Stellungnahme des sportsschiedsgericht CAS betreffend die entscheidung des Oberlandesgerichts München im fall Claudia Pechstein und International Skating Union (ISU)
Statement of the Court of Arbitration for Sport (CAS) on the decision made by the German Federal Tribunal (Bundesgerichtshof) in the case between Claudia Pechstein and the International Skating Union (ISU)
Statement of the Court of Arbitration for Sport (CAS) on the decision made by the German Federal Tribunal (Bundesgerichtshof) in the case between Claudia Pechstein and the International Skating Union (ISU)
Bundesgerichtshof KZR 6/15 Claudia Pechstein vs 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 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 and the Athlete’s damages claims were unfounded. 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.
In the Athlete’s new appeal against the DESG and ISU with the Higher Distict Court in Munich (Oberlandesgericht München) the Higher District Court confirmed the previous conclusion of the Landgericht München about arbitration. The Higher Court dismissed 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. The Oberlandesgericht Munich ruled on 15 January 2015 that the arbitration agreement was void and the arbitral award could not be recognized.
Hereafter the Athlete appealed her claims for damages against the ISU with the German Federal District Court of Justice in Karsruhe (Bundesgerichtshof – BGH). On 7 June 2016 the BGH decided to dismiss the appeal of Claudia Pechstein considering the circumstances mentioned below:
German Federal Court of Justice, judgement of 7 June 2016 - KZR 6/15 - Higher Regional Court of Munich (OLG München)
Regional Court (Landgericht) of Munich I
Pechstein/International Skating Union:
Sec. 1025 para. 2, sec. 1032 para. 1 of the Code of Civil Procedure (Zivilprozessordnung, ZPO); sec. 19, para. 1 of the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB); Art. 12 of the Federal Constitution (Grundgesetz, GG); Art. 6 para. 1 of the ECHR.
Judgement:
a) The Court of Arbitration for Sports (CAS) in Lausanne is a court of arbitration pursuant to the definition of sections 1025 para. 2 and 1032 para. 1 of the Code of Civil Procedure.
b) International sports federations organised according to the “one place principle” are market leaders with regards to the admission of athletes to the sports competitions organised by it.
c) It is not an abuse of the sports association’s market position if the association makes the participation of an athlete in a sporting competition dependent on the athlete signing an arbitration agreement that includes a clause naming the CAS as the court of arbitration under the anti-doping rules. The Rules of Procedure of the CAS contain sufficient guarantees safeguarding the rights of the athletes, and the arbitral awards of the CAS are subject to review by the Federal Tribunal of Switzerland (Bundesgericht).
d) The fact that the arbitrators must be chosen by the parties from a closed list drawn up by an international body consisting predominantly of representatives of the International Olympic Committee, the National Olympic Committees and the international sport federations is no indication that the Rules of Procedure of the CAS are lacking sufficient guarantees to safeguard the rights of the athletes. With regard to questions of anti-doping measures, sports federations and athletes are not, generally speaking, divided into opposing “camps” pursuing different interests.
e) Under the circumstances, the arbitration agreement is not invalid from the point of view of the right to access to state courts (Justizgewährungsanspruch) pursuant to Art. 2 para. 1 of the Federal Constitution, the fundamental freedom to pursue professional activities pursuant to Art. 12 para. 1 of the Federal Constitution, nor the right to a fair hearing pursuant to Art. 6 para. 1 of the European Convention on Human Rights.
The Court of Arbitration for Sport (CAS) notes after the BGH decision that this is the confirmation that Claudia Pechstein had a fair trial, not only before the CAS but also before the SFT, and that the judgment of the SFT, which remains in force, settled this matter definitively in 2010.
This means that the German courts have no jurisdiction to revisit a final CAS decision. It is also the confirmation that the CAS arbitration clauses inserted in the regulations of sports organizations are valid (as it was already decided by the Swiss Federal Tribunal earlier).
More importantly, like the SFT did in 1993 and 2003, the GFT has emphasized that the CAS is a “genuine arbitration tribunal” in the sense of German law, and that such sports jurisdiction is necessary for the uniformity in sport. The GFT also notes that the CAS procedural rules guarantee the impartiality and independence of the parties and do not create any imbalance between athletes and sports federations.
(BGH, CAS)
BGH, Urteil vom 7. Juni 2016 - KZR 6/15 - OLG München
LG München I
Pechstein/International Skating Union:
ZPO § 1025 Abs. 2, § 1032 Abs. 1; GWB § 19 Abs. 1; GG Art. 12; EMRK Art. 6 Abs. 1
a) Der Court of Arbitration for Sports (CAS) in Lausanne ist ein Schiedsgericht im Sinne von § 1025 Abs. 2, § 1032 Abs. 1 ZPO.
b) Ein nach dem "Ein-Platz-Prinzip" organisierter internationaler Sportverband ist hinsichtlich der Zulas-sung der Athleten zu den von ihm organisierten Sportwettbewerben marktbeherrschend.
c) Es stellt keinen Missbrauch der Marktmacht des Sportverbands dar, wenn er die Teilnahme eines Athleten an einem Sportwettkampf von der Unterzeichnung einer Schiedsvereinbarung abhängig macht, in der gemäß den Anti-Doping-Regeln der CAS als Schiedsgericht vorgesehen ist. Die Verfah-rensordnung des CAS enthält ausreichende Garantien für die Wahrung der Rechte der Athleten, und die Schiedssprüche des CAS unterliegen einer Kontrolle durch das schweizerische Bundesgericht.
d) Der Verfahrensordnung des CAS mangelt es auch nicht deshalb an ausreichenden Garantien für die Wahrung der Rechte der Athleten, weil die Schiedsrichter von den Verfahrensbeteiligten aus einer ge-schlossenen Liste auszuwählen sind, die von einem Gremium aufgestellt wird, das mehrheitlich mit Vertretern des Internationalen Olympischen Komitees, der nationalen Olympischen Komitees und der internationalen Sportverbände besetzt ist. Sportverbände und Athleten stehen sich bei der Bekämp-fung des Dopings grundsätzlich nicht als von gegensätzlichen Interessen geleitete "Lager" gegenüber.
e) Unter diesen Umständen ist die Schiedsvereinbarung auch nicht im Hinblick auf den Justizgewäh-rungsanspruch aus Art. 2 Abs. 1 GG, das Grundrecht auf freie Berufsausübung nach Art. 12 Abs. 1 GG oder das Recht auf ein faires Verfahren nach Art. 6 Abs. 1 der Europäischen Menschenrechtskonven-tion unwirksam.
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)
Related case:
NADO Flanders 2015 Disciplinary Commission 2015030 T
February 16 , 2016
On 16 february 2016 the Flemish Disciplinary Commission decided to impose a € 1500,- fine and a 4 year period of ineligibility on the Dutch cyclist for his refusal to provide a sample for drug testing at a cycling competition in Flanders, Belgium.
Hereafter the Athlete appealed the decision of 16 February 2016 with the NADO Flanders Disciplinary Council. The Athlete filed several objections in his defence and he was heard for the Disciplinary Council.
Considering the Athlete’s objections the Council concludes that the Athlete was duly notified by the Doping Control Officer (DCO) at his home and he refused to return to the competition to provide a sample for drug testing. Also the announcement of the list of selected Athletes at the competition was valid under the Rules. After the Athlete ceased his participation he still had the obligation to stay available until the end of the competition and the announcement of selected athletes. Also the Athlete was sanctioned after disciplinary proceedings and not after prosecution under criminal law.
The Council accepts the Athletes argument that there was no intentional refusal or evasion of the doping control.
Without significant fault or negligence the Flanders Disciplinary Council decides on 20 May 2016 to reform the decision of 16 February 2016 and to impose 1 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 28 August 2015. In addition the Council decides to uphold the imposed € 1500,- fine including that fees and expenses for both proceedings shall be borne by the Athlete.
In April 2010 the Athletics Association of Ireland (AAI) - Athletics Ireland (AI) - has reported an Anti-Doping Rule Violation against the Athlete (IS-4003) after her sample, collected in Canada, tested positive for the prohibited substance ephedrine in a low concentration.
After notification a provisional suspension was ordered. The Athlete filed a statement with evidence in her defence and she was heard for the Irish Sport Anti-Doping Disciplinary Panel.
The Athlete promptly admitted the violation and stated that she had used ephedrine tablets purchased in a health food store in Canada and ephedrine nasal drops purchased in Ireland. During the competition in Canada her asthma had been particularly severe and the prescribed nasal medication had been ineffective and therefore she had purchased the tablets in the local health food store. The Athlete argued that both products were used without intention to enhance her performance and with a TUE for the use of her medication she admitted that she failed to mention these purchased products on the Doping Control Form.
The Panel accepts the Athlete’s statement and medical evidence and concludes that the use of the products was without intention to enhance her performance. Therefore the Panel decides on 11 June 2010 to impose a reprimand and a 8 week period of ineligibility on the Athlete starting on the date of the notification.
Related cases:
- ISI 2014_3 ISI Anti-Doping Committee vs Thorvaldur Arni Thorvaldsson
May 30, 2014
- ISI 2014_1 Thorvaldur Arni Thorvaldsson vs ISI Anti-Doping Committee - Appeal
June 18, 2014
- ISI 2015_8 ISI Anti-Doping Committee vs Thorvaldur Arni Thorvaldsson
October 1, 2015
On 30 May 2014 the Tribunal of the National Olympic and Sport Association of Iceland (ÍSÍ) decided to impose a 3 month period of ineligibility on the Athlete Thorvaldur Arni Thorvaldsson after his sample tested positive for the prohibited substance levmethamfetamine. On 18 June 2014 the ÍSÍ Appeal Court decided to reduce the 3 month sanction and to impose a 1 month period of ineligibility including the disqualification of the Athlete’s results in the competition of 6 March 2014.
On 1 October 2015 the Iceland ISI Anti-Doping Committee decided to impose a 4 year period of ineligibilility on the Athlete as second violation after his A and B samples tested positive for the prohibited substance amphetamine.
Hereafter the Athlete appealed the ÍSÍ decision with the ÍSÍ Appeal Court. However the ÍSÍ Appeal Court decides on 29 October 2015 to uphold the decision of the ÍSÍ Anti-Doping Committee.
Related cases:
- ISI 2014_3 ISI Anti-Doping Committee vs Thorvaldur Arni Thorvaldsson
May 30, 2014
- ISI 2014_1 Thorvaldur Arni Thorvaldsson vs ISI Anti-Doping Committee - Appeal
June 18, 2014
- ISI 2015_4 Thorvaldur Arni Thorvaldsson vs ISI Anti-Doping Committee - Appeal
October 29, 2015
On 30 May 2014 the Tribunal of the National Olympic and Sport Association of Iceland (ÍSÍ) decided to impose a 3 month period of ineligibility on the Athlete Thorvaldur Arni Thorvaldsson after his sample tested positive for the prohibited substance levmethamfetamine. On 18 June 2014 the ÍSÍ Appeal Court decided to reduce the 3 month sanction and to impose a 1 month period of ineligibility including the disqualification of the Athlete’s results in the competition of 6 March 2014.
In May 2015 the Iceland ISI Anti-Doping Committee, has reported a new anti-doping rule violation against the Athlete Thorvaldur Arni Thorvaldsson after his A and B samples tested positive for the prohibited substance amphetamine.
After notification the Athlete a provisional suspension was ordered and he was heard for the Tribunal of the National Olympic and Sport Association of Iceland (ÍSÍ). The Athlete admitted the violation and argued that the use was out-of-competition and without intention to enhance his sport performance. He requested for a reduced sanction and stated that he was now under treatment for his addiction problems.
Considering this was the Athlete’s second violation and his history with alcohol and drugs the Tribunal decides on 1 October 2015 to impose a 4 year period of ineligibilility on the Athlete and disqualification of his results in the previous competitions.
In March 2015 Lyfjaráð ÍSÍ, the Iceland ISI Anti-Doping Committee, has reported an anti-doping rule violation against the Athlete Jóhann Birgir Ingvarsson after his A and B samples tested positive for the prohibited substance oxandrolone with a T/E ratio above the WADA threshold.
After notification an provisional suspension was ordered and the Athlete filed a statement in his defence.
The Athlete admitted the violation and stated that he had used a product DAA as testosterone booster provided by a ‘friend’ and probably ‘under the table’.
The Tribunal concludes that the Athlete was negligent without intention to enhance his performance. Considering his substantial assistance the Tribunal of the National Olympic and Sport Association of Iceland (ÍSÍ) decides on 15 May 2015 to impose a 6 month period of ineligibility on the Athlete starting on the date of the provisional suspension.
Related case:
CCES 2016 CCES vs Earle Connor
June 16, 2016
In July 2015 the Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the Athlete Earle Connor after his samples, collected in April, May and July 2015, tested positive for testosterone and 19-norandrosterone (nandrolone). The Athlete had a valid TUE only for testosterone.
After notification the Athlete failed repeatedly to respond, to produce information, to respect the outlined deadlines and failed to attend the hearing for the SDRCC Tribunal.
Without the Athlete’s response the Tribunal decides on 4 March 2016 to impose a 4 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 29 July 2015.
