Big Decision in Sports Law
An anxiously awaited decision of the German Federal Court has been delivered this week confirming the independence and advantages for worldwide sport of the Court of Arbitration for Sport, based in Lausanne. Ely Place silk Nicholas Stewart QC is a CAS arbitrator and welcomes this reversal of a widely-criticised 2015 decision of the Oberlandsgericht (Appeal Court) in Munich.
Ms Pechstein is a German speedskater and winner of five Olympic gold medals who had failed in her 2009 challenge to CAS against a two year suspension for doping. She had then taken the case to the Swiss Federal Court, which upheld the CAS decision. Pechstein did not accept that as the end of the line but brought a claim in the German courts for some €4,000,000.
The Munich Appeal Court had decided that the CAS system for appointment of arbitrators to a case such as Ms Pechstein’s case had lacked the necessary degree of independence as it favoured sports governing bodies against individual athletes. Given also that Ms Pechstein, in order to compete, had had no practical choice but to sign up to rules binding her to submit disputes to CAS arbitration, the overall effect was contrary to German and possibly European Union competition law. The Munich court refused recognition and enforcement of the CAS award under the 1958 New York Convention as contrary to German public policy.
The German Federal Court has decisively rejected the Munich court’s decision and reasoning. Although the full judgment is still to be published, the Federal Court has made clear that:
- the CAS decision stands and does not infringe German or EU competition law (and must therefore be recognised and applied in Germany under the New York Convention)
- the CAS procedure provides a fair and independent tribunal and it is in the interests of athletes and sport governing bodies to have a uniform international sports jurisdiction
- the German courts have no jurisdiction to interfere with a final CAS decision
Ms Pechstein has announced that she will now take her case to the German Constitutional Court in Karlsruhe (Bundesfassungsgericht) but it is very unlikely that she will get any joy there.
In 2014 CAS changed its system of appointment to the CAS panel of arbitrators, by removing a requirement for nomination by a sport governing body. Although Nick Stewart has been a member of the FA Judicial Panel for some 12 years and has sat on numerous sporting tribunals, including British Olympic Association Appeal Panels on restoration of eligibility for Olympic Games after doping suspensions, he was appointed independently to the CAS panel based on his wide experience.
Nick Stewart is a Deputy High Court Judge and a Fellow of the Chartered Institute of Arbitrators. In 2015 he obtained a first-class honours BA degree from Birkbeck College, London University, in German and Spanish (to go alongside his slightly aged Oxford BA in Philosophy, Politics and Economics).
As well as expertise in sports law – William McCormick QC is also active in this field – Ely Place Chambers can offer specific expertise in German law: Philipp Simon qualified as a German lawyer and is also an English barrister and and a Luxembourg lawyer.