Jurisdiction of the CAS - arbitral clause by reference to regulations of a sports federation

Case information
January 9, 2009
4A_460/2008
Interest to foreign readers: 
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Very interesting
Topics: 
Arbitration clause
Jurisdiction of the Arbitral Tribunal
Decisions of Lausanne Court of Arbitration for Sport
Original language: 
German
Published: 
27 ASA Bull 540 (2009)
also see 3 SwissIntArbRep 41 (2009)
Chairman: 
Introductory note: 

Dodô v. Fédération Internationale de Football Association (FIFA) and World Anti-Doping Agency (WADA), to which Hansjörg Stutzer referred in his criticism of the Busch decision, involved the Brazilian player Ricardo Dodô . He tested positive after a random doping check in June 2007 and was suspended for 120 days by the Brazilian Football Confederation (CBF). Dodô appealed to the Superior Tribunal de Justiça Desportiva do Futebol, claiming to have been contaminated by accident. He prevailed in the appeal proceedings but then both FIFA and WADA appealed to the Court of Arbitration for Sport(CAS). On September 11, 2008 the CAS (Peter Leaver, José Juan Pinto and Massimo Coccia as chairman) held that it had jurisdiction, annulled the decision of the Superior Tribunal de Justiça Desportiva do Futebol and suspended the player from December 2007 until November 7, 2009. Dodô appealed to the Federal Tribunal. A stay was granted but his appeal was eventually rejected.

The opinion is certainly an interesting one, particularly in view of the Busch decision you received last week. The Federal Tribunal essentially held the following:

(i)              The Federal Tribunal took the view that CAS jurisdiction was given in this case because the FIFA statutes provide for appeals to the CAS against decisions made by judicial bodies of national federations belonging to FIFA. The CBF belongs to FIFA, ergo the CAS has jurisdiction as to an appeal against a decision by the Superior Tribunal de Justiça Desportiva do Futebol. (See 6.1)

(ii)             Admittedly, the case involved a Brazilian player appealing to a Brazilian judicial body against a decision by the Brazilian Confederation. Yet that judicial body is part of the CBF and furthermore the CBF Statutes provide that CBP players must abide by FIFA rules, which was sufficient to establish CAS jurisdiction in this case. (See 6.2 and 6.3)

The distinction between the facts of the case at hand and those of the Busch case may not be crystal clear at first but the Federal Tribunal appears to draw a distinction – which I believe is accurate – between two different situations.

On the one hand, Dodô belonged to a national federation, which is a member of FIFA and the FIFA statutes clearly provide for CAS appeals when a judicial body of a member issues a decision. Provided indeed that the other requirements of the FIFA Statutes are met (the exhaustion of other legal remedies for instance), jurisdiction is given.

On the other hand, Busch had been handed a form that he had to sign each year or every other year to participate in a competition and the “small print” in the form purported to submit him to CAS jurisdiction irrespective of any direct nexus between the dispute and the competition that he was signing up for. That makes the difference between Busch and Dodô in my personal view, but it is safe to assume that there will be some more comments in future.

Translation: 

4A_460/20081

 

Judgement of January 9, 2009

 

First Civil Law Court

 

Federal Judge KLETT (Mrs), Presiding,

Federal Judge CORBOZ,

Federal Judge KISS (Mrs),

Clerk of the Court: WIDMER.

 

A.________,

Appellant,

Represented by Dr Hansjörg STUTZER and Mrs Arlette PFISTER

 

v.

 

1. Fédération Internationale de Football Association (FIFA),

Respondent,

Represented by Mr Christian JENNY

 

2. World Anti-Doping Agency (WADA),

Respondent,

Represented by Mr François KAISER and Mr Claude RAMONI

 

 

Facts:

 

A.

A.________ (the Appellant), domiciled in Rio de Janeiro (Brazil) is a professional football player and belongs to the Brazilian Football Confederation (Confederaçào Brasileira de Futebol; CBF). In 2007, he played for club B.________ and in 2008 for club C.________. He participated in the international club competition “Copa Libertadores de América” several times. He played five times at the international level for the National Brazilian Team. Fédération Internationale de Football Association (FIFA, Respondent 1) is the World Football Organisation based in Zurich. It purports to control the game of football worldwide through the national federations that are its members. For that purpose, it adopts rules and provisions and ensures their application. The World Anti-Doping Agency (WADA, Respondent 2) is a Foundation under Swiss law. Its main premises are in Montreal, Canada. The purpose of Respondent 2 is the worldwide fight against doping in all forms of sport. On June 14, 2007, the Appellant was submitted to a doping check during a game between B.________ and D.________. The test result was positive. The Superior Tribunal de Justiça Desportiva do Futebol (STJD) suspended the Appellant provisionally for thirty days on July 9, 2007. On July 24, 2007, the Disciplinary Committee of CBF barred the Appellant from playing for one-hundred and twenty days. The Appellant appealed to the STDJ, which overturned the decision of the Disciplinary Committee on August 2, 2007. It followed the Appellant’s argument that he was the victim of a contamination and did not act negligently. Whereupon it put an end to the Appellant’s provisional suspension.

 

B.

Both Respondents appealed the decision of the STJD to the Court of Arbitration for Sport (CAS) on September 6 and 11, 2007 and demanded a ban of two years for the Appellant. The CAS was composed of party appointed arbitrators Peter LEAVER and José Juan PINTÒ with Prof. Massimo COCCIA as Chairman. In a letter of December 6, 2007 the parties were advised that the CAS considered that it had jurisdiction in the appeal, but that the reasons in this respect would be contained in the final award. In an award of September 11, 2008, the CAS found that it had jurisdiction to decide the appeal by the Respondents, to the extent that they were aimed at the CBF and at the Appellant. Admitting the appeal (the CAS2) overturned the decision of the STJD of August 2, 2007 and ordered the Appellant banned from December 6, 2007 until November 7, 2009.

 

C.

In a Civil law appeal, the Appellant submits that the CAS arbitral award of September 11, 2008 should be fully annulled and the CAS declared to have no jurisdiction in the case. The Respondents submit that the appeal should be rejected. The CAS refers to its award of September 11, 2008.

 

Reasons:

 

1.

A stay of enforcement was granted ex parte. Today’s decision puts an end to that decision and renders moot the Appellant’s request for a stay.

 

2.

The decision under appeal is in English. The Appellant used German in the federal proceedings and the Respondents used German and French respectively. Since the language of the decision under appeal is not an official language of Switzerland, the Federal Tribunal issues its decision in the language of the appeal in conformity with its practice (see Art. 54 (1) BGG3).

 

3.

A Civil law appeal against arbitral awards is possible under the requirements of Art. 190-192 PILA4 (Art. 77 (1) BGG). According to Art. 77 (3) BGG the Federal Tribunal reviews only the grievances which are brought forward and reasoned in the appeal. In this respect, the strict requirements for reasons still apply, which the Federal Tribunal developed under the aegis of Art. 90 (1) (b) OG5 (see BGE 128 III 50 at 1c p. 53), as the LTF did not intend to make any changes in this respect (BGE 134 III 186 at 5). The seat of the arbitral tribunal is in Lausanne. The Appellant and Respondent 2 have their domicile or their seat outside Switzerland. Since the parties did not exclude in writing the provisions of chapter 12 PILA, they are to be applied (Art. 176 (1) and (2) PILA).

 

4.

An appeal is allowed against interlocutory and partial decisions with regard to jurisdiction. Such decisions may no longer be appealed at a later stage (Art. 92 BGG). The letter from the CAS Secretariat of December 6, 2007 through which the parties were advised that the CAS considered that it had jurisdiction in the case and that the reasons in this respect would be contained in the final award cannot be considered as a formal decision on jurisdiction. Rather it contained an indication to the parties that the CAS would take the case. It cannot be held that further to the December 6, 2007 letter, the Appellant should have demanded the reasons and that having failed to do so an appeal would no longer be possible against the admission of jurisdiction. To decide whether the appeal is admissible or not the decisive element is only that the CAS did not decide on its jurisdiction in a partial award notified separately within the meaning of Art. 186 (3) PILA but dealt with jurisdiction in the final award. The appeal is therefore admissible.

 

5.

Based on Art. 190 (2) (b) PILA, the Appellant challenges the jurisdiction of the CAS.

 

5.1 The Federal Tribunal exercises full judicial review on the grievances relating to jurisdiction according to Art. 190 (2) (b) PILA, including the preliminary issues of material law from which the determination of jurisdiction depends. However, the Federal Tribunal reviews the factual findings of the award under appeal in the framework of the jurisdictional grievances only when some admissible grievances within the meaning of Art. 190 (2) PILA are brought forward against such factual findings or, exceptionally, when new evidence may be taken into account (BGE 134 III 565 at 3.1; 133 III 139 at 5 p. 141; 129 III 727 at 5.2.2 with references).

 

5.2 The CAS found that it had jurisdiction because the CBF is a FIFA member and is accordingly bound by the FIFA Statutes. Art. 1 (2) and Art. 5 of the CBF Statutes correspondingly state that the Statutes, Rules, Regulations, Decisions and the FIFA Code of Ethics are to be complied with. As a professional player, the Appellant belongs to the Brazilian Football Confederation. Therefore he is subject to its rules, which he acknowledged in his employment contract of January 16, 2007 and that includes FIFA Rules. According to Art. 61 of the FIFA Statutes, FIFA and WADA have standing to appeal the final doping decisions of the members. Thus the CAS reached the conclusion that the STJD, although independent in its jurisdictional activity, is an organ of the CBF, thus providing FIFA and WADA with a right to appeal its decisions.

 

5.3 The Appellant holds the view that the proceedings at hand relate to a purely national, Brazilian factual context without any international connection. The STJD would be an independent Brazilian Sport Court which decided the matter finally. Its decision is not a CBF decision, thus neither FIFA nor WADA are entitled to appeal the decision to the CAS. The CAS would have no jurisdiction to decide an appeal against the award on the basis of R47 of the Sport Arbitration Code (CAS-Code). The necessary statutory base in the CBF Statutes would not be available here.

6.

6.1 R47 of the CAS-Code reads as follows:

 

“An appeal against the decision of a Federation, Association or sports-related Body may be filed with the CAS insofar as the Statutes or Regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the Statutes or Regulations of the said sports-related Body.”

 

Art. 61 (1) of the FIFA Statutes (2007 edition) provides:

 

“Appeals against final decisions passed by FIFA, particularly the judicial bodies and against decisions passed by Confederations, Members or Leagues shall be lodged with CAS within 21 days of notification of the decision in question.”

 

According to Art. 61 (5) and (6) of the FIFA Statutes, FIFA and WADA have the right to appeal to the CAS against any internally final decision in doping matters.

 

6.2 These FIFA rules are binding for the Appellant. As a professional football player playing at the international level, he is a member of the Brazilian Football Association CBF, which for its part is a member of FIFA. Accordingly, the FIFA Rules, particularly the jurisdiction of the CAS according to Art. 61 of the FIFA Statutes, apply also to the Appellant. The CAS accurately acknowledged that. The Appellant is of the opinion that the requirement of R47 of the CAS-Code, according to which an appeal against a decision of an Association may be made to the CAS “insofar as the Statutes or Regulations of the said Body so provide” is not met because the Rules of the Brazilian Association do not provide for any appeal to the CAS. (The Appellant) cannot be followed. Art. 1 (2) of the CBF Statutes provides, among other things, that a player belonging to the CBF must follow the FIFA Rules. Such a general reference to the FIFA Rules and thus to the appeal rights of FIFA and WADA contained in the FIFA Statutes is sufficient to establish the jurisdiction of the CAS pursuant to R47 of the CAS-Code, by analogy with case law which holds valid the global reference to an arbitration clause contained in the statutes of an association (Decision 4P.253/2003 of March 25, 2004 at 5.4, ASA-Bull. 2005 p. 128 ff., 136, and 4P.230/2000 of February 7, 2001 at 2a, ASA-Bull. 2001 p. 523 ff., 528 f., with references; also see BGE 133 III 235 at 4.3.2.3 p. 245 and 129 III 727 at 5.3.1 p. 735, with references).

 

6.3 The Appellant further argues that the STJD would be an independent Sport Court. Its decision would therefore not have to be considered as appealable decisions of a FIFA member within the meaning of Art. 61 of the FIFA Statutes. The argument fails simply because the factual findings of the lower court bind the Federal Tribunal (Art. 105 (1) BGG; at 5.1 in the beginning). The CAS concluded as a matter of fact that the STJD is an organ of the CBF on the basis of a letter from the President of the STJD of September 13, 2007, in which he said among other things: “it (the STJD) is just one of the bodies of the CBF…”6. Against that factual finding, the Appellant raises no grievance within the meaning of Art. 190 (2) PILA. The Federal Tribunal must therefore assume that the STJD is an organ of the CBF, and that accordingly the CAS rightly held the decision of the STJD as a decision from a FIFA member within the meaning of Art. 61 of the FIFA Statutes. That the STJD exercises its jurisdictional activity independently and enjoys independence in its organisation changes nothing to the foregoing. The decisive factor is that the STJD is an organ of the CBF and that it is institutionalised by the CBF Statutes.

 

6.4 The Appellant’s grievance that the CAS should not have accepted to entertain the appeals by FIFA and WADA proves to be unfounded. Therefore the appeal must be rejected.

 

7.

In accordance with the outcome of the proceedings, the Appellant must pay the costs and compensate the Respondent (Art. 66 (1) and Art. 68 (2) BGG).

For these reasons, the Federal Tribunal pronounces:

 

1.     The appeal is rejected.

 

2.     The judicial costs, set at CHF 5’000.- shall be borne by the Appellant.

 

3.     The Appellant shall pay to the Respondents an amount of CHF 6’000.- for the proceedings in front of the Federal Tribunal.

 

4.     This decision shall be notified to the parties and to the CAS.

 

 

Lausanne, January 9, 2009

 

In the name of the First Civil Law Court of the Swiss Federal Tribunal

 

 

The Presiding Judge:                                                              The Clerk:

 

 

KLETT                                                                                  WIDMER

 

 
  • 1. Translator’s note: Quote as A.________ v. FIFA and WADA, 4A_460/2008. The original of the decision is in German. The text is available on the website of the Federal Tribunal www.bger.ch.
  • 2. Translator’s note: Added for clarity.
  • 3. Translator’s note: BBG is the German abbreviation for the Federal Statute of June 17, 2005 organising the Federal Tribunal, RS 173.110.
  • 4. 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.
  • 5. Translator’s note: OG is the German abbreviation for the previous Statute organising the Federal courts, which was substituted by the LTF.
  • 6. Translator’s note: In English in the original text.