Vove six years ago, Claudia Pechstein experienced one of the biggest disappointments of her life. On June 7, 2016, she failed before the Federal Court of Justice with her request to sue for around five million euros in damages from the International Skating Union (ISU). The ISU banned her for two years in 2009 for doping, and the CAS International Court of Arbitration for Sport confirmed the ban. But Claudia Pechstein was later able to explain her blood values with an inherited blood anomaly. She was rehabilitated and went through the courts for financial compensation until, years later, she seemed to have reached a dead end before the BGH. The Federal Court of Justice saw no problem in the underlying arbitration proceedings.
Six years later, she got black and white from the Federal Constitutional Court that she was on the right track: the fact that the CAS in Lausanne did not allow Claudia Pechstein to have a public trial violated her constitutionally guaranteed right to justice. The fact that the BGH gave the clauses of the arbitration agreement between the ISU and Pechstein and the statutes of the CAS, which did not provide for a public hearing, a higher priority than Pechstein’s desire for a public hearing, is regarded by the constitutional judges as a misjudgment. The claim for damages ends up back at the Munich Higher Regional Court.
But the clear language of the constitutional judges goes beyond the individual case. The decision (Az.: 1 BvR 2103/16) leaves open whether the current arbitration proceedings before the CAS meet the German claim to the granting of justice. But how does the Federal Constitutional Court formulate the relationship between associations and athletes? “If one of the two contracting parties has such weight that it can in fact unilaterally determine the content of the contract, it is the task of the law to work towards safeguarding the fundamental rights positions of both contracting parties in order to prevent self-determination for one part of the contract turning into determination by others. ”
The associations determine the content of the arbitration clause, and the associations have a great deal of influence on what happens at the CAS. Even under the current statutes, the hearings are generally not public unless both parties agree. In disciplinary proceedings, for example on doping sanctions, a party can demand publicity. The request can be denied for a number of reasons, such as “in the interests of morality”. However, if the arbitration procedure is to continue to block the athletes from going to ordinary courts – and the Federal Constitutional Court sees this as “necessary” in the sense of an internationally uniform sports jurisdiction – the statutes must meet minimum requirements under the rule of law, which include the principle of publicity.
The European Court of Human Rights ruled in this way in 2018, which Claudia Pechstein also appealed to. The Karlsruhe judges make extensive reference to this, but mention that the German right to a fair trial can also go beyond the right to a fair trial as laid down in the European Convention on Human Rights. It is therefore quite possible that other aspects of sports law practice in Lausanne, according to which decisions are often never published, do not meet German legal standards. It is usually the athletes who suffer. Not everyone has a mind like Claudia Pechstein. The bad news for them: they must continue to complain, persistently and persistently, in order to improve their position. That’s not fair.
