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 Post subject: Verdict on Pechstein - ISU
Post #1 Posted: Thu Jan 15, 2015 7:01 am 
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http://www.justiz.bayern.de/gericht/olg ... /index.php

On 2015-01-15, the cartel court of the Oberlandesgericht München (Bavarian high court in Munich, court of 2nd instance) has made its preliminary judgement in the case Claudia Pechstein - ISU (International Skating Union) by declaring the admissibility of Pechstein's case. The verdict states the ineffectiveness of the arbitration agreement between ISU and Pechstein and denies recognition of CAS (Court of Arbitration for Sport, highest international sports court in Lausanne, Switzerland).

If ISU appeals within 4 weeks, the Bundesgerichtshof (Federal German Court) judges in 3rd instance about the admissibility of Pechstein's case. ISU would have 3 months to justify its case, then Pechstein would have 3 months to justify hers, then a decision is possible. If admissibility will be confirmed (or ISU does not appeal for the sake of this clarification), the case will go back to the Oberlandesgericht München. It will then judge about the main case concerning compensation and doping. Pechstein claims 4.4 Millionen Euro from ISU.

The verdict about admissibility relies on the Gesetz gegen Wettbewerbsbeschränkungen (the German law against restraints of trade, cartel law), the principle of state under the rule of law (Rechtsstaatprinzip) in the Grundgesetz (German constitution) art. 101 para. 1 sentence 2 (Nobody may be withdrawn from his lawful judge.), the ordre public (öffentliche Ordnung), Zivilprozessordnung (code of civil procedure) §1061 para. 1 sentence 1 (The recogition and execution of foreign arbitration judgements goes by the treaty of 1958-06-10 about the recogition and execution of foreign arbitration judgements (Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche) Bundesgesetzblatt (federal law journal) 1961 II p. 121 and art. V para. 2 lit. b.

ISU is said to have abused its monopol and thus violated cartel law to force the unfair arbitration agreement on Pechstein, in which she had to agree to accept CAS for judgements about doping cases and to exclude regular courts. CAS and its filling of judges are said not to have sufficed requirements of the principle of state under the rule of law.

The case has significant relevance also for Go arbitration, especially with respect to doping and possible CAS cases. For a more accurate assessment of consequences, one will have watch the further proceeding of the case.

More details of the verdict are studied below. German courts are not bound by the CAS verdict. On 2009-01-02, Pechstein had to sign a preformulated competition note, which contained the arbitration agreement. In 2009, Pechstein was sentenced with a doping ban [for 2 years].

The case of doping is not decided yet. [Pechstein relies on haematologists to claim a blood anomaly genetically inherited from her father for explaining her varying reticulocyte values. At CAS, Pechstein needed to defend her non-guilt concerning doping; at German courts, ISU will need to make a case for her guilt.]

In the case, the arbitration agreement is ineffective because of violating conclusive cartel law as follows. On the market of supply (and offering) of ice skating world championships, ISU is the only supplier and therefore without market competition and a market-dominating monopolist according to German cartel law. Participation in national sports competitions cannot replace participation in international sports competitions because of their prevailing world-wide interest and related commercial utilisation by successful athletes. A market-dominating enterprise may not prescribe business conditions derivating from such that, with high probability, would exist in the case of effective market competition. Although arbitration agreements demanded by organisers of international sports competitions do not per se imply abuse of market power, there are strong facts-orientated reasons for solving cases of sports arbitrations between athletes and sports associations in sports courts: similar cases do not easily get different judgements so that athletes can have similar chances when participating in sports competitions. However, the particular case is an abuse of market power that ISU demanded from Pechstein signing of the arbitration agreement of favour of CAS. The involved associations (international sports associations, the national [German] and the international olympic committees) had decisive direct and indirect forms of influence on the one-sided selection of judges in favour of the associations. Athletes are forced to accept this only because they have no other choice of participation in international sports competitions. As a consequence for actual arbitrations at sports courts in cases between associations and athletes, the associations have a structural advantage hurting the neutrality of CAS. Instead, [in the future,] precautions must be taken to avoid the mere possibility and suspicion of manipulation of the selection of the judges. In the case of an effective market, Pechstein would not have been forced to accept the relevant specifications in the arbitration agreement in order to participate in the world championships. The derivation from specifications in an arbitration agreement under conditions of an effective market competition implies that Pechstein is withdrawn her constitutional rights to the principle of state under the rule of law, regular state courts and the lawful judge. Hence, the case is relevant and admissibility found.

It is found that the CAS verdict cannot be recognised. Therefore, German courts are not bound by its statement whether the doping ban was just, as follows. According to the laws mentioned above, if the CAS verdict were recognised, it would contradict the ordre public, contradict cartel law, perpetuate ISU's abuse of monopol and withdraw Pechstein's rights to the principle of state under the rule of law, regular state courts and the lawful judge. Hence, the CAS verdict is unrecognisable. As to foreign arbitration verdicts, ordre public and application of related specifications of cartel law are decisive. This excludes recognition of the CAS verdict. ISU was prohibited by cartel
law to demand Pechstein's agreement to the arbitration agreement.

The verdict carries the number U 1110/14 Kart.

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 Post subject: Re: Verdict on Pechstein - ISU
Post #2 Posted: Tue Mar 08, 2016 6:44 am 
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Today, the trial has been at the Bundesgerichtshof (Federal German Court), which will make its presumably preliminary judgement on June 7 at 9:00 GMT+2.

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 Post subject: Re: Verdict on Pechstein - ISU
Post #3 Posted: Tue Jun 07, 2016 2:20 am 
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http://juris.bundesgerichtshof.de/cgi-b ... s=0&anz=97

Today's judgement of the Bundesgerichtshof (Federal German Court) is against Claudia Pechstein, who now intends to call the Bundesverfassungsgericht (Federal German Constitutional Court). The court's press information says the following.

The case is inadmissible because it is opposed by the plea of arbitration agreement between ISU and Pechstein. ISU has not abused its monopol. CAS is a real arbitration court according to §§ 1025 ff. ZPO (German Civil Trial Order). The manning of the CAS court is without structural overbalance of the [sports] federations because federations and athletes do not principally form factions of opposite interests. With a uniform international sports arbitration, both factions follow the interests and advantages of world-wide anti-doping, uniform standards and speed of arbitration. The CAS trial order balances any remaining overbalance of the federations and ensures a sufficient individual independence and neutrality of the [sports] judges. Following a CAS lawsuit and according to international law, the involved parties have [in this case: had] the Swiss legal process, wherefore hereof there is no admissibility to German courts.

Pechstein signed the arbitration agreement voluntarily. It does not become void despite other-directed acting to avoid a prohibition of participation in [sports] competition. This is so also because regarding this the Gesetz gegen Wettbewerbsbeschränkungen (German anti-cartel law) § 19 applies in favour of considering the interests of both parties, a facts-orientated justification of the use of the arbitration clause and its conformity with decisions of virtue of law. Pechstein's right to jurisdiction and freedom of prefession oppose ISU's autonomy of federation.

My commentary: It remains open whether Pechstein's anomalous blood values indicate doping or genetic inheritance from the father. According to the judgement of the Bundesgerichtshof, the matter is not whether Pechstein is withheld her German lawful judge but she has had him as the Swiss Federal Court. Whoever signs a sports arbitration agreement reduces his chances before the regular courts - whoever does not sign and files a suit before the regular courts possibly cannot participate in sports competition and possibly must proceed to the European Court 2nd instance or the European Human Rights Court to get his alleged justice and prove his case in alleged doping.


Last edited by RobertJasiek on Tue Jun 07, 2016 1:07 pm, edited 1 time in total.
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 Post subject: Re: Verdict on Pechstein - ISU
Post #4 Posted: Tue Jun 07, 2016 10:26 am 
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Pardon my ignorance, but who is Claudia Pechstein and why is this case of interest (to go players)?

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 Post subject: Re: Verdict on Pechstein - ISU
Post #5 Posted: Tue Jun 07, 2016 10:45 am 
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She is pretty successful at ice scating. The case is relevant for anti-doping trials in go because some go players can suffer from similar, possibly false doping tests and harsh penalties now that go federations have entered the anti-doping mess.

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 Post subject: Re: Verdict on Pechstein - ISU
Post #6 Posted: Tue Jun 07, 2016 3:06 pm 
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I am totally not familiar with this case or German law, but from what I read and understand, it can even have much, much broader impact than just go players and doping.

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 Post subject: Re: Verdict on Pechstein - ISU
Post #7 Posted: Tue Jun 07, 2016 10:31 pm 
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Indeed. It might clarify some aspects of basic and human rights, and of admissibility of either only Swiss or also other national jurisdiction. It could, however, happen, that the highest courts find inadmissibility of the cartel aspects and we never get to know about the more fundamentals questions.

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 Post subject: Re: Verdict on Pechstein - ISU
Post #8 Posted: Tue Oct 02, 2018 5:45 am 
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On 2018-10-02, the European Court of Human Rights has judged on the case Claudia Pechstein vs. Switzerland in the application number 67474/10: the CAS judgement is judged to have been independent and impartial but violated Pechstein's human right to public hearing. Therefore, Pechstein is reimbursed €8000.

Within three months, an appeal to the decision is possible but seems unlikely. Apparently, rather Pechstein proceeds to the German Federal Constitutional Court.

All the trials thus far have failed to clarify whether Pechstein has a genetic anomaly inherited from her father and possibly explaining the high rates of certain blood particles, which therefore need not be caused by the alleged doping assessed by CAS. The various ordinary courts seem to think that it has been CAS's job to possibly assess a genetic anomaly. If CAS deems such an assessment irrelevant, thus far the ordinary courts tolerate CAS's limited scope of investigation.

The current anti-doping system produces guilty athletes even if they are innocent and have, e.g., a genetic anomaly. They seem to have no chance before the courts even if they invest millions into fighting the trials.

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