Swiss Federal Supreme Court Judgment of 6 November 2025, A. v. B.
Motion to set aside CAS Award CAS 2023/O/10217 of 7 March 2025
This is an interesting case that arose from an unpaid agent commission for a high-value player transfer and involved a football agent (the Agent) and a newly created Italian club (the new Club) alleged to be the “sporting successor” of a former club (the original Club). Although the Agent had previously obtained a CAS award against the original Club, the latter subsequently entered insolvency proceedings and was excluded from the Italian federation, prompting the Agent to pursue the claim against the new Club that had taken over sporting activities.
At the core of the dispute was whether the arbitration clause contained in the original commission agreement could be extended to the new Club on the basis of alleged sporting succession. The CAS panel held that it lacked jurisdiction, finding no valid arbitration agreement binding the new Club. Before the SFT, the Agent argued that the CAS had adopted an overly restrictive approach to Article 178 para. 2 PILA by refusing to recognise sporting succession as a basis for extending the arbitration clause, despite its widespread acceptance in CAS jurisprudence and FIFA regulations.
The SFT rejected these arguments, confirming the wording of Art. 178 PILA: in the absence of a choice of law by the parties, the subjective scope of an arbitration agreement must be assessed under Swiss substantive law as the law of the seat. While Swiss law allows the extension of arbitration clauses to non-signatories under specific circumstances (e.g. in cases of debt assumption, transfer of contract, or clear conduct evidencing an intention to be bound), the concept of “sporting succession” as developed in lex sportiva is not recognised as a legal institution under Swiss law. The fact that such a construct is valid under the FIFA regulations or recognized in CAS case law does not transform it into a source of Swiss law for the purposes of Article 178 PILA. What is more, neither FIFA rules nor CAS precedent are sources of arbitration and a fortiori Swiss law (at 5.5).
Importantly, the SFT also clarified that the fact that sporting succession is not contrary to international public policy under federal law does not render this concept part of the Swiss legal order. The review of public policy under Article 190 para. 2 (e) PILA is autonomous and does not render non-Swiss legal concepts valid for jurisdictional purposes. What matters is to establish the new Club’s intention to assume the contractual obligations of the original Club, as such the CAS Panel was right to decline jurisdiction.
This interesting judgment reinforces the strict, consent-based approach in arbitration agreements in (voluntary) sports arbitration and limits the effect of sporting succession – or other concepts of lex sportiva – when it comes to the interpretation of the agreement.
