Article 178 of the Swiss Private International Law Act (PILA) provides that:

Article 190(2)(b) PILA permits an arbitral award to be set aside if the arbitral tribunal wrongfully accepted or declined jurisdiction.

Edward Eranosian (the complainant) was a professional football coach employed by APOP Kinyras Peyeia, a Cypriot football club affiliated to the Cyprus Football Association (CFA, the third respondent). CFA is a member of FIFA (the second respondent).

After football matches on 31 October 2008, 9 November 2008 and 24 November 2008, several players underwent doping tests. The laboratory analysis collected from two players showed the presence of Oxymesterone, a prohibited substance under the applicable anti-doping regulations. The Executive Committee of CFA appointed an investigator to carry out an official inquiry with respect to the adverse analytical findings concerning the two players. In his report, the investigator held, among other things, that before the start of every game, the complainant gave the 11 football players who were playing two pills, which they were not obliged to take. Some players did not take the pills and some took them but threw them away. The complainant had told them that the pills contained caffeine and vitamins.

On the basis of the report, disciplinary proceedings were started against the complainant and the two players before the Judicial Committee of CFA. On 2 April 2009, the Judicial Committee issued a decision against the complainant, sanctioning him with two years' ineligibility from any coaching activity. In its decision, the Judicial Committee reduced the sentence of years' ineligibility (provided for in the applicable provisions of the FIFA Disciplinary Code and of the World Anti-Doping Code) to two, underlining the complainant's immediate cooperation and willingness for the detection of the case. On 24 April 2009, in a decision concerning the two players, the Judicial Committee disqualified both players for a year and forbade them to participate in any match.

On 30 March 2009, the World Anti-Doping Agency (WADA, the first respondent) filed a statement of appeal with the CAS to challenge the decisions rendered by the Judicial Committee, requesting that the complainant be sanctioned with four years' and the two players with two years' ineligibility.

On 5 May 2009, FIFA also filed a statement of appeal with the CAS, challenging the Judicial Committee's decision of 2 April 2009, requesting that the complainant be banned from coaching for at least four years.

On 26 October 2009, the complainant filed his answer to the appeals brought against him by WADA and FIFA, seeking their dismissal, submitting that CAS lacked jurisdiction. The complainant argued that Article R47 of the procedural rules of the CAS-Code requires "that there must be an express reference to the adoption of the … jurisdiction of CAS". The simple reference to the FIFA Statutes contained in the CFA Rules was not sufficient to establish CAS' jurisdiction, since CFA had not expressly adopted in its Articles the right of appeal from a decision of its Judicial Committee.

On 26 October 2010, the CAS upheld the appeals filed by WADA and FIFA and declared the complainant ineligible for a period of four years, commencing on 2 April 2009.

The complainant appealed to the Supreme Court against the CAS award, arguing that the award should be set aside because the CAS lacked jurisdiction.

The Supreme Court dismissed the appeal.

The Supreme Court stated that, while an arbitration clause in principle has to satisfy the requirements of Article 178 PILA, in sports matters, the Supreme Court examines the agreement of the parties to submit their disputes to arbitration with a certain "goodwill", with the aim of promoting expeditious resolution of disputes by specialised courts which, like the CAS, offer sufficient guarantee of independence and impartiality.

Accordingly, in previous decisions, the Supreme Court has repeatedly stated that a general reference to an arbitration clause contained in the statutes of an association is sufficient to establish jurisdiction. In the decision 4A_460/2008, dated 9 January 2009, the Supreme Court held that a football player who was a member of a national association was bound by the arbitration clause contained in the FIFA Statutes. This was because the statutes of the national association contained a provision according to which its members were bound by the FIFA Rules.

The Supreme Court continued that this "goodwill" was also justified by the fact that CAS is becoming increasingly important in the global fight against doping, and by the fact that there exists an international trend towards a jurisdiction of CAS in doping affairs, with the goal of ensuring compliance with the respective international standards.

In his appeal, the complainant also argued that, in its decision, the CAS had failed to determine whether he had made a written declaration to join or to subject himself to the statutes of CFA. On the contrary, the CAS considered it proven that the complainant registered with CFA as coach of the football club APOP Kinyras Peyeia and with such registration agreed to comply with the statutes and regulations (including the anti-doping rules) of CFA. The Supreme Court held that, because the complainant did not raise this argument before the CAS (that is, he only argued that the simple reference to the FIFA Statutes contained in the CFA Rules was not sufficient to establish CAS' jurisdiction), this allegation was new and as such inadmissible.

In recent years, there seems to be a trend to somehow distinguish the regime regarding formal requirements on the validity of the arbitration clause in sports arbitrations from the stricter requirements in commercial arbitrations. In this decision, the Supreme Court has confirmed and consolidated this trend and provided a justification for it. What is remarkable is that the justification given by the Supreme Court seems somewhat alien to civil law principles as they are based on policy considerations, such as, the CAS being the guarantor of efficient dispute resolution in sports disputes and having a pivotal role in the overreaching interest in the fight against doping in sports.

4A_640/2010.