Mutu and Pechstein v. Switzerland

Information Note on the Court’s case-law 222

October 2018

Mutu and Pechstein v. Switzerland - 40575/10 and 67474/10

Judgment 2.10.2018 [Section III]

Article 6

Civil proceedings

Disciplinary proceedings

Article 6-1

Civil rights and obligations

Impartial tribunal

Independent tribunal

Method of appointing arbitrators to the Court of Arbitration for Sport: Article 6 § 1 applicable; no violation

Facts – In the first application, the applicant was a professional footballer who had been ordered to pay a very high sum to his club for a unilateral breach of contract. The applicant in the second application was a speed skater on whom sanctions had been imposed for doping. These two applications raised questions concerning the fairness of the procedures before the Court of Arbitration for Sport (CAS).

Law – Article 6 § 1

(a) Applicability – The first applicant complained about the arbitration decision ordering him to pay damages to Chelsea Football Club. The rights in question were clearly of a pecuniary nature and resulted from a contractual relationship between private persons. They were therefore “civil” rights for the purposes of Article 6.

In the second application, it was the decision upholding the applicant’s two-year suspension that was in dispute. Given that they concerned disciplinary proceedings conducted before corporate bodies in which the right to practise a profession was at stake, the “civil” aspect of the rights in question was not in doubt.

Conclusion: Article 6 § 1 applicable.

(b) Jurisdiction ratione personae – The complaints essentially concerned the composition of the CAS and the procedures followed before that body. However, the CAS was neither a State court nor another institution of Swiss public law, but an entity set up under the auspices of the International Council of Arbitration for Sport (ICAS), that is, a private-law foundation.

That being said, in certain enumerated circumstances, particularly with regard to the lawfulness of the composition of the arbitration panel, Swiss law provided that the Federal Supreme Court had jurisdiction to determine the validity of the decisions issued by the CAS. In addition, in the cases in question, the Federal Supreme Court had dismissed the applicants’ appeals, thus attributing res iudicata effect in the Swiss legal order to the arbitration awards in question.

The contested acts and omissions were thus capable of engaging the respondent State’s responsibility under the Convention. The Court had jurisdiction ratione personae to examine the applicants’ complaints concerning acts or omissions by the CAS that had been validated by the Federal Supreme Court.

Conclusion: compatible ratione personae.

(c) Merits

(i) The validity of the applicants’ agreement to arbitration

(α) Situation of the second applicant (application no. 67474/10) – The applicable rules of the International Skating Union (ISU) provided for the CAS’s compulsory jurisdiction in disputes arising from disciplinary proceedings. The second applicant was obliged to accept the arbitration agreement in order to be able to take part in competitions organised by the ISU and to earn her living. In view of the restriction that a refusal to accept the arbitration clause would have entailed for the second applicant’s professional life, she had not accepted this clause freely and in a non-equivocal manner.

Although it had not been imposed by law but by the ISU’s rules, the second applicant’s acceptance of the CAS’s jurisdiction had to be regarded as “compulsory” arbitration. In consequence, this arbitration process was required to provide the guarantees of Article 6 § 1 of the Convention.

(β) Situation of the first applicant (application no. 40575/10) – The applicable rules of the relevant sporting federation did not impose arbitration, but left the mode of resolving disputes to the contractual freedom of the clubs and players. There was no question of “compulsory” arbitration.

However, the first applicant had requested the withdrawal of the arbitrator chosen by Chelsea Football Club, and had challenged his independence and impartiality. It followed that the first applicant had not waived “in an unequivocal manner” his right to challenge the CAS’s independence and impartiality in any dispute between him and Chelsea Football Club. Thus, the arbitration procedure had to provide the guarantees of Article 6 § 1 of the Convention.

(ii) The independence and impartiality of the CAS – Although the CAS derived its authority from a private-law foundation, it enjoyed full jurisdiction in determining, on the basis of rules of law and after proceedings conducted in a prescribed manner, all issues of fact and law submitted to it in the context of the disputes brought before it. Its decisions provided a judicial-type solution to these disputes, and an appeal lay against them with the Federal Supreme Court. Furthermore, the Federal Supreme Court considered the award decisions issued by the CAS as “genuine judgments, comparable to those of a State court”. When ruling on the applicants’ respective cases, through the combined effect of the Federal Act on Private International Law and the case-law of the Federal Supreme Court, the CAS thus had the appearance of a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention.

(α) With regard to the second applicant (application no. 67474/10) – At the relevant time, the list of CAS arbitrators was drawn up by ICAS. It was composed as follows: three-fifths of its members were selected from individuals proposed by the International Olympic Committee, the international federations and the national Olympic committees, chosen from their membership or outside it; one-fifth of the members were chosen by ICAS “after appropriate consultations, in order to protect the interests of athletes”, and one-fifth were chosen from persons who were “independent” vis-à-vis the above-mentioned sporting bodies.

ICAS was required to choose only a fifth of the arbitrators from individuals who had no relationship with the sporting bodies which were likely to challenge athletes in the context of disputes brought before the CAS. In addition, the appointments were made at ICAS’s discretion. However, ICAS was itself entirely composed of individuals who had come from those sporting bodies, which indicated the existence of a certain link between ICAS and the organisations likely to challenge athletes in potential disputes brought before the CAS, particularly those of a disciplinary nature.

Furthermore, the arbitrators were appointed for a renewable four-year term, with no limitation on the number of terms; equally, ICAS had the power to remove, by a decision “with summary reasoning”, any arbitrator who refused or was prevented from exercising his or her functions, or who did not fulfil his or her duties in accordance with the provisions of the Arbitration Code.

In the present case, the arbitration panel which had ruled on the dispute between the second applicant and the ISU was made up of three arbitrators, all selected from the list drawn up by ICAS and subject to ICAS’s power to remove them. Even the option, available to the second applicant, of selecting an arbitrator of her own choice was limited by the obligation to use this list, so that the second applicant did not enjoy a totally free choice.

That being noted, at the relevant time the list of arbitrators prepared by ICAS contained some 300 arbitrators. However, the second applicant had not advanced any factual elements which cast doubt on the independence and impartiality, in general, of these arbitrators and of the arbitration panel which ruled on her case.

While the Court was prepared to acknowledge that the organisations likely to challenge athletes in the context of disputes before the CAS exerted a genuine influence in the selection mechanism in force at the relevant time, it could not conclude, on the sole basis of this influence, that the list of arbitrators had been composed, if only as a majority, of persons who could not be regarded as objectively or subjectively independent and impartial on an individual basis vis-à-vis those organisations.

There were not therefore sufficient grounds for departing from the Federal Supreme Court’s consistent case-law to the effect that the system based on a list of arbitrators met the constitutional requirements of independence and impartiality applicable to the arbitration courts and that the CAS, when functioning as an external appeal body to the international federations, had the appearance of a judicial authority which was independent of the parties.

Conclusion: no violation (five votes to two).

(β) With regard to the first applicant (application no. 40575/10) – The first applicant complained that two of the arbitrators on the arbitration panel which issued a decision in his case had, on an individual basis, been lacking in independence and impartiality. With regard to the first arbitrator, although the facts giving rise to the case were the same, the legal issues decided by the two arbitration panels on which the arbitrator in question had sat were obviously quite different. With regard to the second arbitrator, the Federal Supreme Court had concluded in a lengthily reasoned judgment which contained no hint of arbitrariness that the first applicant had failed to substantiate his allegations.

Conclusion: no violation (five votes to two).

The Court also concluded, unanimously, that there had been a violation of Article 6 § 1 in respect of the second applicant on account of the failure to hold a public hearing before the CAS.

Article 41: EUR 8,000 to the second applicant in respect of non-pecuniary damage; second applicant’s claim in respect of pecuniary damage dismissed.

(See also Osmo Suovaniemi and Others v. Finland (dec.), 31737/96, 23 February 1999; Transado-Transportes Fluviais do Sado, S.A., v. Portugal (dec.), 35943/02, 16 December 2003, Information Note 59; Eiffage S.A. and Others v. Switzerland (dec.), 1742/05, 15 September 2009; Suda v. the Czech Republic, 1643/06, 28 October 2010, Information Note 134; Tabbane v. Switzerland (dec.), 41069/12, 1 March 2016, Information Note 194; and National Federation of Sportspersons' Associations and Unions (FNASS) and Others v. France, 48151/11 and 77769/13, 18 January 2018, Information Note 214)

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