Facts: The underlying dispute relates to a decision rendered by the FIFA’s Dispute Resolution Chamber between a football club (the Club) and a professional football player (the Player). 

The Club filed its statement of appeal with the CAS by e-mail only. Following the Club’s failure to demonstrate that it also sent the statement of appeal by courier or uploaded it onto CAS’s online filing platform, the CAS Court Office declared the appeal inadmissible based on Article R31(3) of the Code of Sports-related Arbitration (the CAS Code), which requires the appellant to file a statement of appeal by courier or to upload it onto the e-filing within the time limit.

The Club filed a set-aside application against the decision of the CAS Court Office with the SFC, alleging a formal denial of justice and the improper constitution of the arbitral tribunal (Art. 190(2)(a) of the Swiss Private International Law Act – «PILA»). The Club argued that the CAS Court Office was not competent to render an inadmissibility decision because such a competence was allegedly for the President of the CAS Appeals Arbitration Division.

Decision: The SFC first stated that the CAS Court Office’s refusal was not a simple procedural order but rather a decision on admissibility that as such can be challenged before the SFC. 

The SFC confirmed – referring to previous case law – that pursuant to Article R31(3) of the CAS Code, the CAS Court Office is the sole competent authority to rule on the inadmissibility of a statement of appeal for non-compliance with the requirements of Article 31(3) of the CAS Code. 

The SFC dismissed the application. 

Comment: This decision is not only a good reminder that decisions of the CAS Court Office may qualify as awards under Swiss law and may thus be challengeable before the SFC, but also that formal requirements set forth in the CAS Code must be complied with meticulously. 

Decision 4A_486/2022 dated 26 April 2023: match-fixing, right to be heard, ne bis in idem and public policy, and substantive public policy (economic freedom) 

Facts: The underlying dispute relates to a professional tennis player (the Player) and the Professional Tennis Integrity Officers. In October 2014, the National Tennis Federation and the National Olympic Committee opened an investigation against the Player for match-fixing. At the end of the procedure, the competent adjudicative body of the National Tennis Federation released the Player from all of the charges against him.

The Tennis Integrity Unit (TIU) decided to open its own investigation and sanctioned the Player for attempted match-fixing during one of his professional matches with a suspension and a fine. The Player filed an appeal with the CAS. The CAS partially upheld the appeal.

The Player filed a set-aside application with the SFC.

Decision: First, the Player argued a violation of his «right to be heard» (Article 190(2)(d) PILA). The SFC dismissed such an argument, ruling that the Player was in fact challenging the assessment of the facts in an attempt to obtain a review of the merits of the award, which is not possible in a set-aside application against an international award. 

Second, the Player alleged that the award was contrary to public policy (Article 190(2)(e) PILA), in that it disregarded the «ne bis in idem» principle as he was allegedly sanctioned twice for the same facts, once by the National Tennis Federation and once by the TIU. The SFC first explained – confirming its previous case law – that while the «ne bis in idem» principle is included in the concept of public policy in Article 190(2)(e) PILA as part of the «res judicata» principle, it is not obvious that such a principle applies to disciplinary sanctions in sport, also because the decisions of adjudicative sporting bodies are not judicial decisions or arbitral awards, and therefore do not have «res judicata» effect. In the end, the SFC left this question open. It recalled, by reference to the case law of the European Court of Human Rights, that if there is a sufficiently close material and temporal link between the proceedings concerned relating to the same constellation of facts so that they can be considered as two aspects of one single system, there is no duality of procedure that would be contrary to the «ne bis in idem» principle. The SFC considered that this was the case here and therefore there was no infringement of the principle of «ne bis in idem». The SFC also added that the system put in place by international sports federations to combat the scourge of match-fixing would be jeopardized if their judicial bodies were deprived of the possibility of carrying out their own investigations against an athlete, on the grounds that he or she had previously been acquitted of the same offences by his or her national federation.

Third, citing the «Matuzalem» case (DFC 138 III 322), the Player contended that the sanction infringed his personal rights to such an extent as to be contrary to substantive public policy (Article 190(2)(e) PILA). The SFC, however, considered that the situation was fundamentally different from the one of the professional football player Matuzalem, since the Player was in fact able to continue to pursue a professional activity – albeit limited – in the game of tennis and thus derive income from it. In addition, the SFC recalled that it can review disciplinary sports sanctions only if they lead to a manifestly unfair result or shocking inequity, which the SFC considered not to be the case. 

The SFC therefore dismissed the application. 

Comment: Once more the SFC left the question open as to whether the «ne bis in idem» principle as part of public policy (Article 190(2)(e) PILA) applies to disciplinary sports sanctions. This decision is nevertheless worth attention as (i) it endorses the importance of fighting against match-fixing in sport and the leeway sports federations enjoy therein and (ii) confirms that decisions of sporting adjudicative bodies are not judicial decisions or awards.

Decision 4A_484/2022 dated 26 April 2023: match-fixing, impartiality and independence of the president of the panel, and substantive public policy (economic freedom)

Facts: The underlying dispute was again between a professional tennis player (the «Player») and the Professional Tennis Integrity Officers. The TIU sanctioned the Player with a life-ban and a fine for attempted match-fixing. The Player filed an appeal with the CAS. During the CAS arbitration, the Player challenged the appointment of Mr. Michael J. Beloff as president of the panel. The Challenge Commission of the International Council of Arbitration for Sport (ICAS) dismissed the challenge. The CAS panel subsequently partially upheld the appeal, following which the Player filed a set-aside application with the SFC. 

First, the Player pleaded the incorrect constitution of the panel (Article 190(2)(a) PILA) due to the president’s alleged lack of impartiality and independence, as two out of the four TIU’s Anti-Corruption Commissioners as well as the ITU’s Head of Legal worked in the same Chamber as Mr. Beloff. The SFC first recalled that while the decision of the ICAS’s Challenge Commission is not binding as it derives from a private body, the SFC nevertheless examines the plea of irregular composition of the CAS panel solely on the basis of the facts established in the decision of the ICAS Challenge Commission. The SFC in the end ruled that the single element of two ITU Anti-Corruption Commissioners working in the president’s Chamber was insufficient to cast doubt on the presumed independence and impartiality of the president, also because the two officers were never involved, directly or indirectly, in the case at hand. 

Second, the Player alleged that the sanction infringed on his personal rights to such an extent as to be contrary to substantive public policy (Article 190(2)(e) PILA). The SFC confirmed its previous case law that a restriction of the economic freedom is only considered excessive if it abolishes a person’s economic freedom or limits it to such an extent that the basis of his or her economic existence is endangered. The SFC considered that this was not the case. 

The SFC therefore dismissed the application. 

Comment: This decision confirms that when the SFC is called to decide upon the composition of a CAS panel (Article 190(2)(a) PILA) it does not review the assessment of the facts carried out by the ICAS Challenge Commission, despite the fact that the latter’s decision is not binding on the SFC. In addition, this decision also deals with the situation where lawyers work in the same Chamber, as situation that the SFC seems not to consider worrisome in itself unless other elements cast doubt on the impartiality and independence of the arbitrator.

Decision 4A_22/2023 dated 16 May 2023: match-fixing, jurisdiction «ratione temporis», principle of expedition and public policy 

Facts: The underlying dispute was also between a Spanish tennis player (the Player) and the Professional Tennis Integrity Officers. The TIU sanctioned him for match-fixing practices. The Player filed an appeal with the CAS, who partially upheld the appeal, reducing the duration of suspension to six years and lowering the imposed fine. The Player filed a set-aside application with the SFC.

Decision: First, the Player argued the «tribunal’s lack of jurisdiction» (Article 190(2)(b) PILA) in that the award was allegedly rendered after the arbitral tribunal's power to issue the award had expired. The SFC recalled that when an arbitral tribunal issues an award after the applicable deadline, the award is not null and void, but may be set aside for lack of jurisdiction. The SFC concluded, by way of interpretation of Article R59(5) of the CAS Code, that the powers of the arbitrators to render the award are not automatically extinguished when the arbitrators fail to comply with the time limit for issuing the award. On this front, the SFC confirmed its previous case law that the time limit in Article R59(5) of the CAS Code is a deadline («délai d’ordre» in French) not affecting the validity of the award. 

Second, the Player pleaded the incompatibility of the award with «public policy» (Article 190(2)(e) PILA). On the one hand, the Player tagged the CAS Code as being arbitrary as it allegedly does not set any time limit for the CAS panel to render an award. The SFC swiftly dismissed such argument, pointing out that it lacks the power to determine whether a regulatory provision contained in the CAS Code is arbitrary. In any event, the erroneous, or even arbitrary, application of arbitration rules does not in itself constitute a violation of procedural public policy, which is more restrictive than that of arbitrariness. On the other hand, the Player argued that the CAS panel allegedly infringed the principle of expedition («principe de célérité» in French), which according to the Player would be part of procedural public policy. The SFC left the question open as to whether a breach of the principle of expedition can amount to an infringement of procedural public policy. It considered that, in the case at hand, the arbitration proceedings lasted less than two years, which was not unreasonable and did not lead to an intolerable contradiction with the sense of justice.

The SFC therefore dismissed the application. 

Comment: This decision confirms the SFC’s previous case law that failure to comply with the time limit to render the award enshrined in Article 59(5) of the CAS Code does not entail the nullity, or annullability, of the award. The SFC however left the question open as to whether the principle of expedition is part of procedural public policy under Swiss law (Article 190(2)(e) PILA). Be it as it may, Article 59(5) of the CAS Code was amended in 2022. The new version, which entered into force on 1 November 2022, now provides that «In case of non-compliance with the time limit, the Panel may be removed in accordance with Article R35 and the arbitrators’ fees may be reduced by the ICAS Board, depending on the specific circumstances of each individual case. In any event, the President of the Division shall inform the parties of the situation and determine if an ultimate time limit is granted to the Panel or which particular measures are taken» (emphasis added).