If you are a football fan or stakeholder, then this may be the most important case that you have barely heard of.
On 14 December 2015, the Court of Arbitration for Sport (CAS) ruled against Lebanon-based football coach and ex-Trinidad and Tobago international player David Nakhid in his bid to be re-instated into the FIFA presidential race, which culminates in the 26 February 2016 elections in Zurich, Switzerland.
You might have heard that much. But what you are unlikely to grasp is exactly what was at stake and the machinations at play that could potentially raise searching questions of not only FIFA but CAS as well.
If CAS had ruled in favour of Nakhid—whose candidacy was seen as barely plausible to begin with—the judicial body would not have simply increased the number of FIFA electoral candidates from six to seven. Rather, a Nakhid win could have potentially prompted an inquest into the FIFA Ad-hoc Electoral Committee’s operations and the disqualification of several nominations for current presidential candidates.
And who knows what that would mean for the scheduled elections and FIFA’s already damaged reputation?
The CAS decision itself gave little hint about what the case was really about.
FIFA ruled, on 28 October 2015, that Nakhid’s candidacy as invalid on the grounds that one of his nominators, the United States Virgin Islands, had also issued a declaration of support a for rival candidate, Jerome Champagne. As such, the USVI’s two nominations were disregarded in keeping with Article 13.1 (c) of the electoral rules.
Unlike Champagne, Nakhid was, as a result, left short of the required five nominations.
CAS supported FIFA’s initial decision: “In line with the FIFA AEC, the CAS panel found one member association had issued declarations of support to two candidates, including one for Mr Nakhid, in violation of the applicable FIFA rules.
“As a consequence, those letters of support were disregarded, meaning David Nakhid had not met the qualifying criterion of obtaining declarations of support from at least five member associations.”
However, Nakhid’s case did not hinge directly on whether his five letters of support were valid. Instead, he argued, through Lebanon attorney Jalal El Mir, that the USVI’s letter of support for Champagne’s candidacy was invalid and should not have been considered in the first place.
Crucially, for Nakhid’s case at least, FIFA’s electoral regulations article 13.2 states: “Members must notify the FIFA general secretariat, in writing, of a candidature for the office of FIFA President within the deadline stipulated in the FIFA Statutes.”
Further, Article 24.1 of the FIFA statutes states: “Only the Members may propose candidatures for the office of FIFA President (…) Members must notify the FIFA general secretariat, in writing, of a candidature for the FIFA presidency…”
And, simply put, the USVI did not notify the FIFA general secretariat of any decision to support Champagne. Instead, the Caribbean association sent a letter of support to Champagne, who subsequently relayed it to FIFA on his own behalf.
And Champagne, by FIFA’s own testimony, was not the only one who seemingly flouted FIFA’s regulations on eligibility for the post of president.
If CAS had ruled for Nakhid, it could have forced FIFA to reveal grounds for invalidated nominations for other candidates too, which might have turned the election campaign—already overshadowed by lengthy suspensions to current president Sepp Blatter and would-be president Michel Platini—into chaos.
The problem, though, is not that CAS refused to be swayed by Nakhid’s legal argument but whether he got a fair chance in the first place.
And CAS, unusually, is yet to offer grounds for its judgment or even provide a deadline by which to explain its decision. In its own December 14 media release, the judicial body stated that: “the full award with the grounds will be notified to the parties in a few days.”
That was 14 days ago and, in its own code, CAS makes it clear that it ignores holidays and weekends in its deadlines.
CAS has not responded to requests for information on the delay.
Thanks to leaked documents, Wired868 has been able to piece together the legal arguments for FIFA and Nakhid to provide the truth of a shocking case that threatened the football body’s eagerly anticipated February elections.
Nakhid’s case essentially has two parts. First, the former Grasshoppers and New England Revolution midfielder and Caribbean Player of the Year argued that the Ad-hoc Electoral Committee violated the principle of transparency by inviting him to submit a letter of support from USVI, three days after it already received a letter from Champagne for the same member association.
El Mir argued, on behalf of the Trinidadian, that: “such (an) act is not only a violation of the integrity and transparency obligation of the Ad-hoc Committee, but a clear manipulation of the election process, by intriguing Mr. Nakhid into a disqualification situation, for an act that he is absolutely not personally responsible of (sic).”
In its written response to CAS, FIFA sought to dismiss the suggestion that it had entrapped Nakhid and played an active role in his subsequent disqualification.
“The FIFA Ad-hoc Electoral Committee merely informed the appellant that it had not received letters of support for him from St Lucia Football Association and USVI Soccer Association, Inc,” stated FIFA. “It did not, however, request the Appellant to submit letters or have them submitted, let alone indicate that letters should be submitted to the FIFA general secretariat directly.”
The governing body further insisted that it had no obligation to warn Nakhid of a potential invalidation under its electoral regulations and pointed to the final sentence of Article 13.1 (c), which states: “If a member association presents declarations of support for more than one person, all its declarations shall become invalid.”
“Through this clear provision, legal certainty, predictability of decisions as well as equal treatment of all candidates is ensured,” stated FIFA. “A duty of the FIFA Ad-hoc Electoral Committee to advise any of the two candidates in context with letters of support (…) is not contained the FIFA Statutes and/or any FIFA regulations.”
However, in the second and crucial part of the appeal, it was “Team Nakhid” that insisted the letter of the law should be followed.
El Mir noted that FIFA confirmed that its only USVI letter of support for Champagne came from the candidate and not the member association.
“Therefore, it appears clearly that the letter of USVI Football Association in support for Mr Jerome Champagne, was not submitted within the conditions of the provisions of Articles 13.1 of Electoral Regulations and 24.1 of FIFA Statutes and therefore cannot be considered a valid letter of support by a FIFA Member,” stated El Mir. “Consequently, the USVI Letter in support of Mr Jerome Champagne being invalid due to its infringement of its submission condition set in Electoral Regulations and FIFA Statutes, the USVI Letter in support of Mr Nakhid submitted by the USVI Football Association directly to the Ad-hoc Committee shall be the only valid support letter issued by USVI.
“And thereby the candidacy of Mr Nakhid shall be considered acceptable and requiring (sic) all conditions stipulated in the Electoral Regulations including the five support letters from FIFA Members.”
Again, for ease of reference, El Mir hinged his appeal on the FIFA Statutes which state that: “Only the Members may propose candidatures for the office of FIFA President (…) Members must notify the FIFA general secretariat, in writing, of a candidature for the FIFA presidency…”
FIFA’s response to this challenge came in three parts.
First, the governing body, which was represented by director of legal affairs Marco Villiger and head of corporate legal Oliver Jaberg, offered its own grammatical interpretation of the word “must” in the aforementioned context.
Curiously, FIFA also suggested that although its own statutes stipulated the way it must be done, it did not expressly say it could not be done in another manner.
“The term ‘must’ used in both article 24 paragraph 1 of the FIFA statutes and article 13 paragraph 2 of the electoral regulations for the FIFA presidency indicates that candidatures can only be notified to the FIFA general secretariat by members and not by any other entities or persons,” stated FIFA. “This follows from the grammatical interpretation of the mentioned provisions, in particular the term ‘must’ following immediately after ‘members’.
“If there was an obligation for members to notify the FIFA general secretariat directly (i.e. if it was FIFA’s intent to exclude letters of support or notifications of candidatures from members to be submitted by other parties), such prerequisite would have had to be expressly included in the FIFA statutes or regulations. This, however, is not the case.”
FIFA followed up on its interpretation of the grammar in its own statutes by explaining that it has, arguably, violated its own constitution in other instances in the current election and in previous ones as well.
Therefore, CAS, according to FIFA, should allow the governing football body to continue doing so, since it was now a “well-established” habit.
“The practice of FIFA Ad-hoc Electoral Committees to allow letters of support from member associations to be submitted by candidates themselves is furthermore well-established,” stated FIFA. “According (sic) submissions have been admitted in the past and also in the present electoral process.”
The third and final line of defence from Villiger and Jaberg was a counter-punch. FIFA claimed that Nakhid had also violated Article 13.2 by allegedly submitting the letter of support for St Lucia himself.
“Should the appellant’s argument that notifications have to be submitted by members directly to the FIFA general secretariat be considered valid and therefore apply,” stated FIFA, “quod non, the letter of support for the appellant from St Lucia Football Association, dated 12 October 2015, would also have to be considered invalid, as FIFA did not receive this letter directly from St Lucia Football Association.
“On the contrary, this letter was provided to the FIFA Ad-Hoc Electoral Committee by Ms Josanne Leonard on the appellant’s behalf.
“The Appellant’s arguing (sic) would therefore make this letter invalid, leaving him, again, with only four letters of support. Therefore, he could still not be admitted as a candidate for the election for the office of FIFA President on 26 February 2016.”
Even more importantly, though, was the timeline.
FIFA’s counter-accusation was dispatched to CAS on December 3 and relayed to Nakhid’s attorney. Hours later, on December 4, El Mir informed CAS that FIFA had tried to mislead the judicial body with “flagrantly erroneous” information, which they intended to expose through written evidence at their subsequent hearing on December 11.
According to Team Nakhid, the St Lucia Association had sent its letter of support for his candidacy directly to the the Ad-hoc Electoral Committee.
“Based on the respondent’s reply letter dated the 3rd of December 2015, and the arguments and allegations of defense presented within,” stated El Mir, “… FIFA regulatory texts (are) flagrantly erroneous and such allegations being refutable by undisputable written evidence.
“Therefore, and based on parties confirmation of availability on the proposed date of 11th December 2015 for the potential hearing before CAS Panel, we would like to request a hearing to be held at the date proposed by CAS.”
But Nakhid and El Mir were, allegedly, not allowed to submit email documents at the CAS hearing, which sought to prove that St Lucia sent its letter of support directly to the Ad-hoc Electoral Committee.
FIFA objected when El Mir attempted to introduce “undisputable (sic) written evidence” on St Lucia’s nominations and CAS supposedly refused to hear the counterpoint to the football body’s alleged false testimony.
CAS’ website offered further information on the procedure for its cases.
“The proceedings before the (CAS) Panel comprise written submissions and, if the Panel deems it appropriate, an oral hearing,” states CAS. “Upon receipt of the file and if necessary, the President of the Panel shall issue directions in connection with the written submissions. As a general rule, there shall be one statement of claim, one response and, if the circumstances so require, one reply and one second response.
“The parties may, in the statement of claim and in the response, raise claims not contained in the request for arbitration and in the answer to the request.
“Thereafter, no party may raise any new claim without the consent of the other party.”
CAS, apparently, issued no directions to El Mir, after he raised his dissatisfaction with FIFA’s testimony via email. And, once the hearing began, it was too late for Nakhid’s attorney to present new written evidence without support from either FIFA or CAS.
The CAS code does offer suggestions as to how Team Nakhid might have proceeded.
“A party may request the Panel to order the other party to produce documents in its custody or under its control,” states CAS code R44.3. “The party seeking such production shall demonstrate that such documents are likely to exist and to be relevant.
“If it deems it appropriate to supplement the presentations of the parties, the Panel may at any time order the production of additional documents or the examination of witnesses, appoint and hear experts, and proceed with any other procedural step.”
Wired868 is uncertain whether El Mir asked CAS to compel FIFA to produce emails, which could potentially prove that St Lucia did send Nakhid’s letter of support directly to the Ad-hoc Electoral Committee.
Wired868 is also unaware of whether the CAS Panel attempted to use its own initiative to order supplemental evidence related to the St Lucia email to be produced.
Here too, the timeline might be relevant.
Nakhid filed his statement of appeal to CAS on Friday November 13. FIFA responded 20 days later on the stipulated deadline of December 3.
If El Mir chose to offer a written response to FIFA, he had just seven days to do so before the scheduled hearing date of December 11.
Article R32 of the CAS code explained how Nakhid’s attorney could have requested a time extension.
“With the exception of the time limit for the statement of appeal, any request for a first extension of time of a maximum of five days can be decided by the CAS Secretary General,” stated CAS, “without consultation with the other party or parties.”
Notably, any such CAS extension would have meant a similar offer to FIFA, which could have significantly delayed the hearing.
“If a counterclaim and/or jurisdictional objection is filed,” states the CAS code 44.1, “the CAS Court Office shall fix a time limit for the claimant to file an answer to the counterclaim and/or jurisdictional objection.”
It is uncertain whether extensions were allowed in expedited matters like Nakhid’s. But nothing seemed to expressly suggest that option was unavailable.
CAS code 44.4 stated only that: “With the consent of the parties, the Division President or the Panel may proceed in an expedited manner and may issue appropriate directions therefor.”
El Mir had successfully petitioned CAS for an extension earlier in the case, although it had just been for roughly three days.
CAS initially gave Nakhid until 2 December 2015 to state whether he wanted an oral hearing or was happy for the judicial body to rule solely based on written submissions. However, FIFA had until December 3 to respond to the former’s appeal.
El Mir objected to the deadline for a hearing offered by CAS.
“CAS has requested from the parties, to express their intention, at the latest on the 2nd of December 2015, whether they will request an appointment of a hearing in the present matter, and such hearing to be held on the 11 of December 2015,” stated El Mir. “Whereas the decision by the appellant to request an appointment of a hearing, is dependent, in the course of fair justice, of the respondent’s reply, which deadline shall expire on the 3rd of December 2015 as per CAS letter dated 23 November 2015.
“Therefore we would like to request the extension of the deadline (…) for at least 48 hours after our notification of respondent reply, or after the expiry of such reply deadline in case of respondent’s failure to reply, allowing the appellant to assess the necessity of requesting such hearing based on arguments and evidence brought in respondent’s letter, taking into consideration the expedite procedure in the present matter.”
Both parties asked CAS to compel the loser to foot the bill for arbitration while FIFA also requested compensation for its own legal costs. Nakhid threw in the cost of his election campaign and moral damages as well.
Thus far, Nakhid has declined comment on the CAS case.
Although FIFA now looks set to enjoy the last laugh, some important questions remain unanswered.
On what grounds did CAS dismiss FIFA’s apparent violation of Article 24.1 of its Statutes and Article 13.2 of its electoral regulations?
Did Nakhid’s failure to rebut FIFA’s allegation regarding the St Lucia letter of support play a key role in CAS’ decision? And, if so, did the fault lie with El Mir and a technicality?
Or had CAS failed to ensure justice and due process by not offering Nakhid time for a written response to FIFA’s allegations or allowing documentary evidence to supplement his presentation at the hearing?
It may be a while before we hear from CAS on the matter.
“The Panel (…) announced the notification of the operative part of the award for 14 December 2015,” stated CAS. “The full award with grounds should be issued in due course. No specific date can be provided in this respect to the parties.”
Nakhid has lost his case. But FIFA and CAS are not yet out of the woods.
At present, the United States Department of Justice continues to zero in on FIFA’s sordid past. The football body’s ethics committee has made a mark on FIFA’s present, as it called Blatter and Platini to account.
In some ways, Nakhid versus FIFA tells a story about the beleaguered organisation’s immediate future. And maybe CAS’ too.
Nakhid can appeal to the Swiss Federal Tribunal, according a Trinidad and Tobago sports lawyer, if he can satisfy that body that there was “material injustice in the way that the matter was handled.”
However, there are very limited circumstances under which Nakhid could successfully plead for his case to be heard there.
Yet, CAS has been outed before for being overly sympathetic to sporting bodies.
On 5 January 2014, the Higher Regional Court of Munich overturned a ban on German ice skater Claudia Pechstein, who had been penalised for failing a doping test by the International Skating Union (ISU).
CAS had upheld the ISU’s ban while the Swiss Federal Tribunal twice rejected Pechstein’s appeals.
The Munich court stated that CAS judgment did not satisfy article 6 of the European Court of Human Rights and ruled that: the CAS Award amounted to a violation of German anti-trust/competition law, which prohibits the abuse of a dominant position (or monopoly) in a particular market; and whilst there was no identification of actual bias on the part of the Arbitral Panel appointed to hear CP’s appeal before the CAS, the composition and structure of the International Council of Arbitration for Sport (ICAS)—the body which is responsible for establishing the approved list of CAS arbitrators—was weighted heavily in favour of sports federations, which in turn fundamentally undermined the neutrality of the CAS itself.
“Put simply, sports associations such as the ISU and the International Olympic Committee (IOC) had a disproportionately strong influence on the selection of persons appointed as CAS arbitrators,” stated a translation of the Munich court’s ruling. “In turn, this structural imbalance gave risk that the arbitrators appointed to determine individual disputes at the CAS would (or may) have a tendency to favour the governing bodies, rather than acting in a wholly neutral, objective and independent manner.
“There was no rational justification for the structural imbalance identified by the Court.”
Should Nakhid refuse to bend, much more than his presidential candidacy is at stake. FIFA and CAS could be in the docks too.