Article 190(2)(b) of the Swiss Private International Law Act (PILA) permits an arbitral award to be set aside "if the Arbitral tribunal wrongly accepted or declined jurisdiction".

In January 2006, the petitioner (A), a professional British-born football player who had also obtained Turkish citizenship in 2004, and Trabzonspor Kulübü Dernegi (Trabzonspor), a Turkish football club and member of the Turkish Football Federation (TFF), signed an employment contract. On 4 January 2008, A terminated his employment based on Trabzonspor's alleged breach of contract. On 15 February 2009, A signed an employment contract with an English football club.

On 11 January 2008, A filed a claim against Trabzonspor with FIFA, which referred him to "the decision-making bodies of the relevant member Association". Subsequently, A submitted his claim to the TFF Dispute Resolution Board. The TFF Dispute Resolution Board as well as TFF's appeal board (TFF Arbitration Board) rejected A's claim and held that A had wrongfully terminated his employment contract. In November 2009, A lodged an appeal from the decision of the TFF Arbitration Board with the CAS in Lausanne.

In June 2010, the CAS dismissed A's appeal, holding that it lacked jurisdiction.

In July 2010, A brought a petition to set aside the CAS award before the Supreme Court, claiming that the CAS had wrongly decided that it lacked jurisdiction.

The Supreme Court rejected the petition to set aside the award.

Referring to its case law, the Supreme Court refused to consider A's arguments alleging violations of his rights under the Swiss Federal Constitution and the European Convention of Human Rights, explaining that such a ground for challenge is not provided for in Article 190(2) PILA, which is exclusive. Furthermore, the Supreme Court reiterated its established case law that, in proceedings to set aside an arbitral award, it must base its decision on the facts established by the arbitral tribunal. It may only review the evidence submitted to the arbitral tribunal if one of the parties challenges specific factual findings under Article 190(2) PILA or if, exceptionally, new evidence is submitted and allowed within the context of the setting aside proceedings.

Based on the factual findings of the CAS, the Supreme Court rejected A's argument that the parties had submitted themselves to arbitration based on a provision of Law No. 3813 on the Establishment and Duties of the Turkish Football Federation, which has subsequently been amended. However, the amendment was not further addressed by the Supreme Court. The Supreme Court found that the provision in question, which allowed the TFF to include a right to appeal to CAS in its statutes, did not qualify as an arbitration clause and could not, therefore, by itself establish the jurisdiction of the CAS.

The Supreme Court also found that A's transfer to an English football club and his application for an international transfer certificate could not establish the jurisdiction of the CAS pursuant to the FIFA Regulations on the Status and Transfer of Players. The Supreme Court found that the present dispute did not relate to this transfer, but only to A's notice of termination for alleged breach of his employment contract.

Further, the Supreme Court came to the conclusion that Article 14 of the TFF Arbitral Tribunal Board Regulations, which allows for an appeal of decisions of the TFF's arbitral tribunals to the CAS, if the dispute has an "international dimension" (translation submitted by Trabzonspor and TFF) or "foreign element" (translation submitted by A), had to be interpreted in accordance with the FIFA regulations and statutes. Therefore, it could not serve as basis for the CAS jurisdiction, as A, a Turkish national who has played for the Turkish national team, was not a foreigner in the country of the defendant football club.

Trabzonspor was represented in the appeal proceedings before the Supreme Court by the authors of this article.

With this decision, the Supreme Court confirms the essential principle that the CAS, as an arbitral tribunal, can only have jurisdiction if the parties have concluded a specific arbitration agreement or if the applicable statutes and regulations provide for CAS jurisdiction.

4A_404/2010.