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FIFA in the dock

By Lars

New information suggests that FIFA decided to “normalise” the newly elected board at the Trinidad & Tobago Football Association after just two months. If this indeed turns out to be the case, Gianni Infantino could face real trouble.

By Philippe Auclair

In other words, this would be proof that FIFA’s decision to ‘normalise’ the TTFA had been taken before the governing body had any elements at its disposal to evaluate the performance of the new administration, and been able to establish its incompetence or worse. To the TTFA’s administration, this would amount to a confirmation that this decision had been politically motivated, both as a punishment for the usurpers of the previous regime and as a means to regain control over a turbulent FA which had made it clear from the word ‘go’ that it intended to investigate how a $2.5m FIFA grant had been – in its eyes – dilapidated, with FIFA turning a blind eye to the misuse of its money. It would make FIFA’s position untenable.


High Court
The email from Trinidadian barrister Matthew Gayle dropped in Alexandre Gros’s and Sofia Malizia’s inboxes mid-afternoon on 19 May. They were advised, as was FIFA’s litigation service, that an order had been served on them in the case that the Trinidad & Tobago Football Association (TTFA) had opened against the governing body at the T&T High Court of Justice.

Kindly note that the claimant is making a claim against you in the court”, they read.” If you do nothing judgment may be entered against you (in bold type in the original text). That means that the claimant will be entitled to take steps to enforce payment from you of any money he is claiming and you will have no right to be heard except as to the amount of any costs claimed or as to the way in which you can pay the judgment unless you apply to set judgment aside“.

It’s fair to say that Alexandre Gros, the senior governance services manager of FIFA’s Member Associations Committee, and Sofia Malizia, who was recently promoted manager of the same FIFA department, are not used to receiving such messages, be that in terms of tone or content. 

Their surprise must have been all the greater since it seemed that FIFA’s ‘normalisation’ of the T&T Football Association would, in the end, not be challenged by the ousted administration at the Court of Arbitration for Sport (CAS)*. It was reasonable to think that an end had been brought to the matter, bar for the anger of many in the Caribbean nation. But no. The  ‘normalised’ were fighting against their ‘normalisation’, and aimed to declare FIFA’s decision ‘null, void and of no legal and/or binding effect’ and to place an injunction against FIFA which would – in theory – prevent it from ‘interfering in the day-to-day management [of the TTFA]’. 

The TTFA administration had initially intended to bring its case to the Lausanne-based court, but, after doing its sums, had realised that it could not raise the necessary funds to do so, regardless of the validity of its claim that FIFA had acted unlawfully by appointing a normalisation committee headed by a successful local businessman named Robert Hadad, better known until then for being the archipelago’s number one importer of ice-cream than for his role in football governance, something which Mr Hadad, who describes himself as an “avid fan of football” is quite happy to accept.

Getting CAS to rule on an issue does not come cheap, especially when the defendant is FIFA, one of the Court’s main financial backers (to the tune of CHF 1.5m per annum), and when football accounts for about 65% of all cases heard by the tribunal. The TTFA board, which had no longer access to and control over its own accounts at the First Citizen Bank since the normalisation process had been initiated, had asked for a single arbitrator to be put in charge of the dossier; FIFA had insisted on three, as is the defendant’s prerogative, thereby tripling the cost of the proceedings. 

What’s more, FIFA had the statutory right to refuse to pay its own share of the expenses incurred in the instruction of the case. On 11 May, Miguel Liétard Fernandéz-Palacios, FIFA’s director of litigation, informed CAS that it would “not pay its share of advance of costs in this specific procedure”. This meant that the TTFA found itself faced with a bill for CHF 40,000, an absolute fortune for the cash-strapped organisation, and had to throw in the towel. CAS no longer was key to a positive resolution for the TTFA. FIFA had priced them out of litigation…or so it seemed.

Home Advantage
The TTFA administration still had a card to play, not in Switzerland, but at home this time. After all, they had always been a ‘body corporate incorporated in the Republic of Trinidad and Tobago’, and had the right to turn to the country’s highest jurisdiction, Trinidad and Tobago’s High Court of Justice. This is exactly what they did. A 155-page ‘Statement of Case’, which Josimar has seen, was filed by the TTFA President William Wallace on 18 May at T&T’s Supreme Court of Judicature. 

Together with documents which aim to substantiate the legality of the case, this ‘Statement’ was also a potted history of how and why the present situation had arisen, and contained a detailed timeline of what had happened since 24 November 2019, when ‘Big’ William Wallace defeated David John-Williams by 26 votes to 20 in the final round of the TTFA presidential elections.

That result certainly wasn’t what Gianni Infantino had hoped for: six days before the vote, he’d travelled to T&T and endorsed his ‘team-mate’ John-Williams at the grand opening of the ‘Home of Football’, a FIFA-financed complex which had cost millions (a large part of which had been disbursed in cash and was virtually untraceable) and was in fact unfinished and unusable in its present state. 

The ‘Home of Football’ was later turned into a ‘step down facility’ for the care of COVID-19 sufferers, but only after a huge effort from the authorities and a number of local companies had made it safe to use. As is clear from an address to the nation made by T&T’s Minister of Social Security Stuart Young on 22 April, the complex which the FIFA president had inaugurated in great fanfare in November 2019 had been lacking basic equipment and amenities such as flooring, fire extinguishers, internet access and even running water; as well as light bulbs, which were donated by Robert Hadad, the head of the Normalisation Committee. Where had all the USD$ 2.5m paid out by FIFA gone?

Whoever had been responsible for the mess the TTFA found itself in, the task facing the new board of directors was a huge one. According to the statement filed by Wallace at the High Court, the TTFA’s debts at the time of the presidential election stood at ‘circa TTD$50,000,000’, that is about USD$7,5m, which, still according to Williams, had been accrued during John-Williams tenure between 2015 and 2019. 

This dangerously high level of debt seemed to have escaped FIFA’s attention before the November 2019 election, somehow, even though every Member Association which benefits from FIFA grants, as the TTFA did under the presidency of John-Williams and his predecessors, is subjected to a yearly audit by the federation of federations. Less than a week before the TTFA election took place,  Gianni Infantino had praised its soon-to-be-ousted president in those fulsome terms: 

“I came to Trinidad and Tobago, and I was not believing to find somebody like [David John-Willams] in Trinidad and Tobago. I have to say the truth. Because Trinidad and Tobago Football Association was more or less in the same state as FIFA at that time. David was saying ‘shambles’, I say shambles was maybe a compliment for the state you found”.

“We found a Federation which was under the earth. TTFA, Trinidad and Tobago Football, very sadly, was in the headlines for other reasons than football, even though linked to football. Today, we are here, and proud to be here, because today, Trinidad and Tobago is the capital of the world of football.”

Within less than four months, FIFA would hold a very different view of T&T football.  So did, from the start, the administration which replaced John-Williams’s regime and set out to conduct an audit of the FA’s financial records as soon as it got in power. A commission was convened for that purpose, and on 11 February 2020, the TTFA Financial Committee Chairman presented its report to Wallace, which was approved by the federation’s board of directors eleven days later. 

So far, so good. The TTFA would be able to provide concrete evidence of its efforts to correct its past mistakes to the FIFA/CONCACAF delegation they expected to visit the two islands on a fact-finding mission from 25 to 27 February. That visit took place as planned, just beating the coronavirus lockdown, without anything happening which should have caused alarm within the local football administration. 

Yet, less than three weeks later, on 17 March, the TTFA found out that it was the subject of a normalisation order; what’s more, the newly-suspended administration learnt of that decision through social media, as, quite extraordinarily, the FIFA employee who’d been charged to inform them of it had sent her message to the wrong address. Never had FIFA moved so quickly to impeach a new football administration in its whole history. 

The haste with which FIFA had acted in TTFA’s case contrasted with its refusal to get involved in the long-standing dispute at the top of Kenyan football, which had caused this country’s own supreme sports arbitration body to call for a normalisation order to be issued, as reported by Josimar; in vain until now. Similarly, the scandal which is rocking Haitian football at the moment – the president of that FA, ‘Dadou’ Jean-Bart, is accused of sexually assaulting female footballers placed under his protection, some of them as young as 14 – has failed to elicit any concrete response from FIFA so far, aside from the setting of an investigating committee. 

Critics of the decision to normalise the TTFA will point at what, to them, is a common thread running through these various cases. Trinidad and Tobago, Kenya and Haiti are all placed under the ultimate supervision of the Director of Development for Africa and the Caribbean, Véron Mosengo-Omba, one of Gianni Infantino’s oldest allies; and of the three FAs in question, two are led by supporters of the FIFA president, those of Kenya and Haiti, where FIFA had so far refrained from using the option of normalisation. The exception is Trinidad and Tobago, where the FIFA president’s ‘team-mate’ and political supporter was voted out. As only T&T has been the subject of a normalisation order issued by Mosengo-Omba, there is no need to be particularly imaginative to join those particular dots.

Verdict on Monday 25 May?
Taking the case to T&T’s High Court of Justice is not without risks for the Wallace administration. Not only is there no certainty that the tribunal will find in its favour: it is also very unlikely that a ‘positive’ ruling could be used as a legal means to overturn FIFA’s decision, as article 59.2 of the FIFA statutes states that “recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. Recourse to ordinary courts for all types of provisional measures is also prohibited”. Articles 58.1 and 59.1 also specify that “appeals against final decisions passed by FIFA’s legal bodies […] shall be lodged with CAS within 21 days of receipt of the decision in question” and that “the confederations, member associations and leagues shall agree to recognise CAS as an independent judicial authority […]”

The question then becomes: could a successful lawsuit in Trinidad and Tobago provide the impetus for reviving the TTFA’s action at CAS? After all, there is a mechanism in place at the sports tribunal, a kind of ‘legal aid’ system which allows a claimant who cannot afford lodging an appeal to do it anyway, provided that they can prove the manifest legitimacy of their cause. Should T&T’s High Court of Justice find in favour of Wallace, this could give him the proof he needs.

In any case, no other avenues are open to him and his supporters right now and, to them, the gamble is worth taking, all the more so since the arguments on which their action is based are far from frivolous. Their main claims are that FIFA’s statutes “cannot override the  [the TTFA’s] Constitution, its General Council, Board of Directors nor Duly Elected Executive Officers, whose power is derived from an Act of the Parliament of the Republic of Trinidad and Tobago” (which Josimar was told by an independent source was correct); and that “no power exists, pursuant under [the TTFA’s] Constitution or otherwise, that enables [FIFA] to remove the Board and/or the Duly Elected Executive Officers and/or any other internal body of [the TTFA] except as set out in [the TTFA’s] Constitution”.

To the surprise of some and the satisfaction of the TTFA Counsel Matthew Gayle, FIFA chose to make a representation at the High Court and recruited one of the country’s most prestigious, and most expensive, legal experts to do so, Dr Claude Denbow SC. FIFA has until 18 June to file its defence, which an attorney contacted by T&T website Wired868 said would amount to a “challenge [of] the High Court’s jurisdiction”. “The case won’t necessarily be about taking the TTFA back to CAS”, the source told journalist Lasana Liburd, “as it will be to say that it should be before CAS, due to the arbitration clause.”

The $2.5m Question:  Was FIFA’s normalisation process initiated in January?
The TTFA didn’t choose its moment to fight back, but, had it been able to do so, it could have picked a worse time to do so. Gianni Infantino’s authority is questioned as it hasn’t been since he was elected for the first time in February 2016, following the impeachment proceedings which have just been launched against Swiss Attorney General Michael Lauber, whom he met ‘privately’ on two occasions in 2016 and 2017 and who is suspected of colluding with the FIFA president over (it has been alleged) a federal investigation into a controversial TV contract which had been signed by Infantino when he was the legal affairs director of UEFA. The former Basel police chief Markus Mohler expressed the opinion in a widely-shared interview with the Luzerner Zeitung  that criminal proceedings should be opened against Infantino, a suggestion that would have seemed outlandish only a few months ago – but no longer. 

As the gamble Wallace and the TTFA board are taking is also one with public opinion, this looks like a propitious time for them to launch their counter-attack on FIFA, especially if this legal offensive allows them to substantiate a very embarrassing allegation against the governing body: namely, that FIFA had already contacted and interviewed (*) prospective members of its normalisation committee before issuing its normalisation order, perhaps as early as January 2020.

January 2020: that would be less than two months after the new administration had been elected, at least a full month before FIFA’s and CONCACAF’s own ‘fact-finding mission’ had taken place, and at least two weeks before the TTFA’s Finance Committee had completed its own audit. 

This, when a FIFA spokesperson told Trinidad & Tobago daily Newsday that the decision to appoint a normalisation committee for the TTFA followed “the recent FIFA/Concacaf fact-finding mission to TT to assess, together with an independent auditor, the financial situation of TTFA”. The FIFA statement added: “the mission found that extremely low overall financial management methods, combined with a massive debt, have resulted in the TTFA facing a very real risk of insolvency and illiquidity. Such a situation is putting at risk the organisation and development of football in the country and corrective measures need to be applied urgently.”

Josimar asked William Wallace to confirm on the record if it was correct that the Chair of the Normalisation Committee Robert Hadad had confided to him that he’d been approached by FIFA in January, as we had been told. The TTFA president assured us this was the case. 

It should also be noted that Trinidad and Tobago’s Minister of Youth and Sports Affairs Shamfa Cudjoe told the Trinidad Express that FIFA “had briefed the [T&T] government of its impending action prior (our italics) to dissolving the debt-ridden TTFA on March 17″, to quote from a piece written by Ian Prescott and published on 18 April. This would of course constitute in itself a serious infraction to FIFA’s own protocol. Cudjoe later back-tracked and said she had been misquoted. “After the public announcement was made…it was only after I was told by FIFA”.

Josimar asked Mr Hadad for his comments and received the following message: “FIFA first contacted me in mid-March and after considering the state of football I agreed to serve”. Mr Hadad, who did not wish to comment directly on Mr Wallace’s claim or tell whom exactly from FIFA had first got in touch with him, then specified that this approach had come after 17 March – the date FIFA issued its normalisation order – and that, after a few days of reflection, and indeed hesitation, he’d accepted the offer to be part of the normalisation committee, and then head it “to help Trinidad in general, and more specifically to help keep football alive in Trinidad so the youth and the players can benefit from it”. 

It may well be that this discrepancy between dates remembered by the various parties turns out to be a key factor in determining the outcome of the battle between the TTFA and FIFA. Whose calendar will the T&T judges decide is the correct one?

(*) The story of how the newly-elected TTFA board, which had defeated one of Gianni Infantino’s main allies in the Caribbean, was de facto disbanded by FIFA less than four months after being democratically put in power has already been told by Josimar here

(*) A FIFA spokesperson clarified the appointment process to the Newsday newspaper in those terms: “The members of a Normalisation Committee are chosen through a series of interviews with different candidates. In this case, the interviews were conducted by delegates from FIFA and Concacaf. During that process, it is ensured that the members that compose the Normalisation Committee have different profiles, perform their duties with neutrality and gather the necessary competencies to temporarily lead the federation in question. In line with the FIFA governance regulations, all members of the normalisation committee are subject to an eligibility check, and none of its members are eligible for any of the open positions in the elections under any circumstances.”


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