Introduction[1]

The Court of Arbitration for Sport (CAS) registers approximately 300 cases every year. Recently, the Swiss Federal Supreme Court – which is the sole judicial authority to review arbitral awards rendered in Switzerland – reminded in the Matuzalém Case (Case 4A_558/2011) that CAS awards may be enforced in other States that are parties to the New York Convention on the recognition and enforcement of foreign arbitral awards.

However, in that case, the Federal Court failed to recognize the main intent of FIFA, which is to avoid foreign State courts’ interference – even to the detriment of a plaintiff’s right of having the option to challenge a CAS award in a non-Swiss jurisdiction. Article 67(2-3) FIFA Statutes requires that provision shall be made to CAS arbitration and prohibits FIFA members to have recourse to courts of law unless provided for by FIFA regulations. Member associations must accordingly insert an arbitral agreement in their statutes on the recognition of CAS to resolve disputes under Article 10(4)(c) FIFA Statutes. Regarding labour-related disputes, Article 22 FIFA Regulations on the Status and Transfer of Players in conjunction with Article 5 FIFA Statutes 2003 has carved out an exception to the aforesaid FIFA ‘exclusion’ and ‘allows’ FIFA members to seek redress before civil courts. Nonetheless, FIFA could still use its disciplinary power to enforce decisions (e.g. CAS awards). In addition, Article 64(1) FIFA Disciplinary Code explicitly stipulates that ‘[a]nyone who fails to pay another person […] or FIFA … money…, even though instructed to do so by … a subsequent CAS appeal decision …, or anyone who fails to comply with another [CAS appeal] decision …’, will be disciplinary sanctioned (e.g., fine, ban on any football-related activities, expulsion (member association), relegation (club) and transfer ban (club)). This is a typical case of so-called ‘arbitration with a reduced consensual character’ (Steingruber 2012), which is contrary to the consensual spirit that underlies private arbitration.

It should also be noted that in the Cañas case (Case 4P.172.2006, par. 4.3.2.2) the Swiss Federal Supreme Court recognized and tolerated the athlete’s reduced consent to arbitration (under Article 2 of the Player's Consent and Agreement to ATP Official Rulebook) in order to be able to practice tennis as a professional. It is moreover ‘based on the continuing possibility of an appeal acting as a counterbalance to the “benevolence” with which it is necessary to examine the consensual nature of recourse to arbitration where sporting matters are concerned’ (Case 4P.172.2006, para. 4.3.2.3). In other words, the application of ex post reviews of CAS awards by the Federal Court is a sine qua non to its acceptance of an athlete’s reduced consent to arbitration.

CAS awards could be challenged before courts, however, if they are incompatible with public policy (of Switzerland or EU Member States et cetera). 

CAS awards – Swiss notion of substantive public policy

As far as arbitration is concerned, national courts generally adopt a deferent attitude to arbitration, mainly reviewing the due process components and only entering substantial matters if they are incompatible with substantive public policy. Accordingly, the parties involved can only challenge arbitral awards on substantive grounds if they contravene the national notion of substantive public policy.

The Swiss Federal Supreme Court has only once annulled an international arbitral award rendered in Switzerland for being incompatible with substantive public policy. Interestingly, the case concerns a CAS (appeal) award.

It should be noted that the national notion of public policy may vary per jurisdiction. Accordingly, enforcing arbitral awards that have been annulled at the seat of arbitration – e.g. the Matuzalém case – could still be enforced in e.g. Austria, Croatia, Denmark, France[2], Ireland, Luxembourg, The Netherlands[3], Poland and Spain.[4] However, arbitral awards that have been set aside at the seat of arbitration are likely to be refused enforcement in e.g. Germany, Hungary, Italy and the United Kingdom.[5] 

CAS awards – EU notion of substantive public policy

From an EU law perspective, it must be taken into consideration that enforcing arbitral awards like, e.g., CAS awards by Member States’ courts may affect the internal market. The Court of Justice already dealt with this topic and introduced a broad notion of public policy in the Eco Swiss Case (Case C-126/97) by ruling that Article 101 TFEU may be regarded as a public policy matter in the sense of Article V(2)(b) of the New York convention. In the Manfredi Case (Joined cases C-295/04 to C-298/04), the Court further stated (para. 31): ’Articles … [101-102 TFEU] are a matter of public policy which must be automatically applied by national courts …’. In other words, national courts do have an ex officio duty to exercise control during inter alia enforcement proceedings of arbitral awards. In the Nordsee Case (C-102/81), the Court further stressed the importance of ex post reviews of arbitral awards by national courts.

The latter is especially relevant in reference to their obligation to ensure the uniform application of EU law. The Court stated (para 13) that private arbitral tribunals are not to be considered as ‘any court or tribunal’ under Article 267 TFEU and therefore are not allowed to directly submit an application for a preliminary ruling on EU law. However, in case an arbitral tribunal is, inter alia, established by law, permanent, independent, has a compulsory jurisdiction, its procedure is inter partes and it applies rules of law, the Court of Justice recently (Case C‑555/13) characterised it as ‘any court or tribunal’. Consequently, a mandatory arbitral tribunal established in a Member State may refer questions to the Court of Justice for a preliminary ruling.

As regards to doping-related disputes, the WADA Code is mandatory in substance and must be followed by signatories like, e.g., National Anti-Doping Organizations. Moreover, all Member States have designated a National Anti-Doping Organization (Appendix 1 WADA Code) as the primary authority to adopt and implement inter alia anti-doping measures at the national level. In addition, Article 23.2.2 in conjunction with Article 13.2.1 WADA Code refers inter alia to the exclusive jurisdiction of the CAS Appeal Arbitration, which means that CAS has been recognized by all Member States as a mandatory arbitral tribunal (established in Switzerland) with regard to doping-related disputes. However, as opposed to the regulations of sports governing bodies like FIFA, the WADA Code explicitly mentions the application of ex post reviews of CAS awards by national courts.                                                       

According to the Court, reviewing arbitral awards should be limited in scope and refusing to enforce foreign arbitral awards (i.e. CAS awards) by national courts should only be possible in exceptional circumstances, both in the interest of efficient arbitral proceedings. As previously mentioned, national courts are generally deferent towards arbitral awards. Moreover, they do not review the way the law is applied by the arbitrators. A national court’s review is confined to the nature and impact of the decision and its procedural aspects. Accordingly, the Court accepted the national courts’ limited scope of review in reference to the principle of procedural autonomy to implement and enforce national and EU law. Moreover, in the interest of good administration, fundamental principles of procedure recognized by all Member States must prevail. This procedural autonomy finds its limit in the need to warranty the effet utile of EU competition law as fully as other public policy matters (i.e. principle of equivalence). Moreover, according to the Court, EU competition law is a fundamental provision for the realisation of the internal market and must therefore be regarded as a public policy matter by national courts when enforcing arbitral awards. Thus, the Court ruled that a national court’s limited review of arbitral awards must extend to EU competition law, which should be integrated in the Member State’s national notion of public policy in order to ensure that EU law actually takes effect (principle of effectiveness).

The Court furthermore stated that reviewing an arbitral award for being incompatible with public policy should only occur under exceptional circumstances. Only if the effects of enforcing an arbitral award by a national court contravene the most fundamental principles of law in the respective jurisdiction, it may be denied recognition and enforcement for being incompatible with public policy. In order to qualify as such, a competition law violation must therefore be regarded as very serious, e.g. a complete disregard of an obvious and serious violation such as a cartel. In addition, the Court especially referred to the prohibition laid down in Article 101(1) TFEU, which is primarily a matter of substance. In reference to the national courts’ limited scope of review, one can therefore argue that infringements to EU competition law may be regarded as substantive public policy violations during inter alia enforcement proceedings of arbitral awards.

Finally, competition law is not the internal market’s only fundamental provision. It could be extrapolated that the Court relied on a wide notion of public policy in Eco Swiss. For instance, the fundamental provisions of free movement may be applicable in a CAS award’s enforcement proceedings and could, in principle, qualify as public policy matters in exceptional circumstances. If, e.g., enforcement proceedings of the Matuzalém CAS award were sought before Member States’ courts, a violation of the freedom of workers (he played for Lazio Roma between 2008 and 2013) or service providers (e.g., personal sponsorship or endorsement deals) could be invoked to bar the recognition and enforcement of the award.

Conclusion

CAS awards are potentially fragile at the enforcement stage as they may contradict national States’ understanding of the public policy exception. This is even more so if one characterises EU competition law and EU free movement rights as public policy concerns. However, in practice the enforcement of CAS awards is very rarely used[6]. Sport governing bodies can rely on their contractual disciplinary power to ban athletes from the competition they organize and thus do not rely on national courts to enforce CAS awards. Nevertheless, banned athletes could initiate action for damages against sports governing bodies and force them to ask for the recognition and enforcement of the award in their defence plea. Thus, there is a very indirect (and protracted) way to challenge CAS award on the basis of EU public policy, but it is a windy and rocky legal path.

Epilogue

A personal message to Claudia Pechstein - German Speedskater and Olympic Champion (five gold, two silver and two bronze): Pursuant to Article 25(6) of the ISU Constitution, the ISU is also complicit and the respective CAS awards could accordingly be challenged for being incompatible with substantive public policy if they were to be enforced in a Member State …

[1] Notes are mostly ommitted. A comprehensive article will be published in 2014.

[2] E.g., Cour de cassation, 23 March 1994, Yearbook Commercial Arbitration, Vol XX (1995), p. 663.

[3] E.g., Amsterdam Court of Appeal, Case No. 200.005.269/01, April 28, 2009; Amsterdam Court of Appeal, Case No. 200.100.508/01, September 18, 2012.

[4] ICC Guide to national procedures for the recognition and enforcement of awards under the New York convention, ICC Court of Arbitration Bulletin (Vol 23, Special Supplement) 2012, p. 20.

[5] Ibid.

[6] It should be noted that, as far as we know, only one CAS ordinary award has actually been enforced in a Member State: IMFC Licensing B.V. v. R.C.D. Espanyol de Barcelona, Tribunal Superior de Justicia de Catalunya, 30 May 2012 (IMFC Licensing, B.V. v. R.C.D. Espanyol de Barcelona, S.A.D.) Yearbook XXXVIII (2013) pp. 462-464.