4A_430/2023, judgment of 23 February 2024, challenge of the CAS Award 2022/A/8571 of 6 July 2023

This judgment is interesting as it delves into the cases “of international dimension” where the FIFA RSTP provide for the jurisdiction of the FIFA tribunals and the CAS in appeal, however allowing them to opt out of the FIFA-CAS jurisdiction for labour law disputes as in the case at hand. In those cases, the panel must interpret the agreement in question and establish whether the clause includes an “alternative jurisdiction” or excludes the FIFA jurisdiction altogether. In line with consistent case law of the SFT, the parties’ wish to exclude state court jurisdiction must be clear in order to accept to have recourse to a court of arbitration, which was not the case here. 

In 2020, a Hungarian football club (the Club) signed a contract with a Russian football player (the Player) which included the following arbitration clause in its Article 49:

“The Parties agree that they shall make efforts to settle their possible dispute in amicable way by negotiations. If theseefforts fail (…). the Parties may turn to the organizational units with MLSZ or FIFA scope of authority, in case of labourdispute to the Administrative and Labour Court having competence and scope of authority, and in all other disputes arising out of their legal relationship the Parties stipulate the exclusive jurisdiction of the Sport Standing Arbitration Court based on the Article 47 of the Sports Law. (…)”

In 2021, the Club informed the player that he would evolve in its reserve team with a 50% reduced salary according to Article 49 of the contract. The Player contested this decision and requested his unpaid salaries and his reinstatement to the first team, with no answer from the Club. The Player terminated his contract of employment and brought a claim before the FIFA DRC requesting the payment of the salaries and a compensation for termination of breach of contract.

The FIFA DRC partially accepted the claim, ordering the Club to pay various amounts to the Player. In appeal to the CAS, the Sole Arbitrator held that the CAS did not have jurisdiction to decide on the matter, which should have been brought before the Hungarian state tribunals.

In the subsequent challenge to the SFT by the Player for wrongly denying jurisdiction, the SFT repeated its general theory on the interpretation of the arbitration agreement as a contract (at 5.2) and confirmed the interpretation of the Sole Arbitrator.

The SFT endorsed the Sole Arbitrator’s interpretation of the relevant arbitration clause, notwithstanding the fact that the dispute had an international dimension under Art. 22 (b) RSTP.

More specifically, the Sole Arbitrator proceeded to an interpretation of the relevant arbitration clause, finding that the parties distinguished between labour law disputes (that should go exclusively to the state courts) and other disputes enshrined in the FIFA RSTP that should go to FIFA and then to CAS.

The SFT therefore dismissed the Player’s argument that the clause included “an alternative jurisdiction” in favour of both the state courts and FIFA DRC (TAS 2018/A/6016). The SFT held that the Player’s interpretation was inadmissible before the SFT as it could not be traced in the contested award itself (at 5.4).

The SFT also noted the similarities of this case to another judgment (judgment 4A_2/2023 of October 6, 2023, at 3.4 in appeal against CAS 2021/A/7775), where the CAS panel had also reached a similar conclusion related to the interpretation of a jurisdiction clause involving the jurisdiction of Hungarian state courts for labour law disputes.

4A_456/2023, judgment of 11 December 2023, FC A. v. B, motion to set aside the CAS Award of 25 July 2023 (CAS 2022/A/8754)

A football employment-related dispute between a football club (the Club) and a football player (the Player) was brought before the CAS: the employment contract provided for a salary of USD 4’000 and a signing on fee of USD 50’000, whereas the parties also agreed on a USD 2’000’000 compensation in case of unilateral contractual breach. The Club unilaterally terminated the contract with the Player in February 2021 and the Player filed a successful claim before the FIFA DRC; following an appeal to the CAS by the Club, the Panel partially upheld the appeal and reduced the awarded compensation (from USD 2’000’000 to UDS 500’000). 

The Club subsequently filed a motion to the SFT invoking, primarily, a violation of its right to be heard (Article 190 para. 2 d PILA). More specifically, the Club held that the CAS had not justified its assessment of the compensation nor had it substantiated how it reached its decision. The CAS Panel had found that the compensation foreseen in the contract was a contractual penalty that was validly negotiated between the parties. As such, the Panel went on to reduce it amount to the extent that this was found to be excessive (under Article 163 para. 1 SCO), also considering the Player’s salary.

In its judgment, the SFT was not convinced that there was a procedural irregularity to the extent that the Panel had considered the arguments raised. The SFT reiterated that the arbitral tribunal is not obliged to answer explicitly to every and single argument raised in the appeal.

The Club’s argument, that the CAS should have reduced the contractual penalty to the equivalent of six salaries (i.e. USD 24’000) was swiftly dismissed by the SFT, rightly considering that this was an inadmissible plea of appellatory nature. In its conclusion that shows the (high) threshold of a procedural violation under Article 190 para. 2 d PILA, the SFT referred to well-established federal case law according to which the right to be heard does not entitle the parties to a materially correct decision but rather safeguards their right to participate in the decision-making process.

4A_442/2023, judgment of 11 January 2024, A. v. WADA) & RUSADA, motion to set aside the CAS Award 2021/A/8263 & 8381

In this doping-related case, the sample of a Russian wrestler (the Athlete) had been first tested negative by the Moscow Laboratory (accredited by WADA) in 2015. Following WADA’s request, the sample was re-examined in April 2020 and showed the presence of a prohibited anabolic steroid. This led to the issuance of a notice of charge in May 2020 and the subsequent acquittal of the Athlete by the RUSADA Disciplinary Commission.

This decision was subsequently challenged by both RUSADA and WADA before the Court of Arbitration for Sport (CAS). The Sole Arbitrator appointed ordered the consolidation of both proceedings, held a hearing and issued its decision, admitting both appeals. The Sole Arbitrator found that the Athlete had violated the RUSADA anti-doping rules and issued a four-year suspension from the notification of the decision (after deducting any provisional period served by the Athlete) and disqualified his competitive results from 2015 until 2020.

In his subsequent motion to the Swiss Federal Tribunal, the Athlete filed a request for a stay of the appealed decision that was rejected.

Determination of the “reasonable time limit” to render a CAS award

The SFT also examined the issue of the time limits to render a CAS award within scope of public policy: pursuant to the time limit enshrined in Article R59 para. 5 of the CAS Code, the Panel has 3 months from the transfer of the file. In the case at hand, the Sole Arbitrator had received the files in May 2022 and issued the award in July 2023, 9 months after the hearing and 8 extensions of the time limit. What is more, the CAS never informed the Athlete of the reasons that the extensions were granted notwithstanding his request to this effect.

The SFT held that the delay of the proceedings can, under conditions, violate procedural public policy and referred to previous case law in which it found that the conditions were not met (4A_22/2023 of 16 May 2023, at 7.3.2; 4A_668/2020 of 17 May 2021, at 4.2). In determining whether the case was decided within a “reasonable time limit”, it is necessary to consider the totality of circumstances, the legal and factual complexity of the matter, the nature of the procedure and the stakes for the parties, as well as their conduct during the proceedings. The case at hand presented a certain level of complexity including the consolidation of the proceedings and the hearing of several experts. What is more, the Athlete had himself contributed to the delay of the procedure requesting several extensions and never complaining about the extensions, reason why the duration of the proceedings in this case could not be considered as excessive and thus leading to a violation of procedural public policy as per Article 190 (2) e Swiss Private International Law Act (PILA).

Difficulty in finding an expert in doping-related proceedings and alleged violation of the equality of the parties

The SFT also examined the plea of violation of equality of the parties, as the Appellant invoked difficulties in finding a scientific expert to comment on the sample analysis conducted by the Lausanne Anti-Doping Laboratory. This argument was found to fall outside the scope of Article 190 (2) d PILA, as it did not criticize how the Sole Arbitrator conducted the proceedings but rather deplored the Athlete’s difficulties in finding an expert based on the applicable rules (the WADA Code). In any event, this argument was dismissed also because the Athlete, notwithstanding his difficulties, had eventually managed to find experts in the CAS proceedings.

Concluding remarks

Even though this judgment is not a groundbreaking one, it still shows that the time limit to issue an award in a sports-related matter is a sensitive issue that is subject to the scrutiny of the Swiss Federal Tribunal (SFT) through the prism of procedural public policy. The judgment reiterated several of the considerations of a previous, relatively recent SFT judgment that also related to a CAS award (see my note here) and confirmed that the “reasonable delay” must be assessed by taking into account the totality of circumstances rather than the actual length of the proceedings or the extensions to the time limit to issue the decision. 

4A_256/2023, judgment of 6 November 2023, Equatorian Football Federation v. Peruvian & Chilean Football Federations

Motion to set aside the CAS Awards TAS 2022/A/9175 & 9176

The case related to the FIFA World Cup 2022 and a disciplinary sanction imposed by the CAS on the Equatorian Football Federation (the Federation) for violation of the FIFA Disciplinary Code regarding forgery and falsification of documents of one of its football players. In the subsequent motion to the SFT, the FEF first invoked a violation of ultra petita which was immediately dismissed by the SFT, holding that the parties’ requests for relief included the Federation’s exclusion from the 2026 edition of the World Cup. The SFT also clarified that the parties’ legal interest falls obviously outside the scope of the plea of ultra / infra petita of Art. 190 (2) c PILA.

In a very interesting part of the judgment, the SFT dealt with the Federation’s grievance of violation of procedural public policy (res judicata). The SFT reiterated that the effect of res judicata of a foreign judgment in Switzerland is limited to its operative part and does not extend to its grounds (determined according to the lex fori). Moreover, res judicata extends to all facts that existed at the moment of the first judgment, irrespective of whether they were known to the parties, but not to a request that is based on the change of circumstances after the first judgment (at 6.1.3).

Most importantly, and according to the principle of “subjective relativity”, res judicata can only be invoked in a new process if it opposes the same parties / their direct successors or it stems from a “Gestaltungsurteil” opposable to third parties. In the particular case, the Federation supported that the question of nationality of one of its players had already been examined and decided by the Ecuadorian courts, having an erga omnes effect. 

However, the SFT confirmed that FIFA had enacted its own regulations regarding forgery and falsification of identity documents and the fact that the state of Ecuador has its own statutory provisions to combat falsified identity documents could not deprive FIFA of the right to exercise its disciplinary power over its members by virtue of its own enacted rules. In other words, the two bodies of rules are considered to be autonomous and can coexist.

An interesting admissibility obiter related to the standing of FIFA in the federal proceedings. Distinguishing between the standing of FIFA in the CAS proceedings and in the federal proceedings, the SFT did not invite FIFA to submit its observations considering that this situation was akin to the one of a first-instance tribunal.

The SFT concluded that there was no identity of the parties and that the subject matter of the proceedings brought before the Ecuadorian judicial authorities (an action habeas data filed by the player in order to unblock the information related to his identity) and the FIFA disciplinary proceedings (forgery and falsification of documents) was different.

Overall, the judgment seems to confirm previous SFT case law and the restrictive approach regarding res judicata, which is not violated in parallel proceedings enacted upon different sets of rules (e.g. national statutory rules vs. international disciplinary regulations).

A summary of selected Swiss Federal Tribunal judgments in motions to set aside CAS awards published in 2023

In 2023, the Swiss Federal Supreme Court (SFT) issued several noteworthy judgments in motions against awards rendered by the Court of Arbitration for Sport (CAS). In most of them, it reiterated the high admissibility threshold. Accordingly, pleas of appellatory nature are generally inadmissible, but also the parties have an obligation to raise any procedural irregularities / violations of the right to be heard in an explicit and unequivocal manner as soon as they arise.

Furthermore, the SFT re-confirmed its very strict view of violation of public policy. There is, in principle, no violation of public policy in case of the late uploading of a statement of appeal on the e-filing platform, the lack of online hearing of (protected) witnesses, several extensions of the time limit to issue the arbitral award, the non-transmission of the full decision to a complainant in sports disciplinary proceedings, or in case of disciplinary sanctions imposed parallelly at the national – and the international level. The SFT also reiterated its view that violations of the European Convention of Human Rights (the Convention) cannot be directly invoked but only through the limited scope of public policy and the Swiss Constitution; it will be interesting to see how this view will evolve after the ECHR landmark judgment in Caster Semenya (this case is still pending before the ECHR Grand Chamber).

In terms of jurisdiction, the SFT held that CAS jurisdiction could not go beyond the jurisdiction of the previous instance, that the FIFA tribunal (like the CAS Anti-Doping Division) is not a “true arbitral tribunal” and as such is not bound by the pertinent provisions of the Swiss Code on Civil Procedure and that the FIFA Player Status Committee (PSC) ruling on atransfer agreement is not bound to decide on (the unrelated) set-off against a tort claim.

With respect to the irregular constitution of the arbitral tribunal, the SFT reiterated that there is no analogy between barristers belonging to the same Chambers (who are all independent and thus not partners) and Swiss lawyers belonging to the same law firm. Therefore, in the absence of additional criteria, such connection cannot on its own establish bias or lack of independence of arbitrators. Inversely, the SFT reinforced its view on the parties’ and the parties’ counsel duty of curiosity, which is clearly violated when they fail to examine notorious facts related to the appointed arbitrators in a timely manner; at the same time, the appointed arbitrators are not obliged to disclose publicly available -and easily discoverable- information.

Determination of the nature of the CAS Anti-Doping Division proceedings by the SFT

The judgment 4A_232/2022 of 22 December 2022 examined for the first time the nature of the CAS Anti-Doping Tribunal (ADD) proceedings when the latter acts as a first instance body. A first challenge was dismissed back in 2021 (see my note on 4A_612/2020). A former biathlete’s doping-related case was heard by the CAS ADD acting as the first-instance tribunal, and then by the CAS Appeals Division. In a nutshell, the SFT found that the CAS ADD merely acted through delegation of the disciplinary power over anti-doping matters by an international federation and therefore did not qualify as a “true” arbitral tribunal (see my note on 4A_346/2021). The SFT therefore dismissed the jurisdictional grievance as inadmissible but would have in any case been unfounded based on the de novo review by an independent arbitral tribunal which is the CAS Appeals Division. The SFT also held that the coexistence of two instances within the same tribunal is not unusual (cf. the International Criminal Court, the ECtHR etc.). Overall, the SFT largely accepted the legitimacy of the CAS ADD, to the extent that such instance replaces the internal disciplinary instance of sports federations and is sufficiently independent from the CAS Appeals Division.

FIFA PSC Jurisdiction to hear Set-off Claims for Damages Against Contractual Claims in Football Transfer Disputes

 In March 2023, the SFT issued a very interesting 4A_420/2022 of 30 March 2023 related to the Emiliano Sala transfer fee owed by Cardiff to FC Nantes following his tragic plane crash shortly after the transfer. The judgment essentially relates to the scope of the arbitration clause between the parties to a transfer agreement but also the scope of disputes decided by the FIFA dispute resolution bodies and, subsequently, by the CAS. In essence, the SFT confirmed that CAS jurisdiction could not go beyond the jurisdiction of the FIFA PSC and that there were no reasons to justify the concurrent ruling on claims based on the transfer agreement and on (the unrelated) set-off against a tort claim. The SFT equally interpreted the pertinent parts of the FIFA Regulations and confirmed the limited material scope of the FIFA PSC jurisdiction, which does not extend to ruling on civil disputes of football stakeholders that are unrelated to football. This was a thorough judgment that highlights the specificities of sports arbitration with respect to the jurisdictional scope of the FIFA decision-making bodies, which draw the limits of the subsequent jurisdiction of the CAS.

Ne bis in idem in disciplinary proceedings initiated at both the national- and the international level

In April 2024, the SFT issued two factually very similar judgments related to match-fixing in tennis. Both judgments 4A_484/2022 and 4A_486/2022 of 26 April 2023 primarily dealt with the principle of ne bis in idem as part of public policywhen disciplinary proceedings are opened for allegations of match-fixing by both the national federation (NF) and the international federation (IF). In a case where the athlete was acquitted by the NF but convicted by the IF, the SFT held that there was no violation of the principle ne bis in idem and that the material and temporal link between both proceedings constitute “two sides of a unique system”, which would be jeopardized if not triggered in parallel. Consequently, concurrent or subsequent national and international disciplinary proceedings do not infringe Swiss public policy / ne bis in idem, at least as long as national proceedings do not have an automatic international effect.

In addition to the aforementioned plea of ne bis in idem, the decision 4A_484/2022 of 26 April 2023 dealt with the independence and impartiality of an arbitrator belonging to a barristers’ Chamber: The panel chair Mr. Michael J. Beloff KC was challenged by the athlete as two out of the four Anti-Corruption Commissioners worked in the same Chambers. The SFT disregarded the argument that such arbitrator would be inclined to “defend” the decision rendered by his colleagues in order to protect their reputation. After seriously questioning the admissibility of the grievance to the extent that the player had not raised any objection during the hearing, the SFT dismissed the plea as unfounded, confirming that there is no analogy between barristers belonging to the same Chambers and lawyers belonging to the same law firm. Therefore, in the absence of additional criteria, such connection cannot on its own establish bias under Art. 190 (2) a PILA.

Impact of several extensions to issue the CAS award in a match-fixing case on the arbitration agreement and the principle of celerity

In 4A_22/2023 of 16 May 2023, the SFT addressed the questions of numerous extensions to issue the CAS award in a complex match-fixing case related to tennis and its impact on the validity of the arbitration agreement / the celerity of the proceedings. A professional tennis player suspended for eight years for violations appealed his sanction to the CAS in December 2020; a hearing was held one year later and the CAS issued its award in November 2022, after eight extensions of the time limit under the CAS Code. In the subsequent challenge proceedings, the SFT held that the player could not rely on procedural rules that entered into force after his filing of the appeal and that the arbitrators were authorized to render the award as long as their mandate had not been revoked. The SFT equally held that there was no violation of the principle of procedural celerity, finding the procedural length reasonable in view of the complexity of a case related to match-fixing.

Right of a complainant to obtain the full decision in sports disciplinary proceedings

In 4A_184/2023 of 5 June 2023, the SFT addressed the right of a complainant to obtain the full decision in sports disciplinary proceedings. In 2020, a French female semi-professional cyclist had filed a complaint against her team’s manager for sexual harassment before the UCI Ethics Commission. Her request to participate in the proceedings was denied, according to the applicable rules at the time, and she only received a three-page summary of the final decision. In her subsequent motion to the SFT, the latter considered that there was no violation of imperative Swiss law and no violation of public policy because the summary of the decision was sufficient to inform the cyclist on the outcome of the procedure. Similarly, the SFT found that the non-transmission of a disciplinary decision rendered by an association’s organs to the person that filed a complaint does not violate human dignity.

This was a rather unsurprising judgment of the SFT which confirmed its strict approach regarding the limited review of procedural rules of sports federations but also the inadmissibility of arguments of appellatory nature in the federal proceedings.

Non-timely filing of a statement of appeal due to non-established technical problems and excessive formalism

Non-timely filing of the statement of appeal due to non-established technical problems and excessive formalism

In 4A_254/2023 of 12 June 2023, a doping-related sanction was issued by the disciplinary body of the International Fencing Federation (FIE) on 31 January 2023. The athlete’s counsel filed the statement of appeal within the 21-day time limit by email only, requesting at the same time the “Case Registration Form” in order to upload the statement via the CAS e-filing platform. On the last day of the time limit, the counsel uploaded the submission on the e-filing platform, noticing that the platform was particularly slow but without receiving an error notification from the system. Several days later, the CAS informed the athlete that the statement of appeal was filed late. In the subsequent challenge proceedings, the SFT confirmed that the parties uploading their statement of appeal on the e-filing platform bear the burden to establish the valid filing of their submissions, whereas the inadmissibility for non-timely filing cannot amount to excessive formalism (cf also my note on 4A_692/2016).

Publicly available information and duty of curiosity of the parties in a CAS procedure

Publicly available information and duty of curiosity of the parties in a CAS procedure

In June 2023 the SFT rendered several judgments, starting with the unusual 4A_100/2023 of 22 June 2023, which annulled a CAS award, for the first time due to the erroneous challenge of an arbitrator by the ICAS Challenge Commission. In a contractual dispute between an Austrian coach and a Croatian club, a Croatian Arbitrator appointed by the Club signed his declaration without mentioning that he was also an arbitrator at the Croatian Football Tribunal, only disclosing this during the deliberations. Following such disclosure, FIFA challenged his appointment and the ICAS replaced the arbitrator. In this case, the SFT narrowed down the arbitrators’ ongoing duty of disclosure as it does not apply to notorious facts that can be easily discovered (see also my note on 4A_520/2021). Inversely, it highlighted the importance of the parties’ duty to investigate as the starting point for the admissibility of the challenge.

SFT Judgment in the motion to set aside the CAS award in the Yves-Jean Bart judgment

The judgment 4A_170/2023 of 23 June 2023 put an end to the disciplinary proceedings initiated by FIFA against the Haitian Football Federation President Yves-Jean Bart (Respondent) for allegations of sexual abuse vis-à-vis several female players of the national technical center. Following a decision by the FIFA Ethics Committee sanctioning him for several violations of the FIFA Code of Ethics, the CAS annulled the FIFA decision holding that there was insufficient evidence and a lack of coherence or credibility in the witness testimony by the alleged victims during the hearing. In a rather unusual procedural move, FIFA filed a motion to set aside the CAS award in March 2023, invoking a violation of its right to be heard by the CAS panel for refusing to hear one of the victims online by means of a voice distortion mechanism. Interestingly, the SFT considered that FIFA had not validly and explicitly raised an objection to the modalities of the hearing. In any event, such plea was unfounded to the extent that the panel simply suggested an alternative hearing mode of such witnesses. The SFT also held that there is (currently) no statutory obligation to hear witnesses through video conference. In any event, the efficient protection of the identity of witnesses in similar cases remains a very sensitive issue that could be crucial for the outcome of the proceedings. In this respect, it must be noted that the CAS has just published its “Guidelines for the hearing of vulnerable witnesses and testifying parties in CAS Procedures (December 2023)”.

No violation of res judicata in case of an action filed before the national courts and a subsequent FIFA disciplinary procedure.

The judgment 4A_256/2023 related to the FIFA World Cup 2022 and a disciplinary sanction imposed by the CAS on the Equatorian Football Federation (the Federation) for violation of the FIFA Disciplinary Code regarding forgery and falsification of documents of one of its football players. In the subsequent motion to the SFT, the FEF first invoked a violation of ultra petita which was immediately dismissed by the SFT, holding that the parties’ requests for relief included the Federation’s exclusion from the 2026 edition of the World Cup. The SFT also clarified that the parties’ legal interest falls obviously outside the scope of the plea of ultra / infra petita of Art. 190 (2) c PILA.

In a very interesting part of the judgment, the SFT dealt with the Federation’s grievance of violation of procedural public policy (res judicata). The Federation supported that the question of nationality of one of its players had already been examined and decided by the Ecuadorian courts. However, the SFT confirmed that FIFA had enacted its own regulations regarding falsification of documents and could exercise its disciplinary power over its members irrespective of any national rules combatting falsified identity documents. In other words, the two bodies of rules are considered to be autonomous and can coexist. The SFT concluded that there was no identity of the parties and that the subject matter of the proceedings brought before the Ecuadorian judicial authorities and the FIFA disciplinary proceedings was different.

Overall, the judgment seems to confirm previous SFT case law and the restrictive approach regarding res judicata, which is not violated in parallel proceedings enacted upon different sets of rules (e.g. national statutory rules vs. international disciplinary regulations).

Note: a comprehensive compilation of the 2023 SFT judgments has been published on LawInSport

4A_170/2023 of 28 June 2023 FIFA v. Yves-Jean Bart, motion to set aside the CAS award TAS 2021/A/7661

This is the SFT judgment which put an end to the disciplinary proceedings initiated by FIFA against the Haitian Football Federation President Yves-Jean Bart for allegations of sexual abuse vis-à-vis several female players of the national technical center.  

Following several articles alleging that Yves-Jean Bart had committed acts of sexual abuse vis-à-vis several female players of the national technical center, the FIFA Ethics Commission opened a preliminary investigation, concluding that the Yves-Jean Bart had violated several provisions of the FIFA Ethics Code against minor female football players, threatening witnesses and victims by abusing his position within the Federation. Shortly afterwards, the state courts in Yves-Jean Bart’s home country had cleared him of any wrongdoing for lack of sufficient evidence; however the FIFA Ethics Commission sanctioned him for several violations of the FIFA Code of Ethics, imposing a ban from any activity linked to football and a fine of CHF 1 mio (the FIFA Decision).

In the subsequent appeal to the CAS, the three-member panel heard more than twenty witnesses, some of them under a specific regime in order to protect their identity. The CAS panel issued its award and annulled the FIFA Decision, holding that FIFA could not establish its allegations to the applicable standard of proof (comfortable satisfaction). More specifically, the documents established by various organizations could not constitute sufficient evidence and there was a lack of coherence or credibility in the witness testimony by the alleged victims during the hearing. Additionally, the CAS panel noted that the state authorities had dropped the proceedings against the Respondent for lack of evidence.

In a rather unusual procedural move, FIFA filed a motion to set aside the CAS award in March 2023.  The motion was swiftly dismissed by the SFT, which first noted that it is bound by the facts established by the CAS panel and FIFA could not present its own version of factual and procedural circumstances

In essence, FIFA invoked a violation of its right to be heard by the CAS panel for refusing to hear one of the victims even though it had considered necessary to protect the anonymity of the alleged victims and witnesses. The CAS panel held that online hearing platform did not dispose a voice distortion mechanism and suggested to hear the witnesses in a secret place in Switzerland, through a phone equipped with a voice distortion mechanism. FIFA therefore accused the panel of not having an online hearing platform which could enable the witnesses to provide their testimony, as several witnesses could not physically travel to Switzerland for reasons beyond their will. According to FIFA, this led to the failure to hear several witnesses, including a specific person whose testimony could be decisive for the outcome of the case. FIFA supported that it had already raised this procedural deficiency at the outset of the hearing but the CAS panel ignored its request and equally refused to allow written testimony from these persons.

The SFT considered that FIFA had not validly and explicitly raised an objection to the modalities of the hearing and the hearing of witnesses: accordingly, FIFA had only said that it was “rather regrettable” (“plutôt regrettable”) or “unfortunate” that the CAS online hearing system cannot guarantee the protection of witnesses but failed to file an explicit objection in this respect. What is more, at the end of the hearing FIFA confirmed that its right to be heard was totally respected. The SFT held therefore that FIFA’s request was inadmissible at this stage but it also held that such plea would have in any event been dismissed: the panel did not refuse to hear the witnesses but rather suggested an alternative hearing mode of such witnesses. 

FIFA also invoked a violation of its right to be heard as the panel had refused its request to produce the unredacted declarations made by the various respondents, which would have shown that their declarations were coherent and credible. Apart from finding this plea inadmissible (for not having invoked such plea before the federal proceedings), the SFT considered such plea as unfounded: the CAS panel had indeed requested FIFA to produce (for the panel only) the entire file of the FIFA proceedings, which de facto included the unredacted declarations; had FIFA wished to draw the panel’s attention to a specific element of the file, it should have done so at an earlier stage and not wait until the end of the CAS proceedings to raise such objection.

Finally, FIFA invoked a violation of public policy due to the impossibility to hear the protected witnesses and specifically one witness through video conference disposing a voice distortion mechanism. The SFT held that the impossibility to hear witnesses online does not infringe public policy, all the more since such possibility does not exist by law in several countries, including Switzerland (even though an amendment of art. 170a of the Swiss Code of Civil Procedure is currently underway, cf. at 6.2.1).

Overall, this was an expected outcome of FIFA’s motion to set aside the CAS award: the SFT stressed the importance of explicitly raising a procedural objection in a timely manner, but also held that there is (currently) no statutory obligation to hear witnesses through video conference. In any event, the efficient protection of the identity of witnesses in similar cases remains a very sensitive issue that could be crucial for the outcome of the proceedings

4A_184/2023, judgment of 5 June 2023, A v. UCI, appeal against the award rendered by the CAS on 27 February 2023 (CAS 2021/A/7663)

The dispute involved a French female semi-professional cyclist (the Cyclist) and the International Cycling Federation (UCI): In 2020, the cyclist had filed a complaint before the Ethics Commission of the UCI against her team’s manager for sexual harassment. Her request to participate in the proceedings was denied, because according to the UCI Code of Ethics (enacted in 2018) only the persons against which a complaint was filed could participate in the procedure. Later in 2020, the cyclist forwarded to the Ethics Commission of the UCI a copy of her criminal complaint before the French authorities and requested to be informed on the disciplinary proceedings. She then received a press release whereby the case had been transmitted to the Disciplinary Commission of the UCI, which later refused to send her a copy of the decision as she was not a party to the proceedings. The UCI subsequently sanctioned the manager from any activity linked to cycling for 3 years due to sexual harassment and forwarded a summary of three pages of the decision to the Cyclist.

The Cyclist filed an appeal to the CAS, which dismissed her appeal to the merits and then a civil law appeal to the SFT, also requesting legal aid.

Before the SFT, the Cyclist first invoked a violation of her right to be heard as the minimal guarantees granted to victims of sexual harassment under Swiss law had been violated. The SFT swiftly dismissed the plea as it held that it was an effort to inadmissibly attack the merits of the award. In any event, the CAS had indeed taken into account the arguments raised by the cyclist and found that the UCI Code of Ethics did not go against imperative Swiss law. There was equally no contradiction between the fact that the sole arbitrator considered as “unsatisfactory” the refusal of the UCI to send a copy of the decision and the fact that the UCI was in its rights to do so.

Second, the cyclist invoked a violation of procedural public policy: on a preliminary basis, the SFT reiterated the strict and limited review by the SFT: accordingly, when the SFT is called to review an arbitral award rendered by a tribunal seated in Switzerland and empowered to apply Swiss law subsidiarily (like in the case at hand), it should keep the same distance as if such tribunal had applied any other law and not proceed to a full review of the interpretation of Swiss law by the arbitrators (at 6.2.1). As such, the SFT held that the pleas on the violation of procedural public policy were inadmissible to the extent that they merely intended to establish that the contested award was against a norm of Swiss law (at 6.2.2). 

Third, the Cyclist invoked a violation of substantive public policy, among others a violation of personality rights of Art. 27 par. 2 Civil Code due to the UCI’s refusal to give her a copy of the decision: the SFT considered that such violation was not established to the extent that the Cyclist could still be informed of the outcome of the procedure through the summary of the decision.

The Cyclist further invoked a discriminatory behaviour as to the procedural rights to the parties of a disciplinary procedure under the UCI Code of Ethics and those granted to third non-parties to the procedure: the SFT left – again – the question open as to whether an athlete can invoke discrimination in a dispute with a private association and referred to the Semenya SFT judgment (which is currently under review by the ECtHR Grand Chamber, cf ATF 147 III 49 at 9.4). The SFT went on to dismiss such plea as unfounded, as there was no discrimination in this case and drew the difference between differentiation (“distinction”) and discrimination (at 6.3.2).

What is more, the plea of violation of the principle of human dignity of a victim which is found outside of “her own process” was equally dismissed by the SFT: according to the judgment, sports federations in Switzerland can dictate the procedural rules of their choice and the SFT can only annul a CAS award, which, by confirming said rules, reaches a result contrary to public policy. As such, the non-transmission of a disciplinary decision rendered by an association’s organs to the person that filed a complaint does not violate human dignity.

Overall, this is a rather expected judgment by the SFT, which confirmed its strict approach regarding the limited review of procedural rules of sports federations but also the inadmissibility of arguments of appellatory nature in the federal proceedings.

4A_22/2023 of 16 May 2023
Civil law appeal against the award rendered by the CAS 2020/A/7616

In a tennis case linked to match-fixing, a professional tennis player was suspended for eight years for violations of the relevant integrity program of his international federation. The appeal to the CAS was filed in December 2020, a hearing was held one year later and the CAS panel issued its award in November 2022, after eight extensions of the time limit to issue the award under the CAS Code. In the subsequent challenge proceedings, the SFT exceptionally considered procedural elements subsequent to the issuance of the challenged award as they were pertinent to establish the player’s case (at 5). 

The SFT held that an award rendered after the expiration of its mission is not void but voidable (at 6.1.2). As expected, the SFT held that the player could not rely on the subsequent amendment of the CAS Code (Art. R59) as said rules only applied to procedures initiated after 2022. To the extent that the parties had not revoked the mandate of the arbitrators, they were fully authorized to render their award so that there was no violation of Art. 190 (2) b PILA. 

The SFT also found that there was no violation of the principle of celerity of the proceedings,  after leaving the question open as to whether such principle indeed falls within the scope of procedural public policy: in the specific circumstances of the present case, the SFT considered its complexity and the various exchange of submissions as well as the fact that the player only raised an objection with respect to the delay of the proceedings after the seventh request for extension by the CAS panel. 

The SFT concluded that, notwithstanding the length of the proceedings compared to other CAS cases, the duration of the proceedings was still reasonable for a case related to match fixing that required a more complex assessment.

4A_254/2023 of 12 June 2023, A. v International Fencing Federation (FIE)
Motion to set aside the award CAS 2023/A/9453

A doping-related sanction was issued by the disciplinary body of the International Fencing Federation (FIE) on 31 January 2023. According to the applicable rules, the athlete had 21 days to file an appeal to the CAS. The athlete’s counsel filed the statement of appeal by email only, requesting at the same time the “Case Registration Form” in order to upload the statement via the CAS e-filing platform. On the last day of the time limit, the counsel uploaded the submission on the e-filing platform, noticing that the platform was particularly slow but without receiving an error notification from the system. Several days later, the CAS sent a letter noting that the statement of appeal was filed late.

In the subsequent challenge proceedings, the SFT did not consider that the CAS committed excessive formalism by not admitting the late filed statement of appeal, to the extent that the athlete’s counsel could not adduce any documents showing the inability to upload such submission. It also highlighted that the athlete’s counsel should have verified that the submission was successfully uploaded with the CAS Court Office if he had any doubts to this effect, all the more as such counsel was experienced in the filing of submissions with the CAS. It thus reiterating the importance of the respect of procedural rules (cf also my note on  4A_692/2016).

Ultimately, the SFT considered that there was no violation of the principle of good faith in the proceedings due to the CAS’ letter that the time limit to file the appeal brief was not suspended : in the SFT’s view, such letter does not infringe the principle of good faith as it is without prejudice to the question of the timely filing of the statement of appeal.

All in all, this was a confirmation that the parties uploading the statement of appeal on the e-filing platform bear the burden to establish the valid and timely filing of their submissions, whereas inadmissibility for non-timely filing can in principle not amount to excessive formalism on behalf of the CAS.

4A_100/2023, judgment of June 22, 2023
Croatian Club v. Austrian Coach & FIFA, motion to set aside the CAS Award (CAS 2021/A/7794)

This case dealing with the independence and impartiality of the arbitral tribunal is particularly interesting, not least because it annulled a CAS award for the erroneous challenge of an arbitrator by the ICAS Challenge Commission.

The dispute arose out of a typical contract of employment between an Austrian coach and a Croatian club, which included a clause granting jurisdiction to the Arbitral Tribunal of the Croatian Football Federation (Croatian Football Tribunal). The Club unilaterally terminated the contract and the Coach seized the FIFA Players Status Committee (PSC) instead of going to the Croatian Football Tribunal.

FIFA PSC accepted its jurisdiction based on Art. 22 (c) Rules on the Status and Transfer of Players (RSTP) which gives FIFA jurisdiction over disputes of international dimension, unless an independent arbitral tribunal exists at the national level. The FIFA PSC also held that the arbitration clause in the contract did not contain an exclusive clause in favor of the Croatian Football Tribunal. In this case the arbitration clause was not “exclusive”. 

In the subsequent appeal to the CAS, the Club appointed a Croatian Arbitrator who signed his declaration without mentioning that he was also an arbitrator at the Croatian Football Tribunal. It is noteworthy that a disputed element of the case – also in order to corroborate the Club’s argument of lack of the FIFA PSC and CAS’ jurisdiction -that the Croatian Football tribunal was an independent and impartial tribunal in the terms of Art. 22 (c) of the FIFA RSTP. The three-member panel appointed on this case was constituted, held an online hearing and during the deliberations the Croatian Arbitrator revealed for the first time that he was also a member of the arbitral tribunal of the CFF, reason why he knew the structure and the functioning of such tribunal.

The CAS Head of arbitration then told him that he should step down or at least disclose this to the parties, and the Croatian Arbitrator filed the following disclosure: “I serve as one of the twelve arbitrators of the list of Croatian FootballFederation Court of Arbitration. I note this to be a public information, that can be seen from my CV on CAS profile.” This led to an immediate request for challenge by FIFA (the second respondent in this case) and the acceptance of such request through an ICAS Challenge Commission decision, leading to the replacement of the Croatian Arbitrator.

An interesting admissibility obiter related to the standing of FIFA in the federal proceedings. Distinguishing between the standing of FIFA in the CAS proceedings and in the federal proceedings, the SFT did not invite FIFA to submit its observations considering that this situation was akin to the one of a first-instance tribunal.

Findings of the SFT

An interesting admissibility obiter related to the standing of FIFA in the federal proceedings. Distinguishing between the standing of FIFA in the CAS proceedings and the standing of FIFA in the federal proceedings, the SFT did not invite FIFA to submit its observations considering that its situation was akin to the one of a first-instance tribunal in the Swiss cantonal proceedings (referring to the Guerrero case).

The SFT also confirmed that, notwithstanding the unusual character of the demand (it is typically against a challenge decision dismissing the challenge that the parties file a motion to the SFT), such situation fell within the scope of Article 190 (2) a PILA on the irregular constitution of the panel to the extent that the ICAS decision to remove the Club’s appointed arbitrator deprived the Club from its right to appoint its arbitrator.

After reiterating the essential principles on the duty of independence and impartiality of arbitrators, referring both to the Constitutional guarantees applying to state judges and the specificities of arbitration pursuant to the IBA Guidelines, the SFT referred to the ongoing duty of disclosure of arbitrators: even though, since the last amendment of 2021, Article 179 PILA explicitly requires the ongoing disclosure from arbitrators in international arbitration proceedings, such duty does not apply to notorious / published facts that can be easily traced (4A_520/2021 at 5.5).

Inversely, all parties / their counsel have a high due diligence duty (duty of curiosity / duty of investigation) and should not rely exclusively on the arbitrator’s declaration of independence. As such, FIFA had blatantly violated its duty of curiosity by failing to raise the challenge upon the appointment of the arbitrator.

Key takeaways

In this judgment, the SFT highlighted the importance of the parties’ duty of curiosity as the starting point for the admissibility of the challenge. To the extent that arbitrators are not obliged to disclose known / published facts (in casu the arbitrator had this information on the CAS website and other social media pages), the burden is on the parties to show that they complied with their duty of curiosity. This case is thus different from the Sun Yang case (ATF 147 III 65 at 6.5) as the parties would not be expected to look into all social media and search engines to the extent that the information was easily accessible through the official CAS website.

Interestingly, once the SFT confirmed that FIFA’s challenge was inadmissible and that the ICAS Commission should not have removed the Croatian Arbitrator, it left the question open as to whether the fact that he was a member of the Croatian Football Tribunal could raise serious doubts on his independence / impartiality in the present case. This is different than what the SFT has traditionally done in other cases related to Art. 190 (2) a PILA, such as in the Del Nero case (4A_520/2021) where it still considered that the challenge was unfounded, or the 4A_484/2022 case.

To the extent that arbitrators are not obliged to disclose known / published facts (in casu the arbitrator had this information on the CAS website and other social media pages), the burden is on the parties to show that they complied with their duty of curiosity.