This comparative law paper focuses on sports arbitration and compares three sets of rules: German national DIS Sport Arbitration Rules1, internal procedural rules by National Federations like Deutscher Fußballbund2 and international CAS arbitral proceedings. Although quite similar, the procedural approach varies due to a different legal tradition3. For example, DIS does not provide for a consultation while the CAS rules do.
Germany was a latecomer to the international arbitration scene4, largely due to an outdated arbitration law and the lack of an internationally recognised arbitration institution5. As of 1 January 2008 the German Institution of Arbitration has established the German Court of Arbitration for Sport6. By contrasting the jurisdiction of each institution and thus delimiting the field of jurisdiction of the German Court and the CAS, comparative charts and graphics point out the areas in which exclusive jurisdiction of one of theses institutions exists.
Various reasons may lead to international sports federations being prevented from enforcing their sanctions on an equal basis. External sport governance and internal political pressure may lead a national federation to either facing international sporting exclusion or internally the discontinuation of state funding7, or the state accreditation/support/recognition of its policies, not to mention judicial sanctions in case of contempt of a national court’s decision.
Concluding remarks from a judge’s viewpoint outline the reasons behind the recent changes and give recommendations for future changes of the arbitral proceeding rules in Germany. Reasons include the need for faster proceedings, higher arbitration fees, electronic court files, clearer wording and transparency of the proceedings8, more opportunities for involvement for young colleagues9, and more chances for support and recognition within political circles10.
1
www.dis-arb.de/sport
2
http://www.dfb.de/index.php?id=504064
3 DFB has created its own “homegrown” rules , others (
www.vdst.de) copy the Civil Procedure Code
or refer to Criminal procedure law.
4 Until recently, German law excluded recourse to arbitration, a point that states should take into consideration when implementing arbitration clauses in favour of a specific arbitral institution.
5 The European & Middle Eastern Arbitration Review 2009,
http://www.globalarbitrationreview.com/reviews/14/sections/54/chapters/521/germany/
6 Mertens, SpuRt 2008, 180
7 The German horseriding federation being dissolved and thus prevented from national funding:
www.tagesspiegel.de/sport/deutscher-reitsport-nicht-mehr-fest-im-sattel/1532284.html
8 For online publication of rulings, cf.Vieweg, SpuRT 2009, 192
9 Those interested who are sport- as well as ADR-lovers and not necessarily legal scholars.
10 Especially in doping cases, the aim of politicians for “clean games“ is rising.