(No) Legal interest to challenge a CAS award in case of an intention to bring a future action for damages
4A_478/2020, Judgment of December 29, 2020, appeal against the CAS award of July 30, 2020 (CAS 2020/A/7169).
This is a case related to the so-called UEFA Club Financial Control Regulations, which aim to achieve financial fair play in UEFA club competitions. After the signing of a “settlement agreement” between the appellant football club (the Club) and the UEFA Club Financial Control Body (CFCB), the latter found that the Club had not complied with the financial fairness requirement and should be excluded from any UEFA competitions for two seasons unless it met three conditions by a certain date. Shortly afterwards, CFCB Adjudicatory Chamber held that the Club had not met the financial target and imposed its sanction, which was subsequently confirmed by the CAS in appeal.
The Club filed a motion to set aside the CAS award alleging a violation of its right to be heard. The Swiss Federal Supreme Court first questioned the legal interest to attack the award, to the extent that the Champions League competition was ongoing, and a reinstatement would be theoretical, if not impossible; it further noted the fact that the Club had not requested provisional measures that would allow it to participate in the competition pending the SFT judgment. Interestingly, the Federal Supreme Court confirmed that the Club’s intention to bring an action for damages at a later stage (if the CAS award proved to be unjustified) does not in itself constitute an interest worthy of protection. It eventually left the question open since it decided to dismiss the appeal (at 3.3).
The CAS panel considered the allegedly disregarded principle but implicitly failed to take it into account
In a single plea, the Club alleged a violation of its right to be heard during the proceedings: the CAS had allegedly failed to consider one of the arguments raised by the Club. More specifically, while the case centered on whether the Club had complied with the requirement to not show a deficit of more than EUR 5,000,000 for a specific period, the Club had argued that its capital increase should also be taken into account for the calculation of the financial result. It also raised the application of the principle in dubio contra proferentem that the Panel had allegedly failed to take into account. The latter was easily refuted by the Supreme Court by simply looking into the wording of the award, which had considered this principle but implicitly refused to take it into account since there was no ambiguity in the panel’s opinion.
Note: the full Judgment is available in French 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.
