Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – February and March 2019. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

The Court of Arbitration for Sport bans 12 Russian track and field athletes

On 1 February 2019, the Court of Arbitration for Sport (CAS) communicated that it had rendered another 12 decisions in the seemingly endless saga concerning the state-sponsored doping programme in Russia. These first-instance decisions of the CAS involve 12 Russian track and field athletes who were all found guilty of anti-doping rule violations based on the evidence underlying the reports published by professor Richard McLaren and suspended from participating in sports competitions for periods ranging from two to eight years. Arguably the most prominent name that appears on the list of banned athletes is Ivan Ukhov, the 32-year-old high jump champion from the 2012 Olympic Games in London.

The case was brought by the International Association of Athletics Federation (IAAF) that sought to convince the arbitrators that the athletes in question had participated in and/or benefited from anabolic steroid doping programmes and benefited from specific protective methods (washout schedules) in the period between the 2012 Olympic Games in London and the 2013 IAAF World Championships in Moscow. The CAS was acting in lieau of the Russian Athletics Federation that remains suspended and thus unable to conduct any disciplinary procedures. The athletes have had the opportunity to appeal the decisions to the CAS Appeals Arbitration Division.

Federal Cartel Office in Germany finds Rule 40 of the Olympic Charter disproportionately restrictive

At the end of February, the German competition authority Bundeskartellamt announced that it had entered into a commitment agreement with the German Olympic Sports Confederation (DOSB) and the International Olympic Committee (IOC) in which these two organisations had agreed to considerably enhance advertising opportunities for German athletes and their sponsors during the Olympic Games. The respective agreement is a direct consequence of the Bundeskartellamt’s finding that the IOC and the DOSB had abused their dominant position on the market for organising and marketing the Olympic Games by demanding that the athletes refrain from promoting their own sponsors while the Games are ongoing, as well as shortly before and after the Games. This restriction stems from Rule 40(3) of the Olympic Charter under which no competitor who participates in the Games may allow his person, name, picture or sports performances to be used for advertising purposes, unless the IOC Executive Board allows him/her to do so.

As part of fulfilling its obligations under the commitment agreement, the DOSB has relaxed its guidelines on promotional activities of German athletes during the Olympic Games. For its part, the IOC has declared that these new guidelines would take precedence over Rule 40(3) of the Olympic Charter. However, it still remains to be seen whether in response to the conclusions of the German competition authority the IOC will finally change the contentious rule.

The Grand Chamber of the European Court of Human Rights refuses to pronounce itself on Claudia Pechstein’s case

Claudia Pechstein’s challenge against the CAS brought before the European Court of Human Rights (ECtHR) has not yielded the desired result for the German athlete. On 5 February 2019, a Panel of the Grand Chamber of the ECtHR decided that the Grand Chamber would not entertain the case. This means that the judgment handed down by the 3rd Chamber of the ECtHR on 2 October 2018, in which the ECtHR confirmed that except for the lack of publicity of oral hearings the procedures of the CAS are compatible with the right to a fair trial under Article 6(1) of the European Convention on Human Rights, has now become final and binding. However, the protracted legal battle between the five-time Olympic champion in speed skating and the CAS is not over yet since there is one more challenge against the CAS and its independence pending before the German Constitutional Court.  More...

New Event! FIFA and Human Rights: Impacts, Policies, Responsibilities - 8 May 2019 - Asser Institute

In the past few years, FIFA underwent intense public scrutiny for human rights violations surrounding the organisation of the World Cup 2018 in Russia and 2022 in Qatar. This led to a reform process at FIFA, which involved a number of policy changes, such as:

  • Embracing the United Nations Guiding Principles on Business and Human Rights;
  • The inclusion of human rights in the FIFA Statutes;
  • Adopting new bidding rules including human rights requirements;
  • And introducing a Human Rights Advisory Board.

To take stock of these changes, the Asser Institute and the Netherlands Network for Human Rights Research (NNHRR), are organising a conference on the Fédération Internationale de Football Association (FIFA) and human rights, which will take place at the Asser Institute in The Hague on 8 May 2019.

This one-day conference aims to take a deeper look at FIFA’s impacts on human rights and critically investigate the measures it has adopted to deal with them. Finally, we will also address FIFA’s potential legal responsibilities under a variety of human rights laws/instruments.


Preliminary Programme

9:00 Registration & Coffee

9:45 Welcome by Antoine Duval (Asser Institute) & Daniela Heerdt (Tilburg University)

10:00 Opening Remarks by Andreas Graf (Human Rights Officer, FIFA)

10:30 Panel 1: FIFA & Human Rights: Impacts

  • Zoher Shabbir (University of York) – The correlation between forced evictions and developing nations hosting the FIFA World Cup
  • Roman Kiselyov (European Human Rights Advocacy Centre) - FIFA World Cup as a Pretext for a Crackdown on Human Rights
  • Eleanor Drywood (Liverpool University) - FIFA and children’s rights: theory, methodology and practice 

12:00 Lunch

13:00 Panel 2: FIFA & Human Rights: Policies

  • Lisa Schöddert & Bodo Bützler (University of Cologne) – FIFA’s eigen-constitutionalisation and its limits
  • Gigi Alford (World Players Association) - Power Play: FIFA’s voluntary human rights playbook does not diminish Switzerland’s state power to protect against corporate harms
  • Brendan Schwab (World Players Association) & Craig Foster - FIFA, human rights and the threatened refoulement of Hakeem Al Araibi 

14:30 Break

15:00 Panel 3: FIFA & Human Rights: Responsibilities

  • Daniel Rietiker (ECtHR and University of Lausanne) - The European Court of Human Rights and Football: Current Issues and Potential
  • Jan Lukomski (Łukomski Niklewicz law firm) - FIFA and the International Covenant on Economic, Social and Cultural Rights : Obligations, duties and remedies regarding the labour rights         protected under the ICESCR
  • Raquel Regueiro Dubra (Complutense University of Madrid) - Shared international responsibility for human rights violations in global events. The case of the 2022 World Cup in Qatar.
  • Wojciech Lewandowski (Polish Academy of Sciences/University of Warsaw) - Is Bauer the new Bosman? – The implications of the newest CJEU jurisprudence for FIFA and other sport governing bodies

17:00 Closing Remarks by Mary Harvey (Chief Executive, Centre for Sports and Human Rights)


More information and registration at https://www.asser.nl/education-events/events/?id=3064

International and European Sports Law – Monthly Report – January 2019 - By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

#Save(d)Hakeem

The plight of Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last November in Bangkok upon his arrival from Australia on the basis of a red notice issued by Interpol in contravention of its own policies which afford protection to refugees and asylum-seekers – continued throughout the month of January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a (well-founded) fear of persecution stemming from his previous experience when he was imprisoned and tortured as part of the crackdown on pro-democracy athletes who had protested against the royal family during the Arab spring – maintained a firm stance, demanding that Hakeem be extradited to serve a prison sentence over a conviction for vandalism charges, which was allegedly based on coerced confessions and ignored evidence.

While international sports governing bodies were critised from the very beginning for not using enough leverage with the governments of Bahrain and Thailand to ensure that Hakeem’s human rights are protected, they have gradually added their voice to the intense campaign for Hakeem’s release led by civil society groups. FIFA, for example, has sent a letter directly to the Prime Minister of Thailand, urging the Thai authorities ‘to take the necessary steps to ensure that Mr al-Araibi is allowed to return safely to Australia at the earliest possible moment, in accordance with the relevant international standards’. Yet many activists have found this action insufficient and called for sporting sanctions to be imposed on the national football associations of Bahrain and Thailand.      

When it looked like Hakeem will continue to be detained in Thailand at least until April this year, the news broke that the Thai authorities agreed to release Hakeem due to the fact that for now the Bahraini government had given up on the idea of bringing Hakeem ‘home’ – a moment that was praised as historic for the sport and human rights movement.

Russia avoids further sanctions from WADA despite missing the deadline for handing over doping data from the Moscow laboratory 

WADA has been back in turmoil ever since the new year began as the Russian authorities failed to provide it with access to crucial doping data from the former Moscow laboratory within the required deadline which expired on 31 December 2018, insisting that the equipment WADA intended to use for the data extraction was not certified under Russian law. The Russian Anti-Doping Agency thus failed to meet one of the two conditions under which its three-year suspension was controversially lifted in September 2018. The missed deadline sparked outrage among many athletes and national anti-doping organisations, who blamed WADA for not applying enough muscle against the Russian authorities.

Following the expiry of the respective deadline, it appeared that further sanctions could be imposed on the Russian Anti-Doping Agency, but such an option was on the table only until WADA finally managed to access the Moscow laboratory and retrieve the doping data on 17 January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the progress as a major breakthrough for clean sport and members of the WADA Executive Committee agreed that no further sanctions were needed despite the missed deadline. However, doubts remain as to whether the data have not been manipulated. Before WADA delivers on its promise and builds strong cases against the athletes who doped – to be handled by international sports federations – it first needs to do its homework and verify whether the retrieved data are indeed genuine.  

British track cyclist Jessica Varnish not an employee according to UK employment tribunal

On 16 January 2019, an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports governing bodies in the United Kingdom, ruling that the female track cyclist Jessica Varnish was neither an employee nor a worker of the national governing body British Cycling and the funding agency UK Sport. The 28-year-old multiple medal winner from the world and European championships takes part in professional sport as an independent contractor but sought to establish before the tribunal that she was in fact an employee of the two organisations. This would enable her to sue either organisation for unfair dismissal as she was dropped from the British cycling squad for the 2016 Olympic Games in Rio de Janeiro and her funding agreement was not renewed, allegedly in response to her critical remarks about some of the previous coaching decisions.

The tribunal eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent – rather she was personally performing a commitment to train in accordance with the individual rider agreement in the hope of achieving success at international competitions’. Despite the outcome of the dispute, Jessica Varnish has insisted that her legal challenge contributed to a positive change in the structure, policies and personnel of British Cycling and UK Sport, while both organisations have communicated they had already taken action to strengthen the duty of care and welfare provided to athletes.  

 

Sports Law Related Decisions


Official Documents and Press Releases

 

In the news

Doping

Football

Other


Academic Materials

International Sports Law Journal

Other


Blog

Law in Sport

Other

 

Upcoming Events

Call for papers - Third Annual International Sports Law Conference of the International Sports Law Journal - 24 and 25 October 2019 - Asser Institute

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the third ISLJ Annual Conference on International Sports Law, which will take place on 24 and 25 October 2019 at the Asser Institute in The Hague. The ISLJ, published by Springer and Asser Press, is the leading academic publication in the field of international sports law. The conference is a unique occasion to discuss the main legal issues affecting international sports with renowned academic experts and practitioners.


We are delighted to announce the following confirmed keynote speakers:


  • Beckie Scott (Chair of the World Anti-Doping Agency (WADA) Athlete Committee, Olympic Champion, former member of the WADA Executive Committee and the International Olympic Committee (IOC)),
  • Ulrich Haas (Professor of Law at Univerzität Zürich, CAS arbitrator), and
  • Kimberly Morris (Head of FIFA Transfer Matching System (TMS) Integrity and Compliance).


We welcome abstracts from academics and practitioners on any question related to international sports law. We also welcome panel proposals (including a minimum of three presenters) on a specific issue. For this year’s edition, we specifically invite submissions on the following themes:


  • The role of athletes in the governance of international sports
  • The evolution of sports arbitration, including the Court of Arbitration for Sport
  •  The role and functioning of the FIFA transfer system, including the FIFA TMS
  •  The intersection between criminal law and international sports (in particular issues of corruption, match-fixing, human trafficking, tax evasion)
  • Hooliganism
  • Protection of minor athletes
  • Civil and criminal liability relating to injuries in sports


Please send your abstract of 300 words and CV no later than 30 April 2019 to a.duval@asser.nl. Selected speakers will be informed by 15 May.


The selected participants will be expected to submit a draft paper by 1 September 2019. All papers presented at the conference are eligible (subjected to peer-review) for publication in a special issue of the ISLJ.  To be considered for inclusion in the conference issue of the journal, the final draft must be submitted for review by 15 December 2019.  Submissions after this date will be considered for publication in later editions of the Journal.


The Asser Institute will cover one night accommodation for the speakers and will provide a limited amount of travel grants (max. 250€). If you wish to be considered for a grant please indicate it in your submission. 

A Reflection on the Second Report of FIFA’s Human Rights Advisory Board - By Daniela Heerdt (Tilburg University)

Editor's note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands and works as Research Officer for the Centre for Sports and Human Rights. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.

 

On November 26th, the Human Rights Advisory Board[1] of the Fédération Internationale de Football Association (FIFA) published its second report. This blog provides a summary and brief evaluation of the report, by drawing a comparison to the previous report issued by the Human Rights Advisory Board (hereinafter: the Board) based on the content of the recommendations and FIFA’s efforts to implement the Board’s recommendations. The third part of this blog briefly reflects on the broader implications of some of the new recommendations issued for FIFA’s internal policies. The conclusion provides five more general points of observation on the report. More...

The Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

Editor’s note: Sven Demeulemeester and Niels Verborgh are sports lawyers at the Belgium law firm, Altius.

 

Introduction

In its 16 November 2018 judgment, the Court of Justice of the European Free Trade Association States (the EFTA Court) delivered its eagerly awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski Federation (NSF). 

On 17 October 2016, Kristoffersen had taken the NSF to the Oslo District Court over the latter’s refusal to let the renowned alpine skier enter into a sponsorship with Red Bull. At stake were the commercial markings on his helmet and headgear in races organised under the NSF’s umbrella. The NSF refused this sponsorship because it had already granted the advertising on helmet and headgear to its own main sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the NSF should be ordered to permit him to enter into an individual marketing contract with Red Bull. In the alternative, Kristoffersen claimed damages up to a maximum of NOK 15 million. By a letter of 25 September 2017, the Oslo District Court referred several legal questions to the EFTA Court in view of shedding light on the compatibility of the rules that the NSF had invoked with EEA law.

If rules do not relate to the conduct of the sport itself, but concern sponsorship rights and hence an economic activity, these rules are subject to EEA law. The EFTA Court ruling is important in that it sets out the framework for dealing with - ever more frequent - cases in which an individual athlete’s endorsement deals conflict with the interest of the national or international sports governing bodies (SGBs) that he or she represents in international competitions.More...


Season 2 of football leaks: A review of the first episodes

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

  • The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
  • The European Super League project and EU competition law
  • The (lack of) separation of powers inside FIFA and UEFA More...

Supporters of the ISLJ Annual International Sports Law Conference 2018: Altius

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 


1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Supporters of the ISLJ Annual International Sports Law Conference 2018: LawInSport

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).


1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

  • The long-term implications of human rights law in sport;
  • The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
  • Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Asser International Sports Law Blog | The aftermath of the Pechstein ruling: Can the Swiss Federal Tribunal save CAS arbitration? By Thalia Diathesopoulou

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The aftermath of the Pechstein ruling: Can the Swiss Federal Tribunal save CAS arbitration? By Thalia Diathesopoulou

It took only days for the de facto immunity of the Court of Arbitration for Sport (CAS) awards from State court interference to collapse like a house of cards on the grounds of the public policy exception mandated under Article V(2)(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards . On 15 January 2015, the Munich Court of Appeals signalled an unprecedented turn in the longstanding legal dispute between the German speed skater, Claudia Pechstein, and the International Skating Union (ISU). It refused to recognise a CAS arbitral award, confirming the validity of a doping ban, on the grounds that it violated a core principle of German cartel law which forms part of the German public policy. A few weeks before, namely on 30 December 2014, the Court of Appeal of Bremen held a CAS award, which ordered the German Club, SV Wilhelmshaven, to pay ‘training compensation’, unenforceable for non-compliance with mandatory European Union law and, thereby, for violation of German ordre public.

Although none of these decisions is yet final, with two red cards in a row, one could presume that the ‘death’ of CAS is closer than ever. Beyond such extreme and rather unconvincing predictions, the two cases set a fundamental precedent: sports arbitration, like all arbitration proceedings, shall abide by minimum standards of institutional impartiality and independence (Pechstein) and apply mandatory EU law (SV Wilhelmshaven).[1] Nevertheless and without prejudice to the need for a potential institutional reform of the CAS (see our analysis here), from a purely international arbitration point of view, the two German courts’ decisions brought into surface the controversial question of the powers of national courts in enforcement proceedings to review CAS arbitral awards with regard to the application of mandatory rules. The Pechstein case illustrates well the potential conflict between two apparently competing policies: the finality of CAS awards and the respect of public policy. In the SV Wilhelmshaven case, the Court went even a step further by implying that sport associations have the ‘duty’ (!) to review a CAS award with regard to its compatibility with German public policy.[2] In view of its uniqueness and complexity, this aspect of the SV Wilhelmshaven case deserves a thorough examination in a future blogpost.

In this blogpost, we will argue that the Pechstein case could be considered as a borderline case with regard to the limits of national courts’ power when scrutinizing CAS awards’ compatibility with domestic public policy. Challenging the validity of CAS awards before national courts, however, is something new under the sun of sports arbitration and could prove fatal for the finality of CAS awards, which is a sine qua non safeguard of procedural equal treatment among athletes[3] and legal coherence in sports law. Should athletes rely on national courts to police the institutional flaws of the CAS? Or is it high time for the Swiss Federal Tribunal (SFT) to abandon the hands-off deferential approach towards CAS arbitration and adopt a broader scope of review in the sporting context?

In this regard, the key claim is the following: national courts’ decisions should not threaten CAS arbitration as long as the Swiss Federal Tribunal review guarantees a minimum quality of CAS arbitrators’ work on the merits.


The Pechstein case: Testing the limits of a national court’s power to review a CAS award

In the latest decision of the Pechstein saga, the Higher Regional Court in Munich found the underlying arbitration agreement between the athlete and ISU in favour of the CAS invalid and that the CAS award issued on the basis of that agreement violated mandatory German cartel law prohibits abusive conduct by companies that have a dominant position on a particular market. The ISU, as sole organizer of speed skating world championship, enjoys a monopolistic position in speed skating and forced the athlete to sign the arbitration agreement at issue. Initially, the Court hold that the arbitration agreement as a prerequisite to the athlete’s participation in competitions does not constitute per se an abuse of a dominant position, since it responds to the specificity of sport and particularly to the need of consistency in sports disputes. However, considering the decisive influence of sports organizations on the selection and appointment of arbitrators under the CAS regulations, the Court concluded that the independence of CAS is questionable. In this light, forcing the athletes to sign an arbitration agreement in favour of a rather dependent and partial tribunal would constitute an abuse of the international sports organizations’ dominant position in the market, thereby infringing the mandatory German antitrust law. More importantly, unlike the First Instance Court, the Higher Regional Court concluded that the res judicata effect of the CAS award does not prevent the athlete from bringing her claim before the Court. Instead, it found  that the recognition of the CAS award would be contrary to Germany’s public policy, since it would perpetuate the abuse of ISU dominant market position.

From a substantive point of view it is evident that the decision primarily concerns the independence of CAS arbitration. However, considering that the Court based its reasoning on the application of German competition law, it could also serve as a model for an abuse of dominant position in the meaning of Article 102 TFEU[4], since the decision provides important insights on the role of a national court in tackling competition law issues at the enforcement stage of an arbitral award. In the Pechstein case, the Court examined the enforcement of a CAS award, which failed to deal with competition law, since the issue was not raised during the arbitral proceedings.[5] Indeed, a competition law issue was never raised before the CAS and neither before the Swiss Federal Tribunal. Interestingly enough, the invalidity of the forced arbitration agreements was raised only in the German courts proceedings.

Given the mandatory nature of competition law, one could argue that if the matter was not raised during the arbitration proceedings by the parties or ex officio by the arbitrators, it could still be considered in enforcement proceedings.[6] However, this approach could hardly be followed in a situation where the applicability of competition law is not prima facie evident and the alleged breach would in no case amount to a hard-core violation of competition law.[7] The answer to this dilemma is to be found in the difficult balance between the public interest in the application and enforcement of competition law on the one hand and the public interest in the finality of CAS arbitral awards on the other. In this light, the following remarks can be made regarding the Pechstein case.

First, it is debatable whether the enforcement of the CAS award results in serious violation of competition law.[8] The Court alleged violation of German cartel law based on the structural imbalance of the CAS and the subsequent challenge of its independence. However, this was rather an examination of the potential effects of the absence of CAS independence which could be hardly interpreted as a hard-core violation of competition law. While the CAS is still “perfectible”[9], the German Court’s decision did not clearly demonstrate to what extent the so-called structural imbalance actually weighted against Pechstein before the CAS. Moreover, one cannot not exclude the possibility that a national court reviewing a CAS awards would be less neutral than the CAS itself as it may have the unconscious intention to safeguard its own athlete.[10] Furthermore, as Nathalia Voser interestigly remarks, the Pechstein ruling failed to provide an assessment of actual excluding and exploitative effects of the forced arbitration clause, in absence of which, it is questionable whether the rules of an arbitral institution could be considered anticompetitive.

Even assuming that the violation of competition law is serious, it is problematic that this issue was raised only in the proceedings before the national courts. The German Court argued that the athlete had no choice but to sign the arbitration agreement and the fact that she never raised a violation of competition law could not justify a perpetuation of the abuse of a dominant position by the ISU.[11] Nevertheless, this argument seems hardly convincing. A refusal of enforcement of an award for failure to apply competition law in the arbitration proceedings, notwithstanding that the party which would have benefited from its application did not raise the issue during the arbitration, could be conceived as an invitation to the parties to behave in bad faith.[12] Had Pechstein won before the CAS, she would not challenge the validity of the arbitration agreement and the Court would not delve into the conformity of the forced arbitration agreement with competition law.

For these reasons, it is the opinion of the author that competition law issues should have been raised in a timely fashion in their proper venue, before the arbitrators. This solution does not entail a danger of systematic violation of competition rules, since the national courts can still protect athletes in case of hard-core violations. On the contrary, treating competition law as a second bite of a cherry for athletes seems to be at odds with the rationale of the public policy exemption and open the road to abusive practices seriously compromising the principle of finality of CAS awards.


The counterbalance? A stricter review of the CAS awards by the Swiss Federal Tribunal (SFT)

In the wake of the Pechstein ruling, it is almost certain that more athletes will resort to national courts to challenge CAS awards aiming to reverse them in their favour and even claim damages against the sports governing bodies imposing sanctions on the basis of these awards. This can lead to a problematic situation as States adopt different standards of protection of fundamental rights of the athletes and arbitration clauses inserted in statutes of international sports federations can potentially conflict with non-Swiss legal systems.[13] Furthermore, it has been demonstrated in this blogpost that a meticulous review of the application of mandatory rules by national courts poses a serious risk for the effectiveness of arbitration without necessarily guaranteeing much better protection of public policy.

In this light, the concentration of jurisdiction at a single forum is an overriding need in order to ensure that the athletes participating in competitions are on equal footing.[14] Nevertheless, this does not come without limits. In view of the ‘forced’ nature of sports arbitration and the specificity of sports disputes, athletes should enjoy further safeguards for their rights. To this end, the Swiss Federal Tribunal (SFT) should play a key role. By adopting a broader and stricter review of the CAS awards, (namely one that would really take into account the forced nature of sports arbitration) the SFT could at the same time safeguard the enforceability of CAS awards and uniform application of sports law at domestic and international level, while guaranteeing athletes’ fundamental rights.

In fact, a CAS award can be challenged before the SFT on the limited grounds provided in Article 190 (2) PILA and particularly: (a) if the sole arbitrator or the arbitral tribunal was not properly appointed or composed; (b) if the arbitral tribunal erroneously held that it had or did not have jurisdiction; (c) if the arbitral tribunal ruled on matters beyond the claims submitted to it or if it failed to rule on one of the claims; (d) if the equality of the parties or their right to be heard in an adversarial proceeding was not respected; or (e) if the award is incompatible with public policy. The current SFT jurisprudence reviewing CAS awards has demonstrated its capacity to protect parties’ procedural rights.[15] Nonetheless, when it comes to the merits of the dispute, the SFT has consistently adopted a hands-off approach by interpreting the concept of incompatibility with public policy under Article 190 (2)(e) very narrowly, covering only those fundamental principles that are widely recognized and should underlie any system of law according to the prevailing conceptions in Switzerland.[16] For example, in practice, this means that the SFT will not consider whether an award is compatible with EU competition law and EU fundamental principles, irrespective of whether such an award could be enforced within the EU, since they are not embedded in Swiss legal tradition.

It was only in 2012 that the SFT for the first time in over twenty years took the bold step to annul a CAS award on the basis of a violation of substantive public policy.[17] In this judgment, the SFT has answered the criticism that its substantive review under Art 190(2) (e) PILA is a dead letter[18] and more importantly it made it clear that the CAS has the primary responsibility of ensuring that its awards are fair on the merits and the SFT’s role is to examine whether the CAS successfully assumed this duty. However, the Matuzalem ruling instead of marking a turning point in the SFT review on the merits, was soon proven to be a rare exception. The repeated ‘excuse’ of the SFT for this pro-CAS arbitration approach has been that Art 190(2) (e) PILA mandates an excessively limited review on the merits. The CAS arbitration being under the sword of Damocles, should this hands-off approach be sustained?

This question has to be answered negatively. In fact, Chapter 12 of the PILA, including Article 190(2), was originally drafted for the purpose of governing international commercial arbitration. Nevertheless, in its almost 20 years of practice, the SFT has acknowledged that sports arbitration should be treated differently than standard commercial arbitration.[19] It could be argued, therefore, that in view of the particularity of sports arbitration, the restrictive reading of substantive public policy under Art 190 (2)(e) could be tolerated in international commercial arbitration, but not for CAS arbitration. It has been suggested, instead, that in view of protecting athletes’ fundamental rights, the SFT should engage in a broader review and take into account the specificity of sports arbitration in defining the scope of its review on the merits of CAS awards.[20] A suggestion has also been made for a redefinition of public policy under which the SFT could freely review whether CAS has complied with the essential rights of athletes.[21] Considering that athletes are forced to accept CAS arbitration, a broader scope of review that would ensure a minimum quality guarantee of the CAS awards on the merits should be offered to athletes. Therefore, a potential institutional reform of the CAS to ensure independence and impartiality coupled with a more stringent review of its awards by the SFT should bring about a more restraint approach of national courts when reviewing CAS awards’ compliance with domestic public policy and ensure the subsequent finality of CAS awards.


[1] B Hess and F Kaps, ‘Claudia Pechstein and SV Wilhelmshaven: Two German Higher Regional Courts Challenge the Court of Arbitration for Sport’ (6 February 2015).

[2] Hanseatisches Oberlandesgericht in Bremen, SV Wilhelmshaven e.V. gegen Norddeutscher Fußball-Verband e.V. (30 Dezember 2014) “i) Der Senat sieht weder sich noch den Beklagten durch die Satzung des Beklagten und die darin in Bezug genommene Satzung des DFB daran gehindert, die Ent-scheidung des Beklagten vom 13.01.2014 unter diesem rechtlichen Aspekt zu prüfen und im Hinblick auf die Unvereinbarkeit der der Vereinsstrafe zugrunde liegenden Festsetzung der Ausbildungsentschädigung mit Art. 45 AEUV die Rechtswidrigkeit des angegriffenen Zwangsabstiegs der ersten Herrenmann-schaft festzustellen. Im Gegenteil war der Beklagte verpflichtet, die „umzuset-zende“ Disziplinarentscheidung und den ihr zugrunde liegenden CAS-Schiedsspruch darauf zu überprüfen, ob diesen nicht zwingendes nationales oder internationales Recht entgegensteht.’’

[3] A Rigozzi, ‘International Sports Arbitration: Why does Swiss Law Matter?’ in Citius, Altius, Fortius-Mélanges en l’ honneur de Denis Oswald (2012), 446.

[4]A Duval, ‘The Pechstein ruling of the Oberlandesgericht München - Time for a new reform of CAS?’ (19 January 2015).

[5] A similar example of this situation is the Eco Swiss v Benetton arbitration, which led to the C-126/97 judgement of the Court of Justice.

[6] L Radicati di Brozolo, ‘Antitrust: a paradigm of the relations between mandatory rules and arbitration-a fresh look at the “second look” ’ (2004) 7 (1) International Arbitration Law Review, 31.

[7] Ibid

[8]  For an interesting analysis on the competition law perspectives of the Pechstein case, see N Voser ‘The Most Recent Decision in the Pechstein Saga: Red Flag for Sports Arbitration?’ (22 January 2015)

[9] Decision 4P.267–270/2002 du 27 mai 2003, Lazutina c. CIO, ATF 129 III 445, Bull. ASA 2003, 465

[10] L Mintas, ‘Dr Laila Mintas: Is this the end of CAS arbitration?’ (3 February 2015)

[11] OLG München · Teil-Urteil vom 15. Januar 2015 · Az. U 1110/14 Kart, paras 135 and 137.

[12] L Radicati di Brozolo (n 5) 32.

[13] J Lukomski, ‘Arbitration clauses in sport governing bodies statutes: consent or constraint? Analysis from the perspective of Article 6(1) of the ECHR’ (2013) 13 The International Sports Law Journal, 69

[14] S Netzle, ‘Jurisdiction of arbitral tribunals in sports matters : arbitration agreements by reference to regulations of sports organisations’ in Arbitration of sports-related disputes (1998,  Basel : Association suisse de l'arbitrage) 47

[15] A Rigozzi, ‘L’importance du droit suisse de l’arbitrage dans la résolution des litiges sportifs internationaux’ (2013) Revue de droit suisse 2013, 320.

[16] Ibid

[17] Swiss Federal Tribunal, Francelino Da Silva Matuzalem v FIFA (27 March 2012) 4A_558/2011

[18] P Landolt, ‘Annulment of Swiss International Arbitration Awards for Incompatibility with Substantive Public Policy: First Annulment in over Twenty Years’ (2012) 27 MEALEY’S International Arbitration Report Issue 4, 22.

[19] Swiss Federal Tribunal, Guillermo Cañas v. ATP Tour (22 March 2007) 4P.172/2006 See also, A Rigozzi (n 13), 321-322.

[20] M Baddeley, ‘La décision Cañas: nouvelles règles du jeu pour l’arbitrage international du sport’ (2007)  CAUSASPORT 2007, 161.

[21] A Rigozzi (n 13), 325.

Comments are closed