http://www.justiz.bayern.de/gericht/olg ... /index.phpOn 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rule of law (Rechtsstaatprinzip) in the Grundgesetz (German constitution) art. 101 para. 1 sentence 2 (Nobody may be withdrawn from his lawful judge.), the ordre public (öffentliche Ordnung), Zivilprozessordnung (code of civil procedure) §1061 para. 1 sentence 1 (The recogition and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.