After a long and complex discussion in FIFA’s courts, such as the Disciplinary Court and the Court of Appeal, the Ecuadorian Football Association won a decision in favor of the lawsuit filed by Chile for the participation of Byron Castillo with both instances in the playoffs.

While we were all celebrating qualification for Qatar and a two-instance legal triumph by FIFA, which gave us peace with Castillo on the final list for the 2022 World Cup, the Chilean National Association of Professional Football turned to the CAS (Court of Arbitration for Sport) , based in Lausanne (Switzerland), an international arbitration body that resolves disputes as the world’s highest sports authority.

TAS resolves complaints in the field of any sports discipline. In this case, the body of lawyers that sponsored the defense of Chile, led by the Brazilian lawyer Eduardo Carlezza, claimed to have evidence and an Ecuadorian witness ready to confirm, through his investigations and documents, that Castillo is a Colombian born in Tumaco, department of Nariño .

According to Chile, based on all this, the TAS should sanction Ecuador in accordance with Article 21 (falsification of documents) and that the FEF violated Article 22.3 (player participating without a call-up). It was also requested that Castillo be banned from professional football and that Ecuador be excluded from the World Cup and that the points be awarded to Chile.

Undoubtedly, the desire of the Chilean federation has always been to use this legal exercise to set up a smoke screen to cover up the great failure that their team experienced in the qualifiers. The Araucanian football custom of wanting to qualify on the mat and achieve what could not be done on the field is an old one. There is a case that could be among Ripley’s. It happened in 1916, at the first edition of the South American Championship (Copa América). Chile lost 4-0 in their debut against Uruguay and the red management appealed the result, stating that the Charrúas used two African players. The organizers responded to the complaint with a ridiculous and scandalous one. Afro-descendants were born in Uruguay.

To the surprise of the Ecuadorians, on November 8, 2022, the notification of the TAS decision arrived, when there were barely twelve days left until the start of the World Cup in Qatar. The news shook the football world and of course worried local fans. TAS partially accepted the appeal of Chile, but also of the federation of Peru, which launched an appeal at the last minute. What was surprising about the CAS award was that it overturned the resolution of FIFA’s Appeals Committee of 15 September 2022, which agreed with the FEF. However, while the CAS resolution did not prevent Ecuador from participating in the World Cup, it was violent in imposing the deduction of three points from the FEF in the qualifying phase for the 2026 World Cup. It also ordered the payment of 100,000 Swiss francs within 30 days of notification.

After reading some of the motives behind the TAS award, I find it controversial because it is ambiguous when the FEF is sanctioned as responsible for using a document that contains false information, but at the same time TAS states that Byron Castillo was invited because he was eligible to be. What I find very sensitive about the award is that TAS is assuming powers that are not appropriate for it. TAS announced that the player’s place and date of birth in the passport were incorrect, as Castillo was said to have been born in Tumac, Colombia on June 25, 1995.

This part of the TAS decision is a clear case of excess of authority, considering that it is not for this Court of Arbitration for Sport to determine the nationality of a citizen. This right belongs exclusively to the Ecuadorian state and its sovereign administration, through its authorities. The question that falls in importance is: Can TAS determine the nationality of the athlete as it did in the award? My answer is a resounding no.

With this background, the FEF decided to go to the Swiss Federal Court so that, on appeal for annulment, it could vindicate the three counts, annul the economic sanction and leave Castillo’s Ecuadorian citizenship in force. This right that the FEF has derives from the fact that the Swiss Private International Law (LPID) not only authorizes the TAS to issue its decisions, but also in its Article 190 allows an appeal for the annulment of an international arbitration.

This is based on five circumstances duly mentioned in the second part of Art. 190, among which are literally a) That TAS be declared competent, when it could not deal with the case; b) That TAS intervened in matters that were not considered in the lawsuit; c) that the right to equality of the parties is not respected; d) That the award is incompatible with Swiss law; and; e) If the arbitrators are improperly assembled.

Regardless of these legal requirements, I believe that the FEF, at least if it states literally a, has the option to seek a solution that overturns the TAS arbitration award and upholds the decision of the FIFA Court of Appeal, which gave reason to the FEF.

We all wondered why it took Ecuador so long to approach the TFS to claim its rights. A few days ago, FEF President Francisco Egas explained that the delay occurred because the Federation recently received a reasoned decision on the award of TAS and that the lawyers hired in Switzerland, after a proper analysis, will request the annulment of the decision. Meanwhile, Eduardo Carlezzo, who is the lawyer for the Chilean case, confirmed to Ecuadorian journalist Joaquín Saavedra the reason for the time

According to Carlezzo, there is no way to declare null and void what was decided by the TAS and that the Swiss Federal Court must give a definitive reason to Chile, with the risk that this federation, as announced some time ago, sues the FEF for damages. Meanwhile, Ecuafútbol is also not ruling out taking action against the Chileans for the damage done to its image. And without further ado, Andrés Holguín, Byron Castillo’s lawyer, would also launch a defamation suit against the Chilean federation.

Meanwhile, those familiar with these procedures note that a very small percentage of requests to annul CAS decisions, filed before the Swiss Federal Court, are accepted; most were rejected. This is how the panorama is complicated for the interests of national football, not only because of the deduction of three points and economic sanctions. The most important reason is to get a null to clean up the image. The resolution of the TAS stained our football at the international level. For this reason, we try to ensure that TFS never removes such a drastic sanction from us. (OR)