Legally protected interest must be present at the time of the appeal
SFT Judgment 4A_426/2017, Club X v FIFA
Strict admissibility conditions in motions to set aside CAS awards - the requirement of a legally protected interest
Summary of the CAS proceedings that led to the appeal to the Swiss Federal Tribunal
In this judgment the Federal Tribunal reiterated the strict admissibility conditions in motions to set aside arbitral awards, and more particularly the requirement of a legally protected interest (or interest “worthy of protection”). The case involved an appeal against a CAS award (2016/A/4830). The CAS Award was rendered shortly before the FIFA World Cup Russia in June 2017. A football club of Cameroon requested FIFA to postpone the playing of all qualifying matches of the third round of group B “until legality is restored” within the national association (FECAFOOT). The reason alleged was that the national association was not validly represented by its President. According to the Club, this affected the designation of Cameroon’s national team.
The FIFA Secretary General summarily dismissed the request through a letter holding that the case fell outside the jurisdiction of the FIFA bodies due to its internal character. The Club subsequently filed an appeal with the CAS and requested the reprogramming of various matches, appeal dismissed by the CAS, essentially for lack of jurisdiction ratione materiae.
Legally protected interest in the annulment of a CAS award related to a competition that already took place: mission impossible?
In the subsequent motion to set aside the CAS Award, the Federal Tribunal repeated that an award denying jurisdiction is a final award (as opposed to an interim award), thereby challengeable on all grounds set out in Art. 190 (2) PILA. It further reiterated that arbitrariness is only a ground for annulment within the framework of domestic arbitration (at 2).
Most importantly, however, the Federal Tribunal analyzed its essential admissibility requirement of a legally protected interest in the annulment of the award under appeal in the context of a sporting competition. First, the interest has a practical aspect of this interest, which consists in preventing the appellant from undergoing some damage of an economic, ideal, substantive or other nature that would be caused by the decision under appeal. Second, the interest must exist not only at the time the appeal is made, but also when the decision is issued (Art. 76 (1) b Loi sur le Tribunal Fédéral, LTF).
In the particular case, the alleged interest was linked to the assumption – clearly not sufficient to establish a legal interest – that the national team of Cameroon was not “representative” of the FECAFOOT since the President of the latter was not validly elected. The Club equally failed to highlight the existence of a causal link between the appointment of the leaders of a federation and the “representativeness” of the national team. The Federal Tribunal dismissed all other arguments raised by the appellant club as purely hypothetical and therefore not sufficient to establish a legally protected interest present at the moment of the appeal to the Federal Tribunal (at 3.2.1).
The SFT held that it is technically possible to have several decisions before the enforcement tribunal, particularly when enforcement measures are inefficient.
Exceptions to the requirement of a present legally protected interest
The Federal Tribunal also highlighted that there are exceptions to the requirements of a present interest in cases where the dispute under appeal may arise again under identical or analogous circumstances, when its nature makes it impossible to adjudicate it before it loses its relevance and when, as a matter of principle, there is a sufficiently important public interest to resolve the issue in dispute (at 3.1). However, the SFT found that these conditions were not met in the case at hand.
Difference between lack of a legally protected interest at the filing of the appeal and a moot appeal (“recours sans objet”)
Finally, even if the appellant had a protected legal interest at the moment of filing of the appeal (which the Federal Tribunal denied), such an interest no longer existed and the appeal would therefore have become moot (“recours sans objet”, at 3.1). The Federal Tribunal reached this conclusion after an analysis of the FIFA World Cup program and in particular the complexity in the organization of the matches.
In summary, assumptions and hypothetical arguments are not sufficient and it is very difficult to establish and substantiate a “present” legal interest in the annulment of a CAS award in cases related to competitions which have already taken place in the past.
Note: Judgment 4A_426 / 2017, Judgment of April 17, 2018. 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.
