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FROM THE BLOG

CAS decision overturned by the Swiss Federal Supreme Court

Posted by on Feb 26, 2018 4:54:40 PM

Extraordinary victory for football player Ezequiel Matias Schelotto achieved. 

Dr. Lucien W. Valloni and Davide Colacino successfully represented the football player Ezeqiuel Matias Schelotto in a sports-related dispute against his former agent in relation to a transfer of the player to F.C. Internazionale Milan.

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The Court of Arbitration for Sport (CAS) ruled that it was competent to decide the case and awarded the agent an amount of more than EUR 672'000. The appeal filed against the CAS award was upheld by the Swiss Federal Supreme Court ("Supreme Court") on 22 January 2018 (4A_432/2017). The Supreme Court ruled that the CAS award is to be annulled and that CAS had no competence to decide the case.

At the core of the case was a clause concerning the choice of jurisdiction vesting the competence in the commercial court of Buenos Aires in the Argentine Republic. The clause, however, contained a further reference to national (Dispute Settlement Body of the Argentine Football Association (AFA)) and international bodies of associations (Players' Status Committee of the FIFA). The Supreme Court ruled in essence that the disputed clause did not show the required degree of certainty to establish consent to arbitrate.

The ruling reflects the practice of the Supreme Court applying a two-step approach with respect to the substantive validity of an arbitration agreement in commercial arbitration. The Supreme Court – except in sports-related arbitration cases - initially applies a rather strict approach concerning the consent to arbitrate. Once the parties' consent to arbitrate is established, the Court adopts a more liberal approach. This is one of the very rare cases where the Court applied a strict approach concerning the consent to arbitrate in the area of sports arbitration.

Since CAS was established in 1984, only a very limited number of awards have been set aside by the Supreme Court. This is a clear sign of the difficulties to overturn sports-related arbitration cases. Against this background various players unions such as the FIFPro, WAIPU and SAFP on behalf of more than 72'000 athletes worldwide filed a proposal to the Swiss Federal Council suggesting necessary changes to the Swiss Private International Law Act ensuring adequate protection of athletes' rights (from page 166 onwards). The proposal inter alia suggests widening the grounds for refusal in sports-related arbitration cases, allowing an appeal against arbitrary awards as it is already the existing law for domestic arbitration in Switzerland. Doing so, violations of mandatory employment law provisions by CAS could be appealed to the Supreme Court for example. This is the least that has to be done by the Swiss legislator to adequately protect athletes' rights on an international level in international sport arbitration cases.

  

If you liked this article, you might also be interested in reading:

Extremely important victory for a football playser against former club for wrongful termination achieved, by Dr. Lucien W. Valloni and Stéphanie Oneyser

CAS Structure and procedure - it is now time for a change!, by Dr. Lucien W. Valloni and Alessandro Solèr

Switzerland as a leader in the fight against corruption in sports?, by Dr. Lucien W. Valloni and Eric Neuenschwander

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 Copyright: Schweizerisches Bundesgericht

Topics: Sports Law | Arbitration | Litigation

  
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Dr. Lucien W. Valloni

Lucien is a highly experienced litigator in both international and domestic criminal, commercial and arbitration cases in the Swiss courts, up to the Swiss Federal Supreme Court level. Lucien is well known for his expertise in the field of appealing arbitration awards to the Swiss Federal Supreme Court. Lucien assists damaged civil parties in criminal proceedings and he is active in relation to the enforcement of foreign judgements as well as in big complex cross boarder litigation including protection and recovery of funds, including enforcement of state debts. Lucien is also one of the best-known sports lawyers in Switzerland, with extensive experience in sports litigation on various bodies of sports organisations as well as in sports arbitration at the Court of Arbitration for Sport in Lausanne. Lucien has been a partner at our Zurich office since 2005. He has represented domestic and international clients in numerous high-profile cases in various fields and courts up to the Swiss Federal Supreme Court. He advises clients on commercial, employment, entertainment and media, insurance, real estate, aviation and international enforcement matters. Lucien has published textbooks on litigation and sports law in Switzerland and lectures widely.He obtained his law degree from the University of Zurich in 1990 and gained a PhD from the Faculty of Law of the University of Zurich in 1998 with a thesis on the jurisdiction of courts at the place of performance of an obligation under the Lugano and Brussels Conventions. (He graduated with the distinction summa cum laude and the Professor Walther Hug-Preis Schweiz, awarded for outstanding theses graded with the highest possible mark by a Swiss law school.) He has worked as a law clerk at the District Court of Zurich, the Court of Appeal of the Canton of Zurich and at the Court of Cassation of the Canton of Zurich. His working languages are German, English, Italian and French.Lucien is a member of the Zurich Bar Association, the Swiss Bar Association and the Swiss Arbitration Association (ASA). He is, president of the Swiss Association of Football Players (SAFP) and president of the World Association of Icehockey Players’ Unions (WAIPU) as well as a Member of the Association Internationale des Avocats de Football (AIAF). He is a board member of FIFPro (Fédération Internationale des Associations de Footballeurs Professionnels) and FIFPro Division Europe, and member of the Employment Law Alliance, the Associazione Internazionale Giuristi di Lingua Italiana (AIGLI) and the Swiss-Italian Chamber of Commerce (Camera di Commercio Italiana per la Svizzera). Lucien is a lecturer at the Paris-Sorbonne University in Abu Dhabi.

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Davide Colacino

Davide has experience across all areas of dispute resolution, with particular expertise in arbitration and litigation. Davide joined Froriep as an associate in 2017. His practice focuses on arbitration, litigation and criminal law. Davide has acted as counsel and secretary of arbitral tribunal's in numerous institutional and ad hoc international arbitration involving particularly construction projects, joint ventures and sports related matters. He also regularly represents clients before Swiss courts in commercial disputes and criminal proceedings. Davide holds a degree in law from the University of Zurich and Maastricht University. He was a visiting doctoral research student at Queen Mary University of London (Centre for Commercial Law Studies) and is currently a Ph.D. candidate at the University of Lucerne. Prior to joining Froriep, he worked as a research and teaching assistant to Prof. Dr. Daniel Girsberger at the University of Lucerne, where he contributed to the complete overhaul of a leading textbook on international arbitration. Before he was admitted to the bar in 2014 he trained at a civil court of first instance and another major business law firm in Zurich. He is a member of several professional associations including the Swiss Arbitration Association (ASA) below 40, the Young Arbitrators Forum (YAF) of the International Chamber of Commerce (ICC), the Young International Council for Commercial Arbitration (Young ICCA), the Swiss Bar Association (SAV) and the Zurich Bar Association (ZAV). His working languages are German and English. He also has a good command of Italian.

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