The Pechstein ruling
Oberlandesgericht (OLG) München rocked the sports arbitration world earlier
this year (see our initial commentary of the decision here and a longer version here). The decision has been appealed to the German
Bundesgerichtshof (BGH), the highest German civil court, and the final word on
the matter is not expected before 2016. In any event, the case has the merit of
putting a long-overdue reform of the Court of Arbitration for Sport (CAS) back
on the agenda. The last notable reform of the structure and functioning of the
CAS dates back to 1994, and was already triggered by a court ruling, namely the
famous Gundel case of the Swiss Federal Tribunal
(SFT). Since then, the role of the CAS has shifted and its practical
significance has radically changed (the growth of CAS’s caseload has been exponential). It has become the most visible
arbitration court in Switzerland in terms of the number of awards appealed to
the SFT, but more importantly it deals with all the high-profile disputes that
arise in global sport: think, for instance, of Pistorius, the recent Dutee Chand decision or the upcoming FIFA
In response to the Pechstein ruling,
the CAS issued a press release claiming “that the findings of the Munich Appeals Court
[the OLG] 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”.
The CAS administration implied that the decision would have been different if
the OLG had taken into account the current rules. This is a slightly misleading
statement. The OLG’s reasoning as to the CAS’s lack of independence was based
on various features of CAS procedure that are still in place today, most notably
the composition of the CAS governing body: the International Council of Arbitration for Sport (ICAS). In the same press release,
the CAS emphasizes that “[i]t is always prepared to listen and analyze the
requests and suggestions of its potential users i.e. the athletes, sports
federations and other sports entities, in order to continue its development
with appropriate reforms”. If it is to avoid a true revolution targeting (and
potentially destroying) CAS arbitration, it should better put its money where
its mouth is and urgently initiate an inclusive and participative reform procedure.
Such a reform process ought to bring to the table not only the Sports Governing
Bodies (SGBs), as was the case after the Gundel
ruling, but also representatives of athletes and public authorities.
This long blog post aims at
providing a blueprint to start thinking about how to reform the CAS. It will
highlight the key issues that need to be discussed and make 10 preliminary (and
necessarily incomplete) proposals. Three pillars for a reform of
CAS are identified: independence, transparency and access to justice.
The Pechstein ruling of the OLG
focuses mainly on the question of the independence of the CAS (and chiefly the
ICAS). This is not a new matter of concern. Over the years, there has been
mounting academic scholarship putting this independence into doubt.
However, the SFT sided with the CAS and shielded it from challenges, until the
OLG München begged to differ. In fact, ensuring independence ought to be the
fundamental objective of any future reform of the CAS. In my view, this is not
so much about securing the institution’s financial
independence from the SGBs, nor should the CAS’s financial reliance on the SGBs
be seen as a big threat to its independence, as long as its management is truly
independent. Indeed, it is the SGBs’ duty, in the interest of sports, to
finance the CAS via a form of tax on their revenues. The true issues to be tackled in relation to
independence arise from the composition of the ICAS, the identity and role of
the President of the CAS Appeals Division and the closed list of arbitrators.
Independence of ICAS
The ICAS is the body in charge of
taking the most significant institutional decisions in the life of the CAS. It
decides, in particular, who gets to be a CAS arbitrator,
who gets to be the president of the CAS appeal division,
and who gets to be the secretary general of the CAS.
It also rules on challenges to the independence of arbitrators.
In short, the ICAS decides all the main institutional matters which have a
decisive influence on the broader legal orientations of the CAS and its
jurisprudence. This powerful body, sitting quietly at the top of the CAS, is
all but independent. Three fifths of its current members are selected by the
SGBs, and that group, in turn, selects the remaining two fifths of the members.
It is natural that the SGBs would pick individuals who share their views on the
application of their rules and more broadly their mindset in relation to the
management of sports. Thus, many ICAS members have had (or still have) a career
inside national and international SGBs, and several among them have acted as
legal advisors to the SGBs.
The President of the ICAS himself, John Coates, is the Vice-president of the
IOC. Can you imagine, for example, the Vice-president of the United States
presiding at the same time over the Supreme Court? How can such a homogenous
group of people be deemed independent from the collective interest and views of
the members of the Olympic movement? Simply put, it can’t and it isn’t. This is
the crux of the OLG’s decision in Pechstein and it is extremely difficult not
to be convinced by it.
Recommendation 1: Change the selection procedure for ICAS members, with
SGBs to select 4 members, athletes’ representatives to select 4 other members,
and those 8 members together jointly selecting the remaining 12 members.
Recommendation 2: Impose a strict regime governing conflicts of interest
for ICAS members. ICAS members should forego all their mandates within the SGBs
and sever all contractual and other ties susceptible of giving rise to a
conflict of interest.
Independence of the President of the Appeals Division
The Appeals Division of the CAS is
for our purposes (as well as in quantitative terms) the only one that truly
matters. Indeed, it deals with all the disputes related to doping and transfer
cases, but also those arising from disciplinary sanctions imposed by the SGBs
and their political decisions. In short, the appeals procedure transforms the
CAS in the ‘Supreme Court of World Sport’ as the saying goes. In Pechstein, the OLG was particularly
troubled with the way in which the president of each appeal panel is selected.
Basically, as provided by article R54 of the CAS Code,
the president of the Appeals Division decides who is to be the president of a
specific appeal panel. He or she will consult the arbitrators nominated by the
parties, but their suggestions are not binding. In fact, especially when they
disagree, the Division President is the one that decides who is to chair the
panel, and, thus, who is most likely to tilt the balance in one direction or
another. Consequently, the President of the Appeals Division occupies probably
the most important and powerful position at the CAS. You wouldn’t guess who was
occupying this position until 2013…Thomas Bach, the current IOC President. The
current holder is Ms. Corinne
Schmidhauser, herself a President of Antidoping Switzerland and a member
of the Legal Committee of FIS (Fédération Internationale de Ski). Athletes
challenging an anti-doping decision cannot be expected to believe in the
independence of a panel which has been composed, to a significant (decisive)
extent, by someone so directly involved in the anti-doping fight and thus necessarily
and inevitably partisan of the work done by anti-doping authorities.
The position of head of the CAS
Appeals Division is so crucial, that it cannot be occupied by anybody who is
closely connected to any one side of the sporting world. The designation
process must ensure that the person selected is universally perceived as
independent and impartial. Only by ensuring that he or she has no direct and
personal, contractual or financial links with the SGBs can the CAS preserve its
independence and legitimacy.
Recommendation 3: Impose a regime of incompatibilities to the President
of the Appeals Division. He or she must accept to forego all his or her
mandates within the SGBs and sever all contractual ties susceptible of giving rise
to a conflict of interest.
Independence of individual arbitrators
The final, most often discussed, yet
in my view less important, point concerns the independence of individual CAS
arbitrators. The OLG München pointed out that it is not against a closed list
of CAS arbitrators. However, the fact that under the current procedures the
arbitrators are selected by a structurally biased ICAS was seen as highly
problematic. Even more so due to the lack of transparency as to who had
proposed the nomination to the CAS under the pre-2010 rules. Closed lists of
arbitrators are a relatively rare occurrence in international arbitration,
nonetheless it does make sense to introduce a qualitative limit to who is
deemed sufficiently qualified to become an arbitrator in a specific sector, where
disputes can raise rather complex “technical” or scientific issues, such as
sport (think of some anti-doping cases). This is especially so because CAS
arbitration, contrary to commercial arbitration, is mandatory in essence and
aims more at providing legal certainty in the global sports sector than at
solving individual disputes. This calls for enhanced stability in the judicial
personnel. In this regard, some have suggested providing tenure and a fixed
wage to CAS arbitrators.
This might be difficult to put in place logistically, at least for now, though
it is not necessarily a bad idea in the long run.
Be that as it may, implementing such
measures would still not exonerate the CAS from having to deal with some of the
acute problems that arise regarding the independence of CAS arbitrators
included on the list. In particular, the phenomenon of so-called repeat arbitrators,
ie arbitrators who are nominated several times by the same party, poses a real
danger. In such cases, the party that is frequently involved in disputes before
the CAS has an edge over the other party because it knows which arbitrator is
more susceptible to favor its cause. One way to avoid this bias would be to
clearly limit the number of times an arbitrator can be selected by a specific
party. Moreover, to put the parties on an equal stand, the CAS would need to
publish detailed information on arbitrators’ past nominations (in this regard,
see also point II.a. below). Finally, the ICAS should exercise a more stringent
standard of control over the independence of individual arbitrators in case of
challenge. Nevertheless, if the list is drawn by an independent ICAS and the
parties have the possibility to know better the record of each arbitrator and
have a true ability to challenge them in case of doubt, the existence of a
closed list does not seem to be as such a structural limitation to the
independence of the CAS.
Recommendation 4: Limit the number of times an arbitrator can be
nominated by a specific party (e.g. 5 times during his or her four-year mandate).
Recommendation 5: CAS to provide detailed information on each
arbitrator’s past nominations.
Recommendation 6: ICAS to exercise a more stringent control over the
independence and impartiality of CAS arbitrators in case of challenge.
The OLG in Pechstein did not tackle the question of the lack of transparency
of the CAS. Yet, some authors have insisted that as the jurisdiction of CAS is
mandatory for athletes wanting to participate in international competitions (as
the Olympic Games or, as in Pechstein’s case, the world championships) its
processes should abide by the standards of the European Convention of Human
In this regard, the independence of the arbitrators is important, but also the
transparency of the judicial process.
Information on arbitrators
First, as discussed above, there is
a lack of transparency as far as the arbitrators are concerned. The list of CAS
arbitrators on the CAS website gives too little substantial information for
parties to be comprehensively informed on the arbitrators’ personal
jurisprudential record. Here again, due to the phenomena of repeat-players,
information asymmetries are indirectly promoted. The parties, mainly SGBs,
which have been involved in many CAS arbitration proceedings will typically
dispose of an internal database tracking the different positions of CAS
arbitrators as they have access to the raw data. The majority of athletes, who
are not supported by a strong legal team, will be unable to rely on the same
knowledge and will necessarily be in an unfavorable position compared to the
SGBs. This calls for full transparency regarding the profile and record of each
CAS arbitrator. Similarly, the CAS lacks mandatory disclosure rules regarding
the arbitrators’ biographical details.
Each arbitrator should have to disclose, in the information included on the CAS website, their past (for example over the last 5
years) and/or present contractual relationships, or other significant personal
or financial ties with SGBs and any other relevant stakeholder in sport.
Recommendation 7: CAS to impose more stringent ex ante disclosure rules imposing that each CAS arbitrator
discloses on the CAS website all present and past (previous 5 years)
contractual links with SGBs and other sport stakeholders.
Publication of CAS awards
What is even more important, also because
it would enable the parties and external observers to better check the
independence and evaluate the track record of arbitrators, is the systematic
publication of CAS awards. Nowadays, the CAS publishes only a limited sample of
all the awards rendered by the Appeals Division. Indeed, article R59 CAS Code
provides that “[t]he award, a summary and/or a press release setting forth the
results of the proceedings shall be made public by CAS, unless both parties
agree that they should remain confidential”. It is true that compared to commercial
arbitration the CAS is relatively transparent. Yet, commercial arbitration is
the wrong benchmark, as the CAS’s function is more akin to that of a court of
law. The secrecy might be acceptable, though it remains hotly debated, when two
multinationals decide to settle their dispute via arbitration. This state of
affairs is, however, totally unsatisfactory in the context of a forced
arbitration process. CAS draws its legitimacy from the necessity to provide a global
level playing field to settle disputes arising out of international sport. This
might be a valid justification to impose the global jurisdiction of the CAS,
but in return it must also entail that CAS has the duty to publish all the
decisions it renders. This, in fact, could be very easily achieved by amending article
R59 CAS Code and by simply deleting its final sentence indicating that the
award is published “unless both parties agree that they should remain
The full publication of CAS awards
is a necessity to secure the equality of arms of the parties to CAS
arbitration. Indeed, in the current situation, some actors, often SGBs, have
access to much greater pools of CAS awards, which they can refer to, thus
improving their chances of prevailing. In contrast the general public and the
athletes are unable to critically assess and use the many awards that remain
unpublished and therefore inaccessible. A transparent access to all appeal
awards is a vital question of procedural justice, and a crucial development in
order to subject the CAS and its judicial work to the critical scrutiny of the
global public sphere.
Recommendation 8: CAS to systematically publish on its website all the
CAS awards rendered following the appeal procedure.
Publication of administrative documents
The CAS is extremely reluctant to
publish internal administrative material. In other words, nobody knows
precisely the financial records of the CAS or the precise content of the
discussions happening inside the ICAS. This is not compatible with the very
public function played by the CAS in global sports. With great power, comes
great responsibility. Transparency, as a tool serving enhanced public scrutiny,
is a key element of CAS’s accountability. Thus, it is important that the CAS
adopts transparent administrative practices. It should, for example, publish
the minutes of the ICAS meetings and its annual reports.
Recommendation 9: CAS to systematically publish on its website all the
key administrative documents (such as the minutes of ICAS meetings and its
Access to Justice
Finally, and this is largely
overlooked by many, the CAS has a problem with access to justice.
CAS proceedings are too expensive for many athletes who are not part of the 1%
elite of superstars. Article R64.1 CAS Code provides that « [u]pon
filing of the request/statement of appeal, the Claimant/Appellant shall pay a
non-refundable Court Office fee of Swiss francs 1,000 ».
Moreover, the parties must pay an advance on the costs of arbitration and bear
the costs of their own witnesses, experts and interpreters.
Unless the dispute involves a decision by an international federation in
an appellant will have to bear the costs of the arbitration process, usually
several thousands Swiss Francs. Athletes end up in a double bind: they are often
constrained to go to the CAS by a mandatory arbitration clause, but cannot
afford to do so properly. In recent years, the CAS has started to tackle the
issue by introducing two mechanisms: a pro-bono
list of CAS lawyers and a procedure granting legal aid to athletes in financial hardship. These
steps certainly go in the right direction, but as some with hands-on experience
have pointed out,
they are still too small and uncertain. Athletes, especially in doping cases,
are faced with disputes which require costly scientific investigations, experts
must be recruited etc. Thus, they can be forced to waive their access to the
national courts (and state legal aid), only if the CAS provides sufficient
financial means for them to dispose of a fair chance to present their case, ie
to “have their day in the CAS”. It is again a question of equality of arms;
SGBs are way richer and enjoy substantial economies of scale thanks to their
repeat player status. This potential inequality before sporting justice runs
counter to the very essence of a fair process, and should be remedied. This
will be possible only if the SGBs which provide for CAS arbitration in their
regulations accept to take on a larger share of the costs of CAS proceedings, for
instance by paying a levy corresponding to a specific share of their revenues. Recommendation 10: CAS to fund, through a levy on the SGBs, a more comprehensive
and accessible legal aid scheme for appellants to the CAS that lack sufficient
ConclusionGlobal sport is at a turning point, this time is different, it is truly about “reform or revolution”. As FIFA and IAAF sink more and
more into chaos, it becomes clear that one of the sporting challenges of the 21st
century will be to democratize and check the massive transnational
organizations fuelled by TV and sponsoring money that govern global sport. To
this end, the CAS has a key role to play. For example, it will most probably be
reviewing the ban imposed by the FIFA Ethics Committee on Michel Platini. More
generally, the CAS could become a sort of global constitutional court for
sport, reviewing the legislative and administrative decisions of the SGBs.
However, this metamorphosis will be realistic only if CAS itself is reformed to
match the level of independence, transparency and accessibility needed to
ensure its legitimating function. This is exactly the spirit of good governance
endorsed by the IOC’s Olympic Agenda 2020 that should guide the whole Olympic
movement in the coming years.
Now is not the time for the CAS to
put its head in the sand and pray for the BGH to overrule the OLG in the Pechstein case. Sure, that might happen.
Yet, the BGH cannot magically erase the fundamental questions that have been
raised by the lower courts as the case made its way into its docket. It will
only be a matter of time for those same questions to pop up again in another
judicial forum (be it the ECHR or the CJEU). The independence of ICAS, and
therefore of the CAS, is simply too fragile and urgently needs to be buttressed.
Let’s not just wait, comme si de rien
n’était, for the revolution to come. Now is the time for all interested
parties (CAS, SGBs, athletes, public authorities) to come together and shape a
comprehensive reform of the CAS that must be guided by the will to ensure a
stronger independence, greater transparency and broader access to justice.