Swiss Federal Supreme Court Judgment of 10 March 2025, FC A v. Player B
Motion to set aside CAS Award CAS 2022/A/9311 of 3 December 2024
A contract of employment between a Chinese football club A (A FC) and a Player from Ecuador (B) included the following clause (Art. 12): “Any dispute … shall be settled alternatively and at the election of the claiming party, to the legal bodies of FIFA or the CAS. In the event the claiming party decides that FIFA shall settle any dispute arising out of or in connection with the present contract as first instance Body, any appeal to a ruling of the FIFA Dispute Resolution Chamber shall be addressed to the CAS (…).”
Apart from that agreement, the Player signed an “Advertising Image Endorsement Agreement” with company C, which included a “liability for breach contract” clause as follows: “If a dispute is caused by this contract, Party A and Party B shall be settled through friendly negotiation. If the negotiation fails, any dispute (…) in connection with the present contract shall be solved exclusively by the CAS”.
Upon termination of the contract of employment, the Player brought the case to the FIFA DRC, requesting several amounts under both the Contract of Employment and the Image Rights Contract. The FIFA DRC partially upheld some claims based on the Contract of Employment and dismissed all other requests. The Club appealed to the CAS, seeking annulment of the FIFA DRC decision and a declaration that the Club owes nothing to the Player. The CAS fully dismissed the appeal.
In the subsequent motion to the SFT, the Applicant invoked erroneous findings on jurisdiction (Art. 190 para. 2 (b) PILA) on the ground that the FIFA DRC had wrongly assumed jurisdiction. The Club supported, among others, that the CAS lacked jurisdiction because the FIFA DRC had wrongly accepted its jurisdiction: due to the arbitration agreement in the Image Rights Contract, the FIFA jurisdiction should be excluded, also because Company C is not a FIFA member.
The SFT reiterated its position that it can only review the jurisdiction of the CAS and not the jurisdiction of the previous instance (here the FIFA DRC), apart from cases where the first-instance body and then the CAS declared themselves incompent (4A_232/2022 at 5.2.4; 4A_180/2023 of 24 July 2023 para. 3.3).
However, what was decisive in this case was that the Club had not raised any challenge to FIFA DRC’s jurisdiction before the CAS, all the more that it was the Club that brought the appeal to the CAS. As such, the SFT declared the motion inadmissible.
