No absolute right to public hearing in sports arbitration

In a recently published French-language decision, the Swiss Supreme Court dismissed an application to set aside an award rendered by the Court of Arbitration for Sports (CAS) confirming, among other things, that Article 6(1) of the European Convention on Human Rights (ECHR) is not directly applicable as a separate ground to set aside an international arbitration award rendered in Switzerland.

The dispute involved two football clubs (V and W) that participated in the Turkish Süper Lig, the Turkish Football Federation (TFF) and the Fédération Internationale de Football Association (FIFA).

In July 2011, after the opening by the Turkish Public Prosecutor's Office of a criminal investigation in connection with a large-scale match-fixing scheme during the 2010/2011 season, the TFF investigated suspicions of match-fixing, and ultimately decided to prevent W from participating in the 2011/2012 edition of the Champions League. As a consequence, the Union des Associations Européennes de Football (UEFA) awarded W's vacant slot to V. However, the TFF considered that although some managers of W were implicated in the match-fixing scheme, the club itself could not be held liable for the scheme.

From 2011, V repeatedly sought to obtain a decision from the TFF, UEFA and FIFA to sanction W, with the aim of being awarded the title of champion of the 2011/2012 Süper Lig season in W's stead. The FIFA Disciplinary Committee and the FIFA Appeal Committee ultimately considered that V had no standing to sue and dismissed V's requests accordingly.

V filed an appeal to the Court of Arbitration for Sport (CAS) against these decisions. The CAS panel bifurcated the proceedings in order to address, in the first phase, TFF and W's procedural objections. A hearing was held and the objections relating to the subject matter admissibility, jurisdiction and standing to appeal were discussed. By a partial award, the CAS ruled that V had no legal standing and refrained from discussing the merits of the dispute. During the CAS proceeding, V requested a public hearing based on the Mutu and Pechstein v Switzerland (Applications no. 40575/10 and no. 67474/10) (ECHR 324 (2018), but the request was dismissed.

V initiated setting aside proceedings before the Swiss Supreme Court against the award. The Swiss Supreme Court dismissed the application and underlined that a potential violation of Article 6(1) of the ECHR could not be invoked as a separate plea in setting aside proceedings. (Decision 4A_486/2019, 17 August 2020).