Swiss Federal Tribunal, 1st Court of civil law, 25 June 2018, X. Club v. A. et Z. Club, 4A_502/2017

A footballer was hired by a Saudi club immediately after being fired without reasonable ground by his former Egyptian club.

The Dispute Resolution Chamber of the International Federation of Football Association issued a decision that was appealed by both the former football club and the footballer. In an award dated 11 July 2017 rejecting the appeal formed by the footballer and partially admitting the appeal lodged by the Egyptian club, the Court of Arbitration for Sport (“CAS”) slightly reduced the amount due for salary arrears and confirmed the compensation due for wrongful termination of the employment contract. The Egyptian club then brought an action against the footballer and his new club before the Swiss Federal Court (“SFT”) to annul the CAS award.

The SFT dismisses the first plea alleging the failure of the CAS to respect the right to be heard. It holds that when exercising its discretionary powers, an arbitral panel must examine all the exhibits, but can also grant different weight to those that are supposed to be similar, without violating the right to be heard. The SFT when ruling a case related to international arbitration cannot review this examination.

With regard to the second plea relating to the conformity with substantive public policy, the SFT considers that an award is contrary to such policy when it infringes the fundamental principles of the substantial law to the point of no longer being reconcilable with the legal order, including the principle of contractual loyalty (pacta sunt servanda). The latter is only violated if the court refuses to apply a contractual provision while admitting that it is binding upon parties or if it decides to apply a clause to them that does not bind them. This principle excludes everything that relates to the process of interpretation itself and the legal consequences that are logically drawn from it.

In the present case, the SFT states that the principle of contractual fidelity would have been infringed only if the court had imputed wages when it had considered that this imputation was not justified by the contract. Therefore, the award complies with substantive public policy and the appeal is therefore rejected by the SFT.

2018-08-06T22:01:57+00:00 June 25th, 2018|Swiss Federal Tribunal, Swiss jurisdictions|0 Comments

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