In 2009, the International Skating Union (ISU) imposed a two year ban on German speed skater Claudia Pechstein for doping. Her appeal before the CAS was rejected in November 2009, and her appeal before the Swiss Federal Tribunal was rejected in February 2010. Unlike in other cases, this was not the end of it. Thirteen years later, legal proceedings still go in Germany in a way which raises legal concerns as to the international anti-doping system of norms and judicial review. Revolawtion reproduces hereunder an article by Gerhardt Bubnik, one of the most renowned sports law lawyers (who was the ISU’s legal adviser at the time), on the latest development of the case.
The Strange decision of the German Constitutional Court
Claudia Pechstein’s doping saga continues again
On June 3 , 2022 Germany’s Constitutional Court (BVerfG) issued an unexpected and shocking ruling, overturning a 2016 ruling by the German Supreme Court (BGH) and declaring that German courts have the right to review the merits of the Lausanne Court of Arbitration for Sport’s (CAS) award, which had become final 13 years ago and by which Claudia Pechstein (CP) was found guilty of blood doping and suspended for 2 years. This award was confirmed twice by the Swiss Supreme Court (TF). The Swiss court is the only state court that, based on the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, has the right to review (not on the merits) the award of the CAS.
CP served the imposed sentence and started racing again in 2011. In December 2012, she filed a lawsuit against the ISU in a court in Munich, in which she demanded more than 4 million euros in damages, claiming that she had been found guilty unfairly and unjustly*, and that the German courts have the right to re-examine the whole matter, find her innocent and award her damages for lost earnings and damage to her reputation.
According to Article 13.2.1 of the World Anti-Doping Code (the Code), CAS has exclusive jurisdiction to hear and decide appeals in doping cases. Although the Code is not a binding norm of international law, it has been recognized by more than 200 states, including Germany, in the UNESCO International Convention from 2005. This Convention explicitly follows up and refers to the Code and imposes on the contracting states: a) at the national and international level to take measures that will be in accordance with the Code (Article 3, a), b) to comply with the principles of the Code (Article 4, 1) and the principle of exclusive jurisdiction of the CAS is considered one of the main principles of the Code, which ensures a uniform international anti-doping system, uniform interpretation of the Code and uniform application of sanctions. On February 26, 2014, the Munich Court of first instance dismissed CP’s lawsuit but only because of the New York Convention. In all other respects the court agreed with CP’s arguments. On February 15, 2015 the Munich Court of Appeal upheld the appeal of CP and declared the lawsuit against the ISU admissible. The ISU appealed successfully to the BGH. This court annulled the judgment of the Court of Appeal and dismissed the action as inadmissible. The BGH expressly stated: 1) CAS is an arbitration court in the sense of the German Civil Procedure Act. 2) It is not an abuse of a dominant position if sport federations make the start of athletes dependent on the signing of an arbitration clause in favor of CAS. 3) The arbitration clause is not invalid, neither from the point of view of the constitutional right of access to national courts, nor from the point of view of Article 6, paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). CP filed a complaint against this latest judgment with the BVerfG, but this court did not take any action and this complaint was completely forgotten in the following years. Already in 2010 CP also filed a complaint against Switzerland with the ECHR. In the complaint she claimed that her fundamental human rights had been violated, in particular her right to a public trial, included in Article 6, paragraph 1 of the Convention, and that the arbitration clause in favor of the CAS was invalid, because it was not signed voluntarily, but under duress due to the ISU’s monopoly on international competitions. On October 2, 2018, ECHR rejected all of CP’s arguments and upheld only one, which, however, had no effect on the dismissal of the claim. The court recognized that the CAS proceedings violated CP’s fundamental human right to public hearing enshrined in Article 6/1 of the Convention, but at the same time the court added that this did not affect the fair trial and awarded CP only a symbolic amount of EUR 8,000. The following conclusions made by the ECHR are essential: 1) CAS is an independent and impartial arbitration court. 2) Proceedings before the CAS meet the requirements of a fair trial. 3) « The Court does not find any casual connection between the established violation (of the principle of public hearing) and the financial damage claimed by the plaintiff. There is no evidence to suggest that, even if the arbitrator’s award had been made after a public hearing, the panel would have ruled in favor of the plaintiff. » In May 2022 the BVerfG woke up after 6 years of inactivity and, contrary to the decision of the ECHR made a completely opposite decision. The court stated the following main reasons for its decision: 1) CP’s fundamental human right to a public trial was violated and this right is part of German constitutional law and also part of the principle of « rule of law », 2) the arbitration clause is null and void due to the lack of free will, 3) the arbitration clause is null and void and the arbitration award cannot be recognized also because both are in conflict with German cartel (antitrust) law, which is s part of the German constitutional order. 4) As a German citizen, CP has a constitutional right to judicial protection (Justizgewährleistung) by German courts.
At the beginning I wrote that the decision of this court was « strange ». Why? 1) Six years of court inactivity. If a violation of a fundamental human right is alleged, redress should take place as soon as possible. After all, the principle of timely proceedings and timely decision is one of the principles of a fair trial. May be, the German court waited for the ECHR’s decision in the hope that this court would grant CP’s complaint and the German court would then simply follow suit. 2) Sudden hurry in making the decision. BverfG sent only on May 11, 2022 (six years since it had been filed) the CP’ complaint to the ISU and fixed May 30 as deadline for ISU comments, although the matter involved complex legal issues. The ISU asked twice for an exptension of this short deadline, but the court at first rejected it and then as late as on May 27, extended it by 2 days! This looks more like a joke rather than as a serious approach. 3) The ISU had no other possibility and filed its comments on June 1. What happened then: Already on June 3, 2022 the BverfG decided the case and the full decision in writing was signed! This necessarily raises the presumption that the decision had been prepared already earlier regardless of the ISU’s Response filed on June 1. 4) Only later the real reason for such an incredible hurry in making the decision could be found out. The presiding judge Dr. Paulus had to retire one day after the decision had been signed. The question why the decision could not wait (considering the 6 year waiting) until the newly appointed judge can join the panel remains to be answered yet, but it certainly provokes some suspicion. 5) Considering how fundamental and important the decision is and how long it has been waiting for, it is unusually short. The entire decision is only 17 pages long, of which only 10 pages contain the reasons. And therein, the court repeats one and the same reason over and over again, namely the violation of the right to a public trial, and only on the last page in one paragraph, does it state yet another reason, namely that the arbitration clause is in conflict with the prohibition of monopoly abuse, and therefore the jurisdiction of the CAS does not exist. 6) Only the hurry in making and writing the decision can explain that the highest German court could make the following mistake in legal arguments. It appears from the decision that the court believes that the Wada Code, specifically article 13 2.1 about the exclusive jurisdiction of CAS, is a norm of international law. I believe and I am in agreement with experts both on international law and on sport law that the WADA Code is a private codification adopted by private sport associations and has never been made part of any binding international treaty. Yet, it has got certain degree of international recognition by the governments of over 200 countries, including Germany, in the UNESCO Convention, however, this Convention has not the status of an international binding treaty. 7) Although the Court acknowledges that the judgments of the ECHR in matters of interpretation of the Convention have a « guiding and orienting function » and emphasizes that it agrees with ECHR in the conclusion that here was a violation of the principle of public trial, the court completely neglects to mention all the other conclusions of the ECHR, rejecting all other arguments of CP and dismissing her claim for millions EUR. Only from paragraphs 26-32 of the decision it can be perhaps deduced that the court decided so because some provisions of the German constitution too were violated, and that in such a case German law provides greater protection than the Convention. 8) The Munich Court of Appeal explicitly and now implicitly also the BVerfG by declaring the arbitration clause null and void, went so far that they apparently violated the recognized principle of « comity of nations », which has been part of international customary law since the 19th century. In the given case, the German courts recognized that the validity of the arbitration clause was governed by Swiss law. The Swiss TF has repeatedly ruled that the clause was valid. However, the German court nevertheless adopted the right to interpret the Swiss law in the opposite way and decided that under Swiss law it was null and void! 9) Last but not least, the decision of the BVerfG is in conflict with the international obligations of the German government, assumed by signing the above mentioned UNESCO Convention. Although the Code (and thus its Article 13.2.1.) is not directly part of the Convention, and has not become a norm of international law, the decision of the BVerfG nevertheless undermines trust and the possibility of relying on the commitments of the German government (it appears from para 40 of the decision that the BverfG is of the opinion that the WADA Code, in particular art. 13.2.1, is a part of international law, which is totally wrong and contrary to a uniform and generally recognized opinion that it is a private law regulation).
BVerfG decided that the German courts should consider the claim for damages on the merits, which includes the necessity and the right to re-consider the question of whether CP was guilty or not. It is true that the CAS rules have been in the meantime changed and allow public hearings but the opinion that therefore there is no need to fear that the example of the German courts could be followed by courts of other countries, is wrong, because BVerfG court gives also another reason at the end of its decision, namely that the arbitration clause is in violation of the prohibition of monopoly abuse and thus also in violation of the German constitutional law. The decision of BverfG still represents danger and threat to the uniform international anti-doping system represented by the Code and especially by its Article 13.2.1. This danger lies in the fact that athletes from other countries, especially those outside the Council of Europe, could, following the example of CP, start turning to the courts of their countries with actions to annul the CAS decisions claiming that the proceedings before the CAS and its findings violate this or that provision of the constitutional law of the given country. It cannot be ruled out in advance that the courts of some countries would agree to such a lawsuit, perhaps also in the interest of helping an athlete who has made his/her homeland famous, etc. This danger is not too big for athletes who are still active, because a CAS decision would prevent them from participating in competitions in all countries other than their home country, but when it comes to « reputation » or compensation for former competitors (similar to CP), such a danger cannot be underestimated.
In conclusion, I would like to add that I have always valued the impartiality, objectivity and high professionalism of German courts. Unfortunately, the proceedings before the courts in Munich and now also the decision of the BVerfG have raised doubts in my mind, whether these courts were not influenced to some extent by an effort to « help a famous German sportswoman », who, in their opinion, might have been innocent.
* The opinion that several years later a medical report has proved that CP did not dope because she suffered from an inherited blood anomaly is not correct. More on this issue can be found in the ISU Press Release of 2015 – see: https://www.isu.org/docman-documents-links/zz-archives/documents-communications-1/press-releases-1/2015/2793-claudia-pechstein-has-not-been-rehabilitated/file The above opinion will be surely subject to a detailed scrutiny in the coming proceedings before the court in Munich.