“[…] Domestic Swiss courts would have not offered Mr Wallace or the TTFA any relief either. Fifa is a private association under Swiss law. Swiss law is very clear in that private associations are free to make their own rules as they see fit, and the Fifa Statutes definitively exclude recourse to domestic courts.
“Moreover, the CAS is also established under Swiss law and is recognised as an international arbitration tribunal, which, in Swiss legal culture, is widely recognised as a legitimate arbiter of disputes. It is likely that a Swiss court would have had less of an appetite to accept to hear this type of case than any other domestic legal system…”
The following guest column on TTFA president William Wallace’s unsuccessful attempt to stave off ‘normalisation’ by Fifa was submitted to Wired868 by Paolo Torchetti, who is a Spain-based sport attorney with experience before the Court of Arbitration for Sport (CAS) in areas of ethics and governance cases, financial fair play and player transfers:
It is no secret that Justice Carol Gobin of the high court of justice had scathing words for Fifa recently, proclaiming that its contempt for state courts and the rule of law is inconsistent with the principles and values becoming of the world’s governing body of football.
When the court of appeal overturned the high court’s decision allowing for the reinstatement of the normalisation committee, the celebrations can be heard all the way from Zurich.
According to this author, the court of appeal was correct in law and Fifa was accordingly successful. The TTFA Constitution clearly states that disputes shall not be submitted to ordinary state courts unless Fifa or TTFA regulations explicitly allow for such a path.
There are no football regulations, either domestically to the TTFA or internationally at Fifa, that grants anyone in the football family the legal authority to commence litigation in a state court in this type of case. The Court of Arbitration for Sport (CAS) in Lausanne, Switzerland was and is the only appropriate venue to hear this case.
These are the rules of the game that all members of the football family have agreed to.
The issue, however, is not whether the case was correctly decided by the court of appeal. What is correct in law is not always just in policy. The real issue is that the current state of football law leaves no room to challenge a unilateral Fifa take-over of an independent football association via the imposition of a normalisation committee.
Although the correct appeal route for this type of case is the CAS, Mr William Wallace was fighting an uphill battle, rightly or wrongly, from the beginning.
The first issue is the ambiguity of the law concerning normalisation committees. According to Fifa Statutes, a normalisation committee can be imposed in ‘exceptional circumstances’. The only limitation is that it be carried out in consultation with the relevant confederation—in this case Concacaf—and that it must be for a specified period of time.
The Fifa regulations offer no examples of nor do they define ‘exceptional circumstances’. The result is that the regulations are ambiguous, leaving Fifa with an immense berth of discretion.
An appeal to the CAS reviewing that discretion would have been equally difficult due to this ambiguity, where the arbitrators would have had to determine if the circumstances in the TTFA were ‘exceptional’. Considering that the discretion appears to be unfettered, the result is seemingly predictable.
The question many have posed, however, is what changed in the three months between the election and the Fifa delegation’s visit to Trinidad and Tobago?
It is difficult to fathom that a newly formed executive committee could have ruined the TTFA’s financial situation in such a short time. If Mr Wallace’s team was not responsible for the dire financial situation, wouldn’t justice be better served giving properly elected representatives at least the opportunity to sort out these issues?
The ambiguous nature of the circumstances that allow for the imposition of a normalisation committee can create the opportunity for what appears to be political interference.
The second difficulty in opposing a normalisation committee before the CAS is that the costs are prohibitive. A CAS appeal of a governance case can range from 25,000 CHF (TT$186,000) to 60,000 CHF (TT$446,000). The appellant, the TTFA and Mr Wallace, would have been responsible to pay 50% of that immediately or the case does not go ahead.
The respondent, here Fifa, is invited to pay the remaining 50%. Under the rules of the CAS, any party being sued can refuse to pay that 50%. If they do not, the appellant must pay that remaining 50% or the case dies on the vine.
What is notable, is that it is Fifa policy to never shoulder that burden leaving appellants to bear the entire costs of the arbitration. Although it is allowed under the CAS rules, it is curious that the world governing body of football policy induces cases to be dismissed where its members cannot afford access to justice.
It is particularly curious because if Fifa paid 50% of the costs and it were successful in the CAS case, the TTFA and Mr Wallace would have had to reimburse Fifa for those outlays.
It is true that Fifa’s refusal to pay those costs is within the rules. Perhaps, however, the rules should be changed. Fifa-CAS cases that involve disciplinary matters—such as ethics cases or appeals of player suspensions of more than four matches—are free, and the costs are borne by the CAS administration.
Perhaps the rules concerning the cost of governance cases should be changed accordingly, giving members of the football family access to affordable justice to resolve football political disputes where there are real legal issues.
Domestic Swiss courts would have not offered Mr Wallace or the TTFA any relief either. Fifa is a private association under Swiss law. Swiss law is very clear in that private associations are free to make their own rules as they see fit, and the Fifa Statutes definitively exclude recourse to domestic courts.
Moreover, the CAS is also established under Swiss law and is recognised as an international arbitration tribunal, which, in Swiss legal culture, is widely recognised as a legitimate arbiter of disputes.
It is likely that a Swiss court would have had less of an appetite to accept to hear this type of case than any other domestic legal system.
The only way a Swiss court could be used is if a CAS decision was appealed to the Swiss Federal Tribunal (SFT), but a CAS case would have had to take place first. In addition, the likelihood of the SFT overturning a decision of the CAS is very low.
This is because the SFT does not hold a retrial reviewing the correctness of the decision, but will only intervene if a fundamental principle of justice has been violated. So long as the CAS follows its own rules, which it usually does, an appeal will not be successful.
Finally, although fees for Swiss lawyers vary, it may cost up to 25,000 CHF (TT$186,000) to retain an attorney, which is considerably high in comparison to other parts of the world.
The fact of the matter is that Fifa holds the ultimate bargaining chip in that it can suspend member football associations. A suspension can have serious consequences where Fifa funding will be cut off and the national teams cannot compete in international competitions.
Bringing the matter before the domestic state courts was bound to fail from the beginning due to Fifa’s power in the football world and its willingness to use it.
The issue is not that a normalisation committee cannot be challenged in a state domestic court. The problem is that there are limited means to review Fifa’s discretion to overtake an independent football association.