‘A wasted trial’; how Gobin and Wallace were undone by court of appeal—as Fifa prevailed

The Trinidad and Tobago Football Association (TTFA) versus the Fédération Internationale de Football Association (Fifa) was billed as the most important case in local sport history, at the opening whistle.

By the time the dust had cleared, though, Justice of Appeal Nolan Bereaux described the exercise as ‘a wasted trial’ and Madame Justice Carol Gobin’s seismic rulings in the Port of Spain high court were consigned to the bin, rather than the judicial history books.

The TTFA was represented by Dr Emir Crowne, Matthew Gayle, Jason Jones and Crystal Paul, while Fifa was represented by Christopher Hamel-Smith SC, Jonathan Walker and Cherie Gopie.

TTFA president William Wallace still, theoretically, has the option of a final appeal to the privy council. But, by Monday morning, it may no longer be his call to make, as the TTFA’s 47 member delegates await for what promises to be a feisty, extraordinary general meeting on Sunday.

Wallace cannot be removed on Sunday, as his fate is not on the agenda. But a strong show of disapproval for his actions can make his position untenable, still less than 12 months into his four-year term as president.

The besieged TTFA president said, earlier this week, that no matter what happened today or on Sunday, he would be buoyed by Gobin’s notable judgments in the high court. Today, he lost that as well, as Chief Justice Ivor Archie and Bereaux tore into Gobin’s decisions as well as the merits of the TTFA’s approach to the local high court.

It is worth noting that, after Wallace and vice-presidents Clynt Taylor, Susan Joseph-Warrick and Sam Phillip were removed by a Fifa-appointed normalisation committee on 13 March, the officials set off in search of an independent hearing. They still have not gotten that.

Today’s matter was about whether the Trinidad and Tobago courts was the right venue for the proceedings. And Archie and Bereaux said, emphatically, ‘no’.

Remarkably, the court of appeal ruled that the TTFA’s attorney had not served Fifa properly to begin the proceedings in the first place.

“As any experienced practitioner will know, service of originating process is an arcane area of procedural law that is littered with pitfalls,” said Archie. “Many a claim has floundered at the first hurdle. This is merely the latest example.

“Having come to the conclusion that the service was unlawful, quite apart from the other reasons set out in the judgment of my learned brother, we have no choice but to allow this appeal.”

Bereaux, for his part, said Gobin was ‘wrong to reject’ an affidavit from Fifa attorney Miguel Lietard Palacios that pointed to TTFA’s apparent failure to follow Swiss law in serving his employer by email.

Bereaux described the form of service as ‘illegal … void and a nullity’ and ‘another reason why the judge’s order must be set aside and the claim struck out on this basis’.

“Due regard and respect must be paid, as a matter comity, for the laws of other nations,” stated Bereaux. “A court is committed to uphold the rule of law and cannot give effect or be seen to give effect, to a form of service of process which is unlawful under the law of another country in which the proceedings have been served.

“If the proceedings are to have effect in Trinidad and Tobago, they must not be tainted by illegality—especially an illegality in the country of one of the parties to the dispute, who will be expected to observe any order which the Trinidad and Tobago court makes.”

Archie further chided Gobin.

“There is no inherent power in the court to invent a process that is outside the contemplation of the rules and then to direct a party to employ it,” said the chief justice. “That is a recipe for chaos.”

Gobin, in refusing Fifa’s request for the TTFA case to be stayed and/or directed to CAS, gave weight to the fact that the local football body is incorporated by an act of parliament. As such, she ruled that Wallace’s grievance ‘falls squarely within the jurisdiction of the high court of this country’.

Section 3 of the TTFA Act states: ‘The aims and objects of the Association are:-

1. to regulate and control the conduct of Football in Trinidad and Tobago (under the Federation Internationale de Football Association system) and to provide playing fields and conveniences in connection therewith;
2. to promote local, inter-territorial and International Football matches and to provide prizes or awards to participants thereof; and
3. to foster and promote the playing of Football under the said system and to become members of or affiliated to Associations having similar objects.”

Gobin suggested that section 3 was not ‘operative’ since ‘a reference to the Fifa system in any case is not the same as Fifa Statutes’.

“Had Parliament intended to enact Fifa Statutes so as to oust the jurisdiction of the courts and to effectively deprive the TTFA of access to the courts of this country,” said Gobin, “it would have had to do so expressly in clear and unambiguous terms. Because TTFA is a statutorily-created corporation, it cannot oust the jurisdiction of the courts by its rules.

“Further, the adoption of rules which seek to oust the jurisdiction of the courts breach a well-established policy of the law, which renders such rules void. Moreover, it is outwith the jurisdiction of an entity incorporated under our legislation to agree to submit to foreign law as Fifa Statutes prescribe.”

However, Bereaux said Gobin erred by effectively failing to grasp the reasoning behind the act of parliament in general and section 3 in particular.

“The TTFA Act was introduced into parliament as a private member’s bill,” said the justice of the appeal. “There was no debate on the floors of either the House or Senate. It, therefore, cannot be said that there was some public policy behind its incorporation.

“To the extent that there is any policy to be discerned, one must look to the provisions of the TTFA’s Act and those point to the TTFA working compatibly within the Fifa system. Further, there is no rule of law which prohibits a corporation incorporated by an act of parliament from submitting to a jurisdiction of a foreign tribunal.”

As for section 3, Bereaux said it is indeed operative and ‘deliberately drafted in wide terms to permit TTFA the latitude to flesh out its functions and modus operandi in the constitution itself, as its membership see fit, without the necessity of having to return to parliament to broaden its powers’.

“The term ‘Fifa system’ is vague, deliberately so,” said Bereaux. “This is because the term is intended to cover the entire system of football organised and controlled by Fifa.

“Such governance can only be effected by Fifa through laws, rules and regulations; that is to say, the Fifa statutes, as well as Fifa’s subordinate rules and regulations, decisions and directives.”

Having decided that the TTFA Act did not restrict the local football from abiding by Fifa’s regulations in any way, Bereaux did not accept Crowne’s argument that the stipulation which forced the local body to use CAS was an imposition.

Article 67 of the TTFA Constitution states:

‘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.

‘[…] 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.’

Bereaux said Fifa membership is voluntary and if the TTFA chose to join, then it is obliged to accept its rules.

“The TTFA has made that choice—a choice which preceded its incorporation in 1982,” said Bereaux. “It has been a member of Fifa since 1964. It chose to join Fifa and to abide by its statutes, rules and regulations.

“[…] 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.”

Still, the court of appeal was unimpressed with CAS’ behaviour in this matter and its relationship with Fifa.

Wallace opted to move to the high court, on the guidance of his attorneys, after what they felt to be signs of inherent bias at CAS. And Bereaux found they had good reason to be uneasy, as he noted Fifa’s refusal—even when asked—to abide by CAS’ rules to pay arbitration fees upfront.

Inexplicably, CAS demanded that the cash-strapped TTFA pay Fifa’s share for them too, at a total cost of 40,000 Swiss francs (TT$300,000).

“In the context of an already financially straitened organisation, such a request did seem to me to be highly unreasonable,” said Bereaux. “My concern was heightened when I read Article 64(2) of the Statutes of the Bodies Working for the Settlement of Sports Related Disputes (which govern CAS arbitrations it appears), which was used by CAS to justify TTFA paying the entire amount of upfront costs. There was no basis under that provision for calling on the TTFA to pay the entire sum.

“[…] In this regard, I had entertained some concern about the impartiality of the CAS and what appeared to be a cosy relationship with Fifa.”

Yet, Bereaux found that Crowne went too far in declaring Fifa’s breach to be ‘unconscionable’.

“Dr Crowne submitted that calling upon the TTFA to pay that exorbitant sum was unconscionable and rendered the agreement unenforceable,” said the justice of the appeal. “He relied on the decision in Uber Technologies Inc v Heller 2020 SCC 16, in which a majority of the Canada Supreme Court held such a clause to be unconscionable and unenforceable in circumstances where the upfront costs to arbitrate a claim against Uber was equal to all or most of the gross annual income of the claimant working full time as an Uber driver.

“There is no question of unconscionability here. That case is distinguishable. The facts of this case are nowhere as extreme. Fifa, in any event, recanted its position and was prepared to pay its upfront costs.”

Further, he said the breach was insufficient grounds for Gobin to rule out arbitration altogether, while he noted Hamel-Smith’s argument that the fees were demanded by CAS’ administrators rather than the arbiters.

“CAS’ reaction to Fifa’s request to forego its share of upfront costs appeared to be reflexive with no apparent independent consideration being given to it,” said Bereaux. “I am however persuaded by Mr Hamel-Smith that the actions were those in the administrative division of the CAS, as opposed to the arbitrators themselves who would have decided the matter.

“In any event, as Mr Hamel-Smith rightly submitted that the Swiss Courts would be the proper forum to hear any complaints about the CAS’ impartiality. In conclusion, on this point, therefore [Fifa] was entitled to have had these proceedings stayed in favour of the arbitration proceedings before the CAS.

“[…] On a proper review of the evidence, Fifa’s refusal to pay the advance costs of the arbitration did not amount to a lack of readiness or an unwillingness to properly conduct the appeal.”

It is not that Wallace and his vice-presidents did not have a case against their removal by Fifa and the behaviour of CAS, according to the court of appeal, it is that they took their grievance to the wrong forum.

The court of appeal took Gobin to task for accommodating them.

“We are concerned here with the exercise of a judicial discretion,” said Bereaux. “Gobin J must be shown to have been plainly wrong in exercising her discretion to refuse the stay in order for this court to interfere with her decision.

“[…] In my judgment she was plainly wrong in her reasoning.”

The chief justice further denounced Gobin for her refusal to allow the court of appeal hearing to happen before she ruled on the substantial matter.

The high court judge blamed Hamel-Smith for not requesting an expedited trial from the appeal court. However, Archie accused Gobin—who he has crossed swords with publicly on other matters over the past year—of wasting the court’s time.

“Owing to the particular primary challenge mounted by Fifa, it would have been wiser to let the challenge to service be determined—particularly in the context of a pending appeal,” said Archie. “It was neither prudent case management nor an economical deployment of judicial time and resources to attempt to finally determine the substantive issues and to deliver a judgment less than a week before the scheduled hearing of the interlocutory appeal. The foreseeable result is that we must now set aside the declarations granted below.

“While we are aware that the filing of an appeal against a final decision does not entitle the unsuccessful party to a stay, deeper consideration must be given in circumstances like this where, depending on the outcome of the appeal, the effort expended would have been in vain and the appellate court may be obliged to reverse any decision.

“Zeal is commendable but it must not obscure the need for caution. I trust that, in future, courts at first instance will be guided accordingly.”

Ultimately, Wallace and/or the TTFA will pay for Gobin’s perceived error.

“[The] TTFA by proceeding with the trial while this appeal was pending must bear the costs of what is now a wasted trial,” stated Bereaux. “[…] The TTFA therefore shall pay the appellant’s costs of the application in the high court, certified fit for one senior and one junior attorney-at-law.

“The TTFA shall also pay the appellant’s costs of this appeal which shall be two-thirds of the costs assessed in the high court.”

Crowne submitted that ‘pursuit of this appeal is not only academic but also moot because Trinidad and Tobago’s membership in Fifa has now been suspended and TTFA cannot now exercise any rights under the Fifa Statutes’.

Not so, according to the court of appeal.

“While it is not in evidence before us, the reason for the suspension is the fact that the TTFA is in breach of Articles 11 and 14 of the Fifa Statutes by its filing of these proceedings,” said Bereaux. “But in any event, Fifa has challenged the validity of these proceedings in the high court and in this appeal. It is entitled to pursue its appeal.

“Further, as Mr Walker submitted, there are declarations made by Gobin J in the substantive claim which, in so far as they have been made by a high court judge of Trinidad and Tobago, are binding on Fifa (at least locally) and remain binding so long as the decision subsists.”

And so, the court of appeal proceeded to strip the TTFA of its wins in the lower court.

“The appeal is allowed; the decision of Gobin J dated 13th August 2020 is set aside,” stated Bereaux. “The decision of Gobin J dated 13th October 2020 is set aside. The order granting declarations therein is quashed.”

Yanked by Fifa, Wallace has now been spanked by his own courts.

Elected TTFA president on 24 November 2019, the former Carapichaima East Secondary vice-principal’s short stint in charge looks set to be remembered for all the wrong reasons.

Fifa struck first and early in the affair. Wallace and the TTFA thought they had played their way back into the match.

But, in the end, a late show by Fifa’s attorneys ensured a rout.

Editor’s Note: Click HERE to read the response from Trinidad and Tobago Football Association (TTFA) president William Wallace.