High court judge Carol Gobin has run her leg of the legal impasse between the Trinidad and Tobago Football Association (TTFA) and global governing body Fifa. Today, the court of appeal judges Chief Justice Ivor Archie and Nolan Bereaux took the baton.
“The TTFA originally did not have a problem with going to CAS—you were accepting that that was the proper framework that governed your arrangement,” the chief justice told TTFA attorney Dr Emir Crowne, at one point. “It is when Fifa refused to pay costs that you said ‘we feel we are unfairly treated and therefore Fifa has denied us access to arbitration’—which is what you wanted.
“So that question is relevant to whether or not the local court will assume jurisdiction [of this case]. What we are asking you is if that is no longer Fifa’s position [and the governing body pays its upfront fees and lifts the TTFA’s international suspension], does any objection remain to [returning to] CAS?”
The prospect added a new potential twist to the tumultuous relationship between the two parties. But it was not an altogether novel offer.
Fifa first attempted to entice the TTFA back to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland on 6 July when it suggested mediation talks for the first and only time—an offer that was rescinded with hours due, according to a Fifa release, ‘to the failure of the lawyers of United TTFA to keep the matter confidential, in line with their professional and ethical obligations’.
(Crowne shared word of the offer with TV6 within hours of it being made.)
The TTFA’s legal team also comprises Matthew Gayle, Jason Jones and Crystal Paul. Fifa is represented by Christopher Hamel-Smith SC, Jonathan Walker and Cherie Gopie.
The TTFA are in court because president William Wallace and vice-presidents Clynt Taylor, Susan Joseph-Warrick and Sam Phillip were removed by Fifa on 13 March and replaced by a Fifa-appointed normalisation committee. The global body eventually suspended the TTFA on 24 September for failure to withdraw the case within its deadline.
However, when the two parties appeared before Justice Gobin for the first time on 29 July, Hamel-Smith formally suggested that Fifa was willing to pay its upfront share of the arbitration fees at CAS—as a sweetener for the TTFA to return to the Swiss body.
And Crowne’s response then?
The TTFA attorney told the high court it ‘will be sending the TTFA back to an unfair forum’ if it ordered its return to CAS, and that forum non conveniens (the court’s discretion to decide which forum is better suited to hear a case) ought to determine that Trinidad is the right venue for the dispute.
“How is a body of non-Trinidad nationals the best forum to decide whether [Fifa’s] appointment of this normalisation committee in accordance with Trinidad law or not?” Crowne asked the high court, as he claimed that the TTFA Constitution was the first applicable rule book before one sought to determine whether Fifa was right to intervene.
Crowne’s response at the court of appeal today was quite different.
“That is a fair question, chief justice,” said Crowne. “If the suspension of the TTFA is withdrawn and the normalisation committee is reappointed, and Fifa said ‘we are going to pay our half of the arbitration share’; then I think our arguments fall away. And then the CAS remains the forum for the resolution of this dispute.”
It would not be the only example of a marked change in the tone of the legal proceedings, as Archie and Bereaux appeared more open to points that Gobin rejected outright.
For instance, Hamel-Smith claimed, via an affidavit from Swiss attorney Miguel Lietard Palacios, that the TTFA’s serving of court documents to Fifa by email was not permissible under Article (11) of the Swiss Federal Act, and therefore unlawful.
Gobin was fairly curt.
“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,” said Gobin. “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.”
Archie suggested that the manner of service does indeed matter and noted that: ‘service by email is substituted service; if it is personal service it cannot be by email’.
The chief justice pointed to the 2016 court of appeal case between Magistrate Marissa Gomez and Brent Nunes, in which the latter was found to have improperly served the appellant. Justices Allan Mendonça, Gregory Smith, and Prakash Moosai declared service of the claim form to be ‘an essential step in the proceedings’.
Crowne responded with a quote from the same case as well.
“It also says the second purpose [of service] is to enable the defendant to participate in the process,” said Crowne. “The philosophy behind service was not in any way impaired by our service by email.”
Crowne noted that Dr Claude Denbow SC gave notice of appearance for Fifa on 26 May and ‘in that notice, he said he received claim form and so on’.
“That in itself does not constitute waiver of improper service,” said Archie.
Crowne suggested again that by not filing an objection, Denbow had essentially waived the issue. (Although Denbow was replaced by Hamel-Smith before the matter got to the high court and the latter attorney made a case for improper service in his first pleading.)
Archie asked Crowne whether his entire defence rested on the fact Denbow did not immediately raise the issue of service when he filed a notice of appearance.
“It suggests waiver by him not making it,” said Crowne. “[…] The waiver was made by the initial counsel for Fifa in our respectful view.”
“The answer to that is either yes or no,” Archie retorted. “[…] You need to decide what your position is, and it would be helpful if you can back that up with some authority.”
Crowne noted that in the case cited by the chief justice, Nunes had not served Gomez at all. This matter, he said, was different.
“Without something more, it does operate as a waiver,” said Crowne.
“If you come across any authority on that,” said Archie, “please let us have it.”
Hamel-Smith, from the onset, appeared intent on making the most of the change of environment in his tussle with the TTFA.
“Our first position is […] CAS has the sole jurisdiction,” he said. “We say this respectfully—and this is a point that we think, with respect to the judge below, she didn’t understand. She thought we are saying that Fifa is outside the laws of Trinidad and Tobago; we are not saying any such thing.
“[…] Constitutionally, the TTFA voluntarily imposed upon itself an obligation, which is consistent with the Fifa statutes, that it would only pursue disputes of this nature before a particular forum which happens to be the CAS.
“[…] It doesn’t put itself above the law. It simply says that if a dispute arises between a member association and Fifa, then that dispute […] will be decided by the CAS.”
Well, Archie asked, in what circumstances would the local courts have jurisdiction in disputes between the TTFA and Fifa?
Hamel-Smith said that he would ‘get to that question’ in two steps. He never did address it, though. Instead, he pivoted back to his initial point and insisted that the TTFA imposed the contentious restriction upon itself.
“It is clear that parliament has given the TTFA the chance to make and amend its own rules and constitution,” said Hamel-Smith. “What they can’t do is simply ignore the terms of their own constitution and say they will do it anyway. They will have to first amend their constitution to remove that stipulation.”
There was no push-back from the chief justice.
“So before you accuse Fifa of breaking the rules, you ought to do it in a way that follows yours?” asked Archie.
“It goes further than that,” said Hamel-Smith. “We are saying you have the absolute right to hold Fifa to the law, but you do that in one of two ways: either by going to CAS; or you can change your own constitution.
“But what you cannot do is claim to be above or beyond your own constitution. I think that really is the knob of the debate on this most fundamental of points.”
Crowne countered that the Fifa’s statutes said member associations ‘shall insert a clause to give the CAS jurisdiction’ and there was nothing voluntary about it. As such, he interpreted it as an attempt by Fifa to ‘oust entirely the court’s jurisdiction’.
Gobin, famously, made much of the fact that the TTFA is incorporated by an Act of Parliament and was a de facto statutory body that could not or ought not to submit to the whims of a foreign entity. Gayle invited Archie and Bereaux an opportunity to follow suit.
“I don’t mean to cut across Dr Crowne,” said Gayle, as he sought to explain the difference between the TTFA’s two CAS appeals. “[…] Certainly the entirety of that external interference with an internal process of what is, by our submission, a statutory body must be subject to the courts of Trinidad and Tobago…”
The chief justice interrupted.
CJ: Before you go ahead, what is the significance of ‘incorporated by statute’? Because that does not by itself make a body a public body. And I know some discussion seems to have centred on that in the judgment.
What was the TTFA from 1964 to when it was incorporated by statute? What difference does the incorporation by statute make to the nature of the body and the business in which it was engaged? Was it subject to Fifa Statute between 1964 to 1982?
Gayle: I don’t have that [before me], and I don’t know that that’s a matter before your lordship…
CJ: I ask the question because there is a lot of harping on the fact that it was incorporated by statute; so were the girl guides and the boy scouts and several churches in Trinidad and Tobago. Remember this is a private member’s bill eh; this is not a governmental function. Please explain to us what significance ‘incorporation by statute’ has.
Gayle: It is twofold … The TTFA is a public body…
CJ (interrupts): No … The fact that you are incorporated by statute is not determinative of anything of the sort.
Gayle: […] Whether it is a statutory body or not may not be material … Section four and eight of the Act gives statutory footing to the TTFA constitution and sets out that there needs to be an election process [to change the executive]. We are saying you cannot overcome this statutory…
CJ: If the Act gives effect to the [TTFA] Constitution, then what does the Constitution say about whether Fifa can do what it did? If the parliament by an Act permits something, how can you say it is done it is contrary to public policy?
Gayle: It is the other way around; the Act gives life to the Constitution…
CJ: I don’t think you understand my question… If parliament passes an Act that says this is permissible and you may craft your constitution in line with ‘the Fifa system’, then if the constitution is crafted in line with the Fifa system, why are you saying that is contrary to public policy?
Gayle: The provision my lordship is referring to, section three of the Act; that is drafted in deliberately general terms… You can’t take an action that is contrary to the wording of the statutes.
CJ: Your submission is changing. First, you are saying it is contrary to public policy; now you are saying it is contrary to the Statutes. Which is it?
Gayle: My lord. Dr Crowne was making submissions under the public policy…
CJ: But you are on the same side.
Gayle admitted that the TTFA Constitution accepts the Fifa Statutes ‘carte blanche’ but dug his heels in that the only way it explicitly states an executive can be removed is via an election.
If the TTFA signed up for Fifa rule, seemed to be Archie’s question, then isn’t what comes with it the business of the local football body? Didn’t the 1982 Act of parliament suggest that the government of the day, led by Prime Minister George Chambers, was happy for Fifa and the TTFA to simply get on with their affairs?
Crowne suggested that the issue of arbitration was now a moot point in light of Fifa’s suspension of the TTFA and the closure of the normalisation committee. It drew incredulous responses from the Appeal judges. If the situation was rendered moot by that, they asked, then why did the high court grant a declaration?
Crowne suggested that Gobin’s verdict was on the rule of law in respect to what Fifa was allowed to do as a result of its statutes and the TTFA’s Constitution.
CJ: Did you ask for a declaration of the lawfulness of Fifa Statutes?
CJ: How did that get in the case then? At what point? Where did that come from?
Crowne: It arose because it was a question of if [the normalisation committee] could be appointed, based on what the TTFA Act said; and whether that committee can then usurp an elected body … That is how that issue came to play.
Archie said ‘alright’ but did not sound satisfied.
Bereaux: If we rule that the case should have gone to CAS and we throw everything out—including Justice Gobin’s judgment—what then?
Crowne replied that Fifa, by suspending the TTFA while its own appeal was pending, had frustrated the matter.
Bereaux: So this court shouldn’t act?
Crowne: Yes, the court should act to preserve its own processes.
The court of appeal judges did not seem altogether convinced.
Fifa did not escape scotch free though. Crowne said Fifa and CAS together ‘designed a scheme’ that priced the TTFA and other small associations from being able to afford justice. which was ‘unconscionable’.
Hamel-Smith admitted that the global body breached the arbitration policy by not paying its share of fees—even when asked to do so by CAS. However, he argued that it was ‘not sufficient to disenfranchise Fifa’.
Justice Bereaux charged that Fifa had not so gallantly left a cash-strapped member association with the ‘onerous burden’ of paying both their arbitration fees, having frozen its funding to boot.
Hamel-Smith noted that there was legal aid available. Justice Bereaux suggested that the TTFA did not want to hear about that because it felt CAS showed bias.
“This is the court that is supposed to be the arbiter of the dispute, that is not applying its rules properly,” said Justice Bereaux, who noted that CAS did not explicitly offer the option of funding to the TTFA. “You look at it and say ‘is this the court that I am forced to go to?’ Is [the TTFA] entitled to go to a tribunal that appears not to be fair and […] not to be is it bound to that same arbitration agreement?”
Hamel-Smith suggested that, if the TTFA was unhappy with the conduct of CAS, it ought to go the Swiss courts.
“Like every arbitration tribunal, [CAS] is controlled by the court at the seat of the tribunal,” he said. “[…] If you felt that there was going to be some bias, then your remedy is in relation to the seat of that arbitration tribunal.”
“Why not in Trinidad?” asked Justice Bereaux.
Hamel-Smith repeated the relevance of the Swiss Federal Court.
“So the short point is the Trinidad courts are excluded by that?” asked Justice Bereaux.
“The short point is once the TTFA has not amended its constitution,” said Hamel-Smith, “it has committed itself to CAS.”
Would the court of appeal rule that Fifa’s breach before CAS was sufficiently grievous to justify the TTFA’s approach to the high court? Or is the TTFA obliged to follow its own constitution, come what may?
The TTFA was given the option to return to CAS, once Fifa agreed to lift the suspension, and Crowne did not appear averse to it—although there is still the matter of finding 20,000 Swiss francs (TT$150,000) to do so.
And this is if the TTFA’s member delegates agree, in Sunday’s extraordinary general meeting, that such an exercise is a worthwhile use of time and money. (Thus far, Wallace has not used funds from the local football body.)
Walker noted a barrier to the suggested return to CAS on the matter of the normalisation committee
“There is an injunction that prevents us from reintroducing a normalisation committee,” said Walker.
“I see what you mean; it would also involve a concession on the part of the [TTFA],” said Archie. “Hence my concern that this trial went ahead before the appeal. But that is water under the bridge…”
Crowne offered a solution.
“In relation to what Mr Walker has said, I am mindful of a suggestion that perhaps is a way to resolve this impasse,” he said. “The Act speaks to an election of the general council and the normalisation committee might be at odds with that…
“If suspension was undone by Fifa and Fifa ‘renormalise’; could [the TTFA’s general body] vote to allow the normalisation committee then? […] Perhaps Fifa will lift the suspension and propose to normalise and we can take that issue on an expedited basis to CAS.”
The TTFA’s attorney was offering suggestions as to how the local body could effectively ‘normalise’ itself. The tide appeared to have turned.
“Well that is something for you and the other side to work out between yourselves,” said the chief justice, “but we are happy that the parties are prepared to work something out.”
Perhaps fittingly, Hamel-Smith helped himself to the closing words.
“My learned friend Dr Crowne uses this expression where he talks about an entirely foreign body, entirely under foreign law will decide and this cannot be consistent with public policy,” said Hamel-Smith. “I just want to emphasise this, my words, paranoia about it being a foreign body under foreign law is inappropriate. This is an arbitral process set up between parties who are located in different parts of the world; this is the nature of the organisation … Foreign law does not equal somehow being against public policy.
“And it wouldn’t be entirely under foreign law … Tribunals receive evidence of domestic law and apply domestic law in a wide variety of circumstances.
“[…] I also don’t see how this can be moot. There are binding declarations, some of which are broader than were even asked for… We are saying that if we are right, those declarations were instituted in proceedings that were not properly instituted in the first place. Those declarations must go.”
There was the suggestion by the Court of Appeal that Fifa had rigged its judicial system to deny its own member association of justice. It is a serious charge that questions the fairness of the controversial CAS clause. But after Gobin’s electric assertions, it felt like an anticlimax.
Even with the possibility that Fifa would open the door for the TTFA’s return to CAS, it is unlikely that Wallace and his team could afford to go through it—even at half-price.
At this stage, it is uncertain what scenario the TTFA’s 47 member delegates will have before them to discuss at their EGM this Sunday.
Editor’s Note: Click HERE to read TTFA president William Wallace’s response to the offer to return to CAS.