Swiss Federal Supreme Court Judgment of 24 March 2025
A. v. B. & C. SRL, Motion to set aside a CAS Award CAS 2022/O/9269 of 22 October 2024
Swiss professional footballer (A. or the “Player”) had entered into two consecutive agency agreements with a French-registered intermediary (B. or the “Agent”) and a Romanian company (C. SRL; together with B. “the Agents”). Both agreements appointed the Agents exclusively and entitled them to a 10% commission on all employment contracts concluded for the Player. Each contract contained a broad arbitration clause designating the CAS as the sole forum and expressly excluding the applicability of Swiss employment-placement legislation (LSE/AVG). In September 2022 the Player terminated the second agreement, shortly before signing a new employment contract with FC St. Gallen. The Agent initiated CAS proceedings, seeking CHF 207,600 plus a percentage of potential bonuses; the CAS upheld its jurisdiction and partially granted the claim, ordering the player to pay CHF 100,000.
In his motion to the SFT, the Player argued that the CAS lacked jurisdiction (Art. 190 para. 2 (b) PILA), contending that the Agents, lacking the required Swiss licence under the Arbeitsvermittlungsgesetz (AVG), had only been able to structure the contract as “international” to circumvent Swiss mandatory law, and therefore the arbitration clause should be invalid. Alternatively, he argued that the dispute was not arbitrable or that the arbitration agreement was void due to illegality. In addition, the Player invoked a violation of both procedural and substantive public policy under Art. 190 para. 2 (e) PILA, claiming that the award enforced a “void” contract, disregarded employee-protection norms, and imposed a penalty comparable to “bribery.”
The SFT dismissed the jurisdictional challenge, emphasising that it is bound by the facts as established by the CAS (Art. 105 BGG). Accordingly, alleged breaches of the AVG by the Agents were irrelevant for determining their actual domicile or seat, which was outside Switzerland, thus making the 12th Chapter of the PILA applicable. The SFT also confirmed the arbitrability of the dispute under Art. 177 para. 1 PILA and rejected arguments on the alleged nullity of the arbitration clause, recalling the autonomy of arbitration agreements and considering all the Player’s appellate criticisms as inadmissible. The SFT equally rejected the allegation of public policy violation as it did not find that the award’s outcome, i.e. a damages payment resulting from early termination, contradicted fundamental principles such as pacta sunt servanda or procedural fairness.
Overall, the judgment reinforces settled jurisprudence on the autonomy of arbitration clauses, the narrow scope of public-policy review, and the strict limits on factual reassessment by the SFT. It also confirmed that alleged violations of Swiss licensing or employment-placement rules do not retroactively alter the international character of the relationship nor undermine the validity of an arbitration clause governed by Art. 178 PILA.
