After months of battling off the field and in the courtroom, embattled T&T Football Association (TTFA) president William Wallace and his United TTFA executive team will have to wait three more days to learn the fate of their controversial lawsuit against FIFA.
High Court Judge Carol Gobin reserved her decision in the case to Tuesday at 3 pm, after hearing submissions from lawyers representing Wallace and his team during a virtual trial, yesterday morning.
Although FIFA's local legal team was present, they did not challenge or defend against the the executive members' submissions as they maintained that they had received instructions to not play a role because of their client does not accept the court's jurisdiction to hear the case.
However, Senior Counsel Christopher Hamel-Smith, who leads FIFA's legal team, opened the hearing with a request to defer the case.
Hamel-Smith pointed out that by virtue of FIFA's decision to suspend the TTFA's membership, last month, the Normalisation Committee led by businessman Robert Hadad, which was appointed by FIFA to replace the executive in March, ceased to function.
"If they want to run the TTFA, that is entirely their business. Their is certainly nothing stopping it based on FIFA's suspension," Hamel-Smith said, as he noted the FIFA's appeal over the jurisdiction to hear the case is carded for October 19.
Responding to Hamel-Smith, the executive's attorney Dr Emir Crowne suggested that FIFA had attempted the maneuver previously and failed.
"When FIFA does not get its way it does not know what to do. They are not accustomed to that," Crowne said.
Gobin questioned FIFA's claim over the executive's ability to take control of the the association as she pointed out that it maintained that it only recognises the committee.
She also criticised it for repeatedly stating that it does not recognise the jurisdiction of local courts while using the court system to challenge her decision to continue with the case before the Court of Appeal.
"It makes a mockery of our system if a party is not willing to accept the rule of law in this country," she said before rejecting the proposal.
Presenting submissions in the substantive case, Crowne claimed that FIFA's statutes, which speak to the appointment of such committees to member federations and associations, was too vague to be considered legitimately binding as they only provide for such a process in "extraordinary circumstances".
He said that at the time of the announcement FIFA claimed that the decision was based on the association's potential insolvency but provided no further information.
"There is rampant speculation but that is not evidence," Crowne said.
He said that fairness required his clients be given an opportunity to respond before the decision was taken as they have maintained that they inherited the association's dire financial situation, when they were elected in November, last year.
"As has been shown before FIFA and fairness probably do not go hand in hand," Crowne said.
In terms of compatibility with the local legislation which established the TTFA and prescribes how it should be governed, Crowne stated that Parliament did not expressly recognise the supremacy of FIFA's laws in it.
He stated that his clients did not have the remit to change the local legislation as requested by FIFA as a condition to lifting the indefinite suspension.
"It can not be that a private oganisation in Zurich, Switzerland, overrides this country's Parliament," Crowne said.
Crowne was questioned by Gobin over his clients' decision to seek an injunction from the Court of Arbitration for Sport (CAS), also based in Switzerland, over the suspension when it challenged FIFA's claim that that body is the correct one to preside over the substantive dispute.
Crowne said that the costs for the injunction was marginal compared to the substantive case. He also noted that the suspension issue occured outside of local jurisdiction.
"It is a private arbitration body for profit. It is not a court," Crowne said.
Wallace and his colleagues are also being represented by Matthew Gayle, Crystal Paul and Jason Jones, while Jonathan Walker and Cherie Gopie appeared alongside Hamel-Smith for FIFA.
ABOUT THE CASE (SIDE BAR)
Through the lawsuit, Wallace and his three vice presidents — Clynt Taylor, Joseph Sam Phillips, and Susan Joseph-Warrick are seeking a declaration that the decision to remove them in March and replace them with a committee comprising of businessman Robert Hadad, attorney Judy Daniels, and retired banker Nigel Romano was null, void, and of no legal or binding effect.
They are also seeking a permanent injunction barring FIFA from meddling in the TTFA's affairs by allegedly seeking to circumvent the democratic process by removing duly elected executive members.
Gobin has also been asked to decide whether FIFA's statutes, under which the replacement was done, are in conformity with the local legislation, which established the association.
Wallace and his team initially brought proceedings against FIFA in the Court for Arbitration for Sport (CAS) but were forced to withdraw as they could not pay the the 40,000 Swiss francs (TT$276,000) in associated costs.
Their position was partly due to FIFA's policy to not pay its share of the fees and CAS's rules, which require the other party to pay the full costs when the other fails in its obligations.
After the case was filed, FIFA applied for it to be struck out as it claimed that the TTFA by virtue of its membership with FIFA agreed to forgo all legal action in local courts in favour of proceedings before the CAS.
The application was initially blanked by Gobin, who ruled that the local courts are the appropriate forum to resolve the dispute.
While the appeal against her ruling still pending, Gobin set the date for the trial of the case and gave FIFA an extension to file its defence. FIFA failed to meet the deadline as it maintained it position that it did not accept the jurisdiction of the court in the matter.
Wallace and his team also obtained an injunction against the normalisation committee after it attempted to facilitate a extraordinary meeting among members to vote to withdraw the case.
The injunction, which will remain in place until discharged by Gobin, was not opposed by FIFA and was granted.
Wallace and his team attempted to withdraw the case on FIFA's extended ultimatum of September 23 but filed the application to withdraw, which still had to be determined before the case could be considered officially withdrawn, two minutes past the deadline.
After FIFA's suspension the following day, Wallace and his team filed another application to withdraw the withdrawal application, in which he admitted that he was grudgingly discontinuing the case based on a majority vote during an emergency meeting between his team and stakeholders.
The legal maneuver coincided with an announcement from second vice president Joseph-Warrick, that she was resigning from her post.
The United TTFA also approached the CAS for a temporary stay of this country's suspension to allow its participation in
Concacaf's 2021 Gold Cup draw on September 28.
The hearing of the injunction application was deferred after Concacaf announced that its council had met and agreed to conditionally keep T&T's place in the draw.
In the event, that the suspension is not lifted by either FIFA or the CAS by 5 pm on December 18, T&T will be replaced by Antigua and Barbuda as the next highest ranked team based on performances during the 2019 Concacaf Nations League.
RELATED NEWS
Justice Gobin to rule on TTFA challenge on Tuesday.
By Jada Loutoo (Newsday).
FIFA, the world governing body for football, has been issued a yellow card by the judge who has to determine if it acted lawfully when it appointed a normalisation committee to oversee the affairs of local football.
Justice Carol Gobin on Friday suggested FIFA was making a mockery of the rule of law as it continuously cannot, through its local attorneys, say if it would accept the court’s jurisdiction and any declarations it may make.
“Has FIFA changed its position? Is it prepared to abide by any declaration this court makes?” Gobin asked.
“There should never be a question about this. It makes a mockery of the system to be engaging in this if a party will not confirm if it will abide by the rule of law, observe the rule of law and respect the rule of law in this country,” she said in response to FIFA’s attorney Christopher Hamel-Smith’s submission that he had no instructions on a change of position.
The judge’s rebuff came after she was asked to defer Friday’s trial since, according to FIFA, the normalisation committee has ceased to function now that the TTFA has been suspended from international football.
Hamel-Smith said if the TTFA wanted to run the association “that is entirely their business.”
He said there was nothing stopping Wallace and his team from doing so because of the suspension which took effect on September 24, banning TT’s national team and its clubs from participating in any international competitions.
In resisting any deferral of the trial, Dr Emir Crowne, who leads a team on behalf of Wallace and his executive, accused FIFA of constantly changing the goal post by failing to state its position on if they recognised the court’s jurisdiction.
Crowne said it appeared to be a “recurring theme” by FIFA to introduce “self-inflicted frustration” by orchestrating a change in circumstances themselves.
“It is almost as if they don’t know what they want. They say the normalisation committee has ceased all operational and management functions yet when you look at their letter, they say the only legitimately leadership of the TTFA is the one led by Robert Hadad. They are not even saying normalisation committee anymore. Now, they are saying the leadership is Robert Hadad.
“If this is a proper ground for a matter to be deferred, then any defendant can write a letter to itself and introduce material changes.”
Crowne said FIFA was accustomed to getting its way, and so “it tries every maneuver it can to achieve what it wants.”
Gobin said it appeared to be some inconsistency in FIFA’s position by coming to the court to ask it to apply the overriding objectives by deferring the matter “but you make it clear that the fact of this matter remaining for determination before this court really doesn’t make a difference to you in one way or the other.
“How can you reject the authority of the court and then ask it to apply the overriding objective. It seems contradictory. You ask me to await the outcome of an appeal… How do you justify asking me to defer this when we have a claimant who has been anxious, has complied with all the directions of the court, who has applied for injunctive relief when the matter was pending, yet you’re intent to ignore the process. Doesn’t that make a mockery of what we are doing here?” the judge questioned before hearing submissions on the United TTFA’s substantive challenge.
Gobin is expected to give her decision next week Tuesday at 3pm by e-mail.
She has been asked to determine if Wallace and his executive’s removal from the helm of the local football body in March, and appoint a normalisation committee, was justified or in violation of local laws.
FIFA has said the decision to remove Wallace’s administration in March was because of the TTFA’s mounting debt, which was TT$50 million. A normalisation committee, led by Hadad, was appointed, and then came the suspension last month after the TTFA failed to withdraw its legal action in time. FIFA said the sanction was “due to grave violations of the FIFA statutes.”
In his submissions, Crowne argued that FIFA's statutes on the appointment of a normalisation committee for a member federation was vague and had no legal certainty as it only says it would be done in “extraordinary circumstances but nothing more.”
He said FIFA only said the reason for the appointment was the “high debt and potential insolvency” but did not ask for an explanation. He added that Wallace’s administration inherited the debts and there was no evidence before the court to suggest it was proper to normalise.
“We are not entirely sure what these circumstances were,’ he said, adding that there was “rampant speculation” but no evidence.
Crowne also accused FIFA of using a hammer and chainsaw against the TTFA.
“As has been shown before, FIFA and fairness probably don't go hand in hand,” he said.
In his submissions on the TTFA Incorporation Act, Crowne said it sets out how an executive is elected and the duration of its terms. He admitted the Act did not mention TTFA’s membership in FIFA but argued that parliament did not expressly adopt FIFA statutes.
He said it could not be that a private organisation in Zurich, Switzerland, can override this country’s parliament.
Crowne argued that the change in the law in line with FIFA’s statutes and which has been advocated by FIFA for the lifting of the suspension was out of his clients’ hands and was solely the remit of Parliament.
He also said FIFA statutes were inconsistent since, on one hand, it spoke of the normalisation committee but still noted that the world governing body would only recognise duly-elected representatives from member associations.
On FIFA’s insistence that the TTFA’s complaints be heard by the Court of Arbitration for Sports (CAS), Crowne said that was not an option because of that tribunal’s unreasonable requirements. He also said the CAS was a private arbitration body for-profit and not a court.
Crowne also, in response to a question by Gobin, said the TTFA went to the CAS on the suspension issue.
He was questioned by Gobin over an inconsistency in his statement with the fact that TTFA went to CAS over the suspension, saying a stay application was significantly less costly there than its appeal against the normalisation committee.
The CAS was rejected by the United TTFA during the early stages of the legal battle as it claimed that a number of irregularities have arisen, irregularities that have caused the association to believe its right to a fair hearing has impinged.
After the normalisation committee was appointed in March, Wallace’s team took FIFA to CAS.
Two weeks later, the ousted executive turned to the High Court in its fight, although, according to FIFA’s statutes, the matter was mandated to be heard at CAS.
FIFA has not entered a defence in the matter.
The TTFA is also represented by attorneys Matthew Gayle, Crystal Paul, and Jason Jones.
Throws out FIFA appeal, notes authority issue ongoing
Rickie Ramdass (T&T Express).
Judge to rule on TTFA case Tuesday
BY 3 p.m. next Tuesday the High Court will deliver its ruling in a legal claim brought by William Wallace, ousted president of the Trinidad and Tobago Football Association (TTFA) and other officials against their dismissal in March by the world’s football governing body, FIFA.
Presiding over the trial yesterday was Justice Carol Gobin, who, prior to proceeding with the matter, shot down an application by FIFA’s lead counsel Christopher Hamel-Smith, SC, for the claim to be adjourned pending the hearing of an appeal filed by his client against one of the judge’s previous rulings.
In dismissing the application, Justice Gobin said FIFA was making “a mockery” of the rule of law in Trinidad and Tobago.
One of the main bases for Hamel-Smith’s application was that subsequent to the last court hearing, when the judge set yesterday’s trial date, FIFA had taken the decision to cease all operational and management functions of the normalisation committee it had appointed to replace the TTFA board.
As a direct result of this decision, the attorney said, Williams and the rest of the former executive members were now free to regain control of the TTFA if they so desired.
Therefore, he said there was no need for the trial to proceed with any urgency.
The other limb of his application was that when the appeal comes up for hearing later this month, the Court of Appeal may very well find that the local court was not the proper forum for the dispute to be heard and settled, as FIFA is arguing.
If this happens to be the case, Hamel-Smith contended there would be no need for the claim to proceed to trial.
“The TTFA has achieved a large part of what they were seeking to achieve which is, they have gotten the normalisation committee to down their tools and they have a clear way if they choose to do sh..,” Hamel-Smith said, before Justice Gobin interjected.
“Are you serious, Mr Hamel-Smith? The TTFA have gotten them to do that? The TTFA came to the court and got a limited injunction on the last occasion but further to that and even as the correspondence of the 6th of October says, the issue as to who is in charge has not been settled. In fact, it is clear that it is ongoing for everybody else except for FIFA,” said the judge.
Pressed further by Justice Gobin, Hamel-Smith admitted that if Williams and the other former executives were to decide to re-take control of the TTFA, all of its football activities would have to take place only within Trinidad and Tobago since it would be taking place outside of the FIFA system.
However, it would not be allowed to take part in any activities outside of the jurisdiction.
Authority of the court
In response, attorney Dr Emir Crowne—one of TTFA’s attorneys—said the application should be dismissed.
He said the court had already made its decision for the trial to proceed on yesterday’s date.
“The change in circumstances is one occasioned by FIFA. If I were to draw an analogy, it would be like self-induced frustration in a contract perspective.
“FIFA themselves, it is like they don’t know what they want. They have occasioned this change in circumstances and it is improper that they can indirectly or directly interfere with these proceedings through their own acts,” he said.
Crowne went on to say the latest change of circumstances was an indication that “when FIFA does not know what to do, it tries every manoeuver it thinks is available to achieve what it wants.”
Justice Gobin continued to question Hamel-Smith.
She said one thing she has not been able to get out of her mind was the fact that on two occasions, FIFA indicated it had no intention of recognising the authority of the court.
“Has there been any change in that position because it seems to me there is an inconsistency in coming to the court and asking the court to grant indulgences to apply the over-riding objectives when at the same time you are making it absolutely clear and you continue to make clear the fact that this matter remains for determination before this court really doesn’t make a difference to you at the end of the day.”
She said a litigant cannot on one hand reject the authority of the court and then request that the same court grant applications in its favour.
In response to her question, Hamel-Smith said he did not receive any instructions from his client with regard to that issue.
Justice Gobin said there should never even be a question of the authority of the court.
“It makes a mockery of our system to be engaging in this if a party will not confirm that it is prepared to be bound by the rule of law and to observe the rule of law and to have respect for the rule of law in this country,” she said, before dismissing the application and allowing the matter to proceed to trial.
Given the ruling, Hamel-Smith said he had received instructions from FIFA to not make any submissions at trial if the court had so ruled, since to date it has not filed any defence.
Because of this, only Crowne and the TTFA’s other attorney Matthew Gayle were given the opportunity to present arguments to the court.
Following the completion of those submissions, Justice Gobin said she needed a few days to prepare her judgment.
She stated that on Tuesday, no later than 3 p.m., the judgment will be e-mailed to the attorneys for both sides.