X. v. Y. [No Commission Fee for a Spanish Players’ Agent] No. 4A_400/2008 - Swiss International Arbitration Law Reports (SIALR) - 2009 Vol. 3 Nos. 1 & 2

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December, 2009

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Headnote

■ According to the maxim iura novit curia, national courts and

arbitral tribunals alike are free to determine the legal significance

and effect of the facts of the case. However, they are bound in

exceptional circumstances to seek the parties’ views as to points of

law; this is so when they consider resting their decision on an

authority or legal consideration which was not referred to in the

proceedings and the relevance of which could not therefore have

been anticipated by either party. A failure to do so by an arbitrator

amounts to a breach of the parties’ right to present their case.

■ The parties are not deemed to have been in a position to anticipate

the application by a tribunal of a mandatory provision contained in

a Swiss statute that is intended to apply to placement activities

carried out in Switzerland, in a case in which such activity was not

carried out in Switzerland and in which no connection appeared to

exist with Switzerland at all, save for the place of arbitration.

Summary of the Decision

In an agreement made on 28 April 2003 Y., a Brazilian professional

football player gave X., a Spanish licensed football players’ agent,

authority to negotiate his federative rights on the European market on his

behalf and on an exclusive basis. On 27 August 2003 Y. signed an

employment contract with Z., a Portuguese football club.

In 2005 X. contacted FIFA in order to inform them that he would be

claiming payment of his commission from Y. The Players’ Status

Committee dismissed X.’s claim considering that X. had failed to prove

that he had been instrumental to the conclusion of the employment

contract. On appeal by X. a CAS panel dismissed the appeal.

X. brought setting aside proceedings before the Swiss Federal

Supreme Court, complaining that the CAS panel breached his right to

present his case as it rested its decision on a mandatory provision of

Swiss law which had not been relied upon by either party in the

arbitration and the application of which was unexpected.

The Court granted the application and set the award aside.