11/27/2014
PLC - Swiss Supreme Court considers application of double jeopardy principle between disciplinary and administrative sanctions
Swiss Supreme Court considers application of double jeopardy principle
between disciplinary and administrative sanctions
Resource type: Legal update: case report
Status: Published on 26-Nov-2014
Jurisdiction: Switzerland
In the decision 4A_324/2014, the Swiss Supreme Court considered whether the principles of res judicata and ne bis in idem (double
jeopardy) form part of procedural public policy for the purposes of Article 190(2)(e) of the Private International Law Act (PILA), and whether
the double jeopardy principle applies between administrative and disciplinary proceedings.
Nathalie Voser (Partner) and Hannah Boehm (Senior Associate), Schellenberg Wittmer Ltd (Zurich)
Speedread
In a German language decision dated 16 October 2014 and published on 24 October 2014, the Swiss Supreme Court confirmed that the
principles of res judicata and ne bis in idem (double jeopardy) form part of procedural public policy for the purposes of Article 190(2)(e) of
the Private International Law Act. However, the court held that there was no violation of the ne bis in idem principle where the same
infringement is punished with both an administrative and a disciplinary sanction. According to the court, administrative proceedings do not
protect the same legal interest as disciplinary proceedings. Therefore, sanctions resulting from these two different types of proceedings
lacked the identity of object necessary for a violation of that principle. (Decision 4A_324/2014.)
Background
Article 190(2)(d) Private International Law Act (PILA) provides that an award shall be set aside if the parties' right to be heard or the
principle of equal treatment has been violated.
Article 190(2)(e) PILA provides that an award shall be set aside if it is incompatible with public policy.
Facts
In 2011, the executive committee of the Turkish Football Federation (TFF) banned the football club Fenerbahçe Spor Kulübü (Fenerbahçe)
from participating in the 2011/2012 UEFA Champions League because several officials of the club had been involved in match-fixing in
Turkey.
In 2013, the UEFA Control and Disciplinary Body sanctioned the club for the involvement of its officials in the match-fixing scandal by
banning Fenerbahçe from the next three UEFA club competitions for which it qualified, including the 2013/14 UEFA Champions League
season. The UEFA Appeals Body subsequently reduced Fenerbahçe's sentence to a two-year ban from all UEFA club competitions.
On 16 July 2013, Fenerbahçe appealed the decision of the UEFA Appeals Body to the Court of Arbitration for Sport (CAS). On 28 August
2013, the CAS tribunal dismissed the appeal.
Fenerbahçe filed a petition with the Swiss Supreme Court to have the CAS award set aside, arguing that the CAS tribunal had violated the
principle of equal treatment of the parties by expediting the proceedings even though the club had not voluntarily agreed to the expedited
proceedings. Fenerbahçe argued that it had merely signed the UEFA admission form providing for expedited proceedings in order to be
admitted to UEFA competitions. Further, Fenerbahçe submitted that its right to be heard had been violated by the "surprising" application
of a legal provision by the CAS and by the CAS' failure to take certain relevant documents into consideration.
Finally, Fenerbahçe argued that the CAS had violated public policy by disregarding the principle of ne bis in idem (double jeopardy)
because the club had been punished twice for the same crime, once by the TFF and once by the UEFA.
Decision
The Swiss Supreme Court dismissed the petition.
Fenerbahçe's argument regarding the violation of the right of equal treatment was dismissed based on the Swiss Supreme Court's
longstanding practice that procedural objections cannot be raised before the court if they could have been, but were not, raised during the
arbitral proceedings. The Swiss Supreme Court furthermore concluded that Fenerbahçe's right to be heard had not been violated, as there
had been no surprising application of the law by the CAS tribunal and because all relevant issues had been addressed in the CAS award.
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PLC - Swiss Supreme Court considers application of double jeopardy principle between disciplinary and administrative sanctions
With regard to the alleged violation of public policy, the Swiss Supreme Court confirmed that the principle ne bis in idem forms part of
procedural public policy for the purposes of Article 190(2)(e) PILA. In earlier cases, the Swiss Supreme Court had left it open whether this
criminal law principle is also applicable to sports related disciplinary sanctions. In the present case, the court (again) left this issue open
since the CAS tribunal had considered the ne bis in idem principle and the court focused on reviewing the considerations of the CAS
tribunal. Referring to its previous case law (see Legal update, Swiss Supreme Court holds that principle of ne bis in idem forms part of
public policy (www.practicallaw.com/9-504-9921)), the court held that the principle of ne bis in idem only applied if the judicial body
imposing the first sentence had the authority to review the facts of the case in each and every respect, and if the protected legal interest
was the same in both proceedings (identity of object).
According to the Swiss Supreme Court, the principle does not, for example, prevent the commencement of a second set of proceedings
against the same person if the person's conduct involves not only penal consequences, but also consequences of a civil, administrative or
disciplinary nature.
Therefore, the Swiss Supreme Court concluded that public policy had not been violated in the present case. According to the court, the
ban imposed by the TFF was an administrative sanction rendered as a result of the TFF's administrative proceedings, while the two-year
ban imposed by the UEFA Appeals Body, and confirmed by the CAS, was a disciplinary sanction resulting from disciplinary proceedings.
Since administrative and disciplinary proceedings serve different purposes and protect different legal interests, sanctions resulting from the
two different types of proceedings lack the identity of object required for the double jeopardy principle to apply. Therefore, the Swiss
Supreme Court did not have to decide whether or not the principle ne bis in idem also applied to disciplinary proceedings conducted by
sports organisations.
Comment
The decision confirms that the principles of res judicata and ne bis in idem form part of the procedural public policy. However, as in earlier
Swiss cases, the Swiss Supreme Court did not have to decide whether or not the principle ne bis in idem, as the criminal law
manifestation of the res judicata principle, also applies to disciplinary proceedings conducted by sports organisations, because the two
sanctions in question lacked identity.
While Fenerbahçe raised a number of other interesting procedural issues, the Swiss Supreme Court did not need to address them,
because the club had failed to raise these procedural objections immediately during the course of the arbitral proceedings.
Case
Decision 4A_324/2014 (Swiss Supreme Court).
Resource information
Resource ID: 9-589-4957
Published: 26-Nov-2014
Products: PLC Arbitration - International, PLC Arbitration Email, PLC US Law Department
Related content
Topics
Arbitral Awards and Challenges (http://uk.practicallaw.com/topic0-203-6785)
Procedure and Evidence: Arbitration (http://uk.practicallaw.com/topic1-381-2958)
Practice notes
Arbitration in Switzerland (http://uk.practicallaw.comtopic9-513-8272)
Enforcing arbitration awards in Switzerland (http://uk.practicallaw.comtopic1-573-3968)
Legal update: archive
Swiss Supreme Court holds that principle of ne bis in idem forms part of public policy (http://uk.practicallaw.comtopic9-504-9921)
Country Q&A
Arbitration procedures and practice in Switzerland: overview (http://uk.practicallaw.comtopic5-502-1047)
Litigation and enforcement in Switzerland: overview (http://uk.practicallaw.comtopic1-502-1695)
Case page
Decision 4A_324/2014 (http://uk.practicallaw.comtopicD-028-2222)
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PLC - Swiss Supreme Court considers application of double jeopardy principle between disciplinary and administrative sanctions
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