My favourite speed skater (Full
disclosure: I have a thing for speed skaters bothering the ISU), Claudia
Pechstein, is back in the news! And not from the place I expected. While
all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG
or German Constitutional Court), I should have looked to the European Court of
Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending
for a long time (since 2010) and I did not anticipate
that the ECtHR would render its decision before the BVerfG. The decision released last
week (only available in French at this stage) looked at first like a renewed
vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling
in the Pechstein case), and is being presented
like that by the CAS, but after careful reading of the judgment I believe this is rather
a pyrrhic victory for the status quo
at the CAS. As I will show, this ruling puts to rest an important debate
surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its
much-used appeal format in disciplinary cases) forced arbitration. Furthermore,
stemming from this important acknowledgment is the recognition that CAS proceedings
must comply with Article 6 § 1 of the European Convention of Human
Rights (ECHR), in particular hearings must in principle be held in public and
decisions freely available to all. Finally, I will criticise the Court’s
finding that CAS complies with the requirements of independence and
impartiality imposed by Article 6 § 1 ECHR. I will not rehash the well-known facts of both cases, in order to
focus on the core findings of the decision.
I.
CAS arbitration is recognised as
forced arbitration: Hallelujah!
As many of you will know,
longstanding doctrinal debates have been raging on the question whether
athletes freely consent to CAS arbitration.[1]
I have argued
at length that CAS arbitration is fundamentally post-consensual arbitration and
I am obviously quite happy to see the ECtHR endorsing this view today. However,
this is not true in all CAS cases: ordinary arbitration often involving
commercial disputes will most likely be consented to by both parties. Moreover,
as will be discussed below, the ECtHR choose to distinguish between Pechstein
and Mutu in its assessment of the free consent to CAS arbitration.
Regarding Pechstein, the key
paragraphs of the decision are found between §109 and §115. The Court finds
that the International Skating Union (ISU)’s regulations were imposing CAS’
jurisdiction for disciplinary matters (§109) and that Pechstein was forced to
accept the arbitral clause if she was to participate in ISU competitions
(§110). In this context, it refers to the famous holding of the Swiss Federal
tribunal in the Cañas decision
acknowledging the forced nature of arbitration in sport (§111) and to the ISU decision
of the European Commission finding that the ISU is in a quasi-monopolistic position on
the market for the organisation of speed skating competitions (§112).
This leads to the key deduction by the Court, that Pechstein’s choice in the
present case “was not to participate in one competition instead of another,
depending on her acquiescence or not to the arbitral clause” (§113). Thus, her
case is not deemed analogous to the commercial arbitration cases handled
previously by the ECtHR. Instead, the Court holds that “[i]n light of the
effects that a non-acceptance of the arbitral clause would have on the
professional life of the claimant, one cannot assert that the latter has
accepted the clause in a free and non-equivocal fashion.” (§115) Hence, the
Court concludes, “even though the clause was not imposed by law but by the
regulations of the ISU, the acceptance of the jurisdiction of the CAS by the
claimant must be understood as a “forced” arbitration in the sense of [the Court’s]
jurisprudence”. (§115) Thus came to an end a never-ending doctrinal debate on
the consensual nature of CAS arbitration, at least when the CAS clause is
imposed by a dominant SGB as a condition to participate in sports competitions.
Interestingly, the Court
distinguished Mutu from Pechstein. Indeed, the Court notes “the situation of
[Mutu] is different from [Pechstein’s] because the applicable regulation of the
sporting federation [FIFA] involved did not impose arbitration but left the
choice of dispute resolution mechanism to the contractual freedom of clubs and
players” (§116). Mutu invoked the imbalanced between clubs and players to argue
that he was forced to accept the clause. Yet, the Court rejects this line of
arguments on the basis that he failed to provide evidence supporting the fact
that all the players at Chelsea had accepted an arbitration clause or that no
other club would have recruited him without the insertion of an arbitration
clause into his employment contract (§117-119). The Court concludes that
contrary to Pechstein, Mutu “has not demonstrated that the only choice
available to him was to accept the arbitration clause to be able to earn a
living through the professional practice of his sport, or to refuse it and
renounce altogether his professional career.” Hence, the Court considers that
Mutu’s situation is not a case of ”forced” arbitration (§120). Nonetheless, the
Court’s assessment of the consent to arbitration is quite strict: not only
should the consent be free, it must also be unequivocal. In other words, Mutu
by freely opting for the jurisdiction of CAS instead of the national courts
must “have renounced in full awareness the right to have his dispute with
Chelsea decided by an independent and impartial tribunal” (§121). In the
present case, as Mutu challenged the independence and impartiality of the CAS
arbitrator nominated by Chelsea, the Court considered that one cannot take for
granted that he had renounced unequivocally to contest the independence and
impartiality of the CAS in a dispute involving Chelsea (§122). This part of the
judgment has potentially extremely wide implications beyond sports arbitration,
as the Court seems to indicate that any challenge to the independence or
impartiality of an arbitrator could harm the validity of an arbitration clause
freely consented to by the parties.
In conclusion, after this decision
it will be very difficult to argue that disciplinary cases (e.g. doping cases) submitted
to the CAS through the appeal procedure are grounded in free consent. Nonetheless,
as pointed out by the Court in § 98 of the ruling, there are good post-consensual
foundations to justify forced CAS arbitration. This post-consensual arbitration
might come as a surprise to some, but law is fundamentally a pragmatic practice
of social ordering, which is flexible enough to adapt to specific realities. The
fact that in the world of sport a type of transnational authority is exercised
by a network of (mainly) Swiss associations, which submit their final
disciplinary decisions to the mandatory review of the CAS, might be necessary
to ensure that international sporting competitions take place on a level
playing field. However, and this is the great virtue of the present judgment,
CAS will not be allowed to hide behind a fictitious arbitration label to escape
full compliance with the procedural rights enshrined in Article 6 § 1
ECHR.
II.
CAS arbitration must comply with
Article 6 § 1 ECHR
The most important consequence of the
Court’s recognition that CAS arbitration was forced in the case of Pechstein
and equivocal in the case of Mutu is that CAS has to fully comply with the
fundamental procedural rights guaranteed by Article 6 § 1 ECHR (in particular
its civil limb, see the ECHR
guide on Article 6). Specifically, the Court focused on the publicity of
hearings and the independence of the CAS. Regarding the former it concluded,
rightly in my view, that the lack of publicity of Pechstein’s hearing violated
the ECHR. However, I (and more importantly two judges of the ECtHR) do dissent
from the Court’s finding that the CAS is sufficiently independent vis-à-vis the
SGBs.
A.
The day CAS went public: Towards transparency in CAS proceedings and beyond
The CAS is at the same time one of
the globe’s most famous and secretive transnational courts. Every sports fan
around the world knows it and many journalists follow its press releases and
skim through its awards (when published). Based on citations in the media, it
is probably one of the (if not the) most covered and publicly discussed
international courts, and yet it is also the most secretive. The publicity of
hearings and judgments of national and international courts is the norm around
the world, and confidentiality an exception reserved to cases in which the
security and/or the privacy of an individual might call for it. In scholarship,
the transparency of the CAS is often favourably compared to commercial arbitration
as it publishes some (systematically
less than 30%) of its awards. Yet, as is readily acknowledged by this
judgment, the true comparison should be made with national and international
courts, as the jurisdiction of the CAS is not grounded on free consent.
In practice, the Court found that in
the Pechstein case, the CAS should have organised a public hearing as Pechstein
expressly requested. Indeed, the Court points out that “the questions discussed
in the framework of the challenged procedure – which related to the question
whether the claimant was rightly sanctioned for doping, and for which the CAS
heard numerous experts – necessitated the organisation of a hearing under the
control of the public” (§182). The Court notes in support of its finding that
“there was a controversy over the facts and that the sanction imposed on the
claimant had a ignominious nature, which was susceptible to damage her
professional reputation and credibility” (§182). And concludes that the lack of
publicity of the debates before the CAS violates Article 6 §1 ECHR.
This is a first important step towards
imposing more transparency at the CAS (I have argued for radical transparency
in a presentation
at the Play The Game conference last year). Yet, the decision of the Court is
not without ambiguity: will the CAS have to hold public hearings only when
requested by the parties or should it systematically hold public hearings and revert
to confidentiality only in exceptional circumstances? The existing case law of
the ECHR points, in my view, to the latter alternative, but even the former
would be a big leap forward for the CAS. Indeed, the a minima reading (read also on this issue the outstanding blog
by Nick de Marco) of the judgment implies that the CAS will have to organise a
public hearing if requested by one of the parties. In any case, a waiver of such
a hearing will need to be freely consented to. Furthermore, and this was not
touched upon in the present decision, Article 6 §1 ECHR also obliges to
publicise judgments once adopted, with only the narrowest of exceptions.
Currently, CAS is clearly in contravention with this obligation, as it does not
systematically publish its (appeal) awards. This fundamental lack of
transparency will have to be remedied quickly if the CAS is to operate in
conformity with the present judgment.
B.
A fundamental dissent on CAS independence
The final, key, aspect of the
judgment concerns the Court’s findings related to the independence and
impartiality of the CAS. Under Article 6 § 1 ECHR, a case must be heard by an
independent and impartial tribunal. It is, at least in my eyes, highly doubtful
whether the CAS should be considered as such, yet the Court decided otherwise. This
decision was strongly challenged in a dissent by two judges (including quite ironically
the Swiss judge). I will first present the key parts of the analysis of the
Court and then provide a critique of my own to the Court’s holdings. I believe
the most important question is not related to the independence or impartiality
of the individual arbitrators involved in the Mutu and Pechstein case, but concerns
the structural independence of the CAS from the SGBs, and I will thus focus
only on the latter.
The key holdings of the Court are
found at §§151-158 and concern only the Pechstein leg of the ruling, as only she
challenged the structural independence of the CAS. The Court holds first that
the CAS’s financial dependence on the Olympic movement is not problematic
because analogically the State finances national courts (§151). It reminds then
that, back when the Pechstein case was heard in 2009, the International Council
of Arbitration for Sport (ICAS) was nominating one fifth of the arbitrators
having the interest of the athletes in mind, while being itself composed mainly
of individuals affiliated with SGBs susceptible to face proceedings against
athletes at the CAS (§154). Moreover, the Court stresses that arbitrators were
nominated for a term of four years renewable, without limits on the number of
terms, and the ICAS had the power to revoke an arbitrator by a summarily
motivated decision on the basis of article R35 of the CAS Code (§155).
Nonetheless, the Court finds that Pechstein did not provide concrete elements
challenging the independence and impartiality of any of the 300 arbitrators on
the CAS list at the time (§157). In the crucial part of the decision, the Court
acknowledges that while “it is ready to recognise that the organisations
susceptible to face the athletes in the framework of the disputes brought
before the CAS were exercising a real influence on the mechanism of nomination
of the arbitrators in place at the time, it cannot conclude that, only on the
basis of this influence, the list of arbitrators was composed, even in majority,
of arbitrators who could not be deemed independent or impartial, individually,
objectively or subjectively, from the said organisations” (§157). Henceforth, the
Court decides that it has no reason to diverge from the assessment of the Swiss
Federal tribunal regarding the independence of the CAS.
In my view, the Court is right on
one point. The financing of the CAS by the SGBs is not per se threatening the independence of the CAS and should actually
be welcomed as an adequate form of quasi-public financing of sporting justice.
However, this is true only if the ICAS and the CAS administration are stringently
separated from the bodies that are supposed to be checked by the CAS and whose
decisions it is reviewing. Quite paradoxically the Court recognises the
influence of the SGBs on the ICAS, which was evident at the time the Pechstein
case was heard and is still apparent nowadays (the SGBs nominate 12 individuals
out of the 20 members of the ICAS and the ICAS is headed by an IOC
Vice-president), but it does not deem it sufficiently problematic to challenge
the independence and impartiality of the CAS. This is a strange conclusion for
a Court specialised in procedural justice (for a similar perplexity see §§ 7-10
of the dissent). The ICAS does not only control who gets to be appointed as a
CAS arbitrator, it also controls who gets to preside over the Appeal and
Ordinary Divisions of the CAS, and who gets to be appointed as CAS Secretary
General. All of this happens without any minutes of the ICAS meetings being
published, thus without any transparency on the reasons that led to the
appointment of X over Y. This alone should have pushed the ECtHR to have some serious
concerns over the appearance of control by the SGBs over the ICAS and,
therefore, over the CAS. Moreover, and what I feel is the major argument speaking
against CAS’s independence from the SGBs, even if one accepts the Court’s point
that an athlete will be able to find a CAS arbitrator on the list who is not
biased, in appeal cases the president of the panel will be ultimately nominated
by the President of the Appeals Division. Thomas Bach, now President of the
IOC, was the President of the Appeals Division from 1994 to 2013, since then Corinne Schmidhauser, who is the President of AntiDoping
Switzerland and a member of the Head of the Legal Committee of Swiss Ski has
taken over his former position. While it is often argued that if the parties
agree on a president, the President of the Division will merely ratify their
choice (§ 127), the issue is that one side (the SGBs) will be in a strong
position to impose a name to the other (the athletes). Indeed, the SGBs bargain
in the shadow of a final decision by the president of the Appeal Division, who
be it Thomas Bach or Corinne
Schmidhauser was
and still is clearly biased in their favour. This simple institutional set-up,
easy to reform but still in place, is the Gordian knot of the control of SGBs
over the CAS. The Court simply ignored
this argument (as did the BGH in 2016, triggering an attempt at a revision of the judgment), which
was raised by Pechstein’s lawyers (§ 124). In doing so, it decided to side with
a system that is at odds with the core of its own jurisprudence on the
independence and impartiality of tribunals, as powerfully outlined by the
dissent. Maybe, the Court felt it had already done enough and it did not want to
destabilise the CAS further, but it certainly missed a great opportunity to
provide a fairer judicial process to thousands of athletes worldwide.
Conclusion: The end of
the beginning for the CAS
A few years ago, in a presentation
on the Pechstein ruling of the Oberlandesgericht München, I wondered whether
the case was the beginning of the end for the CAS or (more optimistically) the
end of the beginning. By the latter, I meant that the CAS would enter into a
new dimension with the decision. This new era was, unfortunately, delayed by
the surrealist
judgment of the BGH, which the ECtHR has in my view partially corrected
with this ruling. As from this decision, the CAS will not be able anymore to claim
that it is an arbitral tribunal legitimated through the free consent of the
parties. The ECtHR has shattered, forever, this fiction. It did not replace it
with a clear alternative foundation, however. In fact, the CAS is not a product
of national law or of an international treaty. It is, instead, simply the artefact
of transnational power and of the necessities of global sports governance. At
the same time as the ECtHR recognised its usefulness and existence, it also
held that it ought to be tamed too. This is the meaning of the Court’s finding that
CAS must comply (like any national court in Europe) with the requirements of
procedural justice enshrined in article 6 § 1 ECHR. In other words, never again
will the CAS be the same, as it will have to become a proper court. Surely, the
ECtHR betrayed its good intentions by denying the undeniable lack of
independence of the CAS. Yet, this duty will be left to the German judges in
Karlsruhe or to the Grand Chamber of the ECtHR if, as you would expect from Pechstein,
she decides to appeal the decision. In this regard, the rigorously argued
dissent will prove a strong basis to put a final nail in the coffin of CAS’s
current institutional structure.
To conclude, after seemingly winning
this case, the CAS will have to undergo a radical change. The new CAS will be
open to the public (both hearings and awards), it will need to shore up its
independence from the SGBs if it desires to fends off future challenges based
on the dissent, and more generally it will have to ensure that all of its
procedures are rigorously kept in line with the constantly evolving
jurisprudence of the ECtHR on article 6 §1 ECHR. The CAS can embrace these
changes or wait for diligent lawyers to drag its awards through national courts
in Europe, which will not be as timid as before in assessing the compatibility
of CAS procedures with the ECHR. Nonetheless, there is also a lot to celebrate
in this judgment for those, like me, who believe that the CAS is a necessary
institution. It is now fully recognised as a judicial body sui generis, which is more than the emanation of the parties to a
dispute. In fact, it is officially and finally recognised as the Supreme Court
of World Sport, but with great powers comes also great responsibility…
[1] You will find many references to these debates in Duval, Antoine, Not
in My Name! Claudia Pechstein and the Post-Consensual Foundations of the Court
of Arbitration for Sport (February 20, 2017). Max Planck Institute for
Comparative Public Law & International Law (MPIL) Research Paper No.
2017-01.