Appeal against CAS decisions before the Swiss Federal Tribunal

The Court of Arbitration for Sport (CAS), a Swiss based arbitration tribunal for legal disputes in sports, carries out close to 1000 proceedings per year, the vast majority of which as an appeal instance for final decisions of national and international sports federations, such as FIFA and UEFA. Since the CAS has its seat in Switzerland, its decisions can be appealed before the Swiss Federal Tribunal (SFT) by means of an appeal in civil law matters (“Schiedsbeschwerde”).

The appeal procedure before the SFT is highly regulated in formal terms, and the scope of review is limited to a few specific grounds for appeal. To increase the chances of prevailing in a potential appeal procedure before the SFT, the parties must therefore pay attention to important formalities already during the arbitration proceedings. The purpose of this article is to provide an overview on the most important formal requirements for appeals against arbitration decisions before the SFT (below A.) and the admissible grounds for appeal (below B.).

A. Formal requirements

The most important formal requirements to appeals against arbitration decisions before the SFT are presented in the following chapters.

A.1. Jurisdiction

Jurisdiction to hear appeals against decisions of the CAS or any other Swiss arbitration tribunal lies with the Swiss Federal Tribunal (SFT). All other available legal remedies, if any, must be exhausted before lodging an appeal to the SFT. The appeal is valid regardless of the value in dispute.

A.2.?Appealable Decisions

An appeal to the SFT can be brought against a final decision (“Endentscheid”) that puts an end to the arbitration proceedings for substantive (approval or rejection) or procedural reasons (dismissal, i.e. “Nichteintreten”). In addition, a partial decision (“Teilentscheid”) that only rules on part of the claims or only concludes the proceedings for one of several parties is also appealable. Finally, a preliminary decision(“Vorentscheid”) is also appealable if it concerns the composition of the arbitral tribunal or its jurisdiction (pursuant to Art. 190 para. 2 lit. a) or b) of the Swiss Private International Law Act (PILA), cf. below B.1. and B.2.; SFT 143 III 462, Para. 2.1).

A.3. Time Limit

An appeal against a decision of the CAS must be submitted to the SFT within 30 days of the notification of the arbitral decision. This time limit starts to run on the day following the day of receipt of the original copy of the grounds of the decision by mail or courier (Art. R59 Para. 4 of the CAS Code of Sports related Arbitration (CAS Code); SFT 4A/392_2010, Para. 2.3).

The time limit is not extendable. The Appeal must be submitted to the SFT or handed over to Swiss Post by the last day of the time limit at the latest. If the last day of the time limit is a Saturday, a Sunday or a public holiday recognized by Swiss law, it ends on the next working day.

A.4.?Costs

After lodging the appeal, the appellant will have to pay an advance of costs – depending on the amount in dispute – at an amount specified by the SFT between CHF 200 and 100’000.

In the final decision of the SFT, the court costs are generally imposed on the underlying party. Moreover, the SFT decides whether and to what extent the legal costs of the prevailing party are to be reimbursed by the underlying party.

B. Grounds for appeal

The scope of review of the SFT in appeals against arbitral decisions is strictly limited to a few specific grounds. In international arbitration – i.e. if at least one of the parties to the proceedings does not have its seat in Switzerland – the grounds for appeal listed in Art. 190 Para. 2 PILA apply. In internal arbitration – i.e. if all parties involved have their seats in Switzerland – the grounds listed in Art. 393 of the Swiss Civil Procedure Code (CPC) apply. These two provisions are widely identical but differ in some parts.

The specific grounds for appeal are presented in the following chapters. Other than these grounds of appeal, no further grounds can be raised before the SFT against arbitral awards.

B.1.?Composition of the arbitral tribunal (Art. 190 Para. 2 let. a. PILA; Art. 393 let. a. CPC)

Improper appointment of the sole member of the arbitral tribunal, or improper constitution of the arbitral tribunal.

Under this ground, an arbitral decision can be appealed to the SFT in particular if an arbitrator fails to be independent or impartial. However, it is important to notice that the CAS Code provides for a challenge procedure before the ICAS Challenge Commission in case a party considers an arbitrator not to be independent or impartial (Art. R34 CAS Code). If so, the party must challenge the arbitrator before the ICAS Challenge Commission within seven days after the ground for the challenge has become known to it, else this ground for appeal is forfeited.

According to the SFT, the parties have a duty of curiosity as to the existence of any grounds for challenge. Therefore, a party cannot be content with the general declaration of independence made by an arbitrator, but must carry out certain investigations to ensure that the arbitrator offers sufficient guarantees of independence and impartiality. The Parties are required to use the main web search engines and consult websites likely to provide information revealing a possible risk of bias on the part of an arbitrator (SFT 4A_100/2023, Para. 6.1.6.).

Finally, it must be noted that a decision of the ICAS Challenge Commission on the challenge of an arbitrator cannot be appealed to the SFT. An appeal for failure of independence or impartiality of an arbitrator can be brought before the SFT only against a partial or final decision of the CAS in the case concerned (SFT 4A_100/2023, Para. 6.2).

B.2.?Jurisdiction of the arbitral tribunal (Art. 190 Para. 2 let. b. PILA; Art. 393 let. b. CPC)

Wrongly accepted or declined jurisdiction.

The jurisdiction of an arbitration tribunal and thus also the CAS requires a valid arbitration clause.

An objection of lack of jurisdiction must be raised by a party before the arbitration tribunal prior to any defence on the merits, else this ground for appeal is forfeited.

The appeal for lack of jurisdiction must be lodged to the SFT against a preliminary decision of the arbitration tribunal on jurisdiction, or against its final decision, if the matter of jurisdiction is only decided in the final decision.

B.3.?Ultra, extra or infra petita (Art. 190 Para. 2 let. c. PILA; Art. 393 let. c. CPC)

Ruling beyond the claims submitted, or failure to decide one of the claims.

An arbitral decision may be challenged if the arbitral tribunal has awarded more or other than was requested or if it has left legal claims unjudged.

B.4.?Equal treatment and right to be heard (Art. 190 Para. 2 let. d. PILA; Art. 393 let. c. CPC)

Violation of the principle of equal treatment of the parties or their right to be heard in an adversary procedure.

An arbitral decision can be appealed to the SFT on the grounds that the principle of equal treatment of the parties or their right to be heard has been violated.

A violation of a party’s right for equal treatment or its right to be heard must be raised immediately before the arbitration tribunal, otherwise the complaint will be forfeited and will not be heard by the SFT (SFT 119 II 386, Para. 1.a.).

B.5.?Public Policy (Art. 190 Para. 2 let. e. PILA)

Incompatibility with public policy.

This ground for appeal is only listed in the PILA, but not in the CPC. It therefore only applies to international arbitration of the CAS, but not to arbitral awards of the CAS concerning parties that are all seated in Switzerland. Moreover, this ground of appeal applies only subsidiary to the grounds in letters a. to d. of Art. 190 Para. 2 PILA.

Public policy can be defined as the essential, widely recognized set of values which, according to the prevailing view in Switzerland, should form the basis of every legal system. It has both a substantive and a procedural content.

Substantive public policy includes the principle of pacta sunt servanda, the prohibition of abuse of rights, the principle of good faith, the prohibition of expropriation without compensation, the prohibition of discrimination and the protection of persons incapable of acting (SFT 138 III 322, Para. 4.1.).

Procedural public policy is violated, in particular, if a court disregards the substantive legal force of an earlier decision or if it deviates in its final decision from the opinion it expressed in a preliminary decision with regard to a preliminary substantive issue (SFT 141 III 229, Para. 3.2.1.).

B.6.?Arbitrariness (Art. 393 let. e. CPC)

The award is arbitrary in its result because it is based on findings that are obviously contrary to the facts as stated in the case files or because it constitutes an obvious violation of law or equity.

This ground for appeal is only listed in the CPC, but not in the PILA. It does therefore not apply to international arbitration, but only to arbitral awards of the CAS concerning parties that are all seated in Switzerland.

A decision is arbitrary if it is obviously untenable, clearly contradicts the actual situation, blatantly violates a norm or an undisputed legal principle or is offensively contrary to the sense of justice, whereby not only the justification of the decision but also its result must be unacceptable (SFT 140 III 16, Para. 2.1).

B.7.?Arbitral Costs (Art. 393 let. f. CPC)

The?costs and compensation fixed by the arbitral tribunal are obviously excessive.

Finally, the parties can object that the compensation and expenses of the arbitrators determined by the arbitral tribunal are obviously excessive.

Also this ground for appeal is only listed in the CPC, but not in the PILA, and does therefore only apply to arbitral awards of the CAS concerning parties that are all seated in Switzerland.

C.?Conclusion

As shown above, an appeal to the SFT against an arbitration decision of the CAS or any other Swiss arbitration tribunal is a formally complex procedure with a strongly restricted scope of review. To increase the chances of prevailing with a "Schiedsbeschwerde" before the SFT, parties must carefully observe various formalities already in the arbitration proceedings, such as a timely and correct reaction in case of doubts over the independence of an arbitrator, lack of jurisdiction of the arbitral tribunal or a violation of their right to be heard. Else the party concerned may risk to forfeit a potential ground of appeal.

For further questions on this topic, please contact the writer of this article, [email protected].