Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law from King’s College London. He is currently an intern at the ASSER International Sports Law Centre.

The time is ripe to take a closer look at the CAS and its transparency, as this is one of the ways to ensure its public accountability and its legitimacy. From 1986 to 2013, the number of arbitrations submitted to the CAS has grown from 2 to more than 400 a year. More specifically, the number of appeals submitted almost doubled in less than ten years (from 175 in 2006, to 349 in 2013[1]). Therefore, the Court can be considered the judicial apex of an emerging transnational sports law (or lex sportiva).[2] In turn, the increased authority and power of this institution calls for increased transparency, in order to ensure its legitimacy.[3]

One might ask why focusing on the level of transparency of an arbitral institution is so important, given the traditional aura of confidentiality that has always accompanied arbitral proceedings. The answer is multifaceted. Firstly, a cursory look at the developments of international commercial arbitration and, more significantly, international investment arbitration shows that confidentiality is not anymore the untouchable hallmark that it once was.[4] Secondly, and most importantly, the peculiarities of the CAS Appeal Procedure make this body look like an arbitral institution but function in a way that is more akin to an international court. Furthermore, it is well known that one of the foundations of domestic and international arbitration is party autonomy. Parties freely opt to defer their dispute to an arbitral panel rather than a court for a variety of reasons, one of which can actually be the confidential nature of arbitration. That said, it is hard to ground the CAS Appeal Procedure on party autonomy. According to the CAS Code (Art. R47), in order for the CAS to have the necessary jurisdiction to hear an appeal, either the parties have expressly agreed to it, or an arbitration clause is contained in the statutes or regulations of the governing body issuing the decision under appeal. In practice, the regulations of the Sports-Governing Body often contain an arbitration clause in favour of the CAS, or these bodies require athletes to sign a specific arbitration agreement as a precondition for participating in an event or competition.[5] An example of the former practice is given by the FIFA Statutes, which – at Art. 59 expressly require that national federations insert an arbitration clause in favour of the CAS in their regulations, and – at Art. 58 imposes that “(a)ppeals against final decisions passed by FIFA’s legal bodies and against decisions passed by confederations, members associations or leagues shall be lodged with CAS”. An example of the latter is given by Bye-law 6 to Rule 44 of the Olympic Charter, which obliges athletes entering the Olympic Games to sign a form containing a clause which devolves the CAS exclusive jurisdiction over any dispute arising in connection with the participation to the Games.

In such a framework, athletes face the alternative between not competing at all and accepting to resort to the CAS in case of a dispute. The post-consensual foundation of the system is a feature that stands in irreconcilable conflict with the logic of international commercial arbitration, based on party autonomy. If the free will of the parties in choosing to arbitrate rather than litigate justifies, to a limited extent, a limitation of transparency in favour of confidentiality in international commercial arbitration, what justifies a low level of transparency at the CAS?

In this regard, for example, the level of transparency of international investment arbitration has been subjected to intense scrutiny. Transparency should then, a fortiori, be scrutinized in the realm of sports arbitration, and in particular at the CAS, whose central position in the lex sportiva is widely acknowledged.

This blog will focus on the two key issues related to the CAS’ transparency. Firstly, the availability of information about arbitrators on the CAS website. Secondly, and most importantly, the publication and ready availability of CAS awards. Furthermore, as the CAS ordinary procedure resembles traditional commercial arbitration, the blog will be only concerned with awards stemming from the Appeal procedure. 

Lack of transparency concerning the arbitrators

Articles R33 to R36 of the CAS Code deal with independence and impartiality of CAS Arbitrators as a conditio sine qua non of the arbitration proceedings.[6] Moreover, these provisions provide for mechanisms to guarantee this independence together with measures at disposal of the parties that want to challenge the independence or impartiality of an arbitrator. Yet to diligently exercise their right, and ensure the independence of arbitrators, parties need full access to information on the arbitrators.

Analysed through the lens of transparency, the problems arise from the fact that it is difficult to assess the inclinations and history of arbitrators prior to initiating proceedings before the CAS. In other words, given the limited information on arbitrators found on the CAS website[7], parties are not equipped with the necessary tools to make a fully informed choice. There is always a risk for conflicts of interest that parties to CAS arbitration should be able to assess on a level playing field, i.e. through a simple visit to the CAS website. Thus, more transparency with regards to the information provided about arbitrators would help reduce the prevailing information asymmetry between the one-shotters (mainly the athletes and their lawyers) and the repeat players (mainly the SGBs and their lawyers/legal counsels) at the CAS. Not only should the section ‘List of Arbitrators’ give access to each arbitrator’s jurisprudential record and relevant past or present contractual relationships. It should also list publications or comments arbitrators have released in the past, as some of them might have already formed a view on a certain type of cases. Although this is not always an indicator of bias, it would permit the parties to make a better-informed choice. Furthermore, and more importantly, in order to level the playing field between the parties, the information about arbitrators should also include a reference to who nominated them in past CAS arbitrations. Additionally, the fact that dissenting opinions are not recognised nor notified by CAS^[8] adds another layer to a feeling of opacity surrounding the arbitrators’ profiles and views.

Finally, according to Art. R33 CAS Code, ICAS draws up the list of arbitrators. From the point of view of securing the CAS’ transparency and accountability, it would be necessary that the nomination process be publicly scrutinized. Thus, ICAS should publish the name of the institutions putting forward each new arbitrator, as well as the reasons why they were considered adequate candidates.  

Lack of transparency in the publication of awards

The lack of transparency of the CAS is further illustrated by the process followed for the publication of its awards (and in particular awards of the Appeal Division).

The CAS Code provides rules for the publication of awards in the Ordinary Procedure (Art. R43) and the Appeal Procedure (Art. R59). For the Ordinary Procedure the default rule is confidentiality ‘unless all parties agree or the Division President so decides’. The rule favours a presumption of confidentiality because the CAS Ordinary Procedure is mainly used for commercial disputes based on the clear consensual agreement of the parties to submit to CAS arbitration. However, it is interesting to note that even in the similar realm of international commercial arbitration confidentiality is not an unchallenged hallmark anymore. International commercial arbitration awards are being voluntarily published with increased frequency[9] and some authors even advocate the adoption of a presumption of openness of the awards.[10] In fact, although the need for transparency in commercial arbitration is less compelling than in investment arbitration due to the private interests at stake, the general public may still be affected in a variety of ways and therefore needs to have access to the decisions. [11]

Conversely, the default rule for the CAS Appeal Procedure is publicity. Art. R 59(7) provides that “(t)he award, a summary and/or a press release setting forth the results of the proceedings shall be made public by CAS, unless both parties agree that they should remain confidential. In any event, the other elements of the case record shall remain confidential”. The rationale for a different treatment between the Ordinary Procedure and the Appeal Procedure lies in the consideration that, unlike the more commercially-oriented disputes destined to the Ordinary Procedure, appeals concern disciplinary decisions issued by international federations that are of interest to the public and that, in any case, might have already been disclosed.[12]

From a comparative point of view, it is noteworthy that the public interests at stake are one of the reasons why international investment arbitration, as opposed to – or at least more rapidly than – commercial arbitration, has shifted from a presumption of confidentiality to a presumption of openness.[13] In oversimplified terms, investment arbitration disputes involve States, which – for instance – have to resort to the national budget to pay in case of adverse awards. Also, governments’ public policies are often challenged before investment arbitral tribunals by foreign investors. All these matters are of evident public interest and were a key factor in pushing for more transparency. In the field of international investment law this process was initially triggered by NAFTA Chapter 11 and its interpretation by the Free Trade Commission (FTC), followed by the 2006 amendment to the ICSID Arbitration Rules. The development of the UNCITRAL Rules on Transparency, which also provide for amicus curiae submissions and open hearings, made another important stride in that direction.

Turning the attention back to the CAS, all the awards published are released on the CAS website. Although it could be argued that, at least for the Appeal Procedure, the default rule should go further down the road of transparency following the trend in treaty investment arbitration, a transparency-weary commentator could potentially be satisfied with the existing framework of the CAS Code, if only the CAS would implement it consistently. Instead, the CAS administration seems to follow a rather opaque and discretionary publication policy that gives rise to major transparency issues, the main one being the fact that, as we will see, only a limited number of awards are published on the CAS website. 

The CAS statistics include the number of Appeals submitted to the CAS (until 2013) and it is easy to determine the number of awards published per year in the CAS Database between the entry into force of the Code (22 November 1994) and the end of 2013. We compared the two figures and obtained the percentage of awards published each year in relation to the number of appeals submitted.[14]

A quick glimpse at the table suffices to notice an unfortunate trend in the publication policy of the CAS. If we exclude the first couple of years, in which the number of appeals submitted were extremely limited, the percentage of awards published is constantly below 30% (with the sole exceptions of 2001, 2002 and 2008, and – in any case –substantially below the still hardly acceptable threshold of 50%). The figures get even more striking as the workload of the CAS increased. From 2009 onwards, the average percentage of appeal awards published stands at a disappointing 17.5%!

This state of affairs significantly hampers predictability and coherence of the CAS jurisprudence, as well as threatens the objective of providing legal certainty to the sporting world at large, which is at the heart of the appeal procedure at the CAS. Indeed, the CAS jurisprudence has acquired throughout the years a law-making role that, in turn, calls for full transparency of its awards. If we read through the CAS case law we can find that arbitrators often refer, and demonstrate a consistent deference, to CAS jurisprudence.[15] To this end, transparency becomes a central issue, as it prevents inconsistency by subjecting the CAS panels to the critical scrutiny of their peers. After all, the need for coherence has been stressed by the CAS itself when it has recognised that, in spite of the lack of stare decisis at the CAS, arbitrators are disposed to “follow the reasoning of a previous Tribunal […] both of a sense of comity and because of the desirability of consistent decision of the CAS, unless there were a compelling reason, in the interest of justice, not to do so”.^[16] From the point of view of the potential parties to CAS arbitration this is of particular importance. If awards are systematically published, lawyers (and in fine the parties) are better able to determine before initiating the arbitration whether their case is likely to succeed. Furthermore, the availability of awards on the CAS website would put repeat players and one-shotters on an equal playing field, eliminating – at least in this regard – the edge that the former gain on the latter.

The need for predictability requires not only awards to be published, but also to be promptly published after they are rendered. The potential disputing parties might have an interest in having previous awards available quickly. In this regard the above-mentioned role of precedents in CAS jurisprudence plays again a significant role. It has been noticed how some decisions are based on solutions adopted in previous awards that have not yet been published.[17] Having the award readily at disposal is necessary for the parties’ legal argumentation. This way the party’s counsel can, respectively, either use the award as a valid leg to bolster her arguments or criticise the position recently adopted by a panel on the same issue.[18] Additionally, a more systematic publication of recent awards online would significantly contribute to increase the level of transparency at the CAS, as the web represents a great opportunity for the public in terms of speed and accessibility. On the CAS website it is possible to find a section specifically dedicated to ‘recent decisions’. This section, though, does not seem to be organised as systematically as it could be. The CAS’ policy regarding the recent decision section of its website is extremely confusing. It includes some awards from 2016 and 2015, but not all the awards from these years available in the CAS database, as well as older awards from 2012 and 2011, which can hardly count as ‘recent decisions’. Apart from the consideration that “these awards disappear from the website after a few weeks and it is not possible to find them anymore”[19], a more systematic publication of the recent awards would be desirable. A valid model to follow has been identified in the websites of the Italian Camera di conciliazione e di arbitrato per lo sport (CCAS) and the Canadian Centre for Ethics in Sports (CCES), where the decisions taken are systematically published without excessive delay.[20]

Conclusion

There is a clear, widespread and apparently unstoppable demand for transparency in contemporary international law. This demand has been voiced by civil-society, governments and international institutions with increased frequency. Thus, more room for transparency has been made within international institutions in the last few years.[21] We have seen very briefly how even in the confidentiality-savvy field of international arbitration transparency has made its way up on the ladder of priorities. In sports arbitration, where the jurisdiction is often not exercised over the parties on the basis of their consent[22], the judicial activity of the CAS must be a fortiori open to scrutiny not only by the parties but by the public at large. There are many ways to evaluate the legitimacy of a court. One of these is the persuasion among the public that an international court has the right to exercise authority in a given domain. To be persuaded, it is essential that the public has a possibility to assess how the CAS carries out its activities and, therefore, be allowed the broadest access possible to CAS awards to be able to evaluate (and criticize) their rationality. A greater transparency at the CAS would allow for greater participation of those that might be affected by its activity.

This call for greater accountability of international courts and tribunals, though, does not seem to resonate much at the CAS. If one looks, as we have done in this blog, at the reality of transparency at the CAS, one cannot help feeling disappointed. Information about arbitrators is scarce and it is hard to find any consistency in the publication of CAS awards.

Yet the CAS could intervene on these two key aspects. To this end, we propose a few brief recommendations for the CAS administration to follow.

Firstly, the section of the CAS website ‘List of Arbitrators’ should be enriched with all the relevant information concerning arbitrators. Therefore:

First recommendation: The CAS should include in the ‘List of Arbitrators’ section of the website a downloadable individualized PDF comprising: jurisprudential records, past or present relevant contractual relationships, publications or comments arbitrators have released in the past and a summary indicating who nominated them in past CAS arbitrations.

Secondly, the CAS should make sure that all its appeal awards are promptly available to the public. Therefore:

Second recommendation: The CAS should simply remove the phrase ‘unless both parties agree’ from the provision of Art. R59. Thereafter, parties would be in principle deprived of the authority to veto the publication of a sentence.

Even if one believes that – notwithstanding its peculiarities – the Court operates as a traditional arbitral institution, a systematic reform of the publication policy of the CAS would be urgently needed. The CAS website (and database) need to be modernized to facilitate a swift and easy access of the public to the awards. Therefore:

Third recommendation: The ‘recent decisions’ section should contain (for a short timeframe, maximum three months) all the recently decided awards and the database should provide all the awards rendered and not only less than a fifth as is currently the case.

There is much to do, but with a bit of will the CAS can become a world-wide leader in terms of arbitral transparency and greatly strengthen its legitimacy and standing in the eyes of its users and of the public at large.

[1] The statistics used for this article are taken from the CAS website, the available data stops on 31 December 2013.

[2] Lorenzo Casini, The Making of a Lex Sportiva by The Court of Arbitration for Sport  (2012). German Law Journal, Vol. 12 n. 5, 452, Antoine Duval, Lex Sportiva: A playground for transnational law (2013). European Law Journal, Vol. 19 Issue 6, 822-842.

[3] Anne Peters, Towards Transparency as a Global Norm in Andrea Bianchi and Anne Peters, Transparency in International Law, Cambridge University Press 2013, 557.

[4] See Cindy G. Buys, The tensions between confidentiality and transparency in international arbitration, The American Review of International Arbitration (2003), Catherine A. Rogers, Transparency in International Commercial Arbitration  (2006) and Stephan W. Schill, Five times transparency in international investment law (2014), The Journal of World Investment and Trade, Volume 15, Issue 3-4.

[5] Rigozzi/Hassler, Sports Arbitration under the CAS Rules, Chapter 5 in Arbitration in Switzerland, Kluwer Law International (2013), 988.

[6] Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport, Commentary, Cases and Materials, Kluwer Law International (2015), 134.

[7] In some cases information is limited to a couple of lines, e.g. “Juris doctor; Professor of International Law at […] University School of Law; practicing lawyer; international arbitrator”. See http://www.tas-cas.org/en/arbitration/list-of-arbitrators-general-list.html, accessed 19 January 2017.

[8] The last part of Art. R 59(2), inserted with the 2010 revision of the CAS Code, reads as follows: “Dissenting opinions are not recognized by CAS and are not notified”.

[9] Catherine A. Rogers, Transparency in International Commercial Arbitration, (2006). Penn State Law, 23.

[10] See, among others, Cindy G. Buys, The tensions between confidentiality and transparency in international arbitration, The American Review of International Arbitration (2003), 121.

[11] Cindy G. Buys, Ibid, 135.

[12] Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport, Commentary, Cases and Materials, Kluwer Law International (2015), 588.

[13] Stephan W. Schill, Five times transparency in international investment law (2014), The Journal of World Investment and Trade, Volume 15, Issue 3-4, 369.

[14] The accuracy of the findings is limited by the lack of precision of the CAS’ statistics. Namely, in the statistics section of the website it is possible to retrieve only data referring to the Appeals submitted every year but not to the appeal awards rendered. Therefore, our yearly comparison cannot take fully into account the temporal shift between the submission of the case and the rendering of the decision (as well as the limited number of cases which were withdrawn). In other words, in reality, the share of awards published is probably slightly higher than indicated in the table.

[15] Gabrielle Kaufmann-Kohler, Arbitral Precedent: Dream, Necessity or Excuse? (2006). Arbitration International, 365.

[16] CAS 96/149, A. C[ullwick] v. FINA, p. 251, 258 – 259, cited in Antonio Rigozzi, l’Arbitrage internationale en matiére de sport, (2005), 638.

[17] Antonio Rigozzi, l’Arbitrage internationale en matiére de sport, (2005), 640.

[18] Going back with the memory to a few years ago, it has be noted how Pavle Jovanovic’s counsel would have had great benefit in having the possibility to read the award rendered in the case that saw the French judoka Djamel Bouras opposing the International Judo Federation in a doping case, which was not yet published when the Jovanovic case was submitted. Had the award been promptly published he would have had the chance to invoke the solution contained therein (See Antonio Rigozzi, l’Arbitrage internationale en matiére de sport, (2005), 639).

[19] Antonio Rigozzi, ibid, 641.

[20] Antonio Rigozzi, ibid, 642.

[21] Anne Peters, The Transparency Turn of International Law (2015), The Chinese Journal of Global Governance, 3.

[22] For a wider discussion on the lack of consent in sports arbitration, see A. Rigozzi & F. Robert-Tissot, “Consent” in Sports Arbitration: Its Multiple Aspects’, in E. Geisinger & E. Trabaldo de Mestral (eds.), Sports Arbitration: A Coach for other players? (2015), 59 -60; A. M. Steingruber, Sports Arbitration: how the structure and other features of competitive sports affect consent as it relates to waiving judicial control, 20 American Review of International Arbitration (2009), 59, 73; M.A. Weston, Doping Control, Mandatory Arbitration, and Process Dangers for Accused Athletes in International Sports, 10 Pepperdine Dispute Resolution Law Journal (2009), 5, 8; and D. H. Yi, Turning Medals into Metal: Evaluating the Court of Arbitration of sport as an international tribunal, 6 Asper Review of International Business and Trade Law (2006), 289, 312.

Class actions are among the most powerful legal tools available in the US to enforce competition rules. With more than 75 years of experience, the American system offers valuable lessons about the benefits and drawbacks of class actions for private enforcement in competition law. Once believed of as only a US phenomenon, class actions are slowly becoming reality in the EU. After the adoption of the Directive on damages actions in November 2014, the legislative initiative in collective redress (which could prescribe a form of class actions) is expected in 2017.[1] Some pro-active Member States have already taken steps to introduce class actions in some fashion, like, for example, Germany.

What is a class action? It is a lawsuit that allows many similar legal claims with a common interest to be bundled into a single court action. Class actions facilitate access to justice for potential claimants, strengthen the negotiating power and contribute to the efficient administration of justice. This legal mechanism ensures a possibility to claim cessation of illegal behavior (injunctive relief) or to claim compensation for damage suffered (compensatory relief).   

Class actions in antitrust and the sport sector

Throughout the years, US class actions have become an important tool to strengthen good governance in the sports sector. Due to alleged antitrust infringements, US sports organizations have been hit with a series of class action lawsuits.  The most recent and the most prominent example is the antitrust class action lawsuit O'Bannon v. NCAA. On 8 August 2014, the US District Court ruled in favour of former UCLA basketball player O'Bannon and 19 others, declaring that the National Collegiate Athletic Associations’ (NCAA) longstanding refusal to compensate athletes for the use of their name, image and likenesses (NILs) violates US antitrust laws. Previously, the college sports governing body required student-athletes  to sign ‘Form 08-3a’  in which they authorize the NCAA to use their “name or picture to generally promote NCAA championships or other NCAA events, activities or programs”, without receiving compensation. If the NCAA loses the appeal, it must allow schools to give athletes some of the money they bring in by licensing their NIL. For further discussion on the O’Bannon case, see my previous blog.

In the EU, however, antitrust class actions remain an underrated remedial option in EU competition policy and the sports sector (the same is true for competition law in general). As is well known, sports federations often have practical monopolies within certain markets. In particular, due to the substantial economic revenues of these markets, sports federations have the tendency to abuse their dominant position in contradiction with Article 102 TFEU. It is not unthinkable that the positive experiences with class actions in the US may serve as an inspiration for victims in the EU to go against powerful sports organizations. Here, useful insights may be derived from the German Handball case, which can be used as an example to explore the potential of class actions as a remedy. On 15 May 2014, German Bundesliga teams (30 of them) won the antitrust case against the International Handball Federation (IHF) and the German Handball Federation (DHB) at the regional court of Dortmund (Landgericht). For further discussion on the 2014 Dortmund judgment, see here.  

The 2014 Dortmund judgment: A comparative analysis with the O’Bannon case

The Court in Dortmund held that an obligatory release system of players for activities of their respective national teams without compensation constitutes an abuse of a dominant position prohibited by German competition law (§ 19 Gesetz gegen Wettbewerbsbeschränkungen, GWB) and Article 102 TFEU, while it also breaches the principle of good faith in contractual performance.[2] Until the judgment, German Bundesliga clubs had no other way but to release their players if they were invited to join their national team within the international calendar. According to the IHF Player Eligibility Code, “a club having a foreign player under contract is obliged to release such player to his National Federation if he is called up to take part in activities of that federation's national team” (Article 7.1.2). Furthermore, a club releasing a national player was not entitled to receive any kind of compensation and in the event of personal injury the insurance coverage was not provided (Articles 7.2-7.3). After the judgment, the IHF and the DHB should pay a fair compensation for the time of the release of the player.  

On the one hand, both cases have striking similarities. The judgments concern antitrust infringements by powerful sports federations, the IHF (also the DHB) and the NCAA respectively. Professional clubs / student athletes in both cases are not entitled to compensation due to the rules that have been set by sports organizations. The German case concerns the obligation for professional clubs to release players to national team events without receiving compensation, while the US case concerns the prohibition for student athletes to receive compensation from NIL.

On the other hand, although both cases concern antitrust infringements by the sports organizations, they also have vital differences. Most importantly, the O'Bannon case is an antitrust class action lawsuit filed against the NCAA. This class action proved to be a powerful instrument that managed to jeopardize the long-standing fundamental principle of amateurism on which the whole economic and social system of the NCAA lies. Until now, however, the 2014 Dortmund judgment has been an ordinary litigation according to German law. However, it does share some similarities with O’bannon that may justify a class action in the form of an injunctive relief (at least, in the first instance), subject to some exceptions.  

Indirect class action for an injunction

What is injunctive relief in class action cases? According to the European Commission, the courts should treat claims for injunctive orders requiring cessation of or prohibiting a violation of rights granted under EU law in order to prevent any or further harm causing damages.[3] According to the German law, in case of danger of recurrence, the infringer has to refrain from his conduct.[4] Perhaps surprisingly, the 2014 Dortmund judgment already fulfils the conditions for an indirect class action for an injunction.

First, a group of claimants (a total of 30 Bundesliga clubs) sued the IHF and the DHB before the regional court of Dortmund. They argued (together) that mandatory release of players to the national team constitutes an abuse of a dominant position prohibited by EU and German competition law. The Dortmund court ruled in favour of the handball clubs. It seems that handball clubs only seek the cessation of the unlawful practice, yet they have not claimed the compensatory relief, aimed at obtaining compensation for damage suffered.  

Second, the claim has been initiated by victims of antitrust infringement. Under the GWB, victims are allowed to bring private actions for injunctive relief in 101 and 102 TFEU infringement cases (Sec. 33).

Third, the Forum Club Handball (FCH) financially supported the court case. This may appear as third-party financing since the financial support was provided by a private third party who is not a party to the proceedings.[5] 

Although the handball clubs dropped a quiet collective bombshell, the action cannot be considered as a real class action. Simply, there was no intention to pursue a class action. Another point is that the legal standing to bring the representative action has been limited to a law firm. In Germany, collective antitrust action can be brought by a body, which has a legal standing and to whom the claims of victims of a cartel have been assigned (Sec. 33 (2) GWB). Similarly, under Sec. 8 of the German Unfair Competition Act (UWG), the claims can be sought by: a) competitor; b) qualified entities listed with the Federal Office of Justice or, in case of foreign entities, with the European Commission; and (c) by Chambers of Industry and Commerce or Craft Chambers. For these reasons, the action brought by the clubs cannot be classified as a class action, because they have chosen to be represented by an attorney. It is not unthinkable that eventually the case will appear before the court as a follow-on compensatory class action, if the IHF and the DHB lose the appeal (if necessary, the proceedings before the Court of Justice).   

Compensatory class action: why it could be a big deal?

If the handball clubs achieve an injunction in the final Court decision, the follow-on representative action for damages may be brought against the IHF and the DHB. Some provisions in German law facilitate the incentives to bring damages claims for antitrust infringements. According to Sec. 33(4) GWB, antitrust class actions should be brought after a final decision of a public authority finding there has been a violation of competition law. Furthermore, the 8th Amendment of GWB broadens the scope of the legal standing in such a way that all associations of undertakings that are affected by an infringement, as well as consumer associations, are in principle able to claim the enforcement of German competition law in courts (including by demanding damages). Yet it appears that the UWG provisions are not applicable in this case. Under Sec. 8 available remedies allow to pursue only injunctive relief. Under Sec. 9 damages are claimed by competitors (only). Sec. 10 aims at skimming off profits (paid to the Treasury), but not at compensating victims. Due to the fact that illegal profits go to the Treasury in successful cases, the handball clubs would potentially not be happy with the expected outcome.

If the IHF and the DHB lose the appeal, the handball clubs can to a significant extent rely on the final decision. Considering that an indirect form of collective action has already been pursued by the handball clubs in the first instance, a common consent of the parties involved in the case (the major condition for class action) can be easily achieved. Still, the major concern is to solve the issue of legal standing. An actual example of class action that goes with the grain of the German law and is the Cement Cartel Case, in which 28 damaged companies purchased the cartel-related claim to Cartel Damage Claims group (CDC).[6] It is a Brussels based professional litigation that turns burdensome claims into valuable assets, taking the hassle of quantification and subsequent enforcement. The substantiation of the claim is based on evidence gathered from the cartel proceedings and the damaged companies.  In the context of the German handball case, CDC could commence the acquisition of damages claims from handball clubs and then file the collective antitrust damages action against the IHF and the DHB. This is in line with the Sec. 33 GWB under which CDC has legal standing and to whom the claims under Art. 101 and 102 TFEU have been assigned. An action brought by CDC is attractive to the handball clubs because it would strengthen the negotiating power and would reduce litigation costs, as the claim is led (or even purchased) by CDC.  

If the conditions for the admissibility of class action are fulfilled, the IHF and the DHB should fear potential damages. In particular as a result of the inconsistent application of the Player Eligibility Code, the claimants are in a favourable position. Despite the fact that the Code states that “a club releasing a national player shall not have any claim to compensation”, the IHF agreed to pay compensation to the clubs for the release of their players to the national team during the 2011 and 2013 World Championships. To make matters even worse, the IHF provided insurance for the players’ salaries in case of personal injury (contrary to the Article 7.3.2).[7] This suggests that in principle a compensation and insurance coverage are compatible with the Eligibility Code and thereby the interests of the IHF are not jeopardized. The perceived inconsistency provides more clout to the claimants, suggesting that the harm has already been presumed. If the plaintiffs achieve an injunction in Court, they potentially may claim broad compensation, including other undisputed World Championships[8], the Olympic Games, continental championships as well as the qualification matches and tournaments for these events. However, it is even not the worst potential outcome for the IHF. Indeed, due to the Court of Justice (CJEU) decision in Case C-302/13 flyLAL-Lithuanian Airlines, potentially all handball clubs from EU Member States can claim damages from the IHF, if they are part of the federation. In that case, the Latvian Supreme Court sent a request for a preliminary ruling under Article 267 TFEU, asking whether a Lithuanian court judgment ordering provisional measures in a damages case can be recognized and enforced in Latvia. The CJEU ruled that actions brought by undertakings seeking redress or compensation for damage resulting from alleged infringements of EU competition law, can be qualified as a ‘civil and commercial matter’, within the meaning of Article 1(1) of Regulation No 44/2001, and enforceable in Latvia under the provisions of the said regulation. Thus, the CJEU opened a wealth of opportunities for handball clubs (if the final decision in Germany is successful) to claim damages wherever they are based on the EU’s territory. Given that follow-on damages claims have a high success rate, the winning chances are high. Hence, since the common legal and factual features of each individual claim are observed, the class action would be an effective instrument to obtain redress, also adding to the deterrence goals.

Compensatory class actions: a powerful instrument to ensure better governance in sport (federations)?

If the German handball clubs bring a compensatory class action, it has the potential to become an important precedent for many other sports. One successful case may open a Pandora’s Box that would put a lot of pressure on the sports federations’ regulations.  

By forming the group, claimants (such as handball clubs) are able to bundle individual claims and thus trigger efficiency gains by tackling common legal, factual and economic issues collectively.[9] As such, the defendants can handle the risks attached to private litigation and the probability of winning the case increases since multiple plaintiffs have larger financial means. Therefore, a group of claimants having larger financial means can employ more qualified lawyers and economic experts for antitrust cases. A package of collected claims from victims are easier introduced and defended before the court, meaning that damages are proved with sufficiently high probability and thus the chance of receiving compensation is high. When focussing on sanctions, class actions appear to deter abusive conduct, therefore strengthening good governance in sport. If all victims can sue a sports federation, the group will force the infringer to internalize the negative effects of the damage caused as close as possible to the full-compensation principle that is embedded in the EU reform on private enforcement.[10] Sport entities, knowing that class actions may be used against them and anticipating that the expected cost of the infringement may increase significantly, would think twice before violating the competition rules. The achievement of better governance would solve, or at least diminish, the problem of under-enforcement of EU competition rules in the sports sector. Even if the handball case does not result in an antitrust class action, victims from other sports should pay particular attention to such a fruitful litigation model.

[1] It was adopted Commission Recommendation of 11 June 2013 on common principles for collective redress mechanisms in the Member States for injunctions against and claims on damages caused by violations of EU rights, COM (2013) 3539/3, 11.6.2013 (‘Recommendation’).

[2] German Civil Code, Section 242 (“An obligor has a duty to perform according to the requirements of good faith, taking customary practice into consideration”).

[3] Recommendation COM (2013) 3539/3, sec. 19. In the area of injunctive relief, the European Parliament and the Council have already adopted Directive [2009/22/EC OJ L 110, 1.05.2009]  on injunctions for the protection of consumers' interests

[4] GWB, sec. 33.

[5] Recommendation COM (2013) 3539/3, Sec 14-16.

[6] http://www.carteldamageclaims.com/portfolios/cdc-german-cement-cartel/. On 17 December 2013 the Regional Court of Düsseldorf dismissed the action in its entirety [Case No. 37 O 200/09]. CDC has appealed the judgment to the Higher Regional Court in Düsseldorf.

[7]See http://www.forumclubhandball.com/?p=707 and http://www.forumclubhandball.com/?p=707. The outcome had been reached after the negotiations with the FCH in 2010-2011.

[8] The IHF decided to pay compensation for the release of players to the 2011 and 2013 World Championships.

[9] Z. Juska, ‘Obstacles in European Competition Law Enforcement: A Potential Solution from Collective Redress’ (2014) 7 EJLS, 149.

[10] Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union’ COM (2013) 404 final, 11.6.2013