 f.).

3. The Disciplinary Rules in Particular

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What behaviour is to be qualified as a violation against the regulations issued by the associations and clubs, and what sanctions can be pronounced, either directly results from the disciplinary rules in the respective competition regulations or from separate and sometimes extremely extensive disciplinary regulations. The authority granted to associations and clubs to impose sanctions on members due to their autonomy is intended to encourage them to comply with the rules (Zen-Ruffinen, para. 1381; Haas, pp. 37 f.; Scherrer/Muresan/Ludwig, pp. 100, 362 ff.; Summerer, pp. 210 f.; Hügi Sports Law, pp. 112 f.).

a. Violations in General

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The primary definition of a violation is the breach or non-compliance with competition rules. Often, it is the task of the respective referee to pronounce a sanction to enable the determination of the competition result in the first place. However, behaviors that generally violate the integrity of the competition, such as bribery, doping, violation of rules of decency, or non-compliance with jury instructions, are also considered punishable. Additionally, there are violations related to the statutes, regulations, resolutions or instructions of the association, or also disputes between the association and its members or between the respective members (Zen-Ruffinen, para. 1381; Hügi Sports Law, p. 113).

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Depending on the respective regulations, the sanctions against the athletes range from minor penalties such as honor penalties (for example, by publication of a suspension) to the obligation to pay fines or monetary penalties (which can be reduced in analogy to Art. 163 para. 3 OR). Also possible are exclusion from the association or club, withdrawal of membership rights, or revocation of qualification for a specific competition (like world championships; Zen-Ruffinen, para. 323 ff.; Fuchs Legal Issues, pp. 51 ff.; Scherrer Causa Sport, pp. 46 f.; Hügi Sports Law, pp. 311 f.). Of particular importance are doping violations by professional athletes, which will be examined in para. 29 ff. below.

b. Definition of Doping

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Doping is generally understood to be the misuse of substances and methods to enhance physical performance in sports (Art. 19 para. 1 SpoFöG, cf. BBl 2009 8189, p. 8220, according to which Art. 19 para. 1 SpoFöG was enacted based on Switzerland's accession to the UNESCO Convention against Doping in Sport; cf. the definition of doping also Art. 1 and 2 WADA Code).

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In competitions in the mountains, it is typically added that athletes always try to adapt as best as possible to the geographical conditions dictated by the location of the competition. Athletes are faced with two challenges (often simultaneously): on the one hand, high altitudes, and on the other hand, and related to it, temperatures often in the double-digit minus range (see Sue-Chu, p. 397 with further references). Already from an altitude of about 1,500 m above sea level, a decrease in the performance capacity of athletes can be detected due to the decreasing air pressure with increasing altitude. Up to an altitude of 3,000 m above sea level (so-called medium or moderate altitudes), there are no significant effects on the oxygen saturation in the blood (see Von Hayek/Fischer, pp. 50 ff.). However, performance-related doping occurs not only in competitions held above 3,000 m above sea level due to the constantly increasing performance density of the athletes. As will become clear from the following explanations on the definition of doping, not every performance-enhancing measure used by athletes is to be considered impermissible.

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A distinction is made between so-called self-doping (the athlete herself or himself takes the substance) and third-party doping (the athlete receives the substance from a third party, such as a doctor). While the former is at least so far left to the sanctioning power of the associations and clubs, the latter constitutes a punishable act in the sense of Art. 22 ff. SpoFöG (Valloni/Pachmann, pp. 125 ff., Hügi Sports Law, p. 314). The validity of this differentiation was recently questioned with the postulate No. 19.4366 (submitted in the National Council by Marcel Dobler on September 27, 2019). This, after voices to this effect were already found in the doctrine (see also Report on combating corruption and competition manipulation in sports, p. 65, Balmelli/Heller, p. 37, Scherrer/Muresan/Ludwig, p. 105; Hügi Sports Law, pp. 54 f.). From the report on the criminal liability of self-doping issued by the Federal Council, it can be inferred that a paradigm shift is to be expected with regard to the hitherto not criminally sanctioned self-doping in the course of the upcoming revision of the SpoFöG (see Report on the criminal liability of self-doping, pp. 32 f.).

d. Prohibited Substances and Methods

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Prohibited substances and methods are laid down in the annually revised Prohibited List of the WADA. The list defines those substances and methods that are prohibited in and out of competition and in certain sports. Substances and methods are classified as prohibited if they meet at least two of the following three criteria (see Art. 4.3.1 WADA Code):

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1. they have the potential to enhance or enhance sport performance,
2. they present an actual or potential health risk to the athlete,
3. they violate the spirit of sport described in the Introduction to the Code.

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The determination of whether a substance or method is to be included in the Prohibited List is therefore based on a discretionary decision of the WADA, which must take into account these three criteria. This discretionary power is not limited by international law or the sovereignty of states. A substance does not have to be illegal for it to be included in the Prohibited List. This list is subject to an annual revision process and can be updated during the year with new substances or methods, if necessary (see Art. 4.1 WADA Code; Steiner, p. 429).

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The burden of proof that a particular substance or method has been used intentionally or negligently is on the anti-doping organization. However, the burden of proof shifts to the athlete if a prohibited substance or its metabolites or markers are detected in an athlete's sample (Art. 3.1 WADA Code; Steiner, p. 428).

e. Consequences of Doping

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According to the WADA Code, the basic sanction for a first-time anti-doping rule violation is a four-year suspension (see Art. 10.2.1 WADA Code). However, the period of ineligibility may be reduced if the athlete can prove that the rule violation was not intentional. In this case, the period of ineligibility may be reduced to a minimum of two years (see Art. 10.2.2 WADA Code). The rules also provide for the possibility of further reductions or even the complete elimination of the sanction under certain conditions (see Art. 10.4, 10.5 and 10.6 WADA Code).

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Furthermore, the anti-doping rule violation may result in the disqualification of all individual results of the athlete obtained in the competition in question, with all resulting consequences, including the forfeiture of all medals, points and prizes (see Art. 9 WADA Code).

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Besides the sports sanctions, a violation of the anti-doping rules can lead to criminal penalties in Switzerland (see Art. 19 ff. SpoFöG).

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The damage caused by doping to the individual athlete, to sports in general and to society is enormous. Therefore, prevention and a clear stance against doping are of utmost importance. The fight against doping is a responsibility of the entire society and requires the collaboration of everyone involved in sport.

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The Anti-Doping Statute and the associated implementing regulations, as well as the doping list, are binding for all associations affiliated with Swiss Olympic, according to the personal scope defined on page 4 of the Doping Status. For example, the SAC and the Swiss Athletics Federation "Swiss Athletics", which represent the national teams in ski mountaineering and trail running, are also bound by the Anti-Doping Statute. The anti-doping regulations apply according to Art. 5.2.1 Abs. 1 of the Doping Status, especially for all athletes with a license or a membership in a club or association affiliated with Swiss Olympic. Moreover, the regulations according to Art. 5.2.1 Abs. 2 of the Doping Statute also apply to participants in competitions of such organizations (i.e., athletes with day licenses).

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According to Art. 5.2 of the Doping Statute, athletes can be subjected to doping controls at any time (as also Art. 21 Abs. 1 SpoFöG) and can be sanctioned if found positive (see following paragraph 38 ff. for this). Controls and sanctions can be carried out or pronounced regardless of the athletic performance level, age, and nationality of the athletes. This extremely broad personal scope of the Doping Status was deliberately chosen and leads to the fact that the provisions of the Doping Statute must be adhered to and doping controls can be carried out at almost all competitions (especially also in the Swiss mountains). Needless to say - due to the large number of competitions in the mountains - such controls are usually only carried out in professional sports.

d. Violations against the WADA Code and the Doping Statute

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A violation of the anti-doping provisions set out in the WADA Code or the Doping Statute occurs when a banned substance or method is (attempted to be) taken or applied by an athlete, or when a (doping) sample collection is refused, omitted or circumvented without compelling reason. A violation is also considered if banned methods are used, or substances are possessed by athletes, (attempted to be) brought into circulation or administered (see Art. 1 and 2 of the WADA Code or Doping Statute). What counts as a banned substance or method is listed by WADA in annually updated lists of banned substances and methods. These form the basis for the doping lists issued in Switzerland by "Swiss Sport Integrity" based on Art. 4.1 of the Doping Statute (Scherrer/Muresan/Ludwig, p. 108). In the spirit of the "zero-tolerance-policy on doping", athletes are subject to a liability independent of fault (so-called "Strict Liability Rule"). Thus, athletes always breach their due diligence in the event of a positive doping result and must be sanctioned accordingly (Hügi Sports Law, p. 317 f., 320 f.).

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This "Strict Liability Rule" is mitigated by the athletes' exculpatory evidence that no or no gross negligence exists or that there is a therapeutic exception (so-called TUE; see Art. 4.4 of the WADA Code or Doping Statute). Therefore, it's more like a burden of proof reversal rather than a liability independent of negligence (see Art. 2.1.1 and 10.4/5 of the WADA Code or Doping Statute, including comments; Baumgartner/Schoeb, p. 345 ff.; Lehner, N 1378 ff.; Adolphsen Doping Proceedings, p. 246; Pachmann Doping Trials, p. 465 f.; Scherrer/Muresan/Ludwig, p. 329 f.; Hügi Sports Law, p. 317 ff., 320 f.).

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E contrario, this means, in terms of permissible performance-enhancing measures, that the intake of substances and use of methods not listed on the doping list is permissible. On the other hand, prohibited substances or methods can be ingested or applied using a TUE. Particularly in mountain competitions, because of the altitude and oxygen issues mentioned at the beginning of this section, extensive use is made of the possibility of prior multi-week acclimatization (Chapman/Stickford/Levine, p. 419 with further references) and altitude training, as well as the TUE regarding the use of asthma medication (Sue-Chu, p. 397 with further references). For instance, the Norwegian delegation traveled to the 2018 Winter Olympics in Pyeongchang with 6000 doses of asthma medication for 121 athletes (Asthma Mirror).

e. Sanctions and Legal Remedies

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If athletes do not succeed in proving their exculpation after a violation of the Doping Statute, either the "Swiss Sport Integrity" foundation or its disciplinary chamber imposes appropriate sanctions (see Art. 7.1, 7.4, 12.1 of the Doping Statute). These range from disqualification in the ongoing competition or the annulment of any victories and podium places to (provisional) competition and training bans, which de facto amount to a professional ban (see Art. 7.4, 9, 10 of the WADA Code or Doping Statute in detail; Valloni/Pachmann, p. 128; Hügi Sports Law, p. 318 f., 320 f.). The associations and clubs can also be sanctioned by the disciplinary chamber based on the Doping Statute (see Art. 12.1, 20 of the Doping Statute). For example, Art. 20.8 of the Doping Statute provides for a reduction or cancellation of the contributions from Swiss Olympic. Based on Art. 20.8 of the Doping Statute in conjunction with clause 2.2.4 of the Swiss Olympic statutes, associations and clubs can also be expelled by the Swiss Olympic Executive Board in cases of serious violations - for example, if the regulations of Swiss Olympic are deliberately or grossly negligently disregarded (clause 2.2.4 of the Swiss Olympic Statutes).

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According to Art. 13.1 lit. a of the Doping Statute, decisions of the "Swiss Sport Integrity" foundation, which are made on the basis of the doping statute or the implementation regulations, can be appealed to the disciplinary chamber. According to Art. 13.1 lit. b of the Doping Statute, decisions of the disciplinary chamber, whether as a first instance or as an appeal instance, can be appealed to the "TAS" (as also Art. 25 para. 1 of the procedural regulations of the disciplinary chamber). The WADA has the right to appeal, which is intended to ensure procedural harmonisation through the WADA Code (see Art. 13, 13.3.2 of the WADA Code, Adolphsen Sports Law Practice, N 982 ff.; Hügi Sports Law, p. 318 f., 320 f.).

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A violation of the Doping Statute can have not only sports law but also employment law consequences. For athletes who perform their sports performance on an employment contractual basis, it often leads to immediate termination according to Art. 337 para. 1 OR (this is partly expressly provided for in the employment contract). If athletes are acquitted of the doping charge, the termination without notice is unjustified according to Art. 337c para. 1 OR, and the employer can be sued for damages in the amount of the positive contractual interest (Valloni, p. 218 f., 231 f.; Hügi Sports Law, p. 318 f., 321).

II. Competition-specific Features

A. Public law questions: Official authorizations

1. In General

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Organizing sports competitions requires various official permits. The decisive factors as to whether or not an official permit is necessary are several factors such as whether public or private grounds are used for the sports competitions, outdoor amplification systems are used, temporary constructions (tents, stages, etc.) are set up, or drinks and food are sold for a fee. Therefore, whether a permit is necessary or not depends on the specific design of the sports competition.

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The permits are orders, with which the competent authorities allow certain activities (Karlen, p. 448 f.). The permit is distinguished from the mildest form of individual behavior control. Such behavior rules are prohibitions such as driving bans, tobacco advertising bans, or the sale of goods outside store opening hours (Karlen, p. 448). In contrast, permits are based on the principle that the state only allows certain activities on a case-by-case basis and upon meeting certain conditions.

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The permit can be designed differently. The basic type is the so-called police permit, which serves as a control instrument and leaves the material legal situation unchanged (Karlen, p. 448). If the permit requirements are met, there is a claim to the granting of the permit. Possible defects in the application can be remedied by taking into account the principle of proportionality through secondary provisions (such as conditions or requirements) (see BGE 124 II 146, 152 E. 3; Karlen, p. 450; Griffel, Rz. 331 f.; Häfelin/Müller/Uhlmann, p. 620). The police permit always refers to a specific activity of a person or to a specific thing and is also limited in terms of time (Karlen, p. 451; Häfelin/Müller/Uhlmann, p. 620). Therefore, the organizer usually needs to obtain a so-called event permit for the competition itself.

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A particular instance of authorization is represented by dispensation, where a prohibited activity is permitted as an exception (for example, the transportation of grandstands necessary for a competition with an oversized vehicle, in accordance with Art. 78 ff. VRV). A dispensation can also be applicable for activities requiring a permit and in this scenario, it exempts from fulfilling individual permit prerequisites (so-called exemption permit; see also BGE 138 II 251 E 2.3.3; Karlen, p. 452; slightly a different opinion is Häfelin/Müller/Uhlmann, p. 621).

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The legal foundations related to the necessary authorizations can be largely found in cantonal or communal regulations. For example, for hosting an automobile mountain race on public roads in the Canton of Bern, a permit for increased common usage under Art. 68 (1) SG (BE) is required, a construction permit under Art. 7 in conjunction with Art. 6 (1) lit. SG (BE) may be necessary for the construction of stands, and a single permit under Art. 7 (1) GGG (BE) is required for the paid distribution of food and beverages. Since the permit for increased common usage or special usage is of particular significance in the case of sports competitions in the mountains, this will be given special attention in the following.

2. Permit for Increased Common Usage in Particular

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The hosting of a competition in the mountains often takes place - at least partially - on public land, the use of which is regulated by cantonal law according to Art. 664 ZGB. The cantons typically distinguish between (simple) common usage, increased common usage, and special usage. Some cantons, however, do not recognize the concept of special usage (Häfelin/Müller/Uhlmann, p. 507).

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Increased common usage is the utilization of a public object in common usage that is no longer appropriate or compatible with common use and significantly restricts but does not exclude other users. It usually requires a permit and can be associated with the collection of a fee (BGE 135 I 302 E. 3.2; Häfelin/Müller/Uhlmann, pp. 510-511).

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According to controversial federal court jurisprudence, the granting of a permit to use public land also transfers public duties, which is why permit holders are obliged to respect basic rights towards third parties (BGer 2P.96/2000 from June 8, 2001 E. 5). This can lead to issues, for instance, in the organization of sports competitions, where organizers are obliged to consider the principle of equal treatment of commercial colleagues when potentially assigning stand locations for so-called food trucks on public land (Häfelin/Müller/Uhlmann, p. 513).

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The permit for increased common usage is to be distinguished from the concession, which typically requires special usage, thus presupposing exclusive control over a part of the property. The distinction between increased common usage and special usage is often difficult, particularly because the cantons do not uniformly define the two types of use and sometimes forego a distinction (BK ZGB-Meier-Hayoz, Art. 664 N 189). A possible indication of special usage is certainly the permanent and fixed connection of facilities with public land (see, for example, BGer 2C_900/2011 from June 2, 2012 E. 2.2; VGer/BE from June 23, 1986, in: BVR 1988 p. 74 ff.; Jaag, p. 156, Häfelin/Müller/Uhlmann, pp. 517, 525 f.; Karlen, pp. 364 f.). The permanent and fixed connection of facilities, regardless of their legal qualification as increased common usage or special usage, can in some cases require a building permit procedure (see BGE 114 Ib 81 E. 3).

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The hosting of competitions in the mountains usually means that the terrain can no longer be used as intended or in a manner that is common, and public use is significantly restricted. However, special usage for such mountain competitions is unlikely to ever exist, because the facilities built on public ground - such as the finish area in ski races - are basically only temporary in nature. This implies that such competitions, for their legal execution, usually require only a permit, but rarely a concession or special usage permit (Caprara, p. 2).

B. Civil Law Issues

1. Labor Law Considerations

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Hosting competitions also raises labor law questions. For example, it's necessary to distinguish the relationship between the athletes and the competition organizer, between the athletes and the sports federation, and finally between the helpers and the competition organizer in terms of their (employment-) legal significance.

a. Contractual Relationship Between the Organizer and the Athletes

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The contractual relationship between the organizer and the athletes for participation in sports events, where - regardless of the result achieved - a fixed compensation is paid, is generally classified as a contract for work performance. Depending on the specific design, an individual employment contract according to Art. 319 ff. OR may exist, for example, if an organizer as a superior party employs athletes for a specified or unspecified time for payment. According to prevailing doctrine and jurisprudence, this applies primarily in Swiss team sports (Zen-Ruffinen, p. 178; Judgment of the ECJ of December 15, 1995, C-415/93, Slg. 1995, I-4921 ff., N 90). As a rule, no such employment contract will exist with the organizer of the competition. This is either because the engagement of an athlete for an event does not meet the requirement of employment for a certain duration, or because criteria typical for an employment contract, such as subordination and integration into the employer's organization, are lacking.

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If there is no employment contract, the provisions of contract law apply according to Art. 394 Abs. 2 OR, whereby an innominate contract may also exist (Bondallaz, pp. 45, 52). A contract for work according to Art. 394 ff. OR is usually not considered, as it requires a specific result. However, a specific result is hardly conceivable in competitions (Arter/Gut, pp. 42 f.).

b. Contractual Relationship Between the Sports Federation and the Athletes

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The contractual relationship between the sports federation and the athletes - whether they are hobby or professional athletes - is always based on club membership. The conditions for membership are governed by the respective statutes of the club. Clubs are usually affiliated with an interregional federation and this in turn may be affiliated with a national federation, accordingly, their members as club members are also subject to the statutes and regulations of the interregional and/or national federation. The federation drafts, among other things, model contracts for professional sports (Arter/Gut, pp. 42 f.). However, an employment relationship between the federation and the athletes exists only in exceptional cases. A prerequisite for this is that a fixed compensation - regardless of the result - is agreed upon.

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The criterion of remuneration is often not met in competitions in the mountains, so that the employment contract provisions do not apply to professional athletes (Arter/Gut, pp. 43 f.). The athletes rather earn their income as sole proprietors with prize money and sponsorship contracts. De facto, not only amateur athletes fall outside the scope of the employment contract (protection) provisions.

c. Contractual Relationship Between the Organizer and Helpers

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Helpers (also referred to as so-called voluntari) are individuals who are used for the smooth running of the event. The legal qualification of the contractual relationship depends on whether the helpers are asked by the organizer to perform work and are accordingly compensated, or whether they work voluntarily and thus essentially independently of the organizer. If the former is the case, in most cases there will be an individual employment contract according to Art. 319 ff. OR.

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The relationship between the organizer and helpers often meets the first requirement of the employment contract: the subordination relationship. The tasks are carried out within the organization's operations under the employer's control or outside the organization's operations according to the employer's instructions (Abegg/Bernauer, Art. 319 OR, N 1). Particularly in competitions in the mountains, the helpers will be in a directive relationship to the organizer for the safety of the athletes.

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The second requirement is the wage, which is the remuneration for the actual work performed (Federal Supreme Court 4A-158/2019 of February 26, 2020 E. 4). Here, also board and lodging or the handing out of the company's products or discounted shares can be considered as wages in kind (PK OR-Streiff/von Kaenel/Rudolph, Art. 322 N 2). Therefore, the question arises as to when one can speak of a fee in the sense of Art. 4 AHVG, as helpers often receive board and lodging, clothing, etc. free of charge. The granting of board and lodging or the handing out of clothing would, however, argue for qualification as an employment contract. The decisive distinguishing criterion is therefore the organizer's actual obligation to provide wages in kind in the form described. Their voluntary granting does not yet mean that an employment contract exists, even if the other conditions according to Art. 319 ff. OR should be met. Otherwise, AHV, IV, EO and ALV would also have to be deducted here, which does not correspond to practice. It should be pointed out here that the organizer has to consider that even small remunerations are subject to AHV contributions (see, among others, Art. 1a , 3 AHVG).

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Voluntariness is also present if only expenses are reimbursed, but no wages are paid (Portmann/Bachmann, p. 134; PK OR-Streiff/von Kaenel/Rudolph, Art. 319 N 2). The benefits voluntarily granted to the helpers are likely to be qualified as a reminder of the competition or as a symbolic gesture. An employment relationship between the organizer and the helpers generally does not come about.

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Finally, it is worth mentioning in connection with competitions in the mountains that such events would hardly be possible without the assistance of the military and the civil defense and civilian service personnel. At the "Patrouille de Glacier" (short "PDG) - one of the largest ski touring events in the world - the Swiss military itself acts as the organizer. The members of the military and civil defense are in a close relationship with the state or a public-law institution (so-called special status relationship; Häfelin/Haller/Keller/Thurnherr, Rz. 328) as part of their support activities for such sports events, as well as other military or civilian service obligations. Consequently, it is also clear that there is no employment relationship between the organizer and the service providers, as only the state has the authority to give instructions and is obliged to pay compensation.

2. Sponsorship Contracts

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Sponsorship is understood as the promotion of individuals, associations, clubs or sports events by a company with money, goods or services, where in return the communication and marketing objectives of the sponsoring company are supported (Scherrer/Ludwig, pp. 297 f.).

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The sponsorship contract is a synallagmatic legal transaction and an innominate contract sui generis, whereby the corresponding contracts (association/club, event or individual sponsorship contracts) can be very differently designed. Due to their embedding in the overall communication strategy of the company, sponsorship contracts are usually long-term and therefore to be qualified as ongoing debt relationships (Hügi Doping, p. 342; Fuchs Doping offenses, p. 2; Wahrenberger, p. 156; Netzle Sponsoring, pp. 33 ff.; BSK OR I-Amstutz/Morin, Intro. before Art. 184 ff. N 385 f.; Hügi Sports Law, pp. 200 f., 302 f.). In return for the sponsorship service, there are active activities (such as event organization), the granting of rights or the licensing of brands and designations (such as events) or the provision of opportunities for customer care and acquisition. The sponsorship service includes financial compensation; common in mountain sports, however, is also the service in the form of in-kind benefits or use transfers (so-called equipment contract; Fuchs Doping offenses, p. 2; Engel Sponsoring, pp. 42 ff.; Hauser, pp. 292 ff.; Zen-Ruffinen, Rz. 928 ff.; Schaub, pp. 9 ff.; see also Hügi Doping, p. 342.; Hügi Sports Law, pp. 201, 203 f., 303; Scherrer/Ludwig, p. 299).

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Sponsorship in the field of sports, due to the significant societal importance of sports (see Rz. 2), provides an optimal basis for promoting the sponsoring company. Accordingly, attempts are being made in Switzerland to use the "mountain sports" platform in a variety of ways. Two types of sponsorship recipients can be distinguished: on the one hand, the organizers, and on the other hand, the athletes.

a. Sponsorship for the benefit of the organizers

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The organization of competitions in the mountains can seldom or only partially be financed by the organizers through the revenues achieved from ticket sales. Sponsorship contracts are regularly a necessary precondition, unless there is support from the public sector (Hügi Sports Law, p. 129 f. m.w.H.). In the case of sponsorship for the benefit of organizers, the latter grants the sponsor rights to interact with the spectators of the competition. The sponsor's intended increase in its recognition level, achievement of a positive image transfer, and/or use as a platform for customer care (within the framework of so-called hospitality services) requires in the sense of a secondary or ancillary obligation of the sponsored party that the sponsored event is carried out properly. However, a success or special effect of the sponsored event is not owed (Hügi Sports Law, p. 200, 204).

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For competitions in the mountains, the execution of the event is dependent on external influences. The large-scale weather conditions before the event and the weather conditions on the actual day of the competition often cause delays or even complete cancellations. For example, the newly added downhill races on the Klein Matterhorn had to be cancelled in the Alpine Ski World Cup season 2022/2023 due to a lack of snow (Ski-SRF). There are also other reasons for cancellations or postponements that are not the fault of the organizer, such as natural disasters, strike or boycott, or terror (so-called force majeure). According to federal court jurisprudence, force majeure is understood as "an unpredictable, extraordinary event [...] that has nothing to do with the 'operation' of the liable party but breaks in from the outside with an irresistible force" (BGE 102 Ib 257 E. 5; Oppliger, p. 75 ff. m.w.H.; see in particular with regard to the COVID 19 pandemic Jäggy/Angstmann/Coluccia/Henny, § 7 Rz. 62 ff. m.w.H.).

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In cases of objective impossibility - due to the lack of a statutory regulation of the sponsorship contract - the general rules of the law of obligations apply, unless the special regulations of the corresponding nominative contracts are analogously applicable to individual contract components (BSK OR I-Amstutz/Morin, Introduction before Art. 184 ff. N 392). In the absence of fault, the sponsored organizer is not obliged to pay damages to the sponsor according to Art. 97 para. 1 OR. Conversely, the sponsor is not or no longer fully obliged to perform his service according to Art. 119 para. 2 OR, which is why he is entitled to a claim for reimbursement for payments already made (Hügi Sports Law, p. 207 f.). Since Art. 119 para. 2 OR is of a dispositive nature, contractual arrangements are particularly made in the case of sponsorship of competitions in the mountains with regard to event failure. Most likely , it will be provided in these that in the event of a non-fault cancellation of the competition, the obligations of both parties will cease (Jäggy/Angstmann/Coluccia/Henny, § 7 Rz. 67). This results in practice for the organizer that, while he may have had to make considerable financial expenditures for the competition (e.g. with the construction of stands), he has a significantly reduced (sponsorship) budget. For this reason, the organizers of competitions in the mountains usually take out either a so-called cancellation insurance (provides comprehensive protection for all risks) or at least a weather insurance (only provides protection due to weather risks) in order to protect themselves in the event of cancellations, interruptions or postponements and the resulting cuts in sponsorship contributions (Hügi Sports Law, p. 141 f., 149 f., 207 f. m.w.H.).

b. Sponsorship for Athletes

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The implementation of competitions is not only important for the organizer, but also for the athletes - not only from a sports perspective. Individual sponsorship is usually the main source of income for mountain sports athletes. The interest of spectators, media, and sponsors is mainly focused on the competition winners ("The Winner takes it all"; Hügi Sports Law, p. 122). Accordingly, the presence granted by participation in the competitions and that of their sponsors is important for athletes. Athletes practicing expensive mountain sports, such as alpine skiing or mountain biking, are required to participate in as many competitions as possible and to perform as best they can in order to be able to finance their livelihood. The constant pressure to perform is one of the reasons why athletes leave the "path of virtue" and resort to impermissible performance-enhancing measures. To avoid damage to the sponsor's image, many individual sponsorship contracts provide for the contract to be terminated in the event of a positive doping finding (so-called anti-doping clause). These clauses can also be secured with a penalty clause (Hügi Sports Law, p. 303 f.; Hügi Doping, p. 342 f.).

c. Competing Interests in Sponsorship

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In addition to the mentioned conflict situations in the context of individual sponsorship, conflicts of interest can arise with club or association sponsorship. Athletes, clubs, and associations generate income through sponsorship, which is why they all claim the utilization of marketing rights (Hügi Sports Law, p. 298).

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Conflicts regularly arise through contractually agreed requirements for the club or association's consent to individual advertising and sales activities of the athletes (Thaler Athletes, p. 35 ff.; Hügi Sports Law, p. 37, 248 f.). The club or association can only give its necessary consent to individual activities of the athletes, which has been agreed upon with agreements or employment contracts, if the regulations set by the world federation or the organizers are taken into account. One reason for this is that the club or association also has to adhere to the sponsorship contracts it has concluded. It promises the sponsor performances by athletes (in the sense of a contract to the detriment of third parties according to Art. 111 OR) and therefore has to ensure them accordingly. The individual athletes are thereby restricted in their contractual freedom - to enter into an individual sponsorship contract (Hügi Sports Law, p. 298 f.). The alpine ski racer Lara Gut-Behrami, for example, was suspended for two races by Swiss Ski in December 2020 because she violated the obligation to wear team clothing (Suspension-NZZ).

3. Liability of the Organizer in the Event of Accidents

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In the event of accidents, organizers can face liability under civil law provisions. In most cases, the injured persons are athletes, which is why the following explanations refer only to them. In the case of accidents involving spectators, it is likely to be relatively "ordinary" (accident) insurance cases, in which the organizer of a competition is usually not at fault and therefore not liable.

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From a civil law perspective, contractual and non-contractual claims for damages are generally possible. Contractual claims are based either on a direct contractual relationship between the organizer and the athletes or an indirect contractual relationship if the sports federation has concluded the contract with the organizer. In the case of indirect contractual relationships, the protective effects of the contract between the association and the organizer also apply to the athletes - analogous to the direct contractual relationship - especially with regard to custody and due diligence obligations (Mohr, p. 193; Arter/Gut, p. 45 f.).

a. Organizer's Obligation for Safety and Preparation Measures

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From the organizer's contractual duty of care and diligence, it follows that the organizer only has to bear the foreseeable risks and that the protective measures must be in a reasonable proportion to the type of event (Wiegand Responsibility, p. 29). On the other hand, athletes - true to the principle of «casum sentit dominus» - bear the residual risk inherent to the sport (see regarding the extension of contractual protective duties Wiegand Responsibility, p. 30 f. and Arter/Gut, p. 33 f., 48).

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Due to these custodial and protective duties, the organizer of a competition in the mountains must also take all reasonable safety and preparation measures that objectively and ex ante appear necessary for the respective sport and event (Zen-Ruffinen, p. 388; Heermann/Götze, p. 109; Schuld, p. 90). The requirements are higher if the competition, which is classified as dangerous, is professionally or commercially organized by the organizer and profits are made from it (Padrutt, p. 386 f.; BGE 138 IV 124 E. 4.4.5). Consequently, organizers must always secure the competition venues according to the current safety technical knowledge (Ermacora, p. 12; Thaler/Wachter, p. 400; Arter/Gut, p. 47 f.).

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The dangers against which the organizer must necessarily take safety measures can be found in the respective sports regulations (such as the FIS rules, SKUS and SBS guidelines) or in public law regulations such as the SIA standards or the respective organizer's permit (BGE 126 III 113; BGE 130 III 193; BGer 4A_206/2014 of 18 September 2014; Heermann/Götze, p. 107; Büttler, p. 59). As will be explained below regarding the criminal liability of the organizer (see para. 86 ff.), these provisions, which qualify as mere behavioral recommendations, can lead to - if the respective provision serves the protection of the athletes - a violation at the same time constituting a breach of a traffic safety duty and thus establishing liability ( Börner, p. 34 ff.; Heermann/Götze, p. 107). However, liability can also exist if no corresponding behavioral recommendations are present. A reverse conclusion is therefore not possible. The sports regulations may, however, prove to be in need of supplementation or the actual circumstances may require a higher safety standard (BGE 130 III 193; BGer 4A_206/2014 of 18 September 2014; Schuld, p. 90; Arter/Gut, p. 49).

b. Requirements for Traffic Safety Obligations

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In alpine terrain, certain factors are hardly controllable (BGE 138 IV 124; BGer 4A_489/2014 of 20 February 2015; Resch, p. 68). Therefore, overly stringent requirements for traffic safety obligations should not be imposed for competitions in the mountains. According to the Federal Supreme Court's case law, the criterion of reasonableness forms the limit of the duty of safety. Protective measures can only be demanded within the limits of what is necessary and possible according to traffic practice, although a minimum level of protection must always be guaranteed (BGE 130 III 193; BGer 4A_206/2014 of 18 September 2014; BGer 4A_489/2014 of 20 February 2015, Heermann/Götze, p. 108 f.). When testing the reasonableness of potential traffic safety obligations, the effectiveness of the measure, its costs and its disadvantages must be weighed against the degree of probability of the danger and the extent of the expected damage. Furthermore, the organizer may ignore the risks that can be avoided by the athletes with a minimum degree of caution. In this respect, the principle of self-responsibility is again emphasized (BGer 4A_206/2014 of 18 September 2014). This is particularly intended to prevent the creation of a liability of the organizer that is independent of fault (BGE 130 III 193 E. 2.2; Jaun, p. 168; Büttler, p. 61; Arter/Gut, p. 49 f.).

c. Extra-Contractual Claims

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In addition to the contractual claims, extra-contractual claims for damages are also possible. According to Art. 41 para. 1 OR, anyone who unlawfully causes damage to another is liable for damages. This applies even in case of negligence. The prerequisite for liability is a culpable and unlawful behavior of a tortfeasor, which is the natural and adequate cause of the damage (BSK OR I-Kessler, Art. 41 N 2c ff. with references; Oftinger/Stark, § 1 N 102; Rey, para. 149 ff., 516 ff., 665 ff., 804 ff.). Unlawfulness is present in particular when there is a violation of behavioral duties, which arise from the law or from jurisprudence (violation of safety regulations; Arter/Gut, p. 35 f.).

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In this respect, the same core question arises with extrajudicial liability as with contractual liability (Heermann/Götze, p. 107; Arter/Gut, p. 48). Accordingly, for the most part, reference can be made to the explanations regarding the traffic safety obligation in the case of contractual liability. However, in addition to this in the case of extrajudicial liability is the unwritten customary law principle that anyone who creates or maintains a condition that could harm another is obliged to take the precautions necessary to prevent damage (so-called danger clause; BGE 123 III 312; BGE 121 III 358; BGE 116 Ia 169; BGE 112 II 141; Jaun, p. 141 ff.; Büttler, p. 35 ff.; Rey, para. 753; Guhl/Koller, § 24, N 14). From this, however, further traffic safety obligations are derived (Rey, para. 756a; Oftinger/Stark, § 16 N 26 ff.; Koller, § 24, N 15). Furthermore, the danger clause also plays a decisive role in the quantification of traffic safety obligations (Rey, para. 756a; Arter/Gut, p. 36 f.).

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Although a legally effective consent from athletes towards the organizer, in accordance with the principle of "volenti non fit iniuria", would generally eliminate illegality (BGE 117 II 547; Keller, p. 113; Engel Traité, p. 490 f.), such consent is unlikely to exist simply because the athletes try to avoid harm. In particular, in competitions in the mountains, harm never represents the competitive goal of the competition (BK OR-Brehm, Art. 41 N 63 f. with references).

d. Liability of the Property Owner

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For the sake of completeness, it should also be mentioned that the property owner may be liable (Art. 58 OR). For example, the owners of a steel target arch erected in the finish area of a cross-country ski race can be confronted with liability claims if athletes are injured when passing through it.

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Beyond that, the contract concluded between the property owner and the organizer, due to the danger source opened by the property owner, may under certain circumstances have a protective effect in favor of third parties, such as athletes. This protective effect thus establishes an additional contractual basis for claims (see for the detailed prerequisites: Gauch/Schluep/Schmid/Emmenegger, para. 3911; Heermann/Götze, p. 106; Arter/Gut, p. 88 f.).

4. The Organizer's Disclaimer

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The associations recommend the use of so-called disclaimers by the organizers, such as "the organizer assumes no liability in the event of accidents". Often, such disclaimers are explicitly part of the participation agreement; however, often reference is also made to the general provisions and regulations of the supervising association or to the general provisions issued specifically for the event (Eichenberger, pp. 115 ff.; Heermann/Götze, pp. 47 f.). The validity of the disclaimer is controversial, especially when referring to general provisions or regulations (Heermann/Götze, pp. 47 f., 111 ff., 190 f. and 225 f.). The disclaimer must be so clear that the athlete cannot overlook it when exercising due care (Huguenin, para. 1019; Gauch/Schluep/Schmid/Emmenegger, para. 1128; BK OR-Becker, Art. 100 N 2; BK OR-Weber/Emmenegger, Art. 100 N 77 f. with references to the General Terms and Conditions).

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The disclaimer is only possible to a very limited extent, which is why it should rather be referred to as a limitation of liability. According to Art. 100 Para. 1 OR, an agreement made in advance, which excludes liability for unlawful intent or gross negligence, is null and void. According to Art. 100 Para. 2 OR, even a disclaimer for slight negligence can be void under certain circumstances (Arter/Gut, p. 51; BK OR-Weber/Emmenegger, Art. 100 N 61). Moreover, according to the prevailing opinion, a disclaimer for personal injury is inadmissible both for contractual and non-contractual liability (Buol, p. 97 with further references; Schneider, p. 173; BSK OR I-Wiegand, Art. 100 N 4; Müller Diss., N 374).

C. Criminal law issues: Responsibility of the organizer in case of accidents

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Accidents during competitions in the mountains can also have criminal consequences, both for the person directly responsible for the criminal act (offenses against life and limb), and for those responsible for the organization of the competition. The following explains the perspective of the organizers.

1. Negligent commission of an offence

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The majority of offences that come into question in connection with the criminal liability of organizers in mountain competitions are likely to be committed negligently. Negligent commission of an offence is only provided for according to Art. 12 Para. 1 StGB when it is explicitly mentioned (Arter/Gut, p. 96). According to Art. 12 Para. 3 StGB, a crime or offense is committed negligently if the perpetrator does not consider the consequence of his behavior due to culpable carelessness or does not take it into account. Organizers must among other things observe the duties resulting from accident prevention regulations (BGE 143 IV 138 E. 2.1; 135 IV 56 E. 2.1) or from the cantonal mountain guide laws. If there are no statutory norms, the duty of care is determined on the basis of general legal principles (especially the so-called risk principle; BGE 135 IV 56 E. 2.1; BGer 6B_1332/2016 from July 27, 2017 E. 3.3; BGer 6B_283/2018 from January 28, 2019 E. 5.1). If such are missing, reference can be made to analogous rules of conduct or traffic norms of private or semi-private associations, provided these are generally recognized (see also in detail Rz. 91; Donatsch, p. 83; Arter/Gut, p. 97).

3. Commission by omission

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The organization of competitions in the mountains can create a position of guarantor for the organizer in the sense of Art. 11 StGB, and thus criminal liability for the commission of a so-called improper omission offence. To establish a position of guarantor, it is necessary that the offender is so comprehensively obliged by his position to avert the result that an omission is equivalent to an active bringing about of the result. However, in the case of strong societal expectations of conduct, such as with sports event organizers, a position of guarantor can already be given due to control over a source of danger (Engler, p. 495 f.; Flachsmann, p. 59 f.; BSK StGB-Niggli/Muskens, Art. 11 N 102).

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In the case of competitions in the mountains, there may be custodial or protective duties on the one hand. These duties relate to someone having to ward off all dangers and damage threatening certain legal assets of individual persons. On the other hand, so-called security or monitoring duties may also exist, aimed at ensuring that the person concerned keeps certain sources of danger under control (Donatsch/Tag, p. 311; Arter/Gut, p. 94).

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The organizer's duty as a guarantor can arise from law, contract, life and danger community or, in particular, from the interference principle (control over a dangerous situation) (Donatsch/Tag, p. 312 ff.; Arter/Gut, p. 94 f.). For this reason, the organizer of a competition in the mountains has to ensure that neither athletes nor spectators are injured or killed during the competition (Arter/Gut, p. 95). For example, the persons responsible for an alpine ski race must cordon off the finish area downwards to prevent athletes in the run-out area from colliding with other people (see Federal Court decision 6S.587/2006 of April 24, 2007 E. 2.2.1; BGE 130 III 193 E. 2.3 with further references; Arter/Gut, p. 95). This so-called traffic or route safety duty was also affirmed by the Federal Court, for example, in connection with the hosting of a skeleton race, in which unsecured square posts were located near the track and severely injured a skeleton driver in a fall (judgment 6B_1388/2017 from April 4, 2018 E. 4.5.1, 4.5.3).

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In competitions involving skiers and snowboarders, the FIS rules of the International Ski Federation (FIS) are also significant. The FIS rules are in turn supplemented by the guidelines of the Swiss Commission for Accident Prevention on Snowsport Descents (SKUS) and those of the Commission for Legal Issues on Snowsport Descents of the Swiss Cableways (SBS). Both the FIS rules and the SKUS and SBS guidelines are not legal norms, but behavior recommendations directed at skiers and snowboarders (J. Pichler, pp. 38 f.). Although they do not represent objective law, they are recognized by the Federal Court as standards of safety and care and can have both criminal and civil legal consequences (Stiffler, pp. 59, 74; Reinhardt, p. 69; Pichler, p. 40; among others BGE 130 III 193 E. 2.3; 126 III 113 E. 2b; 121 III 358 E. 4a). Particularly when it comes to the question of whether the organizers had so-called act power - thus there is an adequate causal connection between the omission and the damage - the relevant specific guidelines also apply. Such as the SIA standards, for example, if a grandstand for spectators collapses (BGE 115 IV 199; Donatsch/Tag, p. 326; Donatsch, p. 82; Arter/Gut, p. 96).

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The limits of the organizer's obligations lie, on the one hand, in the reasonableness of performing the protective actions (BGE 122 IV 196; especially regarding the realization of the sport-specific basic risk BGE 134 IV 26 E. 3.2.5; BGer 6B_1411/2017 from May 23, 2018 E. 2.1, BGer 6B_283/2018 from January 28, 2019 E. 5.1), on the other hand in taking action at one's own risk or in the respective athletes and spectators' own fault, the latter of which is generally seen as a justification. The obligations of the organizer arising from the guarantor's position thus represent a criminal law counterpart to the civil law traffic safety obligations (Katschthaler/Mayer, pp. 46 f. Arter/Gut, pp. 95 f.).

3. Corporate Liability

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According to Art. 102 Swiss Criminal Code, legal entities may also be held criminally responsible as organizers of competitions. Thus, organizers of a sports competition can also be covered by the criminal concept of a company, provided they are organized as a legal entity - in this case as an association or, for larger events, as a corporation (Forster, pp. 118 ff.; Engler, p. 508; Caprara, pp. 352 ff., 355 f., especially regarding the criminal liability of the organizing committee [OK]).

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The criminal liability of the organizer as a company is regulated in Art. 102 Swiss Criminal Code and provides for two different forms of liability:

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On the one hand, the company may be held liable if a crime or offense (so-called initiating act) "cannot be attributed to any specific natural person due to inadequate organization" (so-called subsidiary liability; cf. Art. 102 Para. 1 Swiss Criminal Code; Forster, p. 71 ff.; BSK StGB-Niggli/Gfeller, Art. 102 N 51). Competition organizers are therefore required to create organizational regulations, organigrams, duty catalogs, function diagrams, job descriptions, etc., which document the "operational" procedures and responsibilities (Forster, p. 214). In this way, they can reduce the risk of an organizational deficiency that justifies corporate liability, or ensure that the person who committed the offense can be individualized or identified. Since corporate liability in the sense of Art. 102 Swiss Criminal Code can apply regardless of the company size or the size of the organizer, this should be ensured, for example, even at local club races.

3. Corporate Liability

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According to Art. 102 of the Swiss Criminal Code (StGB), legal entities, including organizers of competitions, can be criminally liable. Thus, the organizers of a sports competition may be covered by the criminal business concept, provided they are organized as a legal entity - in this case as an association or, for larger events, as a corporation (Forster, p. 118 ff.; Engler, p. 508; Caprara, p. 352 ff., 355 f. with references especially to the criminal liability of the organizing committee [OK]).

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The criminal liability of the organizer as a company is regulated in Art. 102 StGB and provides for two different forms of criminal liability:

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On the one hand, a company can be liable if a crime or offense (so-called initial act) "cannot be attributed to a specific natural person due to inadequate organization" (so-called subsidiary criminal liability; see Art. 102 para. 1 StGB; Forster, p. 71 ff.; BSK StGB-Niggli/Gfeller, Art. 102 N 51). Competition organizers are therefore required to create organizational regulations, organization charts, job descriptions, function diagrams, job descriptions, etc., which document the "operational" procedures and responsibilities (Forster, p. 214). This way, they can reduce the risk of an organizational deficiency justifying corporate liability or ensure that the person committing the offense can be individualized or identified. Since corporate liability under Art. 102 StGB can apply regardless of the size of the company or the size of the organizer, this should also be ensured, for example, at local club races.

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On the other hand, the company is liable regardless of the criminal liability of a natural person if the company has not taken all necessary and reasonable organizational precautions to prevent the initial act (so-called concurrent or cumulative criminal liability). However, Art. 102 para. 2 StGB only applies to the following criminal offenses: Criminal organization (Art. 260ter StGB), financing of terrorism (260quinquies StGB), money laundering (305bis StGB), granting of advantages (322quinquies StGB) and active bribery of Swiss officials (322ter StGB), foreign officials (322septies StGB) and private individuals (322octies StGB). Due to this limitation of Art. 102 para. 2 StGB to the named offenses, the practical significance for competition organizers is extremely low (Forster, p. 71 ff.; BSK StGB-Niggli/Gfeller, Art. 102 N 234; Donatsch/Tag, p. 375 ff.; Stratenwerth, p. 411 ff.).

D. Social Insurance

1. Accident Insurance

a. The Concept of Accident

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According to Art. 1a Para. 1 Accident Insurance Act (UVG), the conclusion of an accident insurance policy is mandatory for employees (including trainees) working in Switzerland. Persons who are not (or no longer) employed, self-employed persons, or foreign persons also have the option to take out accident insurance with the health insurance company and thus protect themselves (Müller Rettung, p. 205).

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According to the legal definition laid down in Art. 1 Para. 1 Accident Insurance Act (UVG) in conjunction with Art. 4 Federal Act on General Aspects of Social Security Law (ATSG), an accident is "the sudden, unintended damaging effect of an unusual, external factor on the human body, resulting in an impairment of physical, mental or psychological health or death". The criterion of unusualness serves to distinguish between accident and disease, i.e., whether a certain sequence of events is unusual or within the realm of everyday life.

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The element of unusualness often arises in the case of sports competitions, in what is known as a "program deviation" (also known as an "uncoordinated movement," for example, when slipping on ice; cf. BGE 134 V 76; 130 V 120 f., BGer 8C_783/2013 of 10 April 2014 E. 4.2). This is characterised by the fact that a certain sequence of events was planned or expected, which is disrupted by an additional element. However, the program deviation does not necessarily have to develop into an unusual factor in the sense of Art. 4 ATSG. The Federal Court often has to deal with the question of whether there is a habitual element to the process in question, particularly in connection with sports events, which would negate its unusualness (Kieser, Art. 4 ATSG N 42 f., 53, 64). Therefore, the risk inherent in the type of sport – such as the rubbing of feet in mountain boots leading to subsequent infection – is not considered an accident for insurance purposes, but a disease. The distinction often proves difficult in practice (Tännler, p. 154 ff.; Kocholl, p. 463; Müller Rettung, p. 205).

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This issue is mitigated by the fact that Art. 6 Para. 2 UVG equates certain bodily injuries to accidents and therefore must be covered by accident insurance (Kieser, Art. 4 ATSG N 144). For these injuries, neither the criterion of unusualness nor that of the external factor must be fulfilled. Rather, the presumption is created that at least a similar bodily injury has occurred if one of the listed bodily injuries is present (cf. Federal Gazette 2014 7911, p. 7918]; Kieser, Art. 4 ATSG N 141 f.). However, this presumption can be rebutted by the accident insurance by providing evidence of relief. This is considered provided if the list injury in question is predominantly, i.e., in the entire spectrum of causes more than 50% attributable to wear and tear or disease. According to Federal Supreme Court case law, the question of an initial memorable and identifiable event is significant for the delimitation of the obligation of the health insurance company to provide benefits. If the relief is successful, it conversely means that the list injury has arisen from wear and tear or disease (BGE 146 V 51 E. 8.2.2.1, 8.6, 9.2).

b. Benefit Reduction due to a Risk-Taking

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The Accident Insurance Act (UVG) provides for reductions or denials of benefits if the damage incurred was culpably caused (cf. Art. 38 f. UVG) or if an extraordinary danger or risk has been undertaken (cf. Art. 39 UVG). In connection with competitions in the mountains, culpable causation, which also includes gross negligence, is generally ruled out (Müller Rettung, p. 205; Müller Diss., para. 387). Of greater relevance, especially in connection with competitions, are benefit reductions due to the athletes' willingness to take risks.

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Risks, according to Art. 50 Para. 2 UVV, are all those actions in which the insured person exposes themselves to a particularly high risk without taking or being able to take precautions that limit the risk to a reasonable level. Actual fault is not required (Rumo-Jungo, p. 286 f.; Müller Rettung, p. 206). Doctrine and jurisprudence further differentiate between absolute and relative risks, with the Federal Court assuming an absolute risk primarily when a dangerous sport is competitively engaged in (cf. Erni, FN 44; Müller Diss., paras. 387, 398; Müller Rettung, p. 206; Rumo-Jungo/Holzer, 221; BGE 112 V 297 E. 1b; 112 V 44 E. 2a; Judgment 8C_504/2007 of 16 June 2008 E. 6.1; Judgment 8C_762/2014 of 19 January 2015 E. 2.3; Judgment of the EVG U 122/06 of 19 September 2006 E. 2.1, in: SVR 2007 UV, No. 4, p. 10).

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A competitive execution is present in races where the aim is to be faster than the competitors (Federal Court 8C_762/2014 of 19 January 2015 E. 4.2). The Federal Court has therefore decided that sports, which are not to be qualified as an absolute risk due to their danger per se, can cross this "threshold" as a result of competitive execution. The presence of a risk leads, according to Art. 50 Para. 1 UVV, to a lifelong half reduction and in particularly serious cases even to a total refusal of all cash benefits (daily allowances as well as invalidity and survivor's pensions and integrity and helpless compensation; Erni, Fn. 19; Müller Rettung, p. 205 f., 7; Widmer, p. 311). The reason for this is that in occupational accident insurance, premiums are graded according to the operational risk, which is why businesses whose employees are exposed to great dangers pay a correspondingly higher premium. In non-occupational accident insurance, such extensive differentiation of contributions is not possible, which is why benefit reductions are used in this area. Accordingly, the benefit reductions are intended to prevent the total of premium payers from having to cover the financial consequences of risky behavior by individuals. It is therefore - contrary to widespread opinion - not a punishment, but a limitation of solidarity. Particularly athletes who practice a risky sport (such as downhill mountain biking) should therefore urgently take out additional accident insurance (Widmer, p. 310 f.). Often such insurances are offered by the sports associations, which have concluded corresponding contracts with the insurance companies (for example, the racing license of the Swiss Auto and Motorcycle Drivers' Association also includes a so-called risk coverage, which protects the participating racing drivers of a mountain race from reductions in their insurance benefits; see SAM licenses with accident insurance for racers).

2. Disability Insurance

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Particularly in mountain competitions, there are often such serious accidents that the injured parties may have to rely on disability insurance support. Unlike accident insurance, disability insurance does not provide for reductions due to culpable causation or risks taken (cf. the UVG and UVV). Accordingly, athletes, like all other persons within the meaning of Art. 1b IVG in conjunction with Art. 1a AHVG, who live or are gainfully employed in Switzerland, are entitled to unshortened cash benefits from disability insurance (Widmer, p. 69).

III. Mountain-Specific Particularities

A. Nature Conservation in Competitions

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Competitions in the mountains - especially when they reach the dimensions of the Engadine Ski Marathon or the Patrouille des Glaciers, or are slightly smaller but still significant, such as the Jungfrau Marathon, the Grand Raid Mountain Bike Marathon or the Sierre-Zinal Mountain Run - represent a considerable burden on the surrounding nature. However, it is not only the competitions held in the sense of major events that are in conflict with nature conservation. Smaller competitions (as well as record attempts) regularly cause areas that have previously been rarely visited by people to be exposed to considerable stress (as in the case of mountain climbing, trail running or mountain bike races). In addition, there are the training units that the athletes have to complete, which they also complete in these areas in order to simulate competitions as closely as possible. This sometimes leads to the fact that the activities of the athletes have considerably expanded over time, both seasonally and during the day (Meyer/Gurtner/Müller, p. 399).

1. Nature Conservation Regulations

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Regulations relating to nature conservation, which are relevant for competitions in the mountains, can be found at both the federal, cantonal, and communal level. The focus is on impairments or disturbances to wildlife (Meyer/Gurtner/Müller, p. 399). For instance, Art. 7 Para. 4 JSG obliges the cantons to ensure adequate protection of wild mammals and birds from disturbance. Furthermore, Art. 4^ter JSV states that the cantons can designate quiet zones for wildlife directly based on federal law, with some cantons delegating the designation of wildlife quiet zones to the municipalities.

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In addition to designating wildlife quiet zones, the determination of protected areas also falls within the competence of the cantons, which can transfer this task to the municipalities. According to Art. 11 Para. 1 JSG, after hearing the cantons, the Federal Council has the right to designate water and bird reserves of international importance and according to Art. 11 Para. 2 JSG federal hunting ban areas as well as water and bird reserves of national importance. This is complemented by the competence of the cantons to designate further hunting ban areas and bird reserves according to Art. 11 Para. 4 JSG. With respect to forest areas, the competence of the cantons to establish protection zones also arises from Art. 14 Para. 2 lit. a WaG, according to which they can restrict access to certain forest areas if this is necessary for the preservation of the forest or the protection of plants and wildlife. Many cantons have made use of this right by including special regulations for the control of cycling and horse riding, and so-called "sports paths" were established (see Art. 22 Para. 2 KWaG [BE]; § 10 KWa G [LU]; Art. 14a KWV [UR]; Art. 14 kWaG [OW]; Art. 16 kWaG [NW[; Art. 30 WSG [FR]; § 11 WaG [BS]; § 14 WaldG [TG]; Art. 24 RForêts [GE]; Rudin/Vonlanthen-Heuck, Art. 14 WaG, N 24).

2. Influence of Protected and Quiet Zones on Competition Route Planning

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The various protected and quiet zones have a significant influence on the organization and implementation of competitions in the mountains. The use of wildlife quiet zones according to Art. 4^ter Para. 1 JSV is only possible if certain routes and paths are used. In addition, water and migratory bird reserves of international and national importance and hunting ban areas must be considered, in which certain activities are completely prohibited according to Art. 5 WZVV or Art. 5 VEJ. For example, skiing and mountain biking outside of specially marked pistes, routes and trails is prohibited according to Art. 5 Para. 1 lit. g and h VEJ (following the protective purpose of the provision, probably also the operation of other similar sports; Rudin/Vonlanthen-Heuck, Art. 14 WaG N 25, 27). Already recreational and sports activities in such protected and quiet zones are only possible to a very limited extent to protect the wildlife from disturbances. The cantonal requirement for permission for sports events and other social events in hunting ban areas (Art. 5 Para. 2 WZVV/VEJ) takes into account the protection of wildlife. A decision is made in individual cases based on a balancing of interests (Art. 6 Para. 1 WZVV/VEJ). Likewise, for large events in the forest, a permit is required according to Art. 14 Para. 2 lit. b WaG (Rudin/Vonlanthen-Heuck, Art. 14 WaG N 28 ff. m.w.H.).

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Which areas are considered protected and quiet zones or whether a permit is required in this respect must be carefully clarified in advance by the organizer of a competition - especially in mountain and forest areas. In this regard, the maps with snow sports themes produced by the Federal Office of Topography according to Art. 4^ter Para. 4 JSV and Art. 7 Para. 4 VEJ are particularly helpful, which mark the wildlife quiet zones and hunting ban areas as well as the routes allowed for use within them. Annex 1 of the WZVV also lists separated reserves, some of which are located in the mountains and must therefore also be considered by competition organizers (e.g. the Col de Bretolet, in the canton of Valais; No. 101 of Annex 1 of the WZVV).

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Therefore, only areas that are compatible with the various federal, cantonal and municipal regulations regarding nature conservation and that do not impair the protection goals pursued can be considered as venues for a competition in the mountains. It should be explicitly pointed out again at this point that prior permission must be obtained from the canton in which the event is to be held, otherwise the organizers may face sometimes high penalties (cf. Art. 17 ff. JSG; Art. 42 ff. WaG).

B. Rescue in Mountain Accidents

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Even with optimal preparation on the part of the organizers and athletes, accidents can always be expected in mountain competitions and rescue measures may be necessary. Examples include falls in an alpine ski race or, fortunately, rare avalanches at freeride ski competitions, in which participating athletes can be seriously injured or buried.

1. Definition of Mountain Rescue

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In a narrower sense, a mountain rescue includes the execution of search operations, recoveries and further first aid measures in the alpine, pre-alpine and difficult-to-access area or the rescue of persons in mountain distress (Boschung, p. 16; Müller Diss., para. 412; Müller Rescue, p. 204). This definition of terms largely overlaps with the general one for rescues in the sense of the UVG, according to which a rescue is given when the insured person is freed from a situation acutely threatening health and life and subsequently (if necessary) medically cared for. The rescue should aim to save the life of an insured person, to avert a looming danger to life due to a rapidly deteriorating health condition or to prevent serious health damage (Federal Supreme Court of the Federal Insurance Court K 47/04 of July 28, 2006 E. 4.4; Eugster, para. 473 ff.). A rescue is thus "basically organized help under medical responsibility and thus more than medical emergency transport" (Eugster, para. 473; Hürzeler/Caderas, Art. 13 UVG, N 4 f. m.w.H. among others to distinguish from recovery).

2. Rescue Competence

a. General

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In addition to the relevant federal regulations in the KVG and UVG, in Switzerland the legislative competence in the field of mountain rescue - with a few exceptions - lies with the cantons or municipalities (cf. Art. 3 BV). In addition to these federal or cantonal and municipal regulations, private self-regulation also plays a major role in the field of rescue services (Boschung, p. 98 f.; Müller Diss., para. 412; Müller Rescue, p. 203 f.). All cantons, except the canton of Valais, have transferred their terrestrial rescue tasks in the mountains to the non-profit foundation Alpine Rescue Switzerland (ARS), which is supported by the Swiss Air Rescue (Rega) and the Swiss Alpine Club (SAC). In the canton of Valais, the rescue system is ensured by the cantonal Valais rescue organization (KWRO), designed as a public law institution according to Art. 5 para. 1 GOSR [VS] (Müller Rescue, p. 204).

b. In Competition

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If athletes are injured in mountain competitions and the organizer orders the rescue, the necessary travel, transport and rescue costs for accidents that occurred in Switzerland are generally covered by the accident insurance (Art. 13 para. 1 and 2 UVG). It is assumed that the costs incurred were caused by an accident in the sense of Art. 4 ATSG (cf. detailed explanations above; Hürzeler/Caderas, Art. 13 UVG, N 6 ff. m.w.H.). The organizer as the alerting third party always acts as a real agent without commission in the sense of Art. 419 ff. OR and is therefore to be indemnified according to Art. 422 OR (Müller Rescue, p. 209).

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As already explained in paras. 75 ff. and 85 ff., the organizer of a competition in the mountains has to ensure that no persons are injured or killed during the competition (Zen-Ruffinen, p. 388; Heermann/Götze, p. 109; Schuld, p. 90; Arter/Gut, p. 47 f., 95.). For this reason, the organizer's main focus in preparing the competition should be on the rescue of athletes. If the regulations issued by the respective associations regarding the medical care or rescue of athletes are complied with, the risk of civil and/or criminal liability of an organizer should only be realized in exceptional cases. These regulations often require the constant provision of qualified rescue personnel with appropriate equipment (for example, Art. 221.6 of the FIS international competition rules). This ensures medical care for athletes at all times during the competition. This contrasts with the "ordinary" mountain rescue, where the rescue service provided by the mountain railway companies still needs to be alerted (cf. the obligation of the mountain railway companies to provide the rescue service BGE 4C.54/2004; BGE 130 III 193; BGE 121 III 358; Bütler, p. 57; Arter/Gut, p. 51 ff.; Netzle Liability, p. 16). By complying with these regulations, not only can the best possible initial care be guaranteed for the athletes, but the organizer's liability risk can also be drastically reduced.

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In addition, in competitions in the mountains, the criterion of the necessity of professional rescue is also of legal relevance. As necessary within the meaning of the UVG, the proportionate, reasonable effort for rescue and recovery actions, the way to the nearest doctor or hospital capable of dealing with the medical problem, and the use of the transport means appropriate to the state of injury are considered (see no. 2.1 of the recommendation of the ad-hoc commission Schaden UVG). The assessment of necessity must always be based on the specific circumstances of the individual case at the time of the accident, whereby the necessity of the chosen transport must generally be medically certified (Eugster, para. 474; Frésard/Moser-Szeless, para. 206; BGE 124 V 338 E. 2.c/bb.; Hürzeler/Caderas, Art. 13 UVG, N 10 f.). The latter criterion should, however, be unproblematic in the case of professional sports competitions, as the team doctor is present in the case of injured athletes and is therefore authorized to make decisions regarding the rescue.

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For travel, transport, and rescue costs incurred abroad, according to Art. 20 Para. 2 UVV, the accident insurance also pays compensations of up to one fifth of the maximum amount of the insured annual income (Müller Diss., N 412; Müller Rettung, p. 205; Hürzeler/Caderas, Art. 13 UVG, N 22 f. m.w.H.). Further travel and transport costs, specifically for accompanying persons, are compensated according to Art. 20 Para. 1 UVV only if justified by familial circumstances. Unlike the daily allowances to be paid by the accident insurance (see para. 101 ff.), rescue costs as so-called cost allowances (see Art. 10 ff. UVG) are not affected by reductions due to actions classified as risks and leading to an accident by athletes (Morger, p. 404; Müller Rettung, p. 207; Hürzeler/Caderas, Art. 13 UVG, N 28).

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People who are not (any longer) gainfully employed, are self-employed, or are foreign individuals who do not have compulsory accident insurance, should take advantage of the opportunity to take out accident insurance with their health insurance company and check this for coverage of rescue costs. The considerable cost risk can, however, be reduced with a patronage at Rega. Rega waives the costs of a rescue entirely or at least partially at its discretion and within its means, but without there being a legal obligation to do so (see Rega's patronage provisions; Müller Diss., para. 420; Müller Rettung, p. 208).