everything under the sun is in tune,
but the sun
is eclipsed by the moon…
Ruffling a few feathers, on 30 May 2015 the FIFA Executive Committee rather unsurprisingly, considering the previous warnings,
adopted a decision to suspend with immediate effect the Indonesian Football
Federation (PSSI) until such time as PSSI is able to comply with its
obligations under Articles 13 and 17 of the FIFA Statutes. Stripping PSSI of its membership rights, the decision
results in a prohibition of all Indonesian teams (national or club) from having
any international sporting contact. In other words, the decision precludes all
Indonesian teams from participating in any competition organised by either FIFA
or the Asian Football Confederation (AFC). In addition, the suspension of
rights also precludes all PSSI members and officials from benefits of any FIFA
or AFC development programme, course or training during the term of suspension.
This decision coincides with a very recent award by the Court of Arbitration
for Sport (CAS) in this ambit, which shall be discussed further below.
The former decision, substantiated
upon the alleged governmental infringement of the independence of PSSI, is the
latest in a line of similar decisions adopted by FIFA in recent years. It
succeeds inter alia the suspension of
the Nigerian Football Federation and subsequent non-recognition of its General
Assembly decisions, and the suspensions of the
Cameroonian Football Association,
the Football Federation of Belize,
the Kenya Football Federation,
and the Islamic Republic of Iran Football Federation.
The common denominator of all these
decisions is the alleged impediment of third parties, usually governments or
their related bodies, in the affairs of national football associations. In the Indonesian
case, the trigger was the imposition of additional licensing criteria for
football clubs by BOPI, an agency of the Indonesian Ministry of Youth and
Sports, which resulted in two clubs (Arema and Persebaya) being precluded from
competing in the Indonesian Super League (ISL) and subsequent measures adopted
by the ministry aimed at relieving PSSI of all of its responsibilities. While
in the Nigerian case, an initial High Court injunction prevented the elected
Executive Committee from taking office, and a later intervention from the
Nigerian Department of State Security Service (SSS), resulted in the suspension
of the Nigerian Football Federation
and subsequently in the non-recognition of its General Assembly decisions, the
other cited cases include violations in the form of, among others, “blatant government interference”,
non-provision of security services from government forces,
and violation of the independence of the decision-making process of the
national football governing body.
Grounds for intervention by FIFA
The normative basis for the
aforementioned interventions lies primarily within Articles 13, 14 and 17 of
the FIFA Statutes. The
Members’ obligation of an independent management of their affairs is embedded
in Article 13(1)(i), which states that: ”Members
have the following obligations... to manage their affairs independently and
ensure that their own affairs are not influenced by any third parties...” Strengthening that
notion, Article 17(1) provides that: “Each
Member shall manage its affairs independently and with no influence from third
parties.” Furthermore, the second paragraph of Article 17 explicitly points
out that all the bodies need to be elected or appointed within each respective
Member, which prima facie appears
even more stringent than Article 7 bis of the UEFA Statutes, that constitutes:”...their executive
body is freely elected and that their other bodies are elected or appointed in
a completely independent way.”
Enjoying full discretion that stems from its
Statutes, FIFA acts upon information received about the alleged violations,
usually from the Members themselves. Prior to the adoption of a decision, a
“prevention” phase takes place, during which FIFA, through means of
correspondence with respective Members or/and third parties involved, addresses
the alleged infringements and usually allows for a deference period for compliance
with specific conditions. Members and/or third parties are warned that
non-compliance may result in possible sanctions. Article 13(2) of the Statutes
expressly provides that: “Violation of
the above-mentioned obligations by any Member may lead to sanctions provided
for in these Statutes.”
One of the most daunting repercussions FIFA may
avail itself of is the suspension of a Member. In accordance with Article 14(1)
of the Statutes, the primary responsibility for suspending a Member lies with
the Congress. However, and as seen in the cases cited above, when violations
are deemed to be so serious to require prompt attention, the Executive
Committee or even the Emergency Committee may step in and adopt the relevant
If not lifted beforehand, such a decision must be confirmed by a three-quarter
majority at the next Congress, otherwise it is automatically lifted. A
suspension leads to a loss of all membership rights, which effectively prevents
other Members from entertaining any sporting contact with the suspended Member.
Moreover, the suspension does not preclude the Disciplinary Committee from
imposing further sanctions (e.g. fines, return of awards, deduction of points,
Another measure for addressing an eventual
non-compliance with the obligation of independent management of affairs is the
non-recognition of wrongfully elected bodies or decisions passed by such bodies
in accordance with Article 17(2) of the Statutes. In other words, FIFA has the
authority not to recognize an election of a body of one of its Members, if such
an election lacks uncompromised independence vis-à-vis third parties, as was the case with the Nigerian Football
Lastly, it is also worth mentioning that sanctions
may be imposed regardless of the grounds and fault for interference of third
parties since Article 13(3) of the Statutes, by going beyond the actual
interference, provides that: “Violations
of par. 1(i) may also lead to sanctions even if the third-party influence was
not the fault of the Member concerned.” This basically means that FIFA
shall not entertain explanations of third party interventions that may possibly
even be justified under the provisions of national law.
To comply, or not to comply – the CAS escape route
Since a suspension decision
virtually ostracises and isolates a Member, a valid point to raise is, whether
apart from yielding and fulfilling the imposed conditions, other means remain
available to the disgraced Member to challenge such a decision. The same could
be said for the situation pertaining to the non-recognition of elected bodies
of particular Members.
In accordance with Article 66 of
the Statutes any dispute arising between FIFA and its Members shall be resolved
by CAS applying the relevant FIFA regulations and subsidiarily Swiss law. The
exclusive jurisdiction of CAS is further strengthened in Article 67 of the
Statutes which also outlines the procedural requirements for an appeal against
a final decision passed by one of the FIFA bodies. Moreover, the Members
explicitly agree not to avail themselves of recourse to ordinary courts of law,
which significantly narrows their options down.
Given that jurisprudence in named
cases is relatively scarce, it is worth having a closer look at the above
mentioned award rendered by CAS in the joined
cases brought before it by the Nigerian Football Federation.
Notwithstanding the previous FIFA decision to suspend the appellant, which was
later lifted, the form of relief sought with the appeal was the annulment of
two decisions in the form of letters, addressed at the appellant by FIFA. Considering
the Court’s conclusion, stemming from the relevant CAS jurisprudence,
to dismiss the appeal against the second letter because it did not constitute
an appealable decision since it did not contain a ruling affecting the rights
of the appellant, hence lacking the animus
decidendi, the onus of the award was
on the first challenged letter.
In its preliminary remarks the
Panel narrowed down the subjective and the objective scope of the review saying
that it:”...may only assess de novo,
putting itself in FIFA’s place, whether FIFA had sufficient factual and legal
grounds, in terms of Article 17 of its Statutes, to adopt the decisions
allegedly set forth in the letters challenged by the Appellant.”
By abstaining from assessing the eventual legality of the third party
infringement, and despite harbouring some doubts about the (non)compliance of
the elections with the national law, it further stated that:”...this Panel may not assess the validity of the
various NFF elections on the basis of the NFF rules or of Nigerian law, because
such appraisal falls outside the scope of FIFA’s authority under Article 17 of
its Statutes and, thus, falls outside of the Panel’s scope of review.”
By observing that none of the
parties challenged the Court’s jurisdiction, applying the FIFA regulations and
additionally Swiss law pursuant to Article R58 of the CAS Code, and by
dismissing the Respondent’s arguments pertaining to the admissibility and the
Appellant’s active standing, the Panel addressed the legitimacy of FIFA’s
non-recognition of the elections pursuant to Article 17 of the Statutes in the
merits of the award.
As per the legal grounds of the
decision, the Panel stressed that: “The
purpose of Article 17 is to grant FIFA the power to not recognize an election
where the member association’s electoral process does not guarantee the
complete independence of the election.” It
went further saying: “...the Panel is of
the view that the requirement of “complete independence” found in para. 2 must
be understood in the light of para. 1 of Article 17, forbidding “influence from
third parties”. Accordingly, an electoral process does not guarantee such
complete independence where the election is not managed in a totally independent
manner and, in particular, where it is influenced by third parties of any kind
(e.g. government officials or bodies).”
Having established FIFA’s
authority, the Panel subsequently assessed the relevant evidence submitted by
the parties. After determining the relevant factual circumstances, the Panel
noted that the intervention from the State Security Services (SSS) influenced
the unfolding of the election and consequently of the General Assembly itself,
constituting a manifest insufficiency of the independence of the election from
the influence of third parties pursuant to Article 17 of the Statutes.
The appeal was thus duly dismissed on merits as well.
By dismissing the appeal, and in
spite of recognizing the connection of the dispute with “a longstanding struggle occurring in Nigerian football between
different personalities and factions fighting for leadership within the NFF”,
the Court, by setting a precedent to a certain extent, distanced itself from
assessing the compliance of the interference with national law, hence virtually
affirming FIFA’s discretion in the evaluation of the circumstances leading to
its intervention, which appears to leave an eventual appeal by the Indonesian
Football Federation with very slim chances of success.
Quis custodiet ipsos custodes?
When it comes to independence and third party
influence issue, the Members are subject to instant scrutiny from FIFA and are
swiftly held accountable, even when they hold no responsibility for a third
party intervention, as may be seen in the above cited cases. The same cannot be
said when the situation is reversed. FIFA is often not submitted to the same
levels of accountability checks as those who are affected by its decisions.
While in some instances FIFA’s prompt
intervention appears well-grounded, since interference from a third party is
manifestly ill-founded, as may be seen in the case of the Nigerian Football
Federation (interventions from State Security Forces and unidentified armed
individuals seem to go way beyond the borders of necessity, and can hence
hardly be justified), other cases, namely the latest suspension of the PSSI,
show that FIFA may have been slightly too quick when pulling the trigger. All
the more so, given the circumstantial background of the case (e.g. pressing
issues related inter alia to
financial, tax and ownership issues of the clubs participating in national
leagues which the PSSI, despite previous warnings, was unable or unwilling to
cope with, and which in some extreme cases resulted in players losing their
lives due to lack of medical care owed to arrears of health care contributions
by the clubs), and the government’s intervention could arguably to a certain
extent be seen as necessary.
However, as seen above, under the existing rules
FIFA is not inclined to look beyond the mere interference of third parties and
verify whether such actions might be justified, thus possibly breaching the
principle of proportionality which is recognized as a general principle by CAS. Since
such discretion seems to have been condoned by the latest CAS decision,
one may wonder whether there is actually any room for a more thorough and
systematic factual assessment of the background of such interferences in the
light of a possible justification, which inevitably raises questions of the
eventual (over)restrictive nature of the relevant Statutes provisions
themselves. Furthermore, the fact that any government intervention, regardless of
the eventual acceptability and consideration of local specificities of each
respective Member, is to be seen as a punishable infringement, puts the issue
within the frame of the perpetual conundrum of the legitimate boundaries of the
Since FIFA is
virtually accountable to no-one from the hierarchical point of view, and given
that governments, with the exception of the Swiss government, have no
supervisory powers over it (some would argue that FIFA may itself be seen as a
the only plausible route for the assessment of the proportionality of the Statutes
would seem to be through the legal accountability channel, using EU law,
especially its provisions on competition and internal market.
In fact, given the precedents (e.g. Charleroi)
and the recent legal challenge of FIFA’s decision to ban Third-Party Ownership,
these rules appear to have become an increasingly important tool to hold the
organization accountable, regardless of the latest developments regarding the
prosecution of its officials. A
further analysis as to whether such a route remains available to potential
appellants from outside of the European Union would, however, go beyond the
scope of this paper.
As presented throughout this brief overview,
FIFA has seemingly developed a zero-tolerance policy for any governmental interference
regarding the affairs of its Members, thus arguably safeguarding their
independence. It has consistently availed itself of one of the most stringent
corrective measures for alleged violations envisaged by its Statutes,
suspending the non-compliant Members, hence often provoking strong emotional
response within the pertinent countries. Whereby
such sanctions might be deemed necessary in certain cases, non-consideration of
factual background and eventual justifications in others has led to accusations
of double standards, and
raised questions of proportionality of the relevant Statutes provisions and the
borders of the rules governing “purely sporting issues”.
The outcome of the deadlock in the latest case
of PSSI remains to be seen, with the government’s intention to thoroughly
reform the Indonesian football suggesting that a swift solution might not quite
lie around the corner.
Given that compliance with the imposed conditions appears to be the route that
will be taken in this case, and as long as provisions of the Statutes are not
submitted to scrutiny of a competent judicial body, arguably in the form of the
European Court of Justice, any future third party interferences shall most
likely continue to be dealt with strictly by FIFA and the non-compliant Members
will keep finding themselves “on the dark
side of the moon”.
 Pink Floyd, Eclipse
(Dark Side of the Moon, EMI, 1973).
 Letter of FIFA to the Republic of Indonesia Minister of Youth and
Sports, written in Zurich and sent on 10 April 2015.
 Decision of the FIFA Executive Committee: Suspension of the Indonesian
Football Federation (PSSI), adopted in Zurich on 30 May 2015.
 Joined cases CAS 2014/A/3744 and CAS 2014/A/3766 Nigerian Football Federation v. FIFA, award of 18 May 2015.
 Decision of the FIFA Emergency Committee: Suspension of the Nigerian
Football Federation (NFF), adopted in Zurich on 9 July 2014.
 Decision of the FIFA Emergency Committee: Suspension of the Cameroonian
Football Association, adopted in Zurich on 4 July 2013 (FIFA Circular no. 1367,
Zurich, 4 July 2013).
 Decision of the FIFA Emergency Committee: Suspension of the Football
Federation of Belize, adopted in Zurich on 17 June 2011.
 Decision of the FIFA Emergency Committee: Suspension of the Kenya
Football Federation, adopted in Zurich on 2 June 2004.
 Decision of the FIFA Emergency Committee: Suspension of the Islamic
Republic of Iran Football Federation (IRIFF), adopted in Zurich on 23 November
 FIFA Decision of 30 May 2015, cited supra
 FIFA Decision of 9 July 2014, cited supra
 Letter of FIFA to Nigerian Football Federation (NFF), written in Zurich
and sent on 29 August 2014.
 FIFA Decision of 2 June 2004, cited supra
 FIFA Decision of 17 June 2011, cited supra note 7.
 FIFA Decision of 23 November 2006, cited supra note 9.
 FIFA Statutes (Regulations Governing the Application of the Statutes,
Standing Orders of the Congress), adopted in São Paulo on 11 June 2014.
 UEFA Statutes (Rules of Procedure of the UEFA, Congress Regulations
governing the Implementation of the UEFA Statutes), adopted in Astana on 24
 FIFA Statutes, cited supra
note 16, Art. 33.
 Ibid., Arts. 63, 65.
 Ibid., Art. 68.
Football Federation v. FIFA, cited supra note 4.
 Case CAS 2005/A/899 FC Aris Thessaloniki v. FIFA &
New Panionios N.F.C., award of 15 July 2005, para. 12;
Case CAS 2004/A/659 Galatasaray SK v.
Fédération Internationale de Football Association (FIFA) & Club Regatas
Vasco da Gama & F. J., award of 17 March 2005, paras. 23-25.
Football Federation v. FIFA, cited supra note 4, paras. 192,196.
 Ibid., para. 160.
 Ibid., para 160.
 Ibid., paras. 160-182.
 Ibid., para. 200.
 Ibid., para. 200.
 Ibid., paras. 203-211.
 Ibid., para. 213.
 “Who guards the guardians?”
(translation mine); Juvenal, Satires,
(Book II, Satire VI, 1st and early 2nd centuries AD), lines 347–8.
 R. Pielke Jr., How can FIFA be
held accountable? (Sport Management Review, Issue 16, 2013), pp. 258.
 FIFPro, Death of Mendieta must be
the turning point for Indonesia, http://www.fifpro.org/en/news/death-of-mendieta-must-be-turning-point-for-indonesia (last visited 28 June 2015).
 See inter alia Cases CAS
Arbitration CAS 2005/A/830 S. v. FINA,
award of 15 July 2005, CAS 2009/A/2012 Doping
Authority Netherlands v. N., award of 11 June 2010, CAS 2012/A/2740 Marcelo Carracedo v. Fédération
Internationale de Football Association (FIFA), award of 18 April 2013.
Football Fedration v. FIFA, cited supra note 4.
S. Bradley, FIFA reforms face
resistance – and huge support (swissinfo.ch, 5 December 2012), http://www.swissinfo.ch/eng/football-scandals_fifa-reforms-face-resistance---and-huge-support/34067104 (last visited 28 June 2015).
 R. Pielke, cited supra note
32, pp. 259-262.
 Case A/05/03843, SA Sporting du
Pays de Charleroi ao v FIFA, Tribunal de Commerce de Charleroi, 15 May 2006
(Case was referred to the European Court of Justice, but did not reach a
judgment since the parties reached a settlement out of court),
 A. Duff, Portugal, Spain Said to Complain to EU on Soccer Finance Rules (BloombergBusiness, 4 February 2015), http://www.bloomberg.com/news/articles/2015-02-04/portugal-spain-said-to-complain-to-eu-on-soccer-finance-ban (last visited 28 June 2015).
 BBC News, Fifa corruption inquiries: Officials arrested in
Zurich (bbc.com, 27
May 2015), http://www.bbc.com/news/world-europe-32895048 (last visited 28 June 2015).
 ESPN, Iranian Federation
suspended by FIFA (espn.com, 23 November 2006), http://www.espnfc.com/story/393454/iranian-federation-suspended-by-fifa (last visited 28 June 2015).
 M. Zandi, Is FIFA's
Decision in the Best Interest of Football (Association Internationale De La
Presse Sportive),http://www.aipsmedia.com/index.php?cod=551&page=news&tp=n#.VZAhwRuqqko (last visited 28 June 2015).
 Reuters, Indonesia government
takes responsibility for ban (uk.reuters.com, 31 May 2015), http://uk.reuters.com/article/2015/05/31/uk-soccer-fifa-indonesia-idUKKBN0OG03920150531 (last visited 28 June 2015).
 Pink Floyd, Brain
Damage (Dark Side of the Moon, EMI, 1973).