In decision 4A_170/2017 & 4A_194/2017, the Swiss Supreme Court dismissed two challenges to set aside a Court of Arbitration for Sport (CAS) award brought by two different parties, one relying on an alleged violation of its right to be heard, a wrong ruling on jurisdiction, and a violation of public policy, and the other arguing that the sole arbitrator had decided ultra petita.
In a French-language decision dated 22 May 2018, the Swiss Supreme Court rejected two challenges against the same CAS award.
Etoile Filante de Garoua (the "Club") is a football club of the Cameroonian Football Federation ("FECAFOOT"). On 28 September 2015, FECAFOOT elected a new executive committee. The Club challenged the election before the Arbitration Commission of the Cameroonian Olympic Committee (the "Arbitration Commission"). On 12 November 2015, the Arbitration Commission annulled FECAFOOT's election. On 9 December 2015, the Club filed an Appeal (the "Appeal") before the CAS, arguing that the Arbitration Commission had not addressed all of its requests for relief. The CAS sole arbitrator rejected the Appeal on the ground that it was inadmissible because it was filed one day after the expiry of a 20-day time limit to appeal set out in the Statutes of the Cameroonian Olympic Committee (the "Statutes").
The Club challenged the CAS award on the following grounds, each of which was dismissed by the Court:
- The Club first argued that its right to be heard had been violated, because the sole arbitrator did not take into consideration facts it had allegedly invoked, including the fact that the Arbitration Commission's decision mentioned, in its operative part, a 21-day deadline to file an appeal. The Court dismissed the argument, noting that while the Club had indeed filed as an exhibit in the arbitration the decision which mentioned a 21-day time-limit, it had not proven that it had drawn the sole abritrator's attention to this element.
- The Club also argued that the sole arbitrator had wrongly accepted jurisdiction on the basis of a wrong interpretation of the applicable Cameroonian law provisions. The Court noted, as a preliminary matter, that it was not at all obvious that the Club's argument fell within the scope of a jurisdictional challenge. The Court recalled that it had already considered in previous cases whether a late appeal gives rise either to the lack of jurisdiction of the CAS, to the Swiss Supreme Court dismisses two separate challenges against a CAS award in Cameroonian Football Federation saga inadmissibility or to the dismissal of an appeal. Leaving these issues open, the Court held that the sole arbitrator rightly interpreted Cameroonian law when ruling that the Statutes (providing for a 20-day deadline) took precedence over the Arbitration Commission Code (providing for a 21-day deadline) and that the sole arbitrator correctly asserted its jurisdiction before rejecting the Appeal because it was untimely.
- The Club also invoked a violation of public policy, arguing that it would go against the principle of good faith not to take into account the indication of a 21-day deadline set forth in the Arbitration Commission's decision of 12 November 2015. The Court rejected this argument, first noting that this deadline was not reflected in the award, and second that the Court would violate its power of review if it were to supplement the facts established by the sole arbitrator. In addition, the Court pointed out that the Club expressly referred to a provision of the Aribtration Commission Code when it submitted its Appeal so that it was unlikely that the Club relied in good faith on the 21-day deadline mentioned in the Arbitration Commission decision.
In a separate challenge, FECAFOOT argued that the operative section of the CAS award contained a determination which was not included in the requests for relief. The Court did not entertain this argument, coming to the conclusion that FECAFOOT did not have standing to sue. Indeed, FECAFOOT failed to demonstrate, as required under the Court's rules, that its challenge would protect it from potential harm resulting from the award.
This decision is part of a broader ongoing judicial saga in the context of difficulties experienced by FECAFOOT. Indeed, the CAS has registered more than ten proceedings relating to them. In this decision, the Court reaffirmed its restrictive stance when examining the merits of a challenge. It is only where an award is tainted by severe (mainly procedural) defects, and where a party is able to demonstrate that it has standing to challenge, that a challenge has any chances of success.
Case: Decisions 4A_170/2017 & 4A_194/2017 (Swiss Supreme Court).