Oberlandgericht München January 15, 2015 Az. U 1110/14 Kart

Facts
Speed-skater athlete appeals against the decision of the District Court Munich of February 26, 2014. The Court of Arbitration for Sport (CAS) in Lausanne had followed an ISU judgment on 25 November 2009 and had confirmed the two-year ban for reticulocyte fluctuating blood values without doping test. The athlete had always denied doping and carries an inherited blood anomaly as a reason for their increased values up to the present time. In the Munich compensation process, the Berliner has the ISU therefore sued for wrongs to 4.4 million euros. Also the monopolistic position of the International Skating Union (ISU) for letting only one athlete per country taking part in international competition was an issue, this ruling goes against the antitrust law. The reason for this lies in the perception that an athlete takes part in an economic activity, consisting of offering goods for services on a (sport)market.
Also the ISU had required that the athlete signed an arbitration clause but the athlete refused.
The Higher Regional Court overturned the decision of the Landgericht München I that the award of the CAS must be recognized. The German courts were not bound in the compensation question to the CAS ruling.

Decison
The claim of the athlete partially upheld, the complaint is admissible but not ready for a decision at this moment.

Landgericht München I
Urteil Az. 37 O 28331/12 Claudia Pechstein vs DESG & ISU

On 1 July 2009 the International Skating Union (ISU) imposed a 2 year period of ineligibility on the German Athlete Claudia Pechstein. On basis of all evidence presented in this case the ISU Disciplinary Commission ruled that the Athlete has applied the prohibited method of blood doping.

The Athlete denied the doping allegations and appealed with the Court of Arbitration for Sport (CAS) and the Swiss Federal Supreme Court. All 4 appeals were dismissed and the ban was upheld.

Hereafter the Athlete started proceedings with the German District Court in Munich (Landgericht München I) against the ISU and the Deutsche Eisschnelllauf-Gemeinschaft (DESG). The Athlete claimed damages suffered as a result of a doping ban.

On 26 February 2014 the Munich District Court dismissed the Athlete’s claim but also ruled that the arbitration clause contained in the athletes’ agreement between Pechstein and both the ISU and DESG to be invalid.

The Munich court found that at the time the Athletes‘ agreements with ISU and DESG were entered into, a structural disbalance (strukturelles Ungleichgewicht) existed between Pechstein and the sport federations, who formed a monopoly. Pechstein did not enter into the agreement voluntarily, but only because she had no choice. Had she not signed the agreements, she would not have been able to enter competitions and hence, unable to pursue her career as a professional athlete.

On that basis, the court found that it had jurisdiction to hear the damages claims, and the defendants could not invoke the arbitration clauses. However, the court held that it could not revisit and review the legality of the ban. As it was bound by the CAS findings that the ban was legal, the Athlete’s damages claims were unfounded.

On the issue of the legality of the ban, the arbitral award of the CAS was final, and its finality was to be respected by the Munich court. Pechstein could have, and should have challenged the jurisdiction of the CAS during the arbitral proceedings.

At the time she appealed the ban to the CAS, the structural disbalance did no longer play a role. Still, Pechstein, in full knowlegde of all the circumstances, did appeal to the CAS. At that point in time, she should have invoked that she did not enter into the arbitration agreement voluntarily.

The same was true for other procedural challenges to the CAS proceedings. The fact that the arbitration agreement is void (Nichtigkeit der Schiedsvereinbarung) does not preclude the recognition of the arbitral award in the Munich proceedings.

Oberlandesgericht München Teil-Urteil AZ. U 1110/14 Claudia Pechstein vs DESG & ISU

On 1 July 2009 the International Skating Union (ISU) imposed a 2 year period of ineligibility on the German Athlete Claudia Pechstein. On basis of all evidence presented in this case the ISU Disciplinary Commission ruled that the Athlete has applied the prohibited method of blood doping.

The Athlete denied the doping allegations and appealed with the Court of Arbitration for Sport (CAS) and the Swiss Federal Supreme Court. All 4 appeals were dismissed and the ban was upheld.

The Athlete started proceedings with the Geman District Court in Munich (Landgericht München I) against the ISU and the Deutsche Eisschnelllauf-Gemeinschaft (DESG). The Athlete claimed damages suffered as a result of a doping ban.

On 26 February 2014 the Munich District Court dismissed the Athlete’s claim but also ruled that the arbitration clause contained in the athletes’ agreement between Pechstein and both the ISU and DESG to be invalid.

The court found that it had jurisdiction to hear the damages claims, and the defendants could not invoke the arbitration clauses. However, the court held that it could not revisit and review the legality of the ban. As it was bound by the CAS findings that the ban was legal, the Athlete’s damages claims were unfounded.

Hereafter the Athlete filed a new appeal against the ISU with the Higher Distict Court in Munich (Oberlandesgericht München).

The Court ruled that international sports federations are monopolists. German doctrine refers to this as the Ein-Platz-Prinzip, which stipulates that in each sport there can be only one federation per geographical level. At least in speed skating, if an athlete wants to make a living from this sport, there is no alternative to the international competitions organised by the governing bodies.

This puts the ISU, organiser of the World Speed Skating Championships, in a dominant position pursuant to the German Act against Restraints of Competition. If athletes want to compete at the international level, they have no other choice but to put up with an arbitration clause that the organising federations include in their registration forms.

Having athletes sign a compulsory arbitration agreement is not per se an abuse of a dominant position because there are good reasons for such an agreement.

The German Court held, however, that the problem lies in a structural imbalance of the CAS. In 2009, when Pechstein signed the arbitration agreement, the CAS Code then in force provided that 3 out of 5 arbitrators were chosen by the sport’s governing bodies, with only two among those persons independent from those bodies.

Furthermore, the court noted that in disputes in which the parties don’t agree on a name, the president of an arbitral tribunal is directly nominated by the president of the CAS Appeals Division, who is himself nominated by the International Council of Arbitration for Sport (ICAS), a body highly dependent on sports associations.

Forcing an athlete to accept an imbalanced arbitral court’s jurisdiction is what constitutes an abuse of market power (and not the arbitration agreement itself).
Accordingly, the Oberlandesgericht refused to recognise the CAS award based on Art. V (2) (b) New York Convention because it violates German cartel law, which is part of the ordre public.

Hence, no res iudicata effect of the CAS award hinders Pechstein from bringing forward claims for damages before German state courts. Therefore the Oberlandesgericht Munich rules on 15 January 2015 that the arbitration agreement was void and the arbitral award could not be recognized.

The Court of Arbitration for Sport (CAS) noted in response that, accourding to the Higher District Court in Munich, the fact that the decisions of the CAS and of the Swiss Federal Tribunal (SFT) were final in Switzerland did not prevent the athlete from bringing a claim for damages before the German courts, in the light of the principles of German competition law which forms part of German public policy.

However, the CAS has also noted that the Higher Court did not consider that making the Athletes’ participation in competitions contingent on their agreement to arbitration in general was an abuse of a dominant position. The Higher Court also mentioned that CAS arbitration does not breach Article 6 para. 1 of the European Convention for Human Rights and recognized the need to have a specialized international tribunal, instead of state courts, ensuring the uniform adjudication of sports-related disputes.

The CAS noted that the findings of the Munich Higher Court are based on the CAS rules and organization in force in 2009, when Claudia Pechstein appealed before CAS, and do not take into account the changes leading to the current organization, with amended procedural rules regarding the nomination of arbitrators, development of the legal aid program and the appointment of new ICAS Members not active in or connected to sports-bodies.

If, like in the Pechstein/ISU case, arbitration agreements were to be considered as invalid by state courts, even when not challenged at any stage during the arbitration, then the basic principles of international arbitration would be compromised.

(SportsAndTaxation.com & Court of Arbitration for Sport)

Muscle building supplement use in Australian adolescent boys : relationships with body image, weight lifting, and sports engagement / Zali Yager, Siân McLean. - (BMC Pediatrics 20 (2020) 89 (26 February); 1-9).

• DOI: 10.1186/s12887-020-1993-6.
• PMCID: PMC7043030.
• PMID: 32101154

Abstract

Background
The extent and implications of muscle building protein supplement use among adolescents is relatively unknown. This study aimed to describe the prevalence of protein powder, creatine, and anabolic steroid use in a sample of 14–16 year-old boys in Australia, and the predictors of actual use, and intentions to use protein powder.

Methods
Data were obtained from questionnaires with Australian adolescent boys aged 14–16 years from one independent boy’s school in Melbourne (N = 237). Hierarchical linear and logistic regressions were used to determine the predictors of intentions, and actual use of protein powder.

Results
49.8% of boys reported current use of, and 62% intended to use protein powder; 8.4% used creatine, and 4.2% used anabolic steroids. Higher levels of drive for muscularity, participation in weight training, and playing a greater number of sports were significant predictors of higher current use and intentions to use protein powder, but age, BMI, body esteem, and ethnicity were not.

Conclusions
Prevalence of muscle building supplement use was relatively high among this adolescent population. This research has implications for intervention and prevention programs to educate young boys about muscle building supplements to reduce negative physical and psychological health effects of their use.

Muscle Dysmorphia Among Current and Former Steroid Users / Rebecca Davies, Dave Smith, Kevan Collier. - (Journal of Clinical Sport Psychology 5 (2011) 1 (March) ; p. 77-94)

• DOI: 10.1123/jcsp.5.1.77

Abstract

This study examined the presence and experience of muscle dysmorphia among current and former steroid-using recreational bodybuilders. The Muscle Dysmorphia Inventory was given to 60 male participants, with 9 of these being interviewed to examine the predisposing factors, characteristics, and negative consequences of muscle dysmorphia comprising Lantz, Rhea, and Mayhew’s (2001) conceptual model. Quantitative results from the MDI data showed no significant differences between current and former steroid users in their experiences of muscle dysmorphia. In contrast, interviews suggested that former users appeared to be more susceptible to some of the characteristics of muscle dysmorphia, including physique protection and body distortion/dissatisfaction, which suggests perhaps a limitation in the amount of information that can be extracted from a questionnaire. These preliminary findings also raise concerns about the lack of a diagnostic tool available for the condition and are discussed in relation to Lantz et al.’s (2001) conceptual model.

Muscle Dysmorphia and anabolic steroid abuse: Can we trust the data of online research? / Michele Settanni, Laura Elvira Prino, Matteo Angelo Fabris, Claudio Longobardi

• Psychiatry Research 263 (May 2018), p. 288
• PMID: 29290483
• DOI: 10.1016/j.psychres.2017.12.049

Muscle Dysmorphia and Personality Trait : A Significant Link in Bodybuilders / Jaspal Singh Sandhu, Sai Kishore, Shweta Shenoy, Harwinder Singh Randhawa. - (Journal of Postgraduate Medicine, Education and Research 47 (2013) 2 (April-June); p. 77-82)

• DOI: 10.5005/JP-JOURNALS-10028-1060

The purpose of this study was to test for significant link between personality trait and muscle dysmorphia in bodybuilders. A total of 212 bodybuilders filled the muscle dysmorphia inventory of which 44.3% (n = 94) were found to be muscle dysmorphic. Their personality traits assessed using eysenck personality profiler in the vienna testing system machine revealed 65% of muscle dysmorphic bodybuilders being predominantly oriented toward extroversion type of personality. Further statistical analysis revealed, the significance between the muscle dysmorphia inventory and the personality traits and its results are discussed. Estimating the prevalence and categorizing based on personality has rather opened a new gateway to identify such vulnerable men who are susceptible to their own drive for muscularity.

Muscle dysmorphia and psychopathology : Findings from an Italian sample of male bodybuilders / Claudio Longobardi, Laura Elvira Prino, Matteo Angelo Fabris, Michele Settanni

• Psychiatry Research 256 (October 2017), p. 231-236
• PMID: 28646788
• DOI: 10.1016/j.psychres.2017.06.065

Abstract

The aim of this study is to investigate the relationship between the risk of muscle dysmorphia and psychopathological symptoms in an Italian sample of male bodybuilders.

Method: The sample was recruited online (145 men with a mean age of 30.0 years) and participants were asked to fill out the Muscle Dysmorphic Disorder Inventory (MDDI), Symptom Cheklist-90-R (SCL-90-R), Dissociative Experiences Scale (DES-II), and to provide other socio-demographic data. Bodybuilders at risk of muscle dysmorphia display greater global psychopathology and present higher scores on all SCL-90-R dimensions when compared to bodybuilders not at risk of muscle dysmorphia. Furthermore, risk of muscle dysmorphia is positively associated to dissociative symptoms. The Competitiveness dimension and anabolic steroid intake were not related to muscle dysmorphia, while age appeared to be more significant. Findings are discussed based upon previous studies and directions for future research are suggested.

Muscle dysmorphia and self-esteem in former and current users of anabolic-androgenic steroids / Charlotte W. Greenway, Clare Price. - (Performance Enhancement & Health 7 (2020) 3-4 (March); p. 1-9)

• DOI: 10.1016/j.peh.2019.100154

Highlights

• AAS use within the UK is on the rise.
• It is estimated that as many as 10 % of male gym-goers in the UK experience Muscle dysmorphia.
• Low self-esteem leads to AAS use in both current and former users.

Muscle Dysmorphia Symptomatology and Associated Psychological Features in Bodybuilders and Non-Bodybuilder Resistance Trainers : A Systematic Review and Meta-Analysis / Lachlan Mitchell, Stuart B. Murray, Stephen Cobley, Daniel Hackett, Janelle Gifford, Louise Capling, Helen O’Conno. – (Sports medicine (31 May 2016) : p. 1-27)

• PMID: 27245060
• DOI: 10.1007/s40279-016-0564-3

Abstract:

Background:
Muscle dysmorphia (MD) is associated with a self-perceived lack of size and muscularity, and is characterized by a preoccupation with and pursuit of a hyper-mesomorphic body. MD symptoms may hypothetically be more prevalent in bodybuilders (BBs) than in non-bodybuilder resistance trainers (NBBRTs).

Objective:
Our objective was to compare MD symptomatology in BBs versus NBBRTs and identify psychological and other characteristics associated with MD in these groups.

Methods:
We searched relevant databases from earliest record to February 2015 for studies examining MD symptoms in BBs and/or NBBRTs. Included studies needed to assess MD using a psychometrically validated assessment tool. Study quality was evaluated using an adapted version of the validated Downs and Black tool. We calculated between-group standardized mean difference (effect sizes [ESs]) and 95 % confidence intervals (CIs) for each MD subscale, and performed meta-analysis when five or more studies used the same MD tool. We also extracted data describing psychological or other characteristics associated with MD.

Results:
Of the 2135 studies initially identified, 31 analyzing data on 5880 participants (BBs: n = 1895, NBBRTs: n = 3523, controls: n = 462) were eligible for inclusion, though study quality was generally poor-moderate (range 7-19/22). Most participants were male (90 %). Eight different MD assessment tools were used. Meta-analysis for five studies all using the Muscle Dysmorphia Inventory (MDI) revealed there was a medium to large pooled ES for greater MD symptomatology in BBs than in NBBRTs on all MDI subscales (ES 0.53-1.12; p ≤ 0.01). Competitive BBs scored higher than non-competitive BBs (ES 1.21, 95 % CI 0.82-1.60; p < 0.001). MD symptoms were associated with anxiety (r 0.32-0.42; p ≤ 0.01), social physique anxiety (r 0.26-0.75; p < 0.01), depression (r 0.23-0.53; p ≤ 0.01), neuroticism (r 0.38; p < 0.001), and perfectionism (r 0.35; p < 0.05) and were inversely associated with self-concept (r -0.32 to -0.36; p < 0.01) and self-esteem (r -0.42 to -0.47; p < 0.01).

Conclusions:
MD symptomatology was greater in BBs than in NBBRTs. Anxiety and social physique anxiety, depression, neuroticism, and perfectionism were positively associated with MD, while self-concept and self-esteem were negatively associated. It remains unclear whether these characteristics are exacerbated by bodybuilding, or whether individuals with these characteristics are attracted to the bodybuilding context.