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Swiss Federal Tribunal examines limits on FIFA PSC jurisdiction in the Emiliano Sala case

Football Stadium
Tuesday, 23 May 2023 By Dr Despina Mavromati

This case (Swiss Federal Supreme Court ("SFT") Judgment 4A_420/2022 of March 30, 2023, Cardiff City FC v. SASP FC de Nantes[1]) relates to the international transfer of the Argentinean football player Emiliano Sala to FC Cardiff (“Appellant”) from FC Nantes (“Respondent”, jointly referred to as the “Parties”) in January 2019 and his tragic plane crash which occurred shortly afterwards. The SFT judgment essentially relates to the scope of the arbitration clause between the parties to a transfer agreement but also to the interpretation of the scope of disputes that can be decided by the FIFA dispute resolution bodies and, subsequently, by the CAS.

The Parties had agreed on a transfer price of EUR 17,000,000, to be paid in three installments, with the first installment of EUR 6,000,000 payable within five days after the registration of the player with FC Nantes. Hours after the finalization of the transfer agreement with the FIFA Transfer Matching System (“TMS”), the player tragically died in a plane crash over the English Channel.

FC Nantes filed a claim before the FIFA Players Status Chamber (“PSC”) requesting payment of the first instalment, but FC Cardiff argued that FC Nantes was liable for the circumstances that led to the player’s death, thus it intended to claim set-off for damages against the claims raised by FC Nantes. The FIFA PSC upheld FC Nantes’ claim and held that it had no jurisdiction to hear the claim for damages.

FC Cardiff appealed against the FIFA PSC decision to the CAS which dismissed the appeal. The CAS panel bifurcated the procedure and decided, as preliminary matters, the validity of the transfer contract, the PSC and CAS had jurisdiction to hear the claim for damages, and the possibility to extinguish a contractual claim by a set-off tort claim. After declaring that the transfer had already taken place before the player’s accident, the panel held that neither the FIFA PSC nor the CAS had jurisdiction to rule on a claim of extra-contractual nature (i.e., the claim that FC Nantes was responsible for the player’s death).

In the subsequent appeal to the SFT, the Appellant invoked a violation of Art. 190 (2) (b) of the Federal Act on Private International Law (“PILA”) considering that the CAS panel had erroneously interpreted the arbitration agreement enshrined both in the contract and in the FIFA regulations. In a very interesting analysis, the SFT reiterated the various principles of statutory interpretation applying to the regulations of large sports federations, such as FIFA.

This note discusses the key findings in the SFT judgement. An English translation of the SFT judgement can also be viewed below.

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Despina Mavromati

Dr Despina Mavromati

Dr. Despina Mavromati is an attorney at the Swiss law firm BianchiSchwald and an arbitrator at the Court of Arbitration for Sport (CAS). She has extensive experience in international sports law and arbitration. She represents athletes, clubs and federations and advises on regulatory and sports governance matters, including the recognition and enforcement of awards and freezing of assets in Switzerland. Despina has acted as counsel, co-counsel, expert or arbitrator in numerous sports arbitrations, involving contractual, governance, doping-related and other disciplinary and ethics matters. Recognized as a Thought Leader by Who’s Who Legal in Switzerland every year since 2018, “Despina Mavromati is “brilliant and accomplished” and “an amazing lawyer with immense knowledge and expertise when it comes to disputes before the CAS” (Who’s Who Legal 2023).

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