Sports Arbitration – Munich Court of Appeals Does Not Recognize CAS Arbitral Award in Pechstein Case

von Peter Bert

Today, the Munich Court of Appeals (Oberlandesgericht) issued an interim judgment (Zwischenurteil) in the case of Claudia Pechstein, the speed skater. It held the arbitration agreement between Pechstein and the sport’s governing body, the International Skating Union (ISU), to be invalid on competition law grounds. As a consequence, Pechstein’s claims for damages suffered as a result of the doping ban can be brought in the German courts.

Background

Claudia Pechstein, a five-time Olympic gold medallist, was banned from competitions between 2009 and 2011 for a doping offence. After the World Championships in 2009, the ISU had accused Pechstein of blood doping and issued the ban, which was based on irregular levels of reticulocytes in her blood. Pechstein denied the doping allegations. Legal proceedings before the Court of Arbitration for Sport (CAS) and the Swiss Federal Supreme Court followed. The ban was ultimately upheld; apparently, Pechstein’s case was the first doping ban to be based on circumstantial evidence alone. Pechstein is now suing ISU in the German courts for damages she suffered as a result of the ban. The interim judgment does not deal with the merits of the case, but only with the admissibility of the claim in the state courts, given that the athlete’s agreement Pechstein entered into with the ISU contains an arbitration agreement.

In February 2014, the Munich District Court (Landgericht München I) as the court of first instance had also found the arbitration agreement to be invalid, and on similar grounds. However, it had considered itself bound by the CAS arbitral award, because, inter alia, Pechstein had not invoked the invalidity of the arbitration agreement. Ultimately it found against Claudia Pechstein. The matter was heard, upon appeal, by the competition senate (Kartellsenat) of the Munich Court of Appeals ...

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