“[…] If you look at the high court judgment of Madame Justice Carol Gobin and then the court of appeal, in its judgment in paragraphs 37 and 39; they are essentially saying the same thing…
“So the high court and the court of appeal appeared to have validated William Wallace [in his concerns with Fifa and CAS]. It is on a legal technicality, the aspect of jurisdiction, [that the case was lost].
“[…] The same respect for the democratic process that William Wallace insisted on and fought for, everybody who said it was an embarrassment would want that same justice for themselves…”
What was that all about between the Trinidad and Tobago Football Association (TTFA) and Fifa?
Trinidad and Tobago Olympic Committee (TTOC) president Brian Lewis talks to Wired868 about the rights of member associations, the responsibility of the Court of Arbitration for Sport (CAS), the source of Fifa’s power, and why departed TTFA president William Wallace deserves more respect and empathy:
Wired868: What are your thoughts about the court of appeal’s verdict last week?
Brian Lewis: You have to respect the judgment of the court of appeal, which is the highest court in our jurisprudence. Their judgment would have brought clarity [and] they ruled definitively on the jurisdiction aspect of the whole affair. That [obligation to use the Court of Arbitration for Sport] is expressed in almost every Olympic constitution including the TTOC’s; but as I said, it is every individual’s right to seek determination if they have any concerns or doubts about any matter.
For example, there were questions about the Act of Parliament and what does it mean in instances like this. That has now been cleared up, even if it wasn’t a surprising judgment.
Wired868: You believe clarity was needed on the appropriate forum for the TTFA’s legal challenge?
Lewis: If you look at the high court judgment of Madame Justice Carol Gobin and then the court of appeal in its judgment in paragraphs 37 and 39; they are essentially saying the same thing.
High court on CAS: ‘Fifa has unequivocally refused to pay its share of the advance of costs under the rule. It was the CAS court office that first informed the [TTFA] then that Fifa as a general rule does not pay its share of the advance of costs when it is a respondent.
‘Surprisingly, it appears that this is a practice of FIFA’s with which the court office is familiar and one which it is prepared to countenance, with no regard for the consequences of the non-compliance on the availability of the arbitration process to the other party.
‘[…] In its interpretation and application of the rules the court office effectively denied access to the prescribed method of achieving dispute resolution to the undeniably weaker of the parties. Fifa was at all times aware of the dire state of the TTFA’s finances which predated the installation the new Board of Directors in office in November 2019.
‘Rules which were intended to level the playing field, in the words of the privy council allowed the strong to push the weak to the wall (Janet Boustany v George Pigott Co, Antigua and Barbuda  UKPC 17).’
Court of appeal on CAS: ‘[…] (37) By letter dated 30th April, 2020 CAS informed TTFA of Fifa’s policy of not paying advance costs and then called upon the respondent to pay the entire upfront fee. In the context of an already financially straitened organisation, such a request did seem to me to be highly unreasonable… There was no basis […] for calling on the TTFA to pay the entire sum.
‘[…] (39) In this regard, I had entertained some concern about the impartiality of the CAS and what appeared to be a cosy relationship with Fifa… CAS’ reaction to FIFA’s request to forego its share of upfront costs appeared to be reflexive with no apparent independent consideration being given to it.
‘I am however persuaded by Mr [Christopher] Hamel-Smith SC that the actions were those in the administrative division of the CAS as opposed to the arbitrators themselves who would have decided the matter [and] that the Swiss Courts would be the proper forum to hear any complaints about the CAS’ impartiality.’
Lewis (continued): The court of appeal described the actions of Fifa as ‘highly unreasonable’ and they expressed concern at what they called the ‘cosy relationship’ between Fifa and CAS. They felt the request that the TTFA pay the entire sum had ‘no basis’ and even described the reaction of CAS as ‘reflexive and without independent consideration’. However they were persuaded by Mr Hamel-Smith that it was the administrative division of CAS and not the arbitrators themselves; and, in any case, that the appropriate place for appeal [to CAS] is the Swiss courts.
So even in the court of appeal judgment—that everyone, including Fifa, is using triumphantly—it appeared to have validated the grievance that caused Mr Wallace to feel aggrieved at the action CAS took, which led to his feeling of distrust.
So the high court and the court of appeal appeared to have validated William Wallace. It is on a legal technicality, the aspect of jurisdiction, [that the case was lost]. And I am sure that William Wallace, not being a legal person, would have relied on the advice of his lawyers. But that fact and that validation are being underplayed.
Wired868: So you think CAS has serious questions to answer?
Lewis: (Former UEFA president) Michel Platini has openly made clear his deep distrust and loss of confidence in CAS, and there are a number of people (including former Fifa presidential candidate David Nakhid) and columnists who have written similarly about the relationship with CAS and the powerful global sport organisations.
Interestingly when CAS was formed by the IOC in 1983, it was to create an independent organisation that had sport-specific expertise to address sport-related issues quickly and inexpensively. To ask one of the parties to pay the full fees when you know it is economically vulnerable, that goes against what CAS was established for.
[…] The act of putting in place a normalisation committee is the most extreme of sanctions that can be taken by Fifa. Such an exceptional action really requires that it be done according to due process and the natural principles of justice—and if you look at the judgment at 37 and 39, it seems to have validated Wallace’s feeling that this wasn’t done.
But the Fifa has a history of being strong with the weak and weak with the strong. If you follow their history, that is documented. The countries they treat like this are generally the vulnerable associations, whether Guatemala, Guyana, etc. But when the big fish like the USA does things like take legal action against the Fifa executive, you don’t see Fifa taking such extreme sanctions at all.
Wired868: Do you see any possible repercussions for CAS, or even Fifa, from this case?
Lewis: These global sport organisations, particularly the ones based in Europe, are very difficult to hold to account. They operate under this veneer of autonomy and authority, which they use to push back against efforts to hold them accountable. It is almost as if they are a law unto themselves.
Fifa operates as a private governance regime, with regulatory structures that parallel those of a government—yet its incorporation defines the organisation as a private non-profit. Fifa has become so powerful that is even able to resist efforts of accountability from governments, and has granted itself a certain degree of immunity from any potential source of accountability.
When Giovanni Vincenzo Infantino came into power, he claimed it was the dawn of a new era and a turning of a new page in the governance and transparency and accountability of Fifa. In the Sepp Blatter era, there were a number of cases when Fifa was very aggressive regarding non-intervention into their affairs; and there was the perception that this aggressive deployment […] was used to protect those who supported the president.
When Giovanni Vincenzo infantino came in, he talked a lot about a new era, but… It is disappointing. But Fifa is a big and powerful organisation, just like the IOC.
Wired868: Our columnist, Noble Philip, suggested that the only way for the TTFA to win this battle was to get support from other member nations. In the end, there was not even support from the Caribbean Football Union (CFU). Was that always the likely outcome?
Lewis: The reality is that is how smaller nations are treated within the Fifa system. You’re expected to just roll over and take it. If you separated the whole issue of jurisdiction, how Fifa went about changing the elected members of the TTFA cannot stand—even the court of appeal expressed a view on the process. It wasn’t that William Wallace was wrong, or that his concerns and grievances were wrong. The problem was in the path he took.
There is strength in unity and that is always important, but that is philosophical and ideological. The reality is in international sport politics, money talks and bullshit walks. Nobody is going to [stand up against a Fifa], especially if you are economically vulnerable. The countries that are dependent on the funding from the international sport federations, it is going to be very hard to get them to take any action that could threaten their source of funding.
That is why organisations like Fifa move in a particular way in places like Africa and Asia and the Caribbean but they do not treat the bigger countries in the same way.
Wired868: This impasse has shown that many persons, even within the government and the media, don’t understand the relationship between member associations like the TTFA and global bodies like Fifa. Would you like to explain it to our readers?
Lewis: The international sporting federations are made up of members and, depending on the wealth of the global sport organisation, they will provide support within their means by making various grants and development programmes accessible. The IOC gives grants in the thousands [of TT dollars], Fifa gives grants in the millions… Fifa is the big gun [of all international sporting bodies].
It is not a father and son relationship. Fifa is made up of members and there are certain rules and guidelines that both sides have to abide by. It is not supposed to be a one way street.
Wired868: Wallace felt his removal by Fifa was unfair said his target was to be heard. Considering the court of appeal ruling, did that ever happen?
Lewis: He and his legal team made a choice to be heard in Trinidad and Tobago following the decision by Fifa, following the request by CAS for them to pay the full amount…
Wired868: Yes, but the matter of his removal was not heard…
Lewis: It was heard. The high court gave its determination and then the court of appeal set aside the decision of the high court. It is just that it was heard in the wrong jurisdiction, which is a technicality.
Wired868: Do you regret that the matter was not heard in the right jurisdiction then?
Lewis: The reality is having taken the option to seek a hearing in the jurisdiction of Trinidad and Tobago and the court of appeal ruled this wasn’t the right jurisdiction; at the end of the day, that’s how it is. I am not going to express a view on the choices and decisions that Mr Wallace and his legal team would have made. That is now up to conjecture and speculation.
I heard he took the decision to accede to the decision of the EGM; so he will not go to the privy council and he will not appeal the suspension. Now if it is the court of appeal clarified that Trinidad and Tobago was not the right jurisdiction and the jurisdiction is the Court of Arbitration for Sport, then that means based on the decision of the delegates at the EGM, the matter is not going to be heard at all.
There may have been important points made at the Court of Arbitration for Sport to deal with our suspension. It might have been possible that different things might have been ventilated at the Court of Arbitration for Sport that might have encompassed Wallace’s removal. So it is very interesting that that has been withdrawn because that wasn’t a demand from Fifa.
Fifa’s issue is that the case was in the court of Trinidad and Tobago and not CAS. Only the delegates at the EGM would know on what basis they would have felt it necessary to withdraw the matter from CAS as well when that would not have been one of the requirements of Fifa.
As I have maintained, for the development of sport jurisprudence and clarity, etc, the fact that Mr Wallace felt constrained to challenge the process should not and ought not be the issue. I don’t think there is anyone within any organisation who had been democratically elected and then four months later was removed; I can’t see anyone honestly and legitimately not having empathy for Mr Wallace.
Wired868: You believe the TTFA’s football delegates gave Fifa more than it was even asking for? That their decision helped bury the substantive matter?
Lewis: I found it very curious; the decision to withdraw from CAS. But you have to respect that process. I noted that Mr Wallace said he respected the process.
Anyone who faults him for standing up for his principles in the sense of being treated fairly according to the process that led to him being removed is unfair. They would have wanted for themselves exactly what he was asking for. But there are people whose only priority seems to be to participate in the Fifa system.
Fifa seems to take a certain approach in terms of using its wealth and money to manage and manipulate things, there are people who are prepared to do that right here. So it would be interesting to see what happens from here.
I have always maintained that in every crisis, there is an opportunity; and in this football crisis—between now and when the election is held—there is an opportunity and I hope there are some younger leaders in football in Trinidad and Tobago who will get the courage to put themselves forward. We need some independent minds who think outside of the box and will really have the best interests of the football as their main priority and not have agendas.
If what has happened is a catalyst for that awakening, then I think Mr William Wallace would have been found to be on the right side of history. As it stands, in challenging Fifa he may appear to have been squashed and crushed; but it could still redound to the benefit of Trinidad and Tobago.
We have a large intake of football people coming through our [TTOC] courses and some of them have a lot of potential. Whenever the next election falls, I think it will be important that we not see the same faces circulating—many of whom are part of the problem. There is a thinking that the people who create a problem are not the people to solve them.
I believe that people who have the best interest and the genuine interest of football should step up; otherwise the people with ulterior motives who want to control football for the wrong reasons will take charge—and then the problems will continue. And that is the same for all sport.
Wired868: What do you take away from the TTFA’s seven-month battle with Fifa?
Lewis: That Fifa is a big and powerful organisation; and a law onto themselves.
Wired868: But didn’t we know this already?
Lewis: Knowing that it is, going in, and seeing it deployed, are two different things. One is speculation, the other is reality.
William Wallace won in a fair and square election; I think he was the first Tobagonian to head the Trinidad and Tobago Football Association. There are those who felt some of the decisions he made [as president] didn’t help his cause and he trusted people that he should not have trusted.
The reality is he had an extremely solid reputation going in [the TTFA presidency] as Secondary School Football League (SSFL) president and a national team manager. Those things weren’t questioned. The decision was 26-20 [in the elections] and then three to four months later. (Pauses) Well, you have all the information.
Notwithstanding that, Wallace had a very valid case. As a result of the jurisdiction he contested his removal in, Fifa won the battle. Many commentators have described that as a comprehensive victory; but I don’t think it is. I think in the passage of time, many of those who used the opportunity to ensure the demise of William Wallace will themselves be exposed.
Wired868: Exposed as what?
Lewis: I am saying exposed full stop—because obviously there was a lot going on behind the scenes. I saw where the extraordinary general meeting ‘humbly apologised’ to Fifa, Concacaf and the CFU for any embarrassment caused. Imagine standing up against something that the court of appeal itself said was highly unreasonable and that is considered ‘an embarrassment’. Imagine that.
Standing up and saying: ‘listen this wasn’t right, this is unfair’, is considered an embarrassment. And the same respect for the democratic process that William Wallace insisted on and fought for, everybody who said it was an embarrassment would want that same justice for themselves.