The Compatibility of Forced CAS Arbitration with EU Competition Law: Pechstein Reloaded

Abstract

In its Pechstein ruling, the Oberlandesgericht (OLG) München based itself on German antitrust law to challenge the validity of arbitration clauses in favour of the Court of Arbitration for Sport (CAS), which are commonly used across the sporting world. Interestingly, competition law was used to indirectly secure a fundamental right enshrined in Article 6 of the European Convention of Human Rights: the right to a fair trial. In this paper we analyse whether the OLG could have come to a similar result based on Article 102 TFEU, the EU competition law provision prohibiting the abuse of a dominant position. If the reasoning used by the OLG can be transposed to EU competition law, this would have even more significant consequences for the future of the CAS. The finding of a violation of Article 102 TFEU would give the case a supranational scope and open the door for follow-on damage claims by athletes in all EU Member States.

The paper is structured as follows. The first part elucidates the legal underpinnings of the jurisdiction of the CAS and explicates the forced nature of CAS arbitration. The second part examines whether the imposition of forced CAS arbitration clauses by sports governing bodies may constitute an exploitative abuse of a dominant position under Article 102 TFEU. It will be argued that the answer to this question ultimately depends on the independence of the CAS. The third part, subsequently, scrutinizes whether the CAS fulfils this fundamental requirement. Finally, conclusions are drawn about the challenges ahead for the CAS in the aftermath of the Pechstein case.

Keywords: Court of Arbitration for Sport; Arbitration; Lex Sportiva; EU competition Law; Right to a fair trial; Sports law; Exploitative abuse of a dominant position