Following the persistent delay of a football club in the payment of wages to a player, the latter gave notice to the club to pay him the amounts due, then proceeded to the unilateral termination of the employment contract. The next day, the club paid the amounts due and ordered the player to attend training. The player applied to the Court of Arbitration for Sport to obtain the confirmation of the termination of the employment contract for just cause. The sole arbitrator considered that the player was acting in bad faith and that the small delay in the payment of the sums due did not constitute a just cause. The player then lodged an appeal with the Swiss Federal Tribunal (“SFT”), seeking the annulment of the award on the ground of a violation of his right to be heard, as the tribunal had ruled on a fact that was beyond the scope of the dispute submitted by the parties.
The SFT reiterates that an arbitral award does not have to be motivated, but there is a duty to assess and rule on persistent issues. The violation of the right to be heard will be characterized when the inadvertence of the arbitral tribunal has prevented a party from being heard or from providing evidence on a relevant issue of such a nature as to affect the dispute’s outcome. This was not the case here.
The SFT adds that, as far as international arbitration is concerned, it decides on the basis of the facts found in the award being appealed. It cannot correct or supplement ex officio the findings of an arbitral tribunal even if the facts were established in a manifestly inaccurate manner. It can only review these findings. Allowing the parties to raise facts other than those examined by the arbitral tribunal, apart from the cases reserved by the case-law, even if those are established by the evidence submitted within the context of the arbitral proceedings, would no longer be compatible with the mission of the SFT. Its mission is to not repeat the proceedings, but only to examine whether the admissible complaints raised in the appeal are justified or not. Thus, the SFT concludes that under the guise of an alleged violation of its right to be heard, Claimant criticizes, in fact, the evaluation of the evidence as conducted by the arbitrator, and such a criticism is inadmissible.