CAS 2023 A 9949
CAS · Football (FIFA / CAS) · Switzerland · 6 May 2024
Why it matters
This case reinforces the strict application of the 'triple identity test' for res judicata in CAS football disputes and the prohibition of forum shopping. It clarifies that a player who actively participates in national proceedings without contesting jurisdiction cannot later challenge that jurisdiction before FIFA or CAS. The award also confirms that a national decision on contract validity can preclude FIFA DRC from hearing a compensation claim based on the same facts.
Summary
The case concerns a dispute between German player Marcos Raphael Alvarez Giraldez and Polish club MKS Cracovia S.S.A. over the termination of his employment agreement. The player terminated the contract on 30 March 2022, claiming the club had failed to pay his salary for two months. The club disputed the validity of the termination and filed a claim before the Polish Football Arbitration Court (PSP PZPN) seeking a declaration that the termination was ineffective. The player initially participated in those proceedings, filing a defence and requesting injunctive relief, without contesting the PSP PZPN's jurisdiction. Only later, after the PSP PZPN had issued a decision upholding the club's claim, did the player challenge the tribunal's independence and lodge a claim before the FIFA DRC for compensation. The FIFA DRC declined jurisdiction, citing the prior proceedings and the principle against forum shopping. The player appealed to CAS. The CAS Sole Arbitrator applied Swiss law (PILA Article 186(2)) and CAS jurisprudence on res judicata and forum shopping. He found that the player had tacitly accepted the PSP PZPN's jurisdiction by filing a defence on the merits before raising any jurisdictional objection. The subsequent PSP PZPN award was final and binding. Applying the triple identity test (same parties, same facts, same subject matter), the Sole Arbitrator held that the FIFA DRC claim was essentially the same dispute, as both claims arose from the same termination and sought to determine its consequences. Therefore, the PSP PZPN award had res judicata effect, barring the FIFA DRC from hearing the case. The appeal was dismissed, and the FIFA DRC decision was upheld.
The detail
Parties: Marcos Raphael Alvarez Giraldez v. MKS Cracovia S.S.A. & FIFA
Case number: CAS 2023 A 9949
Outcome: Appeal dismissed. FIFA DRC decision upheld: FIFA DRC lacked jurisdiction due to prior proceedings before PSP PZPN and res judicata.
Applicable law: FIFA Regulations on the Status and Transfer of Players (RSTP), Swiss Private International Law Act (PILA), Polish Football Association Resolution III/54, Polish law
Issues in play: The collision was between the player's right to terminate for unpaid wages under Polish FA Resolution and the principle of res judicata/forum shopping under Swiss law and FIFA RSTP. The player argued PSP PZPN was not an independent tribunal, but CAS 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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