“[…] CAS operates subject to Swiss law, and as such any appeal from decisions made by CAS, can be taken to Swiss courts, and the Federal Supreme Court of Switzerland specifically.
“[…] It would appear that the TTFA had legitimate grounds for appeal to the Swiss Federal Supreme Court. Instead, the TTFA decided to file suit against the TTFA in the High Court of Trinidad and Tobago, in clear violation of Fifa Statutes 57 and 59, and the very same Member Agreement it signed with Fifa…”
In the following Letter to the Editor, attorney Nigel Scott offers a legal opinion on the Trinidad and Tobago Football Association’s (TTFA) decision to fight Fifa in the local High Court:
‘And you may find yourself
Living in a shotgun shack
And you may find yourself
In another part of the world…’
David Byrne didn’t sing it, but he might as well have added:
‘And you may find yourself
With a judgment in your favour
And you may find yourself
Without anyone to play with
And you may ask yourself, well
How did I get here?’
When Fifa decided to replace the executive board of the Trinidad and Tobago Football Association (TTFA) with a normalisation committee, the TTFA took its complaint to CAS, only to quickly lose confidence in the body for allegedly showing bias in favour of Fifa.
Specifically, the TTFA took issue with:
- CAS’ request for the TTFA to pay CHF 40,000 (the entire advance sum of the arbitration cost, which generally both parties share 50-50);
- CAS’ granting FIFA’s request for three arbitrators, instead of one;
- CAS allowing FIFA time to wait and file an answer after the TTFA had paid the CHF 40,000; and
- CAS making all of these concessions to FIFA without so much as asking the TTFA for its response to each of FIFA’s requests.
Having lost confidence in CAS’ ability to fairly adjudicate the dispute, the TTFA sought an injunction before the Trinidad and Tobago High Court, with the matter assigned to Madame Justice Carol Gobin. Specifically, the TTFA sought from the Court:
‘a declaration against the Federation Internationale De Football Association (Fifa) that the decision of the defendant dated 17/03/2020 to remove its executive from office to appoint a normalisation committee to run its affairs is incompatible with the TTFA Act no 17 of 1982 and illegal void and no effect.’
After much procedural back and forth, and the failure of Fifa to file a defence to the claim, or to even participate in the ‘trial’, the court granted the declaration.
As a fundamental matter, and with respect to each of the TTFA’s grievances with the Arbitration process:
- It is without doubt against the CAS Rules of Procedure, for CAS to have demanded that the TTFA pay the entire advance cost of the arbitration, without requiring Fifa to pay its share. The relevant CAS Rule of Procedure, rule 64.2 states that:
‘To determine the amount to be paid in advance, the CAS Court Office shall fix an estimate of the costs of arbitration, which shall be borne by the parties in accordance with article R64.4. The advance shall be paid in equal shares by the claimant(s)/appellant(s) and the respondent(s).’
No apparent exception exists by which CAS could (or should) have allowed Fifa to not ante up its CHF 20,000 share of the advance costs, particularly given the relative financial situation of the TTFA when compared to Fifa.
CAS operates subject to Swiss law, and as such any appeal from decisions made by CAS, can be taken to Swiss courts, and the Federal Supreme Court of Switzerland specifically.
The decision to place the entire burden of the advance costs on the TTFA would have been clear grounds for an immediate appeal to the Swiss Federal Supreme Court, even before CAS could begin, let alone finish hearing the dispute.
- With respect to the appointment of three arbitrators without consulting the TTFA, this is permitted by the rules. Specifically, rule 40.1 states that:
‘The Panel is composed of one or three arbitrators. If the arbitration agreement does not specify the number of arbitrators, the president of the division shall determine the number, taking into account the circumstances of the case.’
It is unclear what the specific Agreement the TTFA signed with Fifa says, but assuming it’s silent on how many arbitrators to use, then it is properly up to CAS’ to appoint three arbitrators. If the Agreement calls for one arbitrator, and CAS ignored that and appointed three, then the TTFA could have appealed this to the Swiss Federal Supreme Court as well.
- As for CAS allowing Fifa to defer filing its Answer, rule 39 states that:
‘The respondent may request that the time limit for the filing of the answer be fixed after the payment by the claimant of its share of the advance of costs provided by article R64.2 of this code.”
- Should Fifa have consulted the TTFA before granting the extension of time to file an answer? There is some inconsistency in the rules. Rule 39 doesn’t say that the TTFA needed to be consulted, however rule 32 touches on the matter by stating that:
‘Upon application on justified grounds and after consultation with the other party (or parties), either the president of the panel or, if she/he has not yet been appointed, the president of the relevant division, may extend the time limits provided in these procedural rules.”
So once again, it would appear that the TTFA had legitimate grounds for appeal to the Swiss Federal Supreme Court. Instead, the TTFA decided to file suit against the TTFA in the High Court of Trinidad and Tobago, in clear violation of Fifa Statutes 57 and 59, and the very same Member Agreement it signed with Fifa.
Justice Gobin has now ruled in the TTFA’s favour, finding that the arbitration requirement in both the Fifa Statutes and the TTFA Constitution, were in contravention of the TTFA Act (‘the Act’). Specifically Justice Gobin found that the TTFA acted ultra vires, or beyond the scope of the authority granted to it by Parliament, when it contracted with Fifa, and agreed among other things, to Fifa’s right to impose a normalisation committee.
With respect to the Act, the Court keyed in on the following provisions:
- One of the aims and objectives under Section 3(a) of the Act is:
‘3(a) To regulate and control the conduct of Football in Trinidad and Tobago (under the Federation Internationale de Football Association System) and to provide playing fields and conveniences in connection therewith’.
- Section 4 of the Act provides:
‘The affairs of the Association shall be managed by a general council whose, election powers and procedures shall be prescribed in the constitution and the rules of the Association’.
- The power to make rules is vested under Section 8 (1) which states:
‘The Association shall have power to make such rules as they may deem necessary or expedient for the proper conduct and management of the affairs of the Association and its members and for the discharge of its duties, powers and functions from time to time to alter, amend, vary, revoke or repeal such rules’.
As we examine TTFA’s decision to agree to the exclusive authority of CAS, and the right of Fifa to impose a normalisation committee, both in the context of the Act, it is of critical importance to bear in mind two things:
- For what purpose was the TTFA incorporated under the Act?
- When it signed the agreement with FIFA (and agreed to the things it now complains of), did the TTFA, to use the language used by the Judge, act ‘in furtherance of’ its statutory purpose?
The answer to the first question can be found in Section 3(a) of the Act, which says that the purpose which Parliament set for the TTFA, is to regulate and control the conduct of Football in Trinidad and Tobago under the Fifa System.
Does regulate and control the conduct of football in Trinidad and Tobago under the Fifa system, mean to do so in accordance with the Statutes and Laws of Fifa?
If the answer to that is ‘no,’ then no one—not the TTFA lawyers—have offered an alternate explanation for what the phrase means, and the court has passed on the opportunity to expound.
If the answer to the question however, is ‘yes,’ then a good argument could be made that the TTFA did in fact act in furtherance of the purpose given to it by Parliament, when it freely entered into an agreement with Fifa, accepting both the benefits and burdens of FIFA membership.
It might help also to look at the TTFA’s power to make rules under Section 8(1) of the Act, specifically its power to ‘make such rules as they may deem necessary or expedient for the proper conduct and management of the affairs of the Association’.
Is contracting with Fifa, and agreeing to follow its statutes—the same statutes that every Fifa member must adhere to—not a reasonable interpretation of the TTFA’s power to tailor its own constitution (‘make such rules’) to Fifa Statutes, so that it (the TTFA) could properly conduct and manage its affairs?
The old aphorism comes to mind, ‘he who wants to dance to the tune must pay the Piper’, and no one forced the TTFA to dance. So what happens when the ‘Piper’ takes his pipe and goes home? We play ball by ourselves, apparently.
To be clear, neither Fifa nor its own attorneys are without blame here. Fifa’s faults speak for themselves, including numerous high-handed and ill-advised comments in the press.
But Justice Gobin makes good points when she says that Fifa (through its lawyers) failed to ask the Court of Appeal to expedite the appeal, and also declined to file a ‘without prejudice defence’—meaning that Fifa could have filed the defence and not lose the right to still argue to the Court of Appeal, that Justice Gobin did not have jurisdiction to hear the case.
Still, going back to the issue with CAS, one might ask why did the TTFA not file an appeal with the Swiss Federal Supreme Court, as permitted by the rules, rather than filing the matter before the High Court, with a sure Fifa suspension the outcome?
The public are left without answers for now, at least until the next salvo if fired in five days, on October 19. On that date the Court of Appeal is set to rule on whether Justice Gobin had the authority to even hear the dispute in the first place.
Until such time, and until such answers are provided however, we are left with the TTFA in its default operational status: SNAFU (Situation Normal, All F**ked Up).
‘… Into the blue again after the money’s gone
Once in a lifetime, water flowing underground…’