Challenge Against CAS Award Dismissed Despite Sole Arbitrator Admitting To Mistakes In Factual Findings (Swiss Supreme Court)

 
FREE EXCERPT

In decision 4A_578/2017, the Swiss Supreme Court dismissed a request by a Romanian football player to set aside an award issued by the Court of Arbitration for Sport based on the argument that his right to be heard was violated.

Speedread

In a French-Language decision, the Swiss Supreme Court rejected a challenge to set aside a Court of Arbitration for Sport (CAS) award for an alleged violation of the right to be heard.

Although the CAS sole arbitrator admitted to having made a clear mistake in the factual findings of the award, the court dismissed the request to set aside the award. It held that, although the right to be heard is a formal procedural right, the petitioner must be able to demonstrate that the violation of the right to be heard had a material impact on the outcome of the case. (Decision 4A_578/2017 (20 July 2018).)

Background

Article 190(2)(b) of the Private International Law Act (PILA) provides that an award will be set aside if the principle of equal treatment of the parties or the right of the parties to be heard was violated.

Facts

In 2015, a Romanian footballer (Player) signed an employment contract with an Israeli football club (Club). The contract was governed by FIFA's Regulations on the Status and Transfer of Players (RSTP) and provided for an annual salary and various bonuses.

Over the following year, the Club only partially met its obligation to pay the Player's salary and bonuses. On 1 November 2016, and following various attempts to amicably settle the Player's outstanding payment claims, the Player's counsel sent a letter of formal notice to the Club requesting that it pay the balance of EUR 86,000 owed to the Player within seven days. The notice further stated that the contract would be immediately terminated for cause if no payment was received within the given deadline.

By fax of 9 November 2016, the Club replied that it had informed the Player both orally and by text message that a cheque corresponding to the outstanding balance had been available for pick up since 8 November 2016.

Five hours later, the Club sent a further letter by fax to the Player's counsel explaining that the Player had refused to collect the cheque and that it would, therefore, deposit the amount directly into the Player's bank account the next morning. Furthermore, the Club explained that it had complied with the deadline for payment set by the Player's counsel since the cheque was ready for pick up on 8 November 2016. In support of...

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