Legal update: case report | Published on 06-Jul-2018 | Switzerland In decision 4A_314/2017, the Swiss Supreme Court rejected a request by the International Motorcycling Federation to set aside an award issued by the Court of Arbitration for Sport (CAS) rejecting the argument that the CAS lacked jurisdiction to hear a dispute over a membership application.

In a French-Language decision dated 2 May 2018, the Swiss Supreme Court rejected an appeal by the International Motorcycling Federation (FIM) to set aside a Court of Arbitration for Sport (CAS) award. The court confirmed that the CAS had jurisdiction to hear a dispute over a membership application made by an entity that wanted to become a member of the FIM.

The statutes of the FIM include a provision specifying that final decisions rendered by its jurisdictional bodies or its general assembly must be referred to the CAS. However, unlike statutes of other sports federations, the statutes of the FIM do not specifically provide for arbitration of disputes over membership applications.

Nevertheless, the Supreme Court found that the entity which had applied for membership, was entitled to submit the dispute to the CAS. The court held that the arbitration clause in the statutes constituted a "unilateral offer" which the candidate applying for membership implicitly accepted by starting arbitration.

Construing a broad arbitration clause such as the one contained in the FIM statutes, as an offer to arbitrate, and the filing of the arbitration as the acceptance of the offer to arbitrate, appears to be a sound approach. It opens the door for candidates wishing to become members of international sports federations to have recourse to the CAS if their membership application is rejected, provided that the relevant statutes contain a sufficiently broad arbitration clause.

The Swiss Supreme Court further confirmed that the CAS is also competent if, as in the present case, a sports federation fails to render a decision within a reasonable time (a denial of justice). In this case two and half years was deemed unreasonable.

Case: Decision 4A_314/2017 (2 May 2018) (Judges Kiss, (President) Klett, Hohl, Niquille and May Canellas).