X. v. ATP Tour and the Court of Arbitration for Sport (CAS) [The Association of Tennis Professionals Waiver] - Swiss International Arbitration Law Reports (SIALR) - 2007 Vol. 1 Nos. 1 & 2

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35 pages

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December, 2007

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Headnote

In sports-related arbitration concerning disciplinary sanctions imposed

on a professional athlete by a private association, a waiver of the right to

bring setting aside proceedings against future arbitral awards by a player

and member of the association (an exclusion agreement) is not valid even

if it is express.

The parties’ right to present their case is breached where an arbitrator

fails to satisfy his minimum duty to consider allegations, arguments, or

evidence that were essential in order for an award to be made. There is

no duty on an arbitrator to examine each and every point raised by the

parties in their pleadings.

Summary of the Decision

Professional tennis player X. tested positive for a prohibited substance

and was suspended for two years by the Anti-doping Tribunal of the

Association of Tennis Professionals (ATP). X. appealed the decision to a

Court of Arbitration for Sport (CAS) panel, which affirmed the decision

in part, reducing the length of the suspension to 15 months. X. then filed

this application to set aside against the decision of the CAS panel,

claiming that the CAS panel’s award breached his right to present his

case and was contrary to procedural public policy. The ATP objected that

the application to set aside was inadmissible on the basis that X. had

signed an express declaration waiving setting aside proceedings against

any award made by an arbitral tribunal. According to article 192 FPILA,

such waivers were admissible. Alternatively, the ATP argued that if the

setting aside proceedings were admissible, then the CAS panel’s award

was to be considered inconsistent with articles 190(2)(d) or (e) FPILA.

The Federal Supreme Court held: (1) in sports-related arbitration, an

agreement to waive setting aside proceedings entered into by a

professional athlete is in principle inadmissible and cannot be relied upon

against such athlete; and (2) where an athlete’s free will is compromised

by the vertically integrated organisational structure of the association to

which the athlete belongs, such a waiver is in principle inadmissible.

Therefore the waiver to set aside was declared ineffective in spite of the

fact that it was express.