Decision 4A_520/2021 date 4 March 2022 – Multiple appointments of CAS arbitrator 

Facts: This decision relates to the corruption scandal referred to as the «Fifa Gate», which erupted in the wake of investigations conducted by US authorities. Among other football officials, the former President of the Brazilian Football Federation and member of the executive committees of FIFA and the Confederación Sudamericana de Fútbol (Conmebol) (Applicant) was accused of having participated in a vast corruption scheme related to the sale of rights of football events.

Following disciplinary proceedings conducted by the FIFA’s Ethics Committee, the Applicant was banned for life from all football-related activities and fined with CHF 1,000,000. The FIFA Appeal Committee confirmed the decision and the Applicant appealed before the CAS. Upon his appointment by the President of the CAS Appeals Arbitration Division, the president of the CAS panel disclosed by way of his declaration of independence and impartiality that he was also chairing another ongoing CAS arbitration involving FIFA. A lawyer working at president’s law firm was appointed as clerk. During the procedure, the president of the CAS panel further disclosed – upon request of the Applicant – that he was involved in other ongoing cases involving FIFA and that in some of them FIFA had appointed him. 

After requesting further information, the Applicant challenged the appointment of the president of the CAS panel and the clerk. The Challenge Commission of the International Council for Arbitration in Sport (ICAS) dismissed the challenge. 

Later on, the CAS panel partially upheld the appeal, reducing the life-ban down to 20 years. 

The Applicant filed a set-side application before the SFC pleading «inter alia» the incorrect composition of the CAS panel (Article 190(2)(a) PILA) and requesting the removal of the president of the CAS panel and the clerk based on the fact that (i) over the last three years the president of the CAS panel had been involved in 26 proceedings to which FIFA was a party and had been appointed eleven times by FIFA (in proceedings that were later consolidated into three arbitrations) and that (ii) he failed to disclose that one of the members of his law firm had advised FIFA on data protection matters. 

Decision: the SFC dismissed the application. 

First, after recalling that the knowledge of information of a counsel is attributable to their client, the SFC ruled that the challenge of the president of the CAS panel was time-barred since the CAS Code sets forth a 7-day deadline for challenging an appointment. Because of his involvement in another CAS procedure, the Applicant’s counsel before the CAS was aware since 2 October 2020 of the several appointments of the president of the CAS panel and of the fact that his law firm had advised FIFA on a data protection matter. The challenge filed on 13 October 2020 was thus out of time. In addition, the SFC pointed out that it was irrelevant that the ICAS Challenge Commission had declared the challenge admissible, as the SFC was not bound by such a decision. The SFC therefore declared the set-aside application inadmissible. 

Second, the SFC explained that it would have in any event dismissed the set-aside application even if it had found it admissible because: 

• The mere failure of an arbitrator to disclose information relating to previous appointments does not, in the absence of other circumstances, constitute grounds for disqualification. 
• Only the number of proceedings in which the arbitrator was appointed by a party shall be considered as an indication that may affect his or her impartiality vis-à-vis that same party, not the number of proceedings in which the arbitrator was involved with the party, sitting in another capacity. In the case at hand, the arbitrator had been appointed by FIFA three times over the three years preceding the opening of the case. The SFC did not consider this as being worrisome given the specificities of sports arbitration, namely the existence of a closed list of arbitrators, which makes repeated appointed more likely to happen. On this front, the SFC recalled that the IBA Guidelines on Conflict of Interest in International Arbitration (IBA Guidelines) themselves provide that «It may be the practice in certain types of arbitration, such as […] sports […] arbitration, to draw arbitrators from a smaller or specialised pool of individuals. If in such fields it is the custom and practice for parties to frequently appoint the same arbitrator in different cases, no disclosure of this fact is required, where all parties in the arbitration should be familiar with such custom and practice».[2] 
• The data protection mandate to the president’s law firm was no reason to question his impartiality since (i) the mandate had no connection with the present case, (ii) the president of the CAS panel was not the FIFA's person of contact on that mandate, and (iii) the revenues of the law firm from that mandate represented only a small share of the firm's turnover.

Commentary: This decision is interesting in that it is a good reminder of the importance of timely challenging the appointment of an arbitrator. It also highlights the importance of a careful selection of arbitrators where too frequent appointments for the same party may be a concern – a fact which goes beyond sport arbitration and is reflected in the IBA Guidelines, on which the SFC relies when called to decide upon the composition of a CAS panel (Article 190(2)(a) PILA). 

Decision 4A_246/2022 dated 1 November 2022 – Sporting succession and substantive public policy 

Facts: A Brazilian football player (Player) initiated proceedings before the FIFA Dispute Resolution Chamber (DRC) against a club (Club) in relation to unpaid salaries. In 2012, the DRC ordered the Club to pay EUR 400,000.00. The Club did not challenge the DRC’s decision. 

As a consequence of the Club’s failure to abide by the DRC’s decision, in 2014 the FIFA Disciplinary Committee (DC) opened disciplinary proceedings against the Club. The DC then suspended the proceedings, due to the club's disaffiliation from its national federation for reasons of insolvency and, at the Player’s request, opened proceedings against another club which was deemed to be the Club’s successor (Sporting Successor). The DC ruled that the Sporting Successor was liable for the financial obligations of the Club. 

The Sporting Successor appealed the DC’s decision before the CAS, which dismissed the appeal. 

The Sporting Successor filed a set-aside application before the SFC, arguing «inter alia» a violation of substantive public policy under Article 190(2)(e) PILA, in that (i) the concept of sporting succession would allegedly be contrary to the principle of legal independence of legal entities, that under Swiss law can exceptionally be disregarded only in the event of abuse of right (so-called «piercing the corporate veil» or «Durchgriff» in German), (ii) the CAS award violated the principle of legality because it endorsed the principle of sporting succession before its codification in 2019 in Article 15(4) of the FIFA Disciplinary Code (FIFA DC), and (iii) the CAS award infringed on the Sporting Successor’s economic freedom.

Decision: The SFC dismissed the Sporting Successor’s application. 

First, the SFC recalled on the one hand that Article 63 of the Swiss Civil Code (CC) confers broad autonomy to sports federations seated in Switzerland. The autonomy includes issuing rules that govern the relationships between their members and compel them to comply with their obligations by imposing sanctions. On the other hand, the SFC considered that the Sporting Successor failed to prove that applying requirements, which differ from those applicable to the principle of transparency under Swiss law, would led to an award incompatible with substantive public policy.   

Second, regarding the principle of legality, the SFC ruled that a distinction should be made between the sporting succession mechanism, which does not constitute a sanction «per se», and the sanction that could be imposed on the successor in case of non-compliance with a decision concerning its predecessor. The SFC concluded there was no violation of the principle of legality since the former edition of the FIFA DC provided for the possibility to impose a sanction on a club for refusing to comply with a decision. In addition, the principle of sporting succession was largely established in the CAS case law before its codification in the FIFA DC in 2019.

Third, the SFC ruled that the award did not infringe on the Sporting Successor’s economic freedom since the latter was not prevented from continuing its economic activities nor was it exposed to any sanction as the arrears had already been paid after the set-aside application before the SFC was filed.

Commentary: Sporting Succession is a concept that is unknow to Swiss law and transcends the one of legal succession. According to Article 21(4) FIFA DC (version of 2023), the criteria to assess whether an entity is to be considered as the sporting successor of another entity are, among others, «its headquarters, name, legal form, team colours, players, shareholders or stakeholders or ownership and the category of competition concerned». Whether there also must be abuse of right from the former club’ side is not expressly stated in the FIFA DC. This decision of the SFC is thus important, as it could be seen as endorsing the idea – from the limited perspective of substantive public policy – that the abuse of right is not a requirement for the concept of sporting succession to apply. This decision is a clear example of how the jurisprudence of the SFC impacts the development of the «lex sportiva». 

Decision 4A_232/2022 dated 22 December 2022 – Legal nature of the CAS Anti-Doping Division 

Facts: A dispute arose between the International Biathlon Union (IBU) and a former biathlon athlete (the Athlete) in relation to an infringement of the IBU’s anti-doping rules. Based on the applicable IBU’s regulations, the IBU brought the dispute to the CAS Anti-Doping Division (CAS ADD) acting as a first instance. The Athlete challenged the jurisdiction of the CAS ADD. The CAS ADD’s Sole Arbitrator asserted jurisdiction and ruled that the Athlete had committed an anti-doping rule violation. 

The Athlete appealed the CAS ADD’s decision before the CAS Appeals Arbitration Division (CAS AAD) as per Article A21 of the Arbitration Rules of the CAS ADD (CAS ADD Rules) but objected to the CAS ADD’ jurisdiction to hear the matter. In parallel, the Athlete made a set-aside application with the SFC alleging that the CAS ADD’s decision should be regarded as an arbitral award that can be directly challenged before the SFC. The SFC declared the application inadmissible ruling that the appeal before the CAS AAD must be exhausted before any challenge before the SFC (decision 4A_612/2020 of 18 June 2021, published as ATF 147 III 500). The CAS AAD then rendered a preliminary award dismissing the Athlete’s challenge on jurisdiction. 

The Athlete filed an application with the SFC to set aside the CAS AAD’ preliminary award on jurisdiction, alleging a violation of Article 190(2)(b) PILA (i.e., lack of jurisdiction) by arguing that the CAS AAD had no jurisdiction as an appeal body because the CAS ADD had wrongly accepted jurisdiction in the first place, since no arbitration in favour of the CAS ADD had been concluded. 

Decision: The SFC dismissed the application. 

The SFC recalled that only arbitral awards can be challenged for lack of jurisdiction, meaning that challenges against CAS ADD’s decisions are admissible only insofar as the CAS ADD can be considered a genuine arbitral tribunal. The SFC observed that it was not possible to answer this question in abstract terms, given the variety of legal premises that may confer jurisdiction to the CAS ADD. The SFC considered that whether the CAS ADD can be considered an arbitral tribunal proper must be assessed on a case-by-case basis. In the case at hand, the SFC concluded that the CAS ADD acted as in internal IBU’s judicial body, based on a delegation of powers from the IBU. In other words, the CAS ADD was acting as a disciplinary body and not as a genuine arbitral tribunal. As a consequence, the SFC declared the Athlete’s application inadmissible. 

Commentary: The immediate consequence of this decision is, in this authors’ view, that the CAS ADD Rules need to be amended. According to Articles A15(1) and A21(5) of the CAS ADD Rules, when the parties agree to a 3-member CAS ADD panel, they automatically forfeit their right to challenge the decision of the CAS ADD before the CAS AAD. Assuming that the CAS ADD is acting as an internal body of an International Sports Federation seated in Switzerland, such a «waiver” is contrary to Article 75 CC, which is mandatory and provides the right for a member to externally challenge the decision of the federation insofar as such decision is contrary to legal provisions (rules governing associations, legal persons and more generally all substantive law) or statutory provisions (internal rules of the association). A legal remedy must, therefore, exist. Such a remedy cannot be a set-aside application before the SFC, «inter alia» because the latter would not consider the CAS ADD’s decision as an award. It is admitted by the jurisprudence and the doctrine that such judicial control may be exercised by an arbitral tribunal provided the latter is impartial and independent, and is a separate entity from the association (and not an internal body of the association).

Decision 4A_420/2022 dated 30 March 2023 – Jurisdiction of the FIFA PSC to decide on set-off defence based on tort law 

Facts: A dispute arose regarding the international transfer of the Argentinian player Emiliano Sala (Player) from SASP FC Nantes (Respondent) to Cardiff City FC Limited (Applicant). The Player tragically died in a plane crash that occurred in January 2019, just after the transfer contract was concluded. After the accident, the Respondent filed a claim before the FIFA Player Status Chamber (FIFA PSC), requesting the payment of the first instalment under the transfer agreement. The Applicant challenged the jurisdiction of the FIFA PSC. In addition, the Applicant argued that the circumstances that led to the Player’s death were attributable to the Respondent and thus raised a set-off defence based on English tort law against the Respondent’s contractual claim.

The FIFA PSC upheld the Respondent’s contractual claim but ruled that had no jurisdiction to decide on the set-off raised by the Applicant. The Applicant appealed the FIFA PSC’s decision before the CAS, who dismissed the appeal.  Regarding the set-off, the CAS panel considered that it had no jurisdiction, thereby confirming the FIFA PSC’s stand in this respect. 

The Applicant filed a set-aside application before the SFC alleging a violation of Article 190(2)(b) PILA, arguing that the CAS panel had erroneously refused to accept jurisdiction regarding the set-off. 

Decisions: The SFC dismissed the application.

First, the SFC recalled that Art. 377(1) of the Swiss Civil Procedure Code (CPC) – applicable to domestic arbitration – states that the arbitral tribunal has jurisdiction to decide the set-off defence, even if the claim to be set off does not fall within the scope of the arbitration agreement or is subject to another arbitration agreement or an agreement on jurisdiction. However, the PILA is silent in this respect.  Whether such an alleged general principle exists in international arbitration is a question that the SFC left unsettled as it considered «illusory» to lay down general rules applicable to all possible situations and for any type of arbitration (commercial, sport, investment, etc.).

Second, the SFC recalled that the FIFA PSC (like other FIFA’s internal dispute resolution bodies) is not an arbitral tribunal or a court of law. Art. 377(1) CPC is therefore not applicable to the FIFA PSC, irrespective of whether Art. 377(1) CPC may be applicable «mutatis mutandis» or by analogy to international arbitration.

Third, the SFC ruled that pursuant to the principle of autonomy of the association guaranteed by Art. 63 CC, an association under Swiss law enjoys broad autonomy in determining and applying the rules governing its social life and its relationships with its members. This includes deciding which kind of claims the internal adjudication bodies of the association have jurisdiction to decide upon. When it comes to the interpretation of the statutes and the rules of a major sport association, such as FIFA, in particular the clauses relating to jurisdictional issues, those statutes and rules must be interpreted according to the rules of interpretation of the law. The SFC then went on by interpreting FIFA’s regulations and concluded that FIFA’s rules limit the jurisdiction of the FIFA PSC to certain legal aspects related to football and arising out of the application of the FIFA Regulations on the Status and Transfer of Players (FIFA RSTP), but do not include complex tort claims bearing no relationship with the application of football regulations. The SFC considered that the FIFA PSC is not the suitable forum to deal with this kind of disputes. It followed that the FIFA PSC had correctly refused jurisdiction regarding the set-off defence. Consequently, the CAS (on appeal) had no jurisdiction either because its own jurisdiction could not go beyond the one of the FIFA PSC.

Commentary: This decision is a good reminder that FIFA's internal adjudication bodies are not arbitral tribunals and are not meant to decide on all disputes that may arise between FIFA's stakeholders. It is also a good reminder of the autonomy that International Sports Federations enjoy when it comes to decide on the way they intend to function. 
 

[1]      For domestic arbitration see Article 389(1) of the Swiss Civil Procedure Code (CCP). Article 390 CCP provides that the parties may agree that the award may be challenged before a cantonal instead of the SFT. In practice, this option is rarely used. 
 

[2]      Comment 5 to Article 3.1.3 of the IBA Guidelines.