Five-times Olympic speed skating champion Claudia Pechstein yesterday lost a case before the German Federal Court (BGH) seeking jurisdiction before German courts and claiming damages from the International Skating Union (ISU).
After having been banned by ISU for two years because of blood doping (which was denied by Pechstein) Pechstein seeks € 5 million in compensation for material (eg lost sponsorships) and immaterial damages. The Court of Arbitration for Sport (CAS) – the highest international judicial body for sports in Lausanne – as well as the Swiss Federal Supreme Court affirmed the ISU’s ban. Therefore, Pechstein seeks jurisdiction of German courts. She has won before Munich’s Regional Appeal Court that ruled the arbitration agreement between ISU and Pechstein, declaring the CAS solely competent, was invalid for abuse of a market-dominating position according to the German Act against restraints of competition (GWB). Pechstein signed the agreement in question as an ISU’s condition to attend the Speed Skating World Championship in Norway in 2009. Following an appeal by the ISU, the German Federal Court had to rule whether the arbitration agreement was valid and the CAS was solely competent or not.
In a widely noted decision, the BGH dismissed Pechstein’s action as inadmissible and declared the CAS as the only competent court to rule the case. Even though it confirmed the ISU’s market-dominating position – ISU is the only international organizer of competitive ice skating championships – it did not establish abusive conduct under the GWB. The CAS was a “proper” court of arbitration that did not suffer structural imbalances in the appointment of its arbitrators. The CAS’ rules of procedure would effectively ensure their individual independency and neutrality. Furthermore, the athletes and sports federations would not always have conflicting interests, eg in combatting doping. The CAS would set unified standards and could judge in much shorter delays than national courts. The BGH ruled that these advantages would outweigh the ISU’s market-dominating position.
This ruling will have a massive impact on international sports federations and the CAS. It affirms CAS’s ‘dominance in sports’ judicial dispute resolution and is an example for national courts’ growing hesitance to overrule the CAS. With the judgement of the BGH it might become more difficult for athletes to obtain jurisdiction before national courts and to appeal against sports federation rulings.