Landgericht München I
Urteil Az. 37 O 28331/12 Claudia Pechstein vs DESG & ISU
On 1 July 2009 the International Skating Union (ISU) imposed a 2 year period of ineligibility on the German Athlete Claudia Pechstein. On basis of all evidence presented in this case the ISU Disciplinary Commission ruled that the Athlete has applied the prohibited method of blood doping.
The Athlete denied the doping allegations and appealed with the Court of Arbitration for Sport (CAS) and the Swiss Federal Supreme Court. All 4 appeals were dismissed and the ban was upheld.
Hereafter the Athlete started proceedings with the German District Court in Munich (Landgericht München I) against the ISU and the Deutsche Eisschnelllauf-Gemeinschaft (DESG). The Athlete claimed damages suffered as a result of a doping ban.
On 26 February 2014 the Munich District Court dismissed the Athlete’s claim but also ruled that the arbitration clause contained in the athletes’ agreement between Pechstein and both the ISU and DESG to be invalid.
The Munich court found that at the time the Athletes‘ agreements with ISU and DESG were entered into, a structural disbalance (strukturelles Ungleichgewicht) existed between Pechstein and the sport federations, who formed a monopoly. Pechstein did not enter into the agreement voluntarily, but only because she had no choice. Had she not signed the agreements, she would not have been able to enter competitions and hence, unable to pursue her career as a professional athlete.
On that basis, the court found that it had jurisdiction to hear the damages claims, and the defendants could not invoke the arbitration clauses. However, the court held that it could not revisit and review the legality of the ban. As it was bound by the CAS findings that the ban was legal, the Athlete’s damages claims were unfounded.
On the issue of the legality of the ban, the arbitral award of the CAS was final, and its finality was to be respected by the Munich court. Pechstein could have, and should have challenged the jurisdiction of the CAS during the arbitral proceedings.
At the time she appealed the ban to the CAS, the structural disbalance did no longer play a role. Still, Pechstein, in full knowlegde of all the circumstances, did appeal to the CAS. At that point in time, she should have invoked that she did not enter into the arbitration agreement voluntarily.
The same was true for other procedural challenges to the CAS proceedings. The fact that the arbitration agreement is void (Nichtigkeit der Schiedsvereinbarung) does not preclude the recognition of the arbitral award in the Munich proceedings.
