CAS Procedures Compatible With Right To A Fair Trial Except For Refusal Of Public Hearing (European Court Of Human Rights)

Author:Ms Nathalie Voser and Benjamin Gottlieb
Profession:Schellenberg Wittmer Ltd

In Mutu and Pechstein v Switzerland (Applications no. 40575/10 and no. 67474/10) (ECHR 324 (2018)), the European Court of Human Rights has confirmed that the procedures of the Court of Arbitration for Sport are compatible with the right to a fair trial under Article 6(1) of the European Convention on Human Rights. However, in one of the claims, it did find a violation of the right to be heard with regard to a denial of public proceedings.


The European Court of Human Rights (ECHR) has held, by a majority decision, that the right to a fair trial granted under Article 6(1) of the European Convention on Human Rights (Convention) had not been violated by an alleged lack of independence by the Court of Arbitration for Sport (CAS). In considering two independent applications by athletes Darian Mutu and Claudia Pechstein, the ECHR did not find any general structural absence of independence and impartiality in the CAS. It also denied the criticism regarding personal impartiality of certain arbitrators.

However, in the case of Pechstein, the ECHR recognised a violation of the right to a fair trial with regard to the denial of public proceedings before the CAS. It held that, in view of the compulsory nature of the arbitration in her case, the questions concerning the merits of the sanction imposed on Pechstein for doping, required a hearing before the CAS that was subject to public scrutiny.

The judgment brings, at least for the time being, two long standing sagas in sports arbitration to a close, which have kept the arbitration community in suspense for eight long years. It furthers legal certainty in that it reinforces the legitimacy of CAS tribunals and clarifies that states have a responsibility to ensure compliance with human rights, even in cases of private adjudication bodies. (Mutu and Pechstein v Switzerland (Applications no. 40575/10 and no. 67474/10) (ECHR 324 (2018) (2 October 2018).)


Article 6(1) of the European Convention on Human Rights (Convention) provides for the right to a fair trial:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice...".


This decision concerned two independent claims by two athletes, the Romanian football player Darian Mutu (Mutu) and the German speed skater Claudia Pechstein (Pechstein).


In 2003, Mutu was transferred for €26 million from AC Parma to Chelsea. In 2004, Mutu tested positive for cocaine, whereupon his new club, Chelsea, terminated the contract with him.

Mutu and Chelsea both submitted the matter to the Football Association Premier League Appeals Committee (FAPLAC), which, in April 2005, confirmed that Mutu had breached the contract. In December 2005, this decision was confirmed by the CAS. Thereafter, Chelsea sued Mutu for damages resulting from the now confirmed breach of contract before the Disputes Division of the International Federation of Association Football (FIFA). In 2008, FIFA's Disputes Division delivered its judgment ordering Mutu to pay over17 million in damages. Mutu appealed this decision to the CAS but was unsuccessful. Finally, Mutu applied to the Swiss Supreme Court to set aside the CAS decision, arguing that the CAS panel who heard his case was not independent or impartial. Further, Mutu alleged that the law firm of the CAS panel's president, Professor Luigi Fumagalli, represented Chelsea's owner, Roman Abramovich. In addition, Mutu criticised the fact that arbitrator...

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