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 Russian Ballet at the CAS Ad Hoc Division in Rio - Act IV: On Bringing a sport into disrepute

Editor's note: This is the fourth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.

Act IV: On Bringing a sport into disrepute

Paragraph 2 of the IOC Decision: “The IFs will also have to apply their respective rules in relation to the sanctioning of entire NFs.” 


In paragraph 2 of its Decision, the IOC mentioned the possibility for IFs to “apply their respective rules in relation to the sanctioning of entire NF's”.This is exactly what the International Weightlifting Federation (IWF) did when it decided on 29 July 2016 to exclude the whole Russian Weightlifting Federation (RWF) from the Rio Olympics for having brought the sport into disrepute. Indeed, Article 12. 4 of the IWF Anti-doping Policy, foresees that:

“If any Member federation or members or officials thereof, by reason of conduct connected with or associated with doping or anti-doping rule violations, brings the sport of weightlifting into disrepute, the IWF Executive Board may, in its discretion, take such action as it deems fit to protect the reputation and integrity of the sport.”More...

The Russian Ballet at the CAS Ad Hoc Division in Rio - Act III: On being sufficiently tested

Editor's note: This is the third part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.

Act III: On being sufficiently tested 

Paragraph 2 of the IOC Decision: “The IFs should carry out an individual analysis of each athlete’s anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete’s sport and its rules, in order to ensure a level playing field.”

Daniil Andienko and 16 other members of the Russian rowing team challenged the decision of the World Rowing Federation (FISA) to declare them ineligible for the Rio Olympics. The FISA Executive Committee took the decision on 24 July 2016 because they had not “undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow laboratory and registered in ADAMS from 1 January 2015 for an 18 month period”.[1] In their submissions, the Russian applicants did not challenge the IOC Decision, and thus the criteria enshrined in paragraph 2, but only its application by FISA.[2] The Russian athletes argued that FISA’s decision deviated from the IOC Decision in that it was imposing as an additional requirement that rowers must “have undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow laboratory and registered in ADAMS from 1 January 2015 for an 18-month period”.[3] The Panel acknowledged that “the IOC Executive Board decision does not refer explicitly to the requirement of three tests or to a period of 18 months”.[4] Nonetheless, it “finds that the Challenged Decision is in line with the criteria established by the IOC Executive Board decision”.[5] Indeed, the IOC’s Decision “provides that in order to examine whether the level playing field is affected or not (when admitting a Russian athlete to the Rio Olympic Games), the federation must look at the athlete's respective anti-doping record, i.e. examine the athlete's anti-doping tests” and that “[i]n doing so, the IOC Executive Board decision specifies that only "reliable adequate international tests" may be taken into account”.[6] In this regard, the Panel, and FISA, share the view that “a reliable adequate international test can only be assumed if the sample has been analyzed in a WADA-accredited laboratory outside Russia”.[7]More...

The Russian Ballet at the CAS Ad Hoc Division in Rio - Act II: On being implicated

Editor's note: This is the second part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.


Act II: On being implicated

Paragraph 2 of the IOC Decision: The IFs to examine the information contained in the IP Report, and for such purpose seek from WADA the names of athletes and National Federations (NFs) implicated. Nobody implicated, be it an athlete, an official, or an NF, may be accepted for entry or accreditation for the Olympic Games.”


The second, and by far largest, wave of complaints involved Russian athletes barred from the game under paragraph 2 of the IOC Decision. None of those were successful in their appeals as the CAS sided with those IFs which took a tough stance with regard to the Russian State doping system. The first set of cases turned on the definition of the word “implicated” in the sense of paragraph 2 of the IOC Decision. In this regard, on 2 August the IOC sent a communication to the IFs aiming at providing some general guidelines. It reads as follows:

"In view of the recent appeals filed by Russian Athletes with CAS, the IOC considers it necessary to clarify the meaning of the notion "implicated" in the EB Decision.

The IOC does not consider that each athlete referred to in the McLaren Lists shall be considered per se "implicated. It is for each International federation to assess, on the basis of the information provided in the McLaren lists and the Independent Person Report, whether it is satisfied that the Athlete in question was implicated in the Russian State-controlled doping scheme.

To assist the International Federations in assessing each individual case, the IOC wishes to provide some information. In the IOC's opinion, an athlete should not be considered as "implicated" where:

·       The order was a "quarantine".

·       The McLaren List does not refer to a prohibited substance which would have given rise to an anti-doping rule violation or;

·       The McLaren List does not refer to any prohibited substance with respect to a given sample."

The CAS went on to address this question concretely in three cases analysed below. More...

The Russian Ballet at the CAS Ad Hoc Division in Rio - Act I: Saved by the Osaka Déjà-Vu

Since it was first introduced at the Atlanta Games in 1996,[1] the CAS ad hoc Division has never been as crowded as it was during this year’s Rio Olympics. This is mainly due to the Russian doping scandal, which has fuelled the CAS with Russian athletes challenging their ineligibility to compete at the Games. The CAS recently revealed that out of 28 awards rendered, 16 involved Russian athletes challenging their ineligibility. This Russian ballet is a direct result of the shocking findings of Richard McLaren’s Independent Person (IP) Report ordered by the World Anti-Doping Agency (WADA). McLaren’s investigation demonstrated that the Russian State was coordinating a sophisticated doping system. The revelation triggered an outrage in the media and amongst other competitors. Numerous calls (especially by WADA and various National Anti-Doping Organisations) were heard urging the IOC to ban the entire Russian delegation from the Olympics. The IAAF decided to exclude the whole Russian athletics team, [2] with the exception of Darya Klishina, but, to the disappointment of many, the IOC refused to heed these calls and decided, instead, to put in place a specific procedure to assess on a case-by-case basis the eligibility of Russian athletes.

The IOC’s Decision (IOC Decision) of 24 July foresees that the International Federations (IFs) are competent to determine whether each Russian athlete put forward by the Russian Olympic Committee (ROC) to participate in the Olympics meets a specific set of conditions. Moreover, the ROC was also barred from entering athletes who were sanctioned for doping in the past, even if they have already served their doping sanction. In the end, a majority of the Russian athletes (278 out of 389 submitted by the ROC) cleared the IOC’s bar relatively easily, but some of them did not, and many of the latter ended up fighting for their right to compete at the Rio Olympics before the CAS ad hoc Division.[3] In the following blogs, I will analyse the ten published CAS awards related to Russian athletes.[4] It is these legal fights that I suggest to chronicle in the following parts of this blog. To do so, I have divided them in five different (and analytically coherent) Acts:

International and European Sports Law – Monthly Report – August 2016. By Kester Mekenkamp.

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.    

The Headlines

For the world of Sport, the elsewhere known “sleepy month” of August turned out to be the total opposite. Having only just recuperated from this year’s Tour de France, including a spectacular uphill sprint on bicycle shoes by later ‘Yellow Jersey’ winner Chris Froome, August brought another feast of marvellous sport (and subsequent legal drama): The 2016 Olympic Games in Rio de Janeiro.More...

Sports arbitration and EU Competition law: the Belgian competition authority enters the arena. By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

On 14 July 2016, the Belgian competition authority refused to grant provisional measures to the White Star Woluwe Football Club (“The White Star”), which would have allowed it to compete in the Belgian top football division. The club was refused a licence to compete in the above mentioned competition first by the Licences Commission of the national football federation (“Union Royale Belge des Sociétés de Foootball Association” or “URBSFA”) and then by the Belgian court of arbitration for sports (“Cour Belge d’Arbitrage pour le Sport” or “CBAS”). The White Star lodged a complaint to the national competition authority (“NCA”) and requested provisional measures. The Belgian competition authority rendered a much-overlooked decision (besides one commentary) in which it seems to accept the reviewability of an arbitral award’s conformity with EU competition law (articles 101 and 102 TFEU). More...

From Lord of the Rings to Lord of the Drinks – A legal take on the downfall of Yuri van Gelder at the Rio Olympics. By Guido Hahn (Erasmus University Rotterdam)

Editor’s note: Guido graduated cum laude from the Vrije Universiteit Amsterdam. He teaches law at the Erasmus Universiteit Rotterdam. He specializes in sports law and provides legal advice for the professional sports sector.


This blog is a commentary on a recent case that hit like a bombshell in the Netherlands (and beyond) during the recent Olympic Games in Rio. The case concerns a Dutch athlete, Yuri van Gelder, who reached the Olympic finals in his sport, got sent home by ‘his’ NOC (NOC*NSF) after a night out in Rio and launched legal proceedings in front of a Dutch court to claim back his place in the finals. This commentary will attempt to explain the Dutch ruling and evaluate whether a different legal route would have been possible and preferable. More...

Bailing out your local football club: The Willem II and MVV State Aid decisions as blueprint for future rescue aid (Part 2)

This is part two of the blog on the Willem II and MVV State Aid decisions. Where part one served as an introduction on the two cases, part two will analyze the compatibility assessment made by the Commission in two decisions.

The compatibility of the aid to MVV and Willem II (re-)assessed

Even though it was the Netherlands’ task to invoke possible grounds of compatibility and to demonstrate that the conditions for such compatibility were met, the aid granted to both Willem II and MVV was never notified. The Netherland’s failure to fulfill its notification obligation, therefore, appears to be at odds with the Commission’s final decision to declare the aid compatible with EU law. Yet, a closer look at the Commission’s decision of 6 March 2013 to launch the formal investigation shows that the Commission was giving the Netherlands a ‘second chance’ to invoke grounds that would lead to a justification of the measures.More...

Bailing out your local football club: The Willem II and MVV State Aid decisions as blueprint for future rescue aid (Part 1)

The European Commission’s decisions of 4 July 2016 to order the recovery of the State aid granted to seven Spanish professional football clubs[1] were in a previous blog called historic. It was the first time that professional football clubs have been ordered to repay aid received from (local) public authorities. Less attention has been given to five other decisions also made public that day, which cleared support measures for five football clubs in the Netherlands. The clubs in question were PSV Eindhoven, MVV Maastricht, NEC Nijmegen, FC Den Bosch and Willem II.

Given the inherent political sensitivity of State aid recovery decisions, it is logical that the “Spanish decisions” were covered more widely than the “Dutch decisions”. Furthermore, clubs like Real Madrid and FC Barcelona automatically get more media attention than FC Den Bosch or Willem II. Yet, even though the “Dutch decisions” are of a lower profile, from an EU State aid law perspective, they are not necessarily less interesting.

A few days before entering the quiet month of August, the Commission published the non-confidential versions of its decisions concerning PSV Eindhoven, Willem II and MVV Maastricht (hereinafter: “MVV”). The swiftness of these publications is somewhat surprising, since it often takes at least three months to solve all the confidentiality issues. Nonetheless, nobody will complain (especially not me) about this opportunity to analyze in depth these new decisions. More...

Fear and Loathing in Rio de Janeiro – Displacement and the Olympics by Ryan Gauthier (Thompson Rivers University)

‎Editor's Note: Ryan is Assistant Professor at Thompson Rivers University, he defended his PhD at Erasmus University Rotterdam in December 2015. His dissertation examined human rights violations caused by international sporting events, and how international sporting organisations may be held accountable for these violations.


On Sunday, August 21, the 2016 Summer Olympic Games in Rio de Janeiro will end. The spotlight will dim not only on the athletes who return to their home countries to ply their trade in relative obscurity, but also on the country of Brazil.[1] Once the Games have ended, life will go ‘back to normal’, although for many residents of Rio de Janeiro, what is ‘normal’ is anything but. More...

Asser International Sports Law Blog | The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the 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 “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS

My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG. The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration. Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the  well-known facts of both cases, in order to focus on the core findings of the decision.


I.               CAS arbitration is recognised as forced arbitration: Hallelujah!

As many of you will know, longstanding doctrinal debates have been raging on the question whether athletes freely consent to CAS arbitration.[1] I have argued at length that CAS arbitration is fundamentally post-consensual arbitration and I am obviously quite happy to see the ECtHR endorsing this view today. However, this is not true in all CAS cases: ordinary arbitration often involving commercial disputes will most likely be consented to by both parties. Moreover, as will be discussed below, the ECtHR choose to distinguish between Pechstein and Mutu in its assessment of the free consent to CAS arbitration.

Regarding Pechstein, the key paragraphs of the decision are found between §109 and §115. The Court finds that the International Skating Union (ISU)’s regulations were imposing CAS’ jurisdiction for disciplinary matters (§109) and that Pechstein was forced to accept the arbitral clause if she was to participate in ISU competitions (§110). In this context, it refers to the famous holding of the Swiss Federal tribunal in the Cañas decision acknowledging the forced nature of arbitration in sport (§111) and to the ISU decision of the European Commission finding that the ISU is in a quasi-monopolistic position on the market for the organisation of speed skating competitions (§112). This leads to the key deduction by the Court, that Pechstein’s choice in the present case “was not to participate in one competition instead of another, depending on her acquiescence or not to the arbitral clause” (§113). Thus, her case is not deemed analogous to the commercial arbitration cases handled previously by the ECtHR. Instead, the Court holds that “[i]n light of the effects that a non-acceptance of the arbitral clause would have on the professional life of the claimant, one cannot assert that the latter has accepted the clause in a free and non-equivocal fashion.” (§115) Hence, the Court concludes, “even though the clause was not imposed by law but by the regulations of the ISU, the acceptance of the jurisdiction of the CAS by the claimant must be understood as a “forced” arbitration in the sense of [the Court’s] jurisprudence”. (§115) Thus came to an end a never-ending doctrinal debate on the consensual nature of CAS arbitration, at least when the CAS clause is imposed by a dominant SGB as a condition to participate in sports competitions.

Interestingly, the Court distinguished Mutu from Pechstein. Indeed, the Court notes “the situation of [Mutu] is different from [Pechstein’s] because the applicable regulation of the sporting federation [FIFA] involved did not impose arbitration but left the choice of dispute resolution mechanism to the contractual freedom of clubs and players” (§116). Mutu invoked the imbalanced between clubs and players to argue that he was forced to accept the clause. Yet, the Court rejects this line of arguments on the basis that he failed to provide evidence supporting the fact that all the players at Chelsea had accepted an arbitration clause or that no other club would have recruited him without the insertion of an arbitration clause into his employment contract (§117-119). The Court concludes that contrary to Pechstein, Mutu “has not demonstrated that the only choice available to him was to accept the arbitration clause to be able to earn a living through the professional practice of his sport, or to refuse it and renounce altogether his professional career.” Hence, the Court considers that Mutu’s situation is not a case of ”forced” arbitration (§120). Nonetheless, the Court’s assessment of the consent to arbitration is quite strict: not only should the consent be free, it must also be unequivocal. In other words, Mutu by freely opting for the jurisdiction of CAS instead of the national courts must “have renounced in full awareness the right to have his dispute with Chelsea decided by an independent and impartial tribunal” (§121). In the present case, as Mutu challenged the independence and impartiality of the CAS arbitrator nominated by Chelsea, the Court considered that one cannot take for granted that he had renounced unequivocally to contest the independence and impartiality of the CAS in a dispute involving Chelsea (§122). This part of the judgment has potentially extremely wide implications beyond sports arbitration, as the Court seems to indicate that any challenge to the independence or impartiality of an arbitrator could harm the validity of an arbitration clause freely consented to by the parties.

In conclusion, after this decision it will be very difficult to argue that disciplinary cases (e.g. doping cases) submitted to the CAS through the appeal procedure are grounded in free consent. Nonetheless, as pointed out by the Court in § 98 of the ruling, there are good post-consensual foundations to justify forced CAS arbitration. This post-consensual arbitration might come as a surprise to some, but law is fundamentally a pragmatic practice of social ordering, which is flexible enough to adapt to specific realities. The fact that in the world of sport a type of transnational authority is exercised by a network of (mainly) Swiss associations, which submit their final disciplinary decisions to the mandatory review of the CAS, might be necessary to ensure that international sporting competitions take place on a level playing field. However, and this is the great virtue of the present judgment, CAS will not be allowed to hide behind a fictitious arbitration label to escape full compliance with the procedural rights enshrined in Article 6 § 1 ECHR. 


II.             CAS arbitration must comply with Article 6 § 1 ECHR

The most important consequence of the Court’s recognition that CAS arbitration was forced in the case of Pechstein and equivocal in the case of Mutu is that CAS has to fully comply with the fundamental procedural rights guaranteed by Article 6 § 1 ECHR (in particular its civil limb, see the ECHR guide on Article 6). Specifically, the Court focused on the publicity of hearings and the independence of the CAS. Regarding the former it concluded, rightly in my view, that the lack of publicity of Pechstein’s hearing violated the ECHR. However, I (and more importantly two judges of the ECtHR) do dissent from the Court’s finding that the CAS is sufficiently independent vis-à-vis the SGBs. 

A.    The day CAS went public: Towards transparency in CAS proceedings and beyond

The CAS is at the same time one of the globe’s most famous and secretive transnational courts. Every sports fan around the world knows it and many journalists follow its press releases and skim through its awards (when published). Based on citations in the media, it is probably one of the (if not the) most covered and publicly discussed international courts, and yet it is also the most secretive. The publicity of hearings and judgments of national and international courts is the norm around the world, and confidentiality an exception reserved to cases in which the security and/or the privacy of an individual might call for it. In scholarship, the transparency of the CAS is often favourably compared to commercial arbitration as it publishes some (systematically less than 30%) of its awards. Yet, as is readily acknowledged by this judgment, the true comparison should be made with national and international courts, as the jurisdiction of the CAS is not grounded on free consent.

In practice, the Court found that in the Pechstein case, the CAS should have organised a public hearing as Pechstein expressly requested. Indeed, the Court points out that “the questions discussed in the framework of the challenged procedure – which related to the question whether the claimant was rightly sanctioned for doping, and for which the CAS heard numerous experts – necessitated the organisation of a hearing under the control of the public” (§182). The Court notes in support of its finding that “there was a controversy over the facts and that the sanction imposed on the claimant had a ignominious nature, which was susceptible to damage her professional reputation and credibility” (§182). And concludes that the lack of publicity of the debates before the CAS violates Article 6 §1 ECHR.

This is a first important step towards imposing more transparency at the CAS (I have argued for radical transparency in a presentation at the Play The Game conference last year). Yet, the decision of the Court is not without ambiguity: will the CAS have to hold public hearings only when requested by the parties or should it systematically hold public hearings and revert to confidentiality only in exceptional circumstances? The existing case law of the ECHR points, in my view, to the latter alternative, but even the former would be a big leap forward for the CAS. Indeed, the a minima reading (read also on this issue the outstanding blog by Nick de Marco) of the judgment implies that the CAS will have to organise a public hearing if requested by one of the parties. In any case, a waiver of such a hearing will need to be freely consented to. Furthermore, and this was not touched upon in the present decision, Article 6 §1 ECHR also obliges to publicise judgments once adopted, with only the narrowest of exceptions. Currently, CAS is clearly in contravention with this obligation, as it does not systematically publish its (appeal) awards. This fundamental lack of transparency will have to be remedied quickly if the CAS is to operate in conformity with the present judgment.

B.    A fundamental dissent on CAS independence

The final, key, aspect of the judgment concerns the Court’s findings related to the independence and impartiality of the CAS. Under Article 6 § 1 ECHR, a case must be heard by an independent and impartial tribunal. It is, at least in my eyes, highly doubtful whether the CAS should be considered as such, yet the Court decided otherwise. This decision was strongly challenged in a dissent by two judges (including quite ironically the Swiss judge). I will first present the key parts of the analysis of the Court and then provide a critique of my own to the Court’s holdings. I believe the most important question is not related to the independence or impartiality of the individual arbitrators involved in the Mutu and Pechstein case, but concerns the structural independence of the CAS from the SGBs, and I will thus focus only on the latter.

The key holdings of the Court are found at §§151-158 and concern only the Pechstein leg of the ruling, as only she challenged the structural independence of the CAS. The Court holds first that the CAS’s financial dependence on the Olympic movement is not problematic because analogically the State finances national courts (§151). It reminds then that, back when the Pechstein case was heard in 2009, the International Council of Arbitration for Sport (ICAS) was nominating one fifth of the arbitrators having the interest of the athletes in mind, while being itself composed mainly of individuals affiliated with SGBs susceptible to face proceedings against athletes at the CAS (§154). Moreover, the Court stresses that arbitrators were nominated for a term of four years renewable, without limits on the number of terms, and the ICAS had the power to revoke an arbitrator by a summarily motivated decision on the basis of article R35 of the CAS Code (§155). Nonetheless, the Court finds that Pechstein did not provide concrete elements challenging the independence and impartiality of any of the 300 arbitrators on the CAS list at the time (§157). In the crucial part of the decision, the Court acknowledges that while “it is ready to recognise that the organisations susceptible to face the athletes in the framework of the disputes brought before the CAS were exercising a real influence on the mechanism of nomination of the arbitrators in place at the time, it cannot conclude that, only on the basis of this influence, the list of arbitrators was composed, even in majority, of arbitrators who could not be deemed independent or impartial, individually, objectively or subjectively, from the said organisations” (§157). Henceforth, the Court decides that it has no reason to diverge from the assessment of the Swiss Federal tribunal regarding the independence of the CAS.

In my view, the Court is right on one point. The financing of the CAS by the SGBs is not per se threatening the independence of the CAS and should actually be welcomed as an adequate form of quasi-public financing of sporting justice. However, this is true only if the ICAS and the CAS administration are stringently separated from the bodies that are supposed to be checked by the CAS and whose decisions it is reviewing. Quite paradoxically the Court recognises the influence of the SGBs on the ICAS, which was evident at the time the Pechstein case was heard and is still apparent nowadays (the SGBs nominate 12 individuals out of the 20 members of the ICAS and the ICAS is headed by an IOC Vice-president), but it does not deem it sufficiently problematic to challenge the independence and impartiality of the CAS. This is a strange conclusion for a Court specialised in procedural justice (for a similar perplexity see §§ 7-10 of the dissent). The ICAS does not only control who gets to be appointed as a CAS arbitrator, it also controls who gets to preside over the Appeal and Ordinary Divisions of the CAS, and who gets to be appointed as CAS Secretary General. All of this happens without any minutes of the ICAS meetings being published, thus without any transparency on the reasons that led to the appointment of X over Y. This alone should have pushed the ECtHR to have some serious concerns over the appearance of control by the SGBs over the ICAS and, therefore, over the CAS. Moreover, and what I feel is the major argument speaking against CAS’s independence from the SGBs, even if one accepts the Court’s point that an athlete will be able to find a CAS arbitrator on the list who is not biased, in appeal cases the president of the panel will be ultimately nominated by the President of the Appeals Division. Thomas Bach, now President of the IOC, was the President of the Appeals Division from 1994 to 2013, since then Corinne Schmidhauser, who is the President of AntiDoping Switzerland and a member of the Head of the Legal Committee of Swiss Ski has taken over his former position. While it is often argued that if the parties agree on a president, the President of the Division will merely ratify their choice (§ 127), the issue is that one side (the SGBs) will be in a strong position to impose a name to the other (the athletes). Indeed, the SGBs bargain in the shadow of a final decision by the president of the Appeal Division, who be it Thomas Bach or Corinne Schmidhauser was and still is clearly biased in their favour. This simple institutional set-up, easy to reform but still in place, is the Gordian knot of the control of SGBs over the CAS.  The Court simply ignored this argument (as did the BGH in 2016, triggering an attempt at a revision of the judgment), which was raised by Pechstein’s lawyers (§ 124). In doing so, it decided to side with a system that is at odds with the core of its own jurisprudence on the independence and impartiality of tribunals, as powerfully outlined by the dissent. Maybe, the Court felt it had already done enough and it did not want to destabilise the CAS further, but it certainly missed a great opportunity to provide a fairer judicial process to thousands of athletes worldwide.


Conclusion: The end of the beginning for the CAS

A few years ago, in a presentation on the Pechstein ruling of the Oberlandesgericht München, I wondered whether the case was the beginning of the end for the CAS or (more optimistically) the end of the beginning. By the latter, I meant that the CAS would enter into a new dimension with the decision. This new era was, unfortunately, delayed by the surrealist judgment of the BGH, which the ECtHR has in my view partially corrected with this ruling. As from this decision, the CAS will not be able anymore to claim that it is an arbitral tribunal legitimated through the free consent of the parties. The ECtHR has shattered, forever, this fiction. It did not replace it with a clear alternative foundation, however. In fact, the CAS is not a product of national law or of an international treaty. It is, instead, simply the artefact of transnational power and of the necessities of global sports governance. At the same time as the ECtHR recognised its usefulness and existence, it also held that it ought to be tamed too. This is the meaning of the Court’s finding that CAS must comply (like any national court in Europe) with the requirements of procedural justice enshrined in article 6 § 1 ECHR. In other words, never again will the CAS be the same, as it will have to become a proper court. Surely, the ECtHR betrayed its good intentions by denying the undeniable lack of independence of the CAS. Yet, this duty will be left to the German judges in Karlsruhe or to the Grand Chamber of the ECtHR if, as you would expect from Pechstein, she decides to appeal the decision. In this regard, the rigorously argued dissent will prove a strong basis to put a final nail in the coffin of CAS’s current institutional structure.

To conclude, after seemingly winning this case, the CAS will have to undergo a radical change. The new CAS will be open to the public (both hearings and awards), it will need to shore up its independence from the SGBs if it desires to fends off future challenges based on the dissent, and more generally it will have to ensure that all of its procedures are rigorously kept in line with the constantly evolving jurisprudence of the ECtHR on article 6 §1 ECHR. The CAS can embrace these changes or wait for diligent lawyers to drag its awards through national courts in Europe, which will not be as timid as before in assessing the compatibility of CAS procedures with the ECHR. Nonetheless, there is also a lot to celebrate in this judgment for those, like me, who believe that the CAS is a necessary institution. It is now fully recognised as a judicial body sui generis, which is more than the emanation of the parties to a dispute. In fact, it is officially and finally recognised as the Supreme Court of World Sport, but with great powers comes also great responsibility…

[1] You will find many references to these debates in Duval, Antoine, Not in My Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of Arbitration for Sport (February 20, 2017). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-01.

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