Pechstein Case No Threat to Court of Arbitration for Sport

(ATR) Despite a high-profile German legal challenge to the CAS, its secretary general tells Around the Rings sport’s highest court is not in danger.

The Munich ruling against the CAS centers on the doping case of speedskating champion Claudia Pechstein. Last week, the CAS appeared to react angrily to the judgment of a Munich appeals court to allow the five-time Olympic winner to press on with a lawsuit pursuing damages from the International Skating Union.

The CAS had supported a two-year ban, twice upheld by the Swiss Federal Tribunal after appeals by Pechstein. A March 27 statement from the sports court criticized the reopening of the case of a national athlete by a state court,

suggesting it "endangers the international effectiveness and the harmony of the decisions rendered in disciplinary matters related to sport."

In comments exclusively to ATR, secretary general Matthieu Reeb denied that the CAS’s future was in jeopardy.

Dismissing the Friday CAS statement as "combative," as some have suggested, he said it was "merely an objective risk assessment of what could happen in the field of doping in the future if the CAS jurisdiction is denied by state courts."

"The CAS is not in danger at the moment," he said, noting that doping cases represent around a quarter of all cases handled by the Lausanne-based court, while the scope of the Pechstein case was limited to Germany.

"It must be emphasized that other civil courts in Germany have recognized the CAS jurisdiction in the past. And last week, the German Parliament announced that it would soon adopt a new law against doping in sport which recognizes the application of the World Anti-Doping Code and thus indirectly the appeal to CAS.

"This is a strong message in favor of the current system."

Reeb emphasized that the Pechstein case did not set the precedent for other cases to take on CAS.

"First of all, it must be stressed that this matter is still pending before the German Federal Tribunal and that no final conclusion can be drawn yet," he said.

"Nobody can predict if other tribunals may follow the same approach as the Munich courts."

Other athletes may not follow the same strategy as Pechstein. He explained that it was a lengthy and expensive procedure before state courts with two or three appeals possible.

A CAS procedure is free of charge in international disciplinary matters, he said.

"It may not stay the athlete’s suspension. Assuming that the athlete would get a final ruling six years after the initial federation’s decision, and assuming that the outcome would be favorable to the athlete (with rankings changed six years later), the benefit of the entire operation may not be so obvious, even if the payment of damages is ordered," Reeb added.

Germany's most decorated Winter Olympian with nine medals to her name has always denied doping. She was originally banned because of irregular blood values. But an investigation by the German Olympic Sports Confederation says there is medical evidence to back claims that she doped.

Reeb said the next step was to wait for the final judgment of the German Federal Court before any action.

"Depending on the outcome of the case and in the event that the German court would not recognize the CAS jurisdiction, the International Council of Arbitration for Sport (ICAS) would have to decide if and which reforms of the CAS rules should be undertaken," he said.

Any changes would need to comply with Swiss law and the need to maintain an efficient arbitration system in sport, Reeb confirmed.

Asked how the CAS, created in 1984, could maintain its status and integrity in the future, he pointed to the fact that it was the only international arbitration tribunal specialized in sport.

"It is recognized by all Olympic sports federations, many non-Olympic sports federations, various international and national sports-bodies, the World Anti-Doping Agency, and indirectly by all governments which have recognized the application of the World Anti-Doping Code," he said.

"It has the support of the sport movement and is clearly beneficial to the sport generally. Its structure may still have to evolve through the years but its spine is solid and it seems difficult to imagine international sport deprived of its

specialized arbitration court," he added.

US Sports Law Attorney View

Asked about the affect of the Pechstein case on the CAS, Michael Buckner tells ATR that it will impact the sports court in some jurisdictions.

"I know, in the United States, athletes have taken their cases before federal courts, and federal courts have denied taking those cases," he said, adding that the CAS operated was supposed to ensure that there be uniformity among the signatories in CAS awards.

"You cannot have what this athlete and other athletes are trying to do... taking their bad decisions back to courts in their home jurisdictions. I think if the German decision is upheld, it will cause some initial ripples, and it could impact the entire system."

Is the Pechstein case a huge landmark for that reason?

Buckner says yes, if it’s upheld. "However, if you look at the decision of the judge from Munich, there are a few of his rationales that CAS can go back and fix, if the decision is upheld.

"For example, the fact that the judge indicated that athletes do not have any participation in the selection of arbitrators. Well, that’s a rule that can be fixed, because those rules have been revised over a period of time and that can definitely be addressed," he said.

He said the judge also talked about languages being used, primarily English and French. "There’s already a provision that if the athlete wants to proceed to use another language, that’s already in the rules, but those types of things can also be clarified. I think that the decision could impact the system, but I don’t think it’s the death knell in the system. I think there’s still time, even if the decision is upheld, to make the necessary corrections," Buckner added.

Reported by Mark Bisson and Andrew Murrell

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