Right to be heard does not include a right to cross-examine a witnesses who provided written statement

Right to be heard does not include a right to cross-examine a witnesses who provided written statement in CAS proceedings

SFT Judgment 4A_600/2023 of 2 September 2024, motion to set aside CAS 2021/O/7670

By Dr. Despina Mavromati

In this case, an Agency sought a commission due for assisting a football Club in its negotiations for the transfer of a football Player to another football club. In the CAS proceedings, the Sole Arbitrator decided not to hold a hearing but to have a second round of submission, invited the Agency to submit the documents that would establish the role played in the negotiations for the transfer. The Agency filed its second submissions and a written statement of the Player, which was contested by the Club as inadmissible. The Sole Arbitrator upheld the claim and the Club brought a challenge before the SFT for violation of its right to be heard, for not allowing it to cross-examine the Player.

The SFT discarded this argument, confirming that the Club had the possibility to express itself on the content of the witness statement. It could also have filed its written submissions with a list of additional questions for the Player during the second round of submissions but only requested the inadmissibility of the witness statement.

The SFT reiterated that Art. 182 paragraph 3 PILA does not grand the right to ask questions to the witnesses who provide written statements

Other elements that were considered included the fact that the Club explicitly requested the CAS not to hold a hearing in the end of the second round of submissions and signed the Order of Procedure without reservations. Most importantly, the SFT reiterated that Art. 182 paragraph 3 PILA does not grand the right to ask questions to the witnesses who provide written statements (4A_199/2014 at 6.2.3).