In matters of law, the most publicised cases are not necessarily the most momentous. Who would have thought that the court action brought by RFC Liège midfielder Jean-Marc Bosman against the Union Royale Belge des Sociétés de Football Association ASBL would transform football as it did after the European Court of Justice ruled in his favour on 15 December 1995?
Another date might yet be seen to have been as significant in the future: Thursday 13 August 2020, when Justice Carol Gobin ruled in favour of the Trinidad & Tobago Football Association (TTFA) in their dispute against FIFA in the High Court of the Caribbean nation. FIFA is not used to be taken to court by one of its member associations; it is even less used to losing a case of that kind. But this was exactly what happened; in fact, this was the first time ever that it had.
TTFA vs. FIFA
The particulars of this complex case can be summed up thus: on 17 March of this year, the newly-elected board of the TTFA was the subject of a ‘normalisation order’ issued by Veron Mosengo-Omba, FIFA’s Director of Member Associations for the Caribbean and Africa. A ‘normalisation committee’ was put in place by FIFA, headed by Robert Haddad, a local businessman with no background in football. Short of suspension or expulsion, this was the heaviest sanction FIFA could impose on one of its 211 Member Associations (MA). Why it was imposed, and how it could be seen as a politically-motivated move, even an act of revenge, was explained in detail by Josimar here and here.
The TTFA first sought to fight this decision at the Court of Arbitration for Sport (CAS), but could not gather the necessary funds to have the case heard at the Lausanne tribunal, where they’d have to cover the legal costs of FIFA as well their own. FIFA, one of CAS’s main financial contributors, has a statutory right to force opposing parties to pay for the whole process and exercised it in this instance, knowing full well that the impoverished TTFA didn’t have the means to foot the bill. As this avenue was now blocked to them, TTFA’s president William Wallace and his board took what looked like a desperate gamble at the time: with the help of pro bono lawyers, they opened proceedings against FIFA at the High Court of Trinidad and Tobago, a move that many thought far too risky. But this gamble paid off – at least in court, when Justice Carol Gobin delivered her verdict on 13 August.
The TTFA wished to demonstrate that FIFA had violated its own statutes by establishing a normalisation committee; and beyond that, that the law of Trinidad and Tobago superseded the authority of FIFA in matters pertaining to the TTFA. Justice Gobin ruled in favour of the TTFA on all counts, delivering an unambiguous 23-page ruling, written in robust English which must have caused a lot of unease in Zurich.
Her ruling hinged in part on what she considered a breach of FIFA’s Statute 19.2, which reads: “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“. As Justice Gobin put it, how could FIFA then assume “extraordinary power to control the day to day affairs of TTFA?”.
Moreover, she said, “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 [our italics]”.
Justice Gobin was not too impressed either by FIFA’s refusal to pay its fair share at a possible CAS hearing. “[FIFA’s] refusal to pay the advance costs rendered the arbitration inoperable”, she said. In any case, she didn’t think “that arbitration would be the appropriate forum for the resolution of this dispute […] 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. [our italics]”.
This was a point on which FIFA clearly disagreed, as shown in the statement it published to explain its decision to appeal against the High Court’s ruling. It read: “FIFA […] insists that the only recognised path to resolve such a dispute is the Court of Arbitration for Sports (CAS). The recognition of the CAS as the correct forum in which to hear the dispute is in accordance with the FIFA Statutes that all 211 FIFA member associations have agreed to, as well as in agreement with TTFA’s own statutes on this matter”.
The question remains: why did the High Court’s decision matter so much? And would its impact be felt way beyond Port-of-Spain?
“Has opened the door”
Whilst the matter is not closed – FIFA lodged an appeal at the 11th hour, and Justice Gobin still has to rule on the ‘substantive case’, for which FIFA was given a three weeks extension to file its defence – it constitutes more than a mere slap on the wrist for Gianni Infantino’s organisation. It represents an unprecedented challenge to its self-proclaimed right to be the supreme authority on world football which, if upheld, could have dramatic consequences on the game’s governance. It would also put in question the role of the Court of Arbitration for Sport (CAS) as the ultimate arbitrator in disputes involving FIFA.
Why couldn’t any other MA do exactly the same as what the TTFA had done when subjected to a normalisation order by FIFA? Of course, not every MA has a legal status comparable to that of TTFA in its home country, nor do the laws of Trinidad and Tobago have a universal value.
There have been other ‘test cases’ in the recent past, which appeared to challenge the supremacy of CAS and the very principle of supranationality in sports governance, and ultimately did not, such as the so-called Pechstein Saga and the Decision of the Oberlandesgericht München: neither had the impact that been hoped for, or feared. There is a significant difference in this case, however. The ruling emanated from a country’s supreme judicial body, not from an obscure county court, and FIFA had chosen – foolishly? – to fight back in court, and lost, at least for now.
Now a precedent has been set: FIFA cannot “presume to be above the law”, a message which immediately found an echo in neighbouring Jamaica, whose federation, the JFF, has been on FIFA’s watchlist for a while and has feared normalisation for a number of months now.
A few days after the ruling, the Vice-chairman of the Jamaican Premier League Clubs Association Carvel Stewart was telling a local paper: “[…] FIFA will now be hesitant in taking such a fundamental step as literally overthrowing an elected organisation and putting in a normalisation committee. FIFA would not want to repeat that process because of the way the ruling has gone in T&T. They have always seemed to operate with impunity, but this has now opened the door quite wide.”
This, too, is the view of one of the main actors in the TTFA vs. FIFA affair, president of the TT Super League and chairman of the TTFA technical committee Keith Look-Loy, who insists on the global dimension of both the predicament his FA found itself in and the judgement made in his country’s High Court, as he explained in a letter sent to the editor of the T&T website Wired868.com.
“When one observes recent developments in Switzerland involving the Fifa president, one understands the concern across the globe, inside and outside of football, that the manipulation of legal process and officials is endemic to Fifa’s legal and administrative culture”, he wrote. “I have always said this is the real reason behind the imposition of the normalisation committee: to cover up malpractice and to secure TTFA’s vote in Fifa’s global game”.
“Indeed, recent letters from high Fifa officials to the presidents of national associations across the globe—intended to rally support for embattled Gianni Infantino against criminal proceedings by the Swiss state—demonstrate the absolute necessity of securing his global voting bloc as protection against suspension by Fifa’s Ethics Committee (*)”.
Look-Loy was just as sanguine when Josimar contacted him a few days ago. “In terms of football governance, [the High Court’s] decision must be the biggest in decades when it comes to FIFA”, he told us. “I really do not see [another] national court telling its citizens that FIFA law trumped its own. FIFA is not supreme, FIFA’s power is not infinite, and this is of huge significance for the future of football governance. This calls into question the whole normalisation committee/CAS network, if I may call it that. A friend was telling me recently: “FIFA is a bully, and bullies win”. I answered, “yes, bullies win – until they don’t.”
On the TTFA’s side, the main worry now is that FIFA, which decided to bring Justice Gobin’s decision to T&T’s Court of Appeal late on Thursday evening, could retaliate by suspending it from its competitions, when the Soca Warriors have just been drawn against Guyana, St Kitts and Nevis, Puerto Rico and Bahamas in the preliminary stage of the CONCACAF qualifiers for the 2022 World Cup.
Not too much should be read in the fourth item on the agenda of FIFA’s forthcoming Congress, which will be held online on 18 September: “suspension or exclusion of a member”. This is a statutory item which is included in every agenda of this kind and carries no particular sinister significance; but what is true is that expulsion from FIFA can only occur when ordered by the Congress, and that suspensions must be ratified by it too. What is also true is that the closing paragraphs of the FIFA statement published late on 20 August, in which the governing body announced it had lodged an appeal, could be read as a threat, and not a particularly subtle one at that.
It read: “The insistence of the TTFA former leadership to bring this matter to a local court instead of the established dispute resolution forum at CAS greatly endangers the overall football structure in the country and endangers the position of Trinidad and Tobago football internationally.”
“The absence of a resolution that is in line with the statutes of both FIFA and TTFA will result in the matter being brought to the attention of the relevant FIFA bodies for consideration and potential further action”.
What other ‘potential further action’ could be envisaged apart from suspension, or even expulsion?
Unsettled times lie ahead for both the TTFA and for FIFA. The former has been in limbo for over five months now, and many of its employees, including coaches, haven’t been paid a cent during that period. FIFA cannot operate properly without supranational powers being accepted as part of the deal by its Member Associations; but it overstepped the mark, at least according to the T&T High Court, and must now face the prospect of more challenges coming its way should it overstep again.
The paradox at the heart of the affair is that the TTFA is as isolated as it has ever been, in its own region and elsewhere. A few leading figures in Caribbean football have privately expressed their satisfaction with the ruling, but none of them has dared to do so in public as yet. Victor Montigliani’s CONCACAF distanced itself from the TTFA from the outset, and shows no sign of changing that stance. None of the Caribbean Member Associations has made a public show of solidarity with the TTFA administration. Yet many of them might benefit from what it dared to do.
And once again, Jean-Marc Bosman’s case comes to mind.
Excerpts from Justice Gobin’s judgment“
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 and its insistence on holding the TTFA to the arbitration agreement on the other. The Claimant [i.e. the TTFA] properly asks the question: ‘whom does FIFA hold to that agreement’.
“In other words, if Fifa disputes the authority of [TTFA elected president] 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.”
“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, 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.
“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. 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”.
“I do not think that arbitration would be the appropriate forum for the resolution of this dispute. 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.”
“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.”
SOURCE: josimarfootball.com