David is 19 years old and plays all-fours as a hobby. He is, actually, quite good and so decides to join a team called Hang Jack All-Fours Club. Hang Jack has a registration form, subscription fees and a set of rules for new members.
After being a part of the club for the past 15 years, David is a now well aware of Hang Jack’s rules and the changes made to them over the years. David’s relationship with Hang Jack mirrors the TTFA’s relationship with FIFA.
A contract has been formed between the respective parties, David with Hang Jack and the TTFA with FIFA. Lawyers often cite the Latin expression pacta sunt servanda, to remind clients that agreements must be respected. So, are FIFA and the TTFA respecting the rules?
If the Court of Appeal of the UK is of any assistance to us, we can take our minds back to the 1995/1996 season where Stevenage Football Club was refused promotion although they finished top of their league.
“Unfair!” you might be thinking. How could you win your league and not be promoted? The reason was simple. Stevenage did not satisfy the stadium capacity requirement by the date specified in the rules.
Interestingly, at the time of the cut-off date there were still four months left in the season. Obviously, they could not know then who would win the division, unless, of course, they were either the Nostradamus Football Club or Liverpool in the 2019/2020 Premiership season! Yet, this stadium capacity requirement was in the rules of the Football League, the governing body.
Here’s the deal: Stevenage knew the rules at the start of the season. They couldn’t wait until the competition was over to object to them. Any such challenge should have been made at the start of the season, not the end. You see where we’re going with this.
Closer to home, back in 2011, the Trinidad and Tobago Cricket Board (TTCB) took the then West Indies Cricket Board to court to contest a competition rule. The Combined Campuses and Colleges (CCC) squad had already reached the final and were awaiting the winners of the second semi-final between the TT Red Force and Jamaica. The semi-final ended as a no-result.
During the round robin phase, the Red Force placed second while Jamaica were third giving the local team the confidence that their higher placing meant a place in the final, when the no-result occurred. To no one’s surprise except the TTCB, it seems, the WICB ruled that Jamaica would progress.
In court, Justice Kokaram made life easy for everyone. He simply said to check the rules. So check they did. The language was unambiguous when it stated that in the event of a no-result in a semi-final, the teams would have to look at their head-to-head result in the round robin phase. Jamaica had beaten the Red Force on first innings points when they played each other. End of discussion. Jamaica got to the final. Those rules were in place before the first ball was bowled.
Here’s something that we should remember. It is a common practice for a national sports federation to incorporate the rules of its respective international federation into its local rules. The TTCB adopts many of the rules of the International Cricket Council (ICC). Likewise, the National Association of Athletics Administrations (NAAA) adopts various rules established by its parent body, World Athletics. Similarly, the TTFA has incorporated either expressly or by reference, applicable provisions from the FIFA Statutes. When you adopt rules, you respect those rules. You play to the whistle.
Consider, then, the first part of Article 59(2) of FIFA’s constitution: “Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations.” If that were not enough, add Article 8(2) which says: “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.” FIFA has made two clear statements. First, as we saw last week, they have said that going to court is prohibited. Second, they envisioned the establishment of normalisation committees when the circumstances so require. These are the rules. The TTFA knew the rules, just like Stevenage and the TTCB.
Perhaps there’s a broader question that the TTFA may have missed: Are Articles 8 and 59 of FIFA’s Statutes worth challenging? Can FIFA really mandate that member federations do not access their own national courts? In legal language, can two parties, by contract, agree to oust the court’s jurisdiction?
Maybe a better strategy would have been for the TTFA’s to question, in the right forum, the legal validity of Articles 8 and 59. What seems to have happened, though, is that they agreed to the applicability of these provisions as a condition of their membership with FIFA and when the rules were applied against them, they complained.
Although FIFA clearly appears to be instilling fear in the TTFA, many hold the view that the local body must respect the rules to which they initially agreed. They must play to the whistle, even if the match is being played at the Goliath Recreational Ground. Next week, we’ll reveal one of the best kept secrets in sport. If they try it, both the TTFA and FIFA will win. Trust us. It works.
— J Tyrone Marcus and Ricardo Williams serve as the current president and vice-president of the Trinidad and Tobago Association for Sport and Law.