The first part of this series looked at the legal framework in which FFP sits, concluding that FFP occupied a ‘marginal’ legal position – perhaps legal, perhaps not. Given the significant financial interests in European football – UEFA’s figures suggest aggregate revenue of nearly €17 billion as at clubs’ 2015 accounts – and the close correlation between clubs’ spending on wages and their success on the field,^[1] a legal challenge to the legality of FFP’s ‘break even’ requirement (the Break Even Requirement), which restricts a particular means of spending, was perhaps inevitable.

And so it followed.

Challenges to the legality of the Break Even Requirement have been brought by football agent Daniel Striani, through various organs of justice of the European Union and through the Belgian courts; and by Galatasaray in the Court of Arbitration for Sport. As an interesting footnote, both Striani and Galatasaray were advised by “avocat superstar” Jean-Louis Dupont, the lawyer who acted in several of sports law’s most famous cases, including the seminal Bosman case. Dupont has been a vocal critic of FFP’s legality since its inception.

Mr Striani’s Complaints

Initially, Mr Striani made a complaint to the European Commission to the effect that the Break Even Requirement breached European competition law, and that it restricts several fundamental freedoms of the European Union guaranteed by the Treaty of the Functioning of the European Union (TFEU); namely, the right to free movement of people (Article 45 TFEU), the right to free movement of capital (Article 56 TFEU), and the right to free movement of services (Article 63 TFEU).

In his complaint to the Commission, Mr Striani identified five anti-competitive effects of the Break Even Requirement:

1. It restricts external investment into football;
2. It will have the effect of calcifying the hierarchy of the game, preventing ‘small’ clubs from competing at higher levels;
3.  It will depress the transfer market;
4.  It will depress players’ wages; and
5. It will therefore adversely affect players’ agents’ revenue.

Superficially at least, each point above has merit and internal logic. Equally, there are coherent rebuttals. For balance, some (of the various) potential counter arguments are listed below:

1. From the outset, FFP has not altogether restricted exogenous investment into football and loss making (regardless of quantum) has been permissible for certain expenditure. Rather than restricting investment, FFP funnels loss-making investment in certain directions such as stadium and infrastructure spending.
2. There is little movement in football’s sporting hierarchy under any model. The evidence suggests that those clubs who spend the most on wages tend to experience the most success on the pitch;^[2] however, it is questionable whether there is inherent merit in supplanting the clubs that are best able to maximise revenue generation with those that have the owners most willing to fund losses. Under either model, those with the most money to expend on players’ wages will usually win.^[3]
3. It is reductive to equate a healthy, functioning transfer market with clubs’ rights to make losses; nor is it of intrinsic value to the sport for transfers to be significant in magnitude, whether in cost or volume.
4. Owners’ equity inputs are far from the only source of salary growth. In any event, further consideration should be given as to whether, if a deflationary effect can be established, this is a function of the top end of the salary scale being depressed reducing mean salary, or whether the impact is felt by in modal or median salary. Ultimately, FFP could depress wages on an aggregate basis but still benefit most players should median or modal wages improve in a more financially stable environment.
5. Players’ intermediaries may not have a sufficiently proximate interest in the financial regulatory aspects of clubs’ spending. UEFA’s rule-making power is given effect and legitimacy by way of complex contractual relationship between players, clubs and the sport’s governing bodies and intermediaries do not have privity of contract with UEFA insofar as FFP is concerned.

Mr Striani also brought a claim, on similar legal basis, in the Belgian national courts (Mr Striani being based in Belgium). In part because of these collateral proceedings, the Commission rejected Mr Striani’s complaint. In a press release, Mr Dupont confirmed that the Commission had given its view to the effect that Mr Striani, being an agent and therefore not directly subject to FFP, lacked a legitimate interest in the rules, and that the Belgian national courts, already having been seized of the case, were a suitable forum for a hearing of the merits.

Mr Striani was joined by various other parties in his claim in the Belgian courts. However, Mr Striani (along with his co-complainants) was again frustrated on technical grounds outwith the substantive issues of his dispute.  The Belgian court found that it did not have jurisdiction to hear the dispute, because, to put it simply, under the relevant jurisdictional rules (the Lugano Convention), UEFA was entitled to be sued in the courts of its place of domicile, i.e Switzerland. Ben van Rompuy goes into more detail on the jurisdictional nuances here.

Somewhat oddly, given its self-proclaimed jurisdictional incompetence, the Belgian Courts did make an order referring the case to the Court of Justice of the European Union (CJEU).

Perhaps unsurprisingly, the CJEU rejected the referral on the basis that it was “manifestly inadmissible,” and also “observing that the national court had failed to provide any of the necessary information to enable the European Court to address European competition law issues.”^[4]

This puts Mr Striani’s complaint into no man’s land. Rejected by the Commission; rejected by the Belgian national courts; and rejected by the CJEU; all without any substantive adjudicative decision as to the legality of the Break Even Requirement. Irrespective of one’s views on FFP, it is a source of frustration that five years on from FFP’s introduction, its legality remains an unresolved question despite vigorous and not frivolous challenge. Mr Striani’s challenges have, to date, proven impotent in settling the (increasingly academic) debate.

Evidently frustrated at the Commission’s refusal to formally review the legality of FFP, Mr Striani went on to make a complaint to the EU Ombudsman alleging maladministration by Vice President of the Commission at the material time, Joaquín Almunia. The complaint centred on Mr Almunia’s association with Athletic Bilbao and his prior statements perceived as endorsing FFP. However, the Ombudsman found no maladministration to have occurred. 

Galatasaray’s CAS Appeal

There is, however, a forum in which a decision has been made as to the legality of the Break Even Requirement; namely the Court of Arbitration for Sport (CAS) in Galatasary v UEFA (CAS 2016/A/4492). Galatasaray, like Mr Striani, were represented by Mr Dupont; and, like Mr Striani, the basis of Galatasaray’s case was that the Break Even Requirement breached EU competition law and illegally trammelled EU fundamental freedoms as to workers, services and capital.

The context of the dispute was as follows: Galatasaray was investigated by the UEFA Club Financial Control Body (CFCB), which, as mentioned in Part One, oversees and enforces adherence to FFP, in respect of a potential breach of FFP, and in particular the Break Even Requirement. The procedural rules governing the CFCB allow clubs to enter into a ‘settlement agreement’ at the discretion and direction of the CFCB Chief Investigator.

The CFCB Chief Investigator determined that Galatasaray had breached the Break Even Requirement and a settlement agreement was reached that provided, inter alia, that the Turkish club must “be break even compliant…at the latest in the monitoring period 2015/16,” and that the club must not increase its aggregate wage bill, which stood at €90m.

Galatasaray hopelessly failed to meet either stipulation, increasing their wage bill by €5.5m and exceeding the acceptable deviation figure in Break Even Requirement by €134.2m. These figures were audited and verified by independent consultants.

In view of this egregious breach of the settlement agreement, the Investigatory Chamber referred Galatasaray to the Adjudicatory Chamber, who, on 2 March 2016, issued a decision ordering, inter alia, that Galatasaray reduce their wage bill to a maximum of €65m over the next two FFP reporting periods, and banning the club from any European competitions for which they otherwise qualified on sporting merit for the next two seasons.

Galatasaray appealed this decision to the CAS, arguing that the sanctions levied by UEFA were illegal because the rules on which they were based, i.e. the FFP rules, were illegal.

If the basis of Galatasaray’s appeal (breach of competition law, breach of fundamental freedoms) is familiar to those with a knowledge of the legal issues FFP presents, so too will be UEFA’s defence of the Break Even Requirement. UEFA argued that the Break Even Requirement constitutes rules that “are prudential rules necessary for the proper functioning of football clubs,” and “Any restriction they may cause pursues legitimate governance objectives and is proportionate to their achievement.”^[5] (Emphasis added.) 

UEFA’s view is clearly intended to align FFP with the legal tests identified in Part One of this series; namely that FFP must be:

1. Necessary (for the proper conduct of the sport);
2.  Suitable (as a means to pursue that necessary objective); and
3. Proportionate (to the aims pursued).

Applicability of EU Law

The non-application of EU law by the CAS has previously been called ‘an absurdity’ by this blog “in light of the Bosman (and prior Walrave) case law of the CJEU, which made clear that EU law is applicable to the regulations of Sports Governing Bodies”.

In this case, UEFA postulated that EU law was “irrelevant” to the dispute – the parties both being from Turkey and Switzerland respectively, i.e. nations outside of the EU – but “did not argue” that FFP is “not subject to the invoked provisions of EU law or can be applicable even if contrary to these provisions.”^[6] Galatasaray argued that EU law applied as FFP constitutes mandatory rules in EU territory. The parties agreed that Swiss law applied.

The CAS panel of arbitrators (the Panel) found that EU law, being a foreign mandatory rule, applied pursuant to Article 19 of the Swiss Federal Act on Private International Law, under which arbitral tribunals must consider foreign mandatory rules where:

i.       such rules belong to a special category of norms which need to be applied irrespective of the law applicable to the merits of the case;

ii.      there is a close connection between the subject matter of the dispute and the territory where the mandatory rules are in force; and

iii.    in view of Swiss legal theory and practice, the mandatory rules must aim to protect legitimate interest and crucial values and their application must lead to a decision which is appropriate.

The Panel found that this test had been met on the facts in this instance. As an interesting side note, the CAS also followed this line of reasoning in the subsequent Third Party Ownership case discussed by Antoine Duval here.

Article 101 TFEU

The first hurdle for Galatasaray in establishing the illegality of the Break Even Requirement is to show that it fits within the boundaries of the prohibition laid down in Article 101 TFEU, i.e. that it has as its object or effect the prevention, restriction or distortion of competition within the European internal market.

The Panel found that FFP did not have anti-competitive intent as its object. On its face, this seems a reasonable conclusion; after all, FFP is not intended to stymie inter-club competition. However, it should not be treated as axiomatic. As Weatherill has highlighted, “UEFA’s own website (though not the FFP Regulations themselves) identify as one of the principal objectives to decrease pressure on salaries and transfer fees and limit inflationary effect”. Whether such effect was an independent goal of UEFA in instituting FFP rather than mere political bluster is open to question, but the objectives of UEFA should be subject to further interrogation.

In this instance, the Panel found that Galatasaray “failed to demonstrate that the object of [FFP] would not be stated in its Article 2 [dealing with FFP objects]”. Having considered the question, the Panel “did not find convincing evidence that the object of [FFP] would be to distort competition, i.e. to favour of disfavour certain clubs rather than to prevent clubs from trading at levels above their resources”.

Thus in order to be caught within the prohibition under Article 101 TFEU, Galatasaray would need to show that FFP had an anti-competitive effect. As FFP did not fall within the examples given in the Commission’s guidance on anti-competitive agreements (horizontal/vertical), the burden of proof fell on Galatasaray to demonstrate FFP’s anti-competitive effects.

They did not do so. However – and frustratingly for those with an interest in the topic – Galatasaray did not actually adduce any detailed empirical analysis as to the effects of FFP on competition (para. 74).

Irrespective of the lack of empirical evidence put forward, the Panel expressed a view that “competition is not distorted by ‘overspending’” (para. 76); nor does FFP ossify the structure of the market as “dominant clubs have always existed and will continue to exist”. The latter point is superficially correct; however, it fails to address the fact that the Break Even Requirement may have prevented clubs from entry to the ‘dominant club’ position of superiority. 

The Panel went on to cite with approval the applicability of the carve-out for regulatory rules developed in Wouters, as discussed in more detail in Part One of this series.

Article 102 TFEU

Galatasaray produced evidence that UEFA was a dominant undertaking (which, given UEFA is a governing body with total authority over the rules of elite European football, is a case easily made), but it did not show how it was abusing its position in the case of FFP. Thus the Panel found that Galatasaray did not demonstrate an abuse of dominance by UEFA.

Fundamental Freedoms

Galatasaray argued that the Break Even Requirement violated fundamental freedoms of the EU as to the free movement of workers, the free movement of capital, and the free movement of services. However, it submitted “very little argumentation” in support of these claims (para. 85).

The Panel highlighted the fact that FFP does not discriminate based on nationality, as the rules apply equally to all clubs participating in UEFA competitions; that the rules apply equally to “domestic operations” (para. 86); and “do not restrict fundamental freedoms: players can be transferred (or offer services cross-border without limitations; capitals can move from a EU country to another without any limit.”

Ergo, the Panel found Galatasaray had not shown any breach of a fundamental freedom of the EU.

Swiss Law

Galatasaray did not invoke the relevant provisions of Swiss competition law in detail; however, the Panel noted that the substantive nature of Swiss competition law was analogous to EU competition law, diverging only in respect of reference to the domestic market. Accordingly, the Panel’s reasoning “would be the same” (para. 89). 

The CAS’s Finding

Galatasaray did not establish its case and as such its appeal was not upheld by the CAS and the CFCB’s decision was confirmed. UEFA successfully defended the first hearing on the substantive legal issues of the Break Even Requirement. 

An Illusory Victory for UEFA?

UEFA may have successfully fended off a binding determination of the legal issues at play in challenges brought in domestic and European courts, albeit on procedural grounds; and it may have won the first serious challenge to the substantive legal issues at play in the CAS, albeit aided by a lack of proper particularisation of some of the issues by Galatasaray; but it is debatable whether it was able to altogether insulate FFP from the effect of these challenges. In the years since its inception, the nature and content of the rules has gradually shifted towards a more liberal approach to external investment, and in all probability this was influenced by the vehemence of the legal challenges to the rules.

At the outset of Mr Striani’s challenge to FFP, his lawyer, Mr Dupont, said "What my client hopes is that Uefa will be forced to review this rule and go for more proportionate alternatives”.  He may not have achieved this through a favourable determination of the courts; however, as will be examined in greater detail in Part Three of this series, he may have ultimately been successful in his objectives to some extent.

^[1] See, for example, Kuper, S and Szymanski, S 2012 Soccernomics 2nd ed. London: HarperSport at p14

^[2] See Kuper, S and Szymanski, S 2012 Soccernomics 2nd ed. London: HarperSport

^[3] It should be noted, however, that Mr Dupont has argued that a flat salary cap – in many ways more restrictive than the Break Even Requirement – would be preferable, see Stefano Bastianon, 'The Striani Challenge to UEFA Financial Fair-Play A New Era after Bosman or Just a Washout?' [2015] 11(1) The Competition Law Review 7-39 at p18

^[4] Daniel Geey, LawInSport and BASL Sport Law Year Book 2015 - 2016 (Sean Cottrell ed, LawInSport 2016) at p108

^[5] Para 50

^[6] Para 39

Editor's note (13 July 2015): We (Ben Van Rompuy and I) have just published on SSRN an article on the Pechstein ruling of the OLG. It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621983. Feel free to download it and to share any feedback with us!

On 15 January 2015, the earth must have been shaking under the offices of the Court of Arbitration for Sport (CAS) in Lausanne when the Oberlandesgericht München announced its decision in the Pechstein case. If not entirely unpredictable, the decision went very far (further than the first instance) in eroding the legal foundations on which sports arbitration rests. It is improbable (though not impossible) that the highest German civil court, the Bundesgerichtshof (BGH), which will most likely be called to pronounce itself in the matter, will entirely dismiss the reasoning of the Oberlandesgericht. This blogpost is a first examination of the legal arguments used (Disclaimer: it is based only on the official press release, the full text of the ruling will be published in the coming months).

The Pechstein Saga

Few are able to remember the start of Claudia Pechstein’s legal crusade through all available jurisdictions in the northern hemisphere[1]. Thus, a concise summary of the previous episodes is in order. Claudia Pechstein is a German Speed-Skater, multiple Olympic Gold Medallist and World Champion. In 2009, she was one of the first athletes caught for doping on the basis of the blood profiling system introduced by the International Skating Union (ISU)[2]. Henceforth, the ISU banned her from all competitions for two years. This triggered a long and embroiled legal saga. She appealed the ban in front of the Court of Arbitration for Sport (CAS), based on an arbitration agreement included in her license with the national and international federations. The CAS dismissed (CAS 2009/A/1912 & 1913 and CAS OG 10/04) her claims and confirmed the two-year ban. Subsequently, she contested (twice!) the award in front of the Swiss Federal Tribunal (Case 4A_612/2009, 10 February 2010 and Case 4A_144/2010, 28 September 2010), but was both times unsuccessful. Her case is also pending before the European Court of Human Rights. Meanwhile, she started an action for damages (around € 4 Million) in front of the local Court of Munich (Landesgericht München). This Court released its judgment on 26 February 2014, despite recognizing the invalidity of the arbitration clause, it considered that the award’s res judicata effect was to be recognized because Pechstein did not contest the competence of CAS when she appealed the ISU’s decision to it. Pechstein decided to appeal the judgment to the Oberlandesgericht München, which in its decision from 15 January 2015 embraced her claims.

The Decision of the Oberlandesgericht München

The overall position of the Oberlandesgericht concerning the CAS award is straightforward. The court considers the arbitration clause between the ISU and Claudia Pechstein as contrary to German (and maybe European) antitrust law, which is part of German public policy, and, therefore, refuses on the basis of Article V (2) (b) New York Convention of 1958 to recognize the validity in Germany of the CAS awards rendered in the Pechstein case. But, why is it so?

First of all, the judges point out a typical (but often overlooked) fact about International Sports Governing bodies: they are monopolists. In other words, they control the market(s) for international sports competitions and nowadays (at least in speed-skating) no professional athlete can afford, if he is to live from his sport, to miss those competitions. Yet, German antitrust law bans an undertaking placed in a dominant position from imposing contractual conditions that differ from what they would be in a normal competitive environment. Hence, the Court held that the ISU was unlawfully imposing onto Claudia Pechstein the signing of a CAS arbitration clause. But, is a forced arbitration clause per se constitutive of an antitrust violation? The Court is subtler. In fact, it acknowledges that an arbitration clause imposed by a Sports Governing Body does not constitute per se an antitrust violation. To the contrary, the Court clearly states that there are good reasons (for example the uniform application of anti-doping regulations) to subject the resolution of sporting disputes between athletes and Sports Governing Bodies to a unique world court for sport. What is the problem then?  

In the eyes of the German court, the problem lies with CAS and its institutional set-up. First of all, the Sports Governing Bodies (International federations, NOCs and IOC) have a decisive influence on who is potentially called to be an arbitrator in CAS arbitration. Here, without clearly alluding to it in the press release, the Court has the closed list of CAS arbitrators in mind. In short, only a predefined number of people can act as arbitrators before CAS. Those arbitrators are appointed on the CAS list by ICAS, the CAS code in force at the time of the case foresaw that 3/5 of the arbitrators were appointed upon proposals made by the Sports Governing Bodies[3]. This has changed. As from the 1 January 2014 the ICAS is free to appoint whomever it deems appropriate on the list[4]. Nevertheless, the Court finds that, at least for the time Pechstein was facing the CAS, the Sports Governing Bodies were in a structurally favourable position regarding the composition of the arbitral panel. In practice, athletes were forced to ratify this disequilibrium due to the monopoly of Sports Governing Bodies on the access to international sporting competitions.

Furthermore, the German judges consider that this imbalance plagues also the nomination process of a president of an arbitral panel. Indeed, under article R54 of the CAS Code, the president of the CAS Appeals Arbitration Division is responsible to nominate the presidents of the panels[5]. However, the president of the CAS appeals division is himself nominated by the ICAS[6], which consists mainly of representatives of the Sports governing bodies[7], and is often a personality close to them[8]. Currently, the ICAS has 20 members, of which 14 have (or had) direct ties with Sports Governing bodies and none is connected to the existing athlete’s unions. This institutional bias entrenches the structural imbalance in favour of the Sports Governing Bodies already identified by the Court apropos the closed list of arbitrators. Thus, the independence of the panel cannot be guaranteed and the fairness of the arbitral process safeguarded. Therefore, in light of the monopolistic position of the ISU and the lack of independence of CAS panels, the imposition of an arbitration clause depriving the athlete of her constitutional right to a judge constitutes a breach of German antitrust law.

Consequently, and contrary to the first instance Landesgericht[9], the Oberlandesgericht refuses to recognize, on the basis of Article 5 par. 2  b) of the 1958 New York Convention, the validity of the CAS awards invoked by ISU to oppose the damage claims raised by Pechstein. The Court leaves open the question of the damage claims, the partial ruling on the jurisdiction being susceptible to an appeal to the highest German civil Court, the BGH.

Towards a Gundel 2.0 for CAS: Reform or die!

The Pechstein Saga is not finished yet; an appeal to the BGH by ISU is to be expected. However, one should not underestimate the symbolic value of the Oberlandesgericht’s ruling and the threat it constitutes to the work of CAS. Indeed, if the ruling were to be confirmed by the BGH it would basically imply that CAS awards are unenforceable in German courts and that athletes may therefore (successfully or not) claim damages against the Sports Governing Bodies imposing sanctions on the basis of these awards. From the press release it remains unclear whether the decision is based solely on German antitrust law or also on EU antitrust law. Nonetheless, this decision might also be constructed as an abuse of a dominant position in the sense of article 102 TFEU and could gain validity in the EU as a whole. This would be a dramatic setback for sports arbitration, nothing short than the death of CAS.

But, it need not come to such extremity. As recognized by the Oberlandesgericht, the CAS fulfils an important function in the sporting world. It is a necessary institution to provide a level legal playing field when issues of doping or transfers are leading to acrimonious transnational disputes. Additionally, it also has advantages for the athletes, as it is usually perceived as cheaper and faster than state justice[10]. All of this is duly acknowledged in the decision. In short, what the German Court is asking for is an institutional reform of CAS. This restructuring would entail a fundamental reshuffling of the internal functioning of the CAS. Indeed, the German judges have identified the two main weak points of CAS, the forced arbitration coupled with its lack of independence[11]. The forced arbitration can be accepted if, and only if, the structural independence of CAS from the Sports Governing Bodies is warranted[12]. The challenge to CAS can be formulated as follows: cut the ties that bind you to the Sports Governing Bodies or we will not accept the validity of the arbitration clause underpinning your competence.

In fact, the CAS was at a fairly similar (less dramatic) crossroad after the Gundel case of the Swiss Federal Tribunal in 1993[13]. In the Gundel case, the SFT recognized the independence of CAS but also clearly indicated that it would not do so if the IOC were a party to a dispute in front of CAS. This led to what is known as the Paris agreement, an in depth structural reform of CAS[14]. Mainly, the ICAS was created to separate the management of CAS from the IOC. The SFT expressed its satisfaction with the reforms in its famous Lazutina case and blessed the CAS with the full recognition of its independence[15]. This, however, did not mean that the recognition of the independence of CAS was legally a given beyond Switzerland. To the contrary, it was (and is) still hotly debated in the literature[16]. Now, the German court basically says the Paris agreement is not enough, we need a new one, ensuring that athletes (and other stakeholders like clubs or supporters) get a true say in the ICAS. It is time for the CAS’s institutional structure to better reflect the diversity of actors affected by its decisions. If not, CAS awards will not be recognized in Germany and, by extension, the entire territory of the EU, thus leading the sports justice into a profound crisis.

[1] All the relevant legal documents are available on her website at http://www.claudia-pechstein.de/gerichtsunterlagen.php

[2] On the dispute see D. McArdle, ‘Longitudinal Profiling, Sports Arbitration and The Woman Who Had Nothing to Lose. Some Thoughts on Pechstein v International Skating Union”, available at https://dspace.stir.ac.uk/bitstream/1893/3356/1/Pechstein%20final.pdf

[3] Article S14 CAS Code, edition 2004

[4] The new article S14 CAS Code reads as follows:

« In establishing the list of CAS arbitrators, ICAS shall call upon personalities with appropriate legal training, recognized competence with regard to sports law and/or international arbitration, a good knowledge of sport in general and a good command of at least one CAS working language, whose names and qualifications are brought to the attention of ICAS, including by the IOC, the IFs and the NOCs. ICAS may identify the arbitrators with a specific expertise to deal with certain types of disputes. »

[5] Article R54 CAS Code 2004 (and 2014) reads as follows: “If three arbitrators are to be appointed, the President of the Division shall appoint the President of the Panel upon appointment of the arbitrator by the Respondent and after having consulted the arbitrators.”

[6] Article S6 par.2 CAS Code 2004 (and 2014)

[7] Article S4 CAS Code 2014 foresees that:
« ICAS is composed of twenty members, experienced jurists appointed in the following manner :

1.     four members are appointed by the International Federations (IFs), viz. three by the Association of Summer Olympic IFs (ASOIF) and one by the Association of the Winter Olympic IFs (AIOWF), chosen from within or outside their membership;

2.     four members are appointed by the Association of the National Olympic Committees (ANOC), chosen from within or outside its membership;

3.     four members are appointed by the International Olympic Committee (IOC), chosen from within or outside its membership;

4.     four members are appointed by the twelve members of ICAS listed above, after appropriate consultation with a view to safeguarding the interests of the athletes;

5.     four members are appointed by the sixteen members of ICAS listed above, chosen from among personalities independent of the bodies designating the other members of the ICAS. »

[8] The current president, Corinne Schmidhauser, is a member of the Legal Committee of the Fédération Internationale de Ski (International Ski Federation). It is surely telling that Thomas Bach, the current IOC president, was her predecessor at that post.

[9] The first instance Court (Landesgericht München) considered that due to Pechstein’s appeal and lack of contestation of the CAS’s competence, the award had gained res judicata effect. See paragraphs  IV.2) of the judgment.

[10] A point made by D. Yi, ‘Turning medals into metal:  Evaluating the Court of Arbitration for Sport as an International tribunal’, available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1024&context=student_papers

[11] Antonio Rigozzi has highlighted these weaknesses in his Phd thesis, see A. Rigozzi L’arbitrage international en matière de sport, Bruylant, 2005, pp.273-349 and 421-426. See also, M. Maisonneuve, L’arbitrage des litiges sportifs, L.G.D.J, 2011, pp. 141-221 and pp. 267-313.

[12] In principle the Swiss Federal Tribunal has a similar view outlined in the Cañas case (4P.172/2006), but it considers that the CAS already offers « sufficient guarantees of independence and impartiality » (par. 4.3.2.3.). Thus, its assessment of the CAS’s independence is diametrically opposed to the one conducted by the Oberlandesgericht.

[13] Decision 4P.217/1992 of 15 March 1993 (Gundel v FEI), ATF 119 II 271, translated in CAS Digest I,.p. 545

[14] For an introduction on the Paris agreement see, http://www.tas-cas.org/en/general-information/history-of-the-cas.html#c74

[15] Decision 4P.267–270/2002 du 27 mai 2003, Lazutina c. CIO, ATF 129 III 445, Bull. ASA 2003, p. 601

[16] For a recent contribution to this debate see A. Vaitiekunas, The Court of Arbitration for Sport : Law-making and the question of independence, Stämpfli Publishers, 2014