CAS 2023 A 9778
CAS · Football (FIFA / CAS) · Switzerland · 6 May 2024
Why it matters
This case reinforces the strict application of the res judicata principle in football disputes, preventing forum shopping. It clarifies that a player who actively participates in national proceedings without objecting to jurisdiction cannot later challenge the national body's independence before FIFA or CAS. The decision underscores the importance of raising jurisdictional objections at the earliest opportunity, as per Swiss law (Article 186(2) PILA).
Summary
The case involves a Polish football player (M) who terminated his employment agreement with club BS Poland due to unpaid salaries. The club challenged the termination before the Polish Football Arbitration Court (PSP PZPN). The player initially participated in those proceedings, filing a defense and requesting injunctive relief, without contesting jurisdiction. The PSP PZPN ruled the termination ineffective. Later, the player sought compensation from FIFA DRC, arguing the PSP PZPN was not an independent tribunal under FIFA RSTP. FIFA DRC declined jurisdiction, citing res judicata from the PSP PZPN award. The player appealed to CAS. CAS applied Swiss law's triple identity test (same parties, same subject matter, same factual background) and found the claims identical. It held that the player tacitly accepted PSP PZPN jurisdiction by defending on the merits before objecting, per Article 186(2) PILA. Therefore, the PSP PZPN award had res judicata effect, barring FIFA DRC from hearing the case. CAS dismissed the appeal, confirming the FIFA DRC decision.
The detail
Parties: M v. L & FIFA
Case number: CAS 2023 A 9778
Outcome: CAS dismissed the appeal and upheld the FIFA DRC decision that it lacked jurisdiction due to res judicata from the PSP PZPN award.
Applicable law: FIFA Regulations on the Status and Transfer of Players (RSTP), Swiss Private International Law Act (PILA), Polish Football Association Resolution III/54
Issues in play: The collision was between the principle of res judicata (triple identity test under Swiss law) and the player's right to access an independent tribunal under FIFA RSTP Article 22(1)(b). The player argued the PSP PZPN was not independent, but the tribunal held he had tacitly accepted its jurisdiction by participating on the merits.
Read the full decision at Court of Arbitration for Sport (football, via FIFA) ↗
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