Agent A. v. Football Club B. – The Issue[1]

By Despina Mavromati

1) The plea of violation of the right to be heard is not an end in itself – the impact on the outcome of the case must be established

2) Request for legal aid is possible in setting aside proceedings before the SFT, but is to be dismissed when there is no chance of success

The Federal Tribunal Judgment

The case concerned the payment of EUR 84’764 for the transfer of a player and other expenses from Club B to the professional players’ Agent A. After an unsuccessful claim before the Single Judge of the FIFA Player’s Status Committee, Agent A filed an appeal to the Court of Arbitration for Sport (CAS), which dismissed the appeal after interpreting the contract under Swiss law.

A) Violation of the parties’ right to be heard & the principle of equality of the parties

In the subsequent appeal to the Swiss Federal Tribunal, Agent A alleged the Panel’s violation of the principle of equality of the parties and the right to be heard in adversarial proceedings (Art. 190 para. 2 (b) PILA). The Federal Tribunal reiterated that the right to be heard is a constitutional guarantee with a formal character, i.e., independently of the chances of success of the appeal itself (at 4.1.1 f.). However, such right is not an “end in itself”. It rather serves as a means to avoid an arbitral procedure that will result in an erroneous judgment due to the fact that the parties could not participate in the procedure. This is particularly so when it comes to the administration of evidence.

In this respect, and notwithstanding the formal character of that right, it is important to show the impact of such violation on the arbitral proceedings (see also SFT 6B_986/2016 of September 20, 2017, at 1.4.1). This means that the party alleging such violation must prove that all facts, proof and legal arguments brought forward but disregarded by the arbitral tribunal could influence the outcome of the case. By the same token, in case of alleged violation of the equality of the parties, it must at least be shown how the proceedings would be different if the alleged violations of the right to be heard had not been committed.

B) Need to provide reasons for the violation of the parties’ right to be heard

In the case at hand, the Federal Tribunal found that Agent A simply referred to the violation of his right to be heard for being refused to exercise his right to reply. The Appellant equally referred to the proceedings and the arguments raised by the Sole Arbitrator for refusing to take into account the evidence submitted after the answer of the respondent (at 4.2.1). He criticized said arguments from the perspective of the parties’ right to be heard (under Art. 190 (2) (d) PILA). However, the Federal Tribunal held that these vague statements[2] could not comply with the obligation to provide reasons for the violation of the right to be heard since they merely refer to the facts of the award appealed against but not to its reasoning.

The Takeaway

A) Lack of reasoning in the plea of violation of the parties’ right to be heard

This Federal Tribunal judgment swiftly rejected the appeal as manifestly inadmissible “non entrée en matière”) for lack of reasoning: it repeated that the plea of violation of the parties’ right to be heard has a formal character but is not “an end in itself”. It is obviously insufficient to allege violation without showing in which way such violation could affect the arbitral proceedings and the outcome of the case (at 4.1.2). The party alleging such a violation should therefore summarize the legal arguments of the appealed award (rather than its facts) and indicate, at least, in which respect the award would be different had the Panel taken into account the specific evidence that was disregarded (at 4.2.2). General statements that the outcome would have been different are not sufficient (at 4.2.2).

B) Request for legal aid for the Federal Tribunal proceedings: dismissed if there are no chances of success

Another point to retain is the possibility to request legal aid before the Swiss Federal Tribunal in international arbitration proceedings (based on Art. 64 para. 1 LTF). Indeed, the Federal Tribunal distinguishes between legal aid during the arbitration proceedings (e.g., for CAS proceedings, see the CAS Guidelines on legal aid) and legal aid at the setting aside proceedings before the Federal Tribunal (according to Art. 389 Swiss Code on Civil Procedure CCP). The Federal Tribunal referred to SFT judgment 4A_690/2016, in which the Federal Tribunal had for the first time explicitly confirmed such possibility and clarified the conflicting jurisprudence on the subject: it found that the cumulative condition of the chances of success (alongside the lack of financial means) was not met in the present case.[3]

More specifically, the appeal was manifestly inadmissible (for lack of reasoning) and thereby the chances of success criterion of Art. 64 para. 1 LTF was obviously not fulfilled. Even in less straightforward cases,[4] this condition would be very difficult to meet given that the “usual” chances of success in proceedings to set aside an arbitral award are less than 10%.[5]

Keywords

International arbitration; sports arbitration; appeal against a CAS Award; football; football agent; plea of violation of the parties’ right to be heard; lack of reasoning; appeal manifestly inadmissible; request for legal aid before the Swiss Federal Tribunal; conditions for legal aid; lack of chances of success

 

[1] SFT Judgment 4A_592/2017 of 5 December 2017 (Sports Arbitration) in appeal against the CAS Award CAS 2016/A/4906 notified on October 4, 2017. The full judgment (in French) can be found at: http://bit.ly/2ztgPZN . All important judgments in international arbitration rendered by the Swiss Federal Tribunal are translated (from German, French and Italian) into English and published at www.swissarbitrationdecisions.com, a website operated jointly by Dr. Despina Mavromati & Dr. Charles Poncet, as a service to the international arbitration community.

[2] See “The Appellant finally submits that, had he been able to exercise his right to be heard, he could have advanced all his arguments, referring especially to the evidence included in the FIFA file, and possibly producing new evidence on the two questions disputed in the appealed Award, that is the fact that it was the Appellant that was a party in the contract concluded with the Respondent, and that was the latter who undertook to pay the totality of his fees and expenses” (original in French).

[3] SFT 4A_690/2016 of February 7, 2017 at 5.1.

[4] See e.g. 4A_384/2017 of 4 October 2017 at 5.

[5] See also the note on the 4A_690/2016 of 7 February 2017 judgment written by Prof. Nathalie Voser & Nadja Al Kanawati and published on March 21, 2017