As we announced in our previous articles, the German justice had refused to apply a judgment of the Court of Arbitration for Sport (CAS), on the grounds that it was contrary, in particular, to European Union law. In a new judgment of the Federal Court of June 7, 2016, the German justice reversed this position and validated the procedure before the CAS by dismissing the skater of her claim for damages. Find below the CAS press release.
The summary of the decision by the German Federal Court
- Claudia Pechstein had voluntarily accepted the competence of the CAS; the monopolistic situation of the ISU, the acceptance by the athletes of the ISU rules and of the arbitration clause in favor of the CAS did not constitute an abuse of a dominant position within the meaning of German competition law;
- The CAS is a true arbitral tribunal within the meaning of German law;
- The existence of a compulsory list of arbitrators, constituted by a Foundation (the International Council for Arbitration in Sport / CIAS), regardless of the number of representatives of federations and athletes, does not call into question equality of the parties;
- The interests of sports federations and athletes come together when the matter concerns the fight against doping;
- The advantages of being able to have a uniform international sports jurisdiction, such as uniform practices and rapid procedures, apply not only to sports federations but also to athletes;
- A possible over-representation of the federations [within the ICAS] is compensated for 1) by the procedural rules of the CAS, 2) by the independence and neutrality of the CAS arbitrators, who can be challenged and dismissed from an arbitration panel if they are they are not independent of the parties and 3) by the possibility which is given to any party affected by a decision of the CAS to lodge an appeal with the Swiss Federal Tribunal (TF).
CAS press release on the decision of the German Federal Court in the Pechstein case
The Court of Arbitration for Sport (CAS) also reacted to the statement of the decision rendered by the German Federal Court in the case Pechstein .
According to the CAS press release, "this is the confirmation that Claudia Pechstein benefited from a fair trial, not only before the CAS but also before the TF, and that the judgment of the TF, which remains in force, definitively resolved this case in 2010".
It also means "that the German courts are not competent to re-judge a final decision of the CAS".
For the TAS, this is therefore "the confirmation that the arbitration clauses in favor of the CAS inserted in the regulations of the sports organizations are valid (as this was already decided by the TF in the past)".
The Federal Court underlined that the CAS "was a "true arbitral tribunal" within the meaning of German law and that such a sporting jurisdiction was necessary for the uniformity of sport".
Also, the CAS rules of procedure would guarantee "the impartiality and independence of the parties"and would not create"no inequalities between athletes and sports federations".
