Luis Fernandez was the coach of the Qatari football club, Al-Rayyan Sports Club. Following his decision to join Beitar Jerusalem FC and the ensuing early termination of his contract, he undertook to pay the Qatari club EUR 400,000 as compensation. A bank transfer in that amount was made from a company in the Seychelles to the Swiss bank account of another company registered in Curaçao. Al-Rayann Sports Club claimed never to have received the amount, while Mr Fernandez claimed that payment had been effected with the above mentioned transfer.

The Qatari club brought the matter before the FIFA Players' Status Committee, which ruled that Mr Fernandez had to pay the amount in question. The appeals filed by Mr Fernandez against this decision were rejected. Al-Rayyan Sports Club then requested that FIFA initiate disciplinary proceedings against Mr Fernandez, as the latter still had not paid the amount due. The FIFA Disciplinary Committee (FIFA DC) granted Mr Fernandez a final grace period of 60 days to effect payment, failing which he would be automatically suspended from all football-related activities upon simple request by the Qatari club.

Mr Fernandez appealed the FIFA DC's decision to the Court of Arbitration for Sport (CAS) and requested that both the enforcement of the decision and the appeal proceedings be stayed, as he was about to press charges against the owner of Beitar Jerusalem FC, Mr Arcadi Gaydamak, and the outcome of the criminal proceedings was material to the pending dispute. CAS granted the request for stay of enforcement of the FIFA DC's decision, but refused to suspend the appeal proceedings. In its award, it ruled against Mr Fernandez and confirmed the disciplinary measure imposed by the FIFA DC. Mr Fernandez petitioned the Supreme Court to have the CAS award set aside. During the proceedings before the Supreme Court, it transpired that Mr Fernandez had in the meantime paid the amount of EUR 400,000 to Al-Rayyan Sports Club, leading the FIFA to lift his suspension from all football-related activities.

The petitioner must have a legitimate and current interest in having the award set aside as a prerequisite for the Supreme Court to enter on the merits. Therefore, the Supreme Court first examined whether or not Mr Fernandez still had an interest in having the CAS award set aside after he had effected payment to Al-Rayyan Sports Club. Indeed, following payment, Mr Fernandez no longer ran the risk of being suspended. Moreover, even if the award were set aside, Mr Fernandez could not obtain reimbursement of the amount paid to the Qatari club, as this sum was due pursuant to the final and binding ruling of the FIFA Players' Status Committee.

Nevertheless, the Supreme Court found that that Mr Fernandez had a residual interest in having the award set aside. In this regard, it pointed out that Mr Fernandez could potentially bring a tort claim against FIFA based on the argument that, absent the decision of the FIFA DC, he would not have paid the EUR 400,000 a second time. Moreover, as it appeared that Mr Fernandez had indeed been suspended for a brief period of time, he might wish to claim damages in this regard. Finally, he could have an interest in having the CAS Panel's ruling on costs, according to which he had to bear his own legal fees, set aside. Altogether, these facts were considered sufficient to justify an interest, albeit an "all but evident" one, in the proceedings before the Supreme Court.

When it came to the legal grounds advanced by Mr Fernandez, however, the Supreme Court applied its usual strict standards. The arguments that the CAS award violated both procedural and substantive public policy as well as the right to be heard were all rejected, mainly because the petitioner failed to sufficiently substantiate these grounds. The petition was therefore dismissed.

The Supreme Court generally adopts a restrictive approach when it comes to the setting aside of international arbitral awards. In light of this fact, it seems reasonable to at least apply a more lenient standard and to take into consideration the further ramifications, both legal and factual, of a decision to set aside the award when examining the issue of the petitioner's legitimate interest in the setting aside proceedings.

4A_604/2010.