Judge Carol Gobin may have given more weight than is due to the T&T Football Association (TTFA) Incorporation Act, No 17 of 1982 when she awarded victory to the TTFA in its lawsuit against FIFA in the T&T High Court on October 13.
The TTFA executive officers of president William Wallace as well as vice presidents Clynt Taylor, Susan Joseph-Warrick, who resigned her post on September 25, and Joseph Sam Phillip were seeking a declaration from the court that FIFA’s action to remove its executive from office in March of this year and appoint a Normalisation Committee was incompatible with the TTFA Act and therefore illegal void and no effect.
FIFA did not enter a defense in the matter, maintaining its view that state courts of its member associations do not enjoy to hear disputes of this nature and prefers those disputes to be taken to the Court of Arbitration for Sport (CAS) in Switzerland in keeping with article 59 of its statutes.
According to Sports Lawyer Tyrone Marcus, however, Judge Gobin may have misinterpreted the intent of the TTFA Act and therefore essentially ruled that the TTFA was absolved from abiding by FIFA’s statutes. All member associations are automatically bound by FIFA regulations upon gaining membership and the TTFA has been a member of FIFA since 1964.
Marcus said, “That type of Act of Parliament has a particular goal and objective, which is just to give a sporting association legal personality, to give it legal status. And the benefits of this would be things like entering into contracts, owning property, being able to sue in the name of the organisation etcetera.”
At the hearing of the lawsuit on October 9 the matters to be determined were as follows:
1. Whether the purported appointment of the Normalisation Committee was lawful.
2. Whether FIFA Statute 8(2) is compatible with TTFA Act No 17 of 1982.
3. Whether in any case FIFA has complied with its own statutes in the purported appointment of the Normalisation Committee. Whether there were exceptional circumstances to justify the invocation of FIFA Statute 8(2).
4. Whether on the evidence in the case the decision to appoint a Normalisation Committee was reasonable and made in good faith.
In her determination on points one and two, Judge Gobin drew the conclusion that the TTFA could be considered a ‘corporation created by special act and for a public purpose.’
Her judgment further explained, ‘This protects the public interest because a corporation created for a specific purpose by an act of the legislature ought not to have the power to do things not in furtherance of that purpose. This principle is more applicable to the TTFA Act.’
However, in an interview with Guardian Media Sports, Marcus disagreed.
“Justice Gobin may have given a certain level of weight to the Act of Parliament that I am not too sure she should have,” he said. “She mentions that the TTFA has been incorporated by an Act of Parliament from 1982 and that makes it a statutory corporation. To me that’s too big of a jump.”
Marcus added, “That, to me, is where there may be some issues with the judgement and some of the conclusions that would have been drawn because of the status that she gave it (TTFA). I am not of the view that the TTFA is a statutory corporation. It is still a body that is run privately by its members, it is not government controlled and its decisions are made by the ordinary day-to-day decisions of its members. So, it is very much operating like a private body and like any other one of our sporting associations who were not incorporated by an Act of Parliament.”
Marcus noted that it was not the first time that a local judge has interpreted a parliamentary act in a similar manner, where a sporting body which ordinarily operates as a private entity was given public status, including previous matters involving the TTFA.
“It's not the first case that one of our local judges in a sports dispute has elevated a private body to the status of a public body,” he said.
“And what it does is, if you are a public authority and you bring a challenge against a decision then it brings in questions like judicial review and what not, which is really reserved for public authorities. So, when Keith Look Loy took the TTFA to court, judicial review came up. Thema Williams back in 2016 when she took the Gymnastics Federation to court, judicial review came up again. And in my own view, I’ve been thinking to myself ‘I don’t agree with our judges.’”
On the issue of what needs to be done in order to make the TTFA compliant to FIFA’s statutes as is one of the conditions demanded by the global body before T&T’s current suspension can be lifted, Marcus says that in his interpretation, the Act of Parliament is no hindrance.
He said, “From where I sit, you don’t need to touch that Act of Parliament because it had a very limited goal and that goal has been achieved. Give the TTFA legal status – that was the goal, that was accomplished.”
“The TTFA’s day-to-day running does not depend on that piece of legislation, it depends on what the (TTFA) constitution says. Which is why when FIFA says bring your constitution in line with ours then what ever the gaps are, if any, then the TTFA needs to do that.”
In her judgement, Judge Gobin noted the irony that FIFA has refused to recognised the local court and legal system but demands an alignment of the two governing documents.
Marcus rebutted by saying, “In fairness to her if she concludes that the TTFA is a statutory corporation then that (adjustments of Act No 17 of 1982) is a reasonable outcome. I am saying if we were to take it back a bit the outcome would be different if she had a different assessment of the TTFA’s status. So to me the TTFA can comply without having to touch the legislation.”
FIFA has a pending appeal of Judge Gobin’s decision to allow the case to proceed in the state court which comes up for hearing on Monday October 19. If that appeal is successful, the Gobin’s ruling of October 13 will be voided and FIFA’s normalization Committee will be automatically recognized as the body at the helm of the TTFA.
If the decision is upheld, the TTFA’s executive may remain in charge. Wallace and his Board of Directors have already called and Extraordinary General Meeting carder for October 25 where he will face his membership to decide the direction for the beleaguered body. It is anticipated that members will vote in favour of recognising the Normalisation Committee and taking steps to have the TTFA’s constitution and statutes adjusted as demanded by FIFA.
The TTFA has been given until December 18 of this year to adhere to FIFA’s demands or face lengthened suspension which would see the association forfeit its right to contest CONCACAF Gold Cup 2021 as well as FIFA World Cup 2022 qualifiers which are both scheduled to be held next year.
List of T&T Sporting Bodies incorporated by Parliamentary Act
Act No. Short Title
14 of 1956 Arima Race Club (Incorporation)
25 of 1967 T&T Motor Racing Club (Incorporation)
32 of 1968 Hunters Association of T&T (Incorporation)
30 of 1973 South Trinidad Darts Association (Incorporation)
27 of 1975 Trinidad Rifle Association (Incorporation)
44 of 1975 T&T Yachting Association (Incorporation)
39 of 1977 T&T Wrestling Association (Incorporation)
29 of 1979 T&T Netball Association (Incorporation)
17 of 1982 T&T Football Association (Incorporation)
13 of 1991 T&T Special Olympics (Incorporation)
18 of 1995 San Francique Sports, Educational and Cultural Council of T&T (Incorporation)
19 of 1995 T&T Secondary Schools Football League (Incorporation)
29 of 1995 Olympic Committee (Incorporation)
34 of 1997 Quarry Superstars Sports and Cultural Club
Tyrone Marcus is a lawyer specialising in sports Law for 15 years.
He is the author of the book Sports Law in Trinidad and Tobago (2019) and co-author of Commonwealth Caribbean Sports Law (2019).
Marcus has also been adjunct lecturer in sports law at the University of the West Indies, St Augustine, Trinidad for the past eight years and former Senior Legal officer at the Ministry of Sport and Youth Affairs.