ECHR, Mutu and Pechstein v Republic of Switzerland, App. №№40575/10, 67474/10, 8 October 2018
Composition of the European Court of Human rights:
Helena Jäderblom (Sweden), President, Branko Lubarda (Serbia), Luis López Guerra (Spain), Helen Keller (Switzerland), Pere Pastor Vilanova (Andorra), Alena Poláčková (Slovakia), Georgios A. Serghides (Cyprus)
Stephen PhillipsOn 2 October 2018, the 8-year proceedings on the independency and impartiality of the Court on Arbitration for Sports (CAS) in Lausanne, initiated by two professional athletes Mr Adrian Mutu (“Mr Mutu” or “Claimant 1”) and Ms Claudia Pechstein (“Ms Pechstein” or “Claimant 2”) respectively, culminated in the decision of the European Court of Human Rights (ECtHR).
Mr Mutu is a football player, whose sports career ended after the Chelsea Football Club (Chelsea) terminated his contract due to the positive result of the anti-doping checks in 2004. Mr Mutu lodged an application before the Football Association Premier League Appeals Committee (FAPLAC) and then appealed to CAS. Both bodies found a unilateral violation of the contract on his behalf “without any reasonable cause.” When in 2006 Chelsea filed an action for damages with the Disputes Division of the Fédération Internationale de Football Association(FIFA), Mr Mutu was ordered to pay over €17 million. Having appealed the FIFA decision to CAS, he failed. Based on the anonymous e-mail, which stated that one of the CAS arbitrators had represented Mr Abramovich, the Chelsea’s owner, whereas the other participated in the first CAS proceedings with Mr Mutu, Mr Mutu submitted an appeal before the Swiss Federal Supreme Court. That appeal was also rejected in 2010, and Claimant 1 started proceedings before the ECtHR.
In 2009, positive anti-doping tests results also triggered the suspension of Ms Pechstein, a speed skater. Having unsuccessfully appealed the decision of the International Skating Union (ISU) to CAS, she filed a claim to the Swiss Federal Supreme Court in 2010. The court dismissed her arguments on the lack of impartiality concerning the method of appointing the CAS arbitrators, the absence of public hearing and a performed opinion of the CAS panel president. After futile attempts to overturn the suspension before German courts, Ms Pechstein finally lodged an application to the ECtHR.
Claimants invoked a number of articles of the European Convention of Human Rights (ECHR), including Article 6(1) on the right of a fair trial.
The ECtHR held that although CAS is a privately-owned institution, and not a state court, its proceedings are covered by Article 6(1) of the ECHR establishing the right to a fair and public hearing. The tribunal explained thatwhen parties submit a dispute to a compulsory arbitration, all the guarantees of a fair trial under the ECHR must be provided. In this case, proceedings before CAS became the only way for Ms Pechstein to pursue her career, as compared to Mr Mutu, who could have filed a claim with a state court. Following this logic, ECHR found that the absence of a public hearing in Ms Pechstein’s compulsory arbitration proceedings amounted to a violation of Article 6(1) of the ECHR, especially considering her explicit request for a public hearing. Nonetheless, Claimants’ arguments concerning the lack of CAS tribunal’s independence were dismissed with two judges dissenting.
Higher School of Economics, LLM student in international trade, finance and economic integration, Moscow
1) Press release of the European Court of Human Rights issued by the Registrar of the Court “The procedures followed by the Court of Arbitration for Sport complied with the right to a fair hearing, apart from the refusal to hold a public hearing”//ECHR 324 (2018), October 2, 2018.
2) Nathalie Voser, Benjamin Gottlieb (Schellenberg Wittmer Ltd, Switzerland), How the European Court for Human Rights Interferes in (Sports) Arbitration, Kluwer Arbitration Blog, December 19 2018, http://arbitrationblog.kluwerarbitration.com/2018/12/19/how-the-european-court-for-human-rights-interferes-in-sports-arbitration/.
3) Cathérine Van de Graaf (ed. by Laurens Lavrysen, ClairePoppelwell-Scevak), Mutu and Pechstein v. Switzerland: Strasbourg’s Assessment of the Right to a Fair Hearing in Sports Arbitration, November 30, 2018, https://strasbourgobservers.com/2018/11/30/mutu-and-pechstein-v-switzerland-strasbourgs-assessment-of-the-right-to-a-fair-hearing-in-sports-arbitration/.