Academic journal article Business Law International

Is the Pechstein Saga Coming to an End? German Federal Court of Justice Ruling on Claudia Pechstein V International Skating Union, June 2016

Academic journal article Business Law International

Is the Pechstein Saga Coming to an End? German Federal Court of Justice Ruling on Claudia Pechstein V International Skating Union, June 2016

Article excerpt

Summary and background

Speed skater Claudia Pechstein is one of the most highly decorated German athletes of all time with five Olympic gold medals, four additional Olympic and numerous world championship medals.

In early 2009, Pechstein was tested for doping prior to a speed skating event in Norway. The tests showed an increased level of reticulocytes (immature red blood cells), which a Disciplinary Commission of the International Skating Union (ISU, the respondent) considered as a proof of doping and subsequently banned Pechstein for two years.

The decisions by the Court of Arbitration for Sport and the Swiss Federal Tribunal

Pechstein and the German Skating Union (Deutsche EisschnelllaufGemeinschaft (DESG)) appealed the decision of the ISU Disciplinary Commission before the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, on the basis of an arbitration agreement signed by Pechstein prior to the event in Norway. In November 2009, the CAS dismissed the appeal.1 Pechstein subsequently challenged the CAS decision before the Swiss Federal Tribunal (SFT) on the basis of Article 190(2) of the Swiss Private International Law Act (PILA), the SFT being the competent court to review decisions by an international arbitral tribunal situated in Switzerland, yet under very limited circumstances.2

Pechstein's challenge was dismissed in February 2010.3 A motion for revocation based on allegedly new medical evidence was dismissed by the SFT in September 2010.4 With that, Pechstein had exhausted all legal remedies available to her in Switzerland.5

Re-litigating the Pechstein case in front of German state courts

More than two years later, in December 2012, Pechstein filed a claim before a German first-instance state court, the Regional Court in Munich ('LG München'), against the DESG and ISU for damages in the amount of €4.4m (US$6.1m at the time), submitting that the two-year doping ban handed down against her in 2009 was illegal. Pechstein filed her claim irrespective of the arbitration agreement she had signed in 2009, which provided that any dispute between her and the ISU would have to be submitted exclusively to the CAS, or the fact that the CAS had already heard and ultimately rejected her appeal, and that the CAS decision had been confirmed by the SFT.

In its decision of 26 February 2014, LG München6 surprisingly followed Pechstein's reasoning insofar as it rejected the arbitration plea by the defendants, finding that the arbitration agreement signed by Pechstein prior to the events in 2009 was invalid as she had no other option but to sign the agreement in order for her to be able to participate in ISU competitions, that is, that she was forced to sign the arbitration agreement in order to be able to compete in her sport. This was unacceptable according to the court as arbitration proceedings before the CAS did not meet the requirements pursuant to Article 6 of the European Convention on Human Rights (ECHR, including the right to a fair hearing), in particular with respect to the independence of the arbitral tribunal.

The court pointed out that the CAS operated on a closed list of arbitrators appointed by the International Council of Arbitration for Sport (ICAS), a body dominated by representatives of the International Olympic Committee (IOC), the National Olympic Committees (NOCs) and international sports federations (IFs).7 Furthermore, the interests of athletes had to be considered only with respect to one-fifth of the arbitrators to be appointed to the list.8 According to the court, such a procedure institutionalised a predominance of sports governing bodies, which jeopardised the independence of the arbitrators.9 Also, the court found it improper that the chairman of a threearbitrator panel in CAS appeal proceedings was appointed by the President of the CAS Appeals Division, the appointment procedure not being sufficiently transparent and the parties not being able to tell why a particular arbitrator had been appointed as chairman. …

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