Club Atlético de Madrid SAD v. Sport Lisboa e Benfica Futebol SAD and Fédération Internationale de Football Association (FIFA) [Da Cruz Carvalho] BGE/ATF 136 III 345, No. 4A_490/2009 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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November, 2013

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Court Decisions

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Originally from: 

Swiss International Arbitration Law Reports 2010 Vol. 4 Nos. 1 and 2

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No. 26

Club Atlético de Madrid SAD v. Sport Lisboa e Benfica

Futebol SAD and Fédération Internationale de Football

Association (FIFA)

[Da Cruz Carvalho]

BGE/ATF 136 III 345, No. 4A_490/2009

Headnote

■ An arbitrator breaches procedural public policy when his decision

disregards the res iudicata effect of a previous judicial decision or

where he departs in his decision from the view he has expressed in a

preliminary decision with respect to a preliminary question of

substance (confirmation of previous decisions).

■ Only the operative part of a decision has res iudicata effect. The

reasons of the decision have no such effect. However, they are to be

taken into account where the meaning and effects of the operative

part of the decision need clarifying. The meaning and effect of the

operative part of a decision is to be determined in each particular

case by considering the reasons of the decision in their entirety

(confirmation of previous decisions).

■ An arbitrator sitting in a Swiss arbitration may be bound by a

judgment made in Switzerland. A judgment made in proceedings

instituted pursuant to article 75 CC in order for the court to set

aside a decision made by an association may have res iudicata effect

in a Swiss arbitration (confirmation of previous decisions).

Summary of the Decision

In 2000 the Portuguese football club Sport Lisboa e Benfica – Futebol

SAD (“Benfica”) requested the FIFA Special Committee to order the

Spanish football club Atlético de Madrid SAD (“Atlético de Madrid”) to

pay training compensation under the 1997 FIFA Regulations for the

Status and Transfer of Players (“the 1997 FIFA Transfer Regulations”) in

relation to Mr. Daniel da Cruz Carvalho, a Portuguese football player.

The FIFA Special Committee awarded Benfica a sum of USD

2,500,000.00. The FIFA Statutes applicable at the time did not include

any specific provisions for judicial review of such decision. Atlético de

Madrid therefore challenged this decision before the Zurich Commercial

Court, which held that the 1997 FIFA Transfer Regulations were in

breach of Swiss and EU competition law, and declared that the FIFA

decision was therefore null and void. Shortly afterwards, Benfica