Not very often has public legal order been able to force FIFA to submit to the rule of state law. In fact, throughout its 116-year existence football’s world governing body has meticulously designed its legal framework to insulate itself as much as possible from the state laws of its various member associations as well as larger supra-national institutions such as the European Union and others like it.
Except for some historic and landmark cases such as the Bosman ruling of 1995 and indeed FIFAgate, FIFA has largely been untouchable when it comes to public or state legal order intervening in the general order by which FIFA governs football and governs itself.
In the case of the Bosman ruling, which can be likened to an industrial relations matter with far-reaching implications for the game at every level, the European Court of Justice’s judgment banned restrictions of movement on EU players allowing those who were at the end of their contracts to move from one club to another for no transfer fee. It consolidated three earlier decisions in favour of Belgian footballer Jean-Marc Bosman against the Belgian Football Association, Royal Football Club de Liege as well as UEFA.
Meanwhile, in 2015, United States prosecutors began proceedings into allegations of corruption and collusion between several football officials and executives of sports marketing companies.
More than 10 FIFA officials have been charged, indicted, and pleaded guilty on multiple counts of fraud, money laundering, and bribery. All of those officials faced simultaneous bans by FIFA from participating in football-related activities.
FIFA itself has not faced any sanctions and has gone about its business of "reform" within the walls of the organization and most importantly, out of the reach of the public legal order.
Several academic examinations of FIFA’s private legal governance structure as well as its increased economic clout over time, seem to suggest that any attempt to drag football’s global governing body over into public or state legislative order is futile, to put things mildly. In fact, according to a case study on FIFA’s private legal order published in 2018 - Private order building: the state in the role of the civil society and the case of FIFA - often public legal order acts as an enabler of sorts.
One excerpt reads, “…not all the credit behind the expansion of FIFA’s private order goes to FIFA alone. Public orders, such as the sovereign jurisdictions of FIFA’s member associations and supranational organizations like the European Union (EU), influence the evolution of the order.”
The study contends that regulatory autonomy granted to FIFA and private institutions like it, through the historical and traditional reluctance of states to trespass FIFA’s governance - from its control over tournament schedules, its commercial enterprise and setting of its own financial and political framework - has largely enabled the body to evolve into the self-governing juggernaut that we know today.
This idea speaks volumes given FIFA’s establishment of its headquarters in Zurich, Switzerland, a country that has also traditionally avoided the intervention in the affairs of private entities residing within its borders.
Moreover, this is precisely the assertion being made by the United TTFA – a body within Trinidad and Tobago made up primarily of the duly elected TTFA officers at last November’s Annual General Meeting that has since been removed from office by FIFA.
Led by the TTFA’s elected president William Wallace, vice presidents Clynt Taylor, Joseph Sam Phillip, and Susan Joseph-Warrick as well as a couple of other local administrators, United TTFA has challenged FIFA’s appointment of a normalization committee to steer T&T football for a maximum period of 24 months. Having been disbanded less than four months after being constitutionally elected and within weeks of reportedly alerting FIFA to alarming financial malpractice of the previous administrations, Wallace and company have sought to challenge FIFA’s legal dominion by filing a matter at the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland.
It has since withdrawn that case at CAS, FIFA’s prescribed arbitration body, choosing instead to file its matter with the High Court of Trinidad and Tobago. Upon withdrawal, United TTFA said: “It became clear that CAS was prepared to ignore its regulations to facilitate FIFA in its handling of TTFA vs FIFA.” It claimed that after CAS asked it to pay the entire cost ($40,000 Swiss Frances or TT$277,000) of proceedings upfront, contrary to normal practice, United TTFA had “serious doubts" about being afforded a fair hearing.
United TTFA is now leaning on the High Court of T&T in a bid for the state’s legal system to 1. Declare FIFA’s set up of the normalization committee, on March 17, 2020, null and void 2. Grant a permanent injunction preventing FIFA from interfering or overriding the outcome of the democratic process 3. Grant a permanent injunction to prevent the FIFA from interfering in the day-to-day management of the TTFA including use of its bank accounts and property.
This unprecedented challenge can certainly be lauded on principle even if the anticipated consequences, which we will also explore, can be potentially damaging for the local administration of football.
Branislav Hock, one of the contributing researchers on the 2018 publication as well as another published in the Yale Journal of International Law titled, Between the Green Pitch and the Red Tape: The Private Legal Order of FIFA has found the entire scenario and posturing of both parties interesting.
Hock says, “What this case shows in Trinidad and Tobago, at least from the limited knowledge that I have about the case, is that under FIFA statutes if you want to be a member you need to follow the rules, as long as these rules are in compliance with some basic fundamental rights and if they are in essence acceptable for society at large.”
However, United TTFA continues to use its defence, the TTFA's establishment by an act of parliament in 1982. Hock, Senior Lecturer of Economic Crime at the University of Portsmouth in the UK, who has studied extensively, the relationship between public and private legal orders as well as the advantages and disadvantages of both, says “It's a part legal question, a part political question.”
He added “FIFA’s legal order, except perhaps in the Bosman case when the FIFA legal order indeed was challenged by the state laws, has been able to resist any major interference of the public orders. You can go to the national court and say maybe you can go against the association (FIFA) at the national stage but the question is whether you have enough power and means to harm the association.
"Ultimately, you can win the dispute in the national court but the association can say you don’t have to be in our association if you don’t want to follow these rules. It's ok that you are established based on the law of Trinidad and Tobago but you are a member of our association based on the statutes of FIFA.”
The High Court of T&T is essentially being asked to deliberate whether Article 8.2 of FIFA's statutes can be applied to the TTFA. It allows FIFA to disband the Executive bodies of member associations "under exceptional circumstances by the Council in consultation with the relevant confederation and replaced by a normalization committee."
However, according to the TTFA constitution, only article 38 speaks to the dismissal of a person or a member and specifies that dismissal can only be carried out at the General Meeting with the person in question being allowed to defend against any such motion.
Hock says, “It's not one or the other, definitely both apply but they apply in different contexts and for different reasons."
He adds that beyond the issue of whether or not FIFA’s intervention in the affairs of Trinidad and Tobago football was justified or not, the TTFA’s challenge can have a deeper interpretation as it relates to the umbrella body’s execution of power.
Hock said, “FIFA is able to design specific rules that benefit actors within football. These are not some default employment rules for example. These are rules that fit the purpose. If a player goes to court and gets some temporary ban from going to work, playing – their career might be over. That’s why we need a swift dispute resolution system. So there are many advantages to this private order.”
“But generally, the rule is to leave these private orders alone if they are legitimate. They will probably do many good things. But what we need to discuss is 'When the state or public order should intervene? When should they step in and fix something? And why the public order should know better than the private order.'
FIFA has retained the services of Trinidad and Tobago based law firm of Dr. Claude Denbow SC and the matter will be brought up in the T&T High Court is expected to be heard on June 16, 2020. It has also refused to accept an olive branch extended by the United TTFA offering to take the matter to mediation.