Claim of issues omitted by arbitral award – rejected (award not infra petita and no violation of due process)

Case information
March 5, 2010
4A_524/2009
Interest to foreign readers: 
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Interesting
Topics: 
Violation of due process (right to be heard)
Violation of public policy
Award infra or ultra petita
Decisions of Lausanne Court of Arbitration for Sport
Original language: 
French
Published: 
28 ASA Bull 584 (2010)
Arbitrator (s): 
Chairman: 

Parties

Appellant: 

Counsel

Appellant: 
Respondent: 
Introductory note: 

The case involved a Sport Federation and a press conference. While the Federal Tribunal, in accordance with its practice, made it impossible to identify the parties from the opinion as published on its website, a little bit of sleuthing on Google quickly shows that the case involved the press conference held by Mr. Rudel Obreja, a Romanian technical delegate, at the 2008 Beijing Olympics in connection with some alleged misdeeds within the International Boxing Association. Those of you interested in the details can find the Agence France Presse (AFP) wire of August 28 on Google.

 

Obreja was sanctioned as a consequence of his outburst at the press conference. He was fined CHF 2,000 and suspended for three and a half years.

 

He appealed to the IBA Appeal Authority and then to the Court of Arbitration for Sport (CAS). The CAS panel consisted of François Klein as chairman, with Paule Gauthier and Ulrich Haas as arbitrators. The CAS granted the appeal in part, revoking the fine and reducing Mr. Obreja’s suspension to two years.

 

A civil law appeal was filed and the opinion contains the following interesting features:

 

  1. The Federal Tribunal reiterated that an award which rejects “any other or further submissions” or uses similar language is to be considered as implicitly rejecting even those arguments it does not specifically address and therefore cannot constitute a violation of Art. 190 (2) (c) PILA, which sanctions the award infra petita (See sections 3.1 and 3.2 of the opinion in this respect).

 

  1. From the point of view of due process (“right to be heard” in Swiss parlance), it is possible to “cure” an award which would completely disregard certain elements apparently important to the dispute by demonstrating that the elements omitted were not relevant or were implicitly rejected by the arbitrators. Though this was clearly not the case here, the language used by the Federal Tribunal, not for the first time, puts international arbitrators sitting in Switzerland on comfortable ground should they omit something (See section 4.1 of the opinion in this respect).

 

 Finally, an argument of public policy led the Federal Tribunal to repeat its often-made assertion that substantive public policy is not violated simply by a wrong assessment of the facts or by improper application of the law. Again, this was not the case in the award under appeal, but the Federal Tribunal reiterated the points made in numerous previous cases (See section 5.1 of the opinion in this respect).

Translation: 

4A_524/2009

 

Judgment of 5 March 2010

 

First Civil Law Court

 

Federal Judge KLETT (Mrs), Presiding,

Federal Judge CORBOZ,

Federal Judge ROTTENBERG LIATOWITSCH (Mrs),

Federal Judge KOLLY,

Federal Judge KISS (Mrs),

Clerk of the Court: Mr. CARRUZZO.

 

X.________,

Appellant,

Represented by Mr. Nicolas ROUILLER

 

v.

 

Y.________ International Association,

Respondent

Represented by Mr. Christian BETTEX,

 

 

Facts:

 

A.

A.a

X.________, domiciled in ..., is the President of the V._________ Federation. He is also the Vice President of the Y.________ International Association (hereafter: Y.________), an association governed by Swiss law with its headquarters in Lausanne, and a member of its Executive Committee.

 

A.b

During the Beijing Olympic Games, which took place from August 8 through August 24, 2008, X.________, in his capacity as Y.___________’s technical delegate, was responsible for supervising the conduct of the competitions and verifying the implementation of this association’s rules. 

 

On August 22, 2008, two days before the end of the competitions, X._________ held a press conference without notifying Y.__________, the organizers of the Olympic Games, or the International Olympic Committee. At that time, X.________ declared that B.________, Y.________’s Executive Director, had illegally corrected the results of the random draws of the judges and referees for 60 to 70% of the competitions at the Olympic Games. More specifically, the speaker accused him of manually modifying the lists of referees and judges that were prepared for each competition using computer software. He also complained that A.________, Y. __________’s President, had won his election to head the association by buying votes. B.________ also intervened during the press conference to accuse X.________ of trying to bribe him. The participants then insulted each other and the press conference ended in chaos.

 

Following these events that same day, Y. _________’s President announced X._________’s immediate suspension from all functions within the association. Still on August 22, 2008, the Bureau of Y._________”s Executive Committee filed a complaint against him with that association’s Disciplinary Commission for violating the Disciplinary Code and the Code of Conduct for technical delegates. After filing its complaint, Y. ________ sent written statements to the Disciplinary Commission from three of its official members, including B. __________, in which X.________ was accused of trying to bribe them in order to manipulate the results of the random draws of the judges and referees so that the athletes from V._________ and from two other countries would obtain medals.

 

On September 22, 2008, X.________ appealed the suspension on the grounds that Y.________’s President did not have jurisdiction to make such a decision. 

 

In a decision of January 13, 2009, Y.________’s Disciplinary Commission imposed a fine of CHF 2,000 on X.________ and suspended him from all activity in the sport governed by this association for a period of three and a half years starting on August 22, 2008. 

 

A.c

On January 21, 2009, X.________ filed a notice of appeal against this decision. He asked for an extension of the time limit to appeal because his counsel at the time was unable to work, as established by a medical certificate, thereby impeding him from filing the notice timely.

 

In a decision of February 9, 2009, Y.________’s Appeal Authority, holding that the alleged impediment was incomplete, refused to extend the time limit to appeal and, consequently, dismissed the appeal.

 

B.

On March 2, 2009, X.________ filed an appeal with the Court of Arbitration for Sport (CAS). As a preliminary matter, the Appellant submitted that the decision issued on January 13, 2009, by Y.________’s Disciplinary Commission was capable of appeal. On the merits, he submitted that the CAS should annul the decision, reject the complaint filed on August 22, 2008, against him, find that he did not violate Y.________’s rules, release him from all sanctions, and open an investigation by Y._________’s Disciplinary Commission with regard to the violation of this association’s by-laws and regulations by its officials and of Y.________’s Disciplinary Code by B.________.

 

Y.________ submitted that the CAS should reject the Appellant’s submissions.

 

In an award of September 25, 2009, partially granting the appeal to the extent that the matter was capable of appeal, the CAS overturned the decision made on January 13, 2009, by Y.________’s Disciplinary Commission in the sense that it eliminated the fine imposed on the Appellant and reduced the suspension to 24 months. In addition, it held that each party would pay its own costs and half of the arbitration costs.

 

In the first part of the award, the CAS considered the preliminary issue of extending the timeframe to file an appeal before Y._________’s Appeal Authority, against the decision made by the Disciplinary Commission of the aforesaid association. That issue is no longer under dispute at this stage of the proceedings.

 

With regard to the merits, the CAS first examined the Appellant’s arguments aimed at demonstrating Y._______’s violation of his procedural rights. It concluded that the proceedings conducted by the Commission complied with the statutory and regulatory prescriptions of the association. Moreover, the Appellant did not produce any evidence of the violation that he alleged and had not complained of any such violation in the first instance.

 

The CAS then considered the arguments developed by the Appellant with regard to the violations of Y.________’s Disciplinary Code held by the Disciplinary Commission. With regard to the disputed press conference, it held, contrary to the opinion of the Appellant, that he was perfectly aware of its irregularity and that he had knowingly accepted the consequences. In this context, the CAS refuted the Appellant’s argument that he allegedly had no other choice than to hold the press conference in order to denounce the violation of Y._______’s regulations relating to the designation of the judges and referees. According to the CAS, the Appellant’s behavior blatantly violated Art. 3 of Y.________’s Disciplinary Code and was, consequently, a “serious violation of the by-laws and/or regulations” subject to the sanctions provided in Art. 45 of the aforesaid Code. As for the utterances made by the Appellant during the press conference, the CAS deemed them prejudicial to the reputation of the two individuals specified (Mr. A.________ and Mr. B.________) and to the reputation and interests of Y.________ to the extent that, by accusing them of falsifying the results of the computerized draws in order to influence the conduct of the competitions at the Olympic Games, without providing any objective and justifiable evidence to substantiate his accusations, the Appellant seriously damaged their credibility within the international athletic community and discredited Y.___________ at the same time. According to the arbitrators, such behavior was foreseen in articles 47 and 49 of Y._______’s Disciplinary Code.

 

Exercising full review, the CAS also examined the scope of the disciplinary sanction imposed on the Appellant. It held against him that the statutory violations established were serious, that he was fully aware of committing them, and that he intended to give maximum publicity to his accusations of corruption. In his favour, however, it took into account the fact that the accusations were triggered by those B. _______ made against the Appellant for an alleged and unsubstantiated attempt at bribery. The CAS also took into account the circumstances in which Y. _______ had changed the regulation, and in particular, the lack of transparency and communication surrounding such change. All things considered, it found it necessary to revoke the fine and to reduce the suspension.

 

Lastly, the CAS ruled on the costs and expenses of the appeal proceedings. In view of the fact that the Appellant only partially won his case, but on an essential point, the CAS decided that, equitably, each of the parties would pay its own costs and half the arbitration costs.

 

C.

On October 26, 2009, X._______ filed a civil law appeal with the Federal Tribunal seeking the annulment of the CAS award.

 

In its answer of January 8, 2010, Y.________ submitted that the appeal should be rejected. The CAS made the same submission in its answer of January 18, 2010.

 

On January 22, 2010, the Appellant filed a reply in which he refuted the arguments advanced by the Respondents.

 

Reasons:

 

1.

In the field of international arbitration, the decisions of arbitral tribunals are capable of civil law appeal under the requirements of articles 190 to 192 PILA1 (Art. 77 (1) LTF).2 Whether with regard to the subject of the appeal, standing to appeal, the time limit to appeal, the submissions made by the Appellant or even the grounds invoked in the appeal brief, none of these requirements poses a problem in this case. Moreover, there is no need to review here the disputed issue as to whether or not a civil law appeal is subject to the condition of a minimum amount in dispute when it involves an international arbitral award. Assuming this to be the case, this condition would indeed be met, since the Appellant alleges, without being contradicted by the Respondents, that his suspension caused damage of CHF 30,000 at a minimum. Therefore, the matter is capable of appeal.

 

2.

The Federal Tribunal rules on the basis of the facts established by the CAS (see Art. 105 (1) LTF). It may not rectify or supplement the factual findings of the arbitrators of its own motion, even when the facts were established in a clearly inaccurate manner or in violation of the law (see Art. 77 (2) LTF which rules out the applicability of Art. 105 (2) LTF). However, as was already the case under the Federal Law organizing the Federal Courts (see ATF 129 III 727 at 5.2.2; 128 III 50 at 2a and the decisions quoted), the Federal Tribunal retains the right to review the facts on which the award under appeal is based if one of the grievances mentioned in Art. 190 (2) PILA is raised against them or, exceptionally, when new facts or new evidence are taken into consideration in the framework of the civil law appeal (judgment 4A_128/2008 of August 19, 2008, at 2.4, not published in ATF 134 III 565).

 

3.

In a first argument, the Appellant criticizes the CAS for failing to rule on all the submissions that he brought before it. 

 

3.1 According to Art. 190 (2) (c), second case, PILA, the award may be challenged when the arbitral tribunal failed to rule on one of the submissions. The failure to decide is a formal denial of justice. “Submissions” are understood to mean the claims or submissions of the parties. What is meant here is the incomplete award, or the case in which the arbitral tribunal did not rule on one of the submissions of the parties. When the award rejects any other or further submissions, this grievance is excluded. Neither does it allow the argument that the arbitral tribunal failed to settle an issue important to the resolution of the dispute (ATF 128 III 234 at 4a and references).

 

3.2 The Appellant complains that the CAS did not issue a decision with regard to submissions VIII and XIX of his appeal brief, in which he requested that Y. _________’s Disciplinary Commission be invited to open an investigation on the violation of this association’s by-laws and regulations by its officials and on the violation of its Disciplinary Code by B.________.

 

In this case, the CAS ruled in the framework of an appeal arbitration procedure defined in articles R47 ff of the Code of Sports Arbitration (hereafter: the Code). Under (I.) of the holding in its award, it “partially allows X.________’s appeal to the extent that there is no ground for dismissal.” Then, under (II.) of the same holding, it “overturns the decision” under appeal by reducing the Appellant’s suspension from three and a half years to two years.

 

It is stating the obvious to say that when an appeal is partially admitted, it is rejected for the portion that is not admitted. Certainly, as the CAS itself concedes in its answer to the appeal (at 3), it would have been clearer to indicate that the Appellant’s other submissions were rejected. The fact remains that the wording of (I.) in the holding of the award necessarily implies that the other submissions are rejected, including the aforementioned submissions VIII and XIX, and that alone matters from the perspective of the grievance under consideration. Moreover, the explanations provided by the CAS under (4) and (5) of its answer to the appeal, with reference to the relevant passages of the award, show that the questions relating to these two submissions – the first being the violation of statutory and regulatory prescriptions by some of Y._______’s bodies during the designation of the judges and referees who were supposed to officiate at the Beijing Olympic Games, and the second being B._________’s alleged violation of Y.________’s Disciplinary Code – were dealt with in the award under appeal, with the result that they are covered by the implicit partial rejection of the appeal resulting from (I.) of the holding of the award. As for the manner in which these questions were dealt with, whether they are findings made by the arbitrators or reasons set out by them in that context, it does not fall under Art. 190 (2) (c), second case, PILA.

 

The argument that this provision was violated is thus unfounded.

 

4.

In a second group of arguments, the Appellant criticizes the CAS for not having dealt at all with several issues essential to the outcome of the dispute that he had submitted to it, thereby violating his right to be heard.

 

 

 

4.1 The right to be heard, as guaranteed by articles 182 (3) and 190 (2) (d) PILA, does not differ in principle from the contents of the right recognized in constitutional law (ATF 127 III 576 at 2c; 119 II 386 at 1b; 117 II 346 at 1a p. 347). Thus, it was held in the field of arbitration that each party had the right to state its case on the facts that are essential for judgment, to present its legal arguments, to submit evidence on pertinent facts, and to take part in the hearings of the arbitral tribunal (ATF 127 III 576 at 2c; 116 II 639 at 4c p. 643).

 

Case law also deduced from the right to be heard a minimum duty for the authority to examine and to deal with pertinent issues. This duty, which was extended to international arbitration, is violated when, inadvertently or due to a misunderstanding, the arbitral tribunal does not take into consideration certain statements, arguments, evidence, or offers to produce evidence presented by one of the parties and important for the decision to be issued. It behooves the party allegedly harmed to establish that the arbitral tribunal did not examine certain facts, evidence, or legal arguments duly advanced to substantiate its submissions and that such elements could have influenced the outcome of the dispute. If the award completely disregards elements apparently important for the resolution of the dispute, it will be the responsibility of the arbitrators or the Respondent to justify such omission in their observations on the appeal. They may do so by demonstrating that, contrary to the Appellant’s assertions, the elements omitted were not relevant to resolve the specific case, or, if they were, that they were implicitly rejected by the arbitral tribunal. It must be reiterated in this context that there is a violation of the right to be heard, even in the broader sense given to this guarantee by Swiss Constitutional Law, only if the authority did not fulfill its minimum duty to examine pertinent issues. The arbitrators therefore do not have the obligation to discuss all the arguments relied upon by the parties and they cannot be blamed for a violation of the right to be heard in adversarial proceedings if they failed to refute, even implicitly, an argument objectively lacking any relevance (ATF 133 III 235 at 5.2 and the decisions quoted).

 

4.2

4.2.1

4.2.1.1 The first part of the argument relates to the conditions under which the judges and referees to officiate during the Beijing Olympic Games were designated. 

 

In this regard, the Appellant maintains that his assertions – that B.________ manipulated the computerized random draws of these judges and referees through a change in the rules in violation of Y.__________’s by-laws – were true, so that he cannot be sanctioned for alleged slander. In his opinion, as the CAS itself expressed its surprise as to the procedure chosen by Y.________ to modify the ad hoc rules, it should have examined whether the procedure followed by the Respondent was illegal or not by inviting the latter, if needed, to open an investigation on this point, as he had requested in his submission VIII. Instead, still according to the Appellant, the CAS blamed him, in a totally contradictory manner, for not providing proof of his accusations. Yet, if the arbitrators had examined the arguments set out in detail by the Appellant in his appeal brief, which they neglected to do, they could never have made such an accusation against him. Thus, according to the Appellant, the CAS violated his right to be heard “by neither examining nor dealing with an issue central to the outcome of the proceedings.”

 

4.2.1.2 This line of argument is largely incapable of appeal and is for the rest unfounded.

 

In order to substantiate the criticisms he makes against the CAS, the Appellant maintains that the latter “should have examined the arguments set out in detail, over five full pages (and which are deemed quoted here in their entirety) by [him] in his appeal brief…” (appeal at 11, p. 6). Such arguments are not admissible. Indeed, in accordance with case law relating to Art. 42 (1) LTF, the reasons must be contained in the appeal. Therefore, when the Appellant limits himself to referring to his previous written submissions, as is the case here, his appeal must be dismissed (judgment 4A_25/2009 of February 16, 2009, at 3.1 and references).

 

Furthermore, the very passages from the award quoted by the Appellant under (11) of his brief show that the issues relating to the disputed modification of the rules governing the designation of the judges and referees were dealt with by the CAS, which considers that these questions “are at the center of the issue” (award at 99, in fine). The fact that they were not dealt with to the Appellant’s satisfaction is another issue, which this Court cannot review.

 

In reality, the Appellant appears to argue a violation of his right to evidence in relation to these issues. Undoubtedly, this right also stems from the right to be heard. However, it is not this essential element of such a right that the Appellant invokes in this case, as is clear from nr. (8) of his brief. In matters of international arbitration, the Federal Tribunal examines only grievances that have been submitted and only to the extent that they are reasoned (Art. 77 (3) LTF). Therefore, there is no reason to analyze this aspect of the issue any further.

 

4.2.2

4.2.2.1 In a second part of the same argument, the Appellant criticizes the CAS for not responding at all to the argument according to which a person may not be sanctioned for slander unless the victim has complained. According to him, this argument was nevertheless essential since the facts of the case do not show that the alleged victims (Mr. A.________ and Mr. B.________) complained that he slandered them.

 

The Appellant notes that the summary of the arguments, made in (40) of the award under appeal, is erroneous insofar as the CAS, in writing that none of the interested parties had filed a criminal complaint against the Appellant, disregards that it had not conditioned an action for slander to a criminal complaint, but to a complaint filed before any competent authority whatsoever, in particular the Disciplinary Commission.

 

4.2.2.2 It must be noted at first that the argument does not apply to the act, attributed to the Appellant, of attacking the reputation and interests of Y._______ itself during the press conference on August 22, 2008.

 

That being the case, it appears from the reasons in the award, in particular under (103) and (104), that the CAS implicitly rejected the argument – which it was familiar with (see award at 40) – by which the Appellant denied that he could be sanctioned for slandering Mr. A.________ and Mr. B.________ even though they had not shown, by filing a criminal complaint or in any other manner, that they intended to see him punished. Indeed, the CAS referred to Art. 49 of Y._________’s Disciplinary Code, a provision which does not make the sanction for slander subject to a complaint from the victim.

 

The violation of the right to be heard alleged by the Appellant therefore does not exist.

 

4.2.3

4.2.3.1 In the last part of the argument in question, the Appellant argues that the CAS did not respond at all to his argument that defamation of a legal entity is punishable only if directed against this legal entity as such and not merely against individuals acting for it. The Appellant also claims that the CAS did not consider the argument that he was actually trying to protect the Respondent and not harm it, by denouncing the misconduct committed to its detriment by two of its bodies.

 

4.2.3.2 This line of argument is no better founded than the previous ones. The CAS relied here on a provision of Y.__________’s Disciplinary Code – Art. 47 – that specifically sanctions any attack on the reputation and interests of the association. In addition, it indicated why the Appellant’s behavior was such an attack, particularly in that it was liable to discredit Y.________ itself, in addition to the two individual victims. Furthermore, it clearly appears from the reasons of the award that the CAS implicitly rejected the argument that the Appellant allegedly acted for an altruistic purpose, in other words to help Y._________.

 

5.

In the last argument, based on Art. 190 (2) (e) PILA, the Appellant criticizes the CAS for issuing an award inconsistent with public policy.

 

5.1 The judicial review by the Federal Tribunal of the substance of an international arbitral award is limited to the issue of the consistency of the award with public policy (ATF 121 III 331 at 3a). An award is inconsistent with public policy if it disregards the essential and broadly recognized values which, according to Swiss concepts, should be the basis of any legal order (ATF 132 III 389 at 2.2.3). It is contrary to substantive public policy when it violates some fundamental principles of substantive law to such an extent that it is no longer consistent with the determining legal order and value system; among such principles are, in particular, fidelity to contracts and compliance with the rules of good faith. In order to find inconsistency with substantive public policy, a more narrow concept than that of arbitrariness, it is not sufficient for a factual finding to be obviously false (ATF 121 III 331 at 3a) or for a rule of law to be clearly violated (judgment 4P.71/2002 of October 22, 2002, at 3.2 and the decisions quoted).

 

5.2 Generally speaking, the Appellant’s argument as to the violation of public policy are only repeating, in another form, those in the grievances examined above. Furthermore, they are clearly appellate in character and rely in part on facts that deviate from the findings of the CAS. To this extent, it is doubtful that they are capable of appeal. Moreover, these arguments can only be rejected for the following reasons.

 

5.2.1 First, the Appellant argues, in substance, that the CAS violated the cardinal principle of nulla poena sine lege by sanctioning him for a press conference when it is not established that this fell under the prohibition of a rule of law. According to the Appellant, to deduce the existence of such a prohibition from his own statements made during the press conference, according to which “this initiative would cause him to be sanctioned,” would be equivalent to an obviously false finding of facts contrary to the record (appeal at 16).

 

In arguing so, the Appellant challenges the facts found by the CAS, which is not admissible. What is more, the arbitrators invoked Art. 3. of Y.________’s Disciplinary Code to hold that the Appellant was not authorized to hold the press conference as he did (award at 96 s.). Therefore, they could not be blamed for sanctioning behavior not prohibited by a rule of law.

 

5.2.2 To the extent that the same argument—that is, the absence of a “legal” basis to support the prohibition of the press conference— is used to claim the violation of various provisions of the ECHR (appeal at 17), it is equally unfounded. 

 

5.2.3 At nr. 102 of its award, the CAS finds that the Appellant “also fails to provide proof of his claim that he became aware of this change in the rules [that of the random draw procedure for judges and referees called to officiate during the Olympic Games] only during the Olympic Games.” Citing this passage, the Appellant argues that the burden of proof was wrongly allocated, resulting in a deplorable outcome contrary to public policy (appeal at 18).

 

However, as the Appellant himself emphasizes, an erroneous allocation of the burden of proof is not within the scope of Art. 190 (2) (e) PILA. Moreover, the argument is purely appellate in nature.

 

5.2.4 The CAS is also criticized for a violation of public policy for not enjoining the Respondent to open an investigation against B. _________. According to the Appellant, the award under appeal would lead to a shocking result in that it sanctions him for a violation while allowing the other person to escape sanction for the same violation. The Appellant claims that this result is even more deplorable as, in contrast to Mr. A.________ and Mr. B.________, he expressly filed a complaint with Y._________’s Disciplinary Commission for the slander he suffered from B.________, while the proceedings proved that the accusation of corruption made by the latter against him was false (appeal at 19).

 

Such arguments have nothing to do with the grievance of a violation of public policy. The CAS was asked to consider the case of the Appellant, and not that of B.______. It examined the violations attributed to the first and weighed their seriousness by taking into account several circumstances, in particular the questionable behavior adopted by Mr. B._______ during the press conference, as such behavior creates mitigating circumstances in its opinion (award at 110). There is nothing there to support the grievance. As for the possible violations committed by B.________, the Disciplinary Commission indicated on page 18 of its decision of January 13, 2009 (at 3 § 2e), that the proceedings conducted before it did not concern them. Accordingly, it is in no way established that a final decision had been issued regarding them.

 

5.2.5 As for the first instance proceedings, the Appellant essentially repeats, from the perspective of the violation of public policy, the arguments that he had already advanced in support of his argument of a violation of Art. 190 (2) (c), second case, PILA (see reason 3.2 above) (appeal (20)). It is appropriate to treat them in the same manner.

 

In the argument, the Appellant returns to the claim that the Disciplinary Commission did not rule, despite his repeated request, on the appeal of September 22, 2008, against the decision of Y.________’s president of August 22, 2008, announcing his immediate suspension. Yet, what is disregarded is that the Commission indicated on page 26 of its decision (at 11) the reason why it considered it unnecessary to decide the appeal. Certainly, it did so in part implicitly, as it referred to the “outcome of the case.” It is nonetheless understandable that it considered, insofar as the suspension took effect retroactively to the same date as that issued by Y.________’s president for the same facts, that the Appellant no longer had an interest in seeking review of the legality of Chairman A._______’s decision.

 

5.2.6

5.2.6.1 Next, the Appellant challenges the manner in which the CAS allocated the expenses. He claims that the offset of the costs decided by the arbitrators is objectionable in its result, since he won an essential point of his case (appeal at 21).

 

The decision issued on this subject by the CAS was on grounds of equity. It took into account the fact that the Appellant won only part of his case, as he would still be sanctioned with a two-year suspension. In theory, it is not inconceivable that the decision made by an arbitral tribunal on the allocation of costs may violate substantive public policy (see judgment 4P.280/2005 of January 9, 2006, at 2.2.2 on the subject of the amount of costs). However, in an area (expenses and costs) where the Federal Tribunal intervenes only with the greatest restraint when arbitrariness is argued, it must do so with even greater restraint in matters of international arbitration and even more so if the arbitrators ruled based on equitable principles. Such is the case here. It does not appear that the allocation by the CAS violates any essential and broadly recognized values which, according to Swiss concepts, should be the basis of any legal order. Consequently, the grievance relating is unfounded.

 

5.2.6.2 Lastly, the Appellant criticizes the CAS for not dealing with the issue of the validity of Art. 56 of the Respondent’s rules of procedure, as it excludes the allocation of costs. He sees this as a violation of his right to be heard (appeal at 21). In itself, the grievance is founded, because it appears from the award that the CAS ruled only on the issue of expenses and costs of its own proceedings. However, the Appellant may not claim a present interest in the admission of the grievance under consideration. Indeed, in the most favorable case for him, that is, if the CAS, ruling again, had to admit that the costs may be allocated in the first proceedings notwithstanding the aforementioned regulatory provision, he cannot hope to obtain costs in view of the outcome of the case on the merits. In practical terms, as the disciplinary sanction issued against him remains, even though it was reduced by the CAS, it is hardly conceivable that he could obtain anything other than, in the best case scenario, an offset of the costs of the first proceedings.

 

6.

The Appellant shall pay the costs of the federal proceedings (Art. 66 (1) LTF) and pay the Respondent’s costs (Art. 68 (1) and (2) LTF).

 

Therefore, the Federal Tribunal pronounces:

 

  1. The appeal is rejected.

 

  1. The judicial costs, set at CHF 5,000, shall be paid by the Appellant.

 

  1. The Appellant shall pay to the Respondent an amount of CHF 6,000 as costs.

 

  1. This judgment shall be notified to the representatives of the parties and to the Court of Arbitration for Sport (CAS).

 

 

Lausanne, 5 March 2010.

 

 

On behalf of the First Civil Law Court of the Swiss Federal Tribunal

 

 

The Presiding Judge:                                                 The Clerk:

 

 

 KLETT (Mrs)                                                          CARRUZZO

 
  • 1. Translator’s note: PILA is the most frequently used English abbreviation for the Federal Statute of December 18, 1987, on Private International Law, RS 291.
  • 2. Translator’s note: LTF is the French abbreviation for the Federal Statute of June 17, 2005, organizing       the Federal Tribunal, RS 173.110.