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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.
(Copyright AFP 2015)
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.
Nakhid’s candidacy was subsequently declared invalid by the FIFA Ad-hoc Electoral Committee.
(Copyright Thomas Søndergaard/Play The Game)
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.
(Copyright Michael Buholzer/AFP 2015)
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.
(Copyright Valeriano Di Domenico/AFP 2015)
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.”
(Copyright AFP 2015)
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.
Champagne is flanked by David Nakhid (right) and Denmark FA president Jesper Møller.
(Copyright Thomas Søndergaard/Play The Game)
“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.
(Courtesy Allan V Crane/Wired868)
“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.
(Courtesy Play The Game)
“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.
(Courtesy Josanne Leonard)
“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.
(Courtesy Josanne Leonard)
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.”
Nakhid’s candidacy was subsequently declared invalid by the FIFA Ad-hoc Electoral Committee.
(Copyright Thomas Søndergaard/Play The Game)
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.
(Copyright Thomas Søndergaard/Play The Game)
“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.
(Courtesy Inside The Games)
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.
(Copyright Thomas Søndergaard/Play The Game)
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).
Pechstein has a total of nine Olympic medals including five gold.
(Copyright Taggesspiegel)
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.”
(Courtesy Spox)
Should Nakhid refuse to bend, much more than his presidential candidacy is at stake. FIFA and CAS could be in the docks too.
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Is anyone left in the race considered a front runner now? Is it Champagne?
Sheikh Salman, Prince Ali and Champagne have got to be the big three now. Infantini from Europe is next. It is pretty open.
I’ve read this entire article twice,there are seemingly good legal arguments for and against Nakhid,but in the final analysis it’s obvious that Nakhid was thrashing about in what was dangerous and uncharted waters to him as such I think that he needs to become aware of ALL the pitfalls associated with this sort of post before attempting to gain entry into something for which he is obviously so ill prepared.In other words,for him at this time:”Cockroach have no right in fowl party!”
Legislative intent is gleaned first from the literal meaning of words used in the legislation. If this produces a foolish result then we proceed to identifying the purpose for which the section was drafted or the wrong the section was intended to cure. Wrt common practice trumping the substantive content of the legislation: that it a curious argument which rings hollow. By way of illustration. s70 Motor Vehicle and Road Traffic Act authorizes a constable to perform a breath test upon reasonable suspicion that the driver or person attempting to drive has breath alcohol content above the prescribed limit. However if the practice is to administer the test without showing cause and the driver fails to challenge this in court he has no recourse. But if after years of this unlawful practice without challenge, someone decides to challenge this and shows that the test was administered without reasonable cause then the court is obliged to follow the law as written…..common practice has no place. Thus, if common practice contradicts the substantive law it must give way to the law once challenged.
I should think so eh Andy. Lol. Thanks!
“Wrt common practice trumping the substantive content of the legislation: that it a curious argument which rings hollow.”
Andy, the critical difference is that I never argued that “common practice” could trump “substantive content”… in fact if anything the argument would be that “course of dealings” (not “common practice,” the two are entirely different legal doctrines) would trump the literal reading of the statute, if the plain meaning is in question.. Not only that, but in your example, common practice could never serve as the basis for extinguishing a legal right, let alone a constitutional right such as the right to be free from unreasonable searches and seizures. It is a gross distortion of the argument presented to offer a clearly illegal act as substitution for something as fundamental as a constitutional protection, and suggest that that was the argument on offer. If you describe my argument as ringing “hollow” then your example could only be described as vacuous.
Another critical element lacking in your analysis is that FIFA is the one who sets the procedure for how it (FIFA) will accept the letters of support. If FIFA, through process of its own dealings, departs from the established procedure in any way, and such departure happens regularly enough as to constitute an alternative practice, not only by FIFA, but by the affected party (candidate, in this instance) then that absolutely would be considered, and likely ratified by the tribunal.
Really Mr. Bakes………your reply to my submission in a matter of such seminal importance (and it will be ,even if not by Mr.Nakhid’s own people),is one devoid of relevance ,context and intelligence. Let me spell it out for you Mr.Bakes without using legal language( as some pretentious clown may opt to do)like ab initio and indicia.
You quoted an abstract definition of legislative intent that any one could source from a legal thesaurus,but this concerns itself with the structure of legislative intent but does not address the context of legislative intent. Legislative intent means literally the intent of the legislator or legislators, and this can never be devoid of context. By Mr.Nakhid’s lawyer citing at least 3 times article 13.2 and article 24.1 the intent of the legislators to qualify the process of submitting the support letters for candidates in the Fifa presidential election,shows that even in the primary appeal file ,Mr.Nakhid’s lawyer did address the issue of legislative intent. You conveniently forgot that the subsequent hearing was also part of the appeal process and not only the primary file,were you and only you issued with the minutes of that hearing, to so arrogantly proclaim that Mr.Nakhid’s lawyer did not see the legislative intent as clear? No you were not ,and this shows a lack of attention to detail and limited intelligence of the process.
You then outdid yourself by stating that FIFA’s argument found resonance with the CAS tribunal because it found the argument meritorious. …….and this means what Mr.Bakes? Obviously they found it meritorious….The concern of Mr.Nakhid and his team and subsequently Mr.Liburd are the reasonings behind Cas finding merit in FIFA’S argument. Which then begs the question Mr.Bakes…. Were you and only you issued with the final award ….reasonings and grounds included for you to make such a statement? No you were not! This is why I stated that only upon receipt of CAS’s final and full award,could one comment on their decision.
You then without relevance or context opined that I am a falsiloquent ignorant because I was unaware of a previous statement made by Mr.Liburd regarding his impartiality? Would you then call me an obsequious lafaard because I do not know the bathing habits of Mr. Liburd? The point here is Mr.Bakes,you have shown bias and not the journalist. Your reply was a poor one,lacking in relevance,content and intelligence. For this you have descended to personal attacks. It’s an insult to bush lawyers to call you one.
Finally Mr.Bakes,you had me running between the English dictionary and Google to find the meaning of falsiloquent(french is my first language).Neither had it, but what was posted on Google and I kid you not,were quotes of you bullying other people on a website called Socawarriors with this word. Foul language included. Happy New Year Mr.Bakes.
Quote: “You quoted an abstract definition of legislative intent that any one could source from a legal thesaurus,but this concerns itself with the structure of legislative intent but does not address the context of legislative intent. Legislative intent means literally the intent of the legislator or legislators, and this can never be devoid of context”
“…were you and only you issued with the minutes of that hearing, to so arrogantly proclaim that Mr.Nakhid’s lawyer did not see the legislative intent as clear? No you were not ,and this shows a lack of attention to detail and limited intelligence of the process.”
“The point here is Mr.Bakes,you have shown bias and not the journalist. Your reply was a poor one,lacking in relevance,content and intelligence. For this you have descended to personal attacks. It’s an insult to bush lawyers to call you one.”
I yield the floor to you, Jean, and only hope that I see you at Wired868 again! And as often as possible!
“You quoted an abstract definition of legislative intent that any one could source from a legal thesaurus”
The definition is anything but “abstract,” it is a functional definition meant for illustrative purposes. Had I desired to post some dictionary of “legal thesaurus” definition I easily could have. If your insinuation is that my definition was cropped from some other source, then feel free to post the source… it should be ‘easy’ after all.
“By Mr.Nakhid’s lawyer citing at least 3 times article 13.2 and article 24.1 … shows that even in the primary appeal file ,Mr.Nakhid’s lawyer did address the issue of legislative intent.”
Of course no one (certainly not I) suggested that El Mir did not “address the issue of legislative intent”… of course he did, this is a classic strawman argument. He cited the Articles in support of HIS interpretation of the words, or in other words, to suggest what the plain meaning might be. And yes I know this for fact, having read the brief in question… I don’t need the “minutes of that hearing” to know this. Never once did he argue that the intent was clear, nor did FIFA… because, guess what, the intent is NOT clear.
“You then without relevance or context opined that I am a falsiloquent ignorant because I was unaware of a previous statement made by Mr.Liburd regarding his impartiality? ”
I never called you “a falsiloquent ignorant”… nor did I call you any other name, contrary to your hysterical rantings. I suggested that Liburd was biased in favor of Nakhid and that if anything he has muddied waters in the past (to paraphrase your term) by his failure to temper that bias. If by your own admission, you were unaware of his confession of his bias, then you were ignorant to that fact. That was a statement of fact, not a ‘personal attack,” but feel free to construe it as such, if it justifies your own use of ad hominems unnecessarily (and futily) directed my way.
Bakes’ claim that I said I was biased is just some of the nonsense that I’m accustomed to from him.
Since the Articles are quoted in English then the rules of interpretation governed by English statutory interpretation should apply. “Must” used in legislation imports a mandatory requirement, unless expressly stated otherwise (Benion’s on Statutory Interpretation) thus Members must notify the FIFA…..in writing means to be in conformity the sender MUST be a Member and the recipient MUST be the FIFA secretariat. Now submission and notification suggest two different things. The address of the sender indicates who is doing the notification and the address of the recipient suggests who is being notified. The column does not indicate a rule governing who does the submitting. Thus I can notify and have anyone submit including a paid courier or otherwise. Submission is just the manner by which the notification gets from the sender to the recipient.
Mr.Bakes,you correctly stated that legislative intent is important, then proceeded quite speciously to suggest that there was none or absence of clear proof that there was in the statutes governing this case. The only issue of legal relevance is as per Fifa’s original decision,whether or not USVI football federation submitted 2 valid letters of support for 2 different candidates. Based on the Fifa statutes governing the electoral process for the Fifa Presidency,article 13.1 b) The candidate shall have been proposed by a member association in accordance with article 24 par. 1 of the Fifa statutes. If the legislative intent was for the electoral process to be none-specific,lax,arbitrary or left up to personal discretion, this article would have sufficed,but the legislators did not,they added subsequently article 13.2 (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. No matter the linguistic contortions that Fifa or anyone conjures up, the legislative intent is clear and specific as to what constitutes a valid letter of support. If not,where does the boundaries lie? Can the ball boy for the member association submit the letter from his personal email? Can Mr. Champagne’s distant cousin twice removed also submit his nomination letter? This article 13.2 was added to qualify the preceding paragraph and to ensure to a greater extent the integrity of the electoral process.The ‘must’ in this article and the must repeated again in article 24.1 (members must notify the general secretariat, in writing, of a candidature for the Fifa Presidency at least 4 months before the start of the Congress,together with the declarations of at least 5 members. This clearly renders Mr. Champagne’s letter of support from the USVI invalid having submitted it himself from his personal email. This leaves Mr. Nakhid with 5 valid support letters. As to the matter of St.Lucia ,although correctly submitted for Mr.Nakhid as well,this was not Fifa’s ground for disqualification and is superfluous . ……unless they would like to review the entire process of all candidates.
What worried me though was not your flawed argument but your stating that Mr.Liburd was being an advocate for Mr.Nakhid. His article though long was balanced and if as in any presentation,the logic of said argument veers to the side of the appellant (in this case),that in no way makes Mr.Liburd an advocate for Mr.Nakhid as it might make you seem as being anti-Nakhid based on what essentially is your interpretation (deeply flawed as it is) of FIFA’S statutes. You obviously have a legal background in structure but not in content in this case. Why try to muddy the waters for the other readers with an assumption about the journalistic intention? I can only comment on CAS when they eventually produce their final grounds for dismissal of Mr.Nakhid’s appeal.
As to your argument that “Fifa had submitted compelling evidence ” in support of their custom in accepting letters of support,this was truly your most disappointing effort Mr.Bakes. You selectively quoted that the word “MUST” was to ensure that members and not non-members were giving the support letter,but conveniently omitted the rest of the paragraph which states “members must submit in writing to the general secretariat of FIFA ” There is no wiggle room given here for personal discretion or improvisation of the electoral process. Legal precedence must have an historical context,how many Fifa elections before this one had Presidents run unopposed? Were statistics as to how candidates in this and previous elections handed in their support letters made available to you and only you? Can a legal precedent be set on the clear violation of an existing regulation? The answer is no, or else all those Fifa execs in that Brooklyn courthouse at present would have a pretty strong case against the Department of Justice.
Thank you, Jean. Bakes has been trying to contradict me for years and sometimes he trips himself up.
So thanks for giving us bush lawyers some pointers. Bakes included!
Jean, if you knew anything about what you’re talking about you wouldn’t make the ridiculous assertion that the legislative intent was clear. Not even Nakhid’s lawyer, El Mir, has made such a foolish assertion. If the legislative intent was as clear as you suggest, don’t you think that argument would have been raised by Nakhid’s team? Clearly you don’t know that legislative intent is, or what constitutes indicia of legislative intent. Legislative intent is derived from the committee reports, meeting/session minutes, comments to the article in question, or other such parole evidence which might shed light on the deliberative process in passing the statute. CLEARLY none of that was available in this case because none of the parties made reference to the availability of any such primary documents. You may interpret the statutes to mean a certain thing, clearly that interpretation was in dispute, so simply repeating Nakhid’s argument doesn’t move the needle in one direction or the other. FIFA’s argument found resonance with the tribunal because it found the argument meritorious… unless you believe like Lasana Liburd is suggesting, that CAS was biased against Nakhid from the start.
Your opinion of my “legal background” neither moves nor shakes me, and I have no personal stake in the matter, so there’s no need for me to “muddy” any waters for readers… at least no more than there has already been systemic muddying of waters by a writer who once famously boasted that he has no obligation to be impartial in his articles. Perhaps you, in your falsiloquent ignorance was unaware of that statement, but I’m sure Mr. Liburd has not forgotten, and in that regard he’s being damned by his own pen.
Read the entire article; curiously interesting indeed
I’m very curious to hear CAS’ grounds for its decision.
Best of luck my friend
Lasana, I know you mean well but I do not wish to be tagged on any post re Nakhid. More anon. Happy New Year buddy!
Happy new year Josanne.
Very Very good and interesting reading ….CAS is obviously not as FAIR and TRANSPARENT, as they PRETEND
All the information is there. And it makes no sense pretending that CAS represents God on earth.
This is a very tortured attempt to make a mountain out of a molehill. Having regrettably read the article in its entirety, the notion that CAS dealt unfairly with Nakhid is lacking in merit.
I.
Issues of statutory interpretation such as this aren’t uncommon, and typically what helps the trier of fact (judge, jury… or in this case, the tribunal) would be to look at the “legislative intent,” or put another way, what was the intent of the drafters of the statute in question.
Absent proof as to the legislative intent, “course of dealing” or the common practice of the body in interpreting the statute becomes persuasive. In this case FIFA offered compelling evidence that it’s custom was to accept letters of support to be indirectly submitted to the Electoral Committee. This by way of support for its argument that the “must” language dictates the method by which a candidate’s eligibility to stand for election is established. This is a substantive provision, in other words, it goes to the very substance of how one becomes eligible… only through the endorsement of a member, as opposed to a non-member.
As opposed to a substantive construction (how the language is construed), El Mir argues a procedural construction on behalf of Nakhid. His interpretation is that “must” applies to the process by which the ‘candidature’ (more commonly, ‘candidacy’) must be made known to FIFA’s Electoral Commission. It’s not a very persuasive argument, unless one’s sympathies lie with the proponent of said argument. The conflict between procedural versus substantive, is a relatively common one in the law, and almost invariably, substance wins out over process. It isn’t surprising therefore that the the argument enjoyed little resonance with the tribunal, and was summarily rejected.
II.
“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.”
As addressed above, FIFA’s argument was that must goes to the substance of the nomination, not the ‘way.’ This is clearly articulated by Villeger, yet you mispresent the argument as being one about the ‘process’ of how nominations are made. If anything it reveals your misunderstanding of the arguments being made, or more sinisterly, a bias in favor of Nakhid. This is supported by other instances of editorializing, (“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”). FIFA explained that there is no violation, but because you don’t buy the explanation, you undermine it by insisting that it’s “arguably” a violation. That’s not reporting, that’s advocacy… on behalf of Nakhid.
“Nakhid’s case essentially has two parts. First, […he] 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.”
The argument fails ab initio, unless Nakhid could successfully show that FIFA the Electoral Commission was bound by such a “principle of transparency,” or that one even existed. For one, the process of vetting the candidacies could have been shared among different elements within the EC, in other words, the individual/s who checked the letters of support for Champagne may have been different from the ones who vetted Nakhid’s, and as such the latter may not have been armed with the same knowledge as the former. Even if one were to reject that argument however, the burden of persuasion still lies with Nakhid to show that the EC had an obligation to disclose the inherent conflict. It is an argument which the EC dispatched with by citing to Article 13.1 (c).
III.
“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.”
It is important to note that contrary to the way you present this, this in fact is not a “third line of defence,” in fact it’s not a line of defense at all, in that it’s not a separate argument being raised. It’s an argument being raised by way of explanation, but one which supports an already existing argument… that there is no obligation for member FAs to submit letters of support directly to FIFA, but that it’s acceptable for them to be sent via intermediaries. The logic is that Nakhid’s argument is undermined by the very fact that he himself used the intermediary process.
This distinction, that this is not a separate issue is critical, and failure to appreciate this would impair one’s ability to understand why Nakhid’s “late” submission was rejected. IF, and only if, this were a separate counter-claim being raised by Villiger/Jaberg (as opposed to a counter-argument), and FIFA accepted this ‘new’ counter-claim, then CAS would have been obligated to also accept a response to this ‘new’ claim by Nakhid. Because it was not a new, separate issue, CAS proerly rejected Nakhid’s late submission.
Thank you for your opinion. As you should accept, yours isn’t the only one. And I heard from some experienced attorneys who know their way around these tribunals too.
Everyone will see how CAS explains itself when it goes over its grounds.
Sure, mine isn’t the only opinion, but I haven’t heard another reasoned legal opinion, although you report that you heard from other experienced attorneys. I do a fair bit of work in the area of statutory drafting and interpretation, mind-numbingly boring as it is. So I see this sort and deal with this sort of stuff all the time. I stated from the outset that Nakhid has no case, and having now been made privy to some of his legal arguments, my position is reinforced.
Good early digging Birdman – not surprised you wasted your Christmas season hunting this haha (jokes) Lasana Liburd
Do sense although it may be hard to prove or take a while to prove that given FIFA’s culture they simply are bullying the small Caribbean man and CAS are being a bit lax about it as the example you showed with Germany ice skater
On similar on less major note – you have the example of Guyana being eliminated out of the WCQs this time by FIFA – despite all the evidence suggesting St.Vincent fielded a eligible british born player – who did not have a valid passport
FIFA and world football since Warner certainly takes for granted or simply doesn’t resepct what comes from the CFU region
Somewhere along the line the word conspiracy comes to my mind… A serious eye opener Lasana..
It might be a good reason why we should not roll over when we feel we have been wronged. Let’s see where this goes.
Great and thorough read, Lasana.
Thanks Tenille 😉
That was some read. Their explanation is long overdue. What is David saying?
He does not wish to comment until CAS reveals its grounds.
CAS rules against sporting organisations, including FIFA, all the time. Hard to see that claim of undue biasas a reality as opposed to possible potential. The issue of the letter being submitted improperly is the only solid argument to overturn the ruling that I can see. I await the ruling explanation to see where the matter turned.
Yes, they do rule against FIFA at times Kendall. All the same, the Munich high court suggested that CAS should also answer some very probing questions about their very set-up.
So, you can argue the strengths and weaknesses of Nakhid’s case. But we cannot pretend that CAS does not have serious shortcomings itself.
Again, there isn’t proven bias – just an implication that suggests that it is a possible concern to be addressed. To prove bias will require a review of the judgements and an assessment of the percentage of wins for the bodies.
I am not disputing the ruling on the potential for bias. Just saying that there is a difference between potential and actual bias.
And I agree that the structure needs to be relooked.
Agreed Kendall. But with that context, we can look at the case with eyes wide open.
What do you think of the discussion regarding the manner in which member associations submit letters of support for presidential candidates?
That is something of a lunacy but practice can outweigh written rules. More honoured in the breech that the observance so to speak.
If FIFA did lie about the St. Lucia submission, they should be screwed over for misleading the court.
But can wrong practice outweigh written rules? I wonder if Platini and Blatter could have escaped with that explanation?
Actually if a company fails to enforce their rules consistently, it is makes it very difficult for them if challenged. The lawyers can opine here.
And correct, if the “course of dealings” contravene what the written practice ought to be, then course of dealings is what will govern. Although notably, FIFA is disputing that there is any written procedure mandating submission of letters of support directly, and only directly from member FAs.
@Kendall
In fact, CAS ruled against our own (then) TTFF in the dispute with the 2006 Warriors.
In fact, you are totally incorrect Bakes. It was the London Sport Dispute Resolution Panel that ruled against the TTFF in its bonus dispute with the Soca Warriors. Not CAS.
But I doubt you will make that stop you.
“Make that stop [me]” from doing what? Indeed upon checking it was the SDRP which acted as arbiter in the dispute. Unlike you, I have no problem admitting if I make a mistake.