WHAT THE COURT OF ARBITRATION FOR SPORTS DECISION OF YESTERDAY REALLY MEANS
EUPHORIA VS WORRY
Whilst supporters of Kamanga were busy celebrating what apparently looked like a sure abortion of Kalusha’s still-born ambitions of being a FAZ president when they saw yesterday’s Court of Arbitration for Sports (CAS) order, Kalusha’s supporters were also lapping up every word in the judgement to be sure that it was not the final nail in the coffin of the “cow-horn formation”. Both found what they wanted in the judgement. In the meantime, the neutrals and ladies were enjoying jokes, insinuations and innuendos about the shape of the Sole CAS arbitrator André Brantjes’ signature which looked like a phallic object. Fo us deep soccer lovers, it was about what the judgement means. Lets look at this now and recap what led us here.
Kalusha Bwalya was barred from standing in the 2020 FAZ presidential elections when the FAZ Ethics Committee found him to have fallen short of the Integrity Test while the Electoral Committee later mentioned other factors that he was found to have fallen short of including that he was not a resident in Zambia or at least that the address he had provided on the nomination form was invalid or misleading after vetting as there was someone else living there. Then there was the issue that the nominating club (NAPSA Football Club) was represented on the nomination form by a Board Member of the club instead of either the Club Secretary or Club Chairman as is required by the FAZ Electoral Code. When he appealed to the FAZ Electoral Appeals Committee, many smaller issues where ignored and the main sticking point was the Integrity Test. On this bases, Kalusha was unsuccessful in his appeal and this is what brought Kalusha to appeal to the CAS. The FAZ constitution allows one to take matters to a Arbitration Tribunal as a last option. Right now there is no FAZ Arbitration Tribunal with jurisdiction in accordance with Article 63 of the FAZ Constitution of 2017 as amended in 2019. So Article 9(6) of the FAZ Electoral Code and Article 65(1) of the FAZ Statutes made CAS retain jurisdiction to hear this dispute as the natural landing point for appeals. Kazala successfully used this route.
Kalusha Bwalya’s appeal was drafted and submitted to CAS by his lawyers Mr. Paolo Torchetti of Ruiz-Huerta & Crespo Sports Lawyers in Valencia, Spain; Mr Gilbert Phiri of PNP Advocates in Lusaka and Mr. Lewis Mosho of Lewis Nathan Advocates in Lusaka, Zambia. According to the papers, the decision under appeal was that of the FAZ Electoral Appeals Committee and not the one by the Ethics Committee or the Electoral Committee. This was key and smart in the sense that the Electoral Appeals Committee ruled against the inclusion of further charges after the initial letter which only mentioned the Integrity Test. By going this route, it was both smart and at the same time risky. It meant that the appeal hung on only one strand which latter has two arguments like two prongs. If the strand failed, the scenario became catastrophic as there was no redundancy and the whole case would fatally fall. But Kalusha’s lawyers plaited the strand and and entwined it to make it stronger. There were also serious skills and experiences put it. Lots of case law examples etc. Normally lawyers like buttressing their case by putting many arguments hoping one of those will win them the case. But Kalusha’s appeal was simply that THE USE OF THE INTEGRITY TEST BASED ON THE FIFA BAN HE SUFFERED IS NULL AND VOID AT FAZ LAW. In fact, he argued that it is void ‘ab initio’.
PRELIMINARY ISSUES AND DIRECTION
The appeal was made before the deadline. Article 58(1) of the FIFA Statutes requires that such appeals are filed with the CAS within 21 days of a final decision. The FAZ Electoral Appeal Committee decision was delivered to Kalusha on 21st February 2020. Therefore the time deadline to file the statement of appeal with CAS was the 13th March 2020. Kalu met this.
And court fees were paid on time. According to the Schedule of Arbitration Cost (in force as from 1 January 2017), each party involved in a dispute submitted to CAS arbitration must pay the Court Office a minimum sum of thousand Swiss francs in order for his application for arbitration or appeal to be registered. To have the papers accepted by the CAS, Kalusha, as appellant paid the Court office fee of 1,000 Swiss francs in accordance with R64.1 of the CAS Code.
But on the deposit for the costs, Kalusha initially argued that he should pay. But he lost this preliminary. Ordinarily, Kalusha should have paid an advance amount towards costs before the case could begin. However, he argued that he didn’t need to. “The Appellant submits that although this is an electoral issue, it is an appeal against a decision issued by an international federation in a disciplinary matter as it prohibits the Appellant from partaking in football related activities. The Appellant submits that R65(2) shall apply where the proceedings shall be free and the fees and costs of the arbitrators, calculated in accordance with the CAS fee scale, together with the costs of CAS are borne by CAS.”
At the time I said: “In terms of the actual case, the first decision CAS has to make is whether to proceed with the case without Kalusha having paid the CAS fees according to R64 and whether he enjoys relief under R65. Once that is determined, the parties will be advised what amounts to pay. These will be adjusted if there will be counter-claims. Only after the payment issue will the case proceed.”
Once the panel of Arbitrators is set, the Appellant is asked to pay a deposit to cover the cost of the proceedings. It may range from $20,000 to $500,000 depending on the merits of the case. The Respondent is not expected to pay anything at this stage until the costs are awarded. If the deposit demanded is not paid, the case collapses. In some cases, the Court may ask the litigants to share the payment. In this case of Kalusha vs FAZ, CAS refused to grant Kalusha leave to pay. CAS then asked the two to pay CH11,000 each. FAZ said it didn’t have money for the same budgeted. Kalusha paid the CH11,000. So the onus was on kalusha to pay the whole amount to have the case listened to. I am not sure that he paid for FAZ. I will assume he did since we had a decision yesterday. International website fifacolonialism.com says Kalusha’s appeal is being sponsored by TP Mazembe President Moise Katumbi. I personally don’t know that for a fact but we all know he has local backers too.
Coming to the applicable laws to this case are the FAZ Statutes and the FAZ Electoral Code. But Kalusha also applied that, subsidiarily, Swiss law should be used. FAZ objected to the Swiss law preliminary issue. CAS is yet to decide on this. I have many times said I think Kalusha will win this preliminary. But I also consistently said he would lose the other preliminary application he prayed for i.e. an injunction against the FAZ elections which were supposed to be held today in Livingstone.
It is this preliminary Kalusha lost yesterday. Not the main case. So what does this mean? It now means that there is no injunction from CAS against the FAZ elections as we stand and so the elections can continue without Kalusha Bwalya.
Let me discuss the preliminary award application by Kalu in details.
THE ORDER KALUSHA LOST YESTERDAY
Additionally, Kalusha requested to have the matter looked at expeditiously further to R44.4 of the CAS Code. To define the expedience in this case, Kalusha asked the CAS to make an order to FAZ where: “(a) the answer to the statement of appeal, provisional measures and appeal brief be filed with the CAS within 10 days of the receipt of this submission; (b) there shall be no second round of submissions; (c) the case shall be decided by a sole arbitrator appointed by the CAS administration; (d) an oral hearing may be heard, on an emergency and expedited basis, at the CAS in Lausanne as soon as possible; and (e) the CAS shall issue an award, with grounds, as soon as possible keeping in mind that the FAZ presidential elections will be held, at the latest, the 28 March 2020.”
The sole arbitrator request was granted. André Brantjes from The Netherlands was appointed. On time limits, FAZ was compelled to answer within 10 days. The request for no second round of submissions I am sure will be respected and it will disadvantage Kalusha since yesterday’s decision on Kalusha Bwalya’s prima facie case said it was bleak. It would have been better if there was a second round because he would now try and bring in new arguments or evidence etc. On the oral hearing, which Kalusha insisted on, this can only be heard after May 1 according to the notice issued by CAS based on procedural changes causes by the force majeure which is COVID-19. This means the final award will be late May or even later unless the CAS decide that Kalusha can’t win the case even if he makes oral arguments and decides to make a determination straight away. What is clear is that CAS has not yielded to the request to hear the main case before the 28th March date of elections (today) and the elections can now go ahead without Kalusha Bwalya.
This is what I wrote two weeks ago: “In my last article I showed that precedent in this case has been towards not hearing the cases expeditiously. Even where CAS expedites the processes, chances of the case been determined before the 28th are very low because of procedures and red tape. CAS is yet to inform FAZ of the official process of the case. … FAZ will need time to response. By the time they respond that could be later in the week. Again remember that I said FAZ has the right to raise preliminary issues such as challenging the arbiters chosen etc. My view is this case will not be expedited fast enough to be heard and disposed of before the 28th of March 2020. This means on this ground alone, the elections will go ahead without Kalusha Bwalya.”
I was right.
The purpose of Kalusha’s request for an expedited procedure was to ensure that the Appellant received an award before the FAZ presidential elections were held. The reason underlying this request is that if the CAS declared that the Appellant was eligible to stand in the election after the elections had been held, he would have suffered irreparable harm. Therefore, the Appellant also made a request for provisional measures suspending the holding of the FAZ presidential elections pending a final award from the CAS with grounds.
These two were not granted. So now we are only waiting for the final decision as to whether the appeal was successful or not. It doesn’t take a rocket scientist that the appeal is unlikely to stand based on yesterday’s decision.
THE CONTENT OF THE MAIN APPEAL REMAINING
In the main appeal, Kalusha contends that “The FAZ Electoral Committee incorrectly declared the Appellant ineligible to stand for that election on the basis of an “integrity check””. Kalusha argues that “the FAZ Statutes and regulations are clear in that the criteria in relation to integrity checks must be explicitly delineated in the FAZ Statutes. The FAZ Statutes stipulate that the integrity criteria is that a potential candidate must not have been found guilty of a criminal offense. There is no mention of FIFA Ethics cases. The integrity criteria relied on by the FAZ Electoral Committee to declare the Appellant ineligible does not appear in the FAZ Statutes. In imposing additional integrity criteria on potential candidates, the FAZ Electoral Committee was acting outside the scope of its powers afforded to it by its own statutes and regulations. The Appellant was never convicted of a criminal offense. Therefore, the Appellant ought to have been declared eligible to stand in the upcoming presidential elections. The Electoral Committee acted ultra vires the powers afforded to it by relying on this additional criterion in determining the Appellant ineligible.”
The Appellant’s legal argument was articulated in the following manner: (a.) an examination of the FAZ Statutes and Electoral Code demonstrates that eligibility criteria is the domain of the FAZ Statutes and not by the Electoral Committee; (b.) principles of interpretation of sport governing body statutes dictate that this plain meaning ought to be applied; (c.) the Decision under appeal violates the principle of nulla poena sine lege; (d.) the Decision under appeal violates the doctrine of the hierarchy and norms of laws; (e.) the Decision under appeals violates the fundamental principle that sport federations must follow their own rules; and
f. to apply the FIFA Code of Ethics and other eligibility criteria other than those in the FAZ Statutes violates the doctrine of “lex specialis derogat generali”.
So the whole case of Kalusha’s appeal relies on CAS saying the Integrity Test is basically unconstitutional and that it went beyond what is provided for in the statutes. And that only persons convicted for criminal charges can be failed in the integrity test not those who were banned by FIFA before. Kalusha argues that if that was not the case, the FIFA ban would effectively be a life ban which is not the case since his ban from “all footballing activities” was lifted.
This single argument is the single strand I was talking about earlier.
Nonetheless, the single strand becomes two pronged here. In case Kalusha loses the above arguments, he further argues that “in any event, he satisfies the criteria imposed by the decision under appeal by the FAZ as he is not impeded from correctly exercising his function as president and ought to be declared eligible to stand in these elections.”
So Kalusha basically wants the court to vacate the decision finding the Appellant ineligible for the presidential election; and declare that the Appellant is eligible to run for the president of the FAZ.
INSIDE THE MIND OF THE SOLE ARBITRATOR
Now what is interesting here is the fact that, while dismissing Kalusha’s preliminary applications yesterday André Brantjes, found on multiple occasions that the icon failed to prove prima facie cases on various assertions including one that FAZ could not bar him from contesting the presidency of FAZ on the basis of his conviction by the FIFA Ethics committee.
The judge basically gave an indications that facts of the matter and the position of FAZ seems to outweigh the appellant’s arguments and there existed the likelihood that the final award would certainly not be in his favour since there are no second round of submissions as requested by Kalusha himself.
I won’t discuss the arguments the sole arbitrator made. That is for the article for tomorrow morning. Meanwhile later today, I will talk about why Kalusha should have written to the independent FIFA Ethics Committee for closure and why FAZ can still write to FIFA Ethics Committee to bury the matter once for all.
The CAS case begs the question: “Can Kalusha still be on the ballot?” No. Why did I say he can still be on the ballot yesterday? It is mathematically possible but realistically it cannot be. The injunction was denied and there is no other route outside CAS which can stop FAZ now. The courts will eventually find for FAZ for lack of jurisdiction. Precedent abounds. And even if Kalusha wins the final award that will be after the elections. But
Elections will now go ahead without Kalusha Bwalya while his case is still being heard. But I always say let’s respect the local courts. So let FAZ wait for the local courts to stay the ExParte by Damiano before having the FAZ presidential election. Further, let FAZ follow COVID-19 guidelines when doing the elections. Video-conferencing seems the most sensible approach if elections will be held in April. It is not good for elections to be delayed and for the current executive to continue in office even though the constitution and FIFA gives them the legal mandate and legitimacy to do that. Holding elections will also give everyone closure and let the football family move on. We need to stop politicking and start playing football.
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