The Court of Arbitration for Sport (CAS): its relevance to Kenya after Pechstein?

Abstract

Claudia Pechstein, a female elite German speed skater, was convicted of an anti-doping rule violation by the disciplinary committee of the International Skating Union (ISU) on 1 July 2009 and suspended for 2 years by the ISU. Her appeals to the Court of Arbitration for Sport on 25 November 2009 (CAS 2009/A/1912–1913 Pechstein, DESG gegen ISU) and eventually to the Swiss Federal Tribunal in February 2010 (4A-612/2009 Claudia Pechstein v ISU and DESG) were unsuccessful. CAS is a judicial organ recognized by all international sports bodies as the final forum for the resolution of sporting disputes. This applies also to National sporting bodies in Kenya. On 30 December 2012, she approached a Regional court in Munich (Landesgericht Muenchen 1). She advanced several arguments. First, the provisions in the ISU prohibiting sportspersons from approaching national courts violated her right to approach an independent and impartial tribunal under the European Convention on Human Rights and German law (art. 2 para. 1). Second, the agreement between herself and the ISU binding her to arbitration by CAS was mandatory, and not voluntary, and, therefore, invalid. Third, the CAS is not independent as its arbitrators are picked by sports bodies like the defendant. Finally, both the ISU and its German affiliate (DESG) abused their dominant market position by requiring any athlete interested in the sport of speed skating to follow their rules, which rules were used to suspend her and bar her from competition and use of defendant’s facilities. These issues raised by Pechstein apply to sportspersons in Kenya as well. Pechstein sought a declaration that her ban due to doping was unlawful, and damages for material damage, pain, and suffering. The court dismissed her claim. She appealed to the Court of Appeal in Munich (Oberlandesgericht Muenchen, WuW/E DE-R 4543) on 6 November 2014. The Appeals court, in its decision, agreed with her on all those points, declined the declaration, but awarded her damages. In effect, this decision rubbished the very existence of CAS. In a further appeal, the Federal Court of Justice (KZR 6/15) reversed this decision on 7 June 2016. This paper will analyse the issues that arose in this case. From an analysis of the jurisprudence of the European Court of Justice, European Commission on Human Rights, the European Court of Human Rights (all of which are binding on Germany), as well as jurisprudence from other European countries, it is apparent that the decision by the appeals court was flawed as confirmed by the decision of the Federal Court of Justice. CAS has been and continues to be used by Kenyan sportspersons. Currently, CAS enjoys statutory recognition in Kenya through the Anti-doping Act, 2016, which effectively ousts the jurisdiction of Kenyan courts. It is concluded that CAS is a vital institution for the resolution of sports disputes and that it can benefit from a little strengthening.