X. and Y. v. A. [The Unfit Football Player] No. 4A_176/2008 - Swiss International Arbitration Law Reports (SIALR) - 2008 Volume 2 No. 2

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21 pages

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December, 2008

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Originally from:

Swiss International Arbitration Law Reports - 2008 Vol. 2 No. 2

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Headnote

 

■ Under the rules of good faith, any objections to the constitution of

an arbitral tribunal or the arbitrators’ impartiality or independence

will be deemed waived unless they are made forthwith.

 

■ A party complaining of a breach of its right to present its case due

to an inadvertent mistake or omission by an arbitrator must prove

that it was deprived of its right to present its case in relation to a

point which is relevant in the arbitration as a consequence of such

inadvertence.

 

■ A party cannot complain of a breach of its right to put its case

before an arbitrator simply based on the manner in which the

arbitrator weighed the evidence.

 

Summary of the Decision

 

Two football players’ agents, X. and Y., entered into a contract with

B., an Argentinian football club, to negotiate and carry out the transfer of

a player from B. to football club A. in consideration of payment of a

percentage of the transfer fee. An agreement relating to the transfer of

the player was then concluded between A. and B. subject to the condition

precedent that the player would sign an employment contract with A.

after passing a medical examination. However, A.’s doctors found that

the player’s medical condition was unsatisfactory and A. therefore

declined to sign the player’s employment contract.

 

The agents’ claim for damages against football club A. before the

Fédération Internationale de Football Association (FIFA) was dismissed.

On appeal, a Court of Arbitration for Sport (CAS) panel upheld the

dismissal. The agents then brought setting aside proceedings before the

Swiss Federal Supreme Court, complaining that (i) the CAS panel had

not been properly constituted as the arbitrators were biased; (ii) the CAS

panel breached the parties’ right to present their case by failing to give a

witness statement appropriate consideration; and (iii) the CAS panel’s

award was made in breach of public policy.

 

In regard to the complaint based on the improper constitution of the

arbitral tribunal, the Swiss Federal Supreme Court found that the