Again, the 'Over-Age' Issue

On Saturday, May 1 2010, Nigeria secured yet another football triumph over South-Africa. It was the turn of the Flamingos, the female Under-17 National team, who beat their counter-parts 2-1 in the second leg in South Africa to complete a 7-1 aggregate win (you do the math). The victory means the Nigerian team has qualified for the U-17 World Cup to be hosted by Trinidad and Tobago in September this year. While victory over South African opposition would not be much of a news item (with all due respect), the big news is that South Africa has lodged an official complaint against Nigeria for allegedly fielding over-age players. After the first-leg, which Nigeria won 5-0 (for those of you who failed the math test), the South African coach, Fran Hilton-Smith had made it clear that they intended to lodge a formal complaint if Nigeria went on to field the same girls that played in the first leg, who according to her were over-age and clearly over their 20's. Needless to say, the same girls showed up for the second-leg and the rest is ... what we are discussing.

As far as age-grade competitions are concerned, Nigeria is no stranger to this type of controversy. The trip down memory lane is not a long one - at the just concluded Under-17 World Cup former ex-international Adokiye Amiesimake declared that the Golden Eaglets captain, Fortune Chukwudi was at least nine years older than he claimed to be and certainly should not have been part of the under-17 team. Amiesimaka stated that he had worked with the 'youngster' in the 2003-2003 season as the Chairman of Sharks FC. However, FIFA swept it all under the carpet just as the man was widely labeled unpatriotic. Many have argued sensibly that this is the reason our footballers seem to fade away when they are expected to be at their peak. Many looked towards the introduction of the MRI scan by FIFA with anticipation that culprits would be uncovered, however, that was not to be.

At the risk of sounding 'unpatriotic', I believe the South Africans do have a case! What I don't believe however, is that much will be made out of it. This would have been a perfect opportunity for the regulatory authorities to instill some discipline as far as age-cheats are concerned. It is a vice in which players and national associations are culprits. The South African coach was somewhat right when she said that one need not be a rocket scientist to spot age-cheats. Although you have the odd case of people looking below their age, many people know how many times they watched a so-called youth team and labeled them 'old men'. It is high time FIFA took a good look at the issue but that is by no means the most effective solution. Any country that truly believes in youth development cannot afford to pay lip-service to age-grade competitions. However, with just over a month to the start of the World Cup, first ever on African soil, who would want to raise dust over this matter?

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Ray Nnaji v. Nigeria Premier League: Case Comment

In the latest twist to the Nigeria Premier League election drama, the NPL has celebrated its victory at the Federal High Court by banning the litigant, Ray Nnaji from all football activities indefinitely. He had earlier been disqualified from the elections into the Nigeria Premier League Board on account of submitting his form late and failing to secure a second endorsement as required under the election guidelines. Ray Nnaji then sought redress in the court of law and despite initially obtaining an injunction to forestalling the scheduled conduct of the election, Justice Kafarati of the Federal High Court, Enugu Division struck out his substantive suit. The reason for the decision was stated to be that the matter was a purely a football matter, which ought not to have been brought before an ordinary court of law, rather the aggrieved party should have employed the internal dispute resolution mechanisms of the NFF and the NPL.

This is a ruling that football administrators at FIFA and in Nigeria would be pleased to read. However, with all due respect, a lot more could have been done by the court instead of slamming the door shut on litigation. Indeed, the position of FIFA and Nigerian football statutes prohibit recourse to the courts of law in favour of sports adjudicatory tribunals – Article 64(2) of FIFA Statutes, Article 13(1)(f) of NFF Statutes and Article 36 of NPL Statutes. Furthermore, the courts abroad are generally not inclined towards entertaining sports-specific disputes in relation to purely-sporting matters. Nonetheless, the point must be made that the ruling may not have taking certain material issues into consideration but rather adopted foreign judicial opinion hook, line and sinker without regard to the specific circumstances of the local case.

Firstly, whereas purely sporting matters should be left to be adjudicated upon by sports tribunals, the case involving Ray Nnaji concerns election procedure – from which technicalities have been used to disenfranchise candidates. For instance, on the purported late submission of his form, Ray Nnaji contended that he had sent it by courier before the expiration of the deadline and although it may have been received by the electoral commission after the deadline, the correct legal position is that he had submitted in good time – clearly a point of law. In the European Union, which is arguably the most advanced jurisdiction in sports jurisprudence, the position is that sports is subject to EU law to the extent that it constitutes an economic activity. This is the position in many decided cases including Walrave and Koch v Association Union Cycliste Internationale [1975] 1 C.M.L.R. 320; where an example of ‘non-economic’ sporting activity was given as the determination of the composition of national sports teams (i.e. the fact that only citizens can play for their country). It goes without saying that the eligibility to participate in sporting activity as a source of livelihood would be deemed to constitute economic activity. Also, the role and jurisdiction of the courts with respect to sports governing bodies has been aptly described by Richard J. in the English case of Bradley v The Jockey Club [2005] EWCA Civ. 1056, para 17 as follows: “… it is supervisory. The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits.” Therefore, with all the legal technicalities that plagued the decision-making in the NPL elections that are still yet to be held, it would certainly have done no harm if the court had provided proper guidance.

Secondly, as reported, one of the issues raised in the suit was the legality of the NPL itself. Without delving into discussion about how equitable it is for Ray Nnaji to question the legality of a body he had previously been part of only because he was denied the chance to get back in, it suffices to say that the issue as to the legality of the NPL is not one to be brought before an adjudicatory panel of the NPL itself or any other sports panel. This is because it relates to the interpretation of the laws of the country and not facts relating to a purely-sporting matter in dispute between sports parties. As a matter of fact, the legal direction of football in Nigeria has been cloudy ever since FIFA forced the repeal of Decree 101, which was the federal statute governing football regulation within the country.

While the sports bodies would expectedly be optimistic that the suit filed by another candidate, Sam Sam Jaja would be treated likewise, it would be no surprise if a more adventurous and intrusive judge chooses to delve into the problems plaguing the system. Although the sport regulatory bodies require members to contract that they would opt for arbitration, in its vital role to safeguard the rights and interests of individuals and the public, the court should not be too quick to shut its doors on account of such arbitration clauses. It has been argued that due to the monopolistic nature of sport governing bodies, individuals who wish to be involved in sports have no choice but to subscribe to the rules of such regulatory bodies – a person who wishes to become a professional footballer has no choice but to be affiliated with FIFA and the NFF, therefore the court needs to ensure that his/her basic rights are protected.

RE: Why We Seek Expatriate Technical Adviser

According to the President of the Nigeria Football Federation, Alhaji Sani Lulu Abdullahi, the search for a foreign technical adviser for the Super Eagles of Nigeria stems from the need for one “who will drive the team to play professionally and with discipline as the FIFA World Cup finals approach”. It was popular opinion that the erstwhile coach, Amodu Shuaibu lacked the drive and/or charisma to propel the team to visibly give their all at the recently concluded Nations Cup and at some point during the World Cup Qualifiers. Nonetheless, whether this obvious need for professionalism and discipline warrants the total sidelining of Nigerian tacticians remains to be seen. I deliberately refrain from using the term ‘local coaches’ because it seems to elicit the ‘home-based’ fixation; although, bar Stephen Keshi – who has coached both the Togo and Mali national teams – no other Nigerian manager can boast of any tangible international pedigree. Suffice to say that the crux of this piece borders on why Stephen Keshi should have been given the task (possibly alongside Samson Siasia) of leading the team to the World Cup.

While the ‘sacking’ of Amodu was imminent, the hiring of an expatriate is not pertinent! The talk of a short-term approach to the job makes the situation even more precarious. With about 100 days to the start of the World Cup, any coach starting the job at this point would definitely need some prior inside knowledge of the current team, potential players and the workings of the football administrators. There is no gainsaying the fact that none of the short-listed candidates possesses that. Anyway, inside knowledge does not form part of the selection criteria of the NFF, so why bother?! In a bid to fight the urge to go-to-town and comment on the same old factors that have been the bane of our football administration, it can simply be said that Stephen Keshi would have been the most expedient, convenient, result-oriented, sensible and indeed the most satisfactory. How?

Expedience stems from the fact that just as time is short, funds, as usual, are not in great supply. Instead of indulging in the circus of short-listing and de-listing several names so close to the mundial, Keshi would certainly have been a prime option and by now would have got the job under way. Also, having had many years combined experience as player and assistant manager, he would have had the advantage of knowing and understanding the psyche of current national team players as well as those with the potential, including any home-based talent.

Convinience has to do with the financial requirements. Hiring Keshi would certainly be less financially demanding. This is in terms of wages and probably having him settle within the country compared with a foreign technical adviser. A clear pointer is the fact that the wages of the to-be-appointed technical adviser would be funded by the Presidential Task Force (on Super Eagles’ World Cup Qualification) and the National Sports Commission, and not the NFF itself.

Being result-oriented is hinged on the reason adduced for hiring a new technical adviser vis-a-vis Keshi’s antecedents. One would recall that as the coach of Togo during the 2006 Nations Cup Keshi left star-striker Emmanuel Adebayor on the bench for disciplinary reasons; coupled with his decision not to start some of Mali’s big-name midfielders for fitness reasons at the 2010 Nations Cup, one had hardly argue that the lacks the required professionalism and discipline.

How sensible is it for top-members of the football administration body to leave their posts and fly across the world in the name of interviewing candidates? Recent news even has it that one of the latest short-listed candidates, Ariggo Sacchi has openly stated that he would not be going to Abuja to attend any interview and so a screening committee is expected to fly from UK to Italy for that purpose. Talk about charisma!

How satisfactory the decision to appoint Keshi would have been is largely a matter of opinion. The decision to appoint a foreign technical adviser is stated to be in response to the yearnings of football-loving Nigerians. Indeed, many have called for the appointment of Keshi. Be that as it may, satisfaction cannot be measured until the conclusion of the World Cup, or of Nigeria’s participation in it. It is not impossible for a foreign technical adviser to defy the odds and impress at the World Cup. Whatever happens, the question is: afterwards, what next? Do we revel in another ‘Westerhof’ taking our football to great heights; or do we go back to square one (post-Berti Vogts) and oppose the need for a foreign technical adviser? Time will tell.

HIT THE ROAD ... JOHN

The Chelsea captain, and erstwhile England captain, John Terry has eventually been given time off to see his wife in Dubai. It is no news that the embattled defender has had to cope with allegations of an affair with the ‘ex of an ex-teammate’. Having coped pretty well on the pitch recently against Arsenal where he had a significant impact in both goals, he was culpable in relation to the winning goal Everton scored against Chelsea. I do not wish to dwell on his performance on the pitch, much less off it. The aim of this piece is to briefly examine why the issues surrounding John Terry’s private life have had such a direct impact on his life as a professional footballer, precisely regarding his being stripped of the England captaincy.

Whatever meaning may be attributed to the word ‘privacy’ one constant feature is that it entails being shielded from the ‘public’. Hence, I find it paradoxical to read statements like: “The press is awash with details of John Terry’s private life”. How private is that?! Nonetheless, the truth remains that details of the private lives of celebrities constitute news worth selling. It is not in doubt that in England, like other jurisdictions, the right to privacy is enshrined (Section 8 of the Human Rights Act 1988). How then can such intrusion into the private life of an individual be justified?

The inability of John Terry’s lawyers to secure a court order preventing the press from further publications regarding the allegations of an his extra-marital affair came as no surprise. In England especially, the judicial attitude is that a person who voluntarily takes up a profession that puts him in the eye of the public, from which he benefits, cannot be heard to complain thereof; the theory is that celebrity magnetism is public property and part of popular culture. The benefits of being in the public eye are obvious – apart from a healthy salary, earnings from commercial endorsements are the direct result of celebrity status. Interestingly, there are estimates of about £20 million to be lost by Terry in commercial endorsements since he has lost the England captaincy. The thinking is this – if public image can be exploited for commercial gain, one cannot simply run under the cover of privacy rights in situations such as the one Terry is faced with.

In all of this, one question rings continually – what has his private life got to do with his role as a professional footballer? The answer could well stem from the theory of celebrities as role models. It is common to see famous footballers being used to promote noble causes such as anti-racism, anti-violence campaigns and charity. Avoiding the temptation to write volumes on this issue, put succinctly, if such celebrities are so influential off the pitch, they have a social responsibility to make that influence a positive one. In all circles, a captain commands respect and is looked upon as an exemplary character. If Fabio Capello is convinced that the embattled defender no longer cuts that character, then fair play to him. Likewise, if Carlo Ancelloti is convinced that the issues surrounding Terry’s private life would not affect his role as captain of the team, fine. Moreover, the Chelsea fans seem to be in overwhelming support of their captain.

Terry is off to be with his wife and luckily for him she will not be singing him the Ray Charles – “Hit the Road...” and neither will Chelsea.

Between CAF and Togo (2): The Ratio Decidendi

The curtain has been drawn on the 2010 CAN but the epilogue will not dwell solely on the feat of the champions but also on the fate of eventual non-comers. The drama surrounding Togo’s non-participation and an analysis of possible consequences formed the core of the write-up to which this is sequel (http://kelvinomuojine.blogspot.com/2010/01/between-caf-and-togo.html ;http://www.facebook.com/note.php?note_id=254017517831).
Prior to the final of the competition, CAF announced in a statement that Togo had been banned from the next two editions of the African Nations Cup and fined US$50,000. Togo’s non-participation was deemed a forfeit under Article 78 of the Regulations of the Africa Cup of Nations Angola 2010 (as discussed in the previous article) and the sanctions prescribed therein have been implemented. The ban has elicited opinions, some of which express the belief that the ban is not in order given the unfortunate incident that led to Togo’s non-participation. Indeed, the gun attack which resulted in the death of three members of the delegation and a few gun wounds warrants a feeling of empathy. However, it is certain from the content of the statement announcing the ban that the decision was not taken without due consideration of all relevant facts.
In analysing the decision of CAF, it is of primary importance to note the reasoning of the football regulatory body. The statement contains in no unclear terms the reasoning of CAF in reaching their decision. Specifically, the statement noted the fact that the players publicly expressed their willingness to return to the Nations Cup to compete but the Togo government decided to call back their national team, after which it was explained that the decision by political authorities contravenes CAF and African Nations Cup regulations. The level of governmental interference in sports regulation, as mentioned in the previous article on this subject-matter, remains a live issue in sports. Clearly, the decision to ban Togo was largely borne out of the need or desire to sanction and deter unnecessary government intervention. The position of FIFA and regulatory bodies under it has always been that National Associations must be independent. This should be viewed from the perspective that professional football is organised as a private sector regulated industry rather than as a public body. However, the immense socio-economic importance of modern sport generally has made it evolve into an industry which the government cannot (and indeed should not) take its eyes off, hence the unrelenting financial support. The bane is that the tendency then exists for sports regulation to be mistaken for a public body responsibility. Nonetheless, it provides a source of direction when one realises that as far as football is regulated by FIFA, national participation is the exclusive preserve of the national football associations responsible for the organisation of football in their respective countries. It is these national associations, and not the national governments, that are members of FIFA and Article 17 of the FIFA Statutes requires that each member shall manage its affairs independently and free of interference from third parties (including the government). Even the Regulations Governing Admission of Associations to FIFA, before an association is admitted it is required to show documentary evidence that its bodies are designated in independent elections.
The reasoning of CAF can thus be gleaned: the unnecessary interference of government in sports regulation should not be taken lightly. The Togo football association as well as the players were willing to go ahead with their participation in the competition but their government insisted on their return home. There is no doubt that players and fans of Togo would feel hard done by - a case of triple jeopardy - having lost members of their delegation, failed to participate in the competition and being banned from the next two editions. The team captain, Emmanuel Adebayor in a full-mouthed statement described the decision as “outrageous”, a term which would also describe undue intervention in sports self-regulation. There have been reports of an appeal to be launched by Togo against the decision and it is possible that the impact of the unfortunate incident, rather than of the political decisions, would take centre stage. Nonetheless, there will remain a firm statement on the need to limit government intervention in sport to the acceptable standards, which involves a supervisory role and creating an enabling environment.

Between CAF and Togo

The incident that preceded the commencement of the Orange Nations Cup in Angola was like a very bitter appetiser, it indeed left a bitter taste in the mouth. Thankfully, the main course has since commenced and the thrill of the late four-goal comeback in the opening match as well as the string of surprising results have giving us something far more palatable to bite into. It goes without saying that this is also thanks to the relative peace and security since that gun attack on the Togo delegation.

Now that Group B is officially down to three teams we have seen the end of the ‘we want to go home’, ‘no, please stay’ and ‘you all must come home’ drama that played out among the Togolese delegation, CAF and the Togolese government. Unfortunately, we only saw a badly cut version, leaving us without key scenes in the plot and as we have had to do many times in the past, we are left to make up our minds by ourselves with the aid of scanty and sometimes conflicting press reports. The final report seems to be that after the players had changed their minds in favour of going ahead to participate in the competition, the Togolese government ordered them back home and subsequent entreaties to CAF to let them return to Cabinda to participate in the competition were turned down.

Of importance as far as this issue is concerned is administrative reaction to such circumstances, not just for the sake of proper organisation but also for setting precedents and improving the regulation and overall jurisprudence surrounding the game. The administrative actions in this instance are primarily guided by the Regulations of the Africa Cup of Nations Angola 2010# (“the Regulations”), which constitutes the most directly-relevant body of rules governing the Nations Cup. Entitlements and obligations of the host association, participating national associations, and the regulatory authorities from the preliminary phase through to the final competition are contained therein. Regarding the infamous exit of Togo from the competition, Chapters 36 and 37 of the Regulations are instructive, providing basically for ‘forfeit’ and ‘withdrawal’ from competition respectively. The Regulations do not contain a definition clause or any definition of the terms and although used interchangeably in Article 78, the terms appear to have different meanings viz:

· A forfeit entails refusal to participate in the final tournament after qualification, the period of notice of forfeit determines the extent of sanctions imposed i.e. whether 60 days before the start of the tournament, between 60 – 20days, or less than 20 days;
· A withdrawal entails failure to participate in the competition, failure to report for a match or any of a team’s matches, or abandonment of a match. Article 84 provides that if the withdrawal is prior to commencement of the tournament, the team shall be replaced by the team next to it in the qualifying group, in default of which the affected group in the final tournament would comprise only three teams. Notably, recognition is given to withdrawal as a result of force majeure, which must be accepted by the Organising Committee.

There may be a lot of dispute regarding the actual facts surrounding the non-participation of Togo in the Orange Africa Cup of Nations final tournament, especially in the light of the manner in which the legal rules are to be applied. To my mind however, the relevant issues include:

i. Is it a case of forfeit or withdrawal under the regulations?
ii. Could the attack on the Togo delegation be said to constitute force majeure?
iii. The role of the Togolese government.

Regarding the first issue, the distinction could have an effect on the sanctions, if any, that may be imposed on the Togolese football association. According to Article 78:
"A forfeit notified less than twenty days before the start or during the final competition, shall entail in addition of the forfeit of the entry fee, a maximum fine stipulated by the regulations as well as the suspension of the concerned national association for the following two editions of the African Cup of Nations. Moreover, the withdrawal shall entail the forfeit of its share in the profits realised from the receipts. In addition, the Organising Committee may order the concerned national association to make compensation for any eventual damages."

On the other hand, Article 80 provides that:
"If, for any reason whatsoever, a team withdraws from the competition or does not report for a match, except in cases of force majeure accepted by the Organising Commission or refuses to play or leaves the ground before the regular end of the match without the authorisation of the referee, it shall be considered looser and shall be eliminated for good from the current competition"

Significantly, if Togo’s non-participation is deemed a case of forfeit the Regulations stipulate a suspension from the next two editions of the Nations Cup. A similar sanction was imposed on Nigeria after its boycott of the 2006 Nations Cup. Alternatively, if deemed a withdrawal, the primary sanction appears to be mere elimination from the tournament.

Regarding the second issue, the effect of the attack on the delegation arguably had the potential of constituting something akin to force majeure. Nonetheless, Article 80 is clear on the point that the force majeure must be accepted by the Organising Commission. Indeed, the press reports that CAF turned down the Togolese request to return to the tournament indicates non-acceptance. Moreover, what even precedes the point is that a request to return to the tournament completely waters down any argument that the attack on the team deprived them of the ability to participate in the competition.

On the role of the Togolese government, the recall of the delegation despite their reported willingness to play and entreaties of CAF shows yet again the adverse effect government involvement can have on football. The value of government support and funding is immense; however government tends to penetrate the regulatory sphere of association football too easily. FIFA’s stance has always been in favour of independence of football regulatory bodies and if the delegation with the backing of the football association were determined to go ahead with the competition in honour of their fallen colleagues, one can only wonder whether the Prime Minister’s insistence on the team’s return was not borne out of over-zealousness or exuberance. It is common in sports for such incidents to provide the psychological boost with which to achieve great feats. One recalls the fatal air crash involving all but one of the entire Zambian squad prior to 1994 Nations Cup. Despite having to build an entirely new team, they made it all the way to the final. While government must show responsibility in affairs involving its citizens, the decision-making as far as football regulation is concerned should be left to the regulatory bodies, with government playing no more than a supervisory role.

Summarily, while it is possible that the last has not been heard on the matter, regardless of whatever decision CAF and the Organising Committee may reach on Togo’s non-participation, it would present a great insight in the organisation and regulation of future tournaments. The need for a proper definition and distinguishing of the terms ‘forfeit’ and ‘withdrawal’ is glaring. However, from the facts available in the media it seems safe to conclude that the incident amounts to a withdrawal under Article 80 and attracts no more than exclusion from the competition.