The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG.
The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration.
Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the well-known facts of both cases, in order to focus on the core findings of the decision.
As many of you will know, longstanding doctrinal debates have been raging on the question whether athletes freely consent to CAS arbitration1. I have argued at length that CAS arbitration is fundamentally post-consensual arbitration and I am obviously quite happy to see the ECtHR endorsing this view today. However, this is not true in all CAS cases: ordinary arbitration often involving commercial disputes will most likely be consented to by both parties. Moreover, as will be discussed below, the ECtHR choose to distinguish between Pechstein and Mutu in its assessment of the free consent to CAS arbitration.
Regarding Pechstein, the key paragraphs of the decision are found between §109 and §115. The Court finds that the International Skating Union (ISU)’s regulations were imposing CAS’ jurisdiction for disciplinary matters (§109) and that Pechstein was forced to accept the arbitral clause if she was to participate in ISU competitions (§110). In this context, it refers to the famous holding of the Swiss Federal Tribunal in the Cañas decision acknowledging the forced nature of arbitration in sport (§111) and to the ISU decision of the European Commission finding that the ISU is in a quasi-monopolistic position on the market for the organisation of speed skating competitions (§112).
This leads to the key deduction by the Court, that Pechstein’s choice in the present case ‘was not to participate in one competition instead of another, depending on her acquiescence or not to the arbitral clause’ (§113). Thus, her case is not deemed analogous to the commercial arbitration cases handled previously by the ECtHR. Instead, the Court holds that ‘[i]n light of the effects that a non-acceptance of the arbitral clause would have on the professional life of the claimant, one cannot assert that the latter has accepted the clause in a free and non-equivocal fashion’ (§115). Hence, the Court concludes, ‘even though the clause was not imposed by law but by the regulations of the ISU, the acceptance of the jurisdiction of the CAS by the claimant must be understood as a “forced” arbitration in the sense of [the Court’s] jurisprudence’ (§115). Thus came to an end a never-ending doctrinal debate on the consensual nature of CAS arbitration, at least when the CAS clause is imposed by a dominant SGB as a condition to participate in sports competitions.
Interestingly, the Court distinguished Mutu from Pechstein. Indeed, the Court notes ‘the situation of [Mutu] is different from [Pechstein’s] because the applicable regulation of the sporting federation [FIFA] involved did not impose arbitration but left the choice of dispute resolution mechanism to the contractual freedom of clubs and players’ (§116). Mutu invoked the imbalanced between clubs and players to argue that he was forced to accept the clause. Yet, the Court rejects this line of arguments on the basis that he failed to provide evidence supporting the fact that all the players at Chelsea had accepted an arbitration clause or that no other club would have recruited him without the insertion of an arbitration clause into his employment contract (§117-119).
The Court concludes that contrary to Pechstein, Mutu ‘has not demonstrated that the only choice available to him was to accept the arbitration clause to be able to earn a living through the professional practice of his sport, or to refuse it and renounce altogether his professional career’. Hence, the Court considers that Mutu’s situation is not a case of ‘forced’ arbitration (§120).
Nonetheless, the Court’s assessment of the consent to arbitration is quite strict: not only should the consent be free, it must also be unequivocal. In other words, by freely opting for the jurisdiction of CAS instead of the national courts, Mutu must ‘have renounced in full awareness the right to have his dispute with Chelsea decided by an independent and impartial tribunal’ (§121).
In the present case, as Mutu challenged the independence and impartiality of the CAS arbitrator nominated by Chelsea, the Court considered that one cannot take for granted that he had renounced unequivocally to contest the independence and impartiality of the CAS in a dispute involving Chelsea (§122). This part of the judgment has potentially extremely wide implications beyond sports arbitration, as the Court seems to indicate that any challenge to the independence or impartiality of an arbitrator could harm the validity of an arbitration clause freely consented to by the parties.
In conclusion, after this decision it will be very difficult to argue that disciplinary cases (e.g. doping cases) submitted to the CAS through the appeal procedure are grounded in free consent. Nonetheless, as pointed out by the Court in § 98 of the ruling, there are good post-consensual foundations to justify forced CAS arbitration. This post-consensual arbitration might come as a surprise to some, but law is fundamentally a pragmatic practice of social ordering, which is flexible enough to adapt to specific realities.
The fact that in the world of sport a type of transnational authority is exercised by a network of (mainly) Swiss associations, which submit their final disciplinary decisions to the mandatory review of the CAS, might be necessary to ensure that international sporting competitions take place on a level playing field. However, and this is the great virtue of the present judgment, CAS will not be allowed to hide behind a fictitious arbitration label to escape full compliance with the procedural rights enshrined in Article 6 § 1 ECHR
The most important consequence of the Court’s recognition that CAS arbitration was forced in the case of Pechstein and equivocal in the case of Mutu is that CAS has to fully comply with the fundamental procedural rights guaranteed by Article 6 § 1 ECHR (in particular its civil limb, see the ECHR guide on Article 6). Specifically, the Court focused on the publicity of hearings and the independence of the CAS.
Regarding the former it concluded, rightly in my view, that the lack of publicity of Pechstein’s hearing violated the ECHR. However, I (and more importantly two judges of the ECtHR) do dissent from the Court’s finding that the CAS is sufficiently independent vis-à-vis the SGBs.
The CAS is, at the same time, one of the globe’s most famous and secretive transnational courts. Every sports fan around the world knows it and many journalists follow its press releases and skim through its awards (when published). Based on citations in the media, it is probably one of the (if not the) most covered and publicly discussed international courts, and yet it is also the most secretive.
The publicity of hearings and judgments of national and international courts is the norm around the world, and confidentiality an exception reserved to cases in which the security and/or the privacy of an individual might call for it. In scholarship, the transparency of the CAS is often favourably compared to commercial arbitration as it publishes some (systematically less than 30%) of its awards. Yet, as is readily acknowledged by this judgment, the true comparison should be made with national and international courts, as the jurisdiction of the CAS is not grounded on free consent.
In practice, the Court found that in the Pechstein case, the CAS should have organised a public hearing as Pechstein expressly requested. Indeed, the Court points out that ‘the questions discussed in the framework of the challenged procedure – which related to the question whether the claimant was rightly sanctioned for doping, and for which the CAS heard numerous experts – necessitated the organisation of a hearing under the control of the public’ (§182). The Court notes in support of its finding that ‘there was a controversy over the facts and that the sanction imposed on the claimant had a ignominious nature, which was susceptible to damage her professional reputation and credibility’ (§182). It concludes that the lack of publicity of the debates before the CAS violates Article 6 §1 ECHR.
This is a first important step towards imposing more transparency at the CAS (I have argued for radical transparency in a presentation at the Play The Game conference last year). Yet, the decision of the Court is not without ambiguity: will the CAS have to hold public hearings only when requested by the parties or should it systematically hold public hearings and revert to confidentiality only in exceptional circumstances?
The existing case law of the ECHR points, in my view, to the latter alternative, but even the former would be a big leap forward for the CAS. Indeed, the a minima reading (read also on this issue the outstanding blog by Nick de Marco) of the judgment implies that the CAS will have to organise a public hearing if requested by one of the parties. In any case, a waiver of such a hearing will need to be freely consented to.
Furthermore, and this was not touched upon in the present decision, Article 6 §1 ECHR also obliges the CAS to publicise judgments once adopted, with only the narrowest of exceptions. Currently, CAS is clearly in contravention with this obligation, as it does not systematically publish its (appeal) awards. This fundamental lack of transparency will have to be remedied quickly if the CAS is to operate in conformity with the present judgment.
The final, key, aspect of the judgment concerns the Court’s findings related to the independence and impartiality of the CAS. Under Article 6 § 1 ECHR, a case must be heard by an independent and impartial tribunal.
It is, at least in my eyes, highly doubtful whether the CAS should be considered as such, yet the Court decided otherwise. This decision was strongly challenged in a dissent by two judges (including quite ironically the Swiss judge). I will first present the key parts of the analysis of the Court and then provide a critique of my own to the Court’s holdings. I believe the most important question is not related to the independence or impartiality of the individual arbitrators involved in the Mutu and Pechstein case, but concerns the structural independence of the CAS from the SGBs, and I will thus focus only on the latter.
The key holdings of the Court are found at §§151-158 and concern only the Pechstein leg of the ruling, as only she challenged the structural independence of the CAS. The Court holds first that the CAS’s financial dependence on the Olympic movement is not problematic because analogically, the State finances national courts (§151).
It reminds that back when the Pechstein case was heard in 2009, the International Council of Arbitration for Sport (ICAS) was nominating one fifth of the arbitrators having the interest of the athletes in mind, while being itself composed mainly of individuals affiliated with SGBs susceptible to face proceedings against athletes at the CAS (§154). Moreover, the Court stresses that arbitrators were nominated for a term of four years renewable, without limits on the number of terms, and the ICAS had the power to revoke an arbitrator by a summarily motivated decision on the basis of article R35 of the CAS Code (§155).
Nonetheless, the Court finds that Pechstein did not provide concrete elements challenging the independence and impartiality of any of the 300 arbitrators on the CAS list at the time (§157). In the crucial part of the decision, the Court acknowledges that while ‘it is ready to recognise that the organisations susceptible to face the athletes in the framework of the disputes brought before the CAS were exercising a real influence on the mechanism of nomination of the arbitrators in place at the time, it cannot conclude that, only on the basis of this influence, the list of arbitrators was composed, even in majority, of arbitrators who could not be deemed independent or impartial, individually, objectively or subjectively, from the said organisations’ (§157). Henceforth, the Court decides that it has no reason to diverge from the assessment of the Swiss Federal Tribunal regarding the independence of the CAS.
In my view, the Court is right on one point. The financing of the CAS by the SGBs is not per se threatening the independence of the CAS and should actually be welcomed as an adequate form of quasi-public financing of sporting justice. However, this is true only if the ICAS and the CAS administration are stringently separated from the bodies that are supposed to be checked by the CAS and whose decisions it is reviewing.
Quite paradoxically the Court recognises the influence of the SGBs on the ICAS, which was evident at the time the Pechstein case was heard and is still apparent nowadays (the SGBs nominate 12 individuals out of the 20 members of the ICAS and the ICAS is headed by an International Olympic Committee Vice President), but it does not deem it sufficiently problematic to challenge the independence and impartiality of the CAS. This is a strange conclusion for a Court specialised in procedural justice (for a similar perplexity see §§ 7-10 of the dissent).
The ICAS does not only control who gets to be appointed as a CAS arbitrator, it also controls who gets to preside over the Appeal and Ordinary Divisions of the CAS, and who gets to be appointed as CAS Secretary General. All of this happens without any minutes of the ICAS meetings being published, thus without any transparency on the reasons that led to the appointment of X over Y.
This alone should have pushed the ECtHR to have some serious concerns over the appearance of control by the SGBs over the ICAS and, therefore, over the CAS. Moreover, and what I feel is the major argument speaking against CAS’s independence from the SGBs, even if one accepts the Court’s point that an athlete will be able to find a CAS arbitrator on the list who is not biased, in appeal cases the President of the panel will be ultimately nominated by the President of the Appeals Division.
Thomas Bach, now President of the IOC, was the President of the Appeals Division from 1994 to 2013, since then Corinne Schmidhauser, who is the President of AntiDoping Switzerland and a member of the Head of the Legal Committee of Swiss Ski has taken over his former position.
While it is often argued that if the parties agree on a President, the President of the Division will merely ratify their choice (§ 127), the issue is that one side (the SGBs) will be in a strong position to impose a name to the other (the athletes). Indeed, the SGBs bargain in the shadow of a final decision by the President of the Appeal Division, be it Thomas Bach or Corinne Schmidhauser, who was and still is clearly biased in their favour.
This simple institutional set-up, easy to reform but still in place, is the Gordian knot of the control of SGBs over the CAS. The Court simply ignored this argument (as did the BGH in 2016, triggering an attempt at a revision of the judgment), which was raised by Pechstein’s lawyers (§ 124). In doing so, it decided to side with a system that is at odds with the core of its own jurisprudence on the independence and impartiality of tribunals, as powerfully outlined by the dissent. Maybe the Court felt it had already done enough and it did not want to destabilise the CAS further, but it certainly missed a great opportunity to provide a fairer judicial process to thousands of athletes worldwide.
A few years ago, in a presentation on the Pechstein ruling of the Oberlandesgericht München, I wondered whether the case was the beginning of the end for the CAS or (more optimistically) the end of the beginning. By the latter, I meant that the CAS would enter into a new dimension with the decision. This new era was, unfortunately, delayed by the surrealist judgment of the BGH, which the ECtHR has in my view partially corrected with this ruling.
As from this decision, the CAS will no longer be able to claim that it is an arbitral tribunal legitimated through the free consent of the parties. The ECtHR has shattered, forever, this fiction. It did not replace it with a clear alternative foundation, however.
In fact, the CAS is not a product of national law or of an international treaty. It is, instead, simply the artefact of transnational power and of the necessities of global sports governance. At the same time as the ECtHR recognised its usefulness and existence, it also held that it ought to be tamed too. This is the meaning of the Court’s finding that CAS must comply (like any national court in Europe) with the requirements of procedural justice enshrined in article 6 § 1 ECHR. In other words, never again will the CAS be the same, as it will have to become a proper court.
Surely, the ECtHR betrayed its good intentions by denying the undeniable lack of independence of the CAS. Yet, this duty will be left to the German judges in Karlsruhe or to the Grand Chamber of the ECtHR if, as you would expect from Pechstein, she decides to appeal the decision. In this regard, the rigorously argued dissent will prove a strong basis to put a final nail in the coffin of CAS’s current institutional structure.
To conclude, after seemingly winning this case, the CAS will have to undergo a radical change. The new CAS will be open to the public (both hearings and awards), it will need to shore up its independence from the SGBs if it desires to fends off future challenges based on the dissent, and more generally it will have to ensure that all of its procedures are rigorously kept in line with the constantly evolving jurisprudence of the ECtHR on article 6 §1 ECHR.
The CAS can embrace these changes or wait for diligent lawyers to drag its awards through national courts in Europe, which will not be as timid as before in assessing the compatibility of CAS procedures with the ECHR. Nonetheless, there is also a lot to celebrate in this judgment for those, like me, who believe that the CAS is a necessary institution. It is now fully recognised as a judicial body sui generis, which is more than the emanation of the parties to a dispute. In fact, it is officially and finally recognised as the Supreme Court of World Sport, but with great powers comes also great responsibility…
1. You will find many references to these debates in Duval, Antoine, Not in My Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of Arbitration for Sport (February 20, 2017). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-01.↩
• This article was originally published on the Asser International Sports Law Blog on 10 October 2018. Click here for the original.
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