El-Hadary v. 1. Al-Ahly Sporting Club and 2. Fédération Internationale de Football Association (FIFA) [El-Hadary] No. 4A_548/2009 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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32 pages

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November, 2013

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Court Decisions

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Originally from: 

Swiss International Arbitration Law Reports 2010 Vol. 4 Nos. 1 and 2

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No. 4

El-Hadary v. 1. Al-Ahly Sporting Club and 2. Fédération

Internationale de Football Association (FIFA)

[El-Hadary]

No. 4A_548/2009

Headnote

■ Where an arbitral tribunal has declared that it has jurisdiction in

a separate award, such award may be challenged before the Federal

Supreme Court on the grounds enumerated in article 190(3) FPILA.

■ Where an arbitral award has been challenged on a jurisdictional

ground, the Federal Supreme Court may itself exceptionally declare

that the arbitral tribunal has, or does not have, jurisdiction

(confirmation of previous decisions).

■ An athlete accepts the regulations of a federation, including the

provisions relating to dispute settlement, when he applies to such

federation in order to be admitted to participate in a sporting event.

■ It is unconscionable for an athlete to submit an application for an

authorisation pursuant to the regulations of a federation, and at the

same time to refuse to participate in the dispute settlement

procedure contemplated by such regulations with respect to disputes

relating to such authorisation.

Summary of the Decision

In 2007 Mr. Essam El-Hadary, a professional football player, and Al-

Ahly Sporting Club (“Al-Ahly”) signed an employment contract

effective until the end of the 2009-2010 football season. In 2008 Mr. El-

Hadary concluded an employment contract effective until the end of the

2010-2011 football season with FC Sion. Al-Ahly brought an action

against Mr. El-Hadary and FC Sion before the FIFA Dispute Resolution

Chamber (DRC). The DRC ordered Mr. El-Hadary and FC Sion jointly

and severally to pay Al-Ahly an amount of EUR 900,000.00, suspended

Mr. El-Hadary for four months and ordered FC Sion to refrain from

recruiting any new players for two registration periods. Mr. El-Hadary

brought an appeal against this decision with the Court of Arbitration for

Sport (CAS). Mr. El-Hadary also brought an action before a court of the

canton of Zurich in order to have the DRC’s decision set aside. The

CAS panel made a partial award in which it declined to stay the arbitral

proceedings pending the proceedings before the Zurich court and

declared that it had jurisdiction to review the merits of the appeal.