Fifa ‘disrespect’, inconsistent use of CAS and a role for Rowley: TTFA and Fifa trade blows

Madame Justice Carol Gobin vowed to rule on the impasse between the Trinidad and Tobago Football Association and Fifa by 3pm on Tuesday 13 October, in what is arguably the biggest matter of sport law in this country’s history.

But that did not mean there was not plenty to report on, as attorneys for both parties traded metaphorical blows at this morning’s virtual High Court hearing.

The TTFA was represented legally by Dr Emir Crowne, Matthew Gayle, Jason Jones and Crystal Paul, while Fifa’s interests were sought by Christopher Hamel-Smith SC, Jonathan Walker and Cherie Gopie.

The main issues for determination, according to Madame Justice Gobin, are:

• Whether the purported appointment of a normalisation committee by [Fifa] on the 17 March 2020 was lawful;
• Whether The Federation Internationale De Football Association Statute 8(2) is compatible with the Trinidad and Tobago Football Association (Incorporation) Act 1982;
• Whether in any case Fifa has complied with its own statutes in the purported appointment of a normalisation committee. Whether there were exceptional circumstances to justify the invocation of Statute 8(2);
• Whether on the evidence and in the circumstances of the case, the decision to appoint a normalisation committee was reasonable and made in good faith or whether it was motivated by improper reasons including a bad faith.

However, Fifa contended that Gobin acted unfairly in refusing to postpone today’s hearing until its appeal could be concluded, against her decision to proceed with the case in the High Court. The Court of Appeal is to hear Fifa’s submission on 19 October.

Fifa’s legal team did not file a defence for today’s hearing and, although they sat in, declined the chance to participate.

“I am unable to proceed with anything that involves the substantial issues of the merit of the case,” said Hamel-Smith.

But that did not mean Fifa’s local attorneys failed to contribute to the legal drama. In fact, Hamel-Smith was first to the floor, as he gave a lengthy plea as to why Gobin should overrule herself, for a second time, and postpone today’s hearing—even after it had already begun.

“It seems to be a recurring theme that My Lady makes decisions,” said Crowne, “and my colleague is unhappy with them and re:raises objections in different words… Our primary point is, this has already been decided.”

Whether out of professional courtesy or personal curiosity, Gobin allowed Hamel-Smith leeway to press his case, which she stress tested.

Hamel-Smith said the reason the matter was before the High Court in the first place is due to contention about which party is ‘running the TTFA’.

He suggested that Fifa’s letter to its normalisation committee chairman Robert Hadad on Wednesday 7 October, which stated that ‘the normalisation committee […] ceased all operational and management functions over the TTFA’, meant the matter of who had control of the local football body was no longer in question.

“Is the [TTFA president William Wallace] back in charge?” asked Gobin.

“The TTFA is no longer part of the Fifa system,” said Hamel-Smith. “[…] So yes, there is nothing stopping them from [exercising that daily management and control over the administration of the affairs of the TTFA].”

The High Court Judge was unconvinced and pointed to another excerpt from Fifa’s missive on Wednesday:

‘[…] We want to highlight that the only legitimate leadership of the TTFA, recognised by Fifa and Concacaf, is the one led by Mr Robert Hadad. Having said this, any communication from Fifa with TTFA will continue to be exclusively being (sic) with Mr Robert Hadad.’

“It seems to me that even after the suspension, Fifa is still issuing orders to the normalisation committee,” said Gobin. “So I don’t think one can really say as far as Fifa is concerned that is the end of that, let [the TTFA] run it as it likes.”

Hamel-Smith attempted to stand his ground.

“Well, in terms of domestic activities […], the normalisation committee has stood down,” he said.

Crowne described the so-called closure of Fifa’s normalisation committee as ‘self-induced frustration’ meant to ‘directly or indirectly interfere with these proceedings through its own acts’.

“If this is a proper grounds [for a deferral] then any defendant can write a letter to itself and introduce material changes [to a case],” said Crowne.

Gobin leaned forward in her chair.

“The defendant has brought about a change in circumstances which you are asking me to use as a case for the deferral for the trial?” she asked Hamel-Smith.

“Yes,” replied the counsel for Fifa.

“Well, let’s move on,” said Gobin. “I don’t think that can justify the deferral.”

But Hamel-Smith did not yield. He appeared convinced in the validity of his request. After all, as stressed, he sought only ‘a short adjournment of just over 10 days’.

Gobin suggested that Fifa had an alternative to haranguing her.

“Is there any reason why you did not go to the Court of Appeal and ask for an expedited hearing?” she asked.

“There was no reason to go to the Court of Appeal [for an expedited hearing],” said Hamel-Smith. “[…] It never occurred to me that it was a possibility that this [request for a deferral] would be rejected…”

Nothing if not tenacious, the senior counsel persisted that there was now diminished urgency for the ‘fast tracking’ of today’s High Court hearing.

“In my respectful submission, the claimants have achieved a large part of what they were seeking to achieve,” said Hamel-Smith. “They have got the normalisation committee to down their tools…”

“Are you serious Mr Hamel-Smith?” retorted Gobin. “The TTFA has gotten them to do that? The issue of who is in charge has been settled? It is clear that [the matter of who is the rightful leader of the TTFA] is an ongoing matter for anyone but Fifa!”

And, on that note, Madame Justice Gobin brought up Fifa’s recent behaviour and referenced ‘two proclamations by Fifa that it has no intention to recognise this Court’. Such pronouncements, she suggested, were inconsistent with Hamel-Smith’s pleadings.

“How can you on the one hand object to the authority of the Court and then ask for indulgences from the same Court?” she asked. “[…] Doesn’t that make a mockery of what we are doing here, Mr Hamel-Smith? Has Fifa changed its position?

“[…] Can you say this morning if Fifa is prepared to abide by any declaration that the Court is going to make?”

Hamel-Smith spluttered.

“I have no answer,” he said.

“There should not even be a question of that—that should be a rhetorical question,” Gobin replied, as she lamented the perceived disrespect shown by the Switzerland-based body. “[…] As far as I am concerned, the trial will proceed.”

As Hamel-Smith and his team opted not to contribute to the substantive hearing, Crowne and Gayle had control of the floor. Their case against Fifa was largely two-pronged.

First, they argued that the relevant Fifa Statute which permitted use of a normalisation committee was so badly written, it did not qualify as a law at all.

Fifa Statute article 8.2: ‘Executive bodies of member associations may under exceptional circumstances be removed from office by the Council in consultation with the relevant confederation and replaced by a normalisation committee for a specific period of time.’

Crowne narrowed in on the phrase: ‘exceptional circumstances’.

“We submit that that provision in the Fifa Statutes lacks any legal certainty to qualify as a law,” he said. “Our first position is the way it is drafted—and in the absence of any guidance from the Fifa Statutes whatsoever—we don’t expressly know what those exceptional circumstances are.”

He quoted from a recent ruling by Justice Seepersad in a sedition hearing involving the late Sat Maharaj:

‘Every citizen in a sovereign democratic society should not be subject to punishment unless that law is sufficiently clear and certain…

‘Where laws are vague, their interpretation is then delegated to functionaries […] and in such circumstance it is undesirable as the interpretation can be cut by subjective and arbitrary considerations.’

He cited too a ruling by the late Lord Kenneth Diplock in which he stated: ‘Absence of clarity is destructive of the rule of law; it is unfair for those who wish to preserve the rule of law. It encourages those who wish to undermine it.’

Crowne suggested that Fifa president Gianni Infantino, who heads the Bureau of the Fifa Council that ejected the TTFA’s elected officials on 17 March and then suspended the local body on 24 September, was using ‘an extremely vague provision’ as ‘an absolute hammer’ to abuse the TTFA.

Second, even if article 8.2 of the Fifa Statutes was accepted at face value, Crowne said the implementation of it lacked ‘procedural fairness’.

“There is no evidence other than Fifa’s indelicate press release to the world—not TTFA; the world received it before Wallace and his elected executives received it—that there are ‘extremely low overall financial management methods, combined with a massive debt, [which] have resulted in the TTFA facing a very real risk of insolvency and illiquidity’,” said Crowne. “And to date, no further details have been provided; none to this court or anybody… One would have hoped that, at a minimum, Fifa would have made those circumstances known for the public’s benefit and the TTFA’s benefit.

“[…] And even if there were evidence of these extremely broad and sweeping statements that Fifa put out in the press release; at a minimum, procedural fairness would have required Fifa to give the outgoing executive the chance to respond to it.

“[…] But that of course is assuming that Fifa intended to be fair all along; but as has been shown, Fifa and fairness probably don’t go hand in hand.”

Crowne noted that section three of the Trinidad and Tobago Football Association (Incorporation) Act 1982 states: ‘The aims and objectives of the Federation are: (a) to regulate and control the conduct of Football in Trinidad and Tobago (under the Fédération Internationale de Football Association (Fifa))…’

He suggested that the Trinidad and Tobago Parliament choose not to go so far as to expressly say the TTFA was subservient to Fifa decree. Further, as a statutory body formed by an Act of Parliament for the benefit of the people of Trinidad and Tobago, he said the TTFA cannot simply relinquish that responsibility to a foreign entity.

“It cannot be that a private company in Zurich can override an Act of Parliament,” said Crowne.

It is likely to be a crucial point in the near future, since Fifa insist the TTFA will only be allowed re-entry to its fold if it approves an unspecified amendment to its constitution.

Hamel-Smith did not—or could not—illuminate the hearing as to the constitutional amendment that Fifa is seeking.

Gobin noted that the TTFA Constitution practically mirrors Fifa’s Statutes already, while, as Crowne reiterated, Fifa approved the local football body’s current constitution in 2015.

“We genuinely don’t know what more the TTFA can do to bring its documents in line with what Fifa wants,” said Crowne.

“It would seem to me that [the requested amendment] is a matter for Parliament, if it so chooses,” said Gobin. “This is out of the TTFA’s hands.”

Will Prime Minister Dr Keith Rowley be required to instruct his Parliament to give Fifa unfettered control over the TTFA and football within the twin island republic? And should he?

(The TTFA was formed in 1908 and only joined Fifa in 1944—some 36 years later.)

Madame Justice Gobin asked whether the TTFA’s decision to contest its recent suspension at the Court of Arbitration for Sport (CAS) was not inconsistent with its acrimonious exit from that venue for the ongoing legal manner.

The TTFA’s legal team previously accused CAS of bias towards Fifa. However, today, Gayle and Crowne offered different explanations for their return to the sport arbitration body in Lausanne, Switzerland.

Crowne noted that the cost for contesting the implementation of a normalisation committee before CAS was 40,000 Swiss francs (TT$298,000), while it is a mere 1,000 Swiss francs (TT$7,443) to dispute the TTFA’s suspension.

Crowne referred to a ruling of the Canadian Supreme Court which stated that: ‘when arbitration is realistically unattainable [financially], it amounts to no dispute resolution at all’.

“Forty thousand Swiss francs to access justice is unconscionable […] for most member associations and certainly the TTFA,” said Crowne.

Gayle claimed that there was an important difference in the TTFA’s two legal challenges against Fifa.

“[Fifa] sees itself as the overarching body of which the [TTFA] is a subsidiary member,” said Gayle. “In fact My Lady, [Fifa] is an organisation made up of several organisations around the world. Obviously, self-evidently, that organisation must have its rules in relation to the members of the organisation; but that is quite separate and apart from the rules and laws that govern individual associations…”

In short, Gayle suggested that the TTFA’s international suspension relates to its membership rights within Fifa; and, as such, CAS is a suitable form since it is the agreed venue for resolving disputes between two private parties under Fifa’s umbrella.

However, he said the management of the TTFA’s daily affairs is set out in Section 4 of the Trinidad and Tobago Football Association (Incorporation) Act, and is therefore a matter for the local High Court.

Next Tuesday, Madame Justice Gobin will rule on Fifa’s exertion of its perceived rights within the twin island republic via its normalisation committee.

Infantino, via secretary general Fatma Samoura, has already said that, irrespective of the pending judgment, Fifa intends to have the final word on Trinidad and Tobago’s future within the global organisation.

One way or the other, an Act of Parliament under the government of then Prime Minister George Chambers on 16 August 1982 serves as a potential stumbling block to Fifa’s interest.

Will Rowley’s Parliament get involved?