Sport International Arbitration before the German Superior Court of Justice

Abstract

The judgment of the Supreme Federal Court of Germany given in the “PechsteinCase” upheld the jurisdiction of the Lausanne-based “Court of Arbitration for Sport”, CAS – in French: Tribunal de l’arbitrage pour le sport, TAS - . For non-German observers this may not have been a great surprise because this monopolistic judicial body has since a considerable time world-wide been accepted and welcome as “the” International Sport Court, particularly in doping disputes. For Germany, however, it was really a surprise. The reason for this is that the contrary ruling of the Munich Court of Appeals (in German: Oberlandesgericht) had obtained much support in legal doctrine. This, in turn, corresponded to a prevailing rather ideological way of thinking in Germany’s intellectual life and, above all, in the mass media, even those of pretended higher level. In that purview it is to be fought against all kind of powerful entities in society, including monopolistically organized sports organizations; the intellectual leaders are expected to do their utmost to restrict as far as possible the activities of those associations, activities which are in principle supposed to be oppressive against individuals. With regard to sports organizations this mentality had a double focus. First: the principle of voluntariness of any arbitration agreement is said not to be respected if sports organizations make participating in sporting contests dependent on signing the arbitration agreement in the competition contract terms. Second: Within the meaning of Anti-Trust Laws the sports organizations are qualified as “undertakings of a dominant economic market position” which is held to be abused by requesting the submission under the CAS arbitration. The second aspect was the focus of the Court of Appeal’s ruling. The closed list of accepted arbitrators (more than 150) was denounced to have been set up by the “dominant” international sports associations without any participation of the athletes. The paramount merit of the BGH’s decision is precisely not to have given way to these kinds of widespread popular moral pressure which had already let traces in other countries and which hopefully will not rise again.