The case related to the FIFA World Cup 2022 and a disciplinary sanction imposed by the CAS on the Equatorian Football Federation (the Federation) for violation of the FIFA Disciplinary Code regarding forgery and falsification of documents of one of its football players. In the subsequent motion to the SFT, the FEF first invoked a violation of ultra petita which was immediately dismissed by the SFT, holding that the parties’ requests for relief included the Federation’s exclusion from the 2026 edition of the World Cup. The SFT also clarified that the parties’ legal interest falls obviously outside the scope of the plea of ultra / infra petita of Art. 190 (2) c PILA.

In a very interesting part of the judgment, the SFT dealt with the Federation’s grievance of violation of procedural public policy (res judicata). The SFT reiterated that the effect of res judicata of a foreign judgment in Switzerland is limited to its operative part and does not extend to its grounds (determined according to the lex fori). Moreover, res judicata extends to all facts that existed at the moment of the first judgment, irrespective of whether they were known to the parties, but not to a request that is based on the change of circumstances after the first judgment (at 6.1.3).

Most importantly, and according to the principle of “subjective relativity”, res judicata can only be invoked in a new process if it opposes the same parties / their direct successors or it stems from a “Gestaltungsurteil” opposable to third parties. In the particular case, the Federation supported that the question of nationality of one of its players had already been examined and decided by the Ecuadorian courts, having an erga omnes effect. 

However, the SFT confirmed that FIFA had enacted its own regulations regarding forgery and falsification of identity documents and the fact that the state of Ecuador has its own statutory provisions to combat falsified identity documents could not deprive FIFA of the right to exercise its disciplinary power over its members by virtue of its own enacted rules. In other words, the two bodies of rules are considered to be autonomous and can coexist.

The SFT concluded that there was no identity of the parties and that the subject matter of the proceedings brought before the Ecuadorian judicial authorities (an action habeas data filed by the player in order to unblock the information related to his identity) and the FIFA disciplinary proceedings (forgery and falsification of documents) was different.