TAS 2021 A 8222 Club Cerro Porteño c. FIFA
CAS · Football (FIFA / CAS) · Switzerland · 15 Mar 2022
Why it matters
This case clarifies that FIFA's disciplinary power to enforce CAS awards under Article 15 of the FIFA Disciplinary Code applies automatically once the CAS proceeding began after the Code's entry into force, regardless of when the underlying contract was signed. It also confirms that a closed disciplinary file does not bar a new proceeding if new evidence shows the initial closure was based on a factual error.
Summary
Club Cerro Porteño (the Club) entered into an agency agreement with Base Soccer Spain (BSS) in January 2019, which included a clause submitting disputes to the Court of Arbitration for Sport (CAS). BSS initiated CAS proceedings in February 2020, and in March 2021 CAS ordered the Club to pay BSS USD 100,000 plus interest and costs. The Club did not pay. BSS then asked FIFA to open disciplinary proceedings against the Club for non-compliance with a CAS award under Article 15 of the FIFA Disciplinary Code (FDC). FIFA opened a first proceeding (FDD-7955) but closed it because the CAS award stated the arbitration began in February 2019, before the 2019 FDC entered into force (July 15, 2019). BSS then provided evidence that the CAS award contained a typo: the arbitration actually began in February 2020. FIFA opened a second proceeding (FDD-8144), found the Club in breach, and imposed a fine of CHF 10,000 and a transfer ban if the debt was not paid within 30 days. The Club appealed to CAS, arguing that the second proceeding violated ne bis in idem, that Article 15 FDC should not apply retroactively, and that the decision violated Swiss law. The CAS sole arbitrator rejected all arguments. He held that the first proceeding was closed due to a factual error, not a merits decision, so ne bis in idem did not apply. The relevant date for applying Article 15 FDC is the start of the CAS proceeding, not the contract date; since the CAS proceeding began in February 2020 (after July 15, 2019), FIFA had jurisdiction. The arbitrator also found no violation of Swiss Civil Code Articles 75 or 2, as the Club failed to show any specific FIFA regulation was breached. The appeal was dismissed, and the FIFA decision upheld.
The detail
Parties: TAS 2021 A 8222 Club Cerro Porteño c. FIFA
Outcome: Appeal dismissed; FIFA's disciplinary decision upheld.
Applicable law: FIFA Disciplinary Code (2019 edition), Swiss Civil Code
Issues in play: Whether FIFA could open a second disciplinary proceeding for the same underlying facts (ne bis in idem) and whether Article 15 of the FIFA Disciplinary Code applied retroactively to a CAS award arising from a contract signed before the Code's entry into force.
Read the full decision at Court of Arbitration for Sport (football, via FIFA) ↗
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