Tag: football cases

Jos Hosts Crucial Triple-Header on Monday

 

In the build up to any high-profile football match, it is typical to see fans and spectators trooping towards the stadium and focus shifting to match ahead of kick-off. Come Monday, 26th September, 2016, Nigerian football focus will be on the city of Jos for a crucial 9:00am kick off in an unprecedented triple-header. The venue is not the Rwang Pam Stadium; rather it will be the Jos Division of the Court of Appeal.

The assigned Justices of the Court of Appeal shall be the umpires in three football cases listed for hearing on the day. The cases involve the Mr. Chris Giwa-led faction (seeking to lay claim to the mantle of leadership of the Nigeria Football Federation) and the NFF led by Mr. Amaju Pinnick; as well as a couple of cases stemming from the case filed by Mr. Mustapha Abubakar on behalf of Giwa FC, challenging the decision of  the League Management Company to expel Giwa FC for failing to honour three matches as stipulated in the League Rules. In recent years, Nigerian football has been embroiled in legal disputes, but never before have three cases, with the possibility of severe consequences on the administration of the sport, come up on the same day, before the same court at the same location.

So, why is Jos suddenly the host city of modern Nigerian football crisis? Also, why are the High Courts in Jos quick to interfere with sports administration by issuing injunctions and ex-parte orders? There is no disputing the role of courts as a sanctuary for justice; but the issue is not just about whether or not there is a valid grievance. The focal point is the procedure being adopted to seek redress – whether it is a sustainable means for the development of the sport.

It is common knowledge that the globally accepted norms and regulations governing football prohibit the taking of football dispute to ordinary courts of law. The point has often been stressed that this principle is not to deny an aggrieved party access to justice, but to deliver justice in a forum that promotes the speedy, amicable and specialist resolution of whatever sporting dispute there may be. Football administration worldwide favours arbitration and other internal mechanisms, which better serve these purposes.

The ripple effect of the current state of affairs where any aggrieved person can simply approach a court and obtain an injunction to stifle the administration of a professional sport is clearly being felt. It is high time our courts acknowledged the need for a sustainable reaction to sports disputes in Nigeria. This includes the acknowledgement of the peculiar nature of sports administration and the specificity of sport. Two examples of the global standard of sports jurisprudence, from which our courts can learn are illustrated in the decisions of the Court of Appeal of Paris, France and the Federal Court in Switzerland, briefly highlighted below.

In 1998, Laurent Piau filed a complaint against the FIFA Players’ Agents Regulations. The dispute eventually reached the Paris Court of Appeal, which in arriving at its decision to reject the appeal stated that sports organizations know the specific nature of each sport and are in the best position to apply the regulations to meet the objectives and to protect the ethics of the sport. While this is a pointer as to why football matters and disputes should be left to the internal specialist mechanisms, one wonders what would have been if a court had restrained the implementation of the FIFA Players’ Agents Regulations for the whole of the 18 years it took for the case to reach this decision.

Another example is the Swiss Federal Court, which refused to issue a preliminary injunction that would have allowed Russian athletes to compete at the recently concluded Rio 2016 Paralympic Games. In a further appeal against the International Paralympic Committee’s decision to ban Russian athletes from the Games for state-sponsored doping, the Russian Paralympic Committee’s request for an injunction was rejected on the ground that the interest of the sport governing body in fighting doping and in the integrity of the sport ordinarily outweighed the interest of the Russian Paralympic Federation in an immediate lifting of the suspension. What readily comes to mind is how the interest of a single supporter (or even a single club) will outweigh the interest of a governing body in implementing the regulations to preserve the integrity of competition, or the interest of all other participating clubs, players, supporters or even sponsors, etc., to the extent of issuing injunctions or orders to interfere with or even stop a professional league from running.

It will be apt to summarize by borrowing from the words of a Senior Advocate of Nigeria. According to Abdulhakeem Mustapha (SAN) in a recently published interview, the series of court cases on football matters will cripple the sport, if not checked. He advocated for the resolution of football disputes via the internal mechanisms, as is done in other parts of the world. By this, a preliminary check that a court should make when approached with a football matter, is to confirm whether or not the aggrieved party has explored the internal dispute resolution mechanisms. A party that has failed to resort the internal mechanisms is then usually referred back to the sports dispute resolution mechanism. This will certainly serve to prevent the opening of floodgates to endless law suits that will only serve to cripple the administration and development of football in Nigeria.

What Nigerian Courts Should Learn from Piau’s Case

Challenges to decisions and rules of sports governing bodies are not new. Despite the well-entrenched principle of self-regulation, sports governing bodies occasionally have to defend their decision-making in courts of law. The trend in Nigeria, particularly involving football disputes, is indeed worrying. The frequency of court cases and the mostly interim judgments that arise from them often generate a sense of instability, distraction from the core process of administration and ultimately lower the brand appeal from a business perspective.

What began 18 years ago, when Laurent Piau filed a complaint before the European Commission against the FIFA Players’ Agents regulations, came to a conclusion earlier this year. On 13 April 2016, in France, the Court of Appeal of Paris rejected Mr. Piau’s appeal against the decision of the High Court of Rennes relating to alleged violations of European Union law by FIFA. He had challenged provisions of the FIFA Regulations on the Status and Transfer of Players, which he alleged were contrary to European Union law.

In reaching its decision to reject his appeal, the Court of Appeal of Paris – in addition to stressing that the contested provisions of the FIFA regulations did not violate the freedoms (such as competition and the free movement of services) guaranteed by European Union law – stated that:

“… sporting organisations know the specific nature of each sport… [and] are best placed to establish and apply a set of regulations that meets the objectives of protecting the image and ethics of football… FIFA, an international sporting organisation, has the legitimate authority to determine the rules and monitor ethical matters [concerning the profession of players’ agents] at international level.”

Of particular interest here is this rationale behind the decision of the Court i.e. that sporting organizations are best placed to establish and apply their own rules and regulations and to oversee ethical matters. This rationale is certainly relevant to sports jurisprudence in Nigeria and indeed globally. It is standard procedure for courts to insist on recourse to the internal dispute resolution mechanisms available for football disputes, thus upholding the requirement that football matters are not to be taken to ordinary courts but rather to sport-specific tribunals that appreciate the specific nature of the sport.

Therefore, for our courts to give unfettered access to every football litigant who takes a case to court and to hastily grant obstructive interim orders is not only bad for the sport but also shows the lack of appreciation of the specific nature of the sport, which the Court of Appeal of Paris talked about.

It is high time our courts began to treat football disputes in the manner in which they treat other disputes that involve what is akin to an arbitration clause i.e. direct that the litigants revert to the internal dispute resolution mechanism which all parties signed up to. Also, it behoves the sporting organizations to ensure the availability of viable tribunals for the resolution of such disputes.

Giwa & Co. – What the Court Actually Decided

From 8th April 2016, the news all over the place was that the Federal High Court (FHC), Jos Division had made an order nullifying the 30th September 2014 election of the NFF that brought the Amuju Pinnick-led board into office. This was followed by a public drama in which the Chris Giwa-led faction occasionally insisted on resuming office amid fears of a breakdown of law and order.

About three weeks later, on 28th April 2016, a video emerged of the Registrar of the court, explaining to an interviewer, that the orders made by the court on 8th April did not actually nullify the election or remove Pinnick from office.

It has now become clear that there has been widespread misinformation on the content and effect of the court order. So, what orders exactly, did the court make on the 8th of April 2016?

Background of the case

The plaintiffs (those who sued), in suit no. FHC/J/CS/77/2014 are Yahaya Adama and Obinna Ogba and they claimed to be suing on behalf of the other members of the Executive Committee of the NFF elected on 26th August, 2014 (i.e. the Giwa-led faction). They went to court with the intention of obtaining an order recognizing the election that supposedly brought them into office.

Meanwhile, on 19th September 2014, the court granted an ex-parte order (a temporary order made by court before the case is heard and finally determined) restraining the defendants from conducting the election scheduled for 30th September 2014. After the elections were eventually held, the court subsequently on 23rd October 2014 made an order nullifying the election which had brought the Pinnick-led board into office, on the ground that the election was held in disobedience of the earlier court order.

However, seven days later, the plaintiffs withdrew their case and the court therefore struck out the suit on 30th October 2014.

The Court order of 8th April 2016

On 3rd February this year, the plaintiffs returned to the court by filing a motion asking the court to restore the case which they withdrew. Their motion asked for three orders, which simply put are:

  1. An order for extension of time to re-list the suit;
  2. An order re-listing the suit, and
  3. Restoration of all orders earlier made by the court before the suit was struck out.

In its decision on 8th April 2016, the court made three corresponding orders, which also simply put are:

  1. an order extending the time within which the plaintiff could apply to re-list the suit for hearing and determination together with all the pending motions which were discontinued and struck out by the court on 30th October 2014;
  2. an order re-listing the suit (which was earlier struck out) for hearing and determination together with all the pending motions which were discontinued and struck out on 30th October 2014.
  3. an order restoring all the orders made by the court when the suit was struck out on 30th October 2014.

The first two orders re-listed only the suit and “pending” (i.e. undecided) motions, while the third order restored all orders made when the suit was struck out (i.e. orders made on 30th September 2014). While there is no confusion about the fact that the order of the court has the effect of re-listing or restoring the suit, the area of misunderstanding or misinformation is the third order i.e. the orders made when the suit was struck out, which the court restored.

Which orders did the court restore?

It is vital to note that the court orders restored were those made “when” the case was struck out and not those order made “before” the case was struck out; those previous orders were not restored.  This distinction is emphasized by the fact that although the request made (as contained in the papers filed) was for the restoration of orders made “before” the suit was struck out, the court obviously deliberately restricted its decision to those orders made “when” the suit was struck out. Thus, by the distinction in the meaning of both words, whereas the plaintiffs had requested for restoration of the orders made prior to the suit being struck out, the court limited its decision to only those orders that were made at the time the suit was struck out.

The orders made before the case was struck out were referred to earlier – the order of 19th September 2014 restraining the conduct of the election and the order of 23rd September 2014 nullifying the election of the Pinnick-led board. It would suffice to say that those orders – having been made “before” and not “when” the suit was struck out – do not fall within the scope of the orders restored by the court on 8th April 2014.

As pointed out by the Registrar of the court, in the orders made when the suit was re-listed, there was none ordering the removal of Amaju Pinnick and members of his board from office. More so, indeed no court of law and justice in Nigeria will make an order removing a man from an office when that person is not even a party before that court, as is clearly the case in this suit. Those who were sued are Alhaji Aminu Maigari and Musa Ahmadu (on behalf of the defunct board of the NFF), the Plateau State Football Association (on behalf of the 36 State Football Associations and that of the Federal Capital Territory, Abuja) as well as the Minister for Sports. It is instructive to note that neither Amaju Pinnick nor the NFF is a party to the case. Therefore, to make such an order in the absence of the other party would amount to an ambush and giving unfair advantage to one party over the other. No court of justice and equity will agree to such a request, which is why although the plaintiffs requested for such an order, the court refused to do so.

The order nullifying the election of 30th September 2014

It is essential to analyze the status of this order, which appears to be the main point of attention. The fact that the court had at some point made an order nullifying the Pinnick election is not in doubt. However, there are two key points which show that the order has since been terminated.

The first point is very straightforward. When the court struck out the suit (on 30th October 2014), the court made the following order based on the Rules of the Federal High Court –

“all the orders made previously including the dissolution of the executive committee/board of the Nigerian Football Federation vide the order of this honourable Court dated 23rd day of October 2014 seizes to have life and this matter stands struck out.” (emphasis mine)

Secondly, it is a principle of law that when a suit is restored or re-listed, interlocutory/temporary orders that were made before the suit was struck out are not restored (Parmatex Industrial Project Ltd v. Trade Bank (Nig.) Plc & Ors (2003) FWLR [pt. 162] 1922 @ 1933-4 C.A.). The order nullifying the election was based on the earlier interlocutory order which restrained the conduct of the election. Since the prior interlocutory order was not restored, by extension, the nullification order upon which it was based was also not restored. You cannot place something on nothing.

Conclusion

It is clear from the actual content of the current court order that the re-listing of the suit implies that the case is to start afresh and be heard and determined on its merits. Indeed, when a case is re-listed, it has the character of a brand new case. Since the plaintiffs have requested the court to re-list the case, it is only proper that they should be patient enough to pursue the case till the end, giving the court the opportunity to hear both sides to the case and reach a final judgment. After all, if the court removes Pinnick from office on the very first day the case is re-listed as a suit now pending, what then is left for the court to decide as its final judgment in the case?

The widespread claim of the existence of a court order removing Pinnick from office has no legal basis and is false. New life cannot by any stretch of imagination be given to any order of the court made prior to the striking out of the suit. In particular, there is no existing court order removing the Amaju Pinnick-led board from office. The public was simply misled when the court order of 23rd October 2014 was widely circulated in place of that of 8th April 2016 and the orders the Giwa faction is relying on are dead, by virtue of an established principle of law in Nigeria and, particularly, by the clear and unambiguous pronouncements of the Federal High Court made on 30th October, 2014.

 

Understanding FIFA’s ‘No Court’ Rule

The ‘Giwa vs. Pinnick’ battle for the Nigeria Football Federation (NFF) Presidency has resumed and resurrecting with it is an order of the Federal High Court, Jos Division, which set aside the NFF election of 30th September, 2014 that brought the Amaju Pinnick-led board into office. On 11th April, 2016, FIFA issued a letter to Mr. Pinnick – whom it recognizes as the President of the NFF – warning that the implementation of the court decision “would likely be considered as an interference in the internal affairs of the NFF” (contrary to FIFA regulations), as a result of which sanctions would be considered, “including the suspension of the NFF”.

Many have reacted to the letter from FIFA with defiance, insisting that FIFA’s regulations cannot supersede Nigerian laws or judicial process. Such views are incorrect and this post aims to clarify why there is no attempt to subjugate national laws by the FIFA regulatory requirements of independence, non-interference and prohibition of recourse to regular courts.

The FIFA ‘No-Court’ Rule Explained

The FIFA Statutes prohibit members from taking disputes to regular courts of law, except where it is specifically provided for in the FIFA regulations (article 68(2)). Such exceptions include employment-related disputes as contained in the FIFA Regulations on Status and Transfer of Players.

Similarly, the NFF Statutes also include this ‘no-court’ rule in article 69(1).

It is important to understand that this rule does not deny a party with a complaint from seeking justice before a judicial body. The way the rule operates is, simply put – instead of going to a regular court, the aggrieved party should take the dispute to the Alternative Dispute Resolution (ADR) mechanism. The operation of the rule is similar to an ‘arbitration clause’ in a civil agreement, where the parties entering into a contract agree that in the event of a dispute, they will make recourse to arbitration rather than to a regular court. In fact, thIS FIFA rule must be read together with article 68(3), the latter part of which states that –

“Instead of recourse to ordinary courts of law, provision shall be made for arbitration. Such disputes shall be taken to an independent and duly constituted arbitration tribunal recognised under the rules of the Association or Confederation or to CAS.”

The aim is simply to ensure that football disputes are taken to specialist (sports-specific) tribunals, where they will be determined not only speedily but also with proper appreciation of the governing rules and the specific nature of sports.

The Rule and National Courts

Contrary to what some have argued, the FIFA ‘no-court’ rule does not in any way imply that FIFA regulations supersede national laws or seek to undermine the national judicial process. Rather, as stated earlier, it merely operates like an ‘arbitration clause’ in a civil contract. Thus, it should be enforced just as a court would enforce an arbitration clause which stipulates that disputes arising from the contract will be settled by arbitration rather than taken to the court.

Participation in association football could be viewed as a contract between the members/stakeholders to be self-regulated and be bound by the rules of the association.

Therefore, while it is not the case that the ‘no-court’ rule seeks to strip a national court of its powers or that the court lacks jurisdiction to hear the case, the court usually enforces the agreement by directing the party to take the dispute to the relevant sports tribunal.

Just as parties are encouraged to seek ADR in commercial disputes, the business of professional sport has necessitated the recourse to sports-specific ADR for speedy and specialist resolution of sports disputes.

Suggestions

If we must put an end to the frequent recourse to courts, it is crucial that there exists a viable alternative dispute resolution mechanism within the football (and sports) industry.

This is in two levels:

Firstly, within the football administration, there must be a national Dispute Resolution Chamber (DRC).  The NFF Statutes state that NFF shall provide the necessary institutional means to resolve any internal dispute that may arise between Members, Clubs, Officials and Players of NFF – article 4(3). It is on this basis that the statutes further envisage the establishment of an Arbitration Tribunal in article 68. It would suffice to say that this tribunal needs to be a full-fledged, specialist and independent arbitration tribunal.

Secondly, for sports in general, there is the need for the establishment of a national sports arbitration tribunal. On 25th May, 2012, the Planning Committee inaugurated by the National Olympic Committee to develop the legal framework/guidelines for the establishment of a Nigerian Court of Arbitration for Sport (NCAS) submitted its report, the implementation of which is still pending.

Conclusion

It is difficult to doubt that the establishment of a standard alternative dispute resolution mechanism for football will not only curb the frequent recourse to regular courts, but will also induce the courts to see that there is indeed an effective internal mechanism within the industry, to which court-goers should be referred.

The situation is aptly depicted by Adokiye Amiesimaka (Chairman of the NCAS Planning Committee) thus: “In the absence of an independent, neutral and reliable body in the prevailing sports structure to fairly and definitively resolve sports-related disputes, it is commonplace for athletes, administrators and other participants in sports to seek redress in civil courts”.