Downer: Sancho used local courts—so why not Wallace? And Look Loy was not removed

The TTFA Constitution—article 38.2-2—and FIFA’s standard statutes reflect each other verbatim on the procedure necessary to remove a member:

“The motion for dismissal must be justified. It will be sent to the members of the Board of Directors and/or to the members along with the agenda. The person or body in question has the right to defend him or herself…”

Downer, a former Fifa match referee, said Wallace has a moral right to defend his position.

“The decision to remove him without allowing him to state his case, violates natural justice in all courts of law,” Downer told Wired868. “For somebody to be punished—and the removal via a normalisation committee is a punishment—they should be given a chance to state their case. And the same thing is in Fifa statutes regarding the dismissal of a member association.”

Thus far, the Fifa Bureau of the Council, which is headed by president Gianni Infantino, has not only declined the opportunity to give Wallace his say but also refused to justify its decision.

The Bureau claimed its decision to remove the board of the Trinidad and Tobago Football Association (TTFA) was based on a ‘recent FIFA/Concacaf fact-finding mission to Trinidad and Tobago’; but did not publish the report or share it with the local body.

And Wallace and his officers—as well as finance committee chair Kendall Tull—said members of the mission, which comprised of Fifa finance coordinator Mehmet Dirlik, Concacaf finance manager Alejandro Kesende, Concacaf finance department member Dally Fuentes and independent auditor Valeria Yepes, gave the opposite impression to local administrators.

Downer suggested that the Bureau’s actions not only violated the principle of natural justice but also seemed at odds with several articles of Fifa’s own statutes, including article 45:

‘The Member Associations Committee shall deal with relations between FIFA and its member associations as well as the member associations’ compliance with the FIFA Statutes and draw up proposals for optimum cooperation. The committee shall also monitor the evolution of the Statutes and regulations of Fifa, the confederations and member associations.’

Downer felt the Bureau’s stated concerns regarding the TTFA, sounded tailor-made for Fifa’s Members Association Committee.

“I would just wonder why Fifa would not use this article,” said Downer. “There must be good reason for having this article there to settle things as now befalls the TTFA, instead of having recourse to normalisation committees with all its implications. It is in their statutes.

“Why did they set up this committee, just to be disregarded? It states clearly the Members Associations Committee shall deal with relations between Fifa and its member associations…

“Fifa could easily have sent their members of this committee to Trinidad to sit down with the elected officers to see how best the matters could be resolved, instead of resorting to this heavy-handed normalisation committee approach.”

Downer scoffed at arguments put forward by Pro League interim chairman Brent Sancho and former technical director Anton Corneal that Wallace’s decision to take up the matter in the High Court was putting the local game in harm’s way.

Article 59.1-2 of the Fifa Statutes states:

“The confederations, member associations and leagues shall agree to recognise CAS as an independent judicial authority and to ensure that their members, affiliated players and officials comply with the decisions passed by CAS. The same obligation shall apply to intermediaries and licensed match agents.

“Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. Recourse to ordinary courts of law for all types of provisional measures is also prohibited.”

Yet, Sancho himself took the local football body to court for 2006 World Cup bonus fees, despite warnings of a Fifa ban by then Fifa vice-president Jack Warner. Corneal also prevailed against the TTFA in the High Court.

So too have past and present employees like Kendall Walkes, Stephen Hart, Ramesh Ramdhan and Sheldon Phillips. Look Loy also used the High Court, two years ago, to have former TTFA president David John-Williams provide transparency for the controversial Fifa-funded Home of Football project.

“In my wide experience, I don’t know that a body has ever being expelled solely for going to court—there is usually more to the debate than that,” said Downer. “There have been cases of persons using the court, including locally. The same Sancho went to the High court. The TTFA could have expelled him, because the TTFA has the same thing in its constitution as Fifa.

“How can you be thrown out merely for going to a local court for justice?”

Downer insisted that, morality aside, the current impasse hinges on a fine legal point. So the current forum for the debate was inevitable.

“Every member’s constitution is approved by Fifa and one of the main things is they must not be anything in the member’s constitution that conflicts with any of Fifa’s statutes,” said Downer. “The TTFA constitution gives the right to suspend or dismiss officers only to the general meeting of the TTFA. And that is not only in the TTFA constitution—it is also in the Fifa standard statutes, verbatim.

“I am sorry it didn’t go to the Court of Arbitration for Sport but perhaps the local court will make a determination because it is a legal point. Fifa approved the TTFA’s constitution in 2015 and the very TTFA constitution is very clear in article 38.

“[…] In other words the move made by Fifa abridges the constitution of the TTFA itself; and this requires legal interpretation. I would have been glad to see CAS settle that point but if not, I will be glad to see a legal mind settle it in the local court.”

Downer confirmed that normalisation committee chairman Robert Hadad has not contacted the referees’ association as yet and said he was unimpressed with the work of the Fifa-appointed body so far.

“At this moment, football is at a dead-still—not even a standstill,” he said. “We know there is Covid but why can’t you be planning still? The referees association had a council meeting just [yesterday] online.”

He scoffed at suggestions that Hadad, with Fifa’s permission, would single-handedly bend local football and its constitution to the will of the governing body.

“The TTFA Constitution was approved by Fifa and is almost word for the word the same as the Fifa standard statutes,” said Downer. “But in any case, anything Hadad proposes must be decided upon by the TTFA Congress. It must be remembered that the normalisation committee has a very narrow mandate—only the executive [of the TTFA] has been replaced.

“I was asked the question about the general secretary, which is not part of the executive but an employee of the Association. Similarly, all the committees appointed by the Congress are in place. If that was not the case, football would stop completely; and football has to go on.”

The TTFA technical committee is headed by Keith Look Loy, who is also a member of Wallace’s United TTFA slate. At present, technical director Dion La Foucade appears to be operating outside of his remit as he appears to have been operating as a one-man technical committee.

But Downer stressed that Fifa’s decision only removed Wallace and his vice-presidents Clynt Taylor, Susan Joseph-Warrick and Sam Phillip.

Look Loy apart, other committees that should not be affected by the implementation of a normalisation committee are: finance (headed by Tull), club licensing (headed by Jamilya Muhammad), sports medicine (headed by Roger Evelyn), the competitions committee (headed by Sam Phillip) and the players status committee.

The TTFA Congress also made the following appointments prior to the normalisation committee: Richard Piper (national teams director), Jinelle James (women’s football director), Norris Ferguson (club licensing and compliance director) and Kelvin Jack (head of goalkeeping).

“The technical committee has to function,” said Downer. “They have not been disbanded and that is not within the remit of the normalisation committee—the functions of those committees is not one of their mandates.”

The mandate of the normalisation committee is:

to run the TTFA’s daily affairs;

to establish a debt repayment plan that is implementable by the TTFA;

to review and amend the TTFA Statutes (and other regulations where necessary) and to ensure their compliance with the FIFA Statutes and requirements before duly submitting them for approval to the TTFA Congress;

to organise and to conduct elections of a new TTFA Executive Committee for a four-year mandate.

He urged football stakeholders to stand on the side of justice and let the law take its course.

“This is basically a constitutional matter and my big point is that Fifa approved the TTFA constitution and was very instrumental in devising the present TTFA constitution, which is almost a carbon copy of the Fifa standard statutes,” said Downer. “Only a court of law can settle this—not only for us but for any other world association. I don’t see why anybody should be punished for challenging the legality of that.

“The principle of natural justice is paramount in law that somebody must be given an opportunity to defend him or herself. Even children get a chance to say something in their defence. Is Fifa going against a constitution that they themselves have approved?

“This is a matter of principle—not a matter of getting banned or not getting banned. Everybody in the world has a right to seek justice. If that is not the case, then something is wrong somewhere.”

RELATED NEWS

TTOC president: Fifa and CAS failed ‘duty of care’ to TTFA; that’s why case is in High Court
By Lasana Liburd (Wired868).

Besieged Trinidad and Tobago Football Association (TTFA) president William Wallace and his vice-presidents, according to Trinidad and Tobago Olympic Committee (TTOC) president Brian Lewis, are not the only ones responsible for their case against Fifa ending up in the local High Court.

On Monday, Wallace moved an action against his supposedly illegal and unjust removal by the Fifa Bureau of the Council from the Switzerland-based Court of Arbitration for Sport (CAS) to the local courts, after claiming that his hope for fair treatment from CAS had been shattered.

Wallace, guided by attorneys Matthew Gayle and Dr Emir Crowne, claimed Fifa appeared to be creating and adjusting its own deadlines for procedural filings while the world governing body refused CAS’ request to pay half the cost of arbitration upfront—which left the TTFA saddled with the full figure of 40,000 Swiss francs.

Fifa statutes forbid members from challenging its decisions in any legal forum other than CAS, at the risk of sanctions. However, the TTOC president believes that stipulation makes it even more important for the CAS forum to be above reproach.

And he suggested that Fifa and CAS might have undermined the TTFA’s faith in the arbitration body and thus forced them to seek justice elsewhere.

“Fifa statutes prohibit members from pursuing matters in civil court,” Lewis told Wired868. “And given such a prohibition, Fifa has a duty of care to ensure that there is equitable treatment and due process in dealing with matters [at CAS]. According to Lord Chief Justice Hewart, ‘justice must not only be done it must be seen it should be manifestly and undoubtedly be seen to be done’.

“[…] I consider this an important landmark case in the history of lex sportiva (sport law). And CAS ought to have considered it important to hear the case.”

Lewis felt CAS did not do enough to facilitate Wallace and the TTFA, in a case that has already sparked interest in several corners of the globe.

Can Fifa essentially override the constitution of one of its member associations and force a regime change after just four months, without even the attempt of mediation?

The local official said it is a case that sport lawyers would salivate over and CAS, as ‘the privy council of sport’, had a duty to ensure they heard it.

“The founding purpose of CAS was to take international sport disputes out of national courts and to create a specialised forum where these disputes could be heard and decided quickly and inexpensively,” he said. “The principle of the autonomy of sport doesn’t mean any organisation is above the rule of law and should not be expected to adhere to principles of good governance.

“[…] CAS’ purpose is to guarantee independence and impartiality and there is a discretion to provide legal aid to facilitate access to justice for natural persons who may not have the financial means.

“This is a case that even Fifa and all international sport federations and sport lawyers should have wanted CAS to adjudicate and decide on, quickly and inexpensively. This is an important case for global sports law.”

Lewis, who helped frame the current TTFA constitution which was accepted by Fifa in 2015, disagreed that the ongoing impasse is a constitutional one.

“I will not categorise it as a constitutional crisis—it’s not,” said Lewis. “The Independent Review Constitution Commission, which was Fifa approved, created a constitution that allowed football to hold its elected officers to account. It fostered democratic elections. There have been two changes of administrations [since it was ratified].

“It has facilitated transparency and accountability. That’s not to suggest by any means that the constitution, like all constitutions, doesn’t require review and amendments from time to time—due to a changing and evolving operational environment.”

For the TTOC president, it is neither the TTFA constitution nor the leadership of Wallace that needs to be defended. Rather, he said, it is Fifa’s behaviour that should be under scrutiny.

“Fifa has the power, by virtue of their statues, to appoint a normalisation committee,” said Lewis. “The exercise of that right can’t be unfettered. It’s not a right to act in an arbitrary, illogical manner devoid of equitable treatment, rule of law and principles, without due process and natural justice; or to act unreasonably.

“Did Fifa reach its decision by transparent and objective criteria? On the facts of this particular case did Fifa act reasonably? Was there proportionality?

“Was the legitimate expectation of the democratically elected TTFA Executive breached? It’s a legitimate legal and sport law question that CAS would have had to consider and decide.”

Wallace and his general secretary, Ramesh Ramdhan, insisted on executing and publishing a forensic audit of the local football body—including the controversial TTFA Home of Football project. Lewis described the disruption of that exercise by Fifa’s normalisation committee as a ‘travesty’.

Notably, a full two months later, the decision by the Bureau, which is headed by Fifa president Gianni Infantino, is yet to be ratified by the Fifa Council.

Trinidad and Tobago Football Referees Association (TTFRA) vice-president Osmond Downer explained that the Bureau was previously referred to in the Fifa statutes as an ‘emergency committee’ but underwent a name change under Infantino in 2016.

Downer is skeptical about the wisdom in granting that body such far-reaching powers.

“The powers of an emergency committee must be—and usually is—limited to matters that are considered urgent and pressing which happen between Council meetings,” said Downer. “But this is a far-reaching decision for any emergency committee to make, which up to now has not been ratified by the Council [since their May meeting was postponed].

“What is the justification for making a decision that can affect a whole association like that—and against the constitution of that very association? At this moment, football [in Trinidad and Tobago] is at a dead-still; not even a standstill.”

Lewis, who is nearing the end of his second and final term as TTOC president, suggested that sport will not reach its full potential once international sporting bodies are motivated by self-interest and not the benefit of its members.

“If the world of Olympic sport wants to continue the veneer of the principle of the autonomy of sport, there must be best practice, legal processes and standards,” said Lewis. “Sport organisations aren’t, in my view, immune from legal intervention and legal principles. There must be safeguards that ensure fair treatment and so that organisations cannot make irrational and arbitrary decisions or act in bad faith.

“The global sports movement is Euro-centric, incremental, conservative and bureaucratic; that has been the biggest impediment to change and transformation and modernisation. The playing field isn’t level; it’s a daily battle.

“The entire ecosystem is wired—no pun intended—to protect the status quo. The ongoing abuse of their dominant position is real.”

The TTFA’s elected officers asked the High Court, on Monday, to declare Fifa’s decision to implement a normalisation committee in the twin island republic as ‘null, void and of no legal and/or binding effect’ and to place a permanent injunction against Fifa and its normalisation committee from ‘attempting removing the [TTFA’s] duly elected executive from office’ and ‘interfering in the day-to-day management of the [TTFA], including the [TTFA’s] bank accounts and real property’.

No date has been set for the hearing.

Fifa has been served court documents but is yet to respond to the impending matter.

Video - Wired868's Lasana Liburd on Fifa normalisation committee