Trinidad and Tobago Football Association (TTFA) president William Wallace successfully defied Fifa in the High Court today, as Madame Justice Carol Gobin ruled in favour of the local body’s officials in a historic case.
Gobin declared that Fifa’s removal of Wallace and vice-presidents Clynt Taylor, Susan Joseph-Warrick and Sam Phillip was ‘illegal, null and void and of no effect’. As a result, Gobin said the Fifa-appointed normalisation committee—which comprises of chairman Robert Hadad, vice-chair Judy Daniel and Nigel Romano—was also ‘of no effect’ and appointed ‘in bad faith for an improper and illegal motive’.
“On the evidence, I find that the decision to activate the normalisation was improper and made in bad faith,” stated Gobin. “The conclusion that it was a contrivance to subvert the outcome of the November 24th elections is in my view inescapable. In the end it defeated the will of the persons who had elected the new Board into office.
“In the circumstances FIFA’s claim that it remains neutral in matters of politics (within the sport) is demonstrated to be patently false.”
Fifa must now pay legal costs to the local officials to be assessed by the High Court. The TTFA is represented legally by Matthew Gayle, Dr Emir Crowne, Crystal Paul and Jason Jones while Fifa was represented at the High Court by Christopher Hamel-Smith SC, Jonathan Walker and Cheryl Gopie.
Fifa did not file a defence, although it has already appealed Gobin’s decision to hear the matter in the High Court in the first place.
Gobin is mindful that her judgment is unlikely to protect Wallace from the wrath of the international body. Already, Fifa has suspended Trinidad and Tobago for its elected officials’ refusal to abandon its writ.
And, prior to the ruling, Wallace promised to hold an extraordinary general meeting within two weeks to take guidance from member delegates—who, for the most part, are vehemently opposed to any action that can see them isolated by Fifa.
Whatever the court of public opinion makes of Wallace’s stance, Gobin suggested that the former Carapichaima East Secondary vice-principal stood up for the sovereignty of his country.
“The wisdom of the challenge by the [TTFA officials] of the actions of Fifa is not for the Court [to decide],” stated Gobin, in her 23-page ruling. “But it has to be said that the law expects the TTFA to do what its statutory duty requires even in the face of unlawful pressure.
“[…] In the circumstances, the TTFA’s actions of seeking redress before the Court was perhaps the only appropriate response which avoided capitulating to the demands of Fifa; and thereby elevating the status of Fifa Statutes above the laws passed by our Parliament.”
Ironically, Minister of Sport and Tobago West MP Shamfa Cudjoe publicly pleaded with Wallace to stand down on several occasions already, and advised her fellow Tobagonian that ‘head not made to wear hat alone’.
Gobin did not ‘ascribe improper motives’ to Cudjoe for hosting a meeting that attempted to bring Wallace together with Hadad and football stakeholders. However, in quoting from Simon LJ in R v Coventry City Council, she suggested that Wallace intuitively grasped what duty to country meant:
“One thread runs consistently throughout all the case law: the recognition that public authorities must beware of surrendering to the dictates of unlawful pressure groups,” she quoted, from the 1995 judgment. “The implications of such surrender for the rule of law can hardly be exaggerated. But it is one thing to respond to unlawful threats, quite another to submit to them—the difference, though perhaps difficult to define, will generally be easy to recognise.
“Tempting though it may sometimes be for public authorities to yield too readily to threats of disruption, they must expect the courts to review any such decision with particular rigour—this is not an area where they can be permitted a wide measure of discretion.”
Gobin predicts that the Trinidad and Tobago government, led by Prime Minister Dr Keith Rowley, may eventually determine the fate of the local game.
Fifa president and chair of the Bureau of the Fifa Council Gianni Infantino said the TTFA’s re-entry into the international fold is conditioned upon not only the rejection of its elected officials in favour of Fifa’s hand-picked members, but also the acceptance of constitutional amendments that the local body may not be able to deliver.
“Fifa has now taken to making repeated demands accompanied by threats to TTFA, most recently through its normalisation committee to amend its rules to ‘bring them in line with Fifa Statutes’,” stated Gobin. “There is no lacuna. The futility of these threats and demands should by now have become obvious. TTFA simply cannot deliver.
“The only amendment that can produce the result that Fifa commands is an amendment to the TTFA Act, and if it insists on blocking access to our courts in favour of the CAS (Court of Arbitration for Sport), then it should be put on notice there might be constitutional hurdles.”
Fifa’s next move is already in motion. The Zurich-based body recently made a TT$60,000 payment to the Court of Appeal as ‘security for costs’, after a successful application by the TTFA.
The payment is not unusual in a case where one party is domiciled overseas. However, the order was made against a backdrop of releases by Fifa secretary general Fatma Samoura, which insisted that her employer would not accept any ruling made against it.
Gobin referred at length to Fifa’s conduct, which she described as ‘trifling with the court’.
“Throughout these proceedings, Fifa has persistently paraded its disdain for the authority of our local courts,” said the High Court judge. “In doing so, it has demonstrated a disregard for the rule of law.
“[Fifa’s] conduct regrettably calls into question the sincerity of its vaunted commitment to achieving its objectives to promote integrity, fair play, and friendly relations in society for humanitarian objectives, as well as its commitment to respecting internationally recognised human rights and striving to protect them.
“Disregard for the rule of law is inconsistent with these objectives.”
Fifa’s own position is that the TTFA should be held to an arbitration clause in its constitution that mandates the use of CAS in Lausanne, Switzerland. Their last hope is that the Court of Appeal agrees on Monday—a decision that could potentially overrule the High Court’s judgment today.
For Gobin, Fifa’s initial refusal to pay its half of arbitration fees ‘demonstrated that it is not ready and willing to do all things necessary to the proper conduct of the arbitration’. Worse, she ruled that ‘the CAS administrators allowed [Fifa] to flout the rules’.
Article 59.2 of the Fifa Statutes states: ‘Recourse to ordinary courts of law is prohibited unless specifically provided for in the Fifa regulations. Recourse to ordinary courts of law for all types of provisional measures is also prohibited’.
Gobin was not suitably impressed.
“As for its insistence on submission to the CAS in accordance with its rules, Fifa assumes wrongly that statute 59 effectively blocks all access by its members to courts in their sovereign states,” she stated. “Agreements to submit to arbitration or designated tribunals are not uncommon in the sporting world and in other areas of commercial activity, such as for example in the construction industry.
“By such agreements parties do not deny the jurisdiction of the courts and the rule of law, rather they agree that the courts would generally hold the parties to the agreement and the courts generally decline jurisdiction.
“But there are some cases in which the court will not hold the parties to their agreement and I have already decided that this is one of them.”
The High Court judge further stated that Wallace and his vice-presidents were granted the ‘power and responsibility for the management of the TTFA’ by member delegates, at the 24 November election.
Were they to concede those rights on the basis of an illegal demand, they would have been party to an unlawful act and could be deemed to have abandoned their duties.
She quoted from Brooms Legal Maxims 10th Edition in Phillip v Innis 4 CL F: ‘If the thing stipulated for is itself contrary to Law, the paction (sic) by which the executions of the illegal act is stipulated must be held to be intrinsically null’.
“Normalisation effectively permits the removal of a body elected in accordance with the provisions of the Act, and the transfer of powers vested under statute to a committee through a process which is outside of the election process established by the statute,” stated Gobin. “It is illegal. In its operation, normalisation necessarily requires TTFA to contract out of its duties and responsibilities under the TTFA Act and under its rules.
“There is a well established principle that a public right is not overridden by the agreements of private persons.”
Gobin criticised Fifa’s sustained ‘unrelenting campaign against the TTFA, the overt aim of which was to force it a litigant before the courts of this country to withdraw its case’.
“[Fifa] conducted its campaign while it remained ensconced in its home in Zurich and as a result will probably manage to escape the consequences of its unlawful behaviour,” she stated. “Were it otherwise, it may well have attracted the exercise of coercive powers of the court.”
Hadad, who allegedly received US$6,500 (TT$44,000) per month from Fifa to ‘run the local game’, was criticised too.
“On the evidence, I am left in no doubt that Mr Hadad, as FIFA’s appointee, was actively encouraging the campaign of pressure on the [TTFA officials] and this gentleman’s conduct is harder to ignore,” said Gobin. “I find that he in his role as chairman of the normalisation committee deliberately engaged in conduct that was calculated to subvert the adjudication of the claimant’s claim.”
Wallace, according to the High Court, had been set up.
“The unchallenged evidence of the Claimant, and this is supported by [Fifa Member Associations chief Veron] Mosengo-Omba’s statement, is that the alarming state of affairs which FIFA claimed warranted the normalisation, had existed well before the new Board was installed,” stated Gobin. “If these were exceptional circumstances in Fifa’s assessment then they were not brought about by the actions of the new board. As a matter of basic fairness, the new board ought not to have been penalised with so extreme an action as removal, because of a situation which it inherited, when Fifa was at all times well aware of the history.”
Gobin said Mosengo-Omba’s explanation as to why Fifa ‘waited’ for four months into the term of the new administration before striking, was ‘unconvincing’ and ‘less than credible’—as Wallace and his board did not have ‘sufficient opportunity’ to address the inherited debt.
“When Mr Mosengo-Omba’s explanation is viewed against the [TTFA’s] evidence, it has to be rejected,” stated Gobin. “If, as he claims, Fifa held its hand in taking action so as to avoid giving the impression that it was taking the side of any candidate ‘in an electoral year’—then the haste with which it moved to unseat the new board established the opposite.”
Wallace, of course, appeared to violate the trust of his board on several occasions during his short-term in office. He admitted to offering secret contracts to marketing director Peter Miller and his associates, and agreed terms with Men’s National Senior Team head coach Terry Fenwick and general secretary Ramesh Ramdhan that were inconsistent with instructions from his board.
But those apparently dodgy deals did not give Fifa ‘power to interfere with or override our sovereign laws’, according to the High Court.
While Fifa cannot remove Wallace, the TTFA’s member delegates can. Up to the time of publication, though, members had not properly requested an extraordinary general meeting.
Wallace’s future still appears to be in his own hands.
Editor’s Note: Click HERE for more on Fifa president Gianni Infantino’s apparent misuse of the Bureau of the Council and the normalisation procedure, the chain of events that led to the invalidation of the TTFA’s 2019 election, and the shaky constitutional interpretation that keeps the 211-member body in business.