No “effet de surprise” if a disputed issue was raised during the hearing
4A_384/2020, Judgment of 10 December 2020 A v. B FC, appeal against the CAS Award CAS 2018/A/6044
The dispute arose from the alleged existence of an employment contract between a Norwegian football player and the Kazakh club Astana: the player first lodged an unsuccessful claim with the FIFA Dispute Resolution Chamber and then filed an appeal to the CAS. The CAS panel decided that the question of whether the player had entered into an employment contract with the club could be left undecided, to the extent that, based on its interpretation of Article 18 (5) FIFA Regulations on the Status and Transfer of Players (RSTP), the alleged contract between the parties automatically ended when the player joined another club—shortly before the entry into force of his contract with the club.
In his subsequent motion to set aside the CAS Award, the Player first objected to the admissibility of the reply filed by the CAS Director General (in lieu of the CAS Panel). The SFT immediately dismissed this objection by referring to its previous jurisprudence.
The Player also alleged a violation of his right to be heard (“effet de surprise”) alleging that the panel failed to give him the opportunity to present his arguments on the application of Art. 18 (5) FIFA RSTP and did not draw his attention to the high importance of this provision for the outcome of the case. This argument was also swiftly dismissed by the SFT as clearly unfounded, to the extent that this specific question was explicitly raised during the hearing.
There is no violation of the parties' right to be heard in the form of the unforeseeable application of an argument by the Panel if the specific issue was explicitly raised during the hearing
In his second part of the alleged violation of his right to be heard, the Player accused the CAS of not examining several essential questions before reaching its decision, in particular, the intention of the parties with regard to the coexistence of the two contracts and the fact that the contract with the other club was of a temporary nature and aimed at maintaining the Appellant’s level of play. The SFT dismissed this last argument as a criticism of appellatory nature.
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.
