Swiss International Sports Arbitration Reports (SISAR) - Vol. 1

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The Swiss International Sports Arbitration Reports will for the first time provide a full English translation of the decisions made by the Swiss Federal Supreme Court in setting aside proceedings against awards made by Court of Arbitration for Sport (CAS) panels, irrespective of whether the original decision was published in the German, French or Italian language, or whether the decision has been officially published or is simply available on the Court’s website.  The English translation is presented parallel to the original text of each decision, and is preceded by a head note and a summary of the decision for the reader in a hurry.

The importance of the CAS based in Lausanne is well known to all practitioners engaged in sports law and arbitration. It was once famously described as the Supreme Court of World Sports.  Whether a CAS panel decides in ordinary arbitration proceedings or in an appeal brought against the decision of a federation, association or sports related body, the Swiss Federal Supreme Court in Lausanne has the last word where the dissatisfied party challenges the CAS panel’s decision in court proceedings.

This work is edited by two well-known Swiss practitioners, both of whom are engaged full-time in international arbitration as counsel and arbitrators, and have published widely on issues of international law and arbitration.

This publication will be of great use to arbitrators, parties, lawyers involved in sports arbitration as well as commentators who will benefit from access to case law in one key jurisdiction for international sports arbitration.

Preface 

General Editors' Note 

About the General Editors 

Table of Abbreviations 

Table of Cases Reported and Translated 

Table of Cases Cited 

Table of Treaties, Statutory Instruments, Arbitration Rules and Other Private Regulations

Reported and Translated Cases

Appendix: Swiss Federal Private International Law Act, 1987

Table of the Swiss Federal Supreme Court Decisions on International Arbitration

Index

Paolo Michele Patocchi, a Partner with Lenz & Staehelin, is a Swiss qualified attorney-at-law; he regularly represents parties as counsel before arbitral tribunals and has been acting as an arbitrator in a number of European jurisdictions under arbitration rules such as the ICC Rules, the UNCITRAL Arbitration Rules, the Swiss Rules, the Rules of the Chamber of Arbitration of Milan, the Rules of the Hungarian Chamber of Commerce and Industry and the ICSID Additional Facility Rules. He has also acted as a mediator under the ICDR International Dispute Resolution Procedures. He has been the first Chairman of the National Arbitration Committee as well as the Special Committee of the Swiss Chambers of Commerce (administering arbitrations and deciding on challenges of arbitrators under the Swiss Rules of International Arbitration).

Matthias Scherer, a Partner at Lalive, is regularly appointed as counsel or arbitrator in arbitration proceedings under the auspices of leading arbitration institutions including the ICC, ICSID, Swiss Chambers of Commerce, the LCIA and the Stockholm Chamber of Commerce. He is a past member of the Arbitration Committee of the Swiss Chambers of Commerce, and served as a vice chair of the IBA Arbitration Committee. He is an associate member of the ICC Institute, and the Editor of the quarterly journal of the Swiss Arbitration Association (ASA Bulletin). He regularly represents parties before the Swiss Federal Supreme Court.
 

"Of the four official languages in Switzerland, English, which has become the lingua franca, not least in the world of sport, is not one of them. So, this Book, which contains English translations of important decisions of appeals to the Swiss Federal Supreme Court against Awards of the Court of Arbitration for Sport (CAS) during the period 2007 to 2009, is a very welcome addition to the international sports law literature.

This Book is a first in its field, for which the General Editors and the Publishers must be warmly congratulated and thanked; and one that your reviewer can highly recommend to all sports lawyers, arbitrators and administrators, as well as researchers and students."
-The International Sports Law Journal; Reviewd by Ian Blackshaw, Member of the Court of Arbitration for Sport; Honorary Fellow of the International Sports Law Centre of the TMC Asser Instituut

"For the sports law practitioner it is not so much of interest the fact that there is an increasing number of sports-related arbitration cases. What is important today is rather the emergence of a culture of sports arbitration. Because the CAS (Court of Arbitration for Sport) is located in Lausanne (Switzerland), the decisions of the Swiss Federal Tribunal are a crucial element and a unique contribution to the further development of sports arbitration. The collection of decisions provided here by the editors is therefore an indispensable and very welcome tool for sport lawyers, worldwide."
-Michele Bernasconi, CAS Arbitrator; Chair of the Subcommittee Sports-Related Disputes of the Committee Business and Corporate Litigation, Business Law Section of the American Bar Association; Lecturer for the Master of Advanced Studies in International Sports Organisations, University of Zurich, Switzerland; Partner, Bär & Karrer AG, Zurich, Switzerland

"This is a most welcome initiative. It shows that sports arbitration has reached the age of maturity and developed into a full-fledged system that is different in many respects from commercial arbitration. In light of the pivotal role of Swiss law and jurisprudence in the area of sports arbitration, the new series will become an indispensable tool for practitioners, academics, and students wherever they are in the world."
-Gabrielle Kaufmann-Kohler, Professor of Law, University of Geneva, Switzerland; President of the ad hoc Division of the Court of Arbitration for Sport for the Olympic Games (1996-2000); Member of the XXXIInd America’s Cup Jury; Partner, Lévy Kaufmann-Kohler, Geneva, Switzerland

"As all CAS panels sit in Switzerland, in reviewing CAS awards the Swiss Federal Tribunal has become the world's sports court of last resort (a true "spes, ultima dea"!). As its jurisprudence is of enormous relevance for sports law practitioners -- arbitrators and advocates alike -- the Swiss International Sports Arbitration Reports is an extremely valuable resource and an essential addition for any sports law library. I definitely recommend it to anyone involved in sports law and arbitration at national or international level."
-Massimo Coccia, CAS Arbitrator; Partner, Coccia De Angelis & Associati, Rome, Italy

"A publication collecting all decisions rendered by the Swiss Federal Tribunal (SFT) on sports law is vital to academics and practitioners wishing to access and understand the current trends in Swiss international arbitration law.  By hearing challenges against awards rendered by the Court of Arbitration for Sport (CAS), in fact, the SFT is not only setting standards guiding the activity of an important arbitral institution, it is setting the path for principles applicable also in commercial arbitration.  The publication therefore deserves a warm welcome and will soon become a necessary tool for those involved in international arbitration."
-Luigi Fumagalli, Professor of Law, University of Milan, Italy; CAS Arbitrator; Member of the ad hoc Division of the Court of Arbitration for Sport at the 2008 Beijing Olympic Games

"This is an invaluable resource for lawyers from outside Switzerland who practise before the Court of Arbitration for Sport, facilitating an understanding of the constraints imposed on that arbitral tribunal by the Swiss Courts."
-Adam Lewis QC, Former Lecturer on Sports Law, Kings College, London, United Kingdom; Appointed to the Sports Advocacy Section of the London 2012 Olympic and Paralympic Pro Bono Legal Advice and Representation Service; Rugby Football Union Appeal Board Chairman; UK Athletics Tribunal Chairman; Football Association Rule K Arbitrator; Barrister, Blackstone Chambers, London, United Kingdom

"Swiss awards are final. With one proviso however, a sometime and somewhat mysterious possibility to challenge them in front of the Swiss Supreme Court. To understand to which extent this is possible is clearly essential, but not easy for international practitioners mostly because of the language hurdle (the Swiss Supreme Court issues decisions in German, French and Italian). Dr. Patocchi and Mr. Scherer’s initiative aiming at so perfectly putting all these decisions at the arbitration community's disposal in the English language is invaluable."
-Henry Peter, Professor of Business Law, University of Geneva, Switzerland; Vice-Chairman of the Disciplinary Chamber of the Swiss Olympic Association in Charge of Doping Cases; Member of the 31st America’s Cup Arbitration Panel; Member of the 32nd America’s Cup Jury; Chairman of the 33rd America’s Cup Arbitration Panel; Partner, PSMLaw, Lugano, Switzerland

"In recent years, the Swiss Supreme Court’s CAS-related case law has become so significant, both quantitatively and qualitatively, that a dedicated compilation with translations into English is a dream come true for anyone involved in teaching and the practice of sports law. One can only be grateful to Paolo Michele Patocchi and Mathias Scherer for taking this splendid initiative."
-Antonio Rigozzi, Lecturer on International Arbitration and Sports Law, University of Neuchatel, Switzerland; Member of the Arbitral Tribunal of Swiss Athletics; Member of the Board on Sports Law of the Swiss Bar Association; Partner, Lévy Kaufmann-Kohler, Geneva, Switzerland

"This is an incredible resource for American lawyers who regularly appear before the Court of Arbitration for Sport."
-Howard Jacobs, Adjunct Professor of Sports Law, Southwestern Law School, Los Angeles, U.S.A.

“I find the Swiss International Arbitration Law Reports a very useful work! I would welcome a compilation of the jurisprudence of the Swiss Federal Tribunal on sports law for two reasons: So far, there is no comprehensive collection of the SFT-judgments related to challenges of CAS awards. Practitioners must rely on their private data-bases. Sports arbitration has provided the SFT with many opportunities to fine-tune its jurisprudence related to the limited grounds for challenging Swiss international arbitral awards (Art.190 para. 2 (a) – (e) PILA). The compilation would therefore also be welcomed by non-sports lawyers."
-Stephan Netzle, Lecturer on International Arbitration, University of Zurich, Switzerland; CAS Arbitrator (1991-2010); Executive Board Member of Swiss Olympic; Member of the ICC Court of Arbitration; Partner, Netzle Rechtsanwälte, Zurich, Switzerland

"This new digest of Paolo Michele Patocchi and Matthias Scherer, dedicated to the judgements of the Swiss federal tribunal ("SFT") resulting from appeals against decisions of the Court of Arbitration for Sport ("CAS"), comes just at the right moment. Indeed, in recent years there has been a surge of such appeals, while at the same time practitioners and arbitrators in the field of international commercial arbitration have taken a keener interest in the procedural rules regulating CAS proceedings (the "CAS Code") and in the practices of the CAS. 

Given the procedural context in which the CAS operates - with its so-called "closed list" of arbitrators, its relatively fast-track arbitrations, the existence of international federations and other sports organizations that are bound to be repeat players in CAS proceedings as well as the reduced formality of certain CAS practices and the high sporting interests and careers at stake - there is much room for procedural disputes surrounding issues of due process, equality of treatment, defense rights (at the confluence between principles of civil and criminal procedure), proportionality and questions of independence and impartiality of panel members. 

These issues are heightened by the fact that not only financial but also personality rights are at stake on the merits, in a world where athletes at once benefit from and are dependent on the associations that regulate their sporting world, creating a tension between the freedom and autonomy of associations, on the one hand, and the need for athletes to pursue their careers and seek a livelihood in a world where their activity is somewhat monopolized, on the other hand.

Thus, the cases translated in this digest represent a form of convergence point, where practitioners in both international commercial arbitration and sports arbitration alike can enrich and update their knowledge of the duties and limits imposed by general principles of procedural law, human rights law and international public policy on the conduct of proceedings by arbitrators in international arbitration."
-Quentin Byrne-Sutton, CAS Arbitrator; Co-founder and Director of the Geneva Art Law Centre, Switzerland (1991-1997); Partner, Byrne-Sutton Bollen Kern, Geneva, Switzerland