DECONSTRUCTING THE AIFF SUSPENSION CONUNDRUM– ANALYSIS OF FIFA’S APPROACH ON THIRD-PARTY INTERVENTION

[Author: Yash Dawda, student of law at NMIMS, Mumbai, India]

BACKGROUND OF THE RECENT CONTROVERSY:

On 18 May 2022, the Supreme Court of India, took a drastic, not to mention unusual step, by appointing a three-member Committee of Administrators (‘CoA’) headed by former Judge AR Dave to manage the affairs of the AIFF, to adopt its constitution in line with the National Sports Code and model guidelines, and to prepare electoral rolls so that an election for the executive committee of the AIFF could be conducted. This decision was taken by a bench comprising of Justices DY Chandrachud, Surya Kant and PS Narasimha, and besides Mr. Dave, the other two members of the CoA are Dr SY Qureshi, former Chief Election Commissioner and Bhaskar Ganguly, former captain of the Indian Football Team. Consequently, Praful Patel’s stint as the AIFF President ended as he was shown a red card by the CoA.

REASONS FOR INTERVENTION:

There is no denying the fact that the AIFF has always been in troubled waters, and given the background of the fragmented and unorganised Indian Football structure pushing the stakeholders into oblivion, one cannot say that this intervention was unwarranted, leaving aside its impact which shall be further analysed. Basically, it is pertinent to note that there was massive discontent about the allegedly illegal continuation of a committee and Praful Patel as president of AIFF despite expiry of his term in December 2020. Patel completed his three terms and 12 years as AIFF president in December 2020, the maximum permitted to a National Sports Federation (‘NSF’) chief under the government’s sports code. In 2017 as well, there were questions about his continuation before the Hon’ble High Court of Delhi; however, he was allowed to continue and directions were issued for adoption of a new AIFF Constitution. Albeit the draft was ready in 2019, the matter kept on getting pushed, until recently.

IMPORTANT DATES TO TAKE NOTE OF:

It should be noted that the CoA submitted the final draft of AIFF’s constitution to the Supreme Court for its approval on 15 July 2022. On 23 June 2022, the visiting FIFA-AFC contingent had set a few deadlines – 31 July 2022 to amend the statutes of the constitution, and 15 September 2022 to conclude the elections. Numerous State Associations and FSDL, which is AIFF’s marketing partner who runs the Indian Super League (‘ISL’), both filed separate intervention applications in the Supreme Court with the main bone of contention being the hierarchy between the I-League and the ISL. Objections were raised against almost 20 considerations in the draft, and this scenario of continuous disagreements finally culminated in FIFA suspending the AIFF on 16th August 2022.

UNDERSTANDING THE FIFA GOVERNANCE MECHANISM:

What is important to understand is that how has this power of governance landed in the hands of FIFA, and to what extent can it influence the member countries/associations in terms of their footballing progress. It becomes necessary to analyze how a single non-profit entity runs footballing operations throughout the world and has such unfettered power to control federations and confederations from over 200 countries.

Early 20th century was marked by a remarkable growth in popularity of footballing competitions between different nations, especially throughout the continents of Europe and South America. As a result, a need was felt collectively for the establishment of a governance mechanism for better organisation, which would further catapult the popularity of the sport throughout the globe. As a result, it was initially established and backed by a limited number of European countries such as Denmark, France and Germany. It was not a global institution, but a regional one, and it was only after gaining the support of the countries in the United Kingdom, and with the aid of the English footballing movement, that it grew in stature.

FIFA is the principal parliamentary, judicial, and executive authority in football. If a football association wishes to become a member FIFA and have a say in its working, it must apply for a membership by writing to the FIFA General Secretariat. Provided this application for membership is accompanied by a copy of their regional football governing statutes, and this statute must adhere to certain basic requirements so enlisted in the FIFA statute as well, which are -:

• Always adhere to the FIFA statutes, the applicable confederation’s laws, statutes, and rulings.
• Always adhere to the game’s basic principles.
• Absolutely recognise the Court of Arbitration for Sport, as established in these statutes.

Within FIFA’s organizational structure, the Congress has been the apex entity and includes representatives of each of the six major confederations, to which each of the associated organizations is affiliated. It has legislative authority and is in charge of drafting the organization’s statutes. Now, in order to participate in the Congress and have a subsequent right to voting during deliberations, the members have to always be in compliance with the requirements as envisioned in the FIFA statutes. And one such requirement has been to maintain a guard against any external meddling in the affairs of the National Football Association.

With FIFA holding such an extreme position of importance within the footballing ecosystem, associations have come to be at the mercy of the organisation, without whose support and backing, the associations are left in a state of isolation from the footballing world. Through the establishment of this governance system, FIFA has been successful in autocratically exercising control over member confederations and associations, with no questions being asked pertaining to the extent of this control, as a result of which the federations might often get inherently restrained and sanctioned.

THE ISSUE OF ‘THIRD-PARTY INTERVENTION’:

The following are the relevant provisions of law concerning ‘Third-Party Intervention’ in the FIFA Statutes:

“Article 14 :- Member associations’ obligations

1. Member associations have the following obligations:

[…] (i) to manage their affairs independently and ensure that their own affairs are not influenced by any third parties in accordance with art. 19 of these Statutes.

2. Violation of the above-mentioned obligations by any member association may lead to sanctions provided for in these Statutes.

3. Violations of par. 1 i) may also lead to sanctions, even if the third-party influence was not the fault of the member association concerned. Each member association is responsible towards FIFA for any and all acts of the members of their bodies caused by the gross negligence or wilful misconduct of such members.”

“Article 19 :- Independence of member associations and their bodies

1. Each member association shall manage its affairs independently…”

The reason why the policy of preventing third-party intervention is so strictly required to be complied with, and is stressed on so much that it is a must for an association to keep intact its membership, and is to ensure that there is no executive interference in the working of the footballing authority and that it is completely independent in its practice. Avoiding excessive government influence in the choices made by sports organizations is the initial step to be taken in order to reach this vision of autonomy. The autonomy of regulatory agencies remains essential for providing long-term support to the effective governance of sports organizations. Sport must control and oversee itself while abiding by the law in order to ensure autonomy. FIFA seems to be moving forward with these motives in mind when it comes to the strict enforcement of the policy of preventing third-party intervention.

This third-party intervention is prevented by formulation of regulations such as prohibiting employment of government officials in decision making and supervisory bodies of the federations, and restricting appeal to ordinary courts of law while having recourse to arbitration. And FIFA has had a history of immediately punishing federations who violate such fundamental policies, and it has not refrained from banning or temporarily suspending federations, while necessitating reversal of such undue intervention from state authorities.

PRECEDENT FOR FIFA BANS DUE TO THIRD-PARTY INTERVENTION:

There is precedent of FIFA banning the National Football Federations owing to third-party interventions occurring due to instances wherein the governments and the federations are at loggerheads. 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.

Some previous instances where FIFA has banned national football federations and which present strong similarities to the case of India are as follows -:

• The Indonesian football federation was suspended in 2014 as a result of an ongoing conflict between the state’s Sports Ministry and Football Federation regarding control of the Sport there. The ban was implemented as a result of the administration’s “effective takeover” of the country’s football operations when it halted the domestic league following a disagreement over which clubs were qualified to play.

• Nigerian Football Federation (NFF) suspended in 2014 because the government, in breach of FIFA’s legal conditions, removed the entire NFF management structure after the team returned from the 2014 World Cup in Brazil and nominated its own representative. As soon as the legal actions were dropped, the ban was reversed. Nigeria was previously banned in 1996 when it boycotted the African Nations Cup, which was hosted in South Africa, in response to criticism of the authoritarian rule of President Sani Abacha from that country. Nigeria was then given a two-year suspension by the Confederation of African Football (CAF), and thus were unable to compete in the 1998 Nations Cup.

• Kuwait football association banned in 2015 owing to the imposition of a Sports Bill which infringed upon the right of the country’s Football Federation to exist independently.

• Football governing bodies of Zimbabwe and Kenya banned for organizational flaws which necessitated third party influence. ZIFA officials were removed from office in November on allegations of corruption. Zimbabwe was banned after its government-run Sports and Recreation Commission refused to relinquish control of the Zimbabwe Football Association and reinstate the federation’s leadership. Kenya was banned after its sports ministry also removed the federation’s leaders.

These are some classic examples of government authorities interfering in the decision-making process and taking over completely the role of a football federation, hence resulting in a ban being placed on such member associations, subsequently leading to a halt in footballing progress.

UPLIFTMENT OF THE BAN ON AIFF:

By way of a Media Release on FIFA’s official website dated 27 August 2022, the Bureau of the FIFA Council lifted the suspension that was imposed on the #AIFF due to undue third-party influence. The decision was taken after FIFA received confirmation that the mandate of the committee of administrators (‘CoA’) that was set up to assume the powers of the AIFF Executive Committee had been terminated and that the AIFF administration had regained full control of the organization’s daily affairs. This came in as a sigh of relief for Indian Football stakeholders, a big of reason for which is the lifting of the ban on U-17 FIFA Women’s World Cup 2022, scheduled to take place in India next month. While the game must go on now, one must not overlook the lows which AIFF witnessed recently, not to mention the inherent flaws in its administration which have since decades acted as impediments in the development of the sport in the country. The damage that has been done is grave and depressing, all the more for Gokulam Kerala FC, the Indian women’s league winners, who were to participate in the AFC club championship in Uzbekistan but were barred from the same due to the ban by FIFA.

COMMENTS

Although the suspension was lifted within a very short period of time, any prolonging of this issue would have had catastrophic consequences on the Indian football scene.

Past instances of bans placed on national footballing federations on grounds of third-party influence have been when a third party has usurped the position of the particular federation and assumed for themselves all the power that is afforded to a national football federation. As was seen in cases such as that of the ban of Zimbabwe (ZIFA) and Nigerian (NFF) footballing federations, wherein a third party had acted in place of the officials of the national footballing federation, which is blatantly against the provisions of the FIFA statute. There were criticisms that the same was not the case with AIFF. Therefore, the question that remains to be answered is what actually constitutes third party influence/interference. And does the order of the Supreme Court, constituting a committee for fair elections of AIFF officials amount to third party interference henceforth necessitating a ban?

From a generic standpoint, one may answer the above question in negative, owing to the fact that the constitution of the three-member committee is essentially just an ad hoc measure taken to ensure that the elections of AIFF officials take place in a fair, just and equitable manner. An argument can be made that the committee was just assigned the task of breaking the deadlock that looms over Indian football; however, from a legal standpoint and taking into consideration the applicable FIFA jurisprudence, the Indian case did amount to a third-party intervention and there was no need for the Supreme Court to intervene. Basically, as analysed above, FIFA tends to take a strict approach in such cases, which is why any sort of intervention should be avoided.

Although in the Author’s personal opinion, such unfettered power in the hands of the world governing body of footballing activities may spell catastrophe for nations putting in so much effort to achieve footballing excellence. Therefore, FIFA should carefully analyse the instances of third-party interference on a case to case basis taking into consideration the development of football regionally and globally. If one takes a glance at the past bans of football federations, a clear pattern of bias towards European nations emerges with FIFA having a stricter attitude towards Asian and surrounding countries.

In conclusion, the control of FIFA over federations has to be kept in check through some mechanism so that it is not able to take completely autocratic decisions with federations having absolutely no recourse. And this argument is further strengthened by the fact that numerous allegations of corruption and bias have been placed on FIFA especially in recent years. Although FIFA is not a national state, one could nonetheless characterise it as an actor who seeks to further its own objectives. The organisation seems to be more focused on preserving and acquiring more authority than it is on boosting football and looking out for the best interests of its members, which is disheartening.

Nonetheless, one must not ignore the extremely distorted scenario of Indian Football and its inherent flaws. Leaving aside the harm it caused or could have caused, one thing for sure is that this ban was an eye opener for India. While the game must go on now, one must not overlook the lows which AIFF witnessed recently, not to mention the shortcomings in its administration which have since decades acted as impediments in the development of the sport in the country.

*For any query, feedback, or discussion, Yash Dawda can be contacted at [yashdawda45@gmail.com]

*NOTE- The opinions and views expressed in this article are that of the Author(s) and not of SLPRR- the expressed opinions do not, in any way whatsoever, reflect the views of any third party, including any institution/organisation that the Author(s) is/are currently associated to or was/were associated to in the past. Furthermore, the expressions are solely for informational and educational purposes, and must not be deemed to constitute any kind of advice. The hyperlinks in this blog might take you to webpages operated by third parties- SLPRR does not guarantee or endorse the accuracy or reliability of any information, data, opinions, advice, statements, etc. on these webpages.

PREFERRED CITATION: Yash Dawda, Deconstructing the AIFF Suspension Conundrum – Analysis of FIFA’s Approach on Third-Party Intervention, SLPRR, <https://sportslawandpolicyreviewreporter.com/?p=2454> January 7, 2023.