REUTERS | Chris Wattie

Blade runner: new developments in Pechstein’s judicial marathon

On 2 October 2018, the European Court of Human Rights (ECtHR) released its long-awaited decision in the Pechstein case. This is the final development in a case that has run through various courts in Switzerland and Germany for almost a decade.

By way of background, on 2 January 2009, Ms Pechstein signed a registration form provided by the International Skating Union (ISU) to participate in the speed skating world championships in Norway in February 2009. By signing this form, Ms Pechstein undertook to comply with the ISU anti-doping regulations. She also signed an arbitration agreement providing that the Court of Arbitration for Sport (CAS) would have exclusive jurisdiction to decide any disputes.

The analysis of the blood samples taken from Ms Pechstein during the world championships in Norway revealed elevated reticulocyte counts, which, according to the ISU, constituted evidence of doping. The ISU’s disciplinary commission decided on 1 July 2009 to ban Ms Pechstein from competition for two years, with retroactive effect from 7 February 2009.

Ms Pechstein filed an appeal against that decision with CAS. However, that appeal was dismissed by an award dated 25 November 2009. Similarly, in a decision of 10 February 2010, the Swiss Supreme Court dismissed a motion filed by Ms Pechstein to have the award set aside. Eventually, on 28 September 2010, the Swiss Supreme Court dismissed Ms Pechstein’s petition for revision.

Ms Pechstein then opened a second front, this time before the German courts. She sought a declaratory judgment stating that the ISU ban was unlawful. She also requested damages for lost income during the time of her suspension. In January 2015, the Munich Court of Appeal held that the arbitration agreement between Ms Pechstein and the ISU was invalid on competition law grounds. However, the German Federal Supreme Court reversed that decision in 2016. The Supreme Court confirmed that the ISU had a dominant market position, but the Federal Supreme Court found that, on balance, the ISU did not abuse that dominant market position by requiring athletes to enter into an arbitration agreement.

Pechstein then brought the matter before the ECtHR and sought a ruling that her human rights had been violated (namely her right to a fair trial under Article 6(1) of the European Convention on Human Rights (ECHR)). This ruling was sought on the basis of CAS’s alleged lack of independence and the procedure employed to decide cases at CAS, specifically in relation to the lack of public hearings.

In a decision dated 2 October 2018, the ECtHR held that:

  • A non-state dispute resolution mechanism of first or second instance, with a possible appeal, even limited, before a state court as a last instance, is appropriate in the area of international sport.
  • Considering the particular nature of the CAS arbitration system and the fact that CAS is generally forced through arbitration in accordance with the ECtHR’s jurisprudence, such arbitration should offer the guarantees provided by Article 6.1 of the ECHR.
  • The CAS should have allowed a public hearing in accordance with Article 6.1 of the ECHR, considering that the athlete had requested one and that there was no particular reason to deny it.
  • As far as the funding of CAS by sports entities is concerned, state courts are always financed by governments; this aspect was not sufficient to establish a lack of independence or impartiality of these jurisdictions in disputes between citizens and the state. By analogy, it was not possible to establish a lack of independence or impartiality of the CAS based on its funding system.
  • There was no reason to overturn the consistent jurisprudence of the Swiss Supreme Court which states that the system of a mandatory list of arbitrators complies with the constitutional requirements of independence and impartiality applicable to arbitral tribunals; the CAS, when it acts as an appeals authority external to international federations, is similar to a judicial authority independent from the parties.

The CAS was quick to express its relief, given the fact that the ECtHR has now recognised its independence and impartiality. The CAS issued a press release on 2 October 2018, explaining that:

“… the ECHR judgment is another confirmation, this time at a continental level, that CAS is a genuine arbitration tribunal and that such sports jurisdiction is necessary for uniformity in sport.”

Although, in the author’s view, the ECtHR’s decision cements CAS’s position and confirms that the closed list of arbitrators does not in principle undermine the human rights of athletes, the real news is in the fine print. After seemingly winning this case, the CAS still has to do some homework. That is because the main finding of the ECtHR is that the CAS is fully and directly subject to the procedural guarantees provided for by Article 6.1 of the ECHR.

This ruling does not mean that the CAS will now have to hold a public hearing in each individual case. However, the CAS will have to take into account the relevant framework established by the ECtHR. Most likely, it will have to test its current rules against the decision of the ECtHR’s. More generally, it will have to ensure that procedures before the CAS are in line with the ECtHR’s constantly evolving jurisprudence on Article 6.1 of the ECHR.

Schellenberg Wittmer Sebastiano Nessi Simon Demaurex

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