Not in My Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of Arbitration for Sport

Abstract

This paper investigates the consensual foundations of the Court of Arbitration for Sport (CAS) in light of the recent Pechstein saga in front of the German courts. It argues that a realist take on CAS arbitration must lead, contrary to the BGH's finding in the Pechstein case, to the conclusion that the competence of CAS cannot be grounded on the consent of athletes. Instead, the article suggests that forced CAS jurisdiction can be justified by post-consensual foundations, such as efficiency, proximity and equality. However, the post-consensual nature of CAS arbitration should also entail an urgent focus on a democratization of the CAS.