Asser International Sports Law Blog

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The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Blog Symposium: Third-party entitlement to shares of transfer fees: problems and solutions - By Dr. Raffaele Poli (Head of CIES Football Observatory)

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

Editor’s note: Raffaele Poli is a human geographer. Since 2002, he has studied the labour and transfer markets of football players. Within the context of his PhD thesis on the transfer networks of African footballers, he set up the CIES Football Observatory based at the International Centre for Sports Studies (CIES) located in Neuchâtel, Switzerland. Since 2005, this research group develops original research in the area of football from a multidisciplinary perspective combining quantitative and qualitative methods. Raffaele was also involved in a recent study on TPO providing FIFA with more background information on its functioning and regulation (the executive summary is available here).

This is the third blog of our Symposium on FIFA’s TPO ban, it is meant to provide an interdisciplinary view on the question. Therefore, it will venture beyond the purely legal aspects of the ban to introduce its social, political and economical context and the related challenges it faces.

 

1)    Introduction

This paper reviews the main challenges to the smooth development of football when considering the repercussions of third party entitlement to shares of transfer fees (sections 2 to 5) and formulates a non-partisan proposal to reform the transfer system as a whole (section 6).

Third parties define all other parties than the teams transferring the registration of a player: companies, holdings, investments funds, agents, club shareholders and employees, footballers and relatives, other football clubs, football academies, etc.

In the interests of accuracy and avoidance of doubt, the common terms of third-party ownership and players’ economic rights are not used in this paper. Literally speaking, the business area considered is indeed based on options rather than ownership.

Moreover, the term of ownership suggests that third-party investors “own” players as for a master with respect to a slave. TPE arrangements also raise crucial issues in terms of power between third-party investors and players. However, the stakes are hardly comparable with those in the master/slave relationship. It is thus more accurate to refer to entitlement instead of ownership.

With regard to economic rights, they are nothing more than transfer compensation as stipulated by FIFA regulations. The notion of economic rights is thus also misleading as it suggests the existence of specific rights beyond those deriving from regulations set up by football authorities. The unreflective use of this concept only adds confusion to the debate.

The common goal of actors participating in the business of third-party entitlement (hereafter TPE) is to make a financial profit through the transfer of players, or, for individuals involved in the financing of clubs, to be able to secure their investments.

 

2)    TPE and the sustainability of football clubs

The growth of TPE deals raises crucial issues for the sustainable development of clubs. This is especially true for teams that view regular investment from third parties as a key income source in their business model.

While TPE investments might initially be welcomed by clubs facing economic problems, over time, such agreements have the potential to provoke a loss of control over transfer operations and durably compromise the financial situation of teams.

Within the context of economic polarisation[1], TPE deals do not have the power to solve financial issues arising from an unfavourable position in the market. On the contrary, a difficult situation from an economic standpoint reduces considerably the bargaining power of clubs with respect to third parties.

Third-party investors promoting TPE arrangements are thus often able to acquire a favourable position within a club to minimise their risks and maximise profits over the longer term. This reinforces the dependency of clubs vis-à-vis third parties and affects their financial stability.

The TPE business model develops in parallel with the progressive takeover of clubs by groups or individuals motivated by the possibility to speculate on the transfer market. The tendency to consider teams as a launching-pad to generate profits through the transfer of players increases.

Club employees in charge of transfers also contribute to this process by using their strategic position for personal profit. Within this framework, economic stakes tend to overcome sporting objectives. This runs in the vast majority of cases contrary to the long-standing interests of clubs.

Indeed, the greed of third-party investors, the high mobility of players and the chronic financial instability of clubs engaging in TPE practices tend to have a negative impact on results. Several studies by the CIES Football Observatory have provided evidence that over-activity in the transfer market is counterproductive in the long run.[2]

In turn, poor performance levels have a negative effect on the ability to generate revenues in the transfer market and can lead to bankruptcies. It is indeed harder to find potential buyers interested in taking over a club when the latter is not entitled to potential transfer fees for players under contract.

 

3)    TPE and the development of the game

The logic of short-term profit maximisation underlying TPE practices is often not appropriate for the sporting development of players. This is above all valid for young talents transferred abroad before the acquisition of a solid experience in their home country.

The numerous transfers that many footballers at the heart of the TPE business model will be confronted with to develop or restart their career only add to the pressure which makes fulfilling their potential more difficult. In many cases, this aspect is not sufficiently taken into account by third-party investors primarily attracted by the lure of money.

The monetisation of players’ mobility within the framework of the TPE business model tends thus to have a negative effect not only for footballers, but also on football in general. Short-termism and speculation often run contrary to the personal development of players and entail greater risks of breaking careers.

Furthermore, there are serious concerns with regard to influence and bias in player selection. Indeed, the speculative nature of the TPE business model and vested interests between the various actors involved promotes favouritism.

High risks of favouritisms and insider trading also exist with regard to national team selection both at adult and youth level. Indeed, international caps can significantly increase the market value of a player and guarantee higher profits.

In addition, as the ability to produce high-quality matches is strongly linked to team cohesion, the increase in player turnover within the framework of the development of TPE arrangements is damaging to football as a spectacle.

While some well-connected clubs are able to take advantage of their privileged access to the best talent by means of TPE deals, this always takes place to the detriment of other teams within the context of a zero-sum game.

Consequently, the TPE business model prevents leagues from increasing the competitive balance between clubs and the overall performance of the league. The same holds true at international level for football as a whole.

 

4)    TPE and the transfer system

An additional concern with regard to the TPE business model relates to two founding principles underlying the transfer system of football players as agreed in 2001 by the EU, FIFA, and UEFA: contractual stability and the promotion of training.[3]

Contrary to the principle of contractual stability, the TPE business model promotes the use of the transfer system for the purpose of financial speculation. Within this framework, the trend of transferring players before the end of their contract increases.

The speculative nature of the TPE business model also has a negative impact on the promotion of training. Firstly, TPE deals are concluded without the payment of training indemnities and solidarity contributions as stipulated in FIFA regulations. Secondly, footballers having already been the subject of investment tend to be favoured above players who are locally trained.

With this in mind, it is not surprising to observe that the number of players transferred by top division clubs in 31 UEFA member associations has reached an all-time high in 2014/15. In parallel, a record low was recorded in the percentage of club-trained footballers.[4] In the long-term, these developments weaken clubs both sportingly and economically.

In addition, the TPE business model amplifies the conflicts of interest between intermediaries, fund or investment company managers and club shareholders or employees in charge of transfers. The TPE arrangements between these actors lead to the institutionalisation of conflicts of interest as the modus operandi of the transfer market.

In parallel, a process of “cartelisation” based on privileged relations develops. Established intermediaries play a crucial role in this process. The direct involvement of the most influential agents in the TPE business sphere reinforces their dominant position.[5] This further limits the competitiveness of the player representation market and the transfer market in general.

As a consequence, a few investment funds and companies collaborate on a regular basis with a close-knit group of intermediaries holding strong ties with team shareholders and managers. The key actors in these dominant networks are thus more than ever able to exercise a lasting control over more footballers and clubs.[6]

This gives them even more leverage over actors who are not part of their network. As in all economic sectors, enjoying an oligopolistic position is indeed particularly useful. Specifically in football, this drives up transfer costs for players controlled, generates ever-greater profits and consolidates the control on the market.

In addition, when TPE investors want to maintain a percentage on future transfers with the aim of maximising profits, clubs from national associations where such practices are forbidden (i.e. England) have much less bargaining power. This also leads to rising recruitment costs. From this perspective, the TPE business model is a source of inequalities between countries.

A further negative consequence of the development of the TPE business model is the creation of parallel transfer markets which are for the most part outside the scope and control of the football authorities, as well as the arbitrary justice of sporting federations.

Contrary to club officials, third-party investors do not have to respect the normal transfer windows. This gives third parties a competitive advantage over clubs. Moreover, as already mentioned, TPE agreements do not provide for the payment of solidarity or training contributions.

By sidestepping sporting regulations, the spread of the TPE business model undermines the authority of football governing bodies and the arbitrary justice of sport. This jeopardises the regulatory mechanisms agreed with public authorities to protect the interests of clubs, players and the agents wishing to operate in compliance with the existing legal framework.

 

5)    TPE and the rights of workers

By widening the number and variety of actors entitled to shares in transfer fees, TPE practices can restrict the freedom of movement of players in several ways. This situation raises important issues with regard to workers’ rights.

The existence of TPE deals generally makes negotiations more complicated. Transfers can collapse even though the clubs and the player concerned had reached an agreement. Moreover, as mentioned above, the multiplication of actors involved in transactions is likely to hinder the free movement of players by increasing transfer costs to the satisfaction of all parties involved.

From an ethical point of view, the fact that many players are kept in the dark regarding arrangements for the share of potential fees for their transfer is also problematic. Insofar as these agreements often have an impact on the rest of their career, players should at least be informed as to the identity of the actors involved, as well as to the terms of the deals.

Morally speaking, the written consent of players should also be compulsory to validate the contractual details agreed between the different parties involved. This is currently not the case. As a matter of fact, many TPE arrangements run contrary to the fundamental right of players to decide where they want to play.

TPE practices thus contribute in reducing the decision-making powers of footballers to the profit of third parties. In the least favourable scenarios, players find themselves in a situation of dependence towards third-party investors and intermediaries with little or no room to manoeuvre.

Young players from poor family backgrounds with little knowledge on the functioning of the transfer system are particularly vulnerable with respect to arrangements promoted within the context of the TPE business model.

This was notably raised by Marcelo Estigarribia in a recent interview published by an Italian magazine.[7] The Paraguayan footballer complained about the numerous transfers he had to face up (six over the last seven years) after that an investment company acquired the control of his career through TPE arrangements.

Of course, successful footballers can also take advantage of the networks set up by dominant actors through TPE arrangements. However, the opposite holds often true for the majority of less successful players who would have needed a more stable context to develop their skills or would have liked to have a greater control on their career path.

 

6)    Plea for a holistic approach

The practical functioning of the transfer market of football players and the development of the TPE business model threaten the integrity of football. A holistic approach is needed to limit the worst pitfalls of the business and reduce its profitability for third parties who do not act in the long standing interests of clubs and of football in general.

This will involve reforming the existing transfer system and making it better suited to fulfil the purpose for which it was first implemented and has since been adapted as previously described in this paper.

An efficient measure would be to entitle each team in which a player has passed through to a compensation for each fee paying transfer taking place over the course of the player’s professional career on a pro rata basis to the number of official matches played at the club.

For example, if footballer X begins as a professional in club X and plays 75 matches there before being transferred to club Y, in the event of a paying fee transfer to club Z after 25 official games played for club Y, club X is entitled to 75% of the transfer fee. And this even though club Y already paid a fee to sign the player from club X.

This reform would re-focus the transfer system back on the objectives for which it was conceived, notably with regard to contractual stability and the promotion of training. It would also have a positive impact in terms of income redistribution, a key issue in today’s football.[8]

At contractual stability level, the reform would ensure that clubs are rewarded with a substantial compensation at a later stage even if the player leaves at the end of his contract. Consequently, teams could more easily afford keeping the best talents for a longer period. This would also help tame salary inflation.

With regard to the promotion of training, such a reform would make sustainable investments in clubs or youth academies for the training of the next generation of players more interesting from a financial standpoint.

Training clubs would indeed be better compensated economically in that they would receive substantial money also in the event of a second, third or further paying fee transfer, which are generally the most profitable.

In the meantime, this would reduce the attractiveness of speculating on specific talents to obtain short-term profits with no real contribution to the smooth development of football, as it is the case with the current TPE business model.

Of course, this reform is no golden bullet. It would not solve all the problems related to corporate governance issues at club level. It would also not be able to tackle all the concerns arising from the practical functioning of the transfer market of football players as highlighted above.

However, it would have the merit to re-direct the transfer system towards the key principles underlying its creation and existence. It would also allow football governing bodies to gain a better control over its operation.

Beyond the TPE issue, all stakeholders concerned about the integrity of football should have an interest in updating the transfer system to protect the smooth development of the game. The proposed reform moves in that



[1] See UEFA 2014: The European Club Footballing Landscape, Club Licensing Benchmarking Report (http://www.uefa.org/MultimediaFiles/Download/Tech/uefaorg/General/02/09/18/26/2091826_DOWNLOAD.pdf).

[2] See Poli R., Besson R. and Ravenel L. 2015: Club instability and its consequences, CIES Football Observatory Monthly Report n° 2 (http://www.football-observatory.com/IMG/pdf/mr01_eng.pdfhttp://www.football-observatory.com/IMG/pdf/mr01_eng.pdf).

[3] See http://europa.eu/rapid/press-release_IP-02-824_en.htm.

[4] The figures are available in the CIES Football Observatory’s Digital Atlas at http://www.football-observatory.com/Digital-Atlas.

[5] See Poli, R. and Rossi, G. (2012) Football agents in the biggest five European markets. An empirical research report. CIES: Neuchâtel (http://www.football-observatory.com/IMG/pdf/report_agents_2012-2.pdf).

[6] A thorough analysis of the working of dominant networks in the transfer market of football players is available in Russo, P. (2014) Gol di rapina. Il lato oscuro del calcio globale. Edizioni Clichy, Firenze.

[7] Fabrizio Salvio, Sport Week, 27.09.2014, 34-38.

[8] See Poli R., Besson R. and Ravenel L. 2015: Transfer expenditure and results, CIES Football Observatory Monthly Report n° 3 (http://www.football-observatory.com/IMG/pdf/mr03_eng.pdf).

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Asser International Sports Law Blog | The Pechstein ruling of the Oberlandesgericht München - Time for a new reform of CAS?

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The Pechstein ruling of the Oberlandesgericht München - Time for a new reform of CAS?

Editor's note (13 July 2015): We (Ben Van Rompuy and I) have just published on SSRN an article on the Pechstein ruling of the OLG. It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621983. Feel free to download it and to share any feedback with us!


On 15 January 2015, the earth must have been shaking under the offices of the Court of Arbitration for Sport (CAS) in Lausanne when the Oberlandesgericht München announced its decision in the Pechstein case. If not entirely unpredictable, the decision went very far (further than the first instance) in eroding the legal foundations on which sports arbitration rests. It is improbable (though not impossible) that the highest German civil court, the Bundesgerichtshof (BGH), which will most likely be called to pronounce itself in the matter, will entirely dismiss the reasoning of the Oberlandesgericht. This blogpost is a first examination of the legal arguments used (Disclaimer: it is based only on the official press release, the full text of the ruling will be published in the coming months).

 

The Pechstein Saga

Few are able to remember the start of Claudia Pechstein’s legal crusade through all available jurisdictions in the northern hemisphere[1]. Thus, a concise summary of the previous episodes is in order. Claudia Pechstein is a German Speed-Skater, multiple Olympic Gold Medallist and World Champion. In 2009, she was one of the first athletes caught for doping on the basis of the blood profiling system introduced by the International Skating Union (ISU)[2]. Henceforth, the ISU banned her from all competitions for two years. This triggered a long and embroiled legal saga. She appealed the ban in front of the Court of Arbitration for Sport (CAS), based on an arbitration agreement included in her license with the national and international federations. The CAS dismissed (CAS 2009/A/1912 & 1913 and CAS OG 10/04) her claims and confirmed the two-year ban. Subsequently, she contested (twice!) the award in front of the Swiss Federal Tribunal (Case 4A_612/2009, 10 February 2010 and Case 4A_144/2010, 28 September 2010), but was both times unsuccessful. Her case is also pending before the European Court of Human Rights. Meanwhile, she started an action for damages (around € 4 Million) in front of the local Court of Munich (Landesgericht München). This Court released its judgment on 26 February 2014, despite recognizing the invalidity of the arbitration clause, it considered that the award’s res judicata effect was to be recognized because Pechstein did not contest the competence of CAS when she appealed the ISU’s decision to it. Pechstein decided to appeal the judgment to the Oberlandesgericht München, which in its decision from 15 January 2015 embraced her claims.

 

The Decision of the Oberlandesgericht München

The overall position of the Oberlandesgericht concerning the CAS award is straightforward. The court considers the arbitration clause between the ISU and Claudia Pechstein as contrary to German (and maybe European) antitrust law, which is part of German public policy, and, therefore, refuses on the basis of Article V (2) (b) New York Convention of 1958 to recognize the validity in Germany of the CAS awards rendered in the Pechstein case. But, why is it so?

First of all, the judges point out a typical (but often overlooked) fact about International Sports Governing bodies: they are monopolists. In other words, they control the market(s) for international sports competitions and nowadays (at least in speed-skating) no professional athlete can afford, if he is to live from his sport, to miss those competitions. Yet, German antitrust law bans an undertaking placed in a dominant position from imposing contractual conditions that differ from what they would be in a normal competitive environment. Hence, the Court held that the ISU was unlawfully imposing onto Claudia Pechstein the signing of a CAS arbitration clause. But, is a forced arbitration clause per se constitutive of an antitrust violation? The Court is subtler. In fact, it acknowledges that an arbitration clause imposed by a Sports Governing Body does not constitute per se an antitrust violation. To the contrary, the Court clearly states that there are good reasons (for example the uniform application of anti-doping regulations) to subject the resolution of sporting disputes between athletes and Sports Governing Bodies to a unique world court for sport. What is the problem then?  

In the eyes of the German court, the problem lies with CAS and its institutional set-up. First of all, the Sports Governing Bodies (International federations, NOCs and IOC) have a decisive influence on who is potentially called to be an arbitrator in CAS arbitration. Here, without clearly alluding to it in the press release, the Court has the closed list of CAS arbitrators in mind. In short, only a predefined number of people can act as arbitrators before CAS. Those arbitrators are appointed on the CAS list by ICAS, the CAS code in force at the time of the case foresaw that 3/5 of the arbitrators were appointed upon proposals made by the Sports Governing Bodies[3]. This has changed. As from the 1 January 2014 the ICAS is free to appoint whomever it deems appropriate on the list[4]. Nevertheless, the Court finds that, at least for the time Pechstein was facing the CAS, the Sports Governing Bodies were in a structurally favourable position regarding the composition of the arbitral panel. In practice, athletes were forced to ratify this disequilibrium due to the monopoly of Sports Governing Bodies on the access to international sporting competitions.

Furthermore, the German judges consider that this imbalance plagues also the nomination process of a president of an arbitral panel. Indeed, under article R54 of the CAS Code, the president of the CAS Appeals Arbitration Division is responsible to nominate the presidents of the panels[5]. However, the president of the CAS appeals division is himself nominated by the ICAS[6], which consists mainly of representatives of the Sports governing bodies[7], and is often a personality close to them[8]. Currently, the ICAS has 20 members, of which 14 have (or had) direct ties with Sports Governing bodies and none is connected to the existing athlete’s unions. This institutional bias entrenches the structural imbalance in favour of the Sports Governing Bodies already identified by the Court apropos the closed list of arbitrators. Thus, the independence of the panel cannot be guaranteed and the fairness of the arbitral process safeguarded. Therefore, in light of the monopolistic position of the ISU and the lack of independence of CAS panels, the imposition of an arbitration clause depriving the athlete of her constitutional right to a judge constitutes a breach of German antitrust law.

Consequently, and contrary to the first instance Landesgericht[9], the Oberlandesgericht refuses to recognize, on the basis of Article 5 par. 2  b) of the 1958 New York Convention, the validity of the CAS awards invoked by ISU to oppose the damage claims raised by Pechstein. The Court leaves open the question of the damage claims, the partial ruling on the jurisdiction being susceptible to an appeal to the highest German civil Court, the BGH.

 

Towards a Gundel 2.0 for CAS: Reform or die!

The Pechstein Saga is not finished yet; an appeal to the BGH by ISU is to be expected. However, one should not underestimate the symbolic value of the Oberlandesgericht’s ruling and the threat it constitutes to the work of CAS. Indeed, if the ruling were to be confirmed by the BGH it would basically imply that CAS awards are unenforceable in German courts and that athletes may therefore (successfully or not) claim damages against the Sports Governing Bodies imposing sanctions on the basis of these awards. From the press release it remains unclear whether the decision is based solely on German antitrust law or also on EU antitrust law. Nonetheless, this decision might also be constructed as an abuse of a dominant position in the sense of article 102 TFEU and could gain validity in the EU as a whole. This would be a dramatic setback for sports arbitration, nothing short than the death of CAS.

But, it need not come to such extremity. As recognized by the Oberlandesgericht, the CAS fulfils an important function in the sporting world. It is a necessary institution to provide a level legal playing field when issues of doping or transfers are leading to acrimonious transnational disputes. Additionally, it also has advantages for the athletes, as it is usually perceived as cheaper and faster than state justice[10]. All of this is duly acknowledged in the decision. In short, what the German Court is asking for is an institutional reform of CAS. This restructuring would entail a fundamental reshuffling of the internal functioning of the CAS. Indeed, the German judges have identified the two main weak points of CAS, the forced arbitration coupled with its lack of independence[11]. The forced arbitration can be accepted if, and only if, the structural independence of CAS from the Sports Governing Bodies is warranted[12]. The challenge to CAS can be formulated as follows: cut the ties that bind you to the Sports Governing Bodies or we will not accept the validity of the arbitration clause underpinning your competence.

In fact, the CAS was at a fairly similar (less dramatic) crossroad after the Gundel case of the Swiss Federal Tribunal in 1993[13]. In the Gundel case, the SFT recognized the independence of CAS but also clearly indicated that it would not do so if the IOC were a party to a dispute in front of CAS. This led to what is known as the Paris agreement, an in depth structural reform of CAS[14]. Mainly, the ICAS was created to separate the management of CAS from the IOC. The SFT expressed its satisfaction with the reforms in its famous Lazutina case and blessed the CAS with the full recognition of its independence[15]. This, however, did not mean that the recognition of the independence of CAS was legally a given beyond Switzerland. To the contrary, it was (and is) still hotly debated in the literature[16]. Now, the German court basically says the Paris agreement is not enough, we need a new one, ensuring that athletes (and other stakeholders like clubs or supporters) get a true say in the ICAS. It is time for the CAS’s institutional structure to better reflect the diversity of actors affected by its decisions. If not, CAS awards will not be recognized in Germany and, by extension, the entire territory of the EU, thus leading the sports justice into a profound crisis.

 



[1] All the relevant legal documents are available on her website at http://www.claudia-pechstein.de/gerichtsunterlagen.php

[2] On the dispute see D. McArdle, ‘Longitudinal Profiling, Sports Arbitration and The Woman Who Had Nothing to Lose. Some Thoughts on Pechstein v International Skating Union”, available at https://dspace.stir.ac.uk/bitstream/1893/3356/1/Pechstein%20final.pdf

[3] Article S14 CAS Code, edition 2004

[4] The new article S14 CAS Code reads as follows:

« In establishing the list of CAS arbitrators, ICAS shall call upon personalities with appropriate legal training, recognized competence with regard to sports law and/or international arbitration, a good knowledge of sport in general and a good command of at least one CAS working language, whose names and qualifications are brought to the attention of ICAS, including by the IOC, the IFs and the NOCs. ICAS may identify the arbitrators with a specific expertise to deal with certain types of disputes. »

[5] Article R54 CAS Code 2004 (and 2014) reads as follows: “If three arbitrators are to be appointed, the President of the Division shall appoint the President of the Panel upon appointment of the arbitrator by the Respondent and after having consulted the arbitrators.”

[6] Article S6 par.2 CAS Code 2004 (and 2014)

[7] Article S4 CAS Code 2014 foresees that:
« ICAS is composed of twenty members, experienced jurists appointed in the following manner :

1.     four members are appointed by the International Federations (IFs), viz. three by the Association of Summer Olympic IFs (ASOIF) and one by the Association of the Winter Olympic IFs (AIOWF), chosen from within or outside their membership;

2.     four members are appointed by the Association of the National Olympic Committees (ANOC), chosen from within or outside its membership;

3.     four members are appointed by the International Olympic Committee (IOC), chosen from within or outside its membership;

4.     four members are appointed by the twelve members of ICAS listed above, after appropriate consultation with a view to safeguarding the interests of the athletes;

5.     four members are appointed by the sixteen members of ICAS listed above, chosen from among personalities independent of the bodies designating the other members of the ICAS. »

[8] The current president, Corinne Schmidhauser, is a member of the Legal Committee of the Fédération Internationale de Ski (International Ski Federation). It is surely telling that Thomas Bach, the current IOC president, was her predecessor at that post.

[9] The first instance Court (Landesgericht München) considered that due to Pechstein’s appeal and lack of contestation of the CAS’s competence, the award had gained res judicata effect. See paragraphs  IV.2) of the judgment.

[10] A point made by D. Yi, ‘Turning medals into metal:  Evaluating the Court of Arbitration for Sport as an International tribunal’, available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1024&context=student_papers

[11] Antonio Rigozzi has highlighted these weaknesses in his Phd thesis, see A. Rigozzi L’arbitrage international en matière de sport, Bruylant, 2005, pp.273-349 and 421-426. See also, M. Maisonneuve, L’arbitrage des litiges sportifs, L.G.D.J, 2011, pp. 141-221 and pp. 267-313.

[12] In principle the Swiss Federal Tribunal has a similar view outlined in the Cañas case (4P.172/2006), but it considers that the CAS already offers « sufficient guarantees of independence and impartiality » (par. 4.3.2.3.). Thus, its assessment of the CAS’s independence is diametrically opposed to the one conducted by the Oberlandesgericht.

[13] Decision 4P.217/1992 of 15 March 1993 (Gundel v FEI), ATF 119 II 271, translated in CAS Digest I,.p. 545

[14] For an introduction on the Paris agreement see, http://www.tas-cas.org/en/general-information/history-of-the-cas.html#c74

[15] Decision 4P.267–270/2002 du 27 mai 2003, Lazutina c. CIO, ATF 129 III 445, Bull. ASA 2003, p. 601

[16] For a recent contribution to this debate see A. Vaitiekunas, The Court of Arbitration for Sport : Law-making and the question of independence, Stämpfli Publishers, 2014 

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