IF FIFA were to agree to lift the suspension imposed on the Trinidad and Tobago Football Association (TTFA) and agree to pay its half of arbitration costs, then the TTFA has no issue with having the dispute between it and the world’s football governing body heard and resolved at the Court of Arbitration (CAS) in Switzerland.
This was indicated yesterday by Dr Emir Crowne, one of the attorneys representing the TTFA in an appeal brought by FIFA against the decision of Justice Carol Gobin who found that the local court had the jurisdiction to hear the dispute.
The appeal did not challenge Justice Gobin’s final ruling that was delivered last Tuesday in which she found the removal of the TTFA’s board by FIFA and the appointment of a normalisation committee was illegal, void and of no effect. In fact, the appeal at hand was filed prior to the judge delivering her final ruling.
Should the Appeal Court find in favour of FIFA on the issue of jurisdiction, then Justice Gobin’s ruling will be overturned. Chief Justice Ivor Archie and Justice Nolan Bereaux said they will be delivering their ruling on the issue by 3 p.m., on Friday.
During the proceedings, Crowne submitted that the main reason why the TTFA pulled out of arbitration proceedings at the CAS and filed action at the High Court was because FIFA indicated it would not be paying its half of the arbitration fees. He said it was only following this did FIFA move to have it suspended on September 24.
Crowne said FIFA “has devised a scheme” where, by way of its statute it is calling on its membership to go to the CAS for dispute resolution when they arise, but are, at the same time, refusing to pay its part of the arbitration fees, at least in this instance.
By doing so, Crowne said the TTFA was being denied access to justice since it is currently facing financial difficulties and FIFA knows this all too well.
“They are saying ‘you must go to CAS but we won’t pay our share of the arbitration cost’ especially in a case where a federation is mismanaging its funds,” said Crowne.
However, he said he did not see an issue with the impasse being heard and resolved at the CAS if FIFA was willing to pay its part of the cost.
“Perhaps FIFA can indicate that it would lift the suspension and indicate its intention to pay its half of the arbitration fees and we can go to the CAS and have the matter heard within a week or two,” he said.
Archie commended the position taken, but noted that the court would not be imposing any obligation on the TTFA to do so. “Well that is something that you and FIFA can consider but we do not want to seem to be pressing anyone,” said the Chief Justice.
Earlier in the proceedings, senior counsel Christopher Hamel-Smith said Justice Gobin was plainly wrong when she found the High Court had the jurisdiction to hear the matter. He argued it was abundantly clear that constitutionally the TTFA voluntarily imposed on itself that disputes of this nature would be taken to the CAS.
This was so, he said, because in its own constitution, the TTFA incorporated the FIFA statute that called for such a move when disputes arise.
“This does not mean that FIFA is above the law,” he said, making reference to last Tuesday’s criticism of FIFA by Justice Gobin. “CAS has exclusive jurisdiction. The TTFA cannot ignore the terms of its own Constitution,” he said.
Hamel-Smith pointed out that if the TTFA wished to remove that restriction, then it would be required to have it removed from its Constitution, but this would mean that the TTFA would effectively be taking the position that it no longer wished to operate under the FIFA Constitution.
“As long as the TTFA has not amended its constitution, it has committed itself to go to the CAS… It is not good enough for individuals to get up one day and say ‘we want to try this in the Trinidad and Tobago court in the face of what its own Constitution say,’” said the attorney.
FIFA jurisdiction appeal decision on Friday
By Derek Achong (T&T Guardian).
The Court of Appeal is scheduled to determine FIFA's appeal, over High Court Judge Carol Gobin's decision to hear a case brought by embattled T&T Football Association (TTFA) president William Wallace and his United TTFA executive team, on Friday at 3 pm.
Chief Justice Ivor Archie and Appellate Judge Nolan Bereaux reserved their judgement on the appeal after finishing hearing submissions from the two parties in a virtual hearing, this afternoon.
In the appeal, the panel has been asked to determine whether Gobin had the jurisdiction to hear the case, which she eventually decided in Wallace and his team's favour, last week.
On Monday, FIFA contended that under its constitution, the TTFA agreed to forgo litigation in local courts in favour of arbitration before the Court of Arbitration for Sport (CAS).
It also contends that the Act of Parliament, which incorporated the TTFA, did not preclude it from choosing CAS over local courts in its constitution.
The TTFA's lawyers have contended that the constitution could not oust the jurisdiction of the local courts.
They also claimes that FIFA frustrated their client's attempt to challenge its (FIFA) decision to replace them with a normalisation committee by refusing to pay its share of the 40,000 Swiss Francs required for an appeal before the CAS.
If FIFA wins the appeal, Gobin's ruling on the substantive case would become null and void.
Delivering her judgement in the case, last week, Gobin ruled that FIFA's move to appoint a Normalisation Committee led by businessman Robert Hadad to replace Wallace and his team was illegal, null and void and of no effect.
Gobin said: "The Court declares that the decision of the Defendant dated 17/3/20 to appoint a normalisation committee was made in bad faith and for an improper and illegal motive."
She also ruled that FIFA's Statutes which speak to the appointment of such committees did not conform with the local legislation which incorporated the TTFA and prescribes how it is governed.
In her judgement, Gobin considered FIFA's Statutes on the committee which stated that it is to be appointed to member federations in "extraordinary circumstances".
"The rule essentially gives FIFA a free hand. The absence of a definition does not however limit my ability to consider the circumstances of it and to determine the lawfulness of FIFA's actions," she said.
"I have considered the evidence and have come to the conclusion that the decision to invoke the normalisation was unwarranted and indefensible," she added.
She said that FIFA attempted to usurp the power of the local legislation by directing the committee to arrange fresh elections.
She also took the opportunity to criticise FIFA for its apparent disdain for the local courts through its actions in repeatedly refusing to recognise their jurisdiction for cases within the country.
"The defendant's conduct regrettably calls into question the sincerity of its vaulted commitment to achieving its objectives to promote integrity, fair play, and friendly relations in society for humanitarian objectives as well as its commitment to respecting internationally recognised human rights and striving to protect them. Disregard for the rule of law is inconsistent with these objectives," she said.
While Gobin said she recognised the effect of the case on the sport in this country, she suggested that it could be considered warranted in the circumstances.
"The TTFA's actions in seeking redress before the Court was perhaps the only appropriate response which avoided capitulating to the demands of FIFA and thereby elevating the status of FIFA Statues above the laws passed by our Parliament," Gobin said.
Wallace and his colleagues are being represented by Dr Emir Crowne, Matthew Gayle, Crystal Paul, and Jason Jones, while Christopher Hamel-Smith, Jonathan Walker and Cherie Gopie appeared for FIFA.