THE TT Football Association’s (TTFA) challenge of FIFA’s appointment of a normalisation committee to run the affairs of the sport locally and the ouster of the William Wallace-led executive will play out on local soil.
In a ruling, on Thursday, Justice Carol Gobin dismissed FIFA’s application to have the TTFA’s complaint heard at the Court of Arbitration for Sport (CAS).
Gobin rejected FIFA’s application to strike out the claim because its rules prevents member federations and associations from commencing proceedings against it in their local courts.
“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,” Gobin said in her decision which was delivered electronically.
On May 18, the ousted TTFA executive, through its attorneys Dr Emir Crowne, Matthew Gayle, Jason Jones and Crystal Paul, 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. In response to the legal action, FIFA challenged the ousted TTFA executive’s move to have the case heard at the High Court.
In her ruling, Gobin also held that because TTFA was a statutory corporation, it could not oust the jurisdiction of the local courts. She pointed out that the TTFA Act and its constitution established a “comprehensive governance structure within the organisation.”
“A normalisation committee appointed by FIFA is not on the face of it an organ recognised under that structure,” she said, adding, “FIFA may yet have to justify its purported assumption of extraordinary power to control the day to day affairs of TTFA, 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.”
She further held that the question for the court as the litigation progresses will be whether the TTFA can contract out of the TTFA Act to give FIFA the power to control its day-to-day affairs or whether the local body’s contractual undertakings are subject to TT laws.
On the question of arbitration, which the ousted TTFA executive has refused to agree to, Gobin said there was “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 properly asks the question, whom FIFA holds 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 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,” she said.
On FIFA’s arguments on the cost of arbitration at the CAS – it suggested that the TTFA could have applied for legal aid – Gobin said “not only has FIFA unequivocally refused to comply with” the CAS rules on the payment of advanced costs, it thumbed its nose at its obligations to pay under the agreement and “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 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,” the judge said.
Before disposing of the matter, Gobin also addressed the warning by FIFA’s local attorneys of the “severe consequences to which TTFA is exposed as a consequence of taking action in direct breach of the terms of its membership of FIFA.”
FIFA’s lead counsel Christopher Hamel-Smith warned that the breach of the rules left the TTFA susceptible to suspension from the world body’s membership which would directly impact TT as the various national teams will no longer be allowed to enter international tournaments and matches.
Hamel-Smith warned that a suspension would compromise the careers, livelihood, education and other prospects for players.
“These are no doubt serious concerns. FIFA has been clear on its objective to control every type of association football by taking appropriate steps to prevent infringements of the statutes, regulations or decisions of FIFA or of the laws of the game.
“This case has disclosed that among the mechanisms by which it achieves its goals is to dictate that member association’s rules are consistent with its statutes and that they (the associations) adopt stringent rules to enforce them. FIFA also insists on rules which prohibit or limit access to municipal courts.”
She held she was confident that FIFA believed the statutes and mechanism it used to enforce them were compliant with the laws of the countries to which member associations belong and “FIFA could not presume to be above the law.”
As for the concerns about irreparable fallout or adverse consequences to TT’s football on the international state, Gobin said she was encouraged by the “lofty objects” identified in FIFA’s statutes and particularly its commitment to respecting internationally recognised human rights and non-discrimination of any kind against a country for any reason.
“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,” she said.
FIFA was ordered to pay the TTFA executive’s costs as she also extended the time for filing of its defence.
Also appearing for FIFA were Jonathan Walker and Cherie Gopie.