Trinidad and Tobago Football Association (TTFA) president William Wallace said he was ‘extremely happy’ but also wary, after a significant triumph today in his case against the world governing body, Fifa.
“All we wanted was a chance to be heard, and if this is the first step towards that then I am extremely happy,” Wallace told Wired868. “I won’t be shouting and saying hoorah though… We are just waiting to see what happens now.
“There are 21 days [for Fifa to file a defence against the TTFA’s substantive case in the High Court], so we are waiting to see if Fifa proceeds or not.”
Wallace and TTFA vice-presidents Clynt Taylor, Susan Joseph-Warrick and Sam Phillip are challenging Fifa’s decision to remove them from their elected positions on 17 March—just four months into their respective terms—and put a normalisation committee, headed by Robert Hadad, in their place.
Fifa, headed by president Gianni Infantino, asked the Port of Spain High Court to either dismiss Wallace’s application or force them to instead take their battle to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland. Fifa is headquartered in Zurich, Switzerland.
Today, Justice Carol Gobin refused on both points and ordered Fifa to pay the legal costs for the TTFA officials’ attorneys, after the former’s failed manoeuvre.
The TTFA is represented legally by Dr Emir Crowne, Matthew Gayle, Jason Jones and Crystal Paul while Fifa was represented in the High Court action by attorneys Christopher Hamel-Smith SC, Jonathan Walker and Cherie Gopie.
Wallace and company are operating under the threat of a Fifa suspension by daring to take the world’s most powerful individual sport body to court. But the besieged TTFA president said his group made a measured effort to spare local football from possible backlash.
“We have always said from the outset that, if this resulted in a personal ban from Fifa, we are prepared to accept that,” said Wallace. “We also calculated that the risk of the country getting banned was pretty low. What we did is we took up this matter as elected individuals rather than as the TTFA—so we did not draw the TTFA into the case in essence but acted as elected members who were unfairly removed from office.
“That is why all the funding used in the case was from personal funds and not from the TTFA’s coffers. So if there is to be a ban, it would be on us as individuals.”
During Hamel-Smith’s submissions, he told the High Court of ‘severe consequences to which the TTFA is exposed as a consequence of taking action in direct breach of the terms of its membership of Fifa’ and warned that suspension from the governing body would deny national teams from participating in tournaments and ‘compromise the careers, livelihood, education and other prospects for players’.
Justice Gobin responded that Fifa might be violating its own statutes to ban the TTFA and the blame for such action could not placed on the local officials.
“As for the concerns about irreparable fallout or adverse consequences to TTFA and Trinidad and Tobago, I am encouraged by the lofty objectives identified in Fifa statutes,” stated Justice Gobin, “and particularly articles (3) and (4) of Fifa’s commitment to respecting internationally recognised human rights, non-discrimination of any kind against a country for any reason and its commitment to promoting friendly relations in society for humanitarian objectives all of which are underpinned by an appreciation for the rule of law.
“I do not expect Fifa to walk off the field or to take its ball and go home if after full ventilation of the issues, this court were to confirm the primacy of an Act of the Parliament of the Republic of Trinidad and Tobago over the Fifa Statutes.”
A key point in the legal tussle was the TTFA’s decision to withdraw from the CAS. Wallace argued that the CAS showed bias towards its Swiss neighbours while Fifa argued that the former Carapichaima East Secondary vice-principal had been too hasty in abandoning their challenge there.
Again, Justice Gobin ruled in favour of the TTFA officials on that point. Wallace said he felt vindicated.
“The judge spoke about Fifa’s decision not to pay its share of fees to CAS,” said Wallace. “That to me was just basically putting us in a position where we would be forced to drop the matter. So I am happy we got justice somewhere else.
“[…] It was interesting to also note that the judge gave a couple comments which gave insight into the case, when she spoke to Fifa having to prove that setting up a normalisation committee is not going against its own statutes in allowing member countries to run its own affairs. That was quite, quite interesting.”
Wallace’s issues since 17 March have not been solely related to Fifa, as was criticised by even his vice-presidents over the handling of contracts given to marketing manager Peter Miller, Soca Warriors head coach Terry Fenwick and general secretary Ramesh Ramdhan.
Last month, he resigned his post as Secondary Schools Football League (SSFL) president after disquiet regarding the aforementioned deals.
However, Wallace hopes that this case can still be a positive turning point for the local game.
“I know that there was concern out there about this case from stakeholders and still is,” said Wallace, “but there comes a time when you have to stand up for something; and I am hoping that, at the end of the day, whatever results from this makes Trinidad and Tobago’s football stronger—and possibly world football too.
“We thank God for this.”
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Justice Gobin: ‘Fifa could not presume to be above the law’! Infantino-led body accused of ‘thumbing nose’ at fair play in TTFA attack.
By Lasana Liburd (Wired868).
Madame Justice Carol Gobin handed down a comprehensive defeat to global football body, Fifa, in the Port of Spain High Court today, in a decision that is likely to be read closely across the planet.
The TTFA was represented legally by Dr Emir Crowne, Matthew Gayle, Jason Jones and Crystal Paul of the New City Chambers. Fifa was represented by attorneys Christopher Hamel-Smith SC, Jonathan Walker and Cherie Gopie from M Hamel-Smith and Co.
On 17 March, the Bureau of the Fifa Council—headed by Fifa president Gianni Infantino—ordered a normalisation committee in Trinidad and Tobago and declared that Trinidad and Tobago Football Association (TTFA) president William Wallace, vice-presidents Clynt Taylor, Susan Joseph-Warrick and Sam Phillip, as well as its board of directors had been immediately replaced.
Wallace and his vice-presidents have resisted the ruling in the local High Court. However, Fifa urged the High Court to accede to arbitration clauses in the constitution of both football bodies and instead send the matter to the Court of Arbitration for Sport (CAS), or dismiss the TTFA’s case outright.
Justice Gobin did neither. Instead, she ruled that Fifa’s conduct in its implementation of the normalisation committee was a violation of its statutes while its behaviour in relation to the TTFA rendered the arbitration clause ‘inoperable’.
Fifa secretary general Fatma Samoura said repeatedly that the governing body does not recognise Wallace and his vice-presidents as the representatives of the TTFA and only considers normalisation committee chairman Robert Hadad as the head of the local game.
How then, Justice Gobin asked in her 24-page ruling, can Fifa logically recognise Wallace’s authority before the CAS?
“There is an inherent contradiction in the Fifa’s purported appointment of a normalisation committee, the purpose of which has been to usurp the powers and functions of the executive of the TTFA on the one hand,” stated the High Court judge, “and its insistence on holding the TTFA to the arbitration agreement on the other. The Claimant properly asks the question: ‘whom does FIFA hold to that agreement’.
“In other words, if Fifa disputes the authority of Mr Wallace and others to act on behalf of TTFA, and TTFA is under the control of the normalisation committee—how does it reconcile that with its insistence that these very persons who have no authority to file these court [documents] should commence arbitration proceedings in Switzerland?
“The arbitration process cannot be triggered if there is a dispute as to the capacity of one of the parties to invoke the process and to bind TTFA to any outcome.
“[…] By its challenge to the authority of persons to bring this action, in which proceedings were signed by the President, Mr Wallace and the board of directors named in the arbitration proceedings, the arbitration was rendered inoperable.”
The High Court further ruled that Fifa had ‘not demonstrated that it is ready and willing to do all things necessary to the proper conduct of the arbitration’.
Wallace initially sought to defend his position at the CAS, only to withdraw citing bias from the Swiss-based arbitration body. Justice Gobin was not satisfied with Fifa’s behaviour at the CAS either.
The judge pointed to Fifa’s refusal to pay its share of arbitration fees upfront as well as the CAS’ decision to allow the governing body an extension to file its answer until after the TTFA paid fees for both parties.
“In its interpretation and application of the rules, the [CAS] court office effectively denied access to the prescribed method of achieving dispute resolution to the undeniably weaker of the parties,” stated Justice Gobin. “Fifa was at all times aware of the dire state of the TTFA’s finances, which predated the installation of the new Board of Directors in office in November 2019.
“Rules which were intended to level the playing field, in the words of the Privy Council allowed ‘the strong to push the weak to the wall’ (Janet Boustany v George Pigott Co, Antigua and Barbuda [1993] UKPC).
“[…] In this case, not only has Fifa unequivocally refused to comply with the CAS 64.2 rule, thumbing its nose at its obligations to pay under the agreement, it further paralysed the arbitral process by obtaining an extension of time to answer the case until after TTFA paid its (Fifa’s) costs.
“This together with the refusal to recognise the [TTFA] Board of Directors was sufficient to establish a wider pattern of repudiatory conduct and in the circumstances of this case I find that the refusal to pay the advance costs rendered the arbitration inoperable.
“The stay of proceedings would not have been granted in the circumstances.”
Fifa’s attorneys had argued that, although the TTFA’s Constitution did not expressly grant power to the world governing body to override its affairs, this was irrelevant since the local football body agreed to conduct its affairs in accordance with Fifa mandates. As such, they argued that Fifa’s Statutes trumped the TTFA’s Constitution.
However, Justice Gobin pointed to article 19 of the Fifa Statutes:
1. Each member association shall manage its affairs independently and without undue influence from third parties.
2. A member association’s bodies shall be either elected or appointed in that association. A member association’s statutes shall provide for a democratic procedure that guarantees the complete independence of the election or appointment.
3. Any member association’s bodies that have not been elected or appointed in compliance with the provisions of par 2, even on an interim basis, shall not be recognised by FIFA.
4. Decisions passed by bodies that have not been elected or appointed in compliance with par 2 shall not be recognised by Fifa.
“Fifa may yet have to justify its purported assumption of extraordinary power to control the day to day affairs of TTFA,” stated Justice Gobin, “including authority to review and amend its statutes and to organise and conduct elections of a new TTFA Executive Committee for a four-year mandate.
“This appears to be in breach of FIFA Statute 19.2.”
And, crucially, Justice Gobin ruled that Fifa had no right to deprive its member associations of the right to seek determination from its local courts.
“Had Parliament intended to enact Fifa Statutes so as to oust the jurisdiction of the courts and to effectively deprive the TTFA of access to the courts of this country, it would have had to do so expressly in clear and unambiguous terms,” stated the High Court. “[…] The dispute in this case falls under Article 67 of TTFA’s Constitution under which TTFA agreed to subscribe to the exclusive jurisdiction of CAS. A statutory corporation which is empowered to make rules for its operations goes too far when it makes rules or adopt rules which foreclose access to the courts of the country.
“Moreover it is outwith the jurisdiction of an entity incorporated under our legislation to agree to submit to foreign law as Fifa Statutes prescribe… Fifa could not presume to be above the law.”
Justice Gobin further stated that Fifa’s attempted ‘ouster clause’ for local courts was insufficient to deny its application by member associations. She pointed to Lord Reid’s ruling in Anisminic v Foreign Compensation Commission HL [1969] 2 AC 147, which said:
“It is a well-established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly, meaning I think, that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserve the ordinary jurisdiction of the courts.”
A key point by Fifa is that the CAS is the best venue to determine whether the governing body was justified in intervening in the TTFA’s internal affairs.
However, Justice Gobin did not agree that this was a matter of justifying Fifa intervention at all. For her, it was a case of if Fifa had the right to intervene in the first place, through the implementation of a normalisation committee.
“I do not think that arbitration would be the appropriate forum for the resolution of this dispute,” stated Justice Gobin. “This case goes well beyond TTFA’s alleged governance issues and the justifiability of Fifa’s purported action in appointing the Normalisation Committee. This is about the legitimacy of powers exercised under Article 8.2 of the Fifa Statutes and its consistency with a law passed by legislators in this country.
“This is a matter which falls squarely within the jurisdiction of the High Court of this country. This is not a matter for the Court of Arbitration for Sports.”
Justice Gobin noted Fifa’s threats to take draconian action to the detriment of the local game.
Hamel-Smith told the High Court that Wallace’s use of the local courts ‘renders TTFA susceptible to be suspended from Fifa’s membership—aside from the direct implications for TTFA such as suspension will impact the country of Trinidad and Tobago whose various nationals teams will no longer be allowed to partake in international tournaments and matches. This compromises the careers, livelihood, education and other prospect for players’.
However, Justice Gobin suggested that Fifa would be in violation of its own humanitarian goals if it took such an action against Trinidad and Tobago’s football.
“As for the concerns about irreparable fallout or adverse consequences to TTFA and Trinidad and Tobago, I am encouraged by the lofty objectives identified in Fifa statutes,” stated Justice Gobin, “and particularly articles (3) and (4) of Fifa’s commitment to respecting internationally recognised human rights, non-discrimination of any kind against a country for any reason and its commitment to promoting friendly relations in society for humanitarian objectives all of which are underpinned by an appreciation for the rule of law.
“I do not expect Fifa to walk off the field or to take its ball and go home if after full ventilation of the issues, this court were to confirm the primacy of an Act of the Parliament of the Republic of Trinidad and Tobago over the Fifa Statutes.”
Justice Gobin granted Fifa a 21-day extension to file a defence to the TTFA’s injunction against its normalisation committee. However, Fifa’s application for stay and all other aspects of its application was dismissed.
Fifa was also ordered to ‘pay the claimants costs to be assessed by this court in default of agreement’.
Infantino, according to football sources, vowed, beforehand, to convene the Bureau of the Fifa Council immediately after the High Court decision to consider action against Wallace, his vice-presidents and the TTFA—if he did not get his way.
The Fifa Bureau is its emergency committee and includes Infantino and presidents of its six confederations, including Concacaf.
On Wednesday 19 August, Concacaf will hold its draw for the Qatar 2022 World Cup qualifying schedule. A Fifa suspension over the coming days would automatically rule the Soca Warriors out of the draw.
Infantino’s legal problems are in no way restricted to the TTFA. Two weeks ago, Swiss special prosecutor Stefan Keller initiated a criminal investigation against the Fifa president as result of secret meetings between the football jefe and Switzerland Attorney General Michael Lauber.
Keller, who was appointed on 29 June by the Supervisory Authority for the Office of the Attorney General (OAG), found enough evidence to indict Infantino, Lauber and Chief Public Prosecutor Rinaldo Arnold on abuse of public office, breach of official secrecy and assisting offenders—which are article 312, 320 and 305 of the Swiss Criminal Code respectively.
Wallace wins in High Court, Fifa application dismissed as seismic case remains in Trinidad.
By Lasana Liburd (Wired868).
If Fifa wants to defend its implementation of a normalisation committee in Trinidad and Tobago, the world governing body will have to do so in the Port of Spain High Court.
Today, Justice Carol Gobin dismissed Fifa’s application to move its case with Trinidad and Tobago Football Association (TTFA) president William Wallace and his vice-presidents to the Court of Arbitration for Sport (CAS) and also refused to stay proceedings between the two parties.
Justice Gobin also ordered Fifa to pay the TTFA’s legal costs.
The result is arguably a vindication of Wallace’s decision and that of his vice-presidents Clynt Taylor, Susan Joseph-Warrick and Sam Phillip to leave the CAS. However, it might come at a cost. Fifa secretary general Fatma Samoura warned previously that Fifa will not continue with the case, should the TTFA win at this stage, and will instead implement sanctions.
Fifa statutes give the world governing body the authority to suspend the TTFA from all international competition and/or impose sanctions on the officials who launched legal proceedings.
The TTFA is represented legally by Dr Emir Crowne, Matthew Gayle, Jason Jones and Crystal Paul of the New City Chambers.
Fifa was represented in the unsuccessful High Court action by attorneys Christopher Hamel-Smith SC, Jonathan Walker and Cherie Gopie from M Hamel-Smith and Co.
The decision by the Port of Spain High Court further dents the credibility of Fifa’s normalisation committee in the twin island republic, which is headed by Robert Hadad and also includes deputy chairperson Judy Daniel and ordinary member Nigel Romano.
The Fifa Bureau of the Council announced a normalisation committee in Trinidad and Tobago on 17 March—a decision that immediately annulled the election of Wallace and his vice-presidents just four months earlier.
Fifa said its decision was based on concerns regarding the financial management of the local football body, although Wallace countered that the move was politically motivated.