CAS in problems-might lose legitimacy

[mrhender]

Just found this while searching for other things.

Scroll down from the brain doping.

http://www.outsideonline.com/fitnes...ds-Doping-Court-Survive-a-German-Lawsuit.html

excerpts:

But now the CAS's authority is threatened. In mid-January, a German appeals court dealt a serious blow to the CAS when it ruled in response to a civil lawsuit filed by German speed skater Claudia Pechstein.

Pechstein, a five-time Olympic champion, recorded a positive biological passport test in 2009 and was banned for two years by the International Skating Union. (See more on Pechstein's case below.) She appealed that suspension to the CAS, which upheld the ban. So she sued the ISU in German civil court, a highly unusual move that brought her doping case out of the realm of sports arbitration and into the German legal system.

In mid-January, the German court, the Oberlandesgericht, ruled that the structure of the CAS had robbed Pechstein of a fair hearing. In other words, the court ruled that the ISU unlawfully imposes the CAS arbitration clause on athletes'a clause that Pechstein and all other ISU athletes must sign to compete. That ruling could make the CAS irrelevant under European antitrust law.

If the Bundesgerichtshof affirms the lower court's ruling, it would have serious consequences for CAS's future, says James Nafziger, a law professor at Willamette University and an expert on international sports law. If they were to uphold the decision, I think it would potentially weaken the CAS, Nafziger says.

Doping cases could ultimately be decided in civil courts across Europe, which cost more time and money than CAS arbitration and lack the sports-law expertise of CAS panels. That development would not be an obvious win for athletes.

And because the decision is likely relevant under European Union as well as German law, it would open the door for any European athlete to challenge CAS rulings. In fact, that may already be happening. Kostas Baniotis, a Greek high jumper, has indicated that he will sue the International Athletics Federation in Greece if his ban is upheld.

On the other hand, Nafziger says, it may force the CAS to further reform how it chooses arbitrators, perhaps by giving athletes a bigger vote in the selection process. The athletes themselves should have at least a better idea of who is who and who is doing what, he says. It ought to be more transparent.

 

[More Strides than Rides]

Just found this while searching for other things.

Scroll down from the brain doping.

http://www.outsideonline.com/fitnes...ds-Doping-Court-Survive-a-German-Lawsuit.html

excerpts:

It would be an interesting project to look at the net effect of CAS's intervention: affirming the athletes, or the governing bodies, or one body over the other. I wouldn't know where to start though, without having to read through each decision. It would help us imagine a world where the CAS doesn't exist.

Would we be better in civil courts? Like the article said, it would be more difficult to appeal. Leagues would need to rewrite their rules to makes sure the central authority doesn't get slipped up by national bodies, like in the Kreuziger case. On the other hand, if things go like the Puerto Blood Bags, athletes might love the idea of civil courts handling their business.

Interesting to say the least

 

[mrhender]

This could get quite messy..


Some more info in this website:

http://www.disputeresolutiongermany...cognize-cas-arbitral-award-in-pechstein-case/

Invalidity of the arbitration agreement

The court first dealt with the validity of the arbitration agreement. It held that it was invalid, since it was in violation of non-dispositive competition law provisions under the German Act Against Restraints of Competition (Gesetz gegen Wettbewerbsbeschr?nkungen, GWB). The court started its analysis by determining the relevant market, which was the market of speed skating world championships. Here, quite clearly, defendant ISU had a monopoly.

In abstract terms, requesting an athlete to sign an arbitration agreement does, in the court's view, not constitute per se an abuse of market power. However, an analysis of the arbitration agreement in question did convince the court that in the given circumstances, the ISU did abuse its market power. The court held that in particular with respect to the selection of arbitrators, the arbitration agreement contained a structural imbalance. The court found that the national skating associations were favoured in the arbitrator selection process. In addition, the President of the Appeals Arbitration Division of the CAS serves as the appointing authority in case the parties cannot agree on arbitrators. This person is elected, by simple majority, by a body structurally dependent upon on the national associations (strukturell von den Verb?nden abh?ngt.?). The entire process lacks safeguards that would prevent manipulation in the arbitrator selection process.

CAS Arbitral Award Not Capable of Recognition in Germany

In a second step, the Court of Appeals then looked at the impact that the CAS arbitral award has on its analysis. Here, does not agree with the court of first instance: the German courts are not bound by the findings of the CAS, since the arbitral award violates German public policy within the meaning of Sec. 1061 German Code of Civil Procedure (ZPO) in conjunction with Article 5 of the New York Convention. Fundamental provisions of competition law are an integral part of Germany's public policy (ordre public). The ISU was in violation of these provisions, in that it insisted on Pechstein entering into the arbitration agreement. If the award were to be recognised, this would amount to an implicit recognition of this illegal behaviour and would perpetuate the abuse of market power by defendant ISU. In addition, the claimant?s fundamental right under Article 101 of the German Basic Law (Grundgesetz) not to be deprived of the lawful judge (gesetzlicher Richter) would be violated.

Comment

The first instance judgment has been read, by some commentators, as being the end of sport arbitration as we know it. It would appear that a close reading of the Munich judgment would open up ways out for the various sports governing bodies. They would need to revise their arbitration agreements and the corresponding arbitration Systems, including the Court for Arbitration in Sport, in a way that removes the structural imbalance between the athlete on the one hand and the national or international associations on the other hand.

 

[python]

the pechstein's case was the one i followed quite closely at the time. mainly, b/c it was one of the 1st, if not THE first, anti-doping sanction based exclusively on blood profiling (the blood passport term was not used yet). if one would bother searching, there are several threads and dozens of posts here going back 4-5 years. i am not a lawyer. thus, the legal aspects of the cas decision clashing with the german civil law, are not my cup of tea. but, as a scientist looking at the extensive evidence, i was leaning to her indeed blood doping...

i will though dare to pass my opinion of the pechstein case endangering the cas institution per se. I don't think so. my opinion is based on the common sense and the knowledge of the international sports politics and mechanics.

firstly, it is by far not the only case when a national or even a european court was asked to challenge the cas authority. even when successful, the action was largely irrelevant. as long as the appropriate sports federations continue
to recognize cas and require athletes to sign a wada-based sports contract as a condition of their competitive license, there is zero chance. additionally, the entire mufti-billion olympic industry and politics is based on the cas being the final judge. there is not a chance on green earth the huge ioc bureaucracy will allow the erosion of one of its foundations (and a wonderful gravy train, to boot).

and lastly, the sports world accepted last chance institution is the swiss supreme court. a very respectable truly neutral institution. national courts may continue to overrule cas, but besides some emotional or monetary rewards, they will have zero impact on the cas approved sanctions.

 

[mrhender]

the pechstein's case was the one i followed quite closely at the time. mainly, b/c it was one of the 1st, if not THE first, anti-doping sanction based exclusively on blood profiling (the blood passport term was not used yet). if one would bother searching, there are several threads and dozens of posts here going back 4-5 years. i am not a lawyer. thus, the legal aspects of the cas decision clashing with the german civil law, are not my cup of tea. but, as a scientist looking at the extensive evidence, i was leaning to her indeed blood doping...

i will though dare to pass my opinion of the pechstein case endangering the cas institution per se. I don't think so. my opinion is based on the common sense and the knowledge of the international sports politics and mechanics.

firstly, it is by far not the only case when a national or even a european court was asked to challenge the cas authority. even when successful, the action was largely irrelevant. as long as the appropriate sports federations continue
to recognize cas and require athletes to sign a wada-based sports contract as a condition of their competitive license, there is zero chance. additionally, the entire mufti-billion olympic industry and politics is based on the cas being the final judge. there is not a chance on green earth the huge ioc bureaucracy will allow the erosion of one of its foundations (and a wonderful gravy train, to boot).

and lastly, the sports world accepted last chance institution is the swiss supreme court. a very respectable truly neutral institution. national courts may continue to overrule cas, but besides some emotional or monetary rewards, they will have zero impact on the cas approved sanctions.

Thank you Python,

That makes perfectly sense..

However it must be cause for concern if it becomes a trend to "nullify" CAS decisions in national court systems due to this potential precedence..