1 Introduction

Most of the international sports federations (“IFs”) have their seat in Switzerland as well as the International Olympic Committee (“IOC”) and the Court of Arbitration for Sport (“CAS”). Therefore, many principles of Swiss law apply to the functioning and the making-decision process of these organisations. Swiss law is perceived as neutral and consistent, which leads to its frequent voluntary application in the contractual sports area. Below, we will explain the main ways in which Swiss law applies to international sport. We will also develop the most significant principles of Swiss law frequently applied (i.e., Swiss association law, contract law, international private law and the particular protection of legal personality). In connection with these developments, we will demonstrate the link between the global application of this legal framework and the necessity of equality of treatment among competitors.

2 When does Swiss law apply in the context of international sport?

Below, we will describe when does Swiss law applies in every international sporting relation or proceedings. Basically, Swiss law can be found “nearly everywhere”. The prevalence of Swiss law can be seen as a necessity to ensure equal treatment of every athlete around the world.

2.1 Swiss association law as the legal framework for international sports federations

The most widely used legal entity for IFs is the “association under Swiss law”. The liberal nature of statutory provisions applicable to associations in Switzerland is the main reason for the popularity of this legal form.Footnote 1 Also, the proximity with the seat of the IOC (Lausanne) is a key factor for the establishment of IFs’ seats in Switzerland.

So the vast majority of IFs have their seat in Switzerland and are formed as “association under Swiss law” according to Articles 60 ff Swiss Civil Code (“SCC”), such as the International Federation for Equestrian Sports (“FEI”), the International Basketball Federation (“FIBA”), the International Chess Federation (“FIDE”), the International Fencing Federation (“FIE”), the Fédération Internationale de Football Association (“FIFA”), the International Gymnastics Federation (“FIG”), the International Hockey Federation hockey (“FIH”), the Fédération Internationale de Motocyclisme (“FIM”), the International Ski and Snowboard Federation (“FIS”), the International Volleyball Federation (“FIVB”), the International Boxing Association (“IBA”), the International Bobsleigh and Skeleton Federation (“IBSF”), the International Golf Federation (“IGF”), the International Handball Federation (“IHF”), the International Ice Hockey Federation (“IIHF”), the International Judo Federation (“IJF”), the International Skating Union (“ISU”), the International Table Tennis Federation (“ITTF”), the International Weightlifting Federation (“IWF”), the International Cycling Union (“UCI”), the United World Wrestling (“UWW”), World Archery, World Aquatics, the World Bridge Federation (“WBF”), the World Baseball and Softball Confederation (“WBSC”), the World Curling Federation (“WCF”), World Rowing and World Triathlon.Footnote 2 Besides, the IOC is also an association under Swiss law,Footnote 3 as well as other important international sports organisations such as the Association of National Olympic Committees (“ANOC”), the Association of IOC Recognised International Sport Federation (“ARISF”) and the Association of Summer Olympic International Federations (“ASOIF”).Footnote 4

Furthermore, most national sports organisations headquartered in Switzerland are established as associations governed by Swiss law. Finally, the World Anti-Doping Agency (“WADA”) is a foundation under Swiss law and is governed by Articles 80 ff SCC.Footnote 5

Consequently, and except for WADA, Swiss association law is the legal framework applicable to the functioning, the decision-making process, the hierarchy of norms and the appeal against the decisions of these organisations, although their activities are essentially international, and the competitors are predominantly not Swiss citizens.

2.2 Swiss contract law as the law chosen by the parties to a contractual relationship

Swiss law is frequently chosen as the law applicable in relation to sporting events agreements between IFs and host cities. For example, Article 51.1 of the IOC Host City Contract 2024 Paris states that the “contract is exclusively governed by the substantive, internal laws of Switzerland”. The FIS and the IHF include also similar clauses in their contracts for the organisation of sporting events.Footnote 6

Besides, when a contract involves parties from different countries (i.e. transfer agreements in team sports), Swiss law is often chosen as a neutral and fair law (as well as the law that governs the IF). A large amount of transfer agreements, loan agreements or economic rights participation agreements (ERPA) in football show a prevalence of Swiss law as the law applicable to the contract, although often no parties come from Switzerland.

2.3 Swiss international private law as the lex arbitri for CAS proceedings

According to Article 176(1) of the Federal Act on Private International Law (“PILA” or “PILS”), “the provisions of [Chapter 12 PILA] apply to arbitral tribunals that have their seat in Switzerland”. In view of R28 CAS Code 2023, the seat of CAS and each Arbitration Panel is Lausanne (Switzerland), even when CAS acts in ad hoc divisions and, in any event, irrespective of the domicile of the arbitrators or where the hearing actually takes place.Footnote 7 As a result, Chapter 12 PILA, related to International Arbitration, is applicable for every procedure before the CAS as the lex arbitriFootnote 8 (i.e., the law governing the procedure before arbitral tribunal).

The provisions contained in this chapter cover in particular the following topics: the concept of international arbitration,Footnote 9 the arbitrability of the dispute,Footnote 10 the arbitration agreement,Footnote 11 the powers of the supporting judgeFootnote 12 and the law applicable to the merits.Footnote 13 The appeal against CAS awards must only be made before the Swiss Supreme Court (“SSC”).Footnote 14 The grounds for appeal before this court can be found in Article 190(2) PILA.Footnote 15

2.4 Swiss law as the law applicable to the merits

2.4.1 Before the internal bodies of international sports federations

Swiss law often applies before IFs’ internal bodies. For example, World Rowing provides that their ‘judicial bodies […] shall apply Swiss law and the rules of the Swiss federal procedure’.Footnote 16 Similarly, the FEI states that, before the FEI Tribunal, ‘[a]ll disputes shall be settled in accordance with Swiss law’.Footnote 17 In short, Swiss law often already applies before IFs’ internal bodies, at least subsidiarily, either by a special provision in their regulations or by the fact that their seat is situated in Switzerland.

2.4.2 Before the Court of Arbitration for Sport

Nowadays, almost all IFs include an arbitration clause in favour of CAS in their statutes (IFs withFootnote 18 or withoutFootnote 19 their seat in Switzerland). In addition, IFs often include an arbitration clause in their contractual relationships with athletes.Footnote 20 The exclusivity of CAS’ jurisdiction depends on the extent of every arbitration clause.Footnote 21 Also, in relation to doping cases and following Article 13.2.1 WADA World Anti-Doping Code 2021, “[i]n cases arising from participation in an International Event or in cases involving International-Level Athletes, the decision may be appealed exclusively to CAS”.

To determine the law applicable to the merits before CAS, it is necessary to look at the lex arbitriFootnote 22 (Chapter 12 PILA, as explained above). The fact that the seat of the arbitration is situated in Switzerland does not necessary imply that Swiss law will apply to the merits of the dispute.Footnote 23 Following Article 187(1) PILA, “[t]he arbitral tribunal shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to the rules of law with which the case has the closest connection”.Footnote 24 Swiss arbitration law is particularly liberal (arbitration-friendly) and flexible.Footnote 25 Articles 187(1) PILA, R45 and R58 CAS Code 2023 allow the parties to choose non-state law,Footnote 26 with a private originFootnote 27 (i.e., the regulations of an IF), as the law applicable to the merits.Footnote 28

Regarding R45 CAS Code 2023, for ordinary proceedings, “[t]he Panel shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law”. This article demonstrates the prevalence of the party autonomy, as such as Swiss law.Footnote 29 The choice of law is “direct” when the parties expressly submit the contract to a specific law or set of rules of law. Conversely, the choice is “indirect” when the parties in the main contract refer to the applicable regulation or a “conflict-of-law” provision which, in turn, contains a governing law provision.Footnote 30

Following R58 CAS Code 2023, for appeal proceedings, “[t]he Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate”. This article shows the importance of the applicable regulations as the rules of law chosen by the parties.Footnote 31 IFs’ statutes incorporate this system by specifying that, firstly, their rules are applicable and, subsidiarily, Swiss law applies, especially for FIFA, IBA, IHF and IIHF.Footnote 32 In these examples, Swiss law is as a result used to fill gaps in the regulationsFootnote 33 or to interpret them.Footnote 34 In addition, to support the importance of Swiss law, CAS jurisprudence stated that “[w]hen the rules and regulations of FIFA are to be applied primarily and Swiss law complementarily, there is no place for the application of the rules of another national law […]”.Footnote 35

Swiss law has a predominant significance before the CAS since Swiss law applies frequently in a subsidiary manner.Footnote 36 Besides, Swiss law is applicable even when the dispute has no relation with Switzerland, whenever parties cannot agree on applicable law.Footnote 37

Application of Chapter 12 PILA and R58 CAS Code 2023 enables a uniform application of the law and allows equality between athletes regardless of their domicile.Footnote 38 For example, every gap in FIFA’s regulations or interpretation of a rule refers to Swiss law in the same way for every football player across the world.Footnote 39 The same rules will be applied in the same way by CAS, regardless of the nationality of the parties.Footnote 40 If two parties could choose their national jurisdiction to settle a dispute, the same sports regulations would probably be applied and interpreted in a different way by every national jurisdiction regarding every specificities of their legislation.Footnote 41 The aim of a consistent and egalitarian international sport system would not be conceivable with such discrepancies.

2.4.3 Before Swiss courts

In accordance with Article 75 SCC, all final decisions of an association under Swiss law can be challenged before a judge. If the Statutes of the IF do not contain any arbitral clause in favour of CAS, decisions of this organisation may be challenged before Swiss cantonal courts. Some IFs have explicit provisions related to the competence of these ordinary courts, in particular FEIFootnote 42 and FIDE.Footnote 43 In a different way, IOC has a very limited arbitration clause that implies a broad residual competence for ordinary courts.Footnote 44 For all cases before Swiss civil courts, the judges will apply Swiss law.Footnote 45

3 Which rules and principles of Swiss law apply in the context of international sport?

3.1 Swiss association law

The association is the Swiss legal entity with the broadest freedom,Footnote 46 due to a large degree of autonomy.Footnote 47 Basically, the associations have a freedom of constitution, a freedom of decision and a freedom of organisation.Footnote 48 However, there is one main economic constraint imposed on associations: having an ideal purpose.Footnote 49 So IFs cannot distribute their profits and must re-invest them in the pursuit of the association’s ideal purpose(s).Footnote 50

According to Article 63(2) SCC, “[m]andatory provisions of law cannot be altered by the articles of association”. In other words, association’s autonomy is limited by mandatory provisions of law.Footnote 51 If an associative rule (statutes or any other regulations) violates mandatory law, this rule is unlawful and cannot be applied.Footnote 52 If there is a lack of information in the association’s rule on a specific issue, the dispositive law shall apply.Footnote 53 In any other cases, association’s rules and regulations are applicable.Footnote 54

Also, all rules enacted by sports organisations may not derogate from the mandatory rules of the Swiss Civil Code orthe general principles of law (i.e., legality, equal treatment, prohibition of discrimination and proportionality),Footnote 55 be contrary to good morals or public policy, unlawfully affect the personality of its membersFootnote 56 or violate competition law.Footnote 57 If a rule violates these various limitations, it is null and void.Footnote 58

3.2 Swiss contract law’s general principles

CAS’ Panels often apply general principles of Swiss contract law in contractual disputes. The rule regarding the interpretation of contracts is one of the most important. Article 18(1) Federal Act on the Amendment of the Swiss Civil Code (The Code of Obligations, “SCO”) states that “the true and common intention of the parties must be ascertained without dwelling on any inexact expressions or designations they may have used either in error or by way of disguising the true nature of the agreement”. The common intention of the parties must prevail on the literal wording of a clause.Footnote 59 When the common intention cannot be established, the interpretation must be made according to the requirements of good faith (principle of trust and confidence): “the judging body has to seek to determine how a declaration or an external manifestation by a party could have been reasonably understood depending on the individual circumstances of the case”.Footnote 60

CAS applies other principles of Swiss law, in particular when the applicable sports regulations do not contain any provisions regarding specific issues: the nullity of a contract can be pronounced if an obligation is impossible or immoral (Article 20 SCO);Footnote 61 the penalty clauses can be reduced by the judge in particular circumstances if penalties are excessive (Article 163(3) SCO);Footnote 62 in employment contracts, a duty to mitigate the damage (Article 337c(2) SCO) is imposed on the employee (i.e., a coach or a player) unjustifiably fired (i.e., by searching new opportunities to work elsewhere).Footnote 63

In addition, some regulations are inspired by Swiss contract law. Article 17(1) of the FIFA FIFA Regulations on the Status and Transfer of Players (“RSTP”) 2022 regarding the consequences of terminating a contract without just cause (breach of contract) closely follows the system of Swiss labour law (Article 337b and 337c SCO) as noted by some CAS’ Panels.Footnote 64 In relation to labour law, a CAS Panel applied Swiss contract law (Article 319 SCO) because the FIFA regulations “do not provide a set of rules governing the conclusion of an employment agreement”.Footnote 65 Moreover, the FIFA RSTP itself is, as noted by Haas, “based on a normatively shaped preconception, which derives from having a look at Swiss law”.Footnote 66 This author lists the situations in which the Panels must refer to Swiss law in connection with the FIFA RSTP: the determination of a “just cause”, the calculation of the damage under Article 17(1) FIFA RSTP 2022 and the potential reduction of this damage.Footnote 67

Besides, the CAS Panel in Valcke’s award stated that “applicable Swiss law is merely intended to clarify that the FIFA regulations are based on a normatively shaped basis, deriving from Swiss law, and that any matter that is not covered by FIFA regulations must be decided in accordance with Swiss law” and “[c]onsequently, the purpose of the reference to Swiss law […] is to ensure the uniform interpretation of the standards of the football industry worldwide”.Footnote 68

As FIFA RSTP is based under Swiss law and this latter is applicable subsidiarily, almost all the relations between footballers, coaches and clubs are, in a way, “shaped” by Swiss law principles.

3.3 Swiss international private law

The seat of each Arbitration Panel for all CAS’ proceedings, pursuant to R28 CAS Code 2023, is in Switzerland, even ad hoc Division(s) which take place outside Switzerland during the Olympic Games.Footnote 69 As a result, Swiss international private law is applicable regarding Article 176(1) PILA.Footnote 70 The provisions primarily at hand within the framework of PILA are of procedural nature. After providing a brief overview of arbitrability and provisional measures, our focus will be on the grounds for appeals against CAS awards. These rules of law pertain to the merits of the disputed award. It is important to note that while various other provisions of PILA may be applicable, they are not the central topic of the present article and will not be treated.

3.3.1 Arbitrability of the dispute

According to Article 177(1) PILA, “[a]ny claim involving an economic interest may be submitted to arbitration”. The notion of arbitrability in Swiss international private law is wide. For example, disputes related to labour law are arbitrable.Footnote 71 Since Article 177 PILA is applicable for every disputes before CAS, the concept of arbitrability of the national countries of athletes, clubs or sport’s governing bodies plays has no influence.Footnote 72 So Swiss law (PILA) ensures that all competitors around the world can bring the same type of disputes before CAS, in an equal way and irrespective of their nationality.

3.3.2 Provisional measures

Swiss arbitration law allows, contrary to other national law, the granting of provisional measures by the arbitral tribunal in view of Article 183(1) PILA.Footnote 73 Before CAS, R37 CAS Code 2023 provides for the CAS’ Panels jurisdiction in relation to provisional measures. Three elements are considered: 1) the necessity to protect the applicant from irreparable harm, 2) the likelihood of success based on the merits and 3) whether the interests of the Applicant outweigh those of the Respondent(s).Footnote 74 This gives every athlete irrespective of their domicile the possibility to ask for provisional measures before CAS without state courts’ intervention.Footnote 75 The access to provisional measures, fundamental to guarantee the efficient running of sports competitions, is thus accessible to all to guarantee equal treatment. Besides, at least theoretically, no athlete can obtain an advantage through national provisional measures decision due to supportive state courts.Footnote 76

3.3.3 Grounds for appeals against CAS awards – the substantive public policy

One of the particularities of the Swiss judicial system that makes it popular for international arbitration is that there is no double degree of jurisdiction.Footnote 77 The only appeal authority that can set aside a CAS award is the SSC.Footnote 78 As pointed out by Casini, the SSC is the closing gate of all the system.Footnote 79 In addition, the chances of success are very low,Footnote 80 for instance 10% in sporting matters.Footnote 81 Again, this allows an equal treatment between parties to CAS’ arbitrations,Footnote 82 because no one is more (or less) protected by his/her/its national jurisdiction. Below, we will only analyse the substantive public policy as a ground to annul a CAS award (Article 190(2) PILA), because the other grounds are formal and are not specific to sporting issues. The substantive public policy of Article 190(2)(e) PILA is an autonomous concept.Footnote 83 It is the only ground to challenge an award on its merits.Footnote 84 As a result, the athletes can only assert all their rights before CAS.Footnote 85

An award can be set aside, regarding the substantive public policy, “if it disregards those essential and broadly recognised values which, according to the prevailing values in Switzerland, should be the founding stones of any legal order”.Footnote 86 The award must not only violates the substantive public policy in its reasons, but in the result of the decision.Footnote 87 This concept is interpreted in a very narrow way by the SSC.Footnote 88 This ground is more restrictive than the arbitrariness, which can only be claimed in internal arbitration before the SSC.Footnote 89

The original function of Article 190(2)(e) PILA is to provide a minimum quality of international arbitral award.Footnote 90 It ensures that no protection is offered to situations that violate the most essential principles of the legal system in a shocking way.Footnote 91

The following rules and principles are included in the substantive public policy: the principles of good faith and abuse use of rights,Footnote 92pacta sunt servanda,Footnote 93ne bis in idemFootnote 94 and res judicata,Footnote 95 the protection against serious violation of personality rightsFootnote 96 and the protection of human dignityFootnote 97 and against discriminatory measures.Footnote 98 In sport, an award also violates the substantive public policy if it is manifestly or grossly unfairFootnote 99 or grossly disproportioned.Footnote 100

On the contrary, the following grounds are not part of the substantive public policy of Article 190(2)(e): a violation of the Swiss ConstitutionFootnote 101 or the European Convention on Human Rights (“ECHR”),Footnote 102 an incorrect application of mandatory law,Footnote 103 a simple conflict between the contested award and the various norms of Swiss law,Footnote 104 a violation of EU competition law,Footnote 105 a simple contradiction in the award,Footnote 106 an inconsistency of the ruling of an award,Footnote 107 a manifestly erroneous finding of fact,Footnote 108 a manifestly incorrect assessment of evidence,Footnote 109 an obvious wrong establishment of the facts,Footnote 110 the Panel ignoring a regulationFootnote 111 or the principle of strict liability in doping.Footnote 112 Most importantly, the interpretation of statutes and regulations and its legal consequences cannot be challenged.Footnote 113 The SSC has left open the question of whether the principles of non-retroactivity, lex mitior and the prohibition of reformation in pejus are part of the substantive public policy.Footnote 114

3.4 Swiss interpretation of sports regulations’ method

Frequently, the Tribunal must interpret sports regulations to make a decision. According to the SSC’s jurisprudence, for the statutes of major sporting organisations such as UEFA, FIFA or the IAAF (currently World Athletics), the method of interpretation of the law must be used.Footnote 115 The same is applicable to determine the exact meaning of other sports regulations.Footnote 116

In a recent decision regarding the interpretation of FIFA regulations in the Cardiff City FC v FC Nantes case, the SSC made a detailed overview of this method of interpretation, i.e.,: “Any interpretation begins with the letter of the law (literal interpretation), but this is not decisive: we still have to find the true scope of the norm, which also derives from its relationship with other legal provisions and its context (systematic interpretation), the aim pursued, particularly the protected interest (teleological interpretation), as well as the will of the legislator as it may be understood from the ”travaux préparatoires” (historical interpretation). The judge departs from a clear legal text only when the aforementioned methods of interpretation show that this text does not correspond in all respects to the true meaning of the provision in question and leads to results which the legislator could not have wanted, which conflict with the sense of justice or the principle of equal treatment. In short, the Federal Tribunal does not favor any method of interpretation and does not establish a hierarchy, based on a pragmatic pluralism to seek the true meaning of the norm”.Footnote 117

CAS jurisprudence refers to SSC’s and apply the above method to interpret sports regulations.Footnote 118 Lately, the CAS Panel in Sport Lisboa e Benfica SAD v FIFA case interpreted Article 18bis RSTP with this same method of interpretation.Footnote 119

As a result, before CAS Panel and the SSC, the Swiss method of interpretation of the law is used to interpret sports regulations. It particularly important because interpretation of sports regulation(s) is often a major issue in sporting disputes. Here again, it is the principles of Swiss law that have an utmost influence on the final decision.

4 Protection of legal personality as the core principle of sports law

4.1 Introduction

The protection of legal personality has a fundamental role for professional athletesFootnote 120 and is effective against everyone.Footnote 121 The legal personality (Articles 27 and 28 SCC) acts as a limit to the autonomy of Swiss associations,Footnote 122 such as most of the IFs.Footnote 123 Therefore, and as repeatedly stated by the SSC, the rules and decisions of association cannot breach the legal personality of athletes (or clubs and national federations).Footnote 124

As pointed out by Kaufmann-Kohler and Rigozzi, the civil law concept of legal personality is comparable to the common law equivalent of human rights applied between private entities.Footnote 125 There is a strong spiritual connection and common goal between these two concepts.Footnote 126 For example, the right to respect private and family life (Article 8(1) ECHR) includes the civil law protection of physical integrity, respect for the private life and honour of every person.Footnote 127 The ECHR has also an influence over the legal personality when the latter is interpreted in relation to the case law of the European Court of Human Rights (“ECtHR”).Footnote 128 The way these two concepts operate is quite similar: a violation of the legal personality or human rights is not per se unlawful but needs to be justified by supporting grounds. However, the main difference is that human rights are applicable between private and public entities while the rights attached to legal personality in Swiss law are only applied between private persons.

4.2 Protection of legal personality against excessive restriction (Article 27(2) SCC)

According to Article 27(2) SCC, “[n]o person may surrender his or her freedom or restrict the use of it to a degree which violates the law or public morals”. Therefore, the parties to a contractual relationship cannot dispose of their freedom in a manner contrary to morality.Footnote 129 This legal basis is comparable to the American legal concept of “unconscionability”,Footnote 130 or the English law concept of “inequality of bargaining power”. Basically, this Article leads to a limit in the contractual freedom by prohibiting any excessive self-commitment.Footnote 131 The excessive nature of the restriction depends on several factors, such as the intensity or the duration of the commitment.Footnote 132 If the commitment is found to be excessive, it will be considered null and void.Footnote 133

As mentioned in the Matuzalem case before the SSC, the limits to legal commitments due to the protection of privacy do not apply only to contractual agreements but also to the statutes and decisions of legal persons.Footnote 134 Thus, and as mentioned in Valcke’s award, the autonomy of the IFs formed as a Swiss association is not absolute and is in particular limited by Article 27(2) SCC.Footnote 135 Basically, any rule of an IF that is excessive, unusual or too vague may violates Article 27(2) SCC. This is particularly true because, given the monopolistic position of the IFs, the athletes have no real choice to agree to the statutes and rules of these associations to participate in sporting competitions. Their consent is not totally free.Footnote 136

4.3 Protection of legal personality against infringements (Article 28 SCC)

4.3.1 Introduction

Following Article 28(1) SCC, “[a]ny person whose personality rights are unlawfully infringed may petition the court for protection against all those causing the infringement”. Therefore, every person has the right to go to court against the person who participates in the infringement of their personality rights (droits de la personnalité).Footnote 137 The protection of Article 28 SCC is only available for relations under private law.Footnote 138 Private persons and legal entities can use this article to protect their personality rights.Footnote 139 Athletes, clubs and sporting organisations, such as national federations, are protected by this legal concept.Footnote 140 For athletes, it is a very powerful way to protect their rights against statutes, rules and decisions of IFs.Footnote 141

4.3.2 Athletes’ personality rights

Case law and legal authors mentioned the main rights of the professional athletes, for example the right to good health and bodily integrity’s protection (i.e., infringed by an antidoping blood test), the right to protect their honour (i.e., infringed by a decision of suspension for doping) and the right to the economic development and the fulfilment through the sport (i.e., infringed by the refusal of a licence/transfer or a suspension).Footnote 142 In addition, an important right is the possibility to take part in sporting competitions of an appropriate level, which is consistent with the level of the athlete.Footnote 143 In a correlated way, Schmid points out the essential right to participate and win with fair and equal means,Footnote 144 in other words, the right to a level playing field between the contestants.Footnote 145 In sport, Baddeley categorises the different rights of the athletes in four groups: the physical integrity, the fulfilment by the sporting activity, the professional freedom and the respect for private life.Footnote 146

As mentioned above, all these rights can be affected by rules or decisions of the sporting organisation, especially disciplinary sanctions, which can infringe the honour, the private life and the professional and economic freedoms.Footnote 147 The economic rights can also be affected by a suspension which can lead to a diminution of the salary, bonuses and sponsoring revenues of the athletes.Footnote 148

In summary, every athlete across the world, regardless of their nationality, is protected against unlawful infringement of his/her personality rights if he/she is a direct or an indirect member of an IF incorporated as an association under Swiss law.

4.3.3 Justifying reasons for the violation of personality rights

According to Article 28(2) SCC, “[a]n infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law”. In these cases, the victim will have to live with the harm suffered.Footnote 149 Thus, the effect of the justifying reasons is to exclude the unlawfulness of the infringement (and to make it lawful).Footnote 150

The term “law” described in this Article refers to specific state law and does not include the regulations of an association.Footnote 151 In Switzerland, no law is relevant in the context of sport (except Article 21(1) of the Swiss Federal Act on the Promotion of Sport and Exercise of 17 June 2011, in relation to doping controls) and no law allows sporting organisations to impose sanctions.Footnote 152

Regarding the consent of the athletes, the specific system and organisation of international sport must be addressed. Following the famous Cañas case before the SSC, professional sport is characterized by a highly hierarchical structure.Footnote 153 The SSC precises that in most cases, an athlete does not really have a free choice over his/her federation. He/she will have no choice but to accept the rules if he/she wants to participate in sporting competitions.Footnote 154 As a result, and regarding the participation in sporting competition, the consent is not real and free because of this subordinate position. The voluntary participation of athletes in competitive sport could be perceived as a consent to certain limitations of their personality rights. However, the extent of this consent and the complete submission to regulations, including references to additional regulations, may be regarded as excessive in view of Article 27(2) SCC.Footnote 155

The essential analysis in relation to personality rights in sport is the potential public or private interest which could override the private interest of the victim of the infringement.Footnote 156 This interest may justify the infringement of the personality rights.Footnote 157

The public interest is an interest that provides a benefit to the society or to a plurality of people.Footnote 158 The fight against doping is probably the most obvious example of a public interest. In the Old Cat case, the SSC stated that doping regulations are justified by the protection of a level playing field and the loyalty of competitions, the protection of the health of the contestants and the formative function of sport.Footnote 159 The ECtHR also recognized the public interest of antidoping regulations in relation to health, fair play and level playing field in sport.Footnote 160 Some authors points out other public interests such as the protection against prohibited and dangerous substances,Footnote 161 the protection of the other athletes,Footnote 162 the reputation of sport for young people,Footnote 163 and the pedagogical virtues of sport.Footnote 164

Some private interests developed in case law can be mentioned, such as the interest for an IF to avoid the proliferation of National Olympic Committees located on the territory of non-recognized States,Footnote 165 or the interest to avoid nation shopping or mercenaries by sporting nationality rules.Footnote 166 The private interest can also be in relation to the victim of the infringement, for example his/her health protection by antidoping rulesFootnote 167 or by the categorisation in fighting sports like boxing.Footnote 168 Moreover, rules can be enacted to protect the reputation and the credibility of the sport with the public and sponsors.Footnote 169

When a public or private interest is identified, the judge or the Panel must make a balance between the interests involved, namely, on the one hand, the victim’s interest in not being harmed and, on the other hand, the offender’s interest to achieve its objective.Footnote 170 More concretely, the interest of the sporting organisation to sanction an athlete must override the interest of the athlete to not be affected in his/her personality rights.Footnote 171

The principle of proportionality is very important in Swiss law.Footnote 172 The SSC has on several occasions stated that proportionality must be observed by the organisation which imposes a sanction.Footnote 173 Thus, an evidently and grossly disproportionate decision must be overturned.Footnote 174 In CAS jurisprudence, it is recognised that the principle of proportionality must be applied to disciplinary sanctions decided by associations under Swiss law.Footnote 175 In competitive sport, Article 28 SCC can be used to challenge disproportionate disciplinary sanctions.Footnote 176 A decision must be appropriate and necessary to reach the objectives of the sporting organisation.Footnote 177

4.4 Consequences of an infringement of personality rights

If a sporting regulation violates unlawfully the protection of personality rights, it will be declared null and void.Footnote 178 The same is true for every rule which infringes Article 27(2) SCC regarding excessive restriction of the legal personality.Footnote 179 Similarly, every decision of an IF which infringes the legal personality will also be declared null and void.Footnote 180 The compatibility of the sporting regulations with the legal framework can normally be reviewed before CAS, as in the Semenya case.Footnote 181

4.5 Protection of legal personality as part of the substantive public policy before the Swiss Supreme Court

4.5.1 Swiss Supreme Court case law

CAS awards can be challenged before the SSC in view of Articles 190 PILA and 77 of the Federal Supreme Court Act. The only ground to contest a decision on the merits is the incompatibility with the substantive public policy of Article 190(2)(e) PILA.Footnote 182

According to the SSC, Article 27(2) SCC related to the protection of legal personality against excessive commitments is included in the concept of substantive public policy of Article 190(2)(e) PILA.Footnote 183 However, a violation of this Article is not automatically contrary to the substantive public policy and it is necessary to be confronted to an obvious and severe case of fundamental right’sFootnote 184/legal personality’s violation.Footnote 185 A commitment is excessive regarding Article 27(2) SCC if it exposes a party to the arbitrariness of his contracting partner, deprives him of his economic freedom or limits it to such an extent that the basis of his economic existence is endangered.Footnote 186 Basically, and in relation to disciplinary sanctions, a CAS award may be set aside if it leads to a manifestly unfair result or a shocking iniquity.Footnote 187

Discriminatory measures that unlawfully infringes the legal personality (because taken solely on the grounds of sex, race, state of health, sexual orientation, religion, nationality or political opinion) may violate the substantive public policy.Footnote 188 The principle of prohibition of discrimination has been invoked several times recently, but the SSC interpreted it in a very narrow way.Footnote 189 More importantly, and following the order of the SSC in the Semenya case, the SSC stated, firstly, that it is doubtful that the restrictive notion of public policy comprises discriminatory measures when it is a private relationship (i.e., between an IF and an athlete).Footnote 190 Then, in its final decision, it leaves open this issue by pointing out that the CAS award in this case does not establish any discrimination that is contrary to substantive public policy.Footnote 191 The ECtHR in the Semenya case recently held that Switzerland, through the SSC, has a duty to prevent and remedy discriminatory practices, even if they arise from private persons or entities.Footnote 192

In addition and according to the SSC’s case law, a violation of the Swiss ConstitutionFootnote 193 or the ECHRFootnote 194 is not a ground to challenge a CAS award. Nevertheless, it can be pointed out that certain human rights guaranteed by the ECHR are part of the public policy, along with the protection of human dignity.Footnote 195 Moreover, the protection of Article 27(2) SCC is an implementation of the constitutional right of personal freedomFootnote 196 and is very close to Article 8 ECHR related to the right to respect for private and family life.Footnote 197

In 2012, the SSC admitted an appeal made by Francelino da Silva Matuzalem (a Brazilian football player) against a CAS award.Footnote 198 The Matuzalem case is special and important because it is the first and, for the moment, the last decision of the SSC, which has set aside an award relating to international arbitration for violation of substantive public policy (in this case, a severe violation of Article 27(2) SCC).Footnote 199 Basically, this decision stated that the goal of FIFA to enforce the principle that contracts must be kept (pacta sunt seranda) is much less important, on the balance of interests, than a potential indefinite and unlimited professional ban of a player from his/her sport.Footnote 200 In other cases, the SSC stated that the following CAS awards are not contrary to the substantive public policy in relation to Article 27(2) SCC: a two-year suspension of a football player for doping,Footnote 201 a five-year ban of a football player for match-fixing,Footnote 202 the Valcke’s ten-year ban from all football-related activities in relation to its role in issues related to FIFA administrationFootnote 203 or the life ban from any kind of football-related activity of the former president of the Brazilian football federation.Footnote 204

4.5.2 Observations

It appears that the possibilities to set aside a CAS award before the SSC based on the merits is almost impossible.Footnote 205 Thus, some authors suggest broadening the concept of the substantive public policy of Article 190(2)(e) PILA,Footnote 206 to improve the guarantee of minimum standards of quality of CAS awards.Footnote 207

The substantive public policy should be interpreted differently depending on the area.Footnote 208 In the Cañas case, the SSC have accepted to approach the international sports arbitration in a different way in relation to the renunciation of appeal before the SSC.Footnote 209 So, the SSC could apply the same reasoning to widen the concept of the substantive public policy for international sports arbitration.Footnote 210 This would lead to a better protection of the legal personality or the essential rights of athletes and clubs,Footnote 211 and set aside potential grossly unfair CAS decisions.Footnote 212 Unfortunately, the SSC recently stated, again, that even though the particularities of sports arbitration have been considered in relation to specific procedural issues like the renunciation of appeal, it does not want to create a genuine lex sportiva by its case law,Footnote 213 instead of the CAS whose role it is.

Another important point could be to consider a specific sporting public policy (“ordre public sportif”), which could include, for example, the fundamental principles of fair-play or level playing field between competitors,Footnote 214 and would necessitate a protection, even before the SSC.

A wider control of CAS awards based on the merits could encourage CAS Panels to be more rigorous.Footnote 215 Indeed, these Panels, for now, know that their awards will only be set aside on the merits if they violate the substantive public policy of Article 190(2)(e) PILA, which is a very unlikely possibility. A more extensive control (more than just illusory),Footnote 216 could improve the quality of CAS awards and protect in a better way the athletes.

In the recent Semenya case, the ECtHR held that although limited power of review by the SSC could be justified in commercial arbitration, where the parties are on an equal footing, it raises more concerns in sports arbitration.Footnote 217 The SSC’s decision, limited to an analysis of substantive public policy, was considered in this case as a violation of the right to an effective remedy (Article 13 in relation to Article 14 combined with Article 8 ECHR).Footnote 218 In particular, the ECtHR stated that, due to the very restrictive ground of substantive public policy, the SSC did not effectively address the allegations of discrimination, which must be analyzed between private entities, too.Footnote 219 If this decision is not overturned by a possible decision of the Grand Chamber (Article 43 ECHR), it should lead to some difficulties for appeals against CAS decisions to be reviewed by the SSC. Either the SSC will have to interpret its concept of substantive public policy in a broader manner to incorporate more efficiently (directly or indirectly) certain rights provided by the ECHR (for example principles deriving from Article 8 ECHR), or this more extensive power will have to emerge from a legislative modification.Footnote 220

5 Conclusions

It clearly appears that Swiss law is of a fundamental importance in the context of international sport. Firstly, by the fact that many IFs have their seat in Switzerland and are submitted to Swiss association law. Secondly, because Swiss law is often chosen as the law applicable to contracts, even when no parties are Swiss. Thirdly, Swiss law is to a large extent the law applicable subsidiarily to disputes, significant to interpret regulations or fill gaps in them. Fourthly, Swiss law may also be an inspiration for sports regulations, such as the FIFA RSTP (from Swiss labour law) or the CAS Code (from Chapter 12 PILA). Fifthly, because Swiss private international law is applicable for every CAS’ procedure as the lex arbitri (i.e., regarding questions of arbitrability, provisional measures and law applicable to the disputes or grounds for appeal against CAS awards).

As a conclusion, what appears from this article is that the impact of Swiss law in international sport has a wide positive effect to protect the equal treatment between athletes and the level playing field in competitions. The lex arbitri (Chapter 12 PILA) provides this through a uniform and sports-friendly procedural regime. Moreover, the law applicable to the dispute can be the sports regulations (regarding Article 187 PILA), a non-state law, which permit to offer an equal treatment before CAS irrespective of the country and legal system of each of the competitors. Thus, CAS can fulfil its important aim to apply the same rules in the same way to guarantee a level playing field for everybody around the world. Besides, Swiss law, as a subsidiarily law, is often applied to interpret and fulfil loopholes in sporting regulations. The law applicable will always be the same for everybody involved in the same competition in a specific sport. The grounds to appeal CAS awards are the same for all, irrespective of their country, too.

As a result, Swiss law as a whole and by its particularities, allows that the same rules apply in the same way and every party in sport has the same rights, with the essential aim of equal treatment. As stated by the ECtHR in the Mutu/Pechstein case, “[r]ecourse to a single and specialised international arbitral tribunal facilitates a certain procedural uniformity and strengthens legal certainty; all the more so where the awards of that tribunal may be appealed against before the supreme court of a single country, in this case the Swiss Federal Court, whose ruling is final”.Footnote 221

Swiss law is certainly not the perfect tool. Its application in sport might be improved, for example, in relation to the restrictive notion of substantive public policy before the SSC. However, the advantages of this system and its influence to guarantee equal treatment and a level playing field in international sport are essential. Swiss law allows a broad flexibility that lets the world of sport regulate itself while, at the same time, providing safeguards to protect athletes from the monopoly power of sports organisations. Swiss law is, as a conclusion, a flexible tool to guarantee predictability and legal security, which allows an equal treatment and level playing field in the world of sport.