The decision of the
Bundesgerichtshof (BGH), the Highest Civil Court in Germany, in the Pechstein case was eagerly awaited. At
the hearing in March, the Court decided it would pronounce itself on 7 June,
and so it did. Let’s cut things short: it is a striking victory for the Court
of Arbitration for Sport (CAS) and a bitter (provisory?) ending for Claudia
Pechstein. The BGH’s press
release is abundantly clear that the German judges endorsed the CAS
uncritically on the two main legal questions: validity of forced CAS
arbitration and the independence of the CAS. The CAS and ISU are surely right
to rejoice and celebrate the ruling in their respective press releases that
quickly ensued (here
and here).
At first glance, this ruling will be comforting the CAS’ jurisdiction for years
to come. Claudia Pechstein’s dire financial fate - she faces up to 300 000€ in
legal fees – will serve as a powerful repellent for any athlete willing to
challenge the CAS.More...
Book Review: Vaitiekunas A (2014) The Court of
Arbitration for Sport : Law-Making and the Question of Independence,
Stämpfli Verlag, Berne, CHF 89,00
The
book under review is the published version of a PhD thesis defended in 2013 by
Andrew Vaitiekunas at Melbourne Law School. A PhD is often taking stock of
legal developments rather than anticipating or triggering them. This was
definitely not the case of this book. Its core subject of interest is the study
of the independence of the Court of Arbitration for Sport (CAS) – an issue that
has risen to prominence with the recent Pechstein ruling of January 2015 of the
Oberlandesgericht München. It is difficult to be timelier indeed. More...
The Pechstein ruling
of the
Oberlandesgericht (OLG) München rocked the sports arbitration world earlier
this year (see our initial commentary of the decision here and a longer version here). The decision has been appealed to the German
Bundesgerichtshof (BGH), the highest German civil court, and the final word on
the matter is not expected before 2016. In any event, the case has the merit of
putting a long-overdue reform of the Court of Arbitration for Sport (CAS) back
on the agenda. The last notable reform of the structure and functioning of the
CAS dates back to 1994, and was already triggered by a court ruling, namely the
famous Gundel case of the Swiss Federal Tribunal
(SFT). Since then, the role of the CAS has shifted and its practical
significance has radically changed (the growth of CAS’s caseload has been exponential). It has become the most visible
arbitration court in Switzerland in terms of the number of awards appealed to
the SFT, but more importantly it deals with all the high-profile disputes that
arise in global sport: think, for instance, of Pistorius, the recent Dutee Chand decision or the upcoming FIFA
elections.More...
It took only days for the de facto immunity of the Court of
Arbitration for Sport (CAS) awards from State court interference to collapse
like a house of cards on the grounds
of the public policy exception mandated under Article V(2)(b) of the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards . On 15 January 2015, the
Munich Court of Appeals signalled an unprecedented turn in the
longstanding legal dispute between the German speed skater, Claudia Pechstein,
and the International Skating Union (ISU). It refused to recognise a CAS
arbitral award, confirming the validity of a doping ban, on the grounds that it
violated a core principle of German cartel law which forms part of the German public
policy. A few weeks before, namely on 30 December 2014, the Court of Appeal of Bremen held a CAS award, which ordered the German Club, SV Wilhelmshaven, to
pay ‘training compensation’, unenforceable for non-compliance with mandatory
European Union law and, thereby, for violation of German ordre public. More...
Due
to the legitimate excitement over the recent Pechstein
ruling, many have overlooked a previous German decision
rendered in the Wilhelmshaven SV case
(the German press did report on the decision here
and here).
The few academic commentaries (see here
and here)
focused on the fact that the German Court had not recognized the res judicata effect of a CAS award.
Thus, it placed Germany at the spearhead of a mounting rebellion against the legitimacy
of the CAS and the validity of its awards. None of the commentators weighed in
on the substance of the decision, however. Contrary to the Court in Pechstein, the judges decided to evaluate
the compatibility of the FIFA rules on training compensations with the EU free
movement rights. To properly report on the decision and assess the threat it
may constitute for the FIFA training compensation system, we will first
summarize the facts of the case (I), briefly explicate the mode of functioning
of the FIFA training compensation system (II), and finally reconstruct the
reasoning of the Court on the compatibility of the FIFA rules with EU law
(III).More...
The Pechstein decision of the
Oberlandesgericht of Munich is “ground-breaking”, “earth-shaking”, “revolutionary”,
name it. It was the outmost duty of a “German-reading” sports lawyer to
translate it as fast as possible in order to make it available for the sports
law community at large (Disclaimer: This is not an official translation and I
am no certified legal translator). Below you will find the rough translation of
the ruling (the full German text is available here), it is omitting solely the parts,
which are of no direct interest to international sports law.
The future
of CAS is in the balance and this ruling should trigger some serious
rethinking of the institutional set-up that underpins it. As you will see, the
ruling is not destructive, the Court is rather favourable to the function of
CAS in the sporting context, but it requires a fundamental institutional
reshuffling. It also offers a fruitful legal strategy to challenge CAS awards
that could be used in front of any national court of the EU as it is based on reasoning
analogically applicable to article 102 TFEU (on abuse of a dominant position),
which is valid across the EU’s territory.
Enjoy the read!
Antoine
PS: The translation can also be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561297
More...
Editor's note (13 July 2015): We (Ben Van Rompuy and I) have just published on SSRN an article on the Pechstein ruling of the OLG. It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621983. Feel free to download it and to share any feedback with us!
On 15 January 2015, the earth must
have been shaking under the offices of the Court of Arbitration for Sport (CAS)
in Lausanne when the Oberlandesgericht München announced its decision in the
Pechstein case. If not entirely unpredictable, the decision went very far
(further than the first instance) in eroding the legal foundations on which
sports arbitration rests. It is improbable (though not impossible) that the
highest German civil court, the Bundesgerichtshof (BGH), which will most likely
be called to pronounce itself in the matter, will entirely dismiss the
reasoning of the Oberlandesgericht. This blogpost is a first examination of the
legal arguments used (Disclaimer: it is based only on the official press release, the full text of the ruling will be published in
the coming months).More...