The Trinidad and Tobago FA v FIFA
Recent decisions concerning a dispute between the Trinidad and Tobago FA (“TTFA”) and the Fédération Internationale de Football Association (“FIFA”) have demonstrated the foundational aspect of the FIFA Statutes to the laws of world football, and FIFA’s position at the apex of football’s governing bodies.
While writing this article I had the benefit of a conversation with Jonathan Walker, attorney at Hamel-Smith (a law firm in Trinidad and Tobago), who was one of the attorneys who represented FIFA throughout the decisions explained below. I am extremely grateful to Jonathan for the time he gave to speak to me and his insightful comments referred to in this article.
Relevant background
FIFA
FIFA is an association registered in Switzerland and is headquartered in Zurich. FIFA was founded in 1904, and is the international governing body of football that tasks itself with, inter alia, organising and promoting international football tournaments, promoting the game of football globally and drawing up regulations and provisions governing the game of football and related matters.
The FIFA Statutes identify FIFA’s organisation, function and objectives (which are explained fully in Football Law’s FIFA overview). FIFA’s organisation includes, inter alia, the Council, the Bureau of the Council, and Congress. Congress is FIFA’s supreme legislative body and consists of FIFA’s 211 member associations, one of which is the TTFA.
Member associations are bound by the FIFA Statutes (FIFA Statutes, article 14(1)). For example, member associations have the right and obligation to take part in competitions organised by FIFA (FIFA Statutes, articles 13 and 14). In respect of the dispute between TTFA and FIFA, articles 8(2), 14(1), 57(1) and 59 are of relevance.
Article 8(2) of the FIFA Statutes states:
‘Executive bodies of member associations may under exceptional circumstances be removed from office by the Council in consultation with the relevant confederation and replaced by a normalisation committee for a specific period of time’.
Article 14(1)(a) and (f) of the FIFA Statutes states:
‘Member associations have the following obligations: a) to comply fully with the Statutes, regulations, directives and decisions of FIFA bodies at any time as well as the decisions of the Court of Arbitration for Sport (CAS) passed on appeal on the basis of art. 57… (f) to ratify statutes that are in accordance with the requirements of the FIFA Standard Statutes’.
Article 57(1) of the FIFA Statutes states:
‘FIFA recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA, member associations, confederations, leagues, clubs, players, officials, intermediaries and licensed match agents’.
Article 59 of the FIFA Statutes states:
‘1. The confederations, member associations and leagues shall agree to recognise CAS as an independent judicial authority and to ensure that their members, affiliated players and officials comply with the decisions passed by CAS. The same obligation shall apply to intermediaries and licensed match agents.
2. 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’.
3. The associations shall insert a clause in their statutes or regulations, stipulating that it is prohibited to take disputes in the association or disputes affecting leagues, members of leagues, clubs, members of clubs, players, officials and other association officials to ordinary courts of law, unless the FIFA regulations or binding legal provisions specifically provide for or stipulate recourse to ordinary courts of law. Instead of recourse to ordinary courts of law, provision shall be made for arbitration. Such disputes shall be taken to an independent and duly constituted arbitration tribunal recognised under the rules of the association or confederation or to CAS.
The associations shall also ensure that this stipulation is implemented in the association, if necessary by imposing a binding obligation on its members. The associations shall impose sanctions on any party that fails to respect this obligation and ensure that any appeal against such sanctions shall likewise be strictly submitted to arbitration, and not to ordinary courts of law’.
The TTFA
TTFA is a company established under the Trinidad and Tobago Football Association Act, no. 17 of 1982 (“TTFA Act”). The TTFA is the governing body that, inter alia, regulates and controls the conduct of football in Trinidad and Tobago, and the TTFA Act states:
‘The aims and objects of [the TTFA] are: (a) to regulate and control the conduct of Football in Trinidad and Tobago (under the [FIFA] system)…’ (TTFA Act, s. 3(a)).
‘The affairs of the [TTFA] shall be managed by a General Council whose election powers and procedures shall be prescribed in The Constitution and the Rules of the Association’ (TTFA Act, s. 4).
‘The [TTFA] shall have the power to make such rules as they may deem necessary or expedient for the proper conduct and Management of the Affairs of the [TTFA] 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’ (TTFA Act, s. 8(1)).
In accordance with those provisions of the TTFA Act, the TTFA has adopted a Constitution (“the TTFA Constitution”). The latest version of the TTFA Constitution that was ratified in 2019 is unavailable, however this version of the TTFA Constitution that was ratified in 2015 is available. Quotations from the TTFA’s Constitution in this article are from those quotations of the 2019 version provided in the judgments explained in this article.
The TTFA Constitution provides for, inter alia, the organisation of the TTFA, which includes the following bodies: the General Meeting, a Board of Directors (the executive body of the TTFA), a President, and Standing Committees. Further, the TTFA’s Constitution provides the mechanism for the election of the Board of Directors.
In respect of the dispute between the TTFA and FIFA, articles 2(e), 65 and 67 of TTFA’s Constitution are of relevance.
Article 2(e) of the TTFA Constitution states:
‘The objectives of the TTFA are:… to respect and prevent any infringement of the Statutes, regulations, directives and decisions of FIFA, CONCACAF, CFU and TTFA as well as the Laws of the Game, and to ensure that these are also respected by its Members’.
Article 65 of the TTFA Constitution states:
‘1. Disputes in the Association or disputes affecting Leagues, members of Leagues, Clubs, members of Clubs, Players, Officials and Officials of other Associations, shall not be submitted to Ordinary Courts, unless the FIFA regulations, this Constitution or binding legal provisions specifically provide for or stipulate recourse to Ordinary Courts.
2. Instead, such disputes as specified in par. 1 shall be taken to an independent Arbitration Tribunal created by TTFA. The Board of Directors shall issue special regulations regarding the composition, jurisdiction and procedural rules of this Arbitration Tribunal.
3. As long as such Arbitration Tribunal has not been duly installed by TTFA and recognised by the General Meeting, any dispute of national dimension may only be referred in the last instance to CAS’.
Article 67 of the TTFA Constitution states:
‘1. In accordance with the relevant provisions of the FIFA Statutes, any appeal against a final and binding decision passed by FIFA, CONCACAF or the leagues shall be heard by the CAS, unless another Arbitration Tribunal has jurisdiction in accordance with art. 69. CAS shall not, however, hear appeals on violations of the Laws of the Game, and suspensions of up to four matches or up to three months (with the exception of doping decisions).
2. TTFA shall ensure its full compliance and that of all those subject to its jurisdiction with any final decision passed by a FIFA body, by a CONCACAF body, by the Arbitration Tribunal recognised by TTFA or by the CAS’.
The facts
In 2018 FIFA randomly selected the TTFA to undergo an audit as part of a ‘central review programme’. The results of that audit, understood to have been available some time during 2019, identified that the TTFA had high levels of debt and caused FIFA to be of the view that there were ‘serious governance issues’ with the TTFA.
The TTFA was due to hold elections for positions on the TTFA’s Board of Directors in 2019. FIFA’s general practice is not to interfere with governance matters of member associations during electoral years to avoid any or any alleged partisanship. Therefore, notwithstanding the results of the audit, FIFA allowed the TTFA to proceed with its elections.
The TTFA held the elections on 24 November 2019, which resulted in the election of four individuals to the TTFA’s Board of Directors.
In February 2020 a delegation from FIFA visited Trinidad and Tobago and met the newly elected members of the TTFA’s Board of Directors. By a letter dated 17 March 2020, FIFA notified the TTFA that FIFA was exercising its power under the FIFA Statutes, article 8(2) to remove the TTFA’s Board of Directors and replace it with a normalisation committee, to be made up of an ‘adequate number of members’ appointed by FIFA (“FIFA’s Decision”). FIFA’s Decision had been made by FIFA’s Bureau of the Council. Pursuant to the FIFA Statues, article 38, FIFA’s Bureau of the Council deals with issues requiring an immediate decision between meetings of FIFA’s Council. A decision of FIFA’s Bureau of the Council will have ‘immediate legal effect’ but ‘shall be ratified’ at the next meeting of FIFA’s Council. FIFA’s Council ratified FIFA’s Decision on 25 June 2020.
FIFA explained in that letter dated 17 March 2020 that the appointed normalisation committee would be in place for no longer than 24 months or, if sooner, upon the completion of the following tasks: (i) running the daily affairs of the TTFA; (ii) implementing a debt repayment plan for the TTFA; (iii) reviewing and amending the TTFA Constitution; and (iv) organising and conducting the election of a new TTFA Board of Directors with a four-year mandate.
Accordingly, the TTFA’s Board of Directors was removed and in its place a normalisation committee was appointed.
The TTFA challenged FIFA’s Decision. In what the TTFA considered compliance with the FIFA Statutes, Article 59 and the TTFA Constitution, article 67, the TTFA made its challenge by way of an appeal to the Court of Arbitration for Sport(“CAS”). However, the TTFA withdrew that challenge to the CAS because, inter alia, FIFA refused to pay its share of the advanced costs of the appeal to the CAS. It should be noted that the respondent to such an appeal is not obliged to pay such a share of the advanced costs, and a refusal to pay half of such costs is a tactic that can be used by a respondent to test the strength of an appellant’s case (as explained in Dev Kumar Parmar’s comments in Football Law’s overview of the CAS, which can be read here). Moreover, the following comments from Jonathan Walker explain FIFA’s position in respect of the non-payment of advanced costs:
‘The CAS’s provision in respect of advanced costs is the same provision that exists in other international arbitration rules such as the ICC… FIFA’s position has to be seen in the context of the fact it deals with around 100 arbitrations before the CAS each year. If you have to pay over $20,000 for each of those arbitrations that’s around $2,000,000, which, if it is successful it will then have to recover from the various appellants. So, FIFA’s position is that they do not pay the advanced costs, but if the appellant is successful then they will reimburse the costs. I think that is a reasonable position to take and it makes sense once you understand the rationale. However, the TTFA’s lawyers appeared to be using [FIFA’s non-payment of half of the advanced costs] as a way of getting out of the CAS arbitration. This was evident from the fact that they declined FIFA’s subsequent offer to meet its share of the costs’.
The TTFA then sought to challenge FIFA’s decision by way of proceedings before the courts in Trinidad and Tobago. In particular the TTFA issued proceedings seeking a declaration that FIFA’s Decision was null and void for being incompatible with the TTFA Act (“the TTFA’s Claim”). The TTFA’s case therefore required consideration of the validity of the FIFA Statutes, article 8(2), and those provisions of the FIFA Statutes and the TTFA Constitution that purportedly oust recourse to ‘ordinary courts’.
TTFA v FIFA HC 1208/2020, 13 August 2020
FIFA made an application in respect of the TTFA’s Claim, seeking an order that, inter alia, the TTFA’s Claim be dismissed or stayed considering those relevant provisions of the FIFA Statutes and the TTFA Constitution quoted above (“FIFA’s Application”).
Gobin J sitting in the High Court of Trinidad and Tobago heard FIFA’s application and dismissed the same. A copy of Gobin J’s judgment dated 13 August 2020 is available here.
FIFA relied upon the TTFA Act, s. 3(a), which states that one of the TTFA’a aims and objects is to regulate and control the conduct of football in Trinidad and Tobago ‘under the [FIFA] system’. Accordingly, FIFA submitted that pursuant to the TTFA’s agreement to be bound by the FIFA system, and become a member association of FIFA, the TTFA had agreed to the FIFA statutes and the arbitration agreement that forms part of them. FIFA also relied upon the TTFA Constitution, articles 65 and 67, which expressly prevent recourse to ‘ordinary courts’ in respect of disputes, and for the CAS to be used when appealing against a ‘final and binding decision’.
Gobin J rejected FIFA’s interpretation of the TTFA Act, s. 3(a), stating that had it been the intention to oust the jurisdiction of the courts of Trinidad and Tobago then the TTFA Act ‘would have to do so expressly in clear and unambiguous terms’.[1]
Gobin J also rejected FIFA’s reliance upon the TTFA Constitution, article 65 as it is ‘a provision which deals with internal disputes’, for example disputes between a player and the TTFA not disputes between the TTFA and FIFA.[2]
Gobin J identified that the main point of consideration in FIFA’s Application was whether the TTFA Constitution, article 67 meant that the CAS had exclusive jurisdiction to deal with the dispute. In particular, did FIFA’s Decision amount to a ‘final and binding decision’? Gobin J considered that the FIFA Decision was not a ‘final and binding decision’ as it was subject to ratification by FIFA’s Council at a later date.[3]
Considering those factors, inter alia, Gobin J dismissed FIFA’s Application. Further, in giving an indication in respect of the TTFA and FIFA’s dispute generally, Gobin J stated:
‘A normalisation committee appointed by FIFA is not on the face of it an organ recognised under [the TTFA Constitution]. The question that will remain to be answered at the appropriate stage is whether [the] TTFA’s agreement to [the FIFA Statutes] Article 8(2) as a condition of [the TTFA’s] membership, amounts to contracting outside of the [TTFA] Act and whether its claim to power to conduct elections overrides the process prescribed by it…
… The question for the court as the litigation progresses will be whether [the] TTFA can contract out of the Act to give FIFA such power or whether [the] TTFA’s contractual undertakings are subject to the laws of Trinidad and Tobago’.
TTFA v FIFA HC 1208/2020, 13 October 2020
Gobin J also heard the trial of the TTFA’s Claim and granted the declaratory relief sought by the TTFA. A copy of Gobin J’s judgment dated 13 October 2020 is available here.
It should be noted that FIFA did not take part in the trial of the TTFA’s Claim. FIFA had not filed and served a defence to the TTFA’s Claim, nor had they filed and served any evidence in respect of the same. Jonathan Walker explained to this author that if FIFA had filed and served a defence and evidence in respect of the TTFA’s Claim then FIFA would be foregoing and prejudicing its position in respect of contesting the jurisdiction of the courts of Trinidad and Tobago. Further, at the time of the trial of the TTFA’s Claim being heard by Gobin J, FIFA had lodged an appeal against Gobin J’s decision of 13 August 2020 which had yet been heard by the Court of Appeal of Trinidad and Tobago (“FIFA’s Appeal”). Notwithstanding that outstanding appeal, Gobin J proceeded with the trial of the TTFA’s Claim.
In considering the TTFA’s Claim, Gobin J identified four issues that required determination:
Whether FIFA’s appointment of a normalisation committee was lawful?
Whether the FIFA Statutes, article 8(2) is compatible with the TTFA Act?
Whether there were ‘exceptional circumstances’ when FIFA appointed the normalisation committee?
Whether FIFA’s Decision was reasonable and made in good faith?[5]
Gobin J dealt with issues one and two swiftly. Noting that the TTFA Act provides the TTFA’s General Meeting (or Council) with election powers as prescribed in the TTFA Constitution for the appointment of, inter alia, the TTFA’s Board of Directors, Gobin J decided that FIFA’s appointment of a normalisation committee and the FIFA Statutes, article 8(2) was illegal:
‘Normalisation effectively permits the removal of a body elected in accordance with the provisions of the [TTFA] Act, and the transfer of powers vested under [the TTFA Act] to a Committee through a process which is outside of the election process established by the [TTFA Act]. It is illegal. In its operation, normalisation necessarily requires [the] 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’.[6]
Gobin J also did not hesitate in dealing with issues three and four, considering FIFA’s Decision to have been ‘unwarranted and indefensible’.[7]
Gobin J appeared critical of the lack of definition of what amounts to ‘exceptional circumstances’ and which therefore gave FIFA ‘a free hand’.[8] However, this author notes that the ability to define what amounts to ‘exceptional circumstances’, in a way, makes whatever is defined as amounting to an ‘exceptional circumstance’ more unexceptional.
Further, Gobin J, upon consideration of the limited evidence available, held that ‘exceptional circumstances’ were not present in this case. In particular, Gobin J observed that if there were ‘exceptional circumstances’ present in this case then FIFA would not have waited for the TTFA to complete the elections held in November 2019, notwithstanding its alleged position it takes normally on not interfering with member associations during election years to avoid any or any alleged partisanship.[9] When this author asked Jonathan Walker to comment on this part of Gobin J’s decision, he stated:
‘At the time of this decision we had an appeal pending against Gobin J’s initial decision. Had FIFA filed a defence that would have prejudiced FIFA’s jurisdictional challenge and application for a stay in favour of arbitration. We asked Gobin J to give FIFA a date for filing the defence after the appeal hearing had taken place, but she didn’t allow that. As such, FIFA did not participate in the trial and put no material before the judge to explain the exceptional circumstances that had led to the appointment of the Normalisation Committee’.
Beyond those four issues, Gobin J excoriated FIFA’s approach to the TTFA’s Claim:
‘Throughout these proceedings FIFA has persistently paraded its disdain for the authority of our local Courts. In doing so it has demonstrated a disregard for the rule of law. The Defendant’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’.[10]
In this author’s opinion, that quotation from Gobin J in this judgment epitomises Gobin J’s misunderstanding of FIFA’s position in the governing structure of world football and to arbitration agreements, as the decision of the Court of Appeal of Trinidad and Tobago when considering FIFA’s Appeal demonstrates.
FIFA v TTFA C.A.CIV.P.225/2020, 23 October 2020
Bereaux JA, giving the leading judgment of the Court of Appeal of Trinidad and Tobago (“the CoA”) on FIFA’s Appeal identified that the TTFA operates as a representative of FIFA and is ‘obliged to respect FIFA’s statutes as well as its aims and ideals’.[11]
The CoA allowed FIFA’s Appeal for three reasons, one of which was a matter of pure civil procedure (service of proceedings on FIFA) that itself would have resulted in Gobin J’s judgments being set aside.[12] Jonathan Walker explained to this author that rather than allowing the TTFA to potentially remedy its procedural error and have the parties return to square one, the CoA also addressed the substantive issue of the effect of the relevant provisions of the FIFA Statutes and the TTFA Constitution. In particular, the CoA considered that the TTFA’s Claim was in breach of the TTFA Constitution, article 67 and ultra vires, and/or that the TTFA’s Claim should have been stayed in favour of arbitration before the CAS.
Focusing on Bereaux JA’s consideration of the TTFA Constitution, Article 67, it was noted that the TTFA Constitution, article 67 is a ‘typical garden variety arbitration clause found in most commercial agreements, by which parties readily agree to forego the civil jurisdiction of the High Court for a tribunal with specialized training and expertise on the issues arising between them’.[13] Further, Bereaux JA identified that Gobin J had erred for several reasons, most notably:
The TTFA Act, s. 3(a) is deliberately broad to permit the TTFA to ‘flesh out its functions… in the Constitution itself, as its membership sees fit’.[14] Reference to the “FIFA system” in the TTFA Act, s. 3(a) is deliberately vague ‘to cover the entire system of football organised and controlled by FIFA’.
The TTFA’s membership of FIFA is voluntary, and any national football association seeking to join FIFA must ‘comply with and abide by the laws and statutes that govern the FIFA system’.[15] More particularly, Bereaux JA held:
‘To the extent that Article 67 ousts the court’s jurisdiction it was the choice made by the TTFA within the wide ambit permitted it by sections 3 and 4 of the TTFA Act. Having made its choice and having bound itself by its own Constitution to comply, it cannot now act outside of its provisions’.[16]
Whether or not FIFA’s Decision was a ‘final and binding decision’ was not a question to be determined by the courts of Trinidad and Tobago. Bereaux JA held that Gobin J was wrong to opine on this issue, which is an issue ‘entirely to be pursued before [the] CAS by [the] TTFA’.[17]
Conclusion
In this author’s opinion it is striking that so much litigation and tension was created from a ‘typical garden variety arbitration clause’. Jonathan Walker put the matter succinctly in my conversation with him: ‘the [CoA] just got it right’. It is also a relief to see that tensions between the TFFA and FIFA have eased, with the TTFA accepting the CoA’s decision and FIFA removing a suspension it had placed upon the TTFA’s membership of FIFA on 24 September 2020.
From the decisions explained above, it is interesting that the CoA left open the issue of whether FIFA’s Decision was a ‘final and binding decision’. Jonathan Walker stated the following in respect of Gobin J’s decision in the 13 August 2020 decision on this point, indicating that, in some respect, it is probably best that this issue has been left to be dealt with – if it ever will be – by the CAS with its expertise in sport disputes:
‘In deciding that FIFA’s Bureau of the Council’s decision was not final and binding – Gobin J decided the point without the benefit of any argument or explanation. To us it was clear that the decision was binding and was final to the extent that the body who made the decision had no power to reconsider whether the decision should have been made or not. Ratification did not change this, and indeed even the TTFA recognised that it was final and binding when it sought to appeal the decision to the CAS. However, even if the Bureau’s decision was not final and binding until ratification – then the TTFA had challenged the wrong decision and in any event it would have been overtaken by the ratification’.
One final observation provided by Jonathan Walker emanating from the decisions explained above, concerned the appropriateness of persons running national football associations:
‘Part of the reason the TTFA is always struggling is that… [the TTFA Constitution, article 34(6)] limits who can be put forward as a candidate for election to the TTFA’s Board of Directors… the candidates need to have been involved in football… this limits the potential pool of candidates, and there are not enough people with a business background or other skill set that can be put forward as candidates. This is one of the reasons why the TTFA never seems to make proper use of the considerable funds that FIFA provides to it and struggles with proper management, oversight and organisation’.
This final comment is apposite considering the current discussions concerning who should be elected to the position of chairman of The FA following Greg Clarke’s resignation from that position in November 2020. There have been suggestions that whoever is elected should be someone who has the experience of playing or otherwise involved in football, rather than someone with business or managerial experience generally. Perhaps Jonathan Walker’s observation is a warning bell not to underestimate the importance of the latter over the former.
Footnotes
[1] TTFA v FIFA HC 1208/2020, 13 August 2020, [37].
[2] Ibid, [38].
[3] Ibid, [42].
[4] Ibid, [43]-[44].
[5] TTFA v FIFA HC 1208/2020, 13 October 2020, [34].
[6] Ibid, [36].
[7] Ibid, [37].
[8] Ibid.
[9] Ibid, [38]-[44].
[10] Ibid, [50]; see also [45]-[56].
[11] FIFA v TTFA C.A.CIV.P.225/2020, 23 October 2020, [13].
[12] Ibid, [21].
[13] Ibid, [24].
[14] Ibid, [29(i)].
[15] Ibid, [29(ii)].
[16] Ibid.
[17] Ibid, [29(vi)].
29 November 2020