Sports Arbitration violates Human Rights

By Dr Thilo Pachmann, Partner, Pachmann Law Firm, Zurich, Switzerland

This week the European Court of Human Rights (ECHR) has rendered two long-awaited judgments in the long-running cases of the famous Romanian football player, Adrian Mutu, and Germany’s most successful Winter Olympics athlete, Claudia Pechstein, in which the ECHR held that certain aspects of sports arbitration violate human rights.

The ECHR came to the conclusion that every athlete has the right to a public hearing to have matters reviewed by the general public. Sports arbitration may not be held in secret as this has been the case until today. Any mandatory sports arbitration (such as the CAS system), which does not fulfil this standard was, thus, considered to violate art. 6 para. 1 of the European Convention on Human Rights and Switzerland was ordered to pay Claudia Pechstein, who had requested a public hearing but was denied one, compensation of €8,000 for ‘moral damage’ suffered.

On the occasion of these two cases, the ECHR further evaluated the independence and impartiality of the entire sports arbitration system.

Notably, the ECHR held unanimously that a certain link between the sports organizations and the ICAS exists as the ICAS, which is a Swiss foundation is governed by representatives of the sports organizations, elects the possible arbitrators and decides on the president of the panels. While the majority did not see any concrete problems in the cases presented – Claudia Pechstein “only” had heard from hearsay that the president of her panel had a “hard line on doping” and on Adrian Mutu’s panel was “only” an arbitrator who had previously been a partner in a law firm representing the opposing club – a very telling minority opinion was rendered.

On the facts of the case, the ECHR, by a majority verdict of 5-2, held that there had not been any violation of art. 6 para. 1 of the European Convention on Human Rights on the grounds of lack of independence and impartiality of the CAS and, thus, Mutu remains liable to pay his former club, Chelsea, the compensation awarded against him of €17.2 million (plus interest) for breach of contract arising out of a failed drugs test.

The minority opinion – which was tellingly supported by the Swiss Judge Helen Keller – outlined in every detail the dominant position of the ICAS, which should have led to a different perception of the entire system. The minority opinion even challenged the question whether the CAS system may – due to its mandatory imposition on the athletes – be considered a “court established by the law” or simply a legal body of the sports organizations.

Against this background, it is clear that the ECHR will carefully consider every future case in which an athlete claims the lack of the independence and impartiality of the CAS panels.

This will pose a tremendous challenge to the entire sports law system under the rule of the ICAS.

 

Dr Thilo Pachmann may be contacted by e-mail at ‘Thilo.Pachmann@pachmannlaw.ch’