Switzerland: CAS Award Confirmed Despite Allegations Of A Violation Of Substantive Public Policy

Last Updated: 3 June 2019
Article by Christopher Boog and Damien Clivaz

In a French-language decision dated 4 March 2019, but only recently published, the Swiss Supreme Court refused to set aside an award issued by the Court of Arbitration for Sport (CAS). The Supreme Court found that the CAS had taken into account all of the appellant's legal and factual arguments. Additionally, it rejected the argument that the sanction imposed by the CAS was contrary to substantive public policy.

In its award, the CAS Panel ordered the suspension of the appellant, a professional football player (the Athlete), for a period of fourteen months. The CAS Panel also found that it could not apply the general principle of proportionality to reduce the period of ineligibility as this principle was already expressly included in the World Anti-Doping Code and in the sanctions set out therein.

The Athlete challenged the award before the Swiss Supreme Court, arguing a violation of his right to be heard, because the Panel had failed to take into account several of his factual and legal arguments and because the parties were not given an opportunity to address the Panel's reasoning with regard to the principle of proportionality. Additionally, the Athlete argued that the period of ineligibility was contrary to substantive public policy as it severely impacted his reputation and his right to exercise his profession.

After rejecting any violation of the right to be heard, the Supreme Court affirmed that when dealing with disciplinary sanctions imposed on athletes, it may only review the penalties if they lead to a patently unfair result or a shocking unfairness.

The Supreme Court found that the fourteen months ineligibility period was not contrary to substantive public policy, be it from a material or a duration standpoint. The Supreme Court held that this was further evidenced by the threeyear contract the Athlete had recently signed with a new club. Consequently, the Supreme Court concluded that the Athlete had not established a violation of his right to be heard or a violation of substantive public policy and accordingly, dismissed his motion to set aside the award.

The decision deals, amongst others, with the interesting issue of the compatibility of CAS sanctions with substantive public policy. In its decision, the Supreme Court affirmed that it may only review sanctions imposed by CAS if they lead to a patently unfair result or to a shocking unfairness.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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