THE RELATIONSHIP BETWEEN ASSOCIATION TRIBUNALS AND THE COURT OF ARBITRATION FOR SPORT

Prof. Ulrich Haas

University of Zurich, Switzerland

Abstract

This article examines the complex relationship between association tribunals and the Court of Arbitration for Sport (CAS) within the multi-stage framework of dispute resolution in organized sports. It explores key legal issues, including the classification of association tribunals versus arbitral tribunals, the legal consequences of procedural deadlines, the mandate scope of the CAS in appeal proceedings, and the legal obligation to exhaust internal remedies before appealing. The article analyses the appealability of decisions and the binding effects of rulings by association tribunals, especially in light of Swiss jurisprudence. Special attention is given to conflicts regarding jurisdiction, admissibility, and the enforceability of internal sports tribunal decisions under the Swiss Private International Law Act (PILA). The paper argues for a nuanced approach that balances procedural efficiency with athletes’ access to justice and the autonomy of sports federations.

Keywords

CAS, association tribunals, jurisdiction, admissibility, appeals, Swiss law, procedural mandate, sports law

THE RELATIONSHIP BETWEEN ASSOCIATION TRIBUNALS AND THE COURT OF ARBITRATION FOR SPORT

Ulrich Haas

University of Zurich, Switzerland

Summary: 1. Introduction. 2. Deadline to appeal. 3. The mandate of the first instance. Notes. Bibliography.

1. Introduction

A two-stage procedure is typical for dispute resolution in organised sport. In the first instance, a dispute is heard by an association tribunal and in the second instance by an arbitral tribunal, usually the Court of Arbitration for Sport (“CAS”). It is not always easy to determine whether the first instance is an association tribunal. This applies in particular to the distinction between an association tribunal and an arbitral tribunal. The name of the tribunal, or the name of the decision issued by it, is at best an indication of the tasks that the parties have chosen to entrust to it.1 Ultimately, it is not the name that is decisive, but the specific powers conferred on the third party.2 Only if the body is to decide the dispute instead of the state courts is it an arbitral tribunal.3 Even if the parties have entrusted the third party with the task of a (genuine) arbitral tribunal, Swiss law will only uphold such an arbitration agreement if the arbitral tribunal as such is sufficiently independent of the parties.

The multi-stage nature of the procedure raises a number of questions, some of which will be examined in more detail here.

2. Deadline to appeal

According to Article R49 of the Code, the CAS may only decide on a dispute at the second instance if the appellant has lodged an appeal within the time limit set for that purpose. Article R49 of the Code provides that “[i]f no time limit is set in the statutes or regulations of the federation, association or sports-related body concerned or in any prior agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against”.

It is debatable whether the time limit for appeal is a question of jurisdiction, admissibility or the merits of the case. The provision merely states that “[w]hen a procedure is initiated, a party may request the Division President or the President of the Panel, if a Panel has been already constituted, to terminate it if the statement of appeal is late. The Division President or the President of the Panel renders her/his decision after considering any submission made by the other parties”. In the commentary by Rigozzi/Hasler on Article R49(1) of the CAS Code, the following is stated in this regard:4

“An important issue that, so far, has been dealt with in an inconsistent manner in the case law is the nature of the decision rendered by the CAS when it finds that an appeal has been filed out of time. In some cases, the panel ruled that it had ‘no jurisdiction to decide’ the dispute at hand, while in others the (statement of) appeal was deemed ‘inadmissible’. It is submitted that the correct consequence of a failure to meet the time limit for appeal is that the appeal is dismissed on the merits. As mentioned above, we consider that the time limit set in Article R49 is to be treated as a preclusive time limit”. (emphasis added)

The CAS panels predominantly classify compliance with the time limit for appeal as an admissibility issue.5 This is also the view of the Swiss Federal Tribunal. In its decision 4A_626/2020, the latter stated the following in this regard:6

“In a recent decision, the Federal Court, referring in particular to two doctrinal contributions (Stefanie Pfisterer … Antonio Rigozzi, … ), considered that the observance of the time limit for appealing to the CAS is a condition for the admissibility of the appeal, which does not relate to the jurisdiction of the arbitral tribunal (Judgement 4A_413/20199 of October 28, 2019, at 3.3.2). Failure to comply with the time limit within which an appeal must be filed with the CAS does not in fact mean the arbitral tribunal lacks jurisdiction, it only impacts the (in)admissibility of the appeal. Consequently, the complaint based on the failure to comply with the time limit for filing an appeal to the CAS does not fall within the scope of Art. 190(2) lit. b PILA.” (emphasis added)

A similar statement can be found in another decision of the Swiss Federal Tribunal:7

“The appellant’s argument that the CAS should not have considered the respondent’s appeal due to a failure to comply with the time limit for filing an appeal is unfounded. Adherence to the time limit for appeal is a requirement for the admissibility of the appeal to the CAS, which does not concern the jurisdiction of the arbitral tribunal. Therefore, the objection that the time limit for appeal before the CAS was not adhered to does not fall under the objection of lack of jurisdiction under Art. 190 para. 2 lit. b PILA” (emphasis added)

Therefore, if a CAS panel fails to recognise that an appeal is out of time, or if a CAS panel erroneously dismisses an appeal as out of time, the erroneous arbitral award cannot be challenged before the Swiss Federal Tribunal under Article 190(2) lit. b PILA, except in the exceptional case of public policy.

3. The mandate of the first instance

Pursuant to Article 57(1) of the CAS Code, the arbitral tribunal in appeals arbitration procedures has “full power” to review the application of the law and the findings of fact made by the first instance adjudicatory body. In other words, the CAS panel is not bound by the findings of fact or the legal opinion of the first instance. However, the CAS panel must observe the limits of its cognition arising from the subject matter of the dispute before the first instance. In particular, it cannot decide on claims that fall outside the subject matter of the dispute in the first instance. Furthermore, it should be noted that the CAS panel derives its mandate in appeals arbitration proceedings from the rules and regulations of the sports federation that issued the first-instance decision. Thus, if the association tribunal at first instance has no mandate to decide on the dispute or parts of it, the mandate of the CAS panel in an appeals arbitration procedure is correspondingly limited. This is in line with the established jurisprudence of the CAS. For example, a CAS decision states the following:8

“Pursuant to Articles 60 and 61 of the FIFA Statutes, therefore, CAS jurisdiction derives from the issuance by FIFA of a decision and is consequently limited to the scope of such decision and to the parties concerned by the same.”

Similarly, another CAS panel found as follows:9

“… the Panel in appeals arbitration proceedings is only mandated to decide the dispute within the limits of the previous instance.”

A restriction of the mandate of the first instance may arise from the fact that the first-instance association tribunal had no jurisdiction over the case. In these circumstances, the mandate of the CAS is indisputably limited, because it derives its decision-making authority from the first instance. However, it is disputed in CAS case law whether, in the absence of jurisdiction of the first instance, the CAS has jurisdiction to hear the appeal or whether the question of the jurisdiction of the first instance is one of the merits of the appeal. In CAS 2014/A/3838, the sole arbitrator found that the lack of first-instance jurisdiction also rendered the jurisdiction of the CAS void. Para. 5.14 of the awards reads as follows:

“Since it neither is, nor should be possible to circumvent a first-instance judicial body’s undisputed lack of jurisdiction to hear and decide on a substantive issue by merely attempting to refer such a decision to the appeals body (in this case the CAS) through a more or less fictitious appeal, the Sole Arbitrator is of the opinion that at the CAS, in its capacity of an appeals body, has no jurisdiction to hear the appeal.”

The vast majority of CAS panels examine the question – in my opinion correctly – in the context of the merits of the case; after all, the CAS is responsible as the second instance for reviewing a first-instance decision, regardless of whether the first-instance decision is right or wrong.10 If the first instance had no jurisdiction to decide the dispute, the CAS remains responsible as the appeal instance. However, in such a case, the mandate of the CAS does not extend beyond the question of whether the first instance had jurisdiction. In no case can the CAS – if the first instance adjudicatory body had no jurisdiction – decide on the claim underlying the dispute; this is because the mandate of the CAS does not extend beyond the boundaries of the first instance.

Sometimes, the question of whether the association tribunal had jurisdiction to hear the case as a whole or in part causes significant difficulties. For example, a CAS panel had to decide whether, in proceedings before the FIFA Players ‘Status Committee (“FIFA PSC”), the defendant could set off the plaintiff’s claim against a claim in tort.11 The procedural rules applicable before the association tribunal did not address the issue. The CAS decision reads in its pertinent parts as follows:

“138. The … [maxime of ‘le juge de l’action est le juge de l’exception’] describes a legal principle whereby the judge that is competent for the main action is also competent to decide on objections thereto, irrespective of whether the issue raised as an objection falls within the competence of another judge. The aforementioned principle applies in court proceedings before Swiss state courts (cf BGE 63 II 133 E. 3c; 124 III 207 E. 3b/bb; BGer 4A_482/2010 E. 4.3.1). As a consequence, a claim can be raised by set-off as a defence against a main action filed in court even if another court would be competent to decide on that claim if the latter was filed separately. The question is whether this principle applicable before state courts also applies to proceedings before the FIFA adjudicatory bodies. …

154. The FIFA PSC is a (very) specialised dispute resolution body. This follows when looking at the jurisdiction ratione materiae (subject-matter jurisdiction) of the FIFA PSC. …

157. This restricted subject-matter competence of the FIFA adjudicatory bodies is further supported when looking at the purpose of FIFA’s dispute resolution mechanism. The latter does not simply serve the interests of parties to get their disputes resolved. Instead, the dispute resolution mechanism provided by FIFA also serves FIFA’s own interests. Through its adjudicatory bodies FIFA seeks to enforce its standards in the international football industry. Such interests of FIFA, however, are obviously limited to disputes that have a close connection to the football industry and that are decided in application of its rules and regulations.

158. In view of the above, it does not appear procedurally efficient to entrust the FIFA PSC with the adjudication of a complex tort claim that is governed by domestic law only. The FIFA PSC is not the proper forum for such disputes, since as a free-standing claim CCFC’s tort claim would fall outside FIFA’s subject-matter (ratione materiae) jurisdiction. If CCFC had filed its tort claim separately and not in the context of a set-off defence, the FIFA PSC would have correctly declined its competence to adjudicate the matter. The tort claim would have no connection whatsoever to the areas regulated in the FIFA RSTP. CCFC’s claim is based on the application of domestic tort law in which FIFA’s specialised adjudicatory bodies have insufficient expertise and in which there is no interest of FIFA in its governing and regulatory capacity.

159. The Panel also finds that the procedural rules applicable before the FIFA PSC are not designed to adjudicate CCFC’s tort claim. The applicable procedural rules before FIFA seek to resolve the football-related dispute quickly and inexpensively. This purpose would be undermined if the FIFA PSC were competent to adjudicate such a set-off claim. Furthermore, the Panel observes that the costs of the proceedings before the FIFA PSC are capped at CHF 25,000 (Article 18(1) FIFA Procedural Rules); and that the advance of costs to be paid is capped at CHF 5,000 (Article 17(4) FIFA Procedural Rules). Such relatively low amounts correspond to a speedy and not overly complex dispute resolution mechanism and are entirely inadequate to cover the costs of adjudication of a full-fledged cross-border tort claim involving a significant number of legal and aviation experts, not to mention large multi-firm legal teams on each side.

160. Likewise, pursuant to Article 16(10) and (11) of the FIFA Procedural Rules, the time limits for filing an answer and a potential second round of written submissions are 20 days. These deadlines may be extended once only for another 10 days. These procedural rules are wholly inadequate to address a complex set-off defence such as filed by CCFC in these proceedings. This is demonstrated by the numerous requests for significant extensions of the respective filing deadlines before CAS in these proceedings, which in part were necessary to collect relevant expert evidence.

161. Furthermore, while oral hearings are possible before the FIFA PSC (Article 11 FIFA Procedural Rules), the general rule is that proceedings are conducted on written submissions only (Article 8 FIFA Procedural Rules). Such procedure is inadequate to deal with the type of dispute in question here. CCFC acknowledged this and submitted that if its tort claim were filed in the English courts several days, if not weeks, would be set aside to hear that claim.

162. All of the above confirms that the applicable procedural regulations before the FIFA PSC are not designed to deal with CCFC’s complex cross-border tort claim. Consequently, it would neither be procedurally efficient nor in the interests of justice to entrust the FIFA PSC with the adjudication of CCFC’s tort claim. …

167. The Panel thus concludes that … the FIFA PSC is not competent to adjudicate CCFC’s alleged set-off claim. By taking recourse to FIFA’s specialised association tribunals the Parties have waived the possibility to introduce by way of set-off claims that would otherwise fall outside FIFA’s jurisdiction.” (emphasis added)

The question is whether a CAS award can be challenged under Article 190(2) lit. b of the PILA, if the CAS panel fails to recognise that the first instance adjudicatory body lacked jurisdiction. Under Article 190(2) lit. b PILA, an award may be challenged before the Swiss Federal Tribunal “where the arbitral tribunal wrongly accepted or declined jurisdiction”. This provision not only covers the case where the arbitral tribunal misconstrues the existence or non-existence of an arbitration agreement, but also the case where the arbitral tribunal errs as to the scope of an arbitration agreement and thus as to the scope of its authority.12 This is illustrated by a case decided by the Swiss Federal Tribunal, which was based on the following facts:13

The parties (a club and a coach) had provided in the employment contract for the jurisdiction of the labour courts in the event of an employment-related dispute. After the dispute arose, the coach – contrary to the contractual agreement – brought an action for payment before the Players’ Status Committee of the FIFA Football Tribunal. The latter wrongly affirmed its jurisdiction and ordered the club to pay the coach’s salary. The club appealed against this decision to the CAS and sought the annulment of the initial decision on the grounds that it was not the FIFA Players’ Status Committee but the national labour court that had jurisdiction for resolving the dispute. The CAS upheld the appeal, thus affirming its jurisdiction to review the initial decision, but annulling the decision of the Players’ Status Committee due to the latter’s lack of jurisdiction. The coach then lodged an appeal against the CAS award with the Swiss Federal Tribunal, invoking, among other things, Article 190(2) lit. b PILA on the grounds that the Players’ Status Committee was indeed competent to resolve the dispute and that the CAS panel had misjudged the scope of its decision-making authority.

The Swiss Federal Tribunal ruled on the above facts as follows:14

“The … [Coach] alleges that the arbitral tribunal wrongly denied the jurisdiction of the … FIFA Players’ Status Committee and thus also its own jurisdiction to rule on the dispute (Art. 190(2) lit. b IPRG). ...

The CAS correctly pointed out that in the present case, in which it had to decide as a court of appeal, its own jurisdiction could not extend further than that of the association’s internal decision-making body. The jurisdiction of the CAS to rule on the claims asserted therefore presupposes that the FIFA Players’ Status Committee was itself competent to decide on the dispute (see judgement 4A_420/2022 of 30 March 2023, E. 5.5.5). In order to examine the jurisdiction of the FIFA committee and thus indirectly also of the CAS itself, the arbitral tribunal interpreted not only clause XI.4 of the employment contract … but also the applicable association rules ...

The CAS understandably considered that clause XI.4 of the employment contract should be interpreted in good faith to mean that the parties, with the express reference to labour disputes, which were to be submitted to the competent state court … for adjudication, did not waive state jurisdiction for any disputes arising from their employment contract …. The appellant has not demonstrated how the CAS may have violated recognised principles of interpretation. On the contrary, the arbitral tribunal correctly took into account that, according to the case law of the Swiss Federal Tribunal, such a waiver cannot be assumed lightly and, in case of doubt, it is right to give preference to a restrictive interpretation.” (emphasis added)

At first glance, the above decision conflicts with another decision of the Swiss Federal Tribunal.15 The latter was based on the following facts:

An international association had initially provided for its own association tribunal for doping disputes, but later transferred its jurisdiction in doping matters to the Anti-Doping Division of the CAS (“CAD TAS”). The association’s rules provided that first-instance decisions (of the former association tribunal or the CAD TAS) could be appealed to the appeals arbitration division of the CAS (“CAA TAS”). In this specific case, the athlete had been accused and convicted of a doping offence before the CAD TAS. He appealed to the CAA TAS and was unsuccessful. The athlete then lodged an appeal against this final arbitral award with the Federal Supreme Court, arguing, among other things, that the former association tribunal, and not the CAD TAS, had been responsible for adjudicating the matter.

The Swiss Federal Tribunal found as follows:

“5.2.4. In a ruling handed down on 13 January 2022, the Federal Court held that the plea of lack of jurisdiction referred to in art. 190 para. 2 lit. b PILA can only be used to argue that the arbitral tribunal hearing an action for annulment of a decision handed down by a judicial body of a sports federation (in this case the Players’ Status Committee of the Fédération Internationale de Football Association), i.e., a non-arbitral authority, wrongly declared itself competent or incompetent to hear such an action. On the other hand, the plea alleging breach of art. 190 para. 2 let. b of the PILA does not allow the jurisdiction of the court of first instance examined and accepted by the CAA TAS to be called into question (judgement 4A_344/2021 cited above, para. 5). At most, this question can be examined from the angle of conflict with public policy within the meaning of art. 190 para. 2 let. e of the PILA. …

5.9.4. In view of the foregoing, the plea alleging infringement of art. 190 para. 2 let. b PILA is inadmissible, insofar as the appellant is seeking an indirect review of the jurisdiction of the CAD TAS, which in the present case did not act as a genuine arbitral tribunal, but as a disciplinary court of first instance delegated by the respondent. Insofar as the appellant’s entire argument seeking to establish that the CAA TAS lacked jurisdiction is based on the unproven premise that the authority of first instance, i.e., the CAD TAS, had wrongly declared itself competent in the present case, a question that the Federal Court cannot review under art. 190 para. 2 let. b of the PILA, but solely with regard to the infringement of public policy within the meaning of art. 190 para. 2 let. e of the PILA - a complaint that the appellant does not raise -, it logically follows that the appellant’s argument is doomed to failure.” (emphasis added)

While the Federal Supreme Court examined the jurisdiction of the association tribunal as the first instance under Article 190(2) lit. b PILA in the first case, it refused to do so in the second decision. However, the two rulings only appear to be irreconcilable. On closer inspection, it becomes apparent that in the first case, decided by the Swiss Federal Tribunal, the lack of jurisdiction not only affected the first instance, but also the jurisdiction of the CAS. If it is not the FIFA association tribunal but the national labour court that has jurisdiction, the CAS cannot decide on the claim in the matter even if the association tribunal erroneously affirms its jurisdiction. In this case, the Swiss Federal Tribunal not only indirectly reviewed the jurisdiction of the association tribunal in light of Article 190(2) lit. b PILA, but also directly the jurisdiction of the CAS. If, on the other hand, it is unclear which of several association tribunals is responsible for settling a dispute within the association, but – as in the second case – the association’s rules and regulations provide in any case for the final adjudication of the CAS, a possible lack of jurisdiction at the first instance level does not affect the jurisdiction of the CAS – apart from the public policy reservation. There is therefore no room for the application of Article 190(2) lit. b PILA here.

4. Exhaustion of legal remedies

Article R47(1) of the CAS Code provides that an appeal may only be brought before the CAS in appeals arbitration proceedings if the appellant has first exhausted “all available legal remedies”. However, it is questionable what is meant by “legal remedies” in the aforementioned sense. The literature rightly points out that the obligation to exhaust other legal remedies only applies if the legal remedies in question are mandatory, i.e., binding on the parties. In this respect, the commentary by Rigozzi/Hasler on Article R47 of the CAS Code rightly states the following:16

“The requirement of the exhaustion of internal remedies only applies to remedies that are mandatory under the applicable regulations: discretionary, optional or extraordinary remedies, such as, for instance, application for early reinstatement in case of exceptional circumstances, need not be exhausted for the purposes of Art. R47(1).”

A distinction is also sometimes made in the legal literature between ordinary and extraordinary legal remedies.17 For example, the commentary by Mavromati/Reeb states the following:

“The obligation to exhaust internal remedies according to Article R47 only concerns the prior judicial instances foreseen by the applicable regulations. Therefore, it is not necessary to exhaust all legal remedies but only the legal remedies available to the appellant under the regulations prior to the CAS appeal. The wording of Article R47 of the Code has been interpreted as encompassing ordinary remedies only and not extraordinary remedies. The SFT has confirmed the view that the obligation to exhaust internal legal remedies applies only to ordinary - and not to extraordinary or incomplete legal remedies (e.g., the request for revision).” (emphasis added)

However, this differentiation between “ordinary” and “extraordinary” legal remedies conceals nothing other than the distinction between binding and non-binding preliminary proceedings. This becomes clear when reading the decision of the Swiss Federal Tribunal referred to in the above commentary. The decision states the following:18

“The obligation to exhaust prior instances, set out in art. R47 para. 1 of the Code, applies only to the internal body whose implementation the sports federation concerned prescribes before any referral to CAS, to the exclusion of the body to which the appellant has the choice of referring or not the decision that does not satisfy him (Antonio Rigozzi, L’arbitrage international en matière de sport, 2005, no. 1024, p. 526). Moreover, as the respondent rightly points out (reply, n. 34 et seq.), it is hardly conceivable that such an obligation could also apply to an extraordinary and incomplete legal remedy, such as revision.” (emphasis added)

The “legal remedies available” within the meaning of Article R47(1) CAS Code, therefore, only include the binding, i.e., the mandatory, preliminary proceedings, but not those legal remedies to which a party is optionally entitled or in which the entire subject matter of the dispute is not at issue in legal or factual terms.

The CAS case law also provides for exceptions to the obligation to first exhaust the mandatory legal remedies. Accordingly, a premature appeal to the CAS does not constitute a breach of duty if the mandatory legal remedies are “ineffective”19 or do not serve a “useful purpose”20. For example, a CAS decision has stated the following:21

“For, only if the association’s internal instances are willing and in a position to grant effective legal protection do the Appellants have to accept a restriction in their right to have recourse to the courts (or arbitral tribunals).”

Similarly, another CAS award stated:22

“In this vein, indeed, the CAS precedents that have dealt with the issue of the exhaustion of legal remedies have indicated that “the internal remedy must be readily and effectively available to the aggrieved party and it must give access to a definite procedure” (CAS 2007/A/1373, § 9.3, and CAS 2003/O/466, § 6.12, in International Sports Law Review, 2004, p. SLR-48; see also the awards in CAS 2008/A/1468; CAS 2008/A/1494; CAS 2008/A/1495; CAS 2008/A/1699; and the order in CAS 2007/A/1347).”

The literature predominantly follows the above case law and does not sanction a premature filing with the arbitral tribunal if the legal remedies at first instance “do not exist or are illusory ... only if the association’s internal instances are willing and able to grant effective legal protection does the respondent have the right to impose the exhaustion of internal remedies prior to the appeal to the CAS”23 or if “... for instance, the internal hearing body deliberately delays the proceedings or refuses to deal with the case, or has made comments about the matter which make it clear that it will not be able to act with the necessary impartiality”24. This threshold, however, is rather high.

It is debatable whether the obligation to exhaust internal legal remedies is a question of the jurisdiction of the CAS or an admissibility requirement. If the CAS panel is approached prematurely, must it dismiss the premature arbitration for lack of jurisdiction or must the claim be declared inadmissible? A CAS award states the following in this regard:25

“77 It is debated in legal doctrine whether exhausting internal legal remedies is an admissibility requirement (pro: RIGOZZI/HASLER, Article R47 CAS Code, in: Arroyo (Ed.), Arbitration in Switzerland, Vol. II, 2018, p. 1583) or a matter of jurisdiction (pro: MAVROMATI/REEB, The Code of the Court of Arbitration for Sport, 2015, p. 391). …

78 The Panel favours considering the issue as an admissibility requirement. First, this is in line with the Parties’ written and oral submissions that considered it to be an issue of admissibility. Second, because the requirement does not serve to distinguish the Panel’s mandate from the Parties’ access to justice before state courts. …” (emphasis added)

This again raises the question of whether the Swiss Federal Tribunal can set aside a CAS award under Article 190(2) lit. b PILA if a CAS panel wrongly disregards mandatory proceedings before the association tribunal. The Swiss Federal Tribunal has not yet commented on this. However, it has dealt with a comparable case in which the parties had mandatorily provided a med-arb clause. The Swiss Federal Tribunal has ruled as follows in this respect:26

“The Swiss Federal Supreme Court has considered, in the light of art. 190 para. 2 lit. b of the PILA (RS 291) on the jurisdiction of the arbitral tribunal, the complaint that a contractual mechanism constituting a mandatory prerequisite to arbitration (attempted conciliation, appointment of an expert, mediation, etc.) has been breached. It does so by default, as it is unable to link such a grievance to another ground for appeal within the meaning of this provision, thus implicitly admitting that such a violation is certainly not sufficiently serious to fall within the scope of the procedural public policy referred to in art. 190 para. 2 lit. e PILA …, but that it must nevertheless be sanctioned in one way or another. This does not mean, in his mind, that such a connection would necessarily dictate the solution to be adopted to sanction the fact of filing a request for arbitration without having taken the compulsory prior step agreed by the parties (judgement 4A_124/2014 of 7 July 2014 recital 3.2 and the precedents cited).

When a claim of lack of jurisdiction is brought before it, the Federal Supreme Court freely examines the legal issues that determine the jurisdiction or lack of jurisdiction of the arbitral tribunal. If necessary, it will also review the application of the relevant foreign law; it will also do so with full cognisance, but will follow the majority opinion expressed on the point in question, or even, in the event of controversy between the doctrine and the law, the majority opinion.” (emphasis added)

In the above case, the Swiss Federal Tribunal assessed the “premature referral” of the case to the arbitral tribunal from the perspective of Article 190(2) lit. b PILA. If the arbitral tribunal disregards a binding or mandatory pre-arbitration procedure provided for by the parties, the arbitral award may be challenged. Ultimately, it cannot make any difference whether the binding pre-arbitration procedure agreed by the parties is a mediation or a procedure before an association tribunal. If a CAS panel decides on a dispute, even though the binding internal remedies have not been exhausted, such an arbitral award is in principle subject to appeal before the Swiss Federal Tribunal in accordance with Article 190(2) lit. b PILA.

5. Appealable decisions

Pursuant to Article R47(1) of the CAS, an appeal may be lodged against a “decision of a federation, association or sports-related body” in appeals arbitration proceedings. The law does not define the term “decision”. The CAS case law points out that the “the form of the communication has no relevance to determine whether there exists a decision or not. In particular, the fact that the communication is made in the form of a letter does not rule out the possibility that it constitutes a decision subject to appeal.”27 Rather, it is the content of the declaration of intent that is decisive. “In principle, for a communication to be a decision, this communication must contain a ruling, whereby the body issuing the decision intends to affect the legal situation of the addressee of the decision or other parties”.28 The latter is particularly lacking if the declaration of intent is merely informative.29

An association tribunal can make a variety of “decisions” as part of its dispute resolution. These may be procedural orders, provisional, interim, partial or final decisions. All these expressions of the association tribunal’s will fulfil the above-mentioned requirements of a “decision” within the meaning of Article R47(1) of the CAS Code, because they all affect the procedural and/or substantive legal position of the parties to the proceedings. However, the question of whether a “decision” within the meaning of Article R47(1) of the CAS Code exists must be distinguished from the further question of whether it is an “independently appealable” decision.

The applicable rules and regulations primarily determine which decisions of an association tribunal are subject to appeal. It is – in principle – within the autonomy of the respective sports federation to determine which decision can be referred to CAS. Of course, the autonomy of sports federations is not unlimited. In any case, the decision with which the proceedings before the first instance are concluded must be subject to appeal. The rules of the sports federations cannot completely exclude access to justice. However, the question arises as to what applies to other decisions of the association tribunal that precede its final decision. A CAS panel dealt with this question in a case30 based on the following facts:

In March 2019, UEFA (Investigatory Chamber) opened disciplinary proceedings against an English club. After completing its investigation, the Investigatory Chamber concluded that the club had committed a disciplinary offence and referred the case to the UEFA Adjudicatory Chamber for adjudication in May 2019. The English club appealed to the CAS against this decision to refer the case to the Adjudicatory Chamber (‘” Referral Decision”) and requested – among other things – that the referral decision be set aside because “the referral decision is based on a flawed investigation, which was not conducted with procedural fairness or due process”.

The competent CAS panel commented on the appealability of the Referral Decision as follows:

“79. The starting point to determine whether or not a decision is appealable is the applicable internal regulations.

80. It is not in dispute that the various regulations of UEFA are primarily applicable to the dispute, in particular the UEFA CL&FFPR and the CFCB Procedural Rules. …

82. Article 34 CFCB Procedural Rules provides as follows:

“1. A party directly affected has the right to appeal a final decision of the CFCB.

2. Final decisions of the CFCB may only be appealed before the Court of Arbitration for Sport (CAS) in accordance with the relevant provisions of the UEFA Statutes.”

83. The Panel derives from Article 34 CFCB Procedural Rules that not all decisions issued by the UEFA CFCB shall be appealed to CAS. Rather, only ‘final decisions’ that directly affect a party can be appealed before CAS. This does not mean that there is no legal remedy against all other decisions. It simply means that the legal remedy against such other decisions is only available in the context of an appeal against the ‘final decision’. …

88. Article 27 CFCB Procedural Rules (headed ‘Final decision’ – incorporated in the chapter governing the functioning of the Adjudicatory Chamber) provides as follows:

‘The adjudicatory chamber may take the following final decisions:

a) To dismiss the case; or

b) to accept or reject the club’s admission to the UEFA club competition in question; or

c) to impose disciplinary measures in accordance with the present rules; or

d) to uphold, reject, or modify a decision of the CFCB chief investigator.’

89. The Panel finds that, as emphasised by the heading of the provision, there can be no doubt that the types of decisions listed in Article 27 CFCB Procedural Rules are ‘final decisions’ within the above meaning and can be appealed to CAS. This makes perfect sense, since nobody within the UEFA administration can review these types of decisions, which legitimises an external appeal to CAS, because all internal legal remedies are exhausted.

90. As a corollary, a decision rendered by the Investigatory Chamber to refer a case to the Adjudicatory Chamber is not final and can therefore in principle not be appealed to CAS directly, because the Adjudicatory Chamber is competent to take any of the decisions listed in Article 27 CFCB Procedural Rules, that are described as being final. It follows from the above that a referral decision issued by the Investigatory Chamber, in principle, does not qualify as a final decision that can be appealed to CAS and that only once the Adjudicatory Chamber renders one of the decisions listed in Article 27 CFCB Procedural Rules has a final decision been rendered that can be appealed to CAS. …

95. The bottom line as to the Referral Decision is that a decision of the Investigatory Chamber to refer a case to the Adjudicatory Chamber does not bring an end to the matter in dispute wholly or partially. Instead the matter in dispute before the Adjudicatory Chamber remains identical to the one before the Investigatory Chamber that was referred to the Adjudicatory Chamber. Thus, the Adjudicatory Chamber may still decide to dismiss the entire case against MCFC, in which case MCFC would be exonerated. Therefore, until the Adjudicatory Chamber issues its final decision, the legal remedies of MCFC are not exhausted and an appeal to CAS is, in principle, premature. …

107. The Panel agrees that there can be exceptions to the general rule that internal legal remedies must be exhausted. An exception would be warranted in case irreparable harm would be incurred prior to the issuance of the final decision and in case the proceedings would be wholly unbearable or if the outcome would be clear from the very outset. In such cases procedural efficiency would dictate that an appeal can be filed with CAS directly.” (emphasis added)

Whether individual decisions of a first-instance association tribunal that precede the final adjudication of the case can be challenged according to Article R47(1) CAS Code is – insofar as the issue is not regulated in the applicable rules and regulations – a matter of weighing up the principle of procedural economy against the principle of effective legal protection of the party concerned.

A comparable consideration is made, for example, by the Swiss Federal Tribunal when classifying CAS awards under Article 190 PILA. The provision distinguishes between “arbitral awards” and “preliminary awards” with regard to the standard of review to be applied. The latter are only subject to limited appeal under Article 190(3) PILA, namely only under paragraph 2 lit. a and b PILA. The case law generally distinguishes between preliminary awards (which are subject to limited appeal) and other arbitral awards (which are subject to unlimited appeal) as follows:31

“The act that may be challenged may be a final award, which brings the arbitration proceedings to an end for a substantive or procedural reason, a partial award, which relates to a quantitatively limited part of a disputed claim or to one of the various claims at issue, or which brings the proceedings to an end with regard to some of the parties … , or even a preliminary or incidental award, which settles one or more preliminary questions of substance or procedure … In deciding whether an appeal is admissible, what is decisive is not the name of the decision appealed against, but its content.”

In sports arbitration, however, the Swiss Federal Tribunal draws a different distinction with a view to the multi-level nature of the dispute resolution mechanism. This applies in particular to cases in which the CAS does not decide the dispute on the merits, but refers it back to the first instance adjudicatory body in accordance with Article R57(1) of the CAS Code. Strictly speaking, such a CAS award is not a preliminary award according to the above criteria, but a final award. However, classifying such an award as a final award would not be particularly efficient in terms of procedural economy, since the proceedings could be brought before the CAS and, thus, also before the Swiss Federal Tribunal a second time after referral back to the association tribunal. The Swiss Federal Tribunal, therefore, states the following:32

“In defining the various types of award that can be challenged, the Swiss Federal Supreme Court had in mind international disputes arising from commercial relations between parties to a contractual relationship. It fits in well with the nature of such disputes, which are between two or more parties who instruct the arbitral tribunal appointed by them to settle their dispute as a single instance, subject to possible recourse to a state court. In this context, the final award effectively closes the ‘arbitration proceedings’.

On the other hand, this same definition does not appear to be sufficiently adapted to the specific features inherent in sports arbitration …, particularly when the CAS is involved in an appeal against a decision taken by a sports federation. Indeed, ruling as an appeal court, the CAS Panel will certainly render a final award within the meaning of the definition mentioned above, i.e., an award that will put an end to the arbitration proceedings pending before it. However, the proceedings on the merits between the parties will not necessarily be terminated by this award. It will continue in the event that the Panel annuls the contested decision and refers the case back to the sports federation concerned, inviting it to resume the investigation of the case and issue a new decision. Seen in this light, the proceedings initiated before the sports federation, then continued on appeal before the CAS, are akin to ordinary state proceedings, subject to the requirement of dual jurisdiction. …”

In order to avoid multiple appeals to the Swiss Federal Tribunal on the same subject matter, the Swiss Federal Tribunal, for reasons of procedural economy, classifies remissions by the CAS to the lower instance within the meaning of Article R57(1) of the CAS Code as (limitedly appealable) preliminary awards in the sense of Article 190(3) of the PILA. This does not mean that the arbitral award is withdrawn from review by the Swiss Federal Tribunal. Rather, the Swiss Federal Tribunal will only review the application of Article 190(2) lit. c-e PILA at the very end of the proceedings, when the CAS issues its final decision on the dispute.33

It is debatable whether the qualification as an appealable decision within the meaning of Article R47(1) of the CAS Code is a question of the jurisdiction or of the admissibility of the appeal. There are good reasons to classify the question as one of admissibility.34 In a recent CAS decision, this is justified as follows:

“96. The distinction between jurisdiction and admissibility is complex and differs from jurisdiction to jurisdiction (Girsberger/Voser, International Arbitration, 5th ed. 2024, no. 1358; cf. also Stacher, Jurisdiction and Admissibility under Swiss Arbitration Law – the Relevance of the Distinction and a New Hope, Bull-ASA 2020, 55 ff.). In particular, the CAS jurisprudence in relation to the above issue is not unanimous. In CAS 2008/A/1633 and CAS 2022/A/8865-8868 the panels treated the question whether the appeal was directed against a ‘decision’ as an admissibility issue. In CAS 2007/A/1633 or CAS 2015/A/4174, on the contrary, the respective panels analysed the identical issue as a jurisdictional matter. …

97. As a rule of thumb, the question whether CAS has competence to decide the dispute in a binding manner in lieu of a state court, and whether the matter before CAS is within the scope of the arbitration agreement, are issues of jurisdiction, whereas all procedural issues that are non-jurisdictional issues and that may cause the end of the arbitration for procedural reasons are admissibility issues (Girsberger/Voser, International Arbitration, 5th ed. 2024, no. 1358). If one applies this rule of thumb in the case at hand, the question whether the IOC-Decision qualifies as a decision within the meaning of Article R47 of the CAS Code is an admissibility issue. It is not disputed that the competence to decide a dispute in a binding way was transferred from state courts to arbitration in the case at hand. Neither the Appellant nor the IOC object to being bound to Rule 61(2) of the Olympic Charter, which provides for such a transfer of competence to the CAS.

98. Furthermore, the Sole Arbitrator after carefully reviewing the CAS precedents finds that there are further arguments speaking in favour of qualifying the above issue as an admissibility matter (cf. also CAS 2021/A/8034, no. 74). The CAS Code provides different types of proceedings depending on the matter in dispute, i.e., whether the requests filed by an appellant relate to the setting aside of a ‘decision’ of a sports organisation. If the latter is the case, then the dispute will be adjudicated according to the provisions applicable to the Appeals Arbitration Procedure. In case the matter in dispute does not concern an appeal against a decision, the respective provisions of the Ordinary Appeals Procedure apply. The question of what procedural rules apply is, however, completely independent from the question whether CAS – based on an arbitration agreement – has jurisdiction. As such, the Sole Arbitrator will proceed to address the legal status of the IOC-Decision in the section on admissibility.” (emphasis added)

6. The binding effect of decisions of an association
tribunal

If no appeal is filed against a decision of an association tribunal within the prescribed time limit, it can no longer be challenged in appeal proceedings before the CAS. The question of whether the decision of the association tribunal can be challenged in new proceedings must be distinguished from the question of whether the appeal process has been exhausted. In the case of decisions by state courts or arbitral awards, the purpose of preventing new proceedings concerning the same matter is served by the concept of res judicata. This is a procedural concept that derives from state law. However, the decisions of an association tribunal are not among those to which res judicata is conferred by state law. This has been repeatedly affirmed by the Swiss Federal Tribunal. For example, in SFT 4A_486/2022, consid. 6.4, it states:

“At the outset, the question arises as to whether the CAS can really be criticised for having breached the ne bis in idem principle - which is described in case law as the corollary or negative aspect of res judicata - on the grounds that it did not take into account the decision previously handed down by the yyy Federal Court of Appeal. It should be remembered that decisions handed down by the judicial bodies of an association, such as yyy, are not judicial decisions or arbitration awards and therefore do not have the force of res judicata (BGE 119 II 271, para. 3b; judgement 4A_476/2020, cited above, para. 3.2 and the references cited).”

The binding nature of decisions of an association tribunal does not derive from procedural law, but from the applicable substantive law. A CAS panel has explained this as follows:35

“80. Proceedings before association tribunals are a means of alternative dispute resolution. Differently from arbitration, Swiss law does not provide for a legislative framework for these kinds of proceedings. However, it is undisputed in Swiss law that adjudication by association tribunals – as long as they are agreed upon by the parties – are an admissible and legitimate means of (alternative) dispute resolution. It is further accepted in Swiss law that in case a party to this dispute resolution mechanism has not exhausted the internal instances of recourse within the prescribed deadlines or in case a party has failed to lodge a timely appeal against the last instance decision of an association tribunal, the decision becomes ‘binding’, i.e., it can no longer be appealed to state courts or arbitral tribunals (BGE 85 II 525, 535 seq.; BK-ZGB/Riemer, 1990, Art. 72 N. 83). …

81. Such binding character attributed to decisions of association tribunals cannot be circumvented by the party who missed the deadline for lodging the appeal according to Art. 75 CC by now dressing his or her claim differently, for example as a claim for damages (within the meaning of Article 28 CC or Articles 41 et seq of the Swiss Code of Obligations – ‘CO’). This clearly follows from the jurisprudence of the SFT. …

82. The FIFA Procedural Rules Governing the Football Tribunal (“PRGFT”) (ed. 2022) follow this approach. Article 15(5) (7) and Article 20(4) of the PRGFT provides as follows:

Article 15(5) PRGFT

Where no procedural costs are ordered, a party has ten calendar days from notification of the operative part of the decision to request the grounds of the decision. Failure to comply with the time limit shall result in the decision becoming final and binding and the party will be deemed to have waived its right to file an appeal. The time limit to lodge an appeal begins upon notification of the grounds of the decision.

Article 15(7) PRGFT

Failure to comply with the time limit referred to in paragraph 6 of this article shall result in the request for the grounds being deemed to have been withdrawn. As a result, the decision will become final and binding and the party will be deemed to have waived its right to file an appeal. …

Article 20(4) PRGFT

Where a proposal is accepted, a confirmation letter will be issued by the FIFA general secretariat. The confirmation letter shall be considered a final and binding decision pursuant to the relevant FIFA regulations”. (emphasis added)

Even though the binding effect of an association tribunal decision is of a substantive (and not procedural) nature, CAS determines the scope of the binding effect of a decision of an association tribunal by applying the principles of res judicata by analogy. The CAS panel in the proceedings 2023/A/9404 justified this as follows:

“102. The Panel notes that association tribunals and arbitral tribunals perform similar functions. Both seek to resolve a dispute between the parties in a court-like procedure. Because of these similar functions it appears obvious to determine the extent of the binding effect of both dispute resolution mechanisms in a similar way. This is all the truer, considering that res judicata not only serves a public interest. Instead, the concept also intends to protect the private interests of the parties involved in the litigation. Without the “finality” of a dispute resolution mechanism, a dispute would never end. It is, however, the common intention of the parties when submitting to a dispute resolution mechanism, to have their contentious relationship finally and bindingly resolved by the adjudicator. The private interests involved do not differ in proceedings before an association tribunal from other forms of dispute resolution such as arbitration. Consequently, when looking at the similar functions and the similar interests involved, the better arguments speak in favour of determining the scope of the binding effects of the respective decisions in an identical manner, i.e., to determine the extent of the finality of a decision of an association tribunal by applying the concept of res judicata by analogy.

103. This finding is not contradicted by the fact that – as previously stated – the statutory provisions and principles related to res judicata are mandatory and cannot be altered through an agreement of the parties (see supra no. 82). Unlike the statutory concept of res judicata, the extent of the binding effect of decisions of an association tribunal is within the autonomy of the parties or the autonomy of the federation concerned. Thus, it is for the FIFA rules and regulations to determine the extent of the binding effects of the decisions of the FIFA adjudicatory bodies. It is perfectly legitimate for the parties to agree among themselves that they want a decision of an association tribunal to be treated akin to a state court decision or an arbitral award. Of course, such an agreement only binds the parties involved and not third parties or state authorities. …

108. The above finding of the Panel is also supported by jurisprudence of the SFT. The latter has applied in the past procedural concepts before state court proceedings to proceedings before association tribunals, because of their similar adjudicatory functions. Thus, the SFT – e.g. – has applied the concept of joint defendants (according to Article 71 of the Swiss Code of Civil Procedure) to proceedings before association tribunals (e.g. SFT 140 III 520). …” (emphasis added)

7. Summary

(1) The deadline to appeal in Article R49 of the CAS Code is an issue of admissibility and not of jurisdiction. If a CAS panel fails to recognise that an appeal is out of time, or if a CAS panel erroneously dismisses an appeal as out of time, such award cannot be challenged before the Swiss Federal Tribunal under Article 190(2) lit. b PILA, except in the exceptional case of public policy.

(2) The mandate of a CAS panel in appeals arbitration proceedings is limited by the subject matter of the dispute before the first instance. Restrictions of the panel’s mandate may also arise if the first instance had no jurisdiction to decide the dispute in the first place. In such case, the CAS panel must dismiss the Appellant’s requests on the merits, since a possible lack of jurisdiction of the first instance level does not – in principle – affect the jurisdiction of the CAS. In case the panel mistakenly assumes that the first instance is competent, such award cannot be appealed according Article 190(2) PILA (subject for a violation of public policy).

(3) Article R47 of the CAS Code requires that an appellant exhaust the internal means of recourse before filing its claim with the CAS. The obligation to exhaust all available internal remedies applies only to mandatory legal remedies. Thus, Article R49 of the CAS Code does not cover legal remedies to which a party is optionally entitled or in which the entire subject matter of the dispute is not at issue in legal or factual terms. If, however, a CAS panel decides on a dispute even though the binding internal remedies have not been exhausted, such arbitral award is in principle subject to appeal before the Swiss Federal Tribunal in accordance with Article 190(2) lit. b PILA.

(4) The appeals arbitration procedure is only available against “decisions” of a sports organization or a sports body. In order for a measure to qualify as a decision, its content (rather than its form) is decisive. The question of whether a “decision” within the meaning of Article R47(1) of the CAS Code exists must be distinguished from the further question of whether it is “independently appealable”. Whether decisions of a first-instance association tribunal that precede the final adjudication of the case can be separately challenged according to Article R47(1) of the CAS Code is – absent any determination in the rules and regulations of the sports organization concerned – a matter of weighing up the principle of procedural economy against the principle of effective legal protection of the party concerned.

(5) It is debatable whether the qualification as an “appealable decision” within the meaning of Article R47(1) of the CAS Code is a question of jurisdiction or of admissibility. The better arguments speak in favour of qualifying the issue as a procedural matter.

(6) Decisions of an association tribunal do not enjoy res judicata effects. They do not bind the parties procedurally, but they do bind the parties according to the substantive law of the place, where the sports organisation is seated. However, since proceedings before an association tribunal – just like arbitration proceeding – are a means of authoritative dispute resolution, the scope of the binding effects of such decisions must be determined according to the principles applicable to res judicata.

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