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Swiss Supreme Court's approach towards "legitimate interest" in setting aside and public policy issues in sports disciplinary cases

16 April 2013

Authors: Nathalie Voser, Aileen Truttmann

The Swiss Supreme Court has considered whether an athlete had a legitimate interest in having an award set aside, even though the ban imposed on him by the award expired two days after the petition was filed. It also considered, although leaving the question open, whether issues related to evidence in its widest sense, in sports disciplinary matters, fell under the setting aside ground of public policy.

In a French-language decision of 28 February 2013, published on 28 March 2013, the Swiss Supreme Court held that an athlete had a legitimate interest in having an award set aside, even though the ban imposed on him by the award expired two days after the petition was filed. The Supreme Court also indicated that issues relating to evidence in its widest sense, in sports disciplinary matters, would not necessarily fall within the public policy ground for setting aside an award, but left the question open.

The Supreme Court's ruling regarding X's "legitimate interest" in having the award set aside can be seen as an illustration of the more lenient approach adopted by the Supreme Court in sports cases. However, this approach will not necessarily apply in cases where issues of public policy are raised. The Supreme Court had in previous decisions ruled that the principle of reverse onus in sports disciplinary matters was not contrary to public policy. In the present case, it indicated that the same could apply to issues related to evidence in its widest sense, in sports disciplinary matters. More generally, the decision is another clear illustration that petitions to set aside based on an alleged violation of public policy will rarely succeed. (4A_576/2012.)

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Published in Practical Law Arbitration


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