Facts

The FC [A.] (appellant), a Swiss football club, participated in the 2022/2023 season with its first men's team in Group 1 of the 1st League Classic of the Swiss Football Association (GFO). The First League of the GFO (respondent), a department of the GFO with its own legal personality, organises this league as the fourth-highest division in Swiss football.

On xxx, FC [A.] played a league match against football club [B.] in [U.] , which ended 2:0 in favour of [B.] . FC [A.] contested that [B.] had fielded too many non-locally trained players, specifically five players ([D.] , [E.] , [F.] , [G.] and [H.] ), who did not have the status of Home Trained Players (HTP). It was also disputed whether player [C.] (foreign player) possessed HTP status. The relevant provisions are found in Articles 168 and 170 of the GFO Competition Regulations (GFO WR).

On 11 October 2022, FC [A.] applied to the committee of the First League for the annulment of the match result and a 3:0 victory awarded in its favour. The committee dismissed the application in its decision of 18 October 2022. FC [A.] appealed this decision to the Appeals Commission of the First League, which also dismissed the appeal in its decision of 28 November 2022.

FC [A.] then lodged an appeal with the Court of Arbitration for Sport (CAS) against the decision of the Appeals Commission. After several delays due to scheduling, an oral hearing took place in Zurich on 3 May 2023. The sole arbitrator, Prof. Dr. Ulrich Haas, dismissed the appeal in the arbitration award of 17 May 2023. He reasoned that there was no violation of Article 170 para. 2 GFO WR, as player [I.] had not been fielded and player [C.] —albeit incorrectly—had possessed HTP status at the relevant time.

FC [A.] filed an appeal against this arbitration award with the Federal Supreme Court in civil matters, seeking the annulment of the award and the annulment of the match result with a 3:0 victory awarded in its favour. Alternatively, it requested the annulment of the award and the referral of the matter back to CAS. It also applied for the suspension of the Federal Supreme Court proceedings until the final resolution of a challenge action it had brought in the Canton of Bern under Article 75 CC and for the grant of suspensive effect. The Federal Supreme Court dismissed the application for suspensive effect in an order of 29 June 2023.

Considerations

The Federal Supreme Court examines the admissibility of the appeal ex officio and with full cognition. The appeal against the CAS arbitration award is admissible under Article 389 para. 1 CPC and Article 77 para. 1 lit. b FSCA, as it concerns a national arbitration award and the parties had their seat in Switzerland. However, the appeal is purely cassatory, meaning that the Federal Supreme Court can only annul the award but cannot decide on the merits. The appellant’s request for referral of the matter back to CAS is admissible, whereas its request for a decision on the merits is inadmissible.

The appellant alleges a violation of the principle of equal treatment of the parties and the right to be heard (Article 393 lit. d CPC). The Federal Supreme Court states that the right to be heard in arbitration proceedings corresponds to the constitutional right under Article 29 para. 2 Cst. The parties must have the opportunity to comment on all facts essential to the decision and to present their legal positions. However, no violation of the right to be heard has occurred, as the appellant was able to file its application for suspension on 28 April 2023 and the oral hearing was held despite its justification (serious illness of the president). The appellant did not show that it could not have been represented by other representatives. Moreover, the parties confirmed at the beginning and end of the hearing that they had been granted sufficient right to be heard.

The appellant also alleges arbitrariness (Article 393 lit. e CPC), in particular because the arbitration award allegedly relied on obviously incorrect factual findings or constituted an obvious violation of the law. The Federal Supreme Court clarifies that an obvious violation of the law only exists in the case of a violation of substantive law, not procedural errors, unless such errors violate the procedural ordre public. The appellant has not demonstrated any arbitrariness:

  • The sole arbitrator examined the decision of the Appeals Commission and correctly confirmed the contested decision. The claim that the arbitration award only referred to the committee’s decision…