The Swiss Federal Tribunal (SFT) addressed an appeal against a CAS award rendered in the context of the contractual fallout from the war in Ukraine. The dispute opposed a Russian football club and a Norwegian player who had unilaterally terminated his employment contract in May 2022 after leaving Russia and subsequently signing with an Italian club. While the FIFA DRC had partially upheld the player’s claim, the Court of Arbitration for Sport (CAS 2023/A/9686) ultimately dismissed all claims from both parties.
The CAS found that the player had terminated the contract without just cause but refused to award any compensation to the club. The panel held that neither the contractual penalty clause (EUR 30 million) nor Article 17(1) of the FIFA Regulations on the Status and Transfer of Players (RSTP) was appropriate in light of the exceptional circumstances created by the war. In particular, the CAS reasoned that the club had not suffered a definitive loss of the player’s services, since Annex 7 RSTP allowed players to temporarily suspend their contracts. It further identified a legal gap and applied Swiss law subsidiarily, relying by analogy on Article 337b CO to conclude that no compensation was due.
Before the SFT, the club relied solely on a violation of the right to be heard under Article 190(2)(d) of the Swiss Private International Law Act (PILA). It argued that the CAS had based its decision on an unforeseeable legal reasoning, namely the application of Article 337b CO by analogy, without giving the parties a proper opportunity to comment.
The SFT rejected the appeal, reaffirming its restrictive approach to judicial review of arbitral awards and the principle of iura novit curia. A duty to invite further submissions arises only where the legal reasoning is truly unforeseeable. In the present case, the SFT found that the CAS had expressly invited the parties to address the applicability of Articles 337 et seq. CO, including Article 337b, and that the club had in fact argued against its application during the arbitration. Accordingly, the reasoning could not be considered surprising (at 5.4).
From a practical perspective, the judgment confirms the extremely limited scope of review of the “effet de surprise” under Article 190(2)(d) PILA, the broad discretion of CAS panels to rely on legal concepts not pleaded by the parties, and the tribunal’s flexibility to apply Swiss law subsidiarily next to the RSTP and Annex 7 thereof.
