By Prof Dr Ian Blackshaw
On 7 June, 2016, the German Federal Civil Court (Bundesgerichtshof) dismissed her claim for compensation against the ISU in her long-running battle against their finding of a doping offence in 2009, following abnormal blood tests, which she claims were due to natural physiological natural causes and not to drugs.
She is appealing this decision of the Bundesgerichtshof to the German Federal Constitutional Court (Bundesverfassungsgericht).
The speed skater also has an appeal pending against the Swiss Government in the European Court of Human Rights in Strasbourg, France, in which she claims not to have received a fair hearing before the Court of Arbitration for Sport (CAS), which upheld the doping offence and the two-year ban imposed upon her, and also the Swiss Federal Tribunal, which upheld the CAS ruling, in accordance with the provisions of Article 6 of the European Convention on Human Rights of 1950.
For a general report on this latest development in this saga, which appeared in the ‘New York Times’ on 8 June, 2016, log onto http://www.nytimes.com/2016/06/08/sports/sports-arbitration-court-ruling-against-german-speed-skater-claudia-pechstein-is-upheld.html.
The Bundesgerichtshof also held that the CAS was an independent arbitration tribunal and that its finding in the Pechstein Doping Case should, therefore, be respected and upheld, in response to which the CAS issued the following Statement to the Media:
Tribunal Arbitral du Sport
Court of Arbitration for Sport
Statement by the Court of Arbitration for Sport (CAS) on the Decision made by the German Federal Tribunal (Bundesgerichtshof) in the case between Claudia Pechstein and the International Skating Union (ISU)
Lausanne, 7 June 2016 – The Court of Arbitration for Sport (CAS) has noted the ruling of the German Federal Tribunal (GFT) in relation to the case between Claudia Pechstein and the ISU. Although the GFT has not issued its full judgment yet, it has published a summary of its decision (www.bundesgerichtshof.de) stating that:
– Claudia Pechstein voluntarily accepted the jurisdiction of CAS;
– the monopolistic situation of the ISU, the acceptance by athletes of the ISU regulations and of the arbitration clause in favour of CAS does not constitute an abuse of a dominant position in the sense of German competition law;
– the CAS is a genuine arbitral tribunal in the sense of German law;
– the existence of a mandatory list of arbitrators, constituted by a foundation (the International
Council of Arbitration for Sport/ICAS), regardless of its number of representatives of federations and of athletes, does not affect the equality of the parties;
– the interests of sports federations and of athletes are aligned when the question at stake is the fight against doping;
– the advantages of having a uniform international sports jurisdiction, such as uniform standards and timely procedures stand not only for sports federations but also for athletes;
– any possible predominance of federations [within ICAS] is balanced 1.) by the CAS procedural rules 2.) by 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 3.) by the possibility given to any party affected by a CAS decision to file an appeal to the Swiss Federal Tribunal (SFT).
This is the confirmation that Claudia Pechstein had a fair trial, not only before the CAS but also before the SFT, and that the judgment of the SFT, which remains in force, settled this matter definitively in 2010. This means that the German courts have no jurisdiction to revisit a final CAS decision. It is also the confirmation that the CAS arbitration clauses inserted in the regulations of sports organizations are valid (as it was already decided by the Swiss Federal Tribunal earlier).
More importantly, like the SFT did in 1993 and 2003, the GFT has emphasized that the CAS is a “genuine arbitration tribunal” in the sense of German law, and that such sports jurisdiction is necessary for the uniformity in sport. The GFT also notes that the CAS procedural rules guarantee the impartiality and independence of the parties and do not create any imbalance between athletes and sports federations.
The CAS was created in 1984 to provide dispute resolution services to the sports world. For over 30 years, it has settled disputes involving athletes, coaches, federations, sponsors, agents, clubs, leagues and organizers of sports events from almost every country in the world through arbitration and mediation procedures. It handles over 500 cases each year. It has its seat in Switzerland and its procedures are compatible with the requirements of the Swiss Constitution and of the jurisprudence of the SFT.
Although the GFT decision represents a ratification of the current CAS system, the CAS will continue to listen and analyze the requests and suggestions of its users, as well as of judges 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 and the resolution of the case Pechstein/ISU, 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 organizations and an equal representation of men and women.
At a time when international sport is facing serious challenges, the GFT ruling sets a very significant precedent and emphasizes more than ever the need to have the Court of Arbitration for Sport as the world’s highest sports tribunal; able to guarantee an efficient procedure and a fair trial to all CAS users, and to provide binding decisions in accordance with the applicable law and regulations.
CAS official website: www.tas-cas.org
Prof Steve Cornelius of the International Sports Law Centre at the University of Pretoria, South Africa, will be posting shortly on this website a more detailed analysis of the legal grounds of this latest decision, as a follow up to his article, entitled ‘Putting the Court of Arbitration for Sport on Trial’, which appears in the June 2016 issue of GSLTR and deals with, inter alia, the Pechstein Case and the possible threat that it poses to the CAS.
Prof Dr Ian Blackshaw is an International Sports Lawyer, Academic, Author and Member of the Court of Arbitration for Sport