POSTED: June 8th 2016

JOHN GOODBODY: Victory for the CAS is a victory for sport

The Court of Arbitration for Sport / CAS
The Court of Arbitration for Sport / CAS

THE JOHN GOODBODY COLUMN / An authoritative and exclusive series from Sports Features Communications

(SFC) The world of sport has collectively heaved a sigh of relief this week. The ruling by a German Federal Court to uphold the right for the Court of Arbitration for Sport (CAS) to retain its ability to adjudicate on cases will have immense repercussions.

There has always been the concern that competitors, particularly the richer ones, will challenge the supremacy of the CAS and prefer to take its chance in the domestic courts of the individual athlete. After the decision this week, there is now far less chance of this occurring and one should applaud this.

The thought of competitors taking the International Olympic Committee (IOC) and the individual international federations through different courts with different legal structures in different countries would lead to chaos in global sport. It should be remembered that the CAS was set up in 1984 thanks to the enterprise of the often-maligned Juan Antonio Samaranch, the former IOC President.

The case, which has set a precedent, was brought by German Claudia Pechstein, the greatest female speed skater of all-time and a winner of five Olympic titles, who won medals at every Winter Games between 1992 and 2006. However, in 2009, the International Skating Union (ISU)  suspended her for two years because of irregular blood readings in her biological passport, which she claimed was because of a condition she inherited from her father.

 Having been barred from the 2010 Games in Vancouver, after failing to persuade the CAS of her innocence, Pechstein decided to challenge the authority of the CAS in the civil courts of her native Germany. She continued with the legal action despite having returned to compete in Sochi in 2014.

She claimed that the CAS was not really independent, because it was too close to the IOC, which, of course, it was instrumental in establishing, as well as other world governing bodies. However, the CAS had taken pains to distance itself from the IOC and, in fact, in 2011, had stated that part of the Olympic Charter violated the World-Anti Doping Agency Code over the so-called Osaka rule, which prevented athletes banned for least six months for a drug-taking violation from taking part in the subsequent Olympics. The IOC had to change the Charter.

Under Rule 61 of the IOC Charter, all disputes can only be submitted to the CAS and Pechstein argued that she had been forced to give up her legal rights by signing the agreement (something that all other athletes have been obliged to do). She was seeking $4.75 million in damages from the ISU for loss of earnings in the period that she was under suspension.

However, the Bundesgerichtshof Federal Court, Germany's supreme court for civil cases, said that Bechstein had signed the agreement of "her own free will." It also reinforced the status of the CAS by stating that it was a genuine arbitral tribunal in the sense of German law.

As the CAS summarised the decision of the court:"Claudia Pechstein voluntarily accepted the jurisdiction of the CAS." It added: "the monopolistic situation of the ISU, the acceptance by athletes of the ISU regulations and of the arbitration clause in favour of the CAS does not constitute an abuse of a dominant position in the sense of German competition law."

Significantly, the Federal Court also pointed to the advantages of what the CAS termed "a uniform international sports jurisdiction, such as uniform and timely procedures not only for sports federations but also for athletes."

However, Pechstein's lawyer, Thomas Summere, insisted that they now planned to take the case to the Constitutional Courts, saying:"We are deeply disappointed -it wasn't the last word."

Hopefully, however, it will be. The CAS has had a valuable role to play in international sport and the loss of that status would be hugely damaging.

** JOHN GOODBODY covered the 2012 Olympics for The Sunday Times, his 12th successive Summer Games and is the author of the audio book A History of the Olympics, read by Barry Davies, the BBC commentator. He was Sports News Correspondent of The Times 1986-2007, for whom he received journalistic awards in all three decades on the paper, including Sports Reporter of The Year in 2001.  

Keywords · Olympics · CAS · John Goodbody

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