Ali Riza v. Switzerland: No Jurisdiction for the Court of Arbitration for Sport?

By Dr. Cathérine Van de Graaf and Reza Khabook

In this blogpost, we zoom in on the Chamber judgment of Ali Riza v. Switzerland. Some might recognise the name of the applicant. Indeed, on an earlier occasion, M. Ömer Kerim Ali Rıza (together with three amateur football players and one referee) brought a case against Turkey to the European Court of Human Rights (ECtHR or the Court), alleging a violation of Article 6 § 1 of the Convention. In January 2020, the ECtHR concluded that the organisation of the Arbitration Committee of the Turkish Football Federation lacked sufficient safeguards to guarantee its independent and impartial functioning and, thus, found a violation of article 6 § 1. Yet, in the present judgment, a violation was not found. Instead, the Court found that the Court of Arbitration for Sport (CAS) based in Lausanne, Switzerland, had given a convincing explanation as to why it did not have jurisdiction to deal with the dispute between the applicant and his former Turkish League football club and the Federal Supreme Court of Switzerland was right in upholding this decision.

The facts of the case

In January 2008, Ömer Kerim Ali Riza left Trabzonspor, a Turkish football club, claiming he had been paid with delays, while his contract would end in June of that year. In response to his unnotified leaving, the club fined the Turkish-British football player. The dispute between Ali Riza and his club was brought before the Fédération Internationale de Football Association Dispute Resolution Chamber (FIFA DRC) which refused to intervene since both parties are of the same nationality. It also recommended that Ali Riza proceed with his case before one of the decision-making bodies of the FIFA member association concerned, in this case the Turkey Football Federation (TFF). Ali Riza did not contest the decision of DRC. In the meantime, the club decided to bring the case before the TFF’s DRC, which ruled in favour of the club. Also, as the club requested, it fined him and banned him from signing a new contract with any other club for four months.

Later, Ali Riza appealed against the TFF’s DRC’s decision before the TFF Arbitration Committee. However, the Arbitration Committee, whose decisions are binding and final, confirmed the TFF’s DRC’s decision after his appeal. Nonetheless, it reduced the amount of compensation and annulled the transfer ban. After the Arbitration Committee’s decision, the applicant brought his case to the ECtHR against Turkey, as mentioned in the introduction, and to CAS. After his application, CAS inquired whether the parties wanted to have a hearing. As the applicants stated that the hearing was unnecessary, CAS declared the case inadmissible finding the dispute was lacking an international element. It reviewed the contract between the applicant without finding any clauses on which to establish its jurisdiction.

The applicant then appealed the inadmissibility decision of CAS, based on civil proceedings, before the Federal Court of Switzerland. The applicant challenged three issues: CAS violated his right to access to court, the international element of the case is apparent (based on his British nationality), CAS did not state reasons for its decision. Additionally, he claimed that holding a hearing would have enabled CAS to find an international element of the dispute. In April 2011, the Federal Court dismissed the applicant’s appeal and confirmed the decision of CAS about the lack of international element in the case. Additionally, according to Swiss law, the court president is in full authority to order debates and, as he did not order it, it means it was not necessary. Also, since the dispute lacks an international element, the necessity of public hearing in international arbitrations does not apply to it.

Finally, the applicant lodged a complaint before the ECtHR against Switzerland. In this dispute, he alleged a violation of Article 6 by Switzerland and Turkey. He also claimed that due to the in dubio contra stipulatorem principle – in case of ambiguity any clause needs to be interpreted unfavourably towards the author –, his contract with the club should be interpreted as having an international element.

The reasoning of the Court

The applicant’s first complaint under Article 6 § 1 related to his access to court. Here, the Court found that the fact that the applicant could not exercise his right to an independent and impartial tribunal in Turkey (as found in Ali Reza and others v. Turkey), did not mean that there was automatically an obligation on Switzerland to guarantee such proceedings before a Swiss tribunal. In the end, the Court left the question of whether or not the applicant could rely on a right of access to court vis-à-vis Switzerland open, stating that there is no foundation for the alleged violation anyway (para. 83). Next, the Court considered that the restriction on the right of access to CAS pursued the legitimate aim of the proper administration of justice and the effectiveness of domestic judicial decisions.

The assessment of the Court in this case is limited to alleged errors of law where these are ‘arbitrary or manifestly unreasonable’, as the national authorities are best placed to assess what is the most appropriate policy. The Court stated that the right to access to a court is not violated by a decision that a court lacks jurisdiction when the applicant’s arguments in favour of the court’s jurisdiction have been the subject of a real and effective examination and the court has adequately substantiated the reasons on which its decision is based (para. 88). The ECtHR found that CAS discusses, in a way that is ‘extensively reasoned and detailed’^[1], the different manners in which its jurisdiction can arise based on article R47 of the Code of Procedural Rules of CAS. These three ways are: from a contract containing an arbitration clause, from a subsequent arbitration agreement, or from the statutes or regulations of a sports body providing for appeal to CAS. It found that no such arbitration clause could be found nor an arbitration agreement. Finally, CAS discussed how indeed the Regulations on the Arbitration Committee of the TFF provided for an appeal to CAS but only in cases of disputes that had an ‘international element’.

In this context, CAS clarified that indeed not the contract but the dispute ought to have an international element for it to be able to be submitted to CAS. It found that no foreign club was involved in the dispute (although the applicant had the wish to transfer to a club outside of Turkey), nor could Mr. Ali Reza be considered ‘a foreigner’ in Turkey, noting that the applicant’s dual nationality was insufficient to give the dispute an international element. Here, CAS also restated that the DRC of FIFA had already found that the dispute lacked an international element (para. 91). As there was no international element, the Regulations on the Arbitration Committee of the TFF could not be used as a basis for jurisdiction of CAS.

The Court found that CAS had convincingly explained in a reasoned and detailed decision why it could not hear the dispute and why no international element was present. The Federal Court’s judgment also included detailed reasons, answering all grounds raised by the applicant with ‘clear reasoning and convincing conclusions’. As such, the Court concluded that, within its limited review, the decisions by CAS or the Federal Court are ‘neither arbitrary nor manifestly unreasonable’. Hence, it found that ‘the limitation on the right of access to a court was not disproportionate to the aim pursued’ and the very substance of the right was not affected (paras. 96-97).

The Court found the applicant’s two other complaints under Article 6 § 1 to be manifestly ill-founded. First, on the failure to hold a public hearing, it argued that there was no investigation on the merits, the main question was whether the dispute had an international element, which is a question of fact. In the Court’s opinion, nothing indicated that this question could not be resolved on the basis of the file and the parties’ written submissions. As such, the Court failed to see how holding a hearing would have assisted CAS in determining whether or not there was an international element to the dispute. Regarding the dispute before the Federal Court, the Court agrees with the Government that the question of CAS’s jurisdiction was a highly technical legal issue which could be validly resolved without recourse to a hearing.

Then, on the element of equality of arms under Article 6 § 1 in the procedure before the Federal Court, the ECtHR stated that the time-limit in the strict sense did not differ between the parties. Although the opposing parties had more time to prepare their response, the Court considered that the applicant was not placed at a distinct disadvantage vis-à-vis the Club and the TFF.

What does the minority think about this?

Judge Pavli wrote a concurring opinion joined by judges Dedov and Ravarani, while judge Lemmens wrote a partly dissenting, partly concurring opinion to the majority judgment. In the first opinion, judge Pavli disagreed with the majority on the applicant’s right to access to Switzerland’s Court. As explained earlier, the majority left the question open whether or not the applicant could rely on a right of access to court vis-à-vis Switzerland, stating that ‘it cannot be argued that Switzerland, as a result of the procedural shortcomings in Turkey, was obliged to ensure proceedings before an independent and impartial tribunal in Switzerland’ (para. 82). Judge Pavli argues that this parallel is misplaced as the Turkish Arbitration Committee’s awards were not subject to judicial review, whereas CAS’s decision in this case was subject to appeal to a Swiss Federal Court. Judge Pavli believes that using the term “obligation” is not correct in this context. He finds that ‘such a question suggests that there was an additional, silent (unstated) condition that the applicant had to fulfil in order to give effect to his right of access to a Swiss court’ (para. 3), instead the Swiss Court, prima facie, has offered a limited right of appeal to the CAS applicants and he legitimately availed himself of this possibility.

Judge Lemmens disagreed with the majority, who found the complaint on the right of access to a court admissible, because the applicant was not subject to Swiss jurisdiction prior to his application to CAS. Judge Lemmens argued that that ‘the lodging of the appeal before the CAS did not create a jurisdictional link between the applicant and Switzerland as regards the right of access to a Swiss court. In other words, the applicant never came under Swiss jurisdiction in this respect.’ (para. 7). However, this does not preclude the existence of a jurisdictional link regarding other convention rights protected by Article 6. Judge Lemmens refers to the notion of ‘split up and adapted’ Convention rights. As to the complaints relating to the absence of a public hearing before CAS and the Federal Court, and the failure to respect the principle of equality of arms in the proceedings before the Federal Court, a jurisdictional link with Switzerland was created from the moment the applicant applied to CAS. This entailed an obligation for Switzerland, under Article 1 of the Convention, ‘to ensure in these proceedings respect for the rights protected by Article 6’ (para. 7).

Discussion

While disputes in the context of sports are few in the case law of the Court, it has had to rule on the proceedings of CAS and the appeal to the Swiss Federal Court on some prior occasions. The first decision that concerned CAS was Lazutina and Danilova v. Switzerland (2008). In this case, two Russian cross-country skiers complained that CAS was not an independent and impartial tribunal in a dispute where the International Olympic Committee (IOC) was a party. Yet, as the applicants did not want to pursue the application further, it was struck from the list. In Mutu and Pechstein v. Switzerland (2018), both Adrian Mutu and Claudia Pechstein complained about the procedure at CAS, arguing that the Court of Arbitration lacked impartiality and independence, as well as a complaint on the lack of a public hearing in the case of Mrs. Pechstein (the blogpost). For both applicants, the Court was also asked to look into the nature of the arbitration clause they were subjected to as professional athletes. It concluded that the case of Claudia Pechstein was one of forced arbitration as she had no other option than to accept the clause. The Court also clarified in this case that by dismissing the appeals of both applicants, the Swiss Federal Court gave ‘the relevant awards force of law in the Swiss legal order’ and, thus, ‘the Court has jurisdiction ratione personae to examine the applicants’ complaints as to the acts and omissions of CAS that were validated by the Federal Court’ (paras. 66-67). The Third Section of the Court repeated this in the inadmissibility decision in Platini v. Switzerland (2020) (para. 38). In the decision of Bakker v. Switzerland (2019), the focus was not on the procedure at CAS but on the possibility of appeal against it. In the case, the Court was tasked with reviewing the applicant’s access to the Swiss Federal Court within the public law appeal against the arbitration award by CAS. With this award, Mr. Bakker was banned for life from participating in sporting competitions. The European Court rejected all the applicant’s complaints as being manifestly ill-founded, stating that the restrictions imposed on his access to court were not arbitrary nor unreasonable in the pursuit of the proper administration of justice. In the pending application of Semenya v. Switzerland, the Court will most likely deal with the question of review of the CAS procedure again. Indeed, the upcoming judgment could further clarify the relation between sports arbitration and human rights.

In most of the abovementioned cases, the issue of the applicants is rather being subjected to the jurisdiction of CAS (as Matthew J. Mitten discusses) than not having access to CAS at all. Indeed, in Mutu and Pechstein v. Switzerland, the applicants contended that they were forced to accept an arbitration clause and thus the jurisdiction of CAS if they wanted to practise their discipline on a professional level. While the ECtHR affirmed in Ali Riza v. Turkey that the specificities of sports arbitration do not justify depriving athletes of fair trial guarantees, CAS is not known as the Walhalla for fair procedures, although it showed itself eager to address previous criticism by the Court. So, it remains unclear what the applicant would have won from having his case heard at CAS. In any case, its rejection of jurisdiction appears straightforward. Overall, the Swiss Supreme Federal Court has been criticised for giving CAS too much leeway, thus contributing to what has been named the ‘mystical world’ of sports exceptionalism by Helen Lenskyj. Indeed, as judge Pavli mentioned in his concurring opinion, the right of appeal in Swiss domestic law ‘reinforces the legitimacy and credibility of the CAS awards’. As such, the Court should avoid any reasoning that would contribute to a weakening of the arbitration system by casting doubts on the applicability of Article 6.

^[1] All the quotes that were included in this text are the authors’ own translation of the judgment that is only available in French.