Robert Jasiek
2015-01-15 13:56:00 UTC
http://www.justiz.bayern.de/gericht/olg/m/presse/archiv/2015/04642/index.php
On 2015-01-15, the cartel court of the Oberlandesgericht München
(Bavarian high court in Munich, court of 2nd instance) has made its
preliminary judgement in the case Claudia Pechstein - ISU
(International Skating Union) by declaring the admissibility of
Pechstein's case. The verdict states the ineffectiveness of the
arbitration agreement between ISU and Pechstein and denies recognition
of CAS (Court of Arbitration for Sport, highest international sports
court in Lausanne, Switzerland).
If ISU appeals within 4 weeks, the Bundesgerichtshof (Federal German
Court) judges in 3rd instance about the admissibility of Pechstein's
case. ISU would have 3 months to justify its case, then Pechstein
would have 3 months to justify hers, then a decision is possible. If
admissibility will be confirmed (or ISU does not appeal for the sake
of this clarification), the case will go back to the Oberlandesgericht
München. It will then judge about the main case concerning
compensation and doping. Pechstein claims 4.4 Millionen Euro from ISU.
The verdict about admissibility relies on the Gesetz gegen
Wettbewerbsbeschränkungen (the German law against restraints of trade,
cartel law), the principle of state under the rule of law
(Rechtsstaatprinzip) in the Grundgesetz (German constitution) art. 101
para. 1 sentence 2 (Nobody may be withdrawn from his lawful judge.),
the ordre public (öffentliche Ordnung), Zivilprozessordnung (code of
civil procedure) §1061 para. 1 sentence 1 (The recogition and
execution of foreign arbitration judgements goes by the treaty of
1958-06-10 about the recogition and execution of foreign arbitration
judgements (Übereinkommen über die Anerkennung und Vollstreckung
ausländischer Schiedssprüche) Bundesgesetzblatt (federal law journal)
1961 II p. 121 and art. V para. 2 lit. b.
ISU is said to have abused its monopol and thus violated cartel law to
force the unfair arbitration agreement on Pechstein, in which she had
to agree to accept CAS for judgements about doping cases and to
exclude regular courts. CAS and its filling of judges are said not to
have sufficed requirements of the principle of state under the rule of
law.
The case has significant relevance also for Go arbitration, especially
with respect to doping and possible CAS cases. For a more accurate
assessment of consequences, one will have watch the further proceeding
of the case.
More details of the verdict are studied below. German courts are not
bound by the CAS verdict. On 2009-01-02, Pechstein had to sign a
preformulated competition note, which contained the arbitration
agreement. In 2009, Pechstein was sentenced with a doping ban [for 2
years].
The case of doping is not decided yet. [Pechstein relies on
haematologists to claim a blood anomaly genetically inherited from her
father for explaining her varying reticulocyte values. At CAS,
Pechstein needed to defend her non-guilt concerning doping; at German
courts, ISU will need to make a case for her guilt.]
In the case, the arbitration agreement is ineffective because of
violating conclusive cartel law as follows. On the market of supply
(and offering) of ice skating world championships, ISU is the only
supplier and therefore without market competition and a
market-dominating monopolist according to German cartel law.
Participation in national sports competitions cannot replace
participation in international sports competitions because of their
prevailing world-wide interest and related commercial utilisation by
successful athletes. A market-dominating enterprise may not prescribe
business conditions derivating from such that, with high probability,
would exist in the case of effective market competition. Although
arbitration agreements demanded by organisers of internation sports
competitions do not per se imply abuse of market power, there are
strong facts-orientated reasons for solving cases of sports
arbitrations between athletes and sports associations in sports
courts: similar cases do not easily get different judgements so that
athletes can have similar chances when participating in sports
competitions. However, the particular case is an abuse of market power
that ISU demanded from Pechstein signing of the arbitration agreement
of favour of CAS. The involved associations (international sports
associations, the national [German] and the international olympic
committees) had decisive direct and indirect forms of influence on the
one-sided selection of judges in favour of the associations. Athlets
are forced to accept this only because they have no other choice of
participation in international sports competitions. As a consequence
for actual arbitrations at sports courts in cases between associations
and athletes, the associations have a structural advantage hurting the
neutrality of CAS. Instead, [in the future,] precautions must be taken
to avoid the mere possibility and suspicion of manipulation of the
selection of the judges. In the case of an effective market, Pechstein
would not have been forced to accept the relevant specifications in
the arbitration agreement in order to participate in the world
championships. The derivation from specifications in an arbitration
agreement under conditions of an effective market competition implies
that Pechstein is withdrawn her constitutional rights to the principle
of state under the rule of law, regular state courts and the lawful
judge. Hence, the case is relevant and admissibility found.
It is found that the CAS verdict cannot be recognised. Therefore,
German courts are not bound by its statement whether the doping ban
was just, as follows. According to the laws mentioned above, if the
CAS verdict were recognised, it would contradict the ordre public,
contradict cartel law, perpetuate ISU's abuse of monopol and withdraw
Pechstein's rights to the principle of state under the rule of law,
regular state courts and the lawful judge. Hence, the CAS verdict is
unrecognisable. As to foreign arbitration verdicts, ordre public and
application of related specifications of cartel law are decisive. This
excludes recognition of the CAS verdict. ISU was prohibited by cartel
law to demand Pechstein's agreement to the arbitration agreement.
The verdict carries the number U 1110/14 Kart.
On 2015-01-15, the cartel court of the Oberlandesgericht München
(Bavarian high court in Munich, court of 2nd instance) has made its
preliminary judgement in the case Claudia Pechstein - ISU
(International Skating Union) by declaring the admissibility of
Pechstein's case. The verdict states the ineffectiveness of the
arbitration agreement between ISU and Pechstein and denies recognition
of CAS (Court of Arbitration for Sport, highest international sports
court in Lausanne, Switzerland).
If ISU appeals within 4 weeks, the Bundesgerichtshof (Federal German
Court) judges in 3rd instance about the admissibility of Pechstein's
case. ISU would have 3 months to justify its case, then Pechstein
would have 3 months to justify hers, then a decision is possible. If
admissibility will be confirmed (or ISU does not appeal for the sake
of this clarification), the case will go back to the Oberlandesgericht
München. It will then judge about the main case concerning
compensation and doping. Pechstein claims 4.4 Millionen Euro from ISU.
The verdict about admissibility relies on the Gesetz gegen
Wettbewerbsbeschränkungen (the German law against restraints of trade,
cartel law), the principle of state under the rule of law
(Rechtsstaatprinzip) in the Grundgesetz (German constitution) art. 101
para. 1 sentence 2 (Nobody may be withdrawn from his lawful judge.),
the ordre public (öffentliche Ordnung), Zivilprozessordnung (code of
civil procedure) §1061 para. 1 sentence 1 (The recogition and
execution of foreign arbitration judgements goes by the treaty of
1958-06-10 about the recogition and execution of foreign arbitration
judgements (Übereinkommen über die Anerkennung und Vollstreckung
ausländischer Schiedssprüche) Bundesgesetzblatt (federal law journal)
1961 II p. 121 and art. V para. 2 lit. b.
ISU is said to have abused its monopol and thus violated cartel law to
force the unfair arbitration agreement on Pechstein, in which she had
to agree to accept CAS for judgements about doping cases and to
exclude regular courts. CAS and its filling of judges are said not to
have sufficed requirements of the principle of state under the rule of
law.
The case has significant relevance also for Go arbitration, especially
with respect to doping and possible CAS cases. For a more accurate
assessment of consequences, one will have watch the further proceeding
of the case.
More details of the verdict are studied below. German courts are not
bound by the CAS verdict. On 2009-01-02, Pechstein had to sign a
preformulated competition note, which contained the arbitration
agreement. In 2009, Pechstein was sentenced with a doping ban [for 2
years].
The case of doping is not decided yet. [Pechstein relies on
haematologists to claim a blood anomaly genetically inherited from her
father for explaining her varying reticulocyte values. At CAS,
Pechstein needed to defend her non-guilt concerning doping; at German
courts, ISU will need to make a case for her guilt.]
In the case, the arbitration agreement is ineffective because of
violating conclusive cartel law as follows. On the market of supply
(and offering) of ice skating world championships, ISU is the only
supplier and therefore without market competition and a
market-dominating monopolist according to German cartel law.
Participation in national sports competitions cannot replace
participation in international sports competitions because of their
prevailing world-wide interest and related commercial utilisation by
successful athletes. A market-dominating enterprise may not prescribe
business conditions derivating from such that, with high probability,
would exist in the case of effective market competition. Although
arbitration agreements demanded by organisers of internation sports
competitions do not per se imply abuse of market power, there are
strong facts-orientated reasons for solving cases of sports
arbitrations between athletes and sports associations in sports
courts: similar cases do not easily get different judgements so that
athletes can have similar chances when participating in sports
competitions. However, the particular case is an abuse of market power
that ISU demanded from Pechstein signing of the arbitration agreement
of favour of CAS. The involved associations (international sports
associations, the national [German] and the international olympic
committees) had decisive direct and indirect forms of influence on the
one-sided selection of judges in favour of the associations. Athlets
are forced to accept this only because they have no other choice of
participation in international sports competitions. As a consequence
for actual arbitrations at sports courts in cases between associations
and athletes, the associations have a structural advantage hurting the
neutrality of CAS. Instead, [in the future,] precautions must be taken
to avoid the mere possibility and suspicion of manipulation of the
selection of the judges. In the case of an effective market, Pechstein
would not have been forced to accept the relevant specifications in
the arbitration agreement in order to participate in the world
championships. The derivation from specifications in an arbitration
agreement under conditions of an effective market competition implies
that Pechstein is withdrawn her constitutional rights to the principle
of state under the rule of law, regular state courts and the lawful
judge. Hence, the case is relevant and admissibility found.
It is found that the CAS verdict cannot be recognised. Therefore,
German courts are not bound by its statement whether the doping ban
was just, as follows. According to the laws mentioned above, if the
CAS verdict were recognised, it would contradict the ordre public,
contradict cartel law, perpetuate ISU's abuse of monopol and withdraw
Pechstein's rights to the principle of state under the rule of law,
regular state courts and the lawful judge. Hence, the CAS verdict is
unrecognisable. As to foreign arbitration verdicts, ordre public and
application of related specifications of cartel law are decisive. This
excludes recognition of the CAS verdict. ISU was prohibited by cartel
law to demand Pechstein's agreement to the arbitration agreement.
The verdict carries the number U 1110/14 Kart.