On 13 August 2020, Madame Justice Carol Gobin ruled comprehensively against Fifa in the Port of Spain High Court, as she dismissed six from the seven applications put forward by the Zurich-based global sporting behemoth against Trinidad and Tobago Football Association (TTFA) president William Wallace and vice-presidents Clynt Taylor, Susan Joseph-Warrick and Sam Phillip.
Justice Gobin did not accept Fifa’s claim that it was not served properly by the TTFA’s legal team in its action against the normalisation committee on 18 May, or that Wallace did not have the authority to represent the local football body, the TTFA could not challenge Fifa in an ordinary court and was bound by an arbitration provision in its constitution.
Fifa, headed by president Gianni Infantino, is contesting each count in the Court of Appeal. The global body is represented in this action by local attorneys: Christopher Hamel-Smith SC, Jonathan Walker and Cherie Gopie while the TTFA officials are represented by Dr Emir Crowne, Matthew Gayle, Jason Jones and Crystal Paul.
Here are the main points that are on the table at the Court of Appeal:
Did TTFA properly serve Fifa in its application against the normalisation committee on 18 May?
Fifa leaned on the testimony of its in-house attorney Miguel Lietard who pointed out that: ‘under Swiss law, international service of process may only be performed […] by Swiss government officials, […] any other kind of service by a foreign entity, including service by email, is unlawful’.
Justice Gobin was unconvinced.
“[…] The expert evidence contained in Mr Lietard’s affidavit is in any case inadmissible hearsay opinion evidence and I consider it to be insufficient to establish what the law is on service of process in Switzerland.
“The opinion is attributed to an attorney within Fifa’s litigation department who failed to file an affidavit. In the circumstances, I find no irregularity in the manner in which service was effected…”
Fifa asserted that, among other things, Justice Gobin paid insufficient regard ‘for the provisions of foreign law’.
“The learned judge erred in law by concluding that there was no irregularity in the manner in which service was effected and/or no reasonable judge, properly directed as to the facts, could have come to that conclusion.”
Was Wallace duly authorised to take legal action as TTFA president?
Fifa contended that Wallace did not prove that the TTFA Board—which it sought to dismiss through the implementation of a normalisation committee on 13 March—had supported his decision to pursue legal action against Fifa.
“[…] They have failed to provide this Court with any evidence as to how that decision was made so as to enable the Court to confirm that the decision to commence these proceedings was made by the body that, under the TTFA Constitution, was the only body who had the authority to make such a decision…”
Justice Gobin pointed to Article 39 of the TTFA Constitution which stated that Wallace, as president, was the local football body’s ‘legal officer’. But, in any case, she asserted that the TTFA’s internal decision making process was not Fifa’s business.
“[…] The claim was signed and issued by the President who under Rule 39 is described as ‘the legal person’. Fifa has no locus to challenge the authority of persons within the TTFA organisational structure to bring an action, especially when it refuses to submit to the jurisdiction of the court.
“It can place no onus on TTFA to disclose its internal processes by asking a question in the grounds of its application. It cannot put the TTFA to proof of authority to bring an action to restore its duly elected Board of Directors. That is a matter for TTFA and its membership within this jurisdiction…”
“[…] The learned judge erred in law by concluding that [Fifa] had no locus to challenge the authority of the person who made the decision to commence these proceedings on behalf of the [TTFA]…”
Is the TTFA able to contest Fifa in an ordinary court?
Fifa pointed to its statutes, which insist that all disputes must be determined by CAS.
“[…] Not only does the TTFA’s own constitutional arrangements, which delimits the powers that the TTFA as an entity has, not empower the TTFA to commence proceedings before the courts of Trinidad and Tobago to challenge a final and binding decision of Fifa, but rather it expressly prohibits the taking of such action and mandates that a different form of dispute resolution be used…”
But Justice Gobin declared that an entity formed by an act of Parliament cannot simply ‘oust the jurisdiction of the courts by its rules’.
“[…] 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.
“[…] Further, the adoption of rules which seek to oust the jurisdiction of the courts breach a well-established policy of the law, which renders such rules void…”
Fifa disagreed with Justice Gobin’s interpretation.
“[…] The learned judge erred in law by failing to interpret Article 67 of the [TTFA’s] constitution as precluding [the TTFA officials] from commencing these proceedings before the ordinary courts of Trinidad and Tobago.
“The learned judge erred in law by concluding that it was outwith the jurisdiction of the [officials] to agree to submit to foreign law…”
Is CAS the correct forum for this disagreement?
Fifa noted that its statutes as well as the TTFA Constitution stipulate that CAS is the only available forum for legal resource. Hamel-Smith suggested that Wallace’s claim of ‘institutional bias’ was ‘flimsy’ and should be dismissed.
“[…] Given the varying legal systems in which Fifa members are based, it is more appropriate that issues that arise between Fifa and its members are determined by a singular body so as to ensure that all such issues are determined using the same, consistent legal bases and principles.
“To do otherwise would present a serious risk of inconsistent decisions and result in a lack of certainty, clarity and equality as between members…”
Justice Gobin noted that Fifa claimed that Wallace had no authority to challenge the global body before the court. If so, why was Fifa anxious to face the local officials at CAS?
“[…] 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…”
Regardless, she disagreed that CAS was the best venue for the dispute.
“[…] This case goes well beyond TTFA’s alleged governance issues and the justifiability of Fifa’s purported action in appointing the Normalisation Committee. This is about the legitimacy of powers exercised under Article 8(2) of the Fifa Statutes and its consistency with a law passed by legislators in this country.
“This is a matter which falls squarely within the jurisdiction of the High Court of this country. This is not a matter for the Court of Arbitration for Sports…”
Fifa does not accept her conclusion.
“The learned judge erred in law by failing to have any or any sufficient regard to: the provisions of the [TTFA’s] own constitution; the provisions of the Fifa Statutes; the advantages of having issues between Fifa and its various member associations determined by a single entity such as the CAS, including the avoidance or minimisation of inconsistency and inequality of treatment…”
It is now the turn of the Court of Appeal to have its say.