Key sports law decisions by the Swiss Federal Tribunal published in first half of 2023

This article provides analysis of some of the key cases from The Swiss Federal Tribunal (“SFT”) is that were published[1] in the first semester of 2023[2]

• decision 4A_484/2022 of 26 April 2023, dealing with independence and impartiality of an arbitrator belonging to a barristers’ Chamber (Tennis);
• decision 4A_486/2022 of 26 April 2023, dealing with the principle of ne bis in idem (where a person cannot be punished twice for the same facts) under the concept of public policy (Tennis);
• decision 4A_100/2023 of 22 June 2023, dealing with the necessity to include FIFA as party before the SFT, and the independence and impartiality of an arbitrator regarding the so-called “duty of curiosity” under Swiss law (Football);
• decision 4A_232/2022 of 22 December 2022, dealing with the legal nature of the CAS Anti-Doping Division (“CAS ADD”) (Doping in relation to Biathlon);
• decision 4A_420/2022 of 30 March 2023, dealing with the jurisdiction of FIFA Players’ Status Chamber (“FIFA PSC”) to decide on a set-off defence related to a tort claim (Cardiff City FC v FC Nantes).

The author considers these decisions to be particularly indicative of the importance of the SFT’s case law for CAS arbitration.

By way of background for those not familiar with international dispute resolution in sport, the Court of Arbitration of Arbitration for Sports (“CAS”) has emerged as the pre-eminent venue to solve international sports disputes, within the Olympic Movement. Arbitration at the CAS is peculiar in that the seat of CAS arbitration is always Lausanne, Switzerland. The SFT is hence the sole authority worldwide with jurisdiction to set aside a CAS award (Art. 191 of the Swiss Federal Act on Private International Law – PILA). The case law of the SFT therefore plays a pivotal role in international sports arbitration. CAS users and practitioners in international sports arbitration should thus be mindful of the case law of the SFT.