Editor’s note: N. Emre Bilginoglu[1] is a lawyer based in Istanbul. His book entitled “Arbitration on Football Contracts” was published in 2015.

Introduction

With a total market value of approximately 911 million EUR, the Turkish Super League ranks as one of the prominent football leagues in Europe. Five of the eighteen teams that make up half of the total market value are based in Istanbul, a busy megalopolis that hosts a population of fifteen million inhabitants.[2] As might be expected, the elevated market value brings forth a myriad of disputes, mainly between the clubs and the players. However, other crucial actors such as coaches and agents are also involved in some of the disputes. These actors of the football industry are of all countries, coming from various countries with different legal systems.

One corollary of rapid globalisation is the development of transnational law, which is quite visible in the lex sportiva.[3] Like foreign investors, foreign actors of the sports industry look for some legal security before signing a contract. FIFA does protect these foreign actors in some way, providing players and coaches legal remedies for employment-related disputes of an international dimension. But what if the legal system of the FIFA member association does not provide a reasonable legal remedy for its national actors?[4]

That is why lawyers who are involved in sports related disputes have to guide their law-makers in improving their legal systems after thoroughly examining the dispute resolution mechanisms of other countries. Arbitration is indeed growing exponentially as a method of dispute resolution.[5] The renowned alternative dispute resolution is especially preferred in disputes arising from sports contracts, where both a rapid and a confidential resolution is of the essence.[6]  However, some legal systems oblige the parties of a sports related dispute to resolution by arbitration whereas some legal systems do not. This article gives the reader an insight about resolution of disputes arising from football contracts in Turkey. 

Turkish Method of Dispute Resolution

In August 2015, the Turkish Football Federation made certain changes in its Statute and guidelines. Since those changes, disputes arising from contracts between football clubs, players, coaches and agents are resolved within the Turkish Football Federation Dispute Resolution Board (“UCK”).[7] Therefore, applying to State courts for these disputes (the previous way of resolving disputes) is now impossible, which is a substantial legal issue.

Article 59 of the Turkish Constitution states that disputes related to sports administration and disciplinary matters should be resolved by mandatory arbitration.[8] Decisions of these kinds cannot be appealed to any court of the judiciary. The scope of this article does not include employment related disputes. Article 9 of the Constitution declares that judicial power shall be exercised by independent courts. However, courts do not have jurisdiction to hear disputes arising from football contracts because of the regulations of the Turkish Football Federation. Kelsen’s hierarchy of laws is indeed upside down, alas, the current practice without a proper legal basis is the actual practice. It does not seem like a change is scheduled in the near future, given that many are grateful for the rapid resolution of disputes.

The UCK consists of a “Board of Presidents” and arbitrators. It carries out a simple arbitration process and it involves two arbitrators and a UCK official. The applicant is responsible for the application fee (3% of the disputed amount) and paying the arbitrators' fees, which are decided by UCK (between about 450 and 1500 Euros per arbitrator). The UCK decides within four months (they have the right to extend the time limit for a month based on justified grounds). The decision of the UCK may be appealed to the Turkish Football Federation Appeals Board. However, this appeal does not obstruct the enforcement of the award. Although the statute of the Turkish Football Federation recognizes the competence of CAS, it also declares that the decisions rendered by the Appeals Board cannot be reviewed by CAS.[9]

Decisions of the UCK are not published. Decisions of the Arbitral Tribunal are published without reasoning. Hence, it is impossible to know both the facts of the case and how the arbitral tribunal reached a verdict. This negatively impacts the predictability of the UCK and the Arbitral Tribunal.

The proper composition of the UCK is an important condition for fair and equitable proceedings.[10] Arbitrators are nominated by the Foundation of the Clubs, the Association of Football Players and the Association of Coaches. These three institutions may nominate up to 25 arbitrators each. However, the Turkish Football Federation board of directors appoints the arbitrators from the list of nominees, thus casting a shadow on the independence and the impartiality of the arbitral tribunal, which are crucially important for the right to a fair trial.[11] There are numerous links between the UCK, the Arbitral Tribunal and the Turkish Football Federation. The Federation finances the UCK and the Arbitral Tribunal, can modify the Statutes of the UCK and the Arbitral Tribunal and it appoints the arbitrators of the UCK and the members of the Arbitral Tribunal. The current formation of the UCK resembles CAS before Gundel reforms.

Sporting sanctions and training compensations are also within the scope of the UCK.[12] Decisions of the UCK may only be appealed to Arbitral Tribunal of the Turkish Football Federation. The lack of a judicial review for these decisions is disconcerting. I believe the involvement of the Swiss Federal Tribunal in the CAS process could serve as a good model. CAS decisions may be appealed to the Swiss Federal Tribunal but there is no court in Turkey to appeal to once the Arbitral Tribunal decides on the matter. A general court or the Turkish Court of Cassation must review the decisions of the Arbitral Tribunal regarding disputes on football contracts. Decisions of the Arbitral Tribunal related to sports administration and disciplinary matters are accurately not appealable, as stated by Article 59 of the Constitution. However, Article 59 of the Constitution does not include personal actions. Article 9 of the constitution declares that the judicial power shall be exercised by independent courts. The right to access to courts that is granted by the Constitution cannot be breached by an amendment of the Turkish Football Federation. Therefore, courts are wrong for denying jurisdiction for disputes arising from football contracts. 

Players

The rights and obligations between clubs and players are determined by an employment agreement.[13] In Turkey, labour courts have jurisdiction on disputes arising from employment agreements. However, the Turkish Labour Code does not apply to players, thus surprisingly excluding the jurisdiction of labour courts for disputes regarding them. Article 4 of the Labour Code states that the Code does not apply to athletes. The reason behind this exclusion is not to grant certain rights and benefits to athletes, such as severance payments. Before the amendments of August 2015 came into force, disputes regarding players were resolved in general courts, not labour courts. The debate whether general courts or labour courts have jurisdiction is now obsolete, as the players have to apply to the UCK for the disputes arising from football contracts.

The FIFA DRC adjudicates on cases regarding employment related disputes between a club and a player of an international dimension, therefore foreign players do not have to apply to the UCK. In a case of dual citizenship (the player was British/ Turkish), CAS awarded that someone who benefits from Turkish citizenship should also accept its possible burdens, thus refusing jurisdiction.[14]

Arbitration is indubitably more preferable compared to courts for players. The UCK decides within four months and the decision is enforced by the Turkish Football Federation right away. This promptitude surely provides an advantage for players. Nevertheless, arbitrators’ fees are a hefty burden for destitute amateur players or pro players of the third league. On the contrary, application fees that are three percent of the disputed amount is a supernumerary amount for high earning players. High arbitration cost is a concern, as it is strictly related to right of access to courts. Costs should not victimize the plaintiff. 

Coaches

The FIFA PSC adjudicates on disputes between a club and a coach of an international dimension. Turkish coaches working in Turkey do not have that option. Before the implementation of the mandatory arbitration, labour courts had jurisdiction over the disputes arising from employment agreements of coaches. As of August 2015, coaches may only apply to the UCK for disputes arising from their contracts.

The Turkish Super League clubs do not prefer stability with regard to their coaches, as only one team in the league started the 2016-2017 season with the same coach for the third consecutive year. Coaches seem content with the rapid resolution of their contractual disputes and the confidentiality provided by arbitration, however, arbitrators within UCK are seldom appointed by them.

Agents

The FIFA Regulations on the Status and Transfer of Players state that the PSC has no jurisdiction to hear any contractual dispute involving intermediaries. Agents, foreign or not, have to apply to the UCK for disputes arising from their contracts. This is overall problematic for agents, because they do not have any say on the appointment of arbitrators. Therefore, the independence and the impartiality of the UCK is suspicious, especially for agents. It is highly recommended for foreign agents to work with Turkish lawyers doing business in Turkey. If not, they will have to hire one at some point.  

Conclusion

Arbitration does truly offer a structure that is football-oriented and more aware of the realities of modern football, as stated in the preamble of FIFA NDRC Standard Regulations. “National” arbitration of football related disputes is evolving. The fact that this is genuinely a developing method of dispute resolution should encourage practitioners to improve their national legal systems. Practitioners and those who are in the football business may quite easily benefit from such improvement because it would only influence the business positively. In the Turkish context I would advise the following:

First, decisions not regarding disputes related to sports administration and disciplinary matters of the Arbitral Tribunal should be appealable. This would provide the right to access to courts, as granted by the Constitution.

Second, the independence and the impartiality of the UCK is still a problematic issue that needs to be tackled. The UCK should not be within the structure of the Turkish Football Federation. The process of the appointment of arbitrators should be revised. Clubs, players, coaches and agents must have an equal say on the matter.

The current Turkish system is preferable compared to everlasting court process. Four months to receive an award and the assurance of the enforcement of the award by the Turkish Football Federation is quite encouraging. Mandatory arbitration of UCK is very recent and hopefully the novel system will evolve to fulfil the criteria of FIFA.

[1] Nurettin Emre Bilginoglu, LLM, Attorney-at-law

 Istanbul, Turkey

 e-mail: emre@caglayanyalcin.com

[2] http://www.transfermarkt.com/super-lig/startseite/wettbewerb/TR1

[3] Duval (2013) Lex Sportiva: a playground for transnational law. Eur Law J 19:822-842.

[4] Preamble of the FIFA National Dispute Resolution Chamber Standard Regulations points at this issue:

 “Currently, only a limited number of member associations have a national dispute resolution chamber or a body structured along similar lines that fulfils the criteria of article 22 paragraph b) of the Regulations on the Status and Transfer of Players. This means that the vast majority of international employment-related disputes fall within the jurisdiction of the FIFA Dispute Resolution Chamber and that the majority of “national” cases may not find appropriate solutions.”

[5] See Ashford (2014) Handbook on International Commercial Arbitration. JurisNet LLC, New York and Karton (2013) The Culture of International Arbitration and the Evolution of Contract Law. Oxford University Press, Oxford.

[6] See Rigozzi (2005) L’arbitrage international en matière de sport. Helbing & Lichtenhahn, Basel.

[7] See Eksi N (2015) Spor Tahkim Hukuku. Beta, Istanbul and Bilginoglu N (2015) Resolution of Disputes Arising From Football Contracts. Beta, Istanbul.

[8] Artıcle 59- The State shall take measures to develop the physical and mental health of Turkish citizens of all ages, and encourage the spread of sports among the masses. The State shall protect successful athletes. (Paragraph added on March 17, 2011; Act No. 6214) The decisions of sport federations relating to administration and discipline of sportive activities may be challenged only through compulsory arbitration. The decisions of Board of Arbitration are final and shall not be appealed to any judicial authority.

[9] “…the TFF Statutes and the Turkish Football Law expressly exclude any appeal against national arbitral tribunals’ decisions, i.e. against such a decision like the Appealed Decision which is the object of the present case. The particular trumps the general. Therefore the argument of the Player that he has an express right of appeal to the CAS under the TFF Statutes must be rejected.” See CAS 2010/A/1996 Omer Riza v. Trabzonspor Kulübü Dernegi & Turkish Football Federation (TFF).

[10] CAS 2015/A/4172 Association of Unions of Football Players and Coaches v. Football Union of Russia.

[11] Although the formation of the arbitral tribunal was different, see CAS 2006/O/1055 Del Bosque, Grande, Miñano Espín & Jiménez v/ Besiktas. For European Court of Human Rights decisions, see Terra Woningen B.V. v. Netherlands, Application N:     20641/92, Date: 17/12/1996; Tsfayo v. UK, Application N: 60860/00, Date: 14/11/2006.

[12] See de Weger (2016) The Jurisprudence of the FIFA Dispute Resolution Chamber, T.M.C. Asser Press for extensive information on sporting sanctions and training compensations.

[13] De Weger (2016) p. 132; For the German practise, see Frodl C (2016) Neuer, Hummels, Muller, Gotze & Co: the legal framework governing industrial relations in German professional football, Int Sports Law J (2016) 16:3–21.

[14] CAS 2010/A/1996 Omer Riza v. Trabzonspor Kulübü Dernegi & Turkish Football Federation (TFF). 

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.

Personally, I have, to put it mildly, mixed feelings regarding this decision. On the one hand, I am relieved that the BGH did not endorse the reasoning used by the Landgericht München in its ruling, challenging the necessity of forced CAS arbitration. But, on the other hand, I am rather disappointed that the BGH failed to endorse the balanced reasoning used by the Oberlandesgericht München in its decision (I translated the relevant parts of the ruling here). I believed this framing of the case would have offered a perfect vantage point to force a democratic reform of the CAS without threatening its existence. For those concerned with a potential flood of appeals, this could easily have been avoided by barring Claudia Pechstein to prevail on the merits of the case (or through preclusion for example). There was room for mild audacity and transnational constitutionalism (as I argued elsewhere), but the BGH opted for conservatism and conformism. I deeply regret it.

Though it is always perilous to comment on a case based only on a preliminary press release, I will offer here some (critical and preliminary) thoughts on the main aspects of the BGH’s legal reasoning.

I.               This is not forced arbitration (or is it?)

Paradoxically (or not), I chose to start with the end of the BGH’s press release discussing the validity of the arbitration agreement. The BGH is also very much drawn to paradoxes in this final paragraph of its press release. In a first sentence it states rather bluntly that Pechstein has freely signed the arbitration agreement in favour of the CAS.[1] Yet, conscious of the absurdity of such a claim (unless one means only that Pechstein was free to decide to become a professional speed-skater), it immediately qualifies its assertion by claiming that in any case the fact that she was forced to sign the agreement does not imply that it is invalid.[2] This is justified on the basis of a balancing exercise (which is not detailed in the press release and will be important to scrutinize in the final judgment) between the athlete’s fundamental right to a judge and her freedom to provide services and the constitutionally protected autonomy of associations (e.g. ISU).[3] This is particularly so, because Claudia Pechstein could appeal a CAS award to the Swiss Federal Tribunal (SFT).[4] Thus, she had access to a national judge and did not necessitate recourse to the German courts.[5]

Hidden in this relatively small paragraph, compared to the overall press release, are many controversial statements and assumptions. First, the claim that Claudia Pechstein (and any other international athlete for that matter) freely submits to CAS arbitration is surreal. So unconvincing, that the BGH itself debunks it in the following phrase. What is it then? Free consent or forced consent? You need to choose! In fact, CAS arbitration is always (in appeal cases) forced arbitration. This should be openly acknowledged by the BGH and the SFT. Instead, they are forced into logical convolutions that can only be perceived, in the SFT’s own words, as “illogical”.[6] Second, the balancing exercise conducted by the BGH should be scrutinized. Unfortunately, there is very little information on this balancing in the press release. Yet, one should not accept a restriction on the freedom of an athlete to provide services and on its fundamental right to access national courts, unless a forced CAS arbitration is shown as absolutely necessary to secure the autonomy of the Sports Governing Bodies (SGBs). Moreover, such a weighty restriction on the fundamental rights of an athlete should imply a strict assessment of the quality of the judicial process at the CAS. In light of the BGH’s assessment of the independence of the CAS (see more on this in part II.), one can doubt that it has taken this balancing exercise seriously. Finally, the claim that access to the SFT could compensate for the loss of Claudia Pechstein’s access to German Courts is ludicrous, or in good German realitätsfremd. Any CAS practitioner knows that the SFT favours (to its credit openly) a “benevolent”[7] approach to the CAS, and that it is extremely reluctant to overturn awards on the basis of procedural or substantial ordre public.[8] Winning an appeal against a CAS award in front of the SFT is a bit like Leicester City winning the Premier League, an oddity.

Based on the BGH’s press release, the ruling seems at best vague and unpersuasive and at worse negligent in its assessment of the factual and legal situation. One can well argue that on balance of interests, forced CAS arbitration might be necessary to preserve the existence of international SGBs and their competitions, but this would imply a way stricter assessment of the institutional independence of the CAS, which is entirely lacking in the press release. 

II.             The (in)dependence of the CAS

The core of the press release concerns the independence of the CAS. The BGH considers that the CAS is a true arbitral tribunal in the sense of German civil procedural law and that it is not structurally imbalanced in favour of the SGBs.[9] Therefore, forcing athletes to arbitrate disputes at the CAS does not constitute an abuse of dominant position. 

I contend that the BGH’s assessment of the independence of the CAS is, based on this press release, imprecise and in some regards even erroneous. It relies on four main arguments:

• SGBs and athletes share the same interest in the fight against doping
• SGBs and athletes share the same interest in having a uniform and swift sporting justice
• The CAS Code allows for sufficient safeguards in case an arbitrator is not sufficient independent/impartial
• The athlete can appeal to the SFT to challenge the lack of independence of an arbitrator

In the following sections of this blog, I will aim at critically unpacking and deconstructing these four arguments one by one.

A.    The shared interest of athletes and SGBs in the fight against doping

In a first paragraph, the BGH sets out to rebut the OLG’s argument that the CAS is structurally imbalanced in favour of the SGBs, i.e. due to the selection process of CAS arbitrators included in the CAS list. In the past, and still nowadays, it is the ICAS, a body constituted of 20 members nominated overwhelmingly by the SGBs, which decides who gets to be on the CAS list. Currently, based on their official CVs available on the CAS’ website, 13 out of 20 ICAS members have direct links with SGBs. Hence, the OLG’s reasonable assumption that the selection process of arbitrators could lead to the perception that the CAS was in a way captured by the SGBs and prone to favour their interests.

The BGH’s trick to rebut this finding of the OLG is to merge the interests of the athletes and of the SGBs into a shared objective of fighting against doping.[10] This is, bluntly speaking, ludicrous. It would be like arguing that the independence of the criminal justice is redundant, because both the State and the accused citizen share an interest in public safety and security. This is legal nonsense and is not up to the standards of the BGH. It is easy to discern that beyond an undoubtedly shared concern for the fight against doping, the athlete and the SGB involved in a particular dispute over a failed anti-doping test have radically opposite interests. Consequently, the independence of the CAS is crucial to ensure that the SGBs do not abuse their legitimate regulatory and executive powers in an anti-doping dispute. 

B.    The shared interest in a uniform and swift sporting justice

The BGH, thereafter, argues that the CAS would be necessary to ensure the uniformity and swiftness of sporting justice and that this would be also in the interest of the athletes.[11] I actually share the view of the BGH on this need for a uniform sporting justice embodied by the CAS. Still, the German judges fail to comprehend that this argument can be used only to justify the post-consensual foundations of the CAS, but is toothless to promote laxer standards of independence for the CAS. The need for uniformity and swiftness might call for a single institution having mandatory jurisdiction, but not for this same institution to be captured by the SGBs or to fail to ensure due process guarantees. Here, ironically, the BGH is laying the ground for a strict review: the recognized necessity of forced arbitration calls for an impeccable CAS on the due process side.

C.    The CAS Code safeguards the independence/impartiality of CAS arbitrators

In the following sections of its reasoning, the BGH argues that any remaining imbalance of the CAS in favour of the SGBs could be remedied via the procedural safety mechanisms included in the CAS code.[12] In the full judgment it probably refers to article S.18 CAS Code providing that arbitrators have to sign “an official declaration undertaking to exercise their functions personally with total objectivity, independence and impartiality, and in conformity with the provisions of this Code” and to article R.33 CAS Code stating that “[e]very arbitrator shall be and remain impartial and independent of the parties and shall immediately disclose any circumstances which may affect her/his independence with respect to any of the parties.” Based on article R.34 CAS Code, any challenge of an arbitrator on the basis of the latter provision must be submitted to the ICAS Board composed of six members, five of which are or have been in the past involved in executive positions in SGBs. In these conditions, it should be obvious that challenging the independence of an arbitrator vis-à-vis the SGBs is extremely unattractive for an athlete, even more so when considering that in case of failure there is a risk of alienating the arbitrator in question. This is why the CAS’s independence issue is systemic and cannot be solved without re-designing the selection process and composition of the ICAS.

Furthermore, the BGH also argues that both parties can chose an arbitrator and that both arbitrators will then designate the President of the panel.[13] This is plainly wrong. In appeal cases, concerning almost all the anti-doping cases and which was the procedure followed in the Pechstein case, it is the President of the appeal division that designates the President of the panel.[14] The president of the division is also the one in charge of ensuring “that the arbitrators comply with the requirements of Article R33”. [15]  This person is directly nominated by ICAS and it suffices to remind that the previous holder of this position was (until 2013) Thomas Bach (now IOC President, then IOC Executive Board member), to demonstrate how doubtful its independence from the SGBs was and still is. It is difficult to understand how such a basic mistake has found its way into a BGH press release. Even the official CAS Code Commentary by the CAS Secretary General openly justifies this exclusive prerogative of the President of the appeal division by stating that she “can better evaluate if it is preferable to appoint an experienced arbitrator in order to act as chairman of the Panel or a less experienced CAS arbitrator, who is not widely known to the parties but who would have the necessary background to rule on a particular case”.[16] The dilettante manner in which the BGH has conducted its assessment of the CAS’ independence contrasts strongly with the OLG’s thorough discussion of the problematic role of the ICAS and of the president of the appeal division.[17]  

D.    The SFT’s control of the independence/impartiality of CAS arbitrators

Finally, and this is a point already touched upon in the first part of this blog, the BGH insists that the losing party has the possibility to appeal to the SFT, which can annul the award.[18] The problem is, again, that the SFT is a mere paper tiger. Yes, it intervened (mildly) in the famous Gundel case in 1993, because back then the IOC was directly and openly controlling the CAS, but since then it has adopted a very narrow interpretation of the scope for challenges of the independence of CAS arbitrators.[19] Generally, the SFT considers the CAS as a necessary evil that should be (very) benevolently checked. This is hardly a credible avenue to ensure that its decisions abide by the democratic standards called for on the basis of its mandatory global jurisdictions.[20]

Conclusion: A missed opportunity

In work of arts, I am, and remain, a fond admirer of Magritte’s surrealist take on life. Yet, I doubt that a Court should engage in a similar exercise when drafting its judgments. Its role is to get its facts right (or close to right) and find the fitting interpretation of the law in a particular context. In the present case, I believe the BGH failed on both fronts. In its press release it misrepresented basic facts (that can be checked in two clicks via google) on the functioning and institutional structure of the CAS, often concerning facts that were already available in the OLG’s judgment. This is extremely worrying for such a reputable Court. Additionally, it failed to properly understand its constitutional role vis-à-vis the CAS and the need to ensure that basic due process rights of athletes are respected at the CAS. This needed not entail the death of the CAS, nor the end of its mandatory jurisdiction, nor even that Pechstein should be allowed to have her liability claim heard (a flood of appeals could have been easily avoided). Instead, a reform of the CAS could have been simply achieved by a subtle Solange formula stating roughly that forced CAS arbitration is fine ‘as long as’ the independence of the CAS is safeguarded and the due process rights of athletes warranted. Hopefully, the case will move to the Bundesverfassungsgericht (and it is still pending before the European Court of Human Rights), which knows a thing or two about Solange formulas…

[1] “Die Klägerin hat die Schiedsvereinbarung freiwillig unterzeichnet.”

[2] “Dass sie dabei fremdbestimmt gehandelt hat, da sie andernfalls nicht hätte antreten können, führt nicht zur Unwirksamkeit der Vereinbarung.”

[3] “Denn auch insoweit ergibt die Abwägung der beiderseitigen Interessen am Maßstab des § 19 GWB eine sachliche Rechtfertigung der Verwendung der Schiedsklausel, die nicht gegen gesetzliche Wertentscheidungen verstößt. Dem Justizgewährungsanspruch der Klägerin sowie ihrem Recht auf freie Berufsausübung steht die Verbandsautonomie der Beklagten gegenüber.”

[4] “Schließlich ist der Klägerin im Anschluss an das Schiedsgerichtsverfahren Zugang zu den nach internationalem Recht zuständigen schweizerischen Gerichten möglich.”

[5] “Ein Anspruch gerade auf Zugang zu den deutschen Gerichten besteht danach nicht.”

[6] “Qu'il y ait un certain illogisme, en théorie, à traiter de manière différente la convention d'arbitrage et la renonciation conventionnelle au recours, sous les rapports de la forme et du consentement, est sans doute vrai.” BGE 133 III 235, at 245.

[7] “Exprimée d'une autre façon, cette logique veut que le maintien d'une possibilité de recours constitue un contrepoids à la "bienveillance" avec laquelle il convient d'examiner le caractère consensuel du recours à l'arbitrage en matière sportive.”

[8] See on this difficulty A. Rigozzi, Challenging Awards of the Court of Arbitration for Sport, J Int. Disp. Settlement (2010) 1 (1): 217-265.

[9] “Der CAS ist ein "echtes" Schiedsgericht im Sinne der §§ 1025 ff. ZPO.”

[10] “Denn die Verbände und die Athleten stehen sich nicht als von grundsätzlich gegensätzlichen Interessen geleitete Lager gegenüber. Vielmehr entspricht die weltweite Bekämpfung des Dopings sowohl den Interessen der Verbände als auch denen der Athleten.”

[11]“Die mit einer einheitlichen internationalen Sportsgerichtsbarkeit verbundenen Vorteile, wie etwa einheitliche Maßstäbe und die Schnelligkeit der Entscheidung, gelten nicht nur für die Verbände, sondern auch für die Sportler.”

[12] “Ein dennoch verbleibendes Übergewicht der Verbände wird ausgeglichen durch die Verfahrensordnung des CAS, die eine hinreichende individuelle Unabhängigkeit und Neutralität der Schiedsrichter gewährleistet.”

[13] “Der konkret an dem Verfahren vor dem CAS beteiligte Sportverband - hier die ISU - und der Athlet müssen je einen Schiedsrichter aus der mehr als 200 Personen umfassenden Liste auswählen. Diese Schiedsrichter bestimmen gemeinsam den Obmann des Schiedsgerichts. Ist ein Schiedsrichter befangen, kann er abgelehnt werden.”

[14] Article R54 CAS Code: “If three arbitrators are to be appointed, the President of the Division shall appoint the President of the Panel following nomination of the arbitrator by the Respondent and after having consulted the arbitrators.”

[15] Article R54 CAS Code.

[16] See footnote 2 in M. Reeb & D. Mavromati, The Code of the Court of Arbitration for Sport. Commentary, cases and materials. Kluwer, 2015, p.479.

[17] See generally A. Duval & B. van Rompuy, The Compatibility of Forced CAS Arbitration with EU Competition Law: Pechstein Reloaded. Available at SSRN: http://ssrn.com/abstract=2621983.

[18] Die unterliegende Partei hat die Möglichkeit, bei dem zuständigen schweizerischen Bundesgericht um staatlichen Rechtsschutz nachzusuchen. Das schweizerische Bundesgericht kann den Schiedsspruch des CAS in bestimmtem Umfang überprüfen und gegebenenfalls aufheben.

[19] See L. Beffa, 'Challenge of international arbitration awards in Switzerland for lack of independence and/or impartiality of an arbitrator – Is it time to change the approach?' (2011) 29 ASA Bulletin, Issue 3, pp. 598–606

[20] Here I implicitly refer to the pathbreaking democratic theory for international courts developped in A. Von Bogdandy & I. Venzke, In Whose Name? A Public Law Theory of International Adjudication, Oxford University Press, 2014.