Perhaps our lawyers can see a way to go to the Swiss Courts, if necessary.
If UEFA try to impose a ban on us that is unreasonable by bending their rules to suit or by ignoring facts, we may have cause for legal action in the jurisdiction that governs the MOU, which I've not read beyond scanning what's on previous pages.
I don't know Swiss Law and I'm not expert on English Law but I've had plenty of interaction with legal folk in my working life and even had to study the basics of contract law as part of my training way back. I am pretty sure that in UK contracts can be deemed unenforceable or parts can. Also, parties to a contract often end up having legal disputes over those contracts. The thing often is that you have to go to court to find out.
We have at least one experienced lawyer who uses this forum who could comment but I have seen nothing yet to convince me City cannot make a legal challenge in court but I'd like to hear an expert opinion because I may be wrong.
Are you referring to me? I've just had a look at the document based on which Castles wrote his story. On its face, it does seem to be binding. And it does expressly exclude the right to apply to a "state court", which isn't defined but which a court, I suspect, would view as including both the Swiss Federal Supreme Court and the ECJ. The document is governed by Swiss law, so there are two questions:
- under what circumstances does Swiss law allow a contract that purports to be binding to be treated as non-binding?
and
- under what circumstances does Swiss law allow a challenge in a state court to an arbitral award when the arbitration clause in the relevant contract precludes such a challenge?
I have no qualifications to advise on matters of Swiss law. Nonetheless, I've had a quick dig around and discovered certain rules of Swiss law that can be used in some cases with regard to the above questions.
1. Swiss private law has an overriding duty for parties to act in good faith “in the exercise of his or her rights and in the performance of his or her obligations” and further provides that a “manifest abuse of a right” is afforded no legal protection (see here in Article 2 of the Swiss Civil Code -
https://www.admin.ch/opc/en/classified-compilation/19070042/201901010000/210.pdf). Further, it seems that parties can be barred from invoking matters agreed upon between them if they’re regarded as in breach of Article 2 (see the discussion here on numbered pages 285 to 288 -
https://www.zora.uzh.ch/id/eprint/160651/1/Picht_Studen__Chap11_-_Civil_Law__Introduction_to_Swiss_Law.pdf).
2. There are cases in which a challenge in a state court to an arbitral award has been permitted, but the wording of the relevant arbitration clause seems to be crucial. I'm afraid I'm simply not equipped to deal with those kinds of subtleties under Swiss law (see section 6 here:
https://www.globallegalinsights.com/practice-areas/litigation-and-dispute-resolution-laws-and-regulations/switzerland).
I'm not qualified to say and am absolutely NOT saying that the above would be applicable to the current issues between MCFC and UEFA because I just don't know how the relevant rules work in practice. However, they serve as examples of why there can sometimes be successful litigation challenging even ostensibly watertight contractual provisions agreed by the parties to be binding on them or an agreement for dispute resolution through mandatory arbitration of which the result purports to be binding on both parties.
What I will say is that I presume one of MCFC's three top law firms who are supposedly on this case is able to provide authoritative advice from top-class Swiss lawyers. I also presume that, in developing a strategy for any potential further litigation after the two bites we'll have at the CAS cherry (the current procedural case and a potential appeal against a future sanction from the AC) have been exhausted, they're aware of the purported constraints imposed by the document Castles cites. It would be extraordinarily unprofessional if they aren't.
I suspect there already is a strategy in place to deal with the eventuality that we end up with a ban notwithstanding the appeals to CAS or the eventuality that we consider further post-CAS steps necessary to deal with reputational damage even if we avoid a ban. If so, that strategy will take into account the document in question.
As I’ve said before, the bottom line is that no one on the outside of this matter has enough information to offer a remotely credible analysis of the state of play. City will have the very best lawyers in the business working on this and we simply have to trust that the strategy they come up with will be the optimum one for the club in the circumstances.
And that also means us on here being relatively sanguine and not panicking when people come along quoting arguments that our opponents will likely run, as Conn did the other day and as Castles is doing here. MCFC know what our opponents' arguments are already and, when the time comes, will be as well prepared to combat them as it’s possible to be. I hope it's enough for us to succeed, but we won't and can't know that until the time comes, I'm afraid.
