Paris Court of Appeal, No. 15/17398

Paris Court of Appeal, First Pole, First Chamber, 21 November 2017, No. 15/17398

SA SASP ATHLETIC CLUB ARLES-AVIGNON

Vs.

Mr. C A

On 31 August 2010, the SASP Athletic Club Arles-Avignon (the club) concluded a contract for the 2010/2011 season with Mr. C A, a Spanish football player. This contract provided for a fixed gross monthly remuneration of 33,761 euros in addition to various premiums. An Annex 1, drafted in English, provided that, notwithstanding the player’s tax residence (Spanish and/or French), the club guaranteed that he would receive a net after-tax amount of 340,000 euros. This annex contained an arbitration clause by the Court of Arbitration for Sport (CAS).

At the end of the contract, which was not renewed, a dispute arose between the parties concerning the remaining balance due by the club.

By a decision rendered in Lausanne on 11 September 2012, the CAS, composed of Messrs. X and Z, arbitrators, and Mr. Y, president, ordered the club to pay the principal sum of 262,609.76 euros plus interest and costs to Mr. C A. The enforcement was granted by order of the President of the Paris Tribunal de grande instance on 17 June 2015. The club filed an appeal against this order on 14 August 2015.

By submissions notified on 13 November 2015, SASP Athletic Club Arles-Avignon, represented by Mr. F-G, in his capacity as liquidator, requested the court to rule that the award was obtained fraudulently and that it is contrary to international public policy, and consequently, to annul the order for enforcement and order the respondent to pay to SASP Athletic Club Arles-Avignon the sum of 10,000 euros on the basis of Article 700 of the Code of Civil Procedure.

By submissions notified on 26 January 2016, Mr. C A requested the court to declare the appeal inadmissible and in any case ill-founded, to confirm the undertaken order and to set its claim for damages for abusive proceedings at the sum of 10,000 euros and to set its claim on the basis of Article 700 of the Code of Civil Procedure at the same amount.

UPON WHICH:

On the admissibility of the appeal:

Mr. C A maintains that the club, which is seeking the annulment of the order for enforcement confuses the action for annulment of international awards rendered in France with the appeal against the order of enforcement of the award rendered abroad. The club’s appeal is therefore inadmissible.

However, whereas, even though the club incorrectly submits the annulment of the enforcement order, it appears that the declaration that brings the case before the court expressly concerns the appeal of this order and that the grounds of appeal developed in the submissions are drawn from Articles 1520 and 1525 of the Code of Civil Procedure. This appeal, which in reality seeks to overturn the undertaken decision is admissible.

On the ground of appeal alleging the violation of international public policy (Article 1520-5 of the Code of Civil Procedure):

The club states, firstly, that while the main contract was written in French, the document entitled ‘Annex 1’, written in English, was signed by its President, Mr. B, who does not know this language and, therefore, did not understand the scope of this act. The appellant submits that the misleading statements regarding Mr. B’s mastery of the English language which were made by Mr. C A and another Spanish player involved and supported by the assertions of their counsel Me Inigo de Lacalle, who was heard as a witness to the signing of the contract, constitute a fraudulent collaboration that overtook the decision of the arbitrators and which moreover, encouraged the filing of a civil party complaint.

Secondly, the club claims that the arbitration clause disregards the exclusive competence of the labour court.

On the ground of appeal taken in its first branch:

Whereas, the statements of the award (§27) provide that the respondent to the arbitral proceedings stated before the CAS: ‘Annex 1 does not carry the signature of the President of the Club and that therefore it is not bound by Annex 1 nor by the arbitration clause included therein. In support of this argument, the Respondent attached, first of all, a certificate from the President declaring that he is the only person with the power to bind the Club and, second of all, an organisation chart illustrating the hierarchical distribution of powers in the club’.

Whereas, by virtue of the principle that no one may contradict himself to the detriment of another, the ground of appeal should be declared inadmissible as it maintains before the court that Annex 1 was signed by the president of the club who did not measure the impact of this act, which was written in a language that he did not know.

On the ground of appeal taken in its second branch:

Whereas, the arbitration clause stipulated in an employment contract is not binding on the employee. However, no principle of international public policy prevents the employee from invoking this clause against the employer.

The ground of appeal, in its two branches, is unfounded. Therefore, the undertaken order will be confirmed.

On the claim for damages for abuse of process:

Whereas, an appeal based on grounds that are obviously and grossly devoid of any basis is abusive. The dilatory character of this appeal results from the fact that it was filed on 14 August 2015 whereas the receivership was pronounced by a judgment on 4 September 2015. The grounds developed also call into question the probity of the respondent.

Whereas, in view of these circumstances, Mr C A’s claim should be set at 10,000 euros as damages for abuse of process.

On Article 700 of the Code of Civil Procedure:

Whereas, the appellant, who is not successful, may not benefit from these provisions and that the claim of the respondent on this basis shall be set at the sum of 10,000 euros.

FOR THESE REASONS:

CONFIRMS the order of the President of the Pairs Trial Court of 17 June 2015 which conferred enforcement to the award of the Court of Arbitration for Sport of 11 September 2012.

Fixes the amount of damages due by SASP Athletic Club Arles-Avignon to Mr. C A at 10,000 euros for abuse of process.

Sets the amount due by SASP Athletic Club Arles-Avignon to Mr. C A under Article 700 of the Code of Civil Procedure at 10,000 euros.

States that the costs shall be borne by SASP Athletic Club Arles-Avignon.

THE CLERK THE PRESIDENT