Request for production of documents and violation of the right to be heard – the (obvious?) limits
4A_438/2020, Judgment of March 15, 2021, Appeal against the CAS Award of July 2, 2020 (CAS 2019/A/6468 and CAS 2019/A/6478)
A typical employment-related dispute between a football Player and a Club was first decided by the FIFA Dispute Resolution Chamber (DRC) and, in appeal by both parties, by the Court of Arbitration for Sport (CAS). During the CAS consolidated proceedings, the Club’s representative reserved its rights with respect to the rejection of its requests for production of documents. At the end of the oral hearing, each party stated that it had no objections to the Panel’s conduct of the proceedings and that their right to be heard had been respected throughout.
The CAS eventually dismissed the appeal and confirmed the FIFA DRC decision. The Club, which was ordered to pay a compensation to the player, subsequently filed a motion to set aside the CAS award for an alleged violation of its right to be heard related to the dismissed request for production. Apart from the request to annul the contested award and revert the case back to the CAS for reassessment, the Club requested that the Federal Supreme Court instruct the CAS to take the Club’s right to be heard into account, in particular with respect to the procedural requests made during the proceedings. As expected, the Supreme Court held that it could not “instruct” the CAS panel to act in a specific manner, considering thus such portion of the request inadmissible.
The Federal Supreme Court further dismissed the Club’s allegations with respect to the violation of its right to be heard; together with its appeal brief, the Club had filed extensive requests for production of documents, which were rejected by the Panel, and this was equally echoed in the contested award. Based on the Club’s own brief to the Supreme Court, the President of the Panel had rejected these requests, considering them as a “fishing expedition”, thereby excluding a violation of the Club’s right to be heard in this respect. The Supreme Court also considered the overly broad scope of the requests for production of documents (“any and all”) by the Club, without specifying the existence or relevance of these documents and held that a further explanation was not required on behalf of the panel.
This judgment is a reminder of the wide powers of the hearing panel with respect to the assessment of the evidence
Overall, this is not a groundbreaking judgment but just a reminder of the wide powers of the hearing panel with respect to the assessment of the evidence and, inversely, the parties’ obligation to specify the requests and justify their relevance for the outcome of the case.
Note: the full Judgment is available in German at the website of the Swiss Federal Tribunal www.bger.ch. The English translations of important 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.
