SHOULD the TT courts hear a challenge by the TT Football Association (TTFA) former executive against the world governing body for football, FIFA, over the appointment of a normalisation committee to run the affairs of the sport locally, or should it go to the Switzerland-based Court of Arbitration for Sport (CAS)?
This is the question Justice Carol Gobin will answer on August 13.
She has been asked to throw out the claim by the TTFA executives – ousted president William Wallace and vice-presidents Clynt Taylor, Susan Joseph-Warrick and Sam Phillip.
On May 18, the TTFA executive decided to take the matter against FIFA to the TT High Court instead of the Court of Arbitration for Sport (CAS). The TTFA executives felt they would not get a fair hearing at CAS.
The Wallace-led executive was removed from office by FIFA on March 17 after less than four months in the job.
The former executive was replaced by a normalisation committee led by local businessman Robert Hadad. The committee was formed to run the affairs of local football, including getting rid of the $50 million debt facing the local football body.
FIFA challenged the ousted TTFA executive’s move to have the case heard at the High Court and on Wednesday, the judge heard submissions from both sides at a virtual hearing.
The ousted executives’ lead counsel, Dr Emir Crowne argued that “the forced” arbitration before the CAS was not the appropriate forum for the dispute since it offended public policy.
He said it would be “unconscionable” to have the CAS resolve the dispute since there was no foreign element in the dispute which involves tort and land claims specific to TT.
Even so, he said even if there was an agreement between the TTFA and FIFA, as the world governing body contends, to have disputes resolved at the CAS, it did not displace the local court’s jurisdiction to adjudicate on the claim.
Crowne also argued CAS was not the appropriate forum for the dispute since it has shown “undue familiarity” towards FIFA giving rise to the argument of apparent bias.
He described it as “familiar and cozy” relationship between FIFA and CAS since it was pointed out that the court of arbitration was familiar with a policy of FIFA not to pay advanced costs in appeals to it.
“When FIFA says so the world must bend to its whim? We submit this is not appropriate,” he said, adding that the FIFA statute which prohibits member associations from taking challenges to the local courts, but must go to the CAS, was also unconscionable.
“Even if FIFA says you signed up to our statutes you cannot have TTFA contract out or relinquish its rights set by a TT parliament,” he said as he referred to the TTFA Act which he says cannot be amended.
“I do not think any association has bargaining power when it comes to FIFA,” he also said in arguments against the clause.
Crowne maintains the TTFA was formed by a constitutional act of Parliament. He also said the normalisation committee’s role was to assume control of the association or “usurp” the role of the TTFA’s board of directors, including taking control of properties and accounts.
At the start of the hearing, Crowne insisted that the TTFA would consider participating in mediation but not arbitration while FIFA’s lead counsel Christopher Hamel-Smith said it would participate in arbitration not mediation.
Hamel-Smith also pointed to the TTFA Act which, he said, prohibits the executive from commencing these proceedings in the local courts.
He also said under the TTFA constitution, the TTFA was a member of FIFA and was empowered to respect and prevent infringement of the world body’s statutes and regulations.
Hamel-Smith accused the ousted TTFA executive of disregarding and breach the terms of its own constitution by filing the proceedings in the local courts.
“There are ways to pursue a claim of this sort. And that would be, in accordance with constitution and the TTFA Act, to follow procedure to amend the constitution to remove the restriction it voluntary imposed on itself to bring proceedings like this to the (local) court rather than the CAS,” Hamel-Smith submitted.
“These proceedings ultra vires, null and void and ought to be dismissed. They are free to do it the proper way and then come back to the court and pursue the action,” he submitted.
He also said everyone admitted that TTFA got itself into a financial mess and this prompted FIFA to set up the normalisation committee. He said if the ousted had an issue with the costs associated with the arbitration at the CAS then it could have applied for legal aid.
Hamel-Smith said although the CAS confirmed three arbitrators would deal with the dispute, which was “hardly surprising given the nature of the dispute,” the court was not the tribunal but the administrative entity and there was no reason for believing the tribunal would be biased.
Also appearing for the Wallace and his team are attorneys Matthew Gayle, Jason Jones and Crystal Paul while Jonathan Walker and Cherie Gopie represent FIFA.