Court of Arbitration for Sports challenged successfully: the Pechstein case

 

There is excitement regarding speed skater Claudia Pechstein’s legal efforts against the International Skating Union (ISU) and challenge to the supremacy of the Court of Arbitration of Sport (CAS) as it represents a major revision of sports law practice internationally. This change is important because under principles of most International Federations athletes are required to agree to the jurisdiction of CAS to resolve international sport disputes including doping.

The background story is a dramatic examination of procedure in international sports law doping cases. She is a highly successful Olympian and signed an agreement with the ISU to arbitrate all disputes only at CAS. In 2009, she suffered a doping violation based strictly on circumstantial evidence consisting of blood values without finding forbidden substances during multiple tests. Under her agreement with ISU, Pechstein appealed the doping violation and two year ban to the CAS and lost. Subsequently she took her claim to the Swiss Federal Tribunal twice and – as a German citizen – to the German Regional Court, losing every appeal from the CAS decision. Then unexpectedly, a German High Regional Court agreed with her arguments in an appeal last month in a precedent-setting move.

After six years of appeals, Pechstein is now the first to open a new pathway to attack CAS decisions, and observers wonder if CAS can remain uncontested as the World Court of Sport. The German High Regional Court agreed in an interlocutory judgment with Pechstein’s claim that the CAS decision was not fair because of bias in the composition and membership of the arbitral officers. The merits of the doping violation were not addressed, just the jurisdiction to review CAS.

Specifically, the reasons for the decision referenced Article 6 of the European Convention on Human Rights that guarantees all have the right to “fair public hearing within a reasonable time by an independent, impartial tribunal.” With CAS arbitrators drawn from narrowly controlled lists closely associated with international and national federations, that right was imperiled, according to the court. Thus, the German High Regional Court refused to recognize CAS as an independent and impartial court. Second, German antitrust law was implicated by the lack of even bargaining power between athletes and international federations requiring CAS be the only dispute resolution method.

Will other athletes use the same challenges?

International sport law experts view the court judgment with some trepidation. For example, Dr. Laila Mintas, Professor for Sports Law at St. Johns University/ISDE, recently asked the ultimate question in her article: “Is this the end of CAS arbitration?” (Mintas, 2015). After a discussion of the case history and procedure, Dr. Mintas demonstrated the opinion is questionable, and CAS may not be imperiled after all. The German High Regional Court issued an interlocutory judgment only, and that judgment might be appealed successfully by ISU. Also, the list of CAS arbitrators is 150 individuals and realistically, she asks, can they all be obligated to international federations over athletes? Moreover, every party to a CAS hearing picks their own arbitrator, subject to mutual agreement, to ensure fairness.

Additionally, the public policy argument against the decision is also strong, and all efforts to enforce doping codes may now be seriously impaired with CAS a court of final appeal no longer recognized as an impartial and independent court of sport. The prospect of National Courts from the athletes’ home countries reviewing CAS decisions may also lead to bias that benefits nationally affiliated athletes and undermines anti-doping efforts, creating inconsistencies internationally. Dr. Mintas calls this a potential “black day for integrity” in sports. (Mintas, 2015).

Much is on the line for CAS and for Claudia Pechstein, 42, the winner of nine Olympic medals and most successful Winter Olympian in Germany. She consistently denies doping and seeks over $5 million from the ISU in damages. The ISU is appealing the decision to the Federal Appeals Court in Germany. The German Olympic Committee recently asked the ISU to reopen the case against her for a second evaluation based on the idea that blood values alone cannot be conclusive as evidence of doping.

Mintas L. (2015). “Is this the end of CAS arbitration?” Inside World Football. Retrieved from: http://www.insideworldfootball.com/laila-mintas/16332-dr-laila-mintas-is-this-the-end-of-cas-arbitration

Dr. Robert Hudson is the Director of the Library/Archivist and an Assistant Professor at the United States Sports Academy. He can be reached at rhudson@ussa.edu.

 

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