A decision of the Higher Regional Court of Munich ("Oberlandesgericht München”) dated 15 January 2015 could have a material effect on sports arbitration in Germany. The German court decided that an arbitration clause inserted in the enrolment form for a competition organized by the International Skating Union (ISU) is null and void.
The dispute arose in 2009 after Ms. Claudia Pechstein, German speed skater and winner of several Olympic medals and other competitions, was suspended for a period of two years due to alleged doping. After an unfavorable arbitral award rendered under the Arbitration Rules of the Court of Arbitration for Sports (CAS), the main institution for the settlement of sport disputes, Ms. Pechstein challenged the award before the Higher Regional Court of Munich. Ms. Pechstein contended that she had been forced to accept the arbitration clause, since ISU is the only organizer of speed skating competitions and the clause was inserted in the enrolment form to the competition, so she could not opt out of it.
The Higher Regional Court of Munich accepted Ms. Pechstein’s arguments. According to the decision, the imposition of the arbitration clause is contrary to the rules of competition law and to public policy. If there is no other entity organizing similar events, ISU is not allowed to impose the clause on athletes. The German court further added that the composition of the arbitral tribunal pursuant to the CAS Rules did not seem to guarantee equal treatment to both parties.
ISU filed an appeal to the German Federal Court of Justice ("Bundesgerichtshof") against the decision. Meanwhile, possible reactions to this decision are, on the one hand, a review of the CAS Rules, and on the other, a change in the way arbitration clauses are concluded with athletes, in order to reduce the negative impact of the decision.
For more information (in German) about this decision, click here.