The Romanian Football Player Adrian Mutu joined Chelsea in 2003 under a five years contract governed by English law. A year later he tested positive to cocaine and Chelsea terminated his employment without notice. Various disciplinary proceedings followed and ultimately Mutu was ordered to pay compensation to Chelsea by the FIFA Dispute Resolution Chamber (DRC). The award was very substantial as Mutu had to pay an amount in excess of EUR 17 million.
Mute made an appeal to the Court of Arbitration for Sport (CAS). On 31 July 2009 the CAS Panel issued its award (CAS 2008/A/1644) in which it upheld the DRC decision of 7 May 2008.
Mutu appealed the CAS decision of 31 July 2009 with the Swiss Federal Court. The Court considered and ruled about the Athlete’s arguments:
1.) Since CAS arbitrator Dirk-Reiner Martens had chaired another CAS panel between the same parties, counsel acting for Mutu argued that the arbitral tribunal was “irregularly composed” (in counsel’s view, one of the arbitrators was biased). The Federal Tribunal rejected that argument and referred again to the IBA guidelines in this respect.
2.) It was also claimed that Chairman Fumagalli would be part of a law firm that had represented the interests of the Russian businessman who owns Chelsea. Chairman Fumagalli denied this vehemently and the Appellant did not react, leading the Federal Tribunal to reject the challenge.
3.) The Appellant argued that the CAS award was inconsistent with public policy. The Court engages into an interesting obiter dictum as to whether its list of what constitutes public policy is exhaustive or not and points out, rightly again, that it is not.
4.) The rest of the opinion is devoted to the arguments raised with regard to public policy.
Therefore, the Swiss Federal Court decides:
1.) The Athlete’s appeal is rejected.
2.) The judicial costs, set at CHF 65’000.- shall be borne by the Appellant.
3.) The Appellant shall pay to the Respondent an amount of CHF 80’000.- for the federal proceedings.
4.) This judgment shall be notified to the representatives of the Parties and to the Court of Arbitration for Sport (CAS).
