No “forced” arbitration in a horizontal dispute between two football clubs

4A_600/20201

 

Judgment of January 27, 2021

 

First Civil Law Court

 

Federal Judge Kiss, Presiding

Federal Judge Niquille,

Federal Judge May Canellas,

Clerk of the Court: Mr. O. Carruzzo

 

 

A.________ SA,

represented by Mrs. Madalina Diaconu

Appellant

 

v.

 

1. Federation B.________,

2. C.________ SA,

Represented by Josep F. Vandellos Alamilla,

Respondents

 

 

Facts:

 

A.

A.a. A.________ SA and C.________ SA are two football clubs that are members of Federation B.________, which in turn is affiliated with the Union of European Football Associations (UEFA).

 

The two clubs are in a dispute about the right to use the name and colors of the historical and renowned club known as Football Club D.________ (hereafter: D.________). The latter, founded in 1948, continued its activities until […]2011 under the management of an owner named Football Club E.________ (hereinafter: Football Club E.________). From that date, A.________ SA joined Football Club E.________ in order to continue the activities of the club D.________. When Football Club E.________ was dissolved on […]2014, A.________ SA claims to have become the exclusive owner of the right to play under the name and colors of D.________, which is contested by C.________ SA. The latter claims to be the holder of the said right, due to the partnership agreement it concluded on July 8, 2013 with F.________ regarding the combined trademark "Club Sportiv D.________". C.________ SA is also the owner of various trademarks, including those registered as "E.________ Club Sportiv" and "D.________".

 

Several civil and criminal proceedings related to the use of the name, trademarks and identity of the D.________ club have been initiated before the [name of country omitted] authorities in recent years.

 

A.b. On June 13, 2019, C.________ SA filed a request before the Executive Committee of B.________ in order to be able to take part in competitions organized by B.________ under the name of the trademark "D.________", of which it is the owner.

 

A.________ SA opposed this request.

 

On July 2, 2019, the [name of country omitted] Professional Football League (PFL) indicated that the petition filed by C.________ SA met all regulatory requirements.

 

Ruling on July 3, 2019, the Executive Committee of B.________ granted the request. However, it decided that C.________ SA would no longer be able to take part in competitions organized by B.________ under the name of the trademark "D.________", if a court decision was rendered deleting the registration of such trademark, suspending or limiting the right to use it, or cancelling the license agreement entered into by the Appellant.

 

B.

On July 23, 2019, A.________ SA appealed this decision to the Court of Arbitration for Sport (CAS).

 

In its appeal brief, the appellant argued, primarily, that the judicial authorities of [name of country omitted] had exclusive jurisdiction to decide the dispute between the parties. Therefore, the appellant submitted that B.________ did not have the right to provide in its statutes for an appeal to CAS in the present case and the CAS had no jurisdiction. In the event that the CAS should declare itself competent, A.________ SA requested the annulment of the contested decision. B.________ and C.________ SA filed their respective responses on October 15 and 21, 2019.

 

A three-member Panel was constituted by the CAS.

 

On January 9, 2020, the Panel held a hearing in Lausanne.

 

By Award of October 16, 2020, the Panel, after declaring itself competent, dismissed the appeal. In short, it considered that the Appellant had approved the jurisdiction of the CAS by signing a declaration in which it undertook, inter alia, to respect the statutes and rules of B.________ and to recognize the authority of the CAS. On the merits, the arbitrators found that C.________ SA fulfilled all the regulatory requirements to be able to participate in competitions organized by B.________ under the brand name "D.________". Furthermore, the appellant had never argued or demonstrated that a judicial decision restricting the right to use the said mark had been issued by the judicial authorities of [name of country omitted].

 

C.

On November 16, 2020, A.________ SA (hereinafter: the Appellant) filed a civil law appeal with the Federal Tribunal. It mainly requested that the contested decision be annulled. In the alternative, the Appellant requested that the case be returned to the CAS for a new decision in the sense of the recitals of the federal judgment.

 

The Federal Tribunal did not require the filing of a response.

 

 

Reasons:

 

1.

According to Art. 54(1) LTF2, the Federal Tribunal issues its judgment in an official language, as a rule in the language of the challenged decision. If the decision was rendered in another language, the Federal Tribunal uses the official language chosen by the parties. Before the CAS, the parties used English, whereas in its appeal to the Federal Tribunal, the Appellant used French, thus complying with Art. 42(1) LTF in conjunction with Art. 70(1) Cst. (BGE 142 III 521, at 1). In accordance with its practice, the Federal Tribunal will therefore render its judgment in French.

 

2.

In the field of international arbitration, appeals in civil matters are admissible against decisions of arbitral tribunals under the conditions provided for in Articles 190-192 of the Federal Act on Private International Law of 18 December 1987 (PILA; RS 291), in accordance with Article 77(1)(a) LTF.

 

The seat of the CAS is in Lausanne. None of the parties had their seat in Switzerland at the relevant time. The provisions of Chapter 12 PILA are therefore applicable (Art. 176(1) PILA).

 

3.

Whether it is a question of the subject matter of the appeal, the right to appeal, the time limit for appeal or the grounds of appeal invoked, none of these conditions of admissibility are problematic in the present case. The appeal is therefore admissible. This is without prejudice to the examination of the admissibility of the various grounds raised by the Appellant.

 

4.

4.1. The Federal Tribunal decides on the basis of the facts as stated in the award (Art. 105(1) LTF). It cannot correct or supplement the findings of the arbitrators ex officio, even if the facts have been established in a manifestly incorrect manner or in violation of the law (cf. Art. 77(2) LTF which excludes the application of Art. 105(2) LTF). The findings of the arbitral tribunal regarding the course of the proceedings are also binding on the Federal Tribunal, whether they relate to the submissions of the parties, the facts alleged or the legal explanations given by the parties, statements made during the course of the proceedings, requests for evidence, or even the content of a testimony or expert opinion or information gathered during an visual inspection (Judgment 4A_322/2015 of June 27, 2016, at 3, and the precedents cited).

 

Thus, the task of the Federal Tribunal, when seized of an appeal in civil matters against an international arbitration award, is not to rule with full power of review, as would an appellate court, but only to examine whether or not the admissible claims against the award are well-founded. Allowing the parties to allege facts other than those found by the arbitral tribunal, apart from the exceptional cases reserved by the case law, would no longer be compatible with such a mission, even if these facts were established by the evidence in the arbitration file (Judgment 4A_386/2010 of 3 January 2011, at 3.2).

 

4.2. The Appellant disregards these principles when stating that it expressly refers to the facts alleged and the documents produced before the CAS. The Federal Tribunal will therefore rule solely on the basis of the facts established in the contested Award.

 

5.

Invoking Art. 190(2)(b) PILA, the Appellant maintains that the CAS wrongly declared itself competent to hear the appeal submitted to it. In its opinion, the arbitration clause in the articles of association of B.________ could not be invoked against it, since it had not given his consent.

 

5.1. The Federal Tribunal is free to examine questions of law, including preliminary questions, which determine the jurisdiction or lack of jurisdiction of the arbitral tribunal (BGE 133 III 139, at 5, p. 141, and the judgments cited). It does not, however, become a court of appeal, so that it does not have to investigate itself, in the contested award, which legal arguments could justify the admission of the complaint based on Art. 190(2)(b) PILA. Rather, it is up to the Appellant to draw its attention to them, in order to comply with Art. 77(3) LTF (BGE 142 III 239, at 3.1). This provision establishes the same requirements for the statement of reasons as Art. 106(2) LTF. The Appellant must therefore indicate which hypothesis of Art. Art. 190(2) PILA is realized in its eyes and, starting from the contested award, show in a detailed manner, according to it, what the violation of the principle invoked consists of (ATF 128 III 50 at 1c; judgments 4A_7/2019 of 21 March 2019 at 2; 4A_378/2015 of 22 September 2015 at 3.1).

 

5.2. According to the first of the two hypotheses envisaged by Art. R47 of the Code of Sports-related Arbitration, an appeal may be filed with CAS against a decision of a federation if the statutes or regulations of the said sports body so provide and also insofar as the Appellant has exhausted the legal remedies prior to the appeal available to him under the statutes or regulations of the said sports body.

 

Art. 48 para. 8 of B.________'s statutes, in its 2018 version, provides, inter alia, as follows, according to the English translation in the contested award:

 

 [...] any dispute arising in connection with a decision passed by the Executive Committee must be first referred to the Court of Arbitration for Sport in Lausanne.

 

5.3. In the contested award, the CAS notes that the Appellant signed a declaration dated July 31, 2018, by which it accepted, among others, the provisions contained in B.________'s articles of association, undertook to observe them and recognized the authority of the CAS. By doing so, the Appellant has thus consented, in the opinion of the CAS, to the application of Art. 48 para. 8 of B.________'s statutes, which is why the CAS has jurisdiction to hear the appeal filed before it.

 

5.4. In support of its appeal, the Appellant argues that it was forced to accept the arbitration clause in order to be able to take part in the competitions organized by B.________. Referring to ATF 133 III 235 as well as to the judgment of the European Court of Human Rights (hereinafter: ECtHR) of October 2, 2018 in the case Mutu and Pechstein v. Switzerland, the Appellant considers that the present case constitutes forced sports arbitration, insofar as it had no choice but to accept the arbitration clause by adhering to the statutes of B.________. Stressing that it contested the jurisdiction of the CAS during the arbitration proceedings and refused, for this reason, to sign the order of procedure, the Appellant claims that the Panel should have declared itself incompetent due to the absence of a freely expressed consent to arbitration.

 

5.5.

5.5.1. In the decision published in ATF 133 III 235, the Federal Tribunal considered that a waiver of appeal clause within the meaning of Art. 192(1) PILA is in principle not enforceable against an athlete, even if it meets the formal requirements of Art. 192(1) PILA. In this case, the athlete had signed a declaration in which he recognized, among other things, the jurisdiction of the CAS and acknowledged that the decision rendered by the latter could not be appealed.

 

In this decision, the Federal Tribunal emphasized that competitive sport is characterized by a highly hierarchical structure, both at the international and national levels. The relationship between the athletes and the organizations involved in the various sports is vertical; it therefore differs from the horizontal relationship between parties to a contractual relationship. In principle, when two parties deal on an equal footing, each expresses its will without being subject to the goodwill of the other. This is generally the case in international commercial relations. The situation is quite different in the field of sport. Most of the time, an athlete does not have a free hand with respect to his or her federation and will have to bend to the federation's wishes, like it or not. Thus, an athlete who wishes to participate in a competition organized under the control of a sports federation whose regulations provide for recourse to arbitration will have no choice but to accept the arbitration clause, in particular by adhering to the statutes of the sports federation in question in which the said clause has been inserted, all the more so if the athlete is a professional. The athlete will be faced with the following dilemma: to agree to arbitration or to practice sport as a pariah. Put in the alternative of submitting to an arbitration jurisdiction or practicing his sport "in his backyard", watching the competitions "on television", the athlete who wishes to face real competitors or who must do so because it is his only source of income will be forced, in fact, to opt, nolens volens, for the first term of this alternative (ATF 133 III 235 at 4.3.2.2 and the doctrine cited).

 

It is obvious that the waiver of recourse against a future award, when it emanates from an athlete, is generally not the result of a freely expressed will. The agreement that results from the concordance between the will thus expressed and that expressed by the interested sports organization is, therefore, affected ab ovo because of the obliged consent given by one of the parties. By agreeing in advance to submit to any award In the future, the athlete is deprived, from the outset, of the right to have the violation of fundamental principles and essential procedural guarantees that the arbitral tribunal called upon to rule on his case sanctioned at a later date. Moreover, as it concerns a disciplinary measure levelled against the athlete, such as a suspension, which does not require the implementation of an exequatur procedure, he does not have the possibility of formulating his grievances on this count before the judge of compulsory execution. Therefore, in view of its importance, the waiver of the appeal must not, in principle, be able to be set up against the athlete, even when it satisfies the formal requirements of Art. 192(1) PILA (ATF 133 III 235, at 4.3.2.2 and the authors cited).

 

In this decision, the Federal Tribunal emphasized that the case law treats differently the questions relating to the form of the arbitration agreement, the arbitration clause by reference and the consent to arbitration, on the one hand, and those relating to the contractual waiver of recourse within the meaning of Art. 192(1) PILA, on the other. This differentiated treatment follows a logic which consists, on the one hand, of favoring the rapid settlement of disputes, in particular in sports matters, by specialized arbitral tribunals offering sufficient guarantees of independence and impartiality, while ensuring, on the other hand, that the parties, and in particular professional sportsmen and women, do not lightly waive their right to challenge the awards of the final arbitral body before the supreme judicial authority of the State where the arbitral tribunal has its seat. Expressed in another way, this logic means that the maintenance of a possibility of appeal constitutes a counterweight to the "benevolence" with which the consensual nature of recourse to arbitration in sports matters should be examined (BGE 133 III 235, at 4.3.2.3 and the authors cited).

 

5.5.2. In the Mutu and Pechstein v. Switzerland case of October 2, 2018, the ECtHR recalled that the right of access to a court, guaranteed by Art. 6 of the European Convention on Human Rights (hereinafter: ECHR), does not necessarily imply the right to be able to bring a case before a court of the classical type, integrated into the judicial structures of a State. Art. 6(1) ECHR does not prevent the creation of arbitration tribunals for the purpose of adjudicating certain property disputes between individuals (§ 93 f.).

 

With regard to recourse to arbitration in the field of sport, the ECtHR has emphasized that there is a definite interest in ensuring that disputes arising in the context of professional sport can be submitted to a specialized court that is able to give a rapid and economical decision. The use of a single, specialized international arbitral tribunal facilitates a certain procedural uniformity and increases legal certainty (Mutu and Pechstein judgment, §98; cf. also the Ali Riza and others v. Turkey Judgment of 28 January 2020, § 179). This is all the more true when the awards of this arbitral tribunal can be appealed to the supreme court of a single country, in this case the Federal Tribunal, which gives the final decision. The ECtHR thus considered that a system providing for recourse to a specialized court, such as the CAS, in the first instance, coupled with the possibility of appeal, albeit limited, to a State court in the last instance, could represent an appropriate solution with regard to the requirements of Art. 6(1) ECHR (Mutu and Pechstein, § 98).

 

The ECtHR makes a distinction between voluntary and compulsory arbitration. In the case of the speed skater Claudia Pechstein, the ECtHR found that there was compulsory arbitration, in the sense that there was no possibility for the athlete to withdraw from the arbitration tribunal. The athlete concerned had no choice but to accept the arbitration clause, as she could either accept the arbitration clause and earn a living practicing her sport at the professional level, or refuse to do so and thus give up the practice of this sport at the highest level. The ECtHR emphasized that compulsory arbitration is not prohibited. In such a case, however, the arbitral tribunal must offer the guarantees provided for in Art. 6(1) ECHR, in particular those of independence and impartiality (Mutu and Pechstein, § 95 and 114 ff.).

 

In examining whether the CAS can be regarded as an "independent and impartial tribunal established by law" within the meaning of the above-mentioned provision, the ECtHR has held that it has the appearance of a tribunal established by law and that it is genuinely independent and impartial (Mutu and Pechstein judgment, §149 and 159), a view which it confirmed again recently (Michel Platini v. Switzerland judgment of 11 February 2020, § 65).

 

5.6. In the light of the above, the appeal cannot be sustained. It is immediately questionable whether the case before the Federal Tribunal has all the characteristics of compulsory arbitration, since the dispute on the merits is not between an athlete and a sports federation, but between two football clubs, both of which claim the right to use the name D.________. However, this question can be left undecided.

 

Contrary to what the Appellant suggests, the fact that it did not, by hypothesis, freely consent to the arbitration clause in favor of the CAS, inserted in the statutes of B.________, does not mean that such a clause would not be opposable to it. The ECtHR, like the Federal Tribunal, recognizes that recourse to arbitration is possible in sports matters notwithstanding the absence of freely expressed consent by a party. However, in the case of so-called compulsory arbitration (“arbitrage forcé", according to the terminology of the ECtHR), the arbitral tribunal must offer the guarantees provided for by Article 6(1) ECHR, in particular those of independence and impartiality. In Mutu and Pechstein v. Switzerland, the ECtHR found that the German athlete Pechstein had been forced to accept the arbitration clause in favor of the CAS. However, it considered that the CAS was a truly independent and impartial tribunal. In view of the above, recourse to forced arbitration before the CAS is therefore admissible. It cannot be otherwise in this case. The Appellant can therefore not be followed when it merely argues that the arbitration clause by reference was not freely accepted in this case, for which reason the CAS should have declined jurisdiction. For the rest, the party concerned does not make any other criticism in support of its complaint based on the violation of Art. 190(2)(b) PILA.

 

This being the case, the plea that the CAS lacks jurisdiction can only be rejected.

 

6.

The Appellant alleges a violation of its right to be heard (Art. 190(2)(d) PILA). In this respect, it argues that it produced audio and video recordings before the CAS to show that it had already used the name of D.________ in the context of the […] championship, which B.________ knew full well and had tolerated. However, the Panel, after having accepted the administration of such documents, decided, without reason, to broadcast only certain passages, and not the entire recordings. In so doing, it infringed the Appellant's right to be heard.

 

Such an argument is false. Indeed, it is clear from the history of the arbitration proceedings in the award that the Appellant requested, during the hearing of January 9, 2020, the authorization to present audio and video recordings establishing that it had carried out certain activities under the name of D.________. Initially, the CAS Panel was not inclined to grant such a request. However, after further consideration, it decided to allow the Appellant to broadcast the relevant parts of said recordings. At that stage, however, the Appellant deliberately refused to show the recordings in question ("At that stage, the Appellant deliberately refused to show the recordings any longer"; Award, n. 56). Under these circumstances, no violation of the right to be heard can be discerned, as the Appellant itself waived the showing of the recordings.

 

7.

In a final plea, divided into two parts, the Appellant maintains that the Award is contrary to substantive public policy (Art. 190(2)(e) PILA).

 

7.1. An award is incompatible with public policy if it disregards the essential and widely recognized values which, according to the prevailing conceptions in Switzerland, should form the basis of any legal system (BGE 144 III 120, at 5.1; 132 III 389, at 2.2.3). This is the case when it violates fundamental principles of substantive law to such an extent that it can no longer be reconciled with the relevant legal order and system of values (BGE 144 III 120, at 5.1). In order to be incompatible with public policy, it is not sufficient that the evidence has been wrongly assessed, that a factual finding is manifestly false or that a rule of law has been clearly violated (judgments 4A_116/2016 of December 13, 2016, at 4.1; 4A_304/2013 of March 3, 2014, at 5.1.1; 4A_458/2009 of June 10, 2010, at 4.1).

 

In order to determine whether the award is compatible with public policy, the Federal Tribunal does not review the legal assessment made by the arbitrator on the basis of the facts found in his award. Indeed, for the decision to be rendered under Art. 190(2)(e) PILA, it is only important to know whether the result of this legal assessment made by the arbitrators in a sovereign manner is compatible or not with the jurisprudential definition of substantive public policy (Judgment 4A_157/2017 of December 14, 2017 at 3.3.3).

 

7.2. In the first part of the plea, the Appellant complains that B.________ adopted a behavior contrary to the rules of good faith which, if endorsed by the CAS, would have the effect of rendering the contested award incompatible with substantive public policy (Art. 190(2)(e) PILA). B.________ acted in a contradictory manner in rendering its decision of July 3, 2019, after having accepted or tolerated, for a long period, the use of the name D.________ by the Appellant. Moreover, it admitted, during the hearing held on January 9, 2020, that it was aware of this fact.

 

It should be noted from the outset that the arguments put forward by the Appellant are based on facts that are not contained in the contested award, so that the Federal Tribunal cannot take them into consideration. Indeed, the arbitrators never held that B.________ accepted or tolerated the use of the name D.________ by the Appellant during a certain period. Furthermore, according to the findings in the contested award, and contrary to what the Appellant claims, only the second Respondent, i.e. C.________ SA, conceded, during the arbitration hearing, that the Appellant had actually carried out certain activities in the name of D.________ without having the right to do so (Award, n. 55).

 

Moreover, it should be noted that the Appellant never argued before the CAS that B.________ had behaved contrary to the rules of good faith. It did not denounce any contradictory behavior. Therefore, it cannot reproach the CAS afterwards for not having sanctioned an allegedly contradictory attitude of B.________.

 

In any case, the simple fact that B.________ was, by hypothesis, aware of the use by the Appellant of the name D.________ in the context of the national championship does not mean that B.________ would have accepted such behavior, nor a fortiori, that it would have recognized its legitimacy.

 

Assuming that the complaint is admissible, it is therefore unfounded.

 

Contrary to what the Appellant peremptorily asserts, the "fundamental principles of legality and the rule of law" are not "undoubtedly part" of public policy. However, there is no need to decide whether such principles do in fact fall within the scope of the restrictive concept of public policy.

 

It should be noted from the outset that the way in which the Appellant justifies his plea leaves much to be desired. The Appellant merely makes general criticisms, without demonstrating in a precise manner, in what way the result of the contested decision would be contrary to the essential and widely recognized values which, according to the prevailing Swiss attitudes, should constitute the foundation of any legal order.

 

In any case, the Appellant cannot be followed when it maintains that B.________ has arrogated to itself the competence to rule on the request that was submitted to it, in the absence of any demonstration to that effect. Moreover, contrary to what the Appellant claims, the arbitration clause inserted in the articles of association of B.________ is enforceable against him. Finally, it should be recalled that B.________, in its decision of July 3, 2019, considered that C.________ SA could no longer take part in the competitions organized by it under the name of the trademark "D.________", in the event that a judicial decision restricting or cancelling the right to use the said trademark was rendered. B.________ has thus expressly reserved the competence of the judicial authorities to rule on the ownership of the contested trademark. Under these circumstances, no violation of the principles of legality or the rule of law can be discerned. Finally, the contested Award cannot be considered to be contrary to substantive public policy merely because the Appellant could possibly win a case in another proceeding initiated before the judicial authorities in [name of country omitted].

 

8.

In view of the above, the present appeal can only be rejected insofar as it is admissible. The Appellant, who is unsuccessful, will have to pay the costs of the federal proceedings (Art. 66(1) 1 LTF). On the other hand, it will not have to compensate the respondents to the appeal, since they were not invited to file a reply.

 

 

Therefore, the Federal Tribunal pronounces:

 

1.

The appeal is rejected insofar as it is admissible.

 

2.

The legal costs, set at CHF 10'000, are to be borne by the Appellant.

 

3.

The present judgment is communicated to the parties and to the Court of Arbitration for Sport (CAS).

 

 

Lausanne, January 27, 2021

 

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

 

President of the Court:                                      Clerk:

Kiss                                                                 O. Carruzzo

• 1. Translator’s Note: Quote as A.________ SA v. 1. Federation B.________, 2. C.________ SA, 4A_600/2020. The decision was issued in French. The full text is available on the website of the Federal Tribunal, www.bger.ch.
• 2. Translator’s Note: LTF is the most commonly used French abbreviation for the Federal Law of June 6, 2005, organizing the Federal Tribunal (RS 173.110).