On 1 January 2007, the Egyptian soccer player Essam El Hadary (El Hadary) signed an employment agreement with the Al-Ahly Sporting Club (Al-Ahly Club). Before the termination date, El Hadary entered into an employment contract with another soccer club, the FC Sion Association (FC Sion).

On 12 June 2008, Al Ahly Club filed a complaint against FC Sion and El Hadary before the FIFA Dispute Resolution Chamber (DRC) claiming breach of and interference with the contract. On 16 April 2009, the DRC issued a EUR900,000 fine against FC Sion and El Hadary, suspended the latter for four months and prohibited FC Sion from recruiting new players for two registration periods.

On 18 June 2009, El Hadary and FC Sion appealed the DRC decision to the CAS. El Hadary disputed the jurisdiction of the CAS.

The CAS joined the two matters but dealt separately with El Hadary's jurisdiction objection. On 7 October 2009, a panel of the CAS rendered a partial award declaring that it had jurisdiction to hear the matter. This decision was upheld by the Supreme Court on 20 January 2010 in case 4A_548/2009 (see Legal update, Swiss Federal Tribunal affirms CAS jurisdiction despite lack of arbitration agreement).

On 1 June 2010, the CAS rendered its final award issuing a EUR796,500 fine against El Hadary and a four month suspension. The CAS also declared FC Sion's appeal inadmissible on the ground that FC Sion was never a party to the FIFA proceedings and that it was not affected by the appealed decision.

On 1 July 2010, FC Sion filed a petition to set aside the CAS award before the Supreme Court. FC Sion completed its petition with a brief filed on 15 July 2010. El Hadary also filed a petition to set aside the CAS award.

The Supreme Court dismissed both petitions. This legal update focuses on two noteworthy aspects of the decisions.

First, the Supreme Court doubted the admissibility of El Hadary's claim that the CAS had "severely breached the mandatory procedural principles mentioned in Article 190(2)(e) of the PILA". FC Sion had alleged that the CAS had failed to take testimony into account. The Supreme Court noted that the relevant provision was Article 190(2)(d) and not (e) of the PILA, and that the application therefore referred to the wrong lettered paragraph of Article 190(2). However, the Supreme Court recognised that to dismiss the application on this sole basis could be too harsh a sanction. The Supreme Court noted that three paragraphs of the award addressed the testimony in question and stressed that, in any event, the assessment of evidence, even if arbitrary, cannot constitute a ground to set aside an arbitral award.

Second, the Supreme Court held that FC Sion filed its petition in time, even though its complementary brief was filed more than thirty days after the receipt of the award per fax.

The Supreme Court observed that neither the Federal Statute establishing the Supreme Court nor the PILA impose any form for the notification of awards and that the agreements between the parties or the arbitration rules chosen by them are therefore decisive. The Supreme Court noted that, according to its case law, the filing of a petition by fax does not meet the deadline because a fax does not give any guarantee as to the provenance or integrity of the document received. It relied on its decision in 4A_582/2009 of 13 April 2010 (see Legal update, Swiss Federal Tribunal rules on tribunal-ordered interim measures for the first time), where it ruled that as Article 55 of the WIPO's Expedited Arbitration Rules calls for a formal notification of a signed copy of the original award, a communication per fax could not cause the time limit to file a petition to start running.

The Supreme Court noted that Article R31(2) of the Code of Sports-related Arbitration provides that CAS awards are notified "by any means permitting proof of receipt" and that Article R59(1) of the same Code requires a signed award. Even if these two provisions were less categorical than Article 55 of the WIPO Rules, the Supreme Court found that the solution should be identical: a handwritten signature could not be replaced by a faxed copy of the original award and, furthermore, a fax did not evidence the notification.

Until now it was unclear whether the time period to file a petition against a CAS award only started running from the receipt of the award by registered post. To be on the safe side, two specialists of international arbitration encourage petitioners to calculate the deadline from the date of the receipt of the award by fax (Kaufmann-Kohler/Rigozzi, Arbitrage International, 2010, p. 465, FN 524). Petitioners can from now on safely file their petition within thirty days from the receipt of the CAS award per registered post. The Supreme Court is yet to rule on the question in relation to non-CAS awards so that the precautionary principle should still apply in these cases.

4A_392/2010 and 4A_394/2010.