In two, almost identical decisions rendered on 27 March 2014 (decisions 4A_362/2013 and 4A_448/2013) the Swiss Federal Supreme Court held that reliance by an arbitral tribunal on illegally obtained evidence (in casu, a video recording) does not necessarily violate procedural public policy.
Both cases relate to a 2008 match-fixing scandal involving two Urkainian football clubs, FC Karpaty Lviv (“Karpaty”) and FC Metalist Kharkiv (“Metalist”). Metalist won the match 4-0. One of Karpaty’s best players scored an own-goal and was shown a red card. After the match, rumours began circulating that this was a wilful defeat. Therefore, the then honorary president of Karpaty initiated internal investigations.
In the context of the investigations, the honorary president videotaped a conversation with the player without the latter’s knowledge or consent. During this conservation, the player confessed that Metalist’s Sports Director had called him the night before the match and had offered him money. The player had then called other members of the team and convinced them to accept Metalist’s offer.
Relying on the above mentioned videotape, the Football Federation of Ukraine (FFU) imposed various sanctions to the clubs, their officials, including Metalist’s Sports Director, and football players, including the player whose conversation was videotaped. These sanctions were partially upheld on appeal by the Court of Arbitration for Sport seated in Lausanne (the “CAS”).
Both the player and the Sport Director of Metalist moved to set aside the CAS award before the Swiss Federal Supreme Court, arguing inter alia that the CAS had violated procedural public policy by relying on illegally obtained evidence. The Supreme Court rejected this argument.
After recalling that procedural public policy is violated only where fundamental and commonly recognized principles are breached, whose non-observance would stand in unbearable contradiction with the sense of justice, in such a way that the award seems utterly incompatible with the set of rules and values prevailing in a law-abiding state, the Swiss Supreme Court held that illegally obtained evidence is not inadmissible in all cases. A balancing of the interests at stake must be made, mainly the interest of establishing the truth on the one side and the interest of preserving the legally protected rights that have been infringed in the taking of evidence.
The Swiss Supreme Court considered that this requirement had been met by the CAS in the case at hand, insofar as it had indeed balanced the interests at stake in examining the evidence produced, taking into account inter alia the importance of the public and sports interest involved in the fight against match-fixing and the gravity of the sanction.
