Facts
This case involved an employment contract between a football club (defendant) and a football coach (plaintiff) that contained an arbitration clause. The football club terminated the contract without notice, whereupon the coach filed a lawsuit with the Civil Court of the Canton of Basel-Stadt. The football club disputed the jurisdiction of the state court and referred to the arbitration clause.
The Federal Supreme Court confirmed the previous case law on the arbitrability of employment law claims. Accordingly, claims arising from the mandatory or semi-mandatory provisions of Art. 341 para. 1 CO, such as the plaintiff's claims for unjustified dismissal, are not arbitrable within the meaning of Art. 354 CPC. The Civil Court was therefore rightly competent.
Considerations
The Federal Supreme Court stated that the regulation on arbitrability in Art. 354 CPC essentially corresponds to the previous legal situation under Art. 5 of the Concordat on Arbitration. Accordingly, claims over which the parties can freely dispose are arbitrable. Since the employee cannot waive claims arising from mandatory statutory provisions during the employment relationship and for one month thereafter under Art. 341 para. 1 CO, these claims are not freely disposable and therefore not arbitrable.
The Federal Supreme Court emphasized that the protection of the employee must be guaranteed not only in terms of substantive law, but also in…