A brief history
Adrian Mutu
Adrian Mutu is a footballer who made a transfer from AC Parma to Chelsea in 2003. In 2004, Mr Mutu was charged with a positive doping test for cocaine. Internal dispute resolution within the FA and subsequently FIFA ruled that Mr Mutu had breached his contract and that Chelsea were entitled to damages. After years of litigation, FIFA’s Dispute Resolution Chamber awarded Chelsea damages of more than 17 million euros.
Mr Mutu turned to the CAS (Court of Arbitration for Sport). However, the CAS dismissed the appeal. Mr Mutu believed that the CAS was not independent and impartial. Ultimately, proceedings followed before the European Court of Human Rights.
Claudia Pechstein
Claudia Pechstein was and still is a skater. On July 3, 2009, the International Skating Union (ISU) announced that Ms. Pechstein had committed a doping violation (blood doping). A two-year suspension followed. Ms Pechstein challenged these findings and turned to the CAS. The CAS, and subsequently the Swiss Federal Court, dismissed the appeal as unfounded.
Ms Pechstein subsequently initiated civil proceedings in Germany. The Munich Court of Appeal (Oberlandesgericht Munchen) followed Ms Pechstein’s arguments and ruled, among other things, that the agreement between Ms Pechstein and the ISU was invalid. The Court of Appeal believed that Mrs. Pechstein had no free choice as to whether or not to sign the agreement if she wanted to play sports at the highest level. The court declared the decisions of the CAS and the Swiss Federal Court as not applicable in Germany and awarded Ms Pechstein significant damages. However, the German Federal Constitutional Court reversed the aforementioned decision and ruled on June 7, 2016 that Pechstein had voluntarily signed the agreement with the ISU, including that disputes would be handled by the CAS. The Court ruled that no abuse of the ISU’s dominant position was found.
Ms Pechstein subsequently also turned to the European Court of Human Rights.
The proceedings before the ECtHR
On October 2, 2018, a decision was made in both cases of Mr. Mutu and Ms. Pechstein against Switzerland (N. 40575/10 and N. 67474/10) before the European Court of Human Rights.
The core of the case concerned the validity or otherwise of both athletes’ procedures before the CAS. Both athletes essentially argued that the CAS could not be regarded as an independent and impartial tribunal.
The ECHR initially came to the important decision that the CAS must meet all requirements necessary to guarantee the athletes a fair trial in accordance with the ECHR. The ECtHR also confirmed that Ms Pechstein had not voluntarily given her consent to submit to the CAS when this was her only option to participate in sport at a professional level.
The ECtHR subsequently ruled that Ms Pechstein’s objections regarding the structural lack of impartiality and independence and that Mr Mutu’s objections regarding the independence of certain arbitrators should be rejected. In other words, the ECtHR ruled that there was no violation of Article 6§1 ECHR, the right to a fair trial, regarding the independence of the CAS.
The right of access to a court does not prevent the operation of arbitration tribunals and, according to the ECtHR, the CAS can be compared with a tribunal established by law.
Finally, the ECHR ruled that there was a violation of Article 6§1 in Ms Pechstein’s case due to the fact that her hearing was not public. However, this violation was not decisive.
Some comments for the CAS
Although at first glance this appears to be a positive decision for the CAS, serious comments must nevertheless be placed on the decision.
First of all, the ECtHR’s judgment that athletes often do not voluntarily undertake to submit to the CAS is striking. This will undoubtedly be used by various parties in the future.
In addition, two of the seven judges, Helen Keller and Georgios Serghides, found that the CAS did not meet the requirements of independence and impartiality as required under Article 6§1 of the ECHR. Both wrote extensive dissenting opinions.
For example, both believe that it is problematic that for a significant number of professional athletes the CAS is the only appeal body that can judge their cases. The influence and composition of the ICAS (International Council of Arbitration for Sport) that selects the arbitrators can also be considered problematic.
Finally, the decision stipulates that both athletes can request that the case be heard by the Grand Chamber of the European Court of Human Rights. Taking into account the differing opinions, there is a chance that the decision will be reformed by the Grand Chamber. There is therefore a real chance that a request will be made to refer the case.
To be continued no doubt.
You will find the full decision here (French).
You can find the press release here (English).