Sports Arbitration in the International Arena With Reference to Heinz Muller and Pechstein

Sports Arbitration in the International Arena with Reference to Heinz Muller & Pechstein Case Disputes in sports can be purely commercial or co ntractual, and while some are regulatory, others can be Qausi- Criminal. Sports dispute resolution does no t necessarily have a fixed hierarchy or method. Parties involved in sports firstly, by complaining to the internal authorities available within the sporting federations; secondly, by instituting a writ petition or civil/ criminal case in a court of law; and an d thirdly, through ADR. The modern method of resolving disputes (ADR) encompasses an y or all methods of resolving disputes in sports’ otherwise, then through the traditional method or normal no rmal trial, through courts. This is the main reason why Arbitration in sports is growing in impo rtance. More and more governing bodies are including within their rules, a clause to resolve disputes through arbitration. For example, take the Indian Super League which provides for resolving of any dispute only through arbitration at the first instance. The case of Heinz Muller, a former goalkeeper of FSV Mainz 05, a German football club, was  bit of a wakeup call for the footballing world. Here, at first the Mainz labor court decided that Muller had to be awarded an indefinite-term contract after his first three-year contract was  prolonged by FSV Mainz 05, according to law his short-term contract was illegal, and this resulted from EU Council Directive 1999/70/EC that is implemented in every EU state. The implementation can differ, but there will always be a moment when fixed term labor contracts convert into indefinite term contracts. If we look at the European level there has been no agreement to exempt football from EU Council Directive 1999/70, although this could have been an option. The directive clearly opens the opportunity for agreements between the social partners in this aspect. But, in the appeal further it was held that the EU Directive on fixed term work, were not applicable to the contract  between Muller and Mainz 05 and therefore couldn’t justify the nature of that contract.1 In its assessment the court devoted special attention to the ob jective reason relating to the nature of the

1

FIFPro Press Release, Müller case is a wake-up call for football, 8 April 2015. (Available at: https://www.fifpro.org/news/mueller-case-is-a-wake-up-call-for-european-football/en/).

work, declining justification based thereupon.2 It was thought that the verdict will soon be labeled to have Bosman like implications, if held up by higher courts.3 But, the Landesarbeitsgericht Rheinland- Pflaz has taken a different road, one going in the opposite direction, by deciding that the contested fixed term contract period between a Bundesliga Football Club and a professional player can in fact be justified on the objective reason of the nature of the work 4, which the court had discussed in length, substantiating this claim. Moving to the Pechstein Case, Claudia Pechstein is a German athlete (speed skater) and also their most successful Olympic Champion of all times with 9 Olympics Gold Medals.5 The disciplinary commission of the International Skating Union banned her for a period of two years for violating ISU Anti-Doping Rule 2.2, (for use of a prohibited method which increases her capacity to produce more red blood cells, for removing fatigue). She approached CAS in an appeal against the decision of the ISU disciplinary committee dated 1st July 09’. The results obtained by her in the ISU Championships were disqualified with related forfeiture of any medals, points and prizes.6 This was the first instance when CAS relied u pon merely circumstantial evidence in coming to a decision, which was contested by Pechstein’s lawyer as being highly indirect and were hence termed dubious in nature.7 The athlete voluntarily approached the CAS under the arbitration clause in her underlying contract with the National and International Federation. In further appeal to the Swiss Federal Tribunal8, Pechstein submitted that the Federal Tribunal should annul the CAS award and refer it  back to the Arbitration Tribunal for a new decision.

2

 P. Drabik, Compatibility of fixed-term contracts in football with Directive 1999/70/EC on fixed-term work: the general framework and the Heinz Müller case, Int Sports Law J (2016). 3 “Successful lawsuit threatens time-limited contracts in football” http://www.dw.com/en/successful-lawsuitthreatens-time-limited-contracts-in-football/a-18341045. 4  Landesarbeitsgericht Rheinland-Pfalz: Urteil vom 17.02.2016 –  4 Sa 202/15 (Appeal decision Heinz Müller case), II.1.b 5  (Available at: www.claudia-pechstien.de/olympia.php). 6  (Available at: www.spiegel.de/media/media/21131.pdf). 7  (Available at: www.spiegel.de/sport/wintersport/eisschnelllauf-olympiasiagerian-pechstein-wegen-blutdpoingsgesperrt-a-634241.html). 8  (Available at: www.swissarbitrationdecisions.com/sites/default/files/10%fevrier%202010%204A%20612%202009.pdf)

She made an application for suspending her ban so that she could participate in various competitions, but the same was rejected even before her legal challenge was adjudicated in its entirety, as the tribunal believed it was more likely that she wouldn’t succeed. During the Second Appearance in front of the Swiss Federal Tribunal9,Pechstein in a request for revision submitted that the Federal Tribunal should annul the CAS award and send the matter  back to CAS for a new decision. However, the same request for revision was rejected. Following 2011, her ban came to an end and she started an action for damages by seeking declaration of illegality of a fine imposed on her in 2009 for doping suspension. The Court opined that the Arbitration Agreement in the athlete’s form was forced as she didn’t have any other option but to sign it to take part and compete in the events, which were organized under their aegis. Pechstein appealed the ruling of the Munich Regional Court to the Higher one and the Court subsequently overturned the lower Court’s decision, finding the Arbitration agreement in favor of CAS and the CAS award issued based on that agreement, violated mandatory German cartel law, which prohibits an abusive conduct by companies that have a dominant position on a market.10 Pechstein case has been compared in contemporary fraternity with the Gundel Case, which  brought about structural and organizational reforms in the CAS as well as making massive  procedural changes in its rules and procedures. If the award is upheld in the German Federal S.C., then CAS awards would be made unenforceable in Germany and it may affect other  jurisdictions as well. Thus, it would effectively disrupt the otherwise stable mechanism for global sports disputes resolution. CAS even released a statement to that effect.11 Here, the structural independence of CAS can be made more warranted to dilute the effect of forced arbitration clauses.

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 (Available at: isuprod.blob.core.windows.net/media/102869/28-septembre-2010-4a-144-2010.pdf)  (Available at: www.lawinsport.com/articles/item/a-guide-to-the-higher-regional-court-s-decision-in-the-pechsteincase#references). 11  (Available at: www.tas.cas.org/fileadmin/user_upload/CAS_statement_ENGLISH.pdf). 10