After the hearing of the SFT, young athletes can refer to Article 6 of the Convention on the grounds that the CAS did not guarantee the right to “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.Footnote 54 According to Mutu and Pechstein v. Switzerland, the applicants claimed a violation of Article 6 of the Convention due to the arbitral tribunal lacking impartiality and independence from sporting federationsFootnote 55 and that it did not guarantee the right to a public hearing during the CAS proceedings.Footnote 56 The ECtHR held that there was no violation of the right to a fair trial, but the right to a public hearing was violated because the CAS held its hearing on camera.Footnote 57
However, it is still unclear whether young athletes can refer to substantive human rights before any dispute resolution bodies. In this context, a question that may arise is how they can claim a violation of their substantive rights due to physical and sexual abuse by their coaches under the Convention before the ECtHR. However, as had been described above, the internal dispute resolution body and the CAS have not allowed young athletes to be parties in the case of physical and sexual abuse. In this situation, this section will consider whether young athletes can claim a violation of human rights guaranteed by Article 8 of the Convention within the meaning of substantive public policy under Article 190 (2) (e) PILA so as to identify an indirect horizontal effect on sports governing bodies under the positive obligations of Article 8 (1) of the Convention.
In doing so, it will be divided into two parts: (1) admissibility criteria before the ECtHR under Article 35 of the Convention; and (2) complaint of a violation of fundamental human rights under Article 190 (2) (e) PILA in light of Article 8 of the Convention.
Admissibility criteria before the ECtHR
Jurisdiction ratione personae (Articles 1 and 35 (3) (a) of the ECHR)
This part will firstly consider the ECtHR’s jurisdiction ratione personae because the “[c]ompatibility ratione personae requires the alleged violation of the Convention to have been committed by a Contracting State or to be in some way attributable to it”.Footnote 58 In fact, the CAS is a private court established by SCC. Therefore, a question that arises is why the ECtHR necessarily hears a case of the CAS.Footnote 59
In the Mutu and Pechstein case, the Court considered that “Swiss law confers jurisdiction on the Federal Court to examine the validity of CAS awards” and “that supreme court dismissed the appeals …, thereby giving the relevant awards force of law in the Swiss legal order”.Footnote 60 Therefore, the Court held that “[t]he impugned acts or omissions are thus capable of engaging the responsibility of the respondent state under the Convention”. Accordingly, “the Court has jurisdiction ratione personae to examine the applicants’ complaints as to the acts and omissions of the CAS that were validated by the Federal Court”.Footnote 61 In Michel Platini c. Suisse, the Court reaffirmed that “[i]t also follows that the Court has jurisdiction ratione personae for hearing the Appellant’s complaints regarding the acts and omissions of the CAS, endorsed by the Swiss Federal Tribunal”.Footnote 62 So, it follows that the ECtHR is competent to hear a case of CAS because the CAS constitutes as a part of the Swiss legal order endorsed by the SFT under the PILA regime.Footnote 63
However, why should a state concerned be held responsible for a private act before the ECtHR? In general, the Convention does not impose any direct obligations on private actors,Footnote 64 but Contracting States are also responsible for a violation of the Convention’s rights of private actors within their territory.Footnote 65 In this regard, in Costello Roberts v. the United Kingdom, concerning corporal punishment against children in a private school, the ECtHR estimated that a school’s disciplinary system falls within the ambit of Articles 3, 8 and 13 of the Convention and Article 2 of Protocol No. 1.Footnote 66 Also, it observed that “the state cannot absolve itself from responsibility to delegating its obligations to private bodies or individuals”.Footnote 67 This approach may apply mutatis mutandis to other cases at Strasbourg.Footnote 68 Therefore, it follows that the state concerned must also implement “indirect obligations” to protect the rights of private actors under the Convention.
Exhaustion of all domestic remedies (Article 35 (1) of the ECHR)
It is also necessary to consider whether young athletes had exhausted all domestic remedies under Article 35 (1) of the Convention.
Article 35 (1) of the ECHR stipulates that:
“[t]he Court may only deal with the matter after all domestic remedies have been exhausted in the light of the generally recognised rules of international law (…)”.Footnote 69
Under this provision, if the applicants had exhausted all domestic remedies (including the internal dispute resolution, CAS and SFT) before submitting their applications to the ECtHR, the Court may declare them admissible.Footnote 70
According to Ali Rıza and Others v. Turkey, the Court considered that “an application to reopen the proceedings is an extraordinary remedy which the applicant need not exhaust”, if sporting rules or CAS CodeFootnote 71 states that the decision “was final and that there were no circumstances warranting the reopening of the proceeding”.Footnote 72 The domestic remedies in this case “was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success”.Footnote 73 However, “the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress”.Footnote 74 When satisfying these conditions under Article 35 (1) of the Convention, the applications would not be manifestly ill-founded within the meaning of Article 35 (3) (a) of the Convention, but the Court must therefore declare this application admissible.
In Michel Platini c. Suisse, the Court observed that “Article 35 of the Convention compels to bring the complaints, which are subsequently to be submitted to the ECtHR, before the appropriate, at least in substance, domestic body and within the time-limits prescribed by domestic law”.Footnote 75 Also, the Court considered that “that complaints under Article 6 have not been raised before the SFT, not even in substance”.Footnote 76 Accordingly, it held that “the complaints must be rejected because of non-exhaustion of domestic legal remedies under Article 35 (1) and (4) of the Convention”.Footnote 77 In this sense, if the athletes did not bring the complaints of a violation of their human rights before the SFT, the ECtHR must refuse them due to the non-exhaustion of domestic legal remedies under Article 35 (1) and (4) of the Convention.
In light of the foregoing, young athletes must fulfil the requirement of exhaustion of all domestic remedies before submitting their applications to the ECtHR. In doing so, they must claim a violation of human rights under national law corresponding to one of the Convention rights at the domestic level.
A complaint of a violation of fundamental human rights under Article 190 (2) (e) PILA in light of Article 8 of the ECHR
However, how can they claim a violation of another Convention rights apart from Article 6 of the Convention before the ECtHR, even if the athletes cannot claim a violation of their substantive human rights before national courts?
The dispute resolution system in sport is composed of three steps: (1) internal dispute resolution body in sporting federations; (2) the CAS; and (3) the SFT. The athletes must obey to the exclusive arbitral clause referring to the CASFootnote 78, and then, they can appeal before the SFT under Article 190 (2) PILA. This provision provides for five conditions:
lack of the independence and impartiality of arbitrators or/and arbitral tribunal itself;
wrong acceptance or denial of the jurisdiction;
ultra petita (ruled beyond the claims) or infra petita (failed to decide one of the claims);
violation of the principle of equal treatment of the parties or their right to a public hearing; and
incompatibility with the public order.Footnote 79
When satisfying one of the conditions, the athletes can claim the annulment of the CAS awards before the SFT.Footnote 80 After the three steps, the athletes are entitled to bring the complaints of a violation of the Convention rights before the ECtHR.
However, there were no CAS awards concerning physical and sexual abuse in the context of human rights corresponding to Article 8 of the Convention. Hence, this article will focus on analysing how young athletes may claim a violation of their rights guaranteed by Article 8 before the ECtHR in light of the SFT’s jurisprudence. In doing so, this subsection will analyse the question of how the SFT permits the athletes to allege a breach of their substantive rights under the ECHR and Article 190 (2) (e) PILA?
In this regard, the concept of public policy under Article 190 (2) (e) PILA constitutes substantive and procedural public policy.Footnote 81 In particular, the substantive public policy includes fundamental principles of substantive law, such as “contractual fidelity, respect for the rules of good faith, prohibition of abuse of law, prohibition of discriminatory or confiscatory measures, and protection of persons lacking civil capacity”.Footnote 82 Among them, young athletes may claim the infringement of personality rights under Articles 10 (2)Footnote 83 and 27 (2)Footnote 84 of the SFC.Footnote 85
In this regard, Article 10 (2) of the SFC stipulates that:
Every person has the right to personal liberty and in particular to physical and mental integrity and to freedom of movement.
Furthermore, Article 27 (2) of the SFC provides that:
Economic freedom includes in particular the freedom to choose an occupation as well as the freedom to pursue a private economic activity.
However, Article 27 (2) of the SCC prescribes the prohibition of an excessive limitation of personal freedom, which reads as follows:
No person may surrender his or her freedom or restrict the use of it to a degree which violates the law or public morals.
Based on these provisions, what are personality rights under Articles 10 (2) and 27 (2) of the SFC? In TF 4A_558/2011 of 27 March 2012 (ATF 138 III 322), the appellant, a professional football player, argued that a prohibition of working as a football player worldwide and forever imposed by the FIFA Disciplinary Committee constituted “a grave violation of the freedom of profession guaranteed at Art. 27 (2) of the [SFC] and in international treaties, as well as an excessive limitation of personal freedom as substantiated in Art. 27 of the [SCC]”.Footnote 86 In this case, the SFT observed that:
As a fundamental legal value, the personality of the human being requires the protection of the legal order. In Switzerland, it is protected constitutionally through the guarantee of the right to personal freedom (Art. 10 (2) [SFC]), which entails all liberties constituting the elementary manifestations of the unfolding of personality, in addition to the right to physical and mental integrity or to freedom of movement (…). The free unfolding of personality is also guaranteed among others by the constitution right to economic freedom, which contains in particular the right to choose a profession freely and to access and exercise an occupational activity freely (Art. 27 (2) [SFC]).Footnote 87
Furthermore, it noted that the personality right “is not protected merely against infringement by the state but also by private persons (Art. 27 (2) [SCC])”.Footnote 88 Accordingly, the Court held that “[t]he threat of an unlimited occupation ban (…) constitutes an obvious and grave encroachment in the Appellant’s privacy rights and disregards the fundamental limits of legal commitments as embodied in Art. 27 (2) [SCC]”. As a result, the CAS award in this case “contains an obvious and grave violation of privacy and is contrary to public policy (Art. 190 (2) (e) PILA)”.Footnote 89
In TF 4A_304/2013 of 3 March 2014, the SFT reaffirmed that “a violation of a player’s personality rights may be contrary to substantive public policy”, and that “a worker may have legitimate interest to carry out his profession effectively in order to avoid losing his value on the employment market and jeopardizing his professional future; this is particularly true for professional football players”. In other words, the SFT confirmed that the athletes could argue a violation of personal freedom (Article 10 (2) SFC and Art. 27 (2) SCC) in the context of economic freedom (Article 27 (2) SFC).Footnote 90
Thus it follows that the athletes may claim a violation of substantive public policy under Article 190 (2) (e) PILA in the context of Articles 10 (2) and 27 (2) of the SFC as well as Article 27 (2) SCC concerning the freedom of movement and economic freedom. In other words, young athletes may have access to the SFT due to a violation of the personal freedom derived from private individuals (Article 27 (2) SCC)Footnote 91 in the context of freedom of movement (Article 10 (2) SFC)Footnote 92 and economic freedom (Article 27 (2) SFC) Footnote 93.
On that basis, it appears to me that this situation may lead to another issue that the athletes might claim a violation of the freedom of the exercise of professional and business activities under Article 8 of the Convention.Footnote 94
The SFT specified that Article 10 (2) SFC “entails all liberties constituting the elementary manifestations of the unfolding of personality, in addition to the right to physical and mental integrity”Footnote 95 and “[t]he free unfolding of personality is not protected merely against infringement by the state but also by private persons” under Article 27 (2) SCC.Footnote 96 The violation of their personal freedom under Article 10 (2) SFC arises out of all interventions in human bodies.Footnote 97 In this context, the athletes might claim a violation of the right to physical and mental integrity under Article 10 (2) SFC and Article 27 (2) SCC before the SFT.
More importantly, in Michel Platini c. Suisse, the ECtHR accepted the applicability of Article 8 of the Convention on the grounds that “the claimant is not explicitly referred to the Swiss Federal Tribunal under Article 8, but that he has invoked an infringement of his personal rights (Article 27 SCC) and his economic freedom. The Court therefore considers that [the applicant] has exhausted, in substance, domestic remedies”.Footnote 98 Therefore, young athletes can claim a violation of their right to physical and mental integrity due to the deprivation of professional activities and earnings under Article 8 of the Convention before the ECtHR on the ground that they lost their earnings on account of the decisions by the dispute resolution system in sport. Thereby, it is difficult for young athletes to argue the violation of their rights due to the physical and sexual abuse by their coaches in light of Michel Platini c. Suisse.
However, the notion of public order would be perfectly matched for the evolutive interpretation of the ECHR so that it is necessary to observe the subsequent evolution of the interpretation of this notion.Footnote 99 In this sense, it seems to me that young athletes may complain about a violation of their rights to physical and mental integrity under Article 10 (2) SFC and Article 27 (2) SCC due to physical and sexual abuse by their coaches in light of Article 8 of the Convention. This is because there is still a possibility for them to prove that they lost their professional activities and earnings due to physical and sexual abuse by their coaches. Under this logic, they may claim a violation of their rights to physical and mental integrity under Article 10 (2) SFC and Article 27 (2) SCC due to physical and sexual abuse by their coaches in light of Article 8 of the Convention. However, it is necessary to wait until the SFT evolves the interpretation of substantive public policy under Article 190 (2) (e) PILA including young athletes’ rights to physical and mental integrity in the context of physical and sexual abuse by their coaches.
Furthermore, it should be noted that Switzerland should not be held responsible for a violation of Article 8 of the Convention that occurred in another Contracting State. For example, if sporting clubs in the UK violated the right to physical integrity of young athletes under Article 8 of the Convention due to child sexual abuse, the British government should be responsible for the violation and take a regulatory and preventive measure to protect the athletes. Thus, even if the athletes can theoretically claim a violation of the right of physical and mental integrity under Article 8 of the Convention, Switzerland should be held responsible for the violation of Article 8 only if the violation occurred in its own territory.Footnote 100