No excessive formalism in case of filing the statement of appeal at the CAS only by email
SFT Judgment 4A_346/2024 of 2 September 2024, motion to set aside CAS Decision of 15 May 2024
Following a FIFA DRC decision ordering a Turkish professional football Club to pay unpaid salaries to a player on 4 April 2024, the Club filed a statement of appeal to the CAS by email on 3 May 2024. Several days later, the CAS Court Office acknowledged receipt of the email and drew the appellant’s attention to Art. R31 of the CAS Code. The Club confirmed that it had sent its statement of appeal by post on 6 May 2024, the date on which it had allegedly delivered its submission in person to a company called C.
On 15 May 2024, the CAS acknowledged receipt of the original statement of appeal sent by post. Pointing out that the DHL shipment mentioned 13 May 2024 as the date of dispatch – which, incidentally, corresponded to the date on which the Appellant had sent various documents to the CAS electronically purporting to show that the statement of appeal had been delivered to C. The CAS Court Office considered that only the dispatch date of 13 May 2024, as evidenced by DHL’s electronic shipment tracking system, was decisive and informed the Club that it would not hear the case for non-compliance with Art. R31 of the CAS Code and due to the clearly late filing of the statement of appeal.
In a single plea alleging excessive formalism, the Club supported that Art. R31 para. 3 of the CAS Code requires the statement of appeal to be sent ‘by post’, without providing any further details, and considered that the appellant could choose the carrier of its choice, without it being necessary for the carrier to use a system that allows the consignments to be traced.
The SFT dismissed these arguments referring to numerous prior SFT judgments where it had left open whether excessive formalism could fall within Art. 190 (2) e PILA (public policy) but excluded that such plea could fall within Art. 190 (2) c PILA (ne infra petita). More specifically, the SFT held that when the CAS considered that it would not proceed with the case because the appeal was not validly submitted it did not commit a formal denial of justice that would fall within Art. 190 (2) c PILA.
The SFT confirmed that the filing conditions enshrined in Art. R31 of the CAS Code are not mere administrative formalities but an admissibility condition
In conclusion, the SFT confirmed that there is no excessive formalism in case of formal defect in sending a statement of appeal by fax or e-mail (4A_54/2019 at 4.2.2): While Art. R31 para. 3 of the CAS Code does indeed allow a statement of appeal to be filed in advance by fax or e-mail, the validity of this filing is subject to the condition that the appeal is also sent by post or uploaded onto the online filing platform on the first working day following the expiry of the applicable deadline. This is not a mere procedural formality but an admissibility condition (4A_54/2019, at 4.2.2).
