Justice Gobin: ‘Fifa could not presume to be above the law’! Infantino-led body accused of ‘thumbing nose’ at fair play in TTFA attack

Madame Justice Carol Gobin handed down a comprehensive defeat to global football body, Fifa, in the Port of Spain High Court today, in a decision that is likely to be read closely across the planet.

The TTFA was represented legally by Dr Emir Crowne, Matthew Gayle, Jason Jones and Crystal Paul of the New City Chambers. Fifa was represented by attorneys Christopher Hamel-Smith SC, Jonathan Walker and Cherie Gopie from M Hamel-Smith and Co.

On 17 March, the Bureau of the Fifa Council—headed by Fifa president Gianni Infantino—ordered a normalisation committee in Trinidad and Tobago and declared that Trinidad and Tobago Football Association (TTFA) president William Wallace, vice-presidents Clynt Taylor, Susan Joseph-Warrick and Sam Phillip, as well as its board of directors had been immediately replaced.

Wallace and his vice-presidents have resisted the ruling in the local High Court. However, Fifa urged the High Court to accede to arbitration clauses in the constitution of both football bodies and instead send the matter to the Court of Arbitration for Sport (CAS), or dismiss the TTFA’s case outright.

Justice Gobin did neither. Instead, she ruled that Fifa’s conduct in its implementation of the normalisation committee was a violation of its statutes while its behaviour in relation to the TTFA rendered the arbitration clause ‘inoperable’.

Fifa secretary general Fatma Samoura said repeatedly that the governing body does not recognise Wallace and his vice-presidents as the representatives of the TTFA and only considers normalisation committee chairman Robert Hadad as the head of the local game.

How then, Justice Gobin asked in her 24-page ruling, can Fifa logically recognise Wallace’s authority before the CAS?

“There is 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,” stated the High Court judge, “and its insistence on holding the TTFA to the arbitration agreement on the other. The Claimant properly asks the question: ‘whom does FIFA hold 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 [documents] 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.

“[…] By its challenge to the authority of persons to bring this action, in which proceedings were signed by the President, Mr Wallace and the board of directors named in the arbitration proceedings, the arbitration was rendered inoperable.”

The High Court further ruled that Fifa had ‘not demonstrated that it is ready and willing to do all things necessary to the proper conduct of the arbitration’.

Wallace initially sought to defend his position at the CAS, only to withdraw citing bias from the Swiss-based arbitration body. Justice Gobin was not satisfied with Fifa’s behaviour at the CAS either.

The judge pointed to Fifa’s refusal to pay its share of arbitration fees upfront as well as the CAS’ decision to allow the governing body an extension to file its answer until after the TTFA paid fees for both parties.

“In its interpretation and application of the rules, the [CAS] court office effectively denied access to the prescribed method of achieving dispute resolution to the undeniably weaker of the parties,” stated Justice Gobin. “Fifa was at all times aware of the dire state of the TTFA’s finances, which predated the installation of the new Board of Directors in office in November 2019.

“Rules which were intended to level the playing field, in the words of the Privy Council allowed ‘the strong to push the weak to the wall’ (Janet Boustany v George Pigott Co, Antigua and Barbuda [1993] UKPC).

“[…] In this case, not only has Fifa unequivocally refused to comply with the CAS 64.2 rule, thumbing its nose at its obligations to pay under the agreement, it 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 [TTFA] 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.”

Fifa’s attorneys had argued that, although the TTFA’s Constitution did not expressly grant power to the world governing body to override its affairs, this was irrelevant since the local football body agreed to conduct its affairs in accordance with Fifa mandates. As such, they argued that Fifa’s Statutes trumped the TTFA’s Constitution.

However, Justice Gobin pointed to article 19 of the Fifa Statutes:

1. Each member association shall manage its affairs independently and without undue influence from third parties.
2. A member association’s bodies shall be either elected or appointed in that association. A member association’s statutes shall provide for a democratic procedure that guarantees the complete independence of the election or appointment.
3. Any member association’s bodies that have not been elected or appointed in compliance with the provisions of par 2, even on an interim basis, shall not be recognised by FIFA.
4. Decisions passed by bodies that have not been elected or appointed in compliance with par 2 shall not be recognised by Fifa.

“Fifa may yet have to justify its purported assumption of extraordinary power to control the day to day affairs of TTFA,” stated Justice Gobin, “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.

“This appears to be in breach of FIFA Statute 19.2.”

And, crucially, Justice Gobin ruled that Fifa had no right to deprive its member associations of the right to seek determination from its local courts.

“Had Parliament intended to enact Fifa Statutes so as to oust the jurisdiction of the courts and to effectively deprive the TTFA of access to the courts of this country, it would have had to do so expressly in clear and unambiguous terms,” stated the High Court. “[…] The dispute in this case falls under Article 67 of TTFA’s Constitution under which TTFA agreed to subscribe to the exclusive jurisdiction of CAS. A statutory corporation which is empowered to make rules for its operations goes too far when it makes rules or adopt rules which foreclose access to the courts of the country.

“Moreover it is outwith the jurisdiction of an entity incorporated under our legislation to agree to submit to foreign law as Fifa Statutes prescribe… Fifa could not presume to be above the law.”

Justice Gobin further stated that Fifa’s attempted ‘ouster clause’ for local courts was insufficient to deny its application by member associations. She pointed to Lord Reid’s ruling in Anisminic v Foreign Compensation Commission HL [1969] 2 AC 147, which said:

“It is a well-established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly, meaning I think, that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserve the ordinary jurisdiction of the courts.”

A key point by Fifa is that the CAS is the best venue to determine whether the governing body was justified in intervening in the TTFA’s internal affairs.

However, Justice Gobin did not agree that this was a matter of justifying Fifa intervention at all. For her, it was a case of if Fifa had the right to intervene in the first place, through the implementation of a normalisation committee.

“I do not think that arbitration would be the appropriate forum for the resolution of this dispute,” stated Justice Gobin. “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.”

Justice Gobin noted Fifa’s threats to take draconian action to the detriment of the local game.

Hamel-Smith told the High Court that Wallace’s use of the local courts ‘renders TTFA susceptible to be suspended from Fifa’s membership—aside from the direct implications for TTFA such as suspension will impact the country of Trinidad and Tobago whose various nationals teams will no longer be allowed to partake in international tournaments and matches. This compromises the careers, livelihood, education and other prospect for players’.

However, Justice Gobin suggested that Fifa would be in violation of its own humanitarian goals if it took such an action against Trinidad and Tobago’s football.

“As for the concerns about irreparable fallout or adverse consequences to TTFA and Trinidad and Tobago, I am encouraged by the lofty objectives identified in Fifa statutes,” stated Justice Gobin, “and particularly articles (3) and (4) of Fifa’s commitment to respecting internationally recognised human rights, non-discrimination of any kind against a country for any reason and its commitment to promoting friendly relations in society for humanitarian objectives all of which are underpinned by an appreciation for the rule of law.

“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.”

Justice Gobin granted Fifa a 21-day extension to file a defence to the TTFA’s injunction against its normalisation committee. However, Fifa’s application for stay and all other aspects of its application was dismissed.

Fifa was also ordered to ‘pay the claimants costs to be assessed by this court in default of agreement’.

Infantino, according to football sources, vowed, beforehand, to convene the Bureau of the Fifa Council immediately after the High Court decision to consider action against Wallace, his vice-presidents and the TTFA—if he did not get his way.

The Fifa Bureau is its emergency committee and includes Infantino and presidents of its six confederations, including Concacaf.

On Wednesday 19 August, Concacaf will hold its draw for the Qatar 2022 World Cup qualifying schedule. A Fifa suspension over the coming days would automatically rule the Soca Warriors out of the draw.

Infantino’s legal problems are in no way restricted to the TTFA. Two weeks ago, Swiss special prosecutor Stefan Keller initiated a criminal investigation against the Fifa president as result of secret meetings between the football jefe and Switzerland Attorney General Michael Lauber.

Keller, who was appointed on 29 June by the Supervisory Authority for the Office of the Attorney General (OAG), found enough evidence to indict Infantino, Lauber and Chief Public Prosecutor Rinaldo Arnold on abuse of public office, breach of official secrecy and assisting offenders—which are article 312, 320 and 305 of the Swiss Criminal Code respectively.

More from Wired868

New TTFA president will chair technical committee; Sancho tipped for role

New Trinidad and Tobago Football Association (TTFA) president Kieron “Bo” Edwards is set to be installed as technical and development Read more

TTFA membership bows to “Bo” Edwards; new president gets 67% of vote

Kieron “Bo” Edwards is the new president of the Trinidad and Tobago Football Association (TTFA). Edwards, the Eastern Football Association Read more

Wharfe vs Edwards; Wired868 looks at upcoming TTFA elections

“Pick your poison…” A football stakeholder who will vote at Saturday’s Trinidad and Tobago Football Association (TTFA) general election summarised Read more

TTFA confirm electoral candidates; green light for Teams Edwards and Wharfe

The Trinidad and Tobago Football Association (TTFA) has confirmed its list of candidates for the Saturday 13 April Extraordinary Congress, Read more

TTFA outlaws Toda-World FA and controversial ex-national youth coach, Marcelle

The Trinidad and Tobago Football Association (TTFA) has officially outlawed former national youth coach Terrence Marcelle and his club, Toda-World Read more

TTFA apologises to ticketed fans turned away from Canada match, promises free entry to Jamaica friendly

It turns out that the Trinidad and Tobago Men’s National Under-20 Team were not the only party unprepared for last Read more