Erin Hunter once said, “Power is neither good nor evil, but its user makes it so.”
One can say that much about the T&T Football Association (TTFA) versus FIFA debacle echoed this very notion of power – which organisation had the power to govern the football affairs of T&T, which legal institution had jurisdiction over the matter, whether FIFA was exercising its global prominence, whether the new TTFA executive board was simply too eager for power, etc.
With the decision the Court of Appeal rendered on Friday, in favour of FIFA and invalidating the jurisdiction of the domestic court, as well as the apparent concession of ousted TTFA president, William Wallace, it seems that closure of the wounds of this battle is imminent.
A battle of David and Goliath
Who’s the boss? That was the real question.
Several rumours have swirled pertaining to the legitimacy of FIFA’s normalisation committee which was meant to replace the newly elected TTFA executive board. Some say that it was preordained and contingent on the election results. Others say it was a means by which FIFA sought to cover up TTFA’s financial improprieties and discrepancies of which FIFA had been aware for years. Having felt like his executive was given the short end of the stick, Wallace decided to contest FIFA’s action.
It is general rule of international sports law, that the Court of Arbitration for Sports (CAS) is widely accepted as the requisite body for settlement of sporting disputes. This is also recognised in FIFA’s regulations.
In the application stages at CAS, there was clear bias towards the global powerhouse of FIFA. The organisation maintained that it would not be paying its share of fees as respondent in the matter—a norm usually acquiesced to by the institution and against the Court’s procedure. Additionally, FIFA applied to CAS to have the matter heard by three arbitration instead of one, thereby tripling the cost of proceedings. The degree to which this was a calculated, exploitative attempt by FIFA to constrain TTFA was evident. Having assessed TTFA and possessing the knowledge of their financial struggles for years, FIFA was unequivocally aware that these fees would have been too burdensome for TTFA to bear.
Home turf advantage
Between financial constraints and the alleged bias of CAS, the cards were stacked against TTFA. Therefore, it filed an application for the matter to be heard in the T&T High Court. Upon preliminary inquiry, Madame Justice Carol Gobin ruled that the matter could be tried in the local jurisdiction. From a legal standpoint, however, some of the merits of such a decision were questionable.
On the point of judicial review, it seemed that her principal occupation was the fact that the body had been incorporated by an Act of Parliament. While this may be somewhat conclusive, other factors relevant to the assessment of whether TTFA was a public body were not entirely examined. For example, the contractual relationship with FIFA and its members, the TTFA constitution which arguably is the source of power, and the nature of some of the constitution’s clauses e.g. arbitration clause, which suggest that the body was a private body. The ultimate question ought to have been: if TTFA didn’t exist, and was not performing the roles that it did, would the government have intervened in the area of the management of football? The answer is likely ‘no’.
Regarding the TTFA as a public body enhances the potential of political influence than if it were regarded as a private entity. This may even result in the government being able to disregard for its constitution if there is presumably a countervailing consideration e.g. dissatisfaction with who is appointed into certain positions. This is worrisome, as political interference can threaten the neutrality of sport, and may result in TTFA being indefinitely suspended by FIFA.
However, on the arbitration point, it seems like the denial of the request for a stay of proceedings was justified; by virtue of its unwillingness to pay the advance costs to CAS, it seems like FIFA has stalled the arbitration process. Additionally, the fact that the ratification of the decision by FIFA’s Council came quite late, and therefore FIFA cannot invoke the dispute resolution process which excludes the court, was well-back reasoning.
In spite of the decision’s inadequacies, the matter proceeded to the substantive claim relating to the legality of FIFA instituting the normalisation committee where Madame Justice Gobin declared that the removal of the duly elected executive was illegal null and void and of no effect.
FIFA had made no submissions as it maintained the preliminary point that the domestic court did not have jurisdiction to hear the matter.
Outrage and overturned
Prior to the case’s preliminary inquiry ruling, FIFA issued a warning to TTFA that if it did not withdraw the claim from the Court, TTFA would be suspended. Having failed to meet these demands, FIFA followed through with this threat and suspended FIFA indefinitely due to “grave violations of the FIFA Statues”. This meant that T&T would not able to participate in international competitions and would not receive any resources from FIFA as it relates to training and other aids.
Notably, it would seem that much of the criticism was directed towards TTFA’s actions which can be taken to correlate to the Court’s decisions. While the Minister of Sports, Shamfa Cudjoe, spoke out against TTFA before any judicial rulings were made, this was not the case for the Prime Minister, Dr Keith Rowley. There must be credence given to the rule of law which allows for the separation of powers, especially in active judicial cases. In light of the fact that the Court had yet to hear the appeal, the statements of the Prime Minister had the potential to compromise the sanctity of the Court’s proceedings.
Nevertheless, on Friday, the Court of Appeal decided in favour of FIFA and invalidated the jurisdiction of the domestic court. The Court agreed with FIFA that any appeal against a final and binding decision passed by FIFA shall be heard by CAS.
The decision of Justice Gobin is now merely academic.
Could there have been alternative action?
Was TTFA standing up against FIFA as a small organisation in a small island developing State or was TTFA being selfish in not accepting the action of its overarching superseding body?
In light of CAS’ alleged improprieties, TTFA’s main contention was that there was no other means of reasonable recourse beyond the domestic courts. However, this may not be entirely true. CAS is a Swiss institution governed by the Swiss Private International Law Act (PILA), subject to the more general framework of international arbitration. However, as Despina Mavromati writes, arbitral awards are final upon their notification and can only be challenged before the Swiss Federal Tribunal (SFT) on very few grounds as prescribed by article 190(2) of the PILA. In fact, the SFT has set aside several CAS awards in multiple rulings. It plays a significant role in controlling the both the legality of CAS as an arbitral institution and the legality of CAS awards. Additionally, the SFT may confirm, reject or more generally interpret some of the procedural provisions of the CAS Rules and the law applicable to the merits.
Taking this into consideration, it may have been very possible for TTFA to appeal to the SFT in order to compel FIFA to pay its share of the CAS fees. Proceeding in such a manner, one that would have been compliant with FIFA’s procedures, would have given FIFA no credible justification to suspend TTFA. Further pursuant to this, even if the underlying alleged bias of CAS prevailed in the proceedings of the matter, TTFA would still have been afforded a substantive appeal to the SFT.
So, what now?
The invalidation of jurisdiction reverts us now to the original position. Its consequence would indicate the normalisation committee could now possibly be instituted once accepted by TTFA. However, it may be that FIFA’s position is that TTFA’s suspension means that there is no longer a normalisation committee to be operationalised, leaving the direction of local football at a standstill. On Sunday, TTFA held an Extraordinary General Meeting of TTFA which saw the notable absence of Wallace. The decisions which came from said meeting were that TTFA would not pursue a further appeal to the Privy Council by a vote of 33-2. Additionally, TTFA will fully comply with its obligations as a member of FIFA, recognise the legitimacy of the FIFA-appointed normalisation committee and bring its own statutes in line with the FIFA statutes. It remains to be decided how the payment of FIFA’s legal fees as ordered by the Court of Appeal will be addressed.
Until then, time ticks away to the CONCACAF Gold Cup Tournament which has been delayed until August 1, 2021 with many persons wondering whether the suspension would be lifted to facilitate our participation. If not, this may greatly impact on T&T’s chances at qualification for World Cup 2022 in Qatar. Already experiencing disdain from COVID-19 restrictions, local footballers are left in the wind and search for a new purpose since international competitive aspirations have been stifled. Notwithstanding this, the sour taste left in FIFA’s mouth for TTFA may leave their relationship in a position beyond complete repair.
How permanent are the scars of TTFA v FIFA? Only time will tell.
SOURCE: T&T Guardian