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“Pechstein/International Skating Union”

Decision of the Federal Supreme Court (Bundesgerichtshof) 7 June 2016 – Case No. KZR 6/15

  1. (a)

    The Court of Arbitration for Sport (CAS) in Lausanne is an arbitration court within the meaning of Secs. 1025(2) and 1032(1) of the Code of Civil Procedure.

  2. (b)

    An international sporting federation organised on the “one-place principle” is, as concerns the athletes’ admission to the sporting contests organized by that federation, market-dominating.

  3. (c)

    It does not constitute abuse of the market power of the sporting federation when it makes the participation of an athlete in a sports competition dependent on the signing of an arbitration agreement which, pursuant to the anti-doping rules, provides for the CAS as the arbitration court. The order of procedure of the CAS contains sufficient guarantees for the safeguarding of the athletes’ rights, and the arbitration decisions of the CAS are subject to monitoring by the Swiss Federal Supreme Court.

  4. (d)

    The order of procedure of the CAS does not lack sufficient guarantees for the safeguarding of the athletes’ rights, even if the arbitrators are chosen by the parties to the dispute from a closed list which is compiled by a board made up for the most part of representatives of the International Olympic Committee, the National Olympic Committee and the international sporting federations. Sporting federations and athletes do not per se constitute opposing “camps” driven by conflicting interests when it comes to combating doping.

  5. (e)

    Under these circumstances, the arbitration agreement is not invalid even with respect to the guarantee of recourse to the courts arising from Art. 2(1) of the Constitution, the fundamental right to free pursuit of a profession according to Art. 12(1) of the Constitution, or the right to a fair trial pursuant to Art. 6(1) of the European Convention on Human Rights.

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European Convention on Human Rights, Art. 6(1); Code of Civil Procedure, Secs. 1025(2), 1032(1); Act Against Restraints of Competition, Sec. 19(1); German Constitution, Art. 12. “Pechstein/International Skating Union”. IIC 47, 865–874 (2016). https://doi.org/10.1007/s40319-016-0518-1

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Keywords

  • Court of Arbitration for Sport (CAS)
  • Dominant market position
  • Independence and neutrality of arbitrators
  • Fundamental rights
  • Balance of interests
  • Review of arbitration decisions by State courts