Joseph Bryan, of Littleton’s Sports Law Group, examines the ECtHR decision in Mutu & Pechstein v Switzerland.
In an important judgment handed down today, a Chamber of the European Court of Human Rights has ruled on the compatibility of the constitution and procedures of the Court of Arbitration for Sport (“CAS”) with article 6(1) of the European Convention on Human Rights (the “Convention”) (the right to a fair trial).
In Mutu & Pechstein v Switzerland, the Court considered two questions:
1. Was the CAS an independent and impartial tribunal established by law within the meaning of article 6(1)?
2. Was there a violation of article 6(1) where proceedings before the CAS concerning an anti-doping sanction were not held in public?
In short, the Court answered the first question in the affirmative, but found that the private nature of a hearing violated of the right to a fair trial.
Background to the case
Both applicants need little introduction. Adrian Mutu was a star striker signed by Chelsea FC in 2003 – one of the first signings of the Abramovich era. At the start of his second season at the club, an FA anti-doping test found traces of cocaine in a sample provided by Mutu, as a result of which Chelsea terminated his contract. He was found by an FA appeals committee to have been in breach of contract, a decision later upheld by the CAS (the “first CAS appeal”).
Chelsea later filed a claim for compensation with a FIFA dispute resolution panel, which ordered Mutu to pay €17m damages. The CAS dismissed the player’s appeal, as did the Swiss Federal Supreme Court. One of Mutu’s (unsuccessful) arguments before the Swiss appeal court was that the CAS was not independent or impartial as one of the arbitrators had been a partner in a law firm which had previously acted for Chelsea, while another had sat on the first CAS appeal.
Claudia Pechstein is a professional speed skater. She had been suspended by the International Skating Union after an adverse finding following anti-doping tests in February 2009. She appealed her suspension to the CAS. The CAS hearing took place in private, despite the athlete’s objections. The CAS upheld her suspension and an appeal to the Swiss Federal Supreme Court was dismissed.
Summary of the Court’s findings
The Court noted that private arbitration clauses were not, in principle, incompatible with the Convention. The issue, however, was whether in accepting the jurisdiction of the CAS the applicants had “waived freely, lawfully and in an unequivocal manner” their article 6(1) rights. Neither Mutu nor Pechstein had done so: Mutu because he had objected to the appointments of one of the arbitrators (so any waiver was equivocal); Pechstein because she had no real choice not to submit to the CAS procedures (her suspension, which prevented her from plying her trade as a professional skater, was otherwise unappealable).
In rejecting the contention that the CAS was not independent or impartial, the Court held:
1. the CAS had all the hallmarks of a “tribunal established by law”;
2. some of the complaints about the constitution of the CAS were too vague and hypothetical or simply unsubstantiated;
3. although an athlete must select its chosen arbitrator from a CAS-prescribed pool, there were almost 300 arbitrators to choose from;
4. although anti-doping organisations exerted a “genuine influence” over the selection of arbitrators, it did not follow that the individual arbitrators selected were not independent or impartial; and
5. there would be no “apprehension of partiality” merely because an arbitrator had already examined the same facts where the legal issues to be decided were different.
As to the lack of a public hearing in Pechstein’s case, the Court:
1. emphasised the importance of the public nature of hearings in civil cases;
2. took into account that the athlete had expressly requested a public hearing before the CAS; and
3. found the issue of the merits of a sanction imposed in relation to an anti-doping violation had required a hearing that was subject to public scrutiny.
Consequences of the decision
The Court’s ruling confirms that the well-established CAS procedures for selecting and appointing arbitrators (the so-called “closed list”) are compliant with Convention rights, so in that respect practitioners can expect the status quo to prevail.
By contrast, the finding that the private hearing was in this case incompatible with the right to a fair trial may have far-reaching consequences.
It should be emphasised that this was a decision on particular facts. Two key features were that the athlete had specifically requested a public hearing and that the matter being heard by the CAS concerned the merits of a sanction which deprived the athlete of the right to practise her profession. It may be, therefore, that the denial of a public hearing in ‘less serious’ cases would not be incompatible with article 6(1).
The judgment is likely, however, to have an impact beyond anti-doping regulation: for example, the determination of sanctions for sports-related disciplinary or betting offences may now need to be heard in public. It may also affect non-CAS tribunals: national governing bodies will be carefully considering whether their own arbitral procedures are human-rights-compliant.
In any event, today’s ruling is not yet final: under article 43 of the Convention, any party has the right to request a referral to the Court’s Grand Chamber. Given that the case appears to raise a serious issue of general importance, today’s ruling may well not be the last word.
 The judgment can be found here. It is currently only available in French. This article has been prepared from a Press Release issued by the court (available here) and is subject to the anticipated issuing of the judgment in English.
 The appointment of CAS arbitrators is governed by the Statutes of the Bodies Working for the Settlement of Sports-Related Disputes, the latest edition of which (in force as from 1 January 2017) can be found here.