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Thursday, July 3, 2025

FIFA relies on insulation from state laws

by

Gyasi Merrique
1860 days ago
20200531

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.


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