Governance
Mutu and Pechstein v. Switzerland: What the European Court of Human Rights Decided
Mutu and Pechstein v. Switzerland is the judgment of 2 October 2018 in which the European Court of Human Rights examined, for the first time, whether the Court of Arbitration for Sport (CAS) met the fair-trial guarantees of Article 6 of the Convention. A Chamber of the Third Section found no violation on the independence and impartiality of CAS, by five votes to two, but unanimously found a violation because one applicant was denied a public hearing.
Who were the applicants and why was Switzerland the respondent?
The judgment joins two applications, nos. 40575/10 and 67474/10. One applicant is a Romanian footballer who tested positive for cocaine in 2004 and was dismissed by his club; a FIFA dispute body later ordered him to pay the club EUR 17,173,990. The other is a German speed skater who received a two-year doping ban from the International Skating Union's disciplinary commission in 2009.
CAS upheld the sanctions in both cases and the Swiss Federal Court dismissed their challenges in 2010. The applicants then complained to Strasbourg that CAS was not independent and impartial and, for the skater, that her hearing had not been public.
The Court's press Q&A explains that CAS is neither a state court nor an institution of Swiss public law but a private-law foundation. Swiss law, however, gives the Federal Supreme Court jurisdiction to review the validity of CAS decisions, and by dismissing the appeals it gave the awards the force of res judicata in the Swiss legal order.
On that basis the contested acts and omissions could engage the responsibility of the State, and the Court held that it could examine complaints about CAS acts validated by the Federal Supreme Court. The press Q&A also records that this was the first time the Court ruled on the issue: an earlier application by two other athletes was struck off in 2008 after they withdrew it.
Does Article 6 allow sports arbitration at all?
The Court's Q&A states that the right of access to a court is not absolute and may be subject to implicit limitations, provided that the essence of the right is not impaired and that the restrictions pursue a legitimate aim in a proportionate way. Article 6, it adds, does not preclude arbitration courts for certain disputes of a pecuniary nature between private persons.
The Court also stated that arbitration clauses offer undeniable advantages for the parties and for the administration of justice and do not in principle offend against the Convention. The question in these cases was therefore not whether arbitration is lawful, but which safeguards must accompany it.
Compulsory or voluntary arbitration?
The Court distinguishes between the two. In compulsory arbitration the parties have no choice, so the tribunal must provide all the safeguards of Article 6 paragraph 1. In voluntary arbitration the parties may waive some rights, provided the waiver is made willingly, lawfully and unequivocally and comes with minimum safeguards.
For the skater, the Court held that acceptance of CAS jurisdiction was compulsory because refusing it would have ended her professional career. For the footballer, it found that the FIFA rules left dispute resolution to the parties and preserved access to national courts, so his arbitration was not treated as compulsory.
What did the Court find on independence and the public hearing?
On independence and impartiality the Court found no structural lack in CAS, although it acknowledged the real influence of sports organisations over the mechanism for appointing arbitrators. It noted that about 300 arbitrators were on the list, that the one-fifth appointment mechanism had been abolished in 2012, and that the Federal Court's review was adequate.
On the public hearing the result was different. The skater's dispute involved contested facts, expert testimony and a sanction carrying stigma, and the CAS hearing was held in private. The Court found a violation of Article 6 paragraph 1 unanimously.
| Complaint | Finding | Vote |
|---|---|---|
| CAS independence and impartiality (skater, no. 67474/10) | No violation | 5 to 2 |
| CAS independence and impartiality (footballer, no. 40575/10) | No violation | 5 to 2 |
| No public hearing before CAS (skater) | Violation of Article 6 paragraph 1 | Unanimous |
| Pecuniary damage claim of EUR 3,584,126.09 (skater) | Rejected, no causal link | Not stated |
| Non-pecuniary damage (skater) | EUR 8,000 awarded | 5 to 2 |
Source: Judgment, Mutu and Pechstein v. Switzerland, 2 October 2018 (text mirrored by Lexploria)
Was there a dissent, and is the judgment final?
Judges Keller and Serghides agreed on the public-hearing violation but would also have found a violation concerning the independence and impartiality of CAS. They argued that CAS might not qualify as a tribunal established by law.
Other complaints by the footballer, under Article 4 paragraph 1, Article 8 and Article 1 of Protocol No. 1, were declared inadmissible. In Germany, the skater's separate civil claim produced a ruling in her favour from the Munich Court of Appeal in 2015, which the Federal Court of Justice quashed in 2016.
The judgment is a Chamber judgment. Under the Convention system a party may request referral to the Grand Chamber within three months, and the Court's Q&A says such requests are accepted on an exceptional basis. The header of the judgment text lists it as final on 4 February 2019.
