TAS - Laudo Arbitral ingles

• 2Work of reference: yes ENGLISH TRANSLATION Official reporter of Decisions of the German yes Original judgment in Federal Court of Justice in Civil Matters (BGHZ) German Systematic Collection of Decisions of the German yes Federa l Court o f Justice (BGHR ) Pechstein / International Skating Union Sec. 1025 para. 2, sec. 1032 para. 1 of the Code of Civil Procedure (Zivilprozessordnung, ZPO); sec. 19, para. 1 of the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB); Art. 12 of the Federal Constitution (Grundgesetz, GG); Art. 6 para. 1 of the ECHR a) The Court of Arbitration for Sports (CAS) in Lausanne is a court of arbitration pursuant to the definition of sections 1025 para. 2 and 1032 para. 1 of the Code of Civil Procedure. b) International sports federations organised according to the “one place principle” are market leaders with regards to the admission of athletes to the sports competitions organised by it. c) It is not an abuse of the sports association’s market position if the association makes the participation of an athlete in a sporting competition dependent on the athlete signing an arbitration agreement that includes a clause naming the CAS as the court of arbitration under the anti-doping rules. The Rules of Procedure of the CAS contain sufficient guarantees safeguarding the rights of the athletes, and the arbitral awards of the CAS are subject to review by the Federal Tribunal of Switzerland

(Bundesgericht). d) The fact that the arbitrators must be chosen by the parties from a closed list drawn up by an international body consisting predominantly of representatives of the International Olympic Committee, the National Olympic Committees and the international sport federations is no indication that the Rules of Procedure of the CAS are lacking sufficient guarantees to safeguard the rights of the athletes. With regard

to questions of anti-doping measures, sports federations and athletes are not, generally speaking, divided into opposing “camps” pursuing different interests. e) Under the circumstances, the arbitration agreement is not invalid from the point of view of the right to access to state courts (Justizgewährungsanspruch) pursuant to Art. 2 para. 1 of the Federal Constitution, the fundamental freedom to pursue professional activities pursuant to Art. 12 para. 1 of the Federal Constitution, nor the - 3right to a fair hearing pursuant to Art. 6 para. 1 of the European Convention on Human Rights. German Federal Court of Justice, judgement of 7 June 2016 - KZR 6/15Higher Regional Court of Munich (OLG München) Regional Court (Landgericht) of Munich I - 4ENGLISH TRANSLATION Original judgment in German

FEDERAL COURT OF JUSTICE

IN THE NAME OF THE PEOPLE

JUDGEMENT KZR 6/15 Handed down on: 7 June 2016 Bürk Clerk of the court acting as authentication officer In the legal matter of

1. Deutsche Eisschnelllauf-Gemeinschaft e.V. (DESG), represented by the president,

Menzinger Straße 68, Munich, Defendant,

2. International Skating Union (ISU), represented by the president, Chemin de Primerose 2, Lausanne (Switzerland), Defendant, Appellee and Complainant - Attorneys of record: Jordan and Dr Hall, attorneys at law – versus

Claudia Pechstein, Wendenschloßstraße 298, Berlin, Plaintiff, Appellant and Respondent - Attorney of record: Dr Hammer, attorney at law – - 5Having held a hearing on 8 March 2016, the anti-trust division (Kartellsenat) of the Federal

Court of Justice, presided by the president of the Federal Court of Justice, Limperg, and attended by presiding judges Prof. Dr. Meier-Beck and Dr. Raum and attended by associate judges Prof. Dr. Strohn and Dr. Deichfuß, has passed the following Decision: In reply to the Second Defendant’s writ of certiorari (Revision), the partial final and the partial interim judgement of the anti-trust division of the Higher Regional Court of Munich of 15 January 2015 is hereby set aside insofar as the Court of Appeal has found against the Second Defendant in the said judgement. The Plaintiff’s appeal against the judgement of the Regional Court of Munich I of 26 February 2014 is dismissed in its entirety. The costs of the appeal proceedings shall be borne by the Plaintiff.

The facts of the case: 1 The Plaintiff is an internationally successful speed skater. The First Defendant – which is not involved in the appeal proceedings – is the German National Association for speed skating, which has its registered offices in Munich. The Second Defendant is the International Skating Union (hereinafter referred to as ISU); the ISU has its registered offices in Switzerland. Both federations are organised in accordance with the “one place principle”, i.e., there is only one German and one international federation that organise speed skating competitions on the national and international level. 2 On 2 January 2009, during the period before the speed skating world championships in Hamar (Norway) on 7 and 8 February 2009, the Plaintiff signed a registration form provided by the Second Defendant. If the Plaintiff had not signed this registration form, she would not have been permitted to compete. By signing the form, the Plaintiff undertook, inter alia, to comply with the Second Defendant’s antidoping regulations. Furthermore, she also signed an arbitration agreement that provided that any disputes should be brought before the Court of Arbitration for Sport

(hereinafter referred to as CAS) in Lausanne and that the jurisdiction of the ordinary courts of law should be excluded. - 63 During the World Championships in Hamar, blood samples were taken from the Plaintiff; these samples showed elevated reticulocyte counts. The Second Defendant considered this to be evidence of doping. Its disciplinary commission decided on 1 July 2009 to ban the Plaintiff from competition with retroactive effect as of 7 February 2009 for two years on the ground of illegal blood doping, to annul the results obtained by the Plaintiff during the competitions on 7 February 2009 and to strip her of the points, awards and medals that she had won. In a letter dated 19 July 2009, the First Defendant informed the Plaintiff that she was also excluded from training as a result of this ban and that her status as a member of the team for the Olympic Winter Games 2010 had been suspended. 4 The Plaintiff and the First Defendant appealed to the CAS against the decision of the disciplinary commission. On 29 September 2009, the CAS submitted its Rules of Procedure for these proceedings, in which, inter alia, it determined its own jurisdiction. These Rules of Procedure were signed by the parties. In an award dated 25 November 2009, the CAS dismissed the appeals almost without exception; only the date of commencement of the ban was altered to 8 February 2009. 5 The Plaintiff appealed against this award to the Swiss Federal Tribunal; this appeal was dismissed by a judgment dated 10 February 2010. A further appeal (Revision [i.e.: based on alleged new facts]) filed by the Plaintiff with the Swiss Federal Tribunal was dismissed by a judgment dated 28 September 2010. 6 By the present action, the Plaintiff requests a declaratory judgement stating that her ban due to doping was unlawful, and a decision ordering the Defendants to pay compensation for the material damage suffered by her, as well as compensation for her pain and suffering. The Regional Court (Landgericht) dismissed the complaint

(Regional Court of Munich I, SchiedsVZ 2014, 100). The Plaintiff accepts the dismissal of the complaint against the First Defendant; however, she has filed an appeal against the dismissal of the complaints against the Second Defendant. The Court of Appeal handed down a partial final and partial interim decision (Higher Regional Court of Munich, WuW/E DE-R 4543) dismissing the Plaintiff’s appeal to the extent of dismissing the first point of the complaint filed against the Second Defendant – i.e., the request for a declaratory judgement stating that the doping ban imposed on the Plaintiff was illegal. Concerning the further relief sought in the complaints – damages, including damages for pain and suffering –, the Court of Appeal has found that the action filed against the Second Defendant is admissible. The Second Defendant then appealed against this decision by an appeal on points of law only, which was allowed by the Court of Appeal and is now being contested by the Plaintiff. - 7Statement of reasons: 7 A. The Court of Appeal based its decision essentially on the following reasons: 8 The German courts have international jurisdiction over the complaint against the Second Defendant. This jurisdiction is based on Art. 6 no. 1 of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 30 October 2007 (Lugano Convention 2007). The close link required as a prerequisite for recourse to these courts, together with another legal entity, at the place where the other legal entity has its registered offices, is provided by the fact that the complaints against the First Defendant and the Second Defendant are based on one and the same factual and legal situation. There are no indications of any abusive behaviour on the Plaintiff’s part, e.g. by filing a suit against the First Defendant with the sole aim of establishing the jurisdiction of the German courts over the Second Defendant. The German courts continue to hold jurisdiction with regard to the complaint filed against the Second Defendant even after the dismissal of the

complaint against the First Defendant has become res iudicata. 9 The arbitration agreement concluded between the Plaintiff and the Second Defendant does not hinder access to the regular courts. The arbitration agreement is invalid because it infringes mandatory law. Pursuant to Art. 34 of the Introductory Law to the German Civil Code (EGBGB), the effectiveness of the arbitration agreement must be evaluated in accordance with German anti-trust law. Such an evaluation shows that the arbitration agreement is invalid according to sec. 19 para. 1, para. 4 no. 2 of the German Act against Restraints on Competition (GWB), old version. The Second Defendant holds a monopoly position in the relevant market of admission to speed skating world championships and is therefore an addressee of the norm. The organisation of sporting events constitutes a commercial activity. By submitting a registration form providing for the jurisdiction of a court of arbitration and excluding the jurisdiction of the courts of law, the Second Defendant imposed general terms and conditions of business. This assessment is not contradicted by the International Convention against Doping in Sports of 19 October 2005, which refers to the principles of the World Anti-Doping Code (hereinafter referred to as WADC) that include mandatory jurisdiction of the CAS. There is no indication either that the Convention considers this specific detail to be part of the principles that the signatory states – including Switzerland – undertook to adhere to, or that Switzerland had created a statutory obligation according to which the Second Defendant would have had to - 8draw up an arbitration agreement involving the CAS. The question whether the Second Defendant felt itself obliged to demand an arbitration agreement involving the CAS for other than statutory reasons, particularly because it wanted to maintain its recognition by the International Olympic Committee, is irrelevant to the assessment from the point of view of anti-trust law. 10 A request for an arbitration agreement on the part of the organiser of an international sporting competition is not, in itself, an abuse of a dominant market position. In particular, guaranteeing uniform jurisdiction and rules of procedure in

proceedings based on similar sets of facts prevents contradictory decisions and provides an objective reason for submitting disputes between athletes and federations in connection with international competitions to a uniform court of arbitration for sports. In the present case, however, the request to sign the arbitration agreement does constitute an abuse of market position, since the federations have a significant influence on the selection of the persons eligible for appointment as arbitrators in proceedings before the CAS. There is no objective justification for this excess of power in the hands of the federation. The only reason for an athlete to sign the arbitration agreement despite this imbalance is the monopoly position of the federation. Since the arbitration agreement blocked the Plaintiff’s access to the courts of law and to a judge provided by law, the level of materiality required for an assumption of abuse of market position may be considered to have been exceeded. 11 An assumption of abuse under anti-trust law is not contradicted by the deletion of sec. 1025 para. 2 of the Code of Civil Procedure (ZPO), old version, which provided for the invalidity of an arbitration agreement in cases where one party abused its economic or social dominance to force the other party to sign it. To justify the deletion of this provision, the legislative authorities argued that the invalidity of the arbitration agreement would constitute an excessive legal consequence in view of the fact that arbitration offered legal protection that is, generally speaking, equivalent to that of the courts of law, and that the rule of sec. 1034 para. 2 of the Code of Civil Procedure guarantees a balanced composition of the court of arbitration. However, these legislative considerations are irrelevant to the evaluation under anti-trust law, since it is a typical feature of anti-trust abuse control that market-dominating enterprises are prohibited from certain behaviours that are freely permitted to other market participants. 12 The Plaintiff is not prevented from bringing her case before a court of law because of contradictory behaviour. It is true that she filed an objection against the doping ban with the CAS. However even if this had entailed an acknowledgement of

the latter’s jurisdiction, such jurisdiction cannot be extended to other disputes, - 9particularly to the dispute concerning the claims for damages in question here. Furthermore, it is unclear why the Second Defendant should have been expected to assume that the Plaintiff would have recourse to the CAS for other disputes than those concerning the validity of the doping ban. After all, the signing of the Rules of procedure of the CAS could only have established its jurisdiction over the pending dispute concerning the doping ban, but not over other proceedings. 13 The first claim (declaratory judgement establishing the illegality of the doping ban) is inadmissible since it was not aimed at a declaratory judgement concerning a legal relationship. However, the other claims (material damages and compensation for pain and suffering) are admissible. To the extent that it is admissible, the complaint is not ready for decision; in particular, it is not unfounded due to any res iudicata effects of the arbitral award of the CAS. The recognition of the CAS award constitutes a violation of ordre public due to the fact that the arbitration agreement violated antitrust law. 14 B. The Second Defendant’s appeal on a point of law is successful and restores the judgement of the regional court which had dismissed the complaint. The complaint, to the extent that it has not yet been dealt with, is inadmissible. 15 I. However, the German courts have international jurisdiction over the complaint pursuant to Art. 6 no. 1 in conjunction with Art. 60 of the Lugano Convention 2007. 16 Pursuant to Art. 6 no. 1 of the Lugano Convention 2007, the courts of a state bound by this convention also have jurisdiction over actions filed against a defendant which has its registered offices in another signatory state if it is being sued together with a defendant having its registered offices in the state in which the court is located, and if the connection between the complaints is so close that joint proceedings and a joint decision appear to be necessary in order to prevent contradictory decisions being

passed in separate proceedings. In the present case these requirements have been met with regards to the action filed jointly against the First and Second Defendant. 17 1. According to the case law of the Federal Court of Justice, the interpretation of Art. 6 no. 1 of the Lugano Convention 2007 must take into account the parallel provision of Art. 8 no. 1 of the Brussels I Regulation as well the relevant case law of the Court of Justice of the European Union (decision of 30 November 2009 – II ZR 55/09, WM 2010, 378). According to this, the necessary link between the complaints may be assumed to exist if the legal and factual situation is identical in both cases and there is a risk of contradictory decisions (ECJ, judgement of 11 April - 102013 – C-645/11, NJW 2013, 1661, margin no. 43 – Sapir; judgement of 11 October 2007 – C98/06, Slg. 2007, I-8340, margin no. 40 – Freeport; Federal Court of Justice, decision of 30 November 2009 – II ZR 55/09, WM 2010, 378; Geimer inGeimer/Schütze, Europäisches Zivilverfahrensrecht, 3rd ed., Art. 6 of the Brussels I Regulation, margin no. 19; Thomas/Putzo/Hüßtege, ZPO, 36th ed., Art. 8 of the Brussels I Regulation, margin no. 4). As far as the claims for damages still pending before the Court of Appeal are concerned, the complaint against the Second Defendant is based on the Plaintiff’s allegation that the doping ban imposed upon her was unlawful. The First Defendant was accused of having concretized the doping ban imposed by the Second Defendant by way of a letter dated 19 July 2009, and having

subsequently implemented it. This means that the claims filed against the First Defendant were also based on the allegation of unlawfulness of the imposed doping ban. This means that both complaints are based on the same factual and legal situation, particularly in view of the fact that the Plaintiff has also cited both Defendants as joint and several debtors (see Bergermann, Doping und Zivilrecht, 2002, p. 256; Grothe in Festschrift für Hoffmann, 2011, p. 601, 614 et seq.; Classen, Rechtsschutz gegen Verbandsmaßnahmen im Profisport, 2014, p. 38; Adolphsen in Adolphsen/Nolte/Lehner/Gerlinger, Sportrecht in der Praxis, 2012, margin no. 1253; concerning the question of connectedness (Konnexität) in case of joint and several liability, see Stadler in Musielak/Voit, ZPO, 13th ed., Art. 8 of the Brussels I Regulation, margin no. 3). 18 2. The Court of Appeal has correctly rejected the suggestion of an attempt at forum shopping, i.e., the suggestion that the First Defendant had only been sued in order to keep the Second Defendant away from the Swiss courts that would actually have had jurisdiction over it. In particular, an alleged inconclusiveness of the complaint against the First Defendant does not constitute sufficient evidence of an abuse of Art. 6 of the Lugano Convention 2007. 19 According to the case law of the Court of Justice of the European Union, the jurisdiction clause of Art. 8 no. 1 of the Brussels I Regulation cannot be interpreted to mean that a plaintiff is entitled to bring an action against a plurality of defendants with the sole purpose of removing one of them from its proper court (EUGH, judgement of 13 July 2006 – C-103/05, Slg. 2006, I-6840, margin no. 32 – Reisch

Montage; judgement of 27 September 1988 – 189/87, Slg. 1988, 5579, margin no. 9 – Kalfelis). However, the lack of attempts at forum shopping is not a prerequisite of jurisdiction requiring separate examination, but needs only to be taken into account in connection with the considerations as to whether a joint hearing and decision appears necessary (ECJ, judgement of 11 October 2007 – C-98/06, Slg. 2007, I-8340, margin no. 54 – Freeport; Geimer in Geimer/Schütze, Europäisches - 11Zivilverfahrensrecht, 3rd ed., Art. 6 of the Brussels I Regulation, margin no. 23; MünchKommZPO-Gottwald, 4th ed., Art. 6 of the Brussels I Regulation, margin no. 14; concerning the consideration as an independent item for examination, see Stadler in Musielak/Voit, ZPO, 13th ed., Art. 8 of the Brussels I Regulation, margin no. 3). 20 Any act of forum shopping – which would have to be taken into account - will however not be assumed to have been proved just because the complaint against the First Defendant was already inadmissible under national law at the time it was filed, or was found to be inadmissible subsequently (see ECJ, judgement of 30 July 2006 – C-103/05, Slg. 2006, I-6840, margin no. 31, 33 – Reisch Montage; for an opinion affirming jurisdiction pursuant to Art. 6 no. 1 of the Brussels I Regulation independently of the admissibility or merits of the “original action”, see also Kropholler / von Hein, Europäisches Zivilprozessrecht, 9th ed., Art. 6 of the Brussels I Regulation, margin no. 8, 16; Geimer in Geimer/Schütze, Europäisches

Zivilverfahrensrecht, 3rd ed., Art. 6 of the Brussels I Regulation, margin no. 25; MünchKommZPO-Gottwald, 4th ed., Art. 6 of the Brussels I Regulation, margin no. 6; Thomas/Putzo/Hüßtege, ZPO, 36th ed., Art. 8 of the Brussels I Regulation, margin no. 5; for a different opinion, see Wagner, in Stein/Jonas, ZPO, 23rd ed., Art. 6 of the Brussels I Regulation, margin no. 44 et seq.; for a different opinion, see Stadler in Musielak/Voit, ZPO. 13th ed., Art. 8 of the Brussels I Regulation, margin no. 5). This point of view is supported, in particular, by the fact that the practical effectiveness of the jurisdiction provision of Art. 6 no. 1 of the Lugano Convention 2007 would no longer be guaranteed if difficult questions of jurisdiction or the question of the merits of the “original action” had to be dealt with already at the stage at which the jurisdiction of the court is being examined (see Kropholler/von Hein, Europäisches Zivilprozessrecht, 9th ed., Art. 6 of the Brussels I Regulation, margin no. 16). In this way, the legal certainty aimed at by this provision would also be impaired (see ECJ, judgement of 13 July 2006 – C-103/05, Slg. 2006, I-6840, margin no. 25 – Reisch Montage). Conclusions may be different in cases where the inconclusiveness of the “original action” is obvious. However, this is not the case here. The contrary opinion set forth in the appeal on a point of law relied mainly on the consideration that the First Defendant was not involved in the doping ban on which all the Plaintiff’s claims for damages are based and that, therefore, it had not committed any act that could

have given rise to liability. On the other hand, the Plaintiff considered the First Defendant to be liable because it had implemented the doping ban imposed by the Second Defendant although it could have ignored the ban quite easily, and it would have been possible and reasonable for it to do so. This is not an obviously ineligible starting point for joint action including the First Defendant. - 1221 3. According to the principle of perpetuatio fori, the international jurisdiction of German courts over the action against the Second Defendant, once established, will not cease as a result of the dismissal of the action against the First Defendant having become res iudicata in the meantime (ECJ, judgement of 5 February 2004 – C-18/02, Slg. 2004, I-1441, margin no. 36 et seq. – DFDS Torline; Kropholler/von Hein, Europäisches Zivilprozessrecht, 9th edition, Art. 6 of the Brussels I Regulation, margin no. 14; Adolphsen in Adolphsen/Nolte/Lehner/Gerlinger, Sportrecht in der Praxis, 2012, margin no. 1254; Schlosser in Schlosser/Hess, EU-Zivilprozessrecht, 4th edition, Art. 8 of the Brussels I Regulation, margin no. 3). 22 II. However, the complaint is inadmissible due to the Second Defendant pleading the arbitration agreement (sec. 1032 para. 1 in conjunction with sec. 1025 para. 2 of the Code of Civil Procedure). 23 1. By signing the registration for the competition at the Second Defendant’s request, the Plaintiff and the Defendants entered into an arbitration agreement pursuant to sections 1025 et seq. of the Code of Civil Procedure. The CAS is a “true” court of arbitration within the meaning of the Code of Civil Procedure and not merely an association tribunal (Verbandsgericht) (for more details concerning this

distinction, see FCJ, judgement of 28 November 1994 – II ZR 1 1/94, BGHZ 128, 93, 108 et seq.; Schlosser in Stein/Jonas, ZPO, 22nd ed., ahead of sec. 1025, margin no. 11) or any other dispute resolution body. 24 a) The general outlines of the position of the judiciary power within the governmental structure and its relationship with the citizens have been established as fundamental principles of the German legal system (cf. BVerfGE 2, 307, 320). A judge must observe a proper distance and neutrality (cf. BVerfGE 21, 139, 145 et seq.; 42, 64, 78); the nature of a judge’s work excludes any possibility that it could be done by uninvolved third parties (for the relevant case law, see, inter alia, BVerfGE 3, 377, 381). As regards arbitration, the function and effect of which constitutes substantive jurisprudence, no exception to this principle is made. Consequently, a “true” court of arbitration by which access to the court of law can be effectively excluded can only exist in cases where the arbitration court called upon to decide the particular case represents an independent and neutral instance (FCJ, judgement of 15 May 1986 – III ZR 192/84, BGHZ 98, 70, 72; decision of 27 May 2004 – III ZB 53/03, BGHZ 159, 207, 211 et seq.; Schlosser in Stein/Jonas, ZPO, 22nd ed., ahead of sec. 1025, margin no. 11). 25 b) The CAS represents such an independent and neutral instance. Unlike a federation or association tribunal (concerning this point, see FCJ, decision of 27 May 2004 – III ZB 53/03, BGHZ 159, 207, 210 et seq.), it is not incorporated into any

• 13particular federation or association. As an institution, it is independent of the sports federations and Olympic Committees that support it (see Federal Tribunal of Switzerland, judgment of 27 May 2003 – 4P.267-270/2002, SchiedsVZ 2004, 208, 209 et seq. – Danilova and Lazutina); it is intended to ensure uniform jurisdiction across all federations. 26 c) The procedure of drawing up the list of arbitrators of the CAS indicates no structural imbalance impairing the independence and neutrality of the CAS to such an extent that its position as a “true” court of arbitration could be called into question

(this is also the conclusion of Görtz, Anti-Doping-Maßnahmen im Hochleistungssport aus rechtlicher Sicht, 2012, p. 219; Schlosser in Stein/Jonas, ZPO, 22nd ed., sec. 1034, margin no. 13; for a different opinion, see Classen, Rechtsschutz gegen Verbandsmaßnahmen im Profisport, 2014, p. 69 et seq.; Orth, SpuRt 2015, 230, 232; Heermann, SchiedsVZ 2015, 78, 79, who has some doubts; Holla, Der Einsatz von Schiedsgerichten im organisierten Sport, 2006, p. 204). 27 aa) According to the findings of the Court of Appeal, the 2004 rules governing the procedure that were applicable on the date on which the arbitration agreement was signed (Statutes of the Bodies Working for the Settlement of Sportsrelated Disputes, hereinafter referred to as Statutes, and the Procedural Rules, hereinafter referred to as the Procedural Rules), the parties appealing to the CAS are only entitled to select the arbitrators from a closed list of arbitrators drawn up by the

International Council of Arbitration for Sport (hereinafter referred to as ICAS). The ICAS consists of 20 members. The International Sports Federations (of which the Second Defendant is one), the National Olympic Committees and the International Olympic Committee are each entitled to appoint four of these members. These 12 members then appoint four members “with a view to safeguarding the interests of the athletes”. These 16 members finally appoint four further members who are independent of the organisations that have nominated all the other members. The members of the ICAS pass their decisions with a simple majority of all votes. When selecting arbitrators for the CAS, the ICAS is obliged to guarantee a distribution that corresponds to its own composition: one fifth of the arbitrators must be chosen from those appointed by the International Sports Federations, one fifth from those appointed by the International Olympic Committee and one fifth from those appointed by the National Olympic Committees; a further fifth should be selected to safeguard the interests of the athletes and the remaining fifth should consist of persons who are independent of the persons responsible for proposing the other arbitrators. During appeal proceedings before the CAS, the president of the appeal division who has been elected by a simple majority in the ICAS is entitled to appoint a - 14chairman for the panel seized of the dispute in question if the parties to the dispute failed to come to an agreement concerning this point. 28 The Court of Appeal concludes from this that due to the majority principle applying to the ICAS, the federations are overrepresented by the 12 members appointed by them, which allegedly enables them to influence the composition of the list of arbitrators, particularly in view of the fact that the independence in relation to the federations of the further eight members cannot be guaranteed since they are elected by the 12 members linked to the federations. This ascendancy represents a risk in that the persons included in the list of arbitrators are likely, for the most part or even entirely, to be closer to the federations than to the athletes. There is no

objective justification for this preponderance of the federations. In disputes between the federations and the athletes, the interests of the parties are not identical, but rather directly opposed to each other. 29 bb) This conclusion is without merit. 30 The independence required for a qualification as a