Swiss Federal Supreme Court Judgment 4A_226/2025 of 11 December 2025; challenge of CAS Award CAS 2024/A/10279, 2024/A/10280 und 2024/A/10281 of 31 March 2025
Facts of the case
In this judgment, the Swiss Federal Supreme Court (SFT) ruled on a challenge against a CAS award arising out of the war-related contractual framework introduced by FIFA. A Norwegian footballer (the Player) had been under contract with a Russian club (the Club) until 2025. Following Russia’s invasion of Ukraine, FIFA issued temporary regulatory measures (Annex 7 to the RSTP) allowing foreign players to suspend contracts with Russian clubs. The Player initially made use of these measures, later “reactivated” his contract, and returned to Russia.
In summer 2023, amid escalating security concerns – the Player sought to terminate his employment with immediate effect, invoking just cause and force majeure. Shortly thereafter, he signed with a Saudi Arabian club. The FIFA DRC partially upheld the Club’s claim for compensation for breach of contract and said decision was confirmed by the CAS in appeal. The CAS ruled that the termination was without just cause and ordered the Player and his new club to pay over EUR 3 million in compensation.
Arguments invoked before the SFT
In his challenge before the SFT, the Player relied primarily on Article 190(2)(e) PILA, alleging a violation of substantive public policy (ordre public). He argued that the CAS award resulted in an excessive personal commitment contrary to Article 27(2) CC and amounted, in substance, to indirect forced labour. In his view, remaining contractually bound in a war-affected territory exposed him to unacceptable risks to life and health, such that immediate termination was justified.
He further invoked force majeure and challenged the CAS’s assessment of just cause. In addition, he relied on Articles 2, 4(2), 5(1) and 8 ECtHR, arguing that the award violated fundamental rights. For the first time before the SFT, he contended that he had not freely consented to CAS arbitration and referred to the recent Grand Chamber judgment of the European Court of Human Rights (ECHR in Semenya v. Switzerland (see my note on this judgment here).
The SFT’s approach to ordre public
The SFT reiterated its well-established, restrictive review under Article 190(2)(e) PILA: only awards that are incompatible with fundamental and widely recognised principles of the Swiss legal order may be set aside, and only if the incompatibility affects not merely the reasoning but also the result. The SFT does not review the panel’s application of substantive law, nor does it reassess the evidence as an appellate court.
Applying this standard, the SFT rejected the player’s reliance on excessive commitment and forced labour. The CAS had found that the continuation of the contract was not objectively intolerable and that the player had other options (including pursuing a loan or transfer) rather than immediate termination. The mere fact that termination without just cause triggers damages does not amount to forced labour or an intolerable violation of the Player’s personality rights. The same applied for the amount of compensation decided by the CAS, which could not reach a level comparable to situations previously found problematic under public policy (as in the Matuzalem case).
The SFT also dismissed the force majeure argument, considering that the Player’s renewed return to Russia after the outbreak of war was a relevant factual element but not issues of public policy.
The direct reference to the ECHR provisions, the reference to Semenya and the limits of its reach
The most notable aspect of the judgment lies in the SFT’s reaction to the Player’s direct reliance on the ECtHR provisions (Articles 2, 4, 5 and 8 ECtHR) and on the Semenya judgment. The Court declared inadmissible the argument – raised for the first time before it – that CAS arbitration had not been freely accepted. In any event, it distinguished the case from Semenya. The SFT reiterated that simple references to the ECHR are not sufficient to substantiate a violation.
Most importantly, and even though it did not reiterate its previous position that the ECtHR provisions cannot be directly invoked before the SFT (see, for example, my note on the SFT 4A_682/2024), it found said general criticisms to be unsubstantiated (at 4.2). Moreover, the Court signalled that Semenya does not automatically extend to all CAS-related disputes. The concept of “forced arbitration” developed by the ECHR does not apply in ordinary contractual disputes between clubs and players. The judgment is therefore interesting, as it confirms the continued narrow scope of review under Article 190 PILA, according to which all pleas must be sufficiently substantiated, and illustrates the SFT’s careful review of the systemic implications of Semenya for international sports arbitration.
