I am on record as having said that Kalusha Bwalya should have approached his come-back bid to FAZ in the following manner:
1. Kalusha should have announced his standing earlier and then, with ample time, courted a good number of councillors about his comeback and then asked them to make his way back easier through ensuring that the constitution did not have the requirement for the formal residence within Zambia for the FAZ president and secondly removing the need for the FIFA Integrity Test in these elections as couched in the Extra-ordinary General Meeting of January 2020.
2. Additionally, Kalusha should have written to FIFA, ahead of the 2020 FAZ election nominations, to have FIFA write that the ban that he had suffered could not be further used to bar him from standing in the 2020 FAZ Elections. After all, it was FIFA that reduced his fine and his ban. He could have argued his case to FIFA that there is no way a punishment such as the ban could be used in perpetuity while looking at the process as “FIFA Fair Play”. Surely they there had to be a time-frame for the punishment. Right? With the written response from FIFA, FAZ would have had no option but to allow Bwalya to pass the Integrity Test – assuming that ban from FIFA was the critical issue; notwithstanding any High Court judgements earlier alluded to.
Now that this was not done, the appeal to the Court of Arbitration in Sports (CAS) is not likely to work the way Kalusha wants it to work because:
1. The CAS is the final court of appearance in sports and so its likely to treat the appeal as one that first needs to pass through all processes before it. He may be asked to first exhaust all internal processes within the football structures i.e. The Investigatory and The Adjudication Chambers of The Disciplinary Committee of FIFA and then the FIFA Appeals Committee before going to CAS. These take months because even afer lodging in papers, other parties are regularly given 40 days to respond with warnings at 10 days etc. Then when submissions are made, papers are given to judges over periods of sometimes a month and judgement then delivered again after a month or two. Meanwhile FIFA have three stages for litigation processes and so this can take more than half a year before finally researching CAS. I don’t see the injunction given ahead of the March 28th elections since these processes are regularly detailed and lengthy.
2. Appeals to the CAS are not suspensive in nature. This means that the relief being prayed for cannot be given ordinarily.
3. The rights of those who successfully filed their nominations, like Emmanuel Munaile, cant be curtained even as Kalusha fights for his rights and his case since there are available reliefs and remedies even after this election is gone e.g. he can be cleared to stand in 2024 since in his case, he only has one term to go before he is constitutionally barred from standing based on term limits. An injunction against this election will most likely not be given based freedoms and rights alone.
4. CAS will mostly likely say it has no jurisdiction over stopping elections, a preserve of FIFA, unless FIFA had already decided and then parties were not happy. Refer to (1) above.
5. The case cannot proceed with kalusha and FAZ being the only parties since FIFA is an interested party and should be joined to the proceedings. This is more so because the plaintiff was once a FIFA official and ought to know that FIFA has to be joined to the proceedings. Assuming this is taken as the route, then papers would have to be lodged to FIFA, give them time to answer and submit to the CAS etc. This will obviously go beyond the monthend when these elections are scheduled.
6. Very minute detail but very important is the date. It shows March 2019. This can be legally argued to invalidate the claim as the date is invalid.
In ending, let me cite some of the procedures according to the FIFA Disciplinary Code and the CAS Procedures:
1. The FIFA DISCIPLINARY CODE (2017 Edition), on page 39 in article 78 says “Certain decisions passed by the [FIFA] Disciplinary and Appeal Committees may beappealed against before the Court of Arbitration for Sport (cf. art. 58 of the FIFA Statutes as well as art. 64 and art. 128 of this code))”. Article 128 in Section 4: “Court of Arbitration for Sport (CAS)” on page 61 says: “The FIFA Statutes stipulate which decisions passed by the judicial bodies of FIFA may be taken before the Court of Arbitration for Sport.”
2. In the CAS Appeal Arbitration Procedure and in accordance with article 47 of CAS, “An appeal against the decision of a federation [read FAZ], association or sports-related body [read FIFA] may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body. Further, Article 37 of CAS mentions: “no party may apply for provisional or conservatory measures under these Procedural Rules before the request for arbitration or the statement of appeal, which implies the exhaustion of internal remedies, has been filed with the CAS.”
DISCLAIMER: I am not a lawyer. However, I have handled or been involved in cases before all panels of FIFA and CAS on both sides of litigation – as a plaintiff and a respondent (defendant). Therefore I have smitherens of understanding of these procedures as an amateur reader of things legal. I do not hold monopoly to either wisdom, logic or opinions so let’s hear divergent views without insulting each others.
