The case of Mutu and Pechstein v. Switzerland
In a previous blog post (our earlier analysis of the Mutu and Pechstein case) the Mutu and Pechstein case and the ECHR decision of October 2, 2018 were discussed in detail.
The ECtHR had not identified any fundamental objections with regard to the operation of the CAS.
It was nevertheless found that two of the seven judges of the ECtHR were of the opinion that the CAS did not comply with various requirements imposed by the ECHR.
The decision also stated that the case could be requested to be referred to the Grand Chamber of the European Court of Human Rights.
Given the dissenting opinion of the aforementioned judges, this could again have led to an interesting decision.
No reference to the Grand Chamber of the European Court of Human Rights
The parties have indeed requested – on the basis of art. 43 of the Convention – to have the case heard by the Grand Chamber of the European Court of Human Rights.
On 4 February 2019, however, the Grand Chamber rejected the request for consideration of the Mutu and Pechstein case.
This is evident from a press release of February 5, 2019 of the European Court of Human Rights.
This means that the decision of October 2, 2018 is finalised.
The Court of Arbitration for Sport also issued one on February 5, 2019 press release issued following this decision.
She naturally welcomes this and notes that she has now taken the necessary measures to allow public hearings.
In practice, a person or party must request a public hearing.
This is a consequence of the amendment of article R57 of the CAS Code that came into effect on January 1, 2019.
After all, the ECtHR had found a violation on that point.
Why the case still matters
The importance of the case does not lie in the outcome for the two athletes. It lies in the finding that arbitration which an athlete cannot realistically refuse is not ordinary arbitration. Where a federation makes acceptance of its arbitration clause a condition for competing, the athlete does not choose that forum in any meaningful sense. Consent that is a condition of access to the profession is not free consent.
The consequence is that the guarantees of a fair trial apply to the proceedings themselves. Two of them carry most of the practical weight. The tribunal has to be independent and impartial, which puts the spotlight on the way arbitrators are appointed and on who controls the list from which they are chosen. And a hearing must be held in public where a party asks for one, unless a genuine reason justifies excluding the public.
What changed in practice
Sports arbitration did not disappear as a result. It was pushed to become more court-like. A request for a public hearing is now treated as a real entitlement rather than as an unusual favour, and the composition of panels and the independence of the institution receive closer scrutiny than before.
For an athlete facing a disciplinary or eligibility file, three practical points follow. Ask for a public hearing expressly and in writing if you want one, because the entitlement is exercised and not granted automatically. Examine the proposed arbitrators and their earlier involvement with the parties, and raise a challenge within the period the rules set. And keep in mind that a procedural failure at this stage is often the strongest ground later, because a reviewing body looks first at whether the procedure met the standard, rather than at whether the sporting judgment was right.
The judgment also changed the way federations draft their clauses. Where arbitration is imposed as a condition of participation, the institution has to be able to show that its arbitrators are genuinely independent of the bodies that appear before it, and that an athlete who asks for an open hearing can obtain one. Those are the questions a defence should put first, because they are answered on the file rather than on the sporting merits.
Why the Mutu and Pechstein case still matters
The judgment is the reference point for the question whether compulsory sports arbitration can be reconciled with the right to a fair trial. The Court accepted that an athlete who has to accept arbitration in order to compete at all has not freely given up the guarantees of Article 6 of the Convention. The consequence is not that such arbitration is unlawful. It is that the arbitral procedure must itself deliver those guarantees.
What it changed in practice
The point on which a violation was found concerned the public character of the hearing. An athlete facing a disciplinary charge with serious consequences is entitled to have the case heard in public if he asks for that. The procedural rules of the arbitral body were amended so that a public hearing can be requested in appeal proceedings of that kind. It remains a right you have to invoke, in the right form and at the right moment, rather than something granted automatically.
The independence question
The second line of argument, that the arbitral institution is not sufficiently independent of the federations that fund it and supply its arbitrators, did not succeed on the facts of that case. It has not disappeared. Every reform of the institution since has been measured against it, and an athlete with a concrete reason to doubt the independence of a particular panel can bring a challenge against an arbitrator. That challenge also has its own deadline and its own form.
What an athlete should take from it
Two things. First, the procedural rights you hold in sports arbitration are real but they are not automatic: a public hearing, a challenge to an arbitrator and access to the file all have to be asked for, and asked for in time. Second, the route after the award is narrow. An appeal against an award lies to the Swiss Federal Tribunal on limited grounds only, and the European Court is not a further instance on the merits. Prepare the case on the footing that the arbitration is your one real hearing.