How immune is the lex sportiva from ‘ordinary’ law?

Challenge to a ruling of the CAS, as to any arbitral body, is possible under Swiss law, but only to a very limited extent and very rarely with success. The clean finality of arbitration is treated as a value in its own right and it is strenuously protected.

Arbitrations are subject to the Swiss Federal Act on Private International Law. This provides for the annulment of an arbitral award on grounds set out in Article 190. But the identified grounds are limited. They cover only cases where the sole arbitrator was not properly appointed or where the arbitral tribunal was not properly constituted; where the arbitral tribunal wrongly accepted or declined jurisdiction; [1] [2] [3]

where the arbitral tribunal’s decision went beyond the claims submitted to it, or failed to decide one of the items of the claim; where the principle of equal treatment of the parties or the right of the parties to be heard was violated; and where the award is incompatible with public policy.

Jurisdiction belongs exclusively with the Swiss Federal Tribunal and it has conscientiously adopted a narrow and restrictive approach to the possibility of intervention. This has the effect of sustaining the finality of the arbitral process. This is not a sports-specific issue, but sport has been among the contexts in which judicial reluctance to intervene in the finality of arbitration has been emphasized. The ruling in Azerbaijan Field Hockey Federation v Federation Internationale de Hockey offers a vivid illustration of the reticence to intervene in decisions reached by the CAS.[4] [5] [6] The applicants were seeking to replace Spain in the women’s field hockey competition at the Beijing Olympics of2008. In the background were doping investigations which had been pursued against Spain but which had not led to that team’s expulsion. The applicants failed before the CAS. They then brought the matter before the Swiss Federal Supreme Court. It found that the challenge was in essence an attack on the CAS Panel’s interpretation of the Hockey Federation’s Anti-Doping Policy. The Federal Supreme Court declared that it would not examine whether an arbitral tribunal had properly applied the law on which it rested its decision. Moreover, the claim that the CAS decision violated public policy for want of examination of the merits of the claim was also treated as unfounded.

In this case the Swiss Federal Supreme Court carefully and cautiously positioned itself far away from any pretence at serving as an appellate jurisdiction. The rulings show that normally it will not even correct errors of law perpetrated within the process of arbitration. This constitutes an aggressive protection of the process of arbitration, and in this context it entails a strongly held deference to the lex sportiva as shaped by the CAS.32 This approach upholds sporting autonomy.

The Swiss Federal Supreme Court has intervened only twice in sports-related matters. The first intervention was in 2007 in Guillermo Canas vATP Tour.33 Canas, a professional tennis player, fell foul of anti-doping procedures and was banned for two years by the ATP, the sport’s governing body. He appealed against this decision to the CAS—in fact, a large slice of the CAS’s workload is taken up with challenges to such bans. Part of his claim was that the decision would contravene the law of Delaware regarding restraint of trade, but the CAS, in deciding to reduce the length of his ban, ignored this in its ruling. The Swiss Court upheld Canas’s appeal. The CAS had not met its obligation to deal with all arguments raised by parties before it. It had, in short, violated his right to be heard. This, one would suppose, is an exceptional case and the flaw is easily avoided in future. The CAS has liberty to get the law wrong without fearing intervention by the Swiss Federal Supreme Court, but Canas teaches that it must not refuse to engage with the law.

The second instance of intervention in a CAS award arrived in 2012, when the Swiss Federal Supreme Court decided Matuzalem.34 This is of potentially wider significance than the Canas case. Matuzalem was a footballer who had broken his contact with one club, Shakhtar Donetsk in Ukraine, and moved to another in Spain. He (and the acquiring club, Zaragoza) had been the subject of a decision by FIFA that compensation should be paid to the first club and, though challenged, this decision had been confirmed by the CAS.35 Matuzalem could not afford to pay the sum. Nor could the acquiring club, Zaragoza, which was in a difficult financial position. Payment was therefore not made and a subsequent decision by FIFA imposed further sanctions pursuant to the FIFA Disciplinary Code, including both fines and a prohibition against Matuzalem playing until such time as the compensation was paid. This second adverse ruling too was challenged before, but again confirmed by, the CAS.36

As mentioned earlier, the Swiss Federal Act on Private International Law provides that an arbitral award may be set aside if it is incompatible with public policy. Matuzalem argued before the Swiss Federal Supreme Court that the CAS award violated his personal freedom to such an extent that it offended against public policy recognized by Swiss law within the meaning of the Act. The Swiss Court agreed. It found that a limitation of freedom is contrary to public policy if the rights of the individual concerned are clearly and severely infringed. And it took the view that an open-ended playing ban of the type that Matuzalem was facing constituted a severe infringement of the player’s individual rights which was sufficient to overcome its normal reluctance to interfere with arbitral rulings.

This runs contrary to the orthodox disinclination to intervene in the finality of the CAS’s rulings. It serves as a reminder that the contractual route to securing the autonomy of the lex sportiva which is the subject of this chapter is useful only in so far as ordinary courts of law do not take the view that a higher value, here that of public policy, shall usurp the product of contractual agreement. And if the approach taken in Matuzalem is broadened to a more general readiness to intervene in the CAS’s rulings, the vitality of the strategy for maximizing sporting autonomy via the contractual route will be diminished. Consider, for example, attacks brought before the Swiss Federal Supreme Court against rulings by the CAS which confirm heavy penalties on, for instance, those found to have engaged in match-fixing or doping. It is at least possible that the Swiss Court will be tempted to intervene, but it is perhaps not probable. The CAS rulings upholding penalties of this type are likely to be treated as reflecting the existential need for ‘clean’ sport. But the transfer system, especially as applied in Matuzalem, is different. Matuzalem was a special case, and the decision is probably best understood not as a reflection of a newly [7]

interventionist mood on the part of the Swiss Federal Supreme Court but rather as a rebuke to the egregiously self-interested approach of a FIFA dispute resolution system which had sanctioned Matuzalem—twice—in circumstances where the direct beneficiary was a FIFA member, the association of the first club in Ukraine. More concretely, as the Swiss Federal Supreme Court pointed out, the second FIFA award (imposing a ban) was in any event in principle not necessary, since the first (requiring compensation) was enforceable through the ordinary courts by reliance on the New York Convention without the need for an additional second sanction imposed by FIFA. This aspect of the global system of arbitration now falls to be considered.

  • [1] CAS 98/201 Celtic v UEFA, award of 7 January 2000. On the transfer system, see Ch 9.
  • [2] Case C-415/93 [1995] ECR I-4921. See Ch 4.
  • [3] 29 CAS 2016/A/4492 Galatasaray v UEFA. зо Duval (n 25).
  • [4] 4A_424/2008 (2009) (Switz). English version at (2009) 3 Swiss International Arbitration LawReports 57.
  • [5] 32 On practice, see A Rigozzi, ‘Challenging Awards of the Court of Arbitration for Sport’ (2010)1 JIDS 217; T Glienke, ‘The Finality of CAS awards’ (2012) 12(3—4) Intl Sports LJ 52; D Mavromati,‘Recent Jurisprudence of the Swiss Federal Tribunal on Motions to Set Aside CAS Awards: SomeLessons to be Drawn’ [2014] Intl Sports L Rev 3.
  • [6] 4P_172/2006, 22 March 2007.
  • [7] 4 4A_558/2011,27 March 2012. 35 CAS 2008/A/1519-1520 Matuzalem. 36 29 June 2011, unreported.
 
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