JUSTICE Carol Gobin will on August 13 deliver judgment as to whether the Trinidad and Tobago High Court is the appropriate forum for deciding the dispute between the Trinidad and Tobago Football Association and FIFA, the governing body for world football.
Yesterday, Justice Gobin heard arguments from representatives of both parties during a virtual hearing at the High Court, which will decide whether the court proceeds with a claim brought against FIFA by TTFA president William Wallace and his vice-presidents—Clynt Taylor, Susan Joseph-Warrick and Sam Phillip. The former executive is challenging FIFA’s March, 17, 2020 decision to replace them and institute a FIFA-appointed Normalisation Committee, headed by local businessman Robert Hadad.
At the end of yesterday’s hearing, both parties agreed with Justice Gobin that there would be no further formal gathering and that in two weeks’ time, she would inform them of the decision via e-mail.
Yesterday, both parties pleaded their positions using both the FIFA and TTFA constitutions. Representing the TTFA was attorney Dr Emir Crowne whose basic argument was on the unacceptability of forced arbitration, FIFA’S statutes and inequality of bargaining power by members on joining FIFA.
FIFA’s attorney, Christopher Hamel-Smith, argued that the TTFA became subject to FIFA’s statutes on becoming a member and that FIFA’s statutes firmly covered how internal disputes are handled, as opposed to disputes between FIFA and member associations are handled. Hamil-Smith extensively quoted article 59 of the FIFA statutes.
“(Article) 59.3 says the Association shall insert a clause in its statutes or regulations stipulating that the association, meaning the TTFA, is prohibited to take the disputes of the association or dispute of League members and clubs to ordinary courts unless the FIFA regulations, all binding regulations, specifically provide.”
Crowne termed the FIFA statutes unconscionable because of the inequality in bargaining power between FIFA and its members.
“Our attack on the clause is that it is in fact forced on member associations, clubs, leagues, players and officials. By virtue of that, we say that the clause is inoperable because it cannot completely oust the jurisdiction of the local courts.” Crowne also argued that under such conditions there is precedent for ignoring inequitable measures.
“There is a gross inequality of bargaining power. I don’t think any member association in the world can say they have any bargaining power, period, when it comes to FIFA.
“When you take the gross inequality in bargaining and the improvidence then that clause, we submit, is unconscionable and should not be relied on by this court to send the matter back to CAS.”
Crowne further argued that the TTFA had constitutional protection due to its incorporation by an act of the Trinidad and Tobago Parliament.
“There is no mention here or any usurping of power by an outside committee,” he argued, “FIFA could amend its statutes tomorrow but it cannot amend what the Act (of Parliament) says. And at the very least of FIFA saying you signed up to our statutes, you cannot cut the TTFA contract out of an Act of Parliament or cannot relinquish rights that are not relinquishable.”
FIFA’s counsel also argued strongly that the Lausanne, Switzerland-based Court of Arbitration for Sport (CAS) was the appropriate forum to have such a dispute resolved rather that the Trinidad and Tobago High Court.
Again, quoting FIFA statutes, Hamel-Smith said: “FIFA recognises the independent Court of Arbitration to resolve disputes between FIFA, member associations, confederations, leagues, clubs, players, etc.”
Crowne’s argument is that CAS’s arbitration is a forced measure and so, invalid.
“Our position is that there is no valid arbitration agreement because we are of the view that forced arbitration to CAS... it offends public policy,” Crowne declared.
Crowne also spoke of institutional bias, and at the very least, familiarity between FIFA and CAS, another Switzerland-based organisation.
“CAS is not the appropriate forum because at best case scenario, they have shown some undue familiarity towards FIFA.”