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CIArb Features

The German Federal Tribunal’s decision in Pechstein v ISU

21 June 2016 Features
By Murray Rosen QC, FCIArb

The Court of Arbitration for Sport (CAS) was created in 1984 to provide dispute resolution services to the sports world. For over 30 years, it has used its sports arbitration and mediation expertise to resolve over 500 cases a year involving athletes, coaches, sponsors, agents, clubs, leagues and federations from almost every country in the world.

It maintains a mandatory list of arbitrators constituted by the International Council of Arbitration for Sport (ICAS) and has its seat in Switzerland. Its procedures have been judged compatible with the requirements of the Swiss constitution and jurisprudence.

However, over the last few years that has been put at risk in Germany, where the speed skater Claudia Pechstein succeeded at first instance challenging a decision of CAS as regards an alleged doping violation, which had been upheld by the Swiss Federal Tribunal (SFT).  On Tuesday 7 June 2016 however the German Federal Tribunal (GFT) published - see www.bundesgerichtshof.de - a summary of its decision declaring Pechstein’s claim against the International Skaters Union (ISU) inadmissible under German law.

Although the GFT has not issued its full judgment yet, it stated that Pechstein voluntarily accepted the jurisdiction of CAS a genuine arbitral tribunal in the sense of German law; that the monopolistic situation of the ISU, the acceptance by athletes of the ISU regulations and of the arbitration clause in favour of CAS, did not constitute an abuse of a dominant position in the sense of German competition law; and that the existence of its mandatory list of arbitrators, regardless of its number of representatives of federations and of athletes, does not affect the equality of the parties.

The GFT held that any possible predominance of federations within ICAS is balanced by (a) the CAS procedural rules; (b) the independence and neutrality of the CAS arbitrators, who can be challenged and removed from a CAS panel if they are not independent from the parties; and (c) the possibility given to any party affected by a CAS decision to file an appeal to the SFT.

This is not only confirmation that Pechstein had a fair trial before the CAS and that the judgment of the SFT deciding the case against her in 2010 remains in force. The GFT also declared that the interests of sports federations and athletes are aligned when the question at stake is the fight against doping; and that the advantages of a single international sports jurisdiction, standard and procedure, benefit not only sports federations but also athletes.

This means that the German courts have no jurisdiction to revisit a final CAS decision and that  CAS arbitration clauses inserted in the regulations of sports organisations are valid (as already decided by the SFT). Just as SFT did in 1993 and 2003, the GFT has emphasised that the CAS is a “genuine arbitration tribunal”, its procedural rules guarantee the impartiality and independence of the parties and do not create any imbalance between athletes and sports federations, and such sports jurisdiction is necessary for uniformity in sport.

CAS has issued a press release reaffirming its commitment to continue listening to users and legal experts in order to continue its development, to improve and evolve with changes in international sport and best practices in international arbitration law with appropriate reforms. For example, since 2009, a procedure for legal aid has been implemented to assist athletes without sufficient financial means to access to CAS arbitration. A real diversity in the composition of ICAS has also been achieved with a majority of members not linked to sports organisations and an equal representation of men and women. At a time when international sport is facing serious challenges, the GFT ruling emphasises more than ever the need CAS to continue as the world’s highest sports tribunal, ensuring a fair procedure for all involved in sport, and to provide binding decisions in accordance with the applicable law and regulations.

Murray Rosen QC is an arbitrator and mediator in commercial and sports disputes, practising at 4 New Square, Lincoln’s Inn, London WC2A 3RJ. He is a member of the Court of Arbitration for Sport, of Sport Resolutions and of the Football Disciplinary Commission.