Posted by: stan chelney | February 18, 2010

A Legal Analysis of the Togo Case

The Court of Arbitration for Sport (the “Court”) has announced that it will make a provisional ruling on Togo’s appeal of its suspension from the next two African Cup of Nations tournaments no later than this Saturday, February 20, 2010.  The expedited treatment is necessary so that Togo’s status can be determined in time for Saturday’s draw for the qualifying rounds of the 2012 tournament.

The Confederation of African Football (CAF) suspended Togo from the next two African Cup of Nations tournaments and levied a $50,000 fine when the Togolese government refused to allow the team to participate in this year’s tournament following an ambush on the team’s bus, which killed three people.  The facts are discussed in detail here.

The CAF’s decision to suspend Togo in the wake of the tragic attack has been unpopular for good reason.  But, from a legal standpoint, it is far from clear that the decision was a misapplication by CAF of the Regulations of the Orange Africa Cup of Nations Angola 2010 (the “Regulations”), which governed the tournament.  It is important to remember that the Court does not have carte blanche to right a perceived wrong on Togo; rather, the scope of review will be to “decide the dispute according to the applicable regulations and the rules of law chosen by the parties,” which in this case will require the Court to decide whether CAF correctly applied the Regulations to Togo’s situation.

CAF will rely on Article 78 of the Regulations, which allows it to fine and suspend a national association from the following two editions of the tournament in the case of a “forfeit notified less than twenty days before the start or during the final competition.”  The key to CAF’s position will be that the players were ready and willing to play this year even after the team was attacked, but the Togolese government forfeited all games on the eve of the tournament’s start.  Therefore, CAF will argue, it was justified under the Regulations to issue the fine and suspension for a last minute forfeit.

CAF’s decision to ban Togo has precedent.  Nigeria was suspended when its government refused to permit the team to play in the 1996 African Cup of Nations tournament after host nation, South Africa, publicly condemned Nigeria’s execution of dissident writer Ken Saro-Wiwo.  In 2000, CAF suspended Zimbabwe — that year’s would-be hosts — for failing to demonstrate readiness to put on the tournament.  In each case, CAF imposed a one tournament ban, rather than the maximum two tournament suspension levied on Togo.

Togo’s lawyers will likely make two arguments in response.  First, they will point to Article 80 of the Regulations, which seems to permit a team to withdraw from the tournament without penalty in the case of “force majeure accepted by the Organizing Committee.”  They will argue that a terrorist attack occurring just days before Togo was to play its first game is no different from a practical standpoint than a natural disaster preventing the team from being ready to play, and thus the team’s absence should have been excused.    Second, Togo will argue that public policy reasons dictate in favor of reversal of CAF’s decision on grounds that the decision was politically motivated and may encourage future terrorist attacks of this nature.

Force Majeure

The force majeure argument presents an uphill battle.  In 2002, the Court rejected a similar argument raised in an appeal by Turkish basketball club Ulker Sports Club (“Ulker”) of a ruling that it forfeited a Euro League basketball game when it refused to travel to Israel to play Maccabi Tel Aviv due to perceived concerns about players’ security.  CAS 2002/A/388.  The Court held that there was no force majeure event that prevented Ulker from participating “since it was not impossible for Ulker to attend the match . . . [T]he dangers of travel to Israel had not deterred other teams in other sports from honouring their commitments.” (Emphasis added.)

The Ulker court stated that “the obligation to appear and compete at the dates and in the venue indicated in the calendar is ‘the most basic obligation in the sporting system.'”

While the Togo case involves an actual attack and not a mere concern over safety, it does not appear that the Court will agree that a force majeure event occurred since it was not “impossible” for Togo to play in the tournament.  Even if the Court were to accept the force majeure argument, the Regulations still leave with the Organizing Committee (here, CAF) the right to reject such an event  as an excuse for non-participation.

Public Policy

Togo will attempt to frame CAF’s ruling as vindictive, reckless, and politically motivated.   Togo’s lawyers will argue that the suspension was not imposed in accordance with the Regulations but rather solely to punish Togo for acting in defiance of the CAF.  They will further point out that the decision, at best, punishes the victim of a terror attack, and at worst, creates an incentive for future attacks since the victim will still be required to play in the event or risk a ban.

CAF will respond that its disciplinary action was a direct response to inappropriate government intervention in its sport.  FIFA has long taken the view that soccer should be administered internally at the national association or confederation level and that intervention by governments and common courts in soccer issues is improper.  CAF will take the position that its actions were fully consistent with that view.

The ultimate ruling in this case will depend largely on how the Court views the public policy question.  Unfortunately for Togo, there is support in both the Regulations and African precedent for the harsh suspension it was given.  On the other hand, the facts of this case — where there was tragic loss of life so close to the start of the tournament — give the Court the room it would need to distinguish Togo’s case from either the Nigeria or Zimbabwe suspensions.  Particularly because of the risk that upholding Togo’s suspension on technical grounds may spark similar violence in the future, the Court may well depart from past practices and rule for Togo.

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