A Lawsuit Threatens The Future Of The Court Of Arbitration For Sport

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German Claudia Pechstein is the most successful speed skater ever. She won a medal in five consecutive Olympics from 1992 to 2006—nine medals overall, five of them gold—and might've made it six straight had she not been banned by the International Skating Union (ISU) for two years in 2009, for blood doping. Pechstein's numerous appeals were denied, but six years later she has won a major court ruling that could eventually change the future of sport.

As the BBC explains in a deep look at Pechstein's lawsuit, the doping case against her isn't very substantial, as she never actually failed a drug test. Instead, the biological passport implemented by the ISU showed deviations from the baseline before some races, suggesting blood doping. Pechstein argued that the results were explained by a genetic abnormality she inherited from her father in an appeal to the Court of Arbitration for Sport (CAS) in Switzerland, but to no avail.

This is when things got interesting.

Pechstein sued the ISU and German Speed Skating Association in German court, seeking "$4.72 million for loss of income through lost advertising revenue, court costs and medical records, plus another $538,920 for personal suffering." A district court dismissed her case a year ago, but just last month the Higher Regional Court in Munich overturned the dismissal, and rejected CAS's ruling against Pechstein. As Inside the Games writes, "it is the first time a German civil court has allowed a case to be heard after the world's top sports court, CAS, has ruled against it, setting a precedent for potential similar cases."


At its heart, Pechstein's case questions whether arbitration is the best way to settle sports disputes. Compared to the traditional court system, CAS is much faster and has greater technical expertise. For instance, CAS sets up an "ad hoc division" for each Olympics, so that disputes that arise can be handled immediately. According to the BBC, CAS has 300 sports law experts drawn from 87 countries in the pool that handles cases, a resource no court system can match.

But no amount of speed and expertise matters if CAS lacks basic fairness. Most contracts athletes sign (this is less prevalent in the big American sports) include provisions for arbitration, with CAS as the final authority. Arbitration is often bad for employees because of an inherent bias towards employers, and while sports grievances are very different from a big box retail worker's grievance, Pechstein argues arbitration is similarly biased. Specifically, her case focuses on the procedure CAS follows to designate panels to hear disputes:

On the face of it, it is simple: three legal experts chosen from the approved pool, with each side in the dispute choosing one and the third coming via the organisation's secretariat, the International Council of Arbitration for Sport (ICAS).

But who controls ICAS? Critics of CAS say there is an institutional bias within the secretariat towards governing bodies.

There are 20 members of ICAS, all of them experienced jurists, serving four-year terms. Twelve of them are nominated by the IOC, the national Olympic committees and international federations, and then these 12 select eight more to provide balance.

So if at least 12 of the 20 ICAS members have been appointed by governing bodies, just how independent is CAS? For an important court in Europe's most powerful country, the answer is not independent enough.


The implications of this case are massive. If Pechstein is successful in her suit, CAS rulings "may not be enforceable in Germany," the most powerful country in Europe. The BBC quotes the lawyer for a Greek high jump champion that is challenging his failed drug test in front of CAS. The lawyer says that, if his client loses, he is prepared to sue CAS in the Greek court system. If Pechstein is successful in her suit, soon there will be a rash of lawsuits challenging CAS rulings across Europe, entirely defeating the purpose of having a final authority on sports disputes.

Everybody the BBC quotes agrees that CAS is needed, that it just needs to be reformed. But with sports becoming ever bigger business, it seems naive to think CAS can be improved to the point where the people and organizations it rules against won't continue to take their grievances to the court system, and sometimes succeed. Pechstein's case involves a fairly small dollar value all things considered, but CAS also rules on cases that affect hundreds of millions of dollars. For instance, CAS recently upheld Barcelona's 12 month transfer ban, a ruling that, in a disaster scenario where the Catalan club's weaknesses can't be fixed and it misses out on Champions League play, could cost it millions of millions of dollars.


We're not there quite yet; Pechstein hasn't won her case, just the right to proceed with it. But even getting that far has enormous consequences, and one day her name might be mentioned alongside Curt Flood, Jean-Marc Bosman and others, better known for changing the business of sport than her accomplishments on the ice.


Photo via Peter Dejong/AP