By Despina Mavromati

4A_543 / 2019, Judgment of April 30, 2020, Kuwait Motor Sports Club v International Motorcycling Federation;

Appeal against the judgment of September 24, 2019 rendered by the Civil Court of Appeal of the Cantonal Court of Vaud

The legal battle of the KMSC to become and affiliate member of the FIM and the “denial of justice”

This SFT judgment comes in the aftermath of the longstanding legal battle between Kuwait Motor Sports Club (the Appellant) and the International Motorcycling Federation (FIM) in order for the Appellant to become an “affiliate” member of the International Motorcycling Federation (FIM) for the country of Kuwait. After the CAS issued an award in May 2017 holding the FIM liable for “denial of justice” and ordering it to issue a decision with respect to the Appellant’s application for membership and an unsuccessful appeal of the FIM to the SFT (4A_314/2018, see our note here), the Appellant seized the Justice of the Peace of Vaud (JP) in Switzerland (where enforcement was sought), requesting the enforcement of the CAS Award.

The JP ordered the enforcement of the award giving a deadline to FIM to rule on the Appellant’s application and imposing a fine of CHF 500 per day for non-execution. However, in February 2019, the Appellant seized the JP anew with a second request for enforcement, noting that the first decision had remained unenforced. This time, the JP took into consideration the fact that the FIM had executed the CAS Award, because in November 2018 it had granted the Appellant five days to communicate any new elements in support of its application, and its management committee officially rejected this application some days later.

In its civil law appeal before the SFT, the Appellant reiterated its second request for enforcement, insisting on the improper execution and the existence of another CAS Award that annulled the FIM decision. The SFT held that it is technically possible to have several decisions before the enforcement tribunal, particularly when enforcement measures are inefficient. However, when the case is brought before the SFT, the tribunal cannot review any requests inferred from the facts that were not brought before the enforcement court but can only verify if the refusal of these new measures is lawful or not (Art. 326 para. 1 CPC and 99 para. 1 LTF).

The Appellant strongly disputed the fact that the award was properly executed by the FIM. However, the SFT found that since the FIM management committee was legally competent to adopt such decision (not to allow the Appellant as an affiliate member) and the CAS award did not order the FIM to accept the Appellant as a member, the second request for execution was inadmissible.

Overall, this judgment is one of the rare examples of enforcement proceedings in sports arbitration, since sports federations have, in their majority, efficient internal mechanisms embedded in their rules in order to ensure respect of CAS awards.

Most of all, however, this judgment is a good example of the rather symbolic value of CAS awards finding that an international sports federation committed a “denial of justice”. Inversely stated, this judgment is a proof of the quasi-immunity in the decision-making of the latter, at least with regard to membership issues.

Note: The full judgment is available in French at the website of the Swiss Federal Tribunal www.bger.ch. The English translations of the international arbitration decisions rendered by the Swiss Federal Tribunal (from French, German and Italian) are available on the website www.swissarbitrationdecisions.com , operated jointly by Dr. Despina Mavromati and Dr. Charles Poncet as a service to the international arbitration community.