The Pechstein case : The beginning of the end for the Court of Arbitration for Sport ?Published 23 March 2015
On Thursday 12 March, the ASSER Institute hosted a Lunch and Learn on the recent Pechstein ruling of the Oberlandesgericht (OLG) München challenging the legal fundaments of sports arbitration. Participants included members of FIFPro, CAS arbitrators and a number of experienced sports lawyers. The main speaker was Antoine Duval (Senior Researcher in European and International Sports Law at the ASSER Institute), followed by expert comments from Prof. Dr. Vesna Lazic (Senior Researcher for Private International Law) and Marco van der Harst (Phd Researcher in European and International Sports Law at the ASSER Institute).
Antoine comprehensively introduced the factual and procedural elements of the case and provided a detailed analysis of the legal reasoning used by the LG and OLG München in the case. Henceforth, he examined the challenges they pose for the legal underpinnings of the Court of Arbitration for Sport (CAS), especially with regard to the consent to CAS arbitration and its institutional independence. Finally, he suggested four potential legal outcomes for the dispute in front of the Bundesgerichtshof (Highest German Civil Court) and a set of potential institutional reforms of the CAS that are deemed necessary to respond to the weaknesses pointed out by the German courts.
This presentation was followed by two extensive comments by Vesna and Marco. Vesna focused her talk on the lessons to be drawn from general arbitration law in the context of the Pechstein case, with a specific emphasis on the validity of arbitral agreements in favour of the CAS. While, Marco discussed the particular role of public policy exceptions, and more particularly EU law based public policy exceptions, in the framework of the Pechstein and SV Wilhelmshaven case. Thus, laying out a potential legal strategy to challenge the recognition and enforcement of CAS awards in EU Member States if the former were to violate mandatory provisions of national and EU law, in particular public policy.