Abstract
Following up on last year’s edition, this digest summarizes the decisions issued by the SFT, in its capacity as the court of supervisory jurisdiction over sports-related arbitral awards rendered in Switzerland, between 1 January and 31 December 2016. A table setting out the case references, the grounds invoked in the annulment proceedings and the outcome of the SFT’s decisions, as well as links to English translations thereof and published commentaries, can be found at the end of the digest.
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Notes
- 1.
Compared to the 2015 figure (see Hasler and Hafner 2015, p. 370), the number of SFT annulment decisions concerning sports arbitration awards dropped by almost 40%. Whether this confirms the emergence of an overall trend (momentarily interrupted in 2015), given that the number of sports arbitration-related SFT decisions seems to be gradually declining since 2011 (see Dasser and Wojtowicz 2016, pp. 281–282) remains to be seen. As in 2015, the vast majority of the SFT’s sports arbitration related-decisions concerned football disputes (6 out of the 9 cases summarized in this digest).
- 2.
SFT 4A_620/2015, decision of 1 April 2016, rendered in 2016.
- 3.
SFT 4A_624/2016, decision of 18 November 2016.
- 4.
SFT 4A_510/2015, decision of 8 March 2016, summarized in Sect. 2.1.1.
- 5.
SFT 4A_102/2016, decision of 27 September 2016 (the Essendon case), summarized in Sect. 2.2.2.
- 6.
SFT 4A_536/2016 and 4A_540/2106, decision of 26 October 2016, summarized in Sect. 2.5.3.
- 7.
SFT 4A_116/2016, decision of 13 December 2016 (Sporting v. Doyen), summarized in Sect. 2.5.4.
- 8.
None of the decisions under review was rendered under Part 3 of the CCP, which governs annulment proceedings against Swiss domestic awards. For a review of the legal framework governing remedies against sports arbitral awards in Switzerland, including the grounds for annulment before the Supreme Court, see Hasler and Hafner 2015, pp. 350–370, with further references.
- 9.
On this decision, see also Sect. 2.5.2.
- 10.
This statement appears to be meant to signal that the decision as communicated was not capable of immediate appeal before the SFT, given that, according to the CAS, it was not a ruling on jurisdiction, and the reasons for the partial substantive ruling it contained would only be provided with the final award (for a discussion on the admissibility of applications for annulment against final, partial and preliminary awards, including in cases where the decision is first notified without reasons, see Hasler and Hafner 2015, pp. 356–357, with further references).
- 11.
The rulings requested in Mr. Bruyneel’s prayers for relief were phrased as follows (free translation): “[…] II. The Applicant is not bound by a valid arbitration agreement with USADA; III. The CAS Panel’s Decision under challenge is annulled; IV. The CAS Panel does not have jurisdiction to decide the merits of the present anti-doping dispute between the Applicant and USADA; V. The CAS Panel does not have jurisdiction to decide the merits of the present anti-doping dispute between the Applicant and WADA; VI. The AAA Award is annulled for lack of jurisdiction of the AAA Tribunal; subsidiarily, the case is remanded to the CAS Panel for it to annul the AAA Award for lack of jurisdiction of the AAA Tribunal […]” (para C).
- 12.
On the CAS award in the Essendon case, readers are referred to the commentary by Viret and Wisnosky in this Yearbook.
- 13.
Article 178(2) PILA reads as follows: “[a]s regards its substance, an arbitration agreement is valid if it conforms either to the law chosen by the parties, or to the law governing the subject matter of the dispute, in particular the law governing the main contract, or if it conforms to Swiss law” (free translation). This provision sets out a conflict rule in favorem validitatis, meaning that an arbitration agreement will be deemed substantively valid if it complies with the requirements of the most favorable (or the least demanding) of the three alternative laws designated in Article 178(2) PILA.
- 14.
On this decision, see also Sect. 2.4.1.
- 15.
See also the portion of SFT 4A_510/2015, decision of 8 March 2016 summarized under Sect. 2.5.1.
- 16.
CAS 2015/A/4121 and CAS 2016/A/4435, awards rendered on 13 July 2016 (cf. paras B.a. and B.b. of the Supreme Court decision).
- 17.
On this same issue, see also the portion of SFT 4A_510/2015, decision of 8 March 2016 summarized under Sect. 2.5.1.
- 18.
The SFT has left this question open so far (cf. SFT 4A_16/2012, decision of 2 May 2012, para 4.3).
- 19.
For a commentary on the Doyen award (CAS 2014/O/3781 & 3782), see Duval in this Yearbook.
- 20.
Under the heading “Protection of legal personality / I. Against excessive restrictions”, Article 27 CC provides that: “(1) No person may, wholly or in part, renounce his or her legal capacity or his or her capacity to act. (2) No person may surrender his or her freedom or restrict the use of it to a degree which violates the law or public morals.” (free translation)
- 21.
The authors would like to thank Ms. Juliette Platania, LL.B., of Lévy Kaufmann-Kohler, for preparing the table. The data included in the table was up to date as of 30 June 2017.
References
Dasser F, Wojkowicz P (2016) Challenges of Swiss Arbitral Awards – Updated and Extended Statistical Data as of 2015. ASA Bulletin 34:280–300, Kluwer Law Online
Duval A (2017) CAS 2014/O/3781 & 3782 Sporting Clube de Portugal Futebol SAD v. Doyen Sports, Award of 21 December 2015. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2016. TMC Asser Press, The Hague
Hasler E, Hafner Y (2016) Sports Arbitration Cases Before the Swiss Federal Tribunal in 2015 – A Digest. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2015. TMC Asser Press, The Hague, pp. 349–386
Viret M, Wisnosky E (2017) CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2016. TMC Asser Press, The Hague
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Hasler, E., Hafner, Y. (2017). Sports Arbitration Cases Before the Swiss Federal Tribunal in 2016—A Digest. In: Duval, A., Rigozzi, A. (eds) Yearbook of International Sports Arbitration 2016. Yearbook of International Sports Arbitration. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/15757_2017_16
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