The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
Yesterday, the European Court of Human Rights (ECHR) issued a Chamber Judgment dismissing allegations from footballer Adrian Mutu and speed skater Claudia Pechstein that the Court of Arbitration for Sport (CAS) is not independent. However, the ECHR confirmed that the CAS’s refusal to hold a public hearing in Peschstein’s case, as requested by her, amounted to an infringement of Article 6 § 1 of the European Convention on Human Rights. The judgment was welcomed by the CAS as recognition that it fulfilled the ECHR’s requirements of independence and impartiality.
However, Mutu and Pechstein have reason to be optimistic about the ECHR judgment. Firstly, two of the seven judges disagreed with the decision to dismiss allegations that the CAS is not independent. Helen Keller and Georgios A. Serghides wrote a lengthly opinion as to why the ECHR should have found that the CAS does not meet the requirements of independence and impartiality required under Article 6 § 1 of the Convention.
Secondly, they argue that although Mutu was judged to have waived his rights under Article 6 § 1 of the Convention, this should not have been considered as voiding his complaint that two of the three of arbitrators who ruled on his case lacked independence. Thirdly, as the ECHR outlined in the first line of its statement, the Chamber Judgment is not final. Under Articles 43 and 44 of the Convention, Mutu and Pechstein are both able to request that the case be referred to the Grand Chamber of the ECHR. Given the powerful dissenting opinion referred to above, this looks likely.
Also, the Summary Judgment appears to raise serious questions about whether the Athlete Agreement can be considered compatible with the European Convention on Human Rights. This is significant because most international federations require athletes to sign such an agreement in order to participate in elite sport. Within most Athlete Agreements is the requirement that athletes agree to resolve all disputes at the CAS.
Before getting to the dissenting opinion, a short recap of what the ECHR is dealing with is perhaps in order. First, let’s consider Mutu’s case.
Mutu’s case involves his 2003 transfer from AC Parma to Chelsea and a 2004 positive test for cocaine. The FA Premier League Appeals Committee (FAPLAC) ruled that this constituted a breach of his contract – scheduled to run until 2008 – and that Chelsea was entitled to seek compensation via the FIFA Dispute Resolution Chamber (DRC). In 2005, the CAS dismissed Mutu’s appeal against the FAPLAC decision.
In 2008, the FIFA DRC ruled that Mutu must pay Chelsea over €17 million. Mutu again appealed to the CAS, which dismissed his appeal. In 2009, he appealed to the Swiss Federal Tribunal, arguing that the CAS had not been independent or impartial in reaching this decision.
He argued that Professor Luigi Fumagalli, President of the CAS Panel that heard his 2008 appeal, had been a Partner in a Milan law firm representing the interests of the owner of Chelsea, Roman Abramovich (Fumagalli refuted this allegation). He also argued that Dirk-Reiner Martens, one of two CAS Arbitrators who heard his appeal against the FIFA DRC ruling, was also a CAS Panel member during his 2005 hearing. The CAS judgment confirms this [Editor’s Note: the ECHR’s statement has this confused].
In a judgment of 10 June 2010 (4A_458/2009), the Swiss Federal Supreme Court dismissed Mutu’s appeal, ruling that the CAS Panel could be considered independent and impartial. An appeal to the ECHR followed.
Pechstein was banned for two years by the International Skating Union (ISU) under Article 2.2 of its Anti-Doping Regulations, after samples of her blood taken during the 2009 ISU Speed Skating Championships showed reticulocytes (immature red blood cells) at 3.49%, 3.54% and 3.38%, returning to 1.37% ten days after the event. These readings were above the ISU’s permitted 2.4% value.
Pechstein found an unlikely ally in her claim that the readings are unreliable. On 27 November 2015, the International Association of Athletics Federations (IAAF) released ‘Response to allegations of blood doping in athletics’ in reply to articles by ARD and the Sunday Times alleging that the IAAF ignored blood doping in athletics from 2001 to 2012.
‘Strenuous exercise leads to a decrease of plasma volume for up to two hours, thereby increasing the HGB [haemoglobin] concentration even though there is no increase in red blood cells, and so causing false positives’, it reads. As it is understood that the the ISU did measure reticulocyte content in haemoglobin immediately after exercise, the IAAF’s statement supported her case.
Setting this potential scientific inaccuracy aside, under the World Anti-Doping Code, a positive sample is not always necessary to establish an anti-doping doping rule violation (ADRV). Comments to Article 2.2 of the 2009 World Anti-Doping Code, which applied at the time, allow ‘use or attempted use of a prohibited substance or method’ to be established ‘by other reliable means, such as…longitudinal profiling, or other analytical information which does not otherwise satisfy all the requirements to establish “Presence” of a Prohibited Substance under Article 2.1’. Such comments are also retained in the 2015 Code, which is currently in force. This allowed the ISU to ban Pechstein based on her 2009 blood values alone.
In 2009, the CAS dismissed her appeal against her two-year ban, a decision which, in 2010, was supported by the Swiss Federal Tribunal. On 15 January 2015, the Munich Court of Appeal (Oberlandesgericht München) declared the Athlete Agreement between Pechstein and the ISU to arbitrate all cases at CAS as void in Germany, due to Pechstein having no choice but to sign in order to compete. It accepted Pechstein’s December 2012 claim for €4.4 million in damages from the ISU, and declared the 2009 CAS decision upholding the ISU’s ban as ineligible in Germany. It also struck out the Swiss Federal Tribunal decision supporting the CAS decision as void in Germany.
However, on 7 June 2016, the Oberlandesgericht München judgment was quashed by the German Federal Constitutional Court. It reasoned that if it were true that the ISU had a monopoly under German competition law, athletes nevertheless accepted and freely subscribed to the agreement to arbitrate cases at the CAS, and such a practice did not constitute abuse of a dominant position. An appeal to the ECHR followed.
Keller and Serghides argue that the ECHR should have upheld Pechstein’s complaint that the CAS does not meet the requirements of independence and impartiality under Article 6 § 1 of the Convention. They state that the independence and impartiality of the CAS raise ‘serious questions’ that merit ‘strict examination’, especially since the CAS ‘is, to a considerable number of professional athletes, the only appeal body’ that has competence to rule on their cases.
‘The majority seems to recognise the “influence” the ICAS [International Council of Arbitration for Sport] exercises on the selection of adjudicators, but at the same time it does not consider that this “influence” could have an impact on the independence and/or impartiality of Arbitrators on the list from which the Arbitration Panels are composed’, reads the dissenting opinion, annexed at the bottom of the Chamber Judgment. ‘The Majority cannot conclude that this “influence” could have an impact on the Arbitrators who decided the dispute in this case. In our opinion, the majority should not have merely justified such reasoning using a simple reference to a Federal Court judgment, which particularly stated: “since the 1994 reform [of the CAS] , the system of lists of adjudicators today satisfies the constitutional requirements of independence and impartiality applicable to arbitral tribunals”.
‘The majority ruling seems to be based on three premises. Firstly, organisations that appoint adjudicators (the International Federations (IFs), the International Olympic Committee (IOC) and National Olympic Committees (NOCs)) all represent a party to the Arbitration; Indeed, they represent sports bodies and non-athletes. The majority itself notes that these organisations are “likely to oppose the athletes during any litigation before the CAS” (paragraph 154 of the judgment). Thus, the majority concedes that there is a divergence of interests between organisations on the one hand and the other athletes.
‘Secondly, the majority of the ICAS and CAS are representatives of these organisations. As for the ICAS, 12 (that is to say three-fifths) of its members are appointed by the organisations. Four additional members (i.e. one fifth of its members) are elected by the 12 members appointed by the organisations. These sixteen members elect, in turn, the four remaining members. It follows from the foregoing that the organisations have a significant influence on the composition of the ICAS (paragraphs 32, 153 and 154 of the judgment).
‘As regards the CAS at the present time, the ICAS elected three-fifths of its members on the basis of a list, which was directly submitted by organisations (the same organisations that have considerable influence on the composition of ICAS). The remaining two-fifths of the CAS members were either charged with representing the interests of athletes (one fifth) were either independent experts (one fifth).
‘Only a fifth of the members of the CAS could therefore at best be considered independent vis-à-vis these organisations, individuals in this fifth being additionally selected by the ICAS, an organ that is under the influence of the aforementioned organisations. This situation calls into question not only the independence and impartiality of the independent experts appointed by the ICAS, but also those of individuals to represent the interests of the athletes.
‘Because of the way members of the CAS and the ICAS are appointed, we agree with the majority that the two bodies are under the influence of organisations. However, we consider the indirect influence of these organisations to be considerable. First, the ICAS controls the stability of CAS members, that is to say that even if these members are appointed for a term of four years, they may be removed at any time by the ICAS on the basis of a decision “summarily motivated” (paragraph 155 of the judgment).
‘In addition, the speakers of both houses of the CAS are also members of the ICAS. If the parties fail to agree, it is their responsibility to appoint the chairs of Arbitration Panels. Third, the system of so-called “closed lists” has meant that athletes are forced to choose their Arbitrator from among those selected by the ICAS. The argument advanced by the Federal Court that “the system [of open lists] carries the risk that there is, in the court, one or more non-specialised arbitrators inclined to act as if they were lawyers for the parties that appointed them” (paragraph 44 of the judgment) is not convincing. Indeed, in more technical areas – such as the pharmaceutical industry or aviation – the parties can choose their arbitrator freely without this problem.’
Keller and Serghides are also critical of the fact that the ECHR majority found that as Mutu had voluntarily appealed to the CAS despite having the opportunity to appeal to a State court, his complaints about the impartiality of the CAS must be dismissed. ‘The majority accept that Mr Mutu has not “unequivocally” given up his rights under Article 6 § 1 of the Convention’, it reads. ‘In our opinion […] it hardly seems conceivable that an individual can waive his rights to an independent and impartial tribunal and this case still be considered a “fair trial” under Article 6 § 1 of the Convention’.
As mentioned, this is unlikely to be the end of the story for either the Mutu or Pechstein cases. This is because:
• The Chamber Judgment outlines that the parties involved in the decision can request that the case be referred to the Grand Chamber of the ECHR;
• there is a powerful dissenting opinion from two of the seven ECHR judges that outline the reasons why such a referral may be considered;
• although the judgment dismissed Mutu’s allegations that two of the Arbitrators that considered his case were not impartial, it could not reach a conclusion on the wider question of whether the composition of the List of Arbitrators that adjudicate CAS cases is impartial – the dissenting opinion argues that this doesn’t equate to the ECHR’s conclusion that the List system ‘met the requirements of independence and impartiality applicable to arbitration courts’.
As mentioned, the ECHR Chamber Judgment also raises serious questions about whether the Athlete Agreement can be considered compatible with the European Convention on Human Rights. This is recognised in the CAS response to the Judgment, which reads: ‘The ECHR recognizes that a non-State dispute resolution mechanism of first and/or second instance, with a possible appeal, even limited, before a State court, as a last instance, is appropriate in this area (of international sport)’.
The origin of the requirement for athletes to submit all disputes to arbitration at the CAS at the exclusion of State courts lies in a Bye-law 6 to Article 44 of the Olympic Charter, which reads as follows: ‘All participants in the Olympic Games in whatever capacity must comply with the entry process as prescribed by the IOC Executive Board, including the signing of the entry form, which includes an obligation to (i) comply with the Olympic Charter and the World Anti-Doping Code and (ii) submit disputes to CAS jurisdiction’. This position is strengthened by Article 13.2 of the World Anti-Doping Code, which requires any signatory to accept the jurisdiction of the CAS.
The reason why arbitration is necessary in sport is referred to by Jonathan Taylor of Bird & Bird in this article. ‘With all sports rules that apply globally, it is critical to obtain a definitive ruling from one authoritative body, rather than a range of different decisions from different courts and tribunals across the globe, which would lead to uneven application of the rule and so deny athletes a level playing field’, he writes. ‘And the Court of Arbitration for Sport has been set up to be that authoritative body’.
This requirement to arbitrate sporting disputes is based on a concept known as the ‘specificity of sport’. According to the European Commission, this ‘refers to the inherent characteristics of sport which set it apart from other economic and social activities, as recognised in the amended Treaty of the European Union in 2009’. The Treaty on the Functioning of the European Union (TFEU) states that the European Union ‘shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and educational function’.
It would appear that the Chamber Judgment calls this entire concept into question, by stating that athlete consent to such arbitration is not freely given, and is therefore not compatible with Article 6 § 1 of the Convention. The Judgment outlines that the only option open to Pechstein was ‘either to accept the arbitration clause […] or refuse the clause and be obliged to give up her professional activities completely’.
The ECHR statement also reads: ‘the Court held that the questions concerning the merits of the sanction imposed on the second applicant for doping, discussed before the CAS, required a hearing that was subject to public scrutiny’. This appears to suggest that the merits of certain sanctions imposed on athletes for doping require a hearing that is subject to public scrutiny.
How CAS arbitrators will be able to determine whether certain doping cases require a public hearing and others do not remains to be seen. It could mean that athletes accused of doping based on intelligence-led investigations, now a requirement under Articles 5.1.2 and 5.8 of the World Anti-Doping Code, are more likely to request a public hearing at CAS. It could also mean that in certain cases, athletes are entitled to bring disputes before State courts – especially as it would appear that their Athlete Agreement, binding them to arbitration at the CAS, is invalid.
The CAS has every right to welcome the ECHR Summary Judgment as a moral victory. However, what happens next is sure to be watched closely by sports law experts. It would appear that sporting federations cannot bind athletes to agreements that require them to arbitrate solely at the CAS, as such agreements are now considered an infringement of Article 6 § 1 of the Convention.
As the dissenting opinion hints at, sport is not the only section of civil society that has an international dimension – especially in today’s information age. Why it should be allowed to operate its own arbitration system at the exclusion of other legal systems has yet to be unequivocally confirmed by a judicial body. It would appear that in certain cases, athletes can now knock on the doors of a State court.
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