Res Judicata in Sports Disputes and Decisions Rendered by Sports Federations in Switzerland

Abstract

The nature of the decisions of a sports federation’s judicial instance has long been discussed, also in connection with res judicata considerations in case the same claim involving the same parties is subsequently brought before the Court of Arbitration for Sport (CAS). In such a case, the CAS Panel must examine if it may entertain the claim and issue a decision. If the previous decision has already dealt with the same issue in a final and binding way, it should refuse to entertain the case. We may also encounter situations in which e.g. the previous decision terminated the proceedings (due to the lack of action by the claimants) and the Panel has to establish whether such decision had a res judicata effect. If the previous judicial instance was not a state court, the Panel must further check whether the instance that rendered the previous judgment is an “arbitral institution” comparable to state courts and vested with the power to render “arbitral awards” according to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (New York Convention, NYC58). And, finally, the CAS Panel seized with the same claim should also proceed to a control of the first decision under Article V (2) (c) NYC58. This paper deals with the broader issue of res judicata in sports arbitration proceedings and, more precisely, with the steps that should be taken by CAS Panels when they control whether the decisions rendered by other judicial instances are vested with res judicata effect.