Following their release of the summary of their verdict on the case between Wilfred Osei Kwaku Palmer and the Ghana Football Association (GFA), the Court of Arbitration for Sports (CAS) has now published the full version of its ruling on the said case.
Feeling unfairly treated by the Election Committee of the GFA’s Normalization Committee following his disqualification from the FA presidential election race, Osei Palmer filed an appeal at the CAS seeking a redress. He prayed the Swiss court to declare the October elections results null and void, and clear him of any wrong doing, a decision, which if granted, could have thrown the current GFA into jeopardy.
After long ten (10) months of legal tussle between the FA and Palmer since the latter filed before the CAS a Statement of Appeal against his disqualification, CAS has dismissed his appeal, affirming the decision of the GFA’s Normalization Committee.
Below is the full ruling of CAS on the matter:
“CAS 2019/A/6517 Wilfred Kwaku Osei v. Ghana Football Association
ARBITRAL AWARD
delivered by the
COURT OF ARBITRATION FOR SPORT
sitting in the following composition: President: Michele A.R. Bernasconi, Attorney-at-law, Zurich, Switzerland
Arbitrators: John Adam Didulica, Lawyer, Melbourne, Australia
Hendrik Willem Kesler, Attorney-at-law, Enschede, The Netherlands in the arbitration between Wilfred Kwaku Osei, Spintex, Ghana Represented by Mr. Thaddeus Sory, Attorney-at-law, Accra, Ghana
– Appellant –
and Ghana Football Association, Accra, Ghana Represented by Ms. Naa Odofoley Nortey, Attorney-at-law, Accra, Ghana – Respondent –
FORM AND PROCEDURE
I. PARTIES
Mr. Wilfred Kwaku Osei (the “Appellant”) is a Ghanaian citizen and the executive chairman of Tema Youth Football Club, a member of the Ghana Football Association.
The Ghana Football Association (the “GFA” or the “Respondent”) is the governing body of football in GHANA, itself affiliated to the Fédération Internationale de Football Association (the “FIFA”) since 1958. GFA has its registered offices in Accra, Ghana.
FACTUAL BACKGROUND
Introduction
Below is a summary of the relevant facts and allegations based on the Parties’ written
submissions and the evidence produced. Additional facts and allegations may be set out,
where relevant, in connection with the legal discussion that follows. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in its Award only to the submissions and evidence it consider s necessary to explain its reasoning.
The Appointment of the Normalisation Committee
Prior to 13 December 2017, the Appellant was investigated by the GFA Ethics Committee as a consequence of public comments relating to the use of “unclassified payments” by GFA, which are outlined in more detail at para. 48 herein. As a consequence of the investigation, the GFA Ethics Committee in a determination dated 13 December 2017 found the public comments to be “very inappropriate and should not be repeated” and the Appellant should “write a letter of apology to the GFA Executive Committee, the GFA and the Minister of Sport”.
On 26 August 2018, due to internal difficulties within the GFA, and in particular following massive public critics of corruption within the GFA, FIFA decided to appoint
a normalisation committee (sometimes also referred to as “Vetting Committee”) for the
GFA (the “Normalisation Committee” or the “NC”).
On 14 September 2018, FIFA notified the GFA of the joint mission by FIFA and the
Confédération Africaine de Football (the “CAF”) which had taken place from 12 to 13
September 2018 in Accra, Ghana. During this mission the following four out of five (the fifth person wa s still under consultation) persons were identified as members of the Normalisation Committee assuming their functions with immediate effect:
– Dr. Kofi Amoah (President)
– Ms. Lucy Quist (Vice-President)
– Mr. Kofi Dua Adonteng (Member)
– Ms. Naa Odofoloey Nortey (Member).
To the knowledge of the Panel, based on the information made available by the Parties,
the composition of the Normalisation Committee has never been questioned nor
disputed by any member of the GFA.
The objectives of the Normalisation Committee were as follows:
– To run the day to day affairs of GFA;
– To review the statutes of GFA, in order to ensure compliance with the requirements
of FIFA and CAF; and
– To organize and conduct proper elections of a new Executive Committee of GFA.
On 5 September 2019, the NC convened an Extraordinary Congress of the GFA during
which new Statutes of the GFA were presented, discussed and finally adopted.
The Election Process for the Presidency of the GFA
On 16 September 2019, the NC opened the application for the election of a new President of the GFA, the executive council and other vacant positions within the GFA.
On 20 September 2019, the Appellant filed his application for the position of President
of the GFA. Further, the Appellant completed the integrity check questionnaire, which confirmed his understanding that he would be “subject to the provisions of the Disciplinary and Ethics Code of GFA and to the provisions of the Statutes and other regulations of GFA that may address integrity issues” and to be willing to “fully comply with such provisions” (cf. Questionnaire for Integrity Checks, signed on 19 September
2019, P ar t 3, under 4.).
The Proceedings before the NC acting as the GFA Elections Committee
At the beginning of October 2019, the Appellant was interviewed by the NC, acting as the GFA Elections Committee in accordance with Art. 81 of the GFA Statutes, in relation to his candidacy for the Presidency of the GFA. The Appellant did not raise any objections against the composition of the Normalisation Committee.
On 4 October 2019, the NC, acting as the GFA Elections Committee, notified the Appellant of his unsuccessful application for the position of the President of the GFA. The decision stated the following: “The Ghana Football Association Normalisation Committee acting as the Elections Committee regrets to inform you that your application to
contest for the position of the President of the GFA was unsuccessful. This was as a result of the adverse findings against you namely:
– Breach of Article 33 (5) (c) of the GFA General Regulations.
– Decision of the Ethics Committee dated the 13th December 2017.
Should you wish to appeal this decision, kindly submit to the Elections Committee in writing, supported by any documents you wish to bring to our attention, on or before Tuesday, the 8th of October, 2019 at 4:00 pm.”
On 7 October 2019, at 15:40 hrs, the Appellant filed a Notice of Appeal before the NC acting as the GFA Elections Committee in which he sought the reversal of the decision of the GFA Elections Committee of 4 October 2019. In his Notice of Appeal the Appellant did not question the power nor the jurisdiction of the NC to decide on his Appeal.
As a result, on 8 October 2019, the NC, acting as the GFA Elections Committee, rendered the following decision (the “Appealed Decision”) on the appeal filed by the
Appellant:
“Dear Sir
RE: APPEAL AGAINST THE DECISION OF THE GFA ELECTIONS COMMITTEE DATED THE 4TH OF OCTOBER, 2019
At the close of the date and time limited for appeals, i.e. Tuesday the 8th October, 2019 at 4:00 pm., we received the following documents from you by way of an appeal;
i) Notice of Appeal, (received on Monday the 7th of October, 2019 at 3:40 pm.).
ii) Notice of application for an interim injunction on the decision of the GFA Elections Committee pending appeal (received on Monday the 7th of October, 2019 at 5:05 pm).
iii) The statement in support of the application for an injunction pending appeal (received on Monday the 7th of October, 2019 at 5:05 pm). We regret to inform you that based on the above listed documents received, before the deadline, your appeal was unsuccessful.”
PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT
On 11 October 2019 by email and on 14 October 2019 by courier, pursuant to Article R48 of the CAS Code of Sports-related Arbitration (the “CAS Code”), the Appellant
filed before the CAS a Statement of Appeal against the Appealed Decision, requesting that: the procedure is conducted in an expedited manner; that the President of the CAS Appeals Arbitration Division decides on the number of arbitrators and appoints them herself; and that FIFA shall join the present proceedings.
On 16 October 2019, the Appellant filed a request for provisional measures to refrain
the GFA from conducting the elections scheduled for 25 October 2019.
On 20 October 2019, the Respondent filed its position regarding the Appellant’s
application for provisional measures including an objection to the jurisdiction of CAS.
On 21 October 2019, FIFA informed the CAS Court Office that it renounced to
intervene in the present proceedings.
On 22 October 2019, the Appellant filed a reply to the arguments submitted by the
Respondent in response to the Appellant’s request for provisional measure.
On 23 October 2019, pursuant to Article R51 of the CAS Code, the Appellant filed his
Appeal Brief with the following requests for relief:
“i. A declaration that Respondent’s Elections Committee’s decision contained in
its letter dated the 4th day of October is null void and of no effect.
ii.
A declaration that upon a true and proper construction of the eligibility
criteria set forth in Respondent’s Statutes, 2019, the reasons stated in
Respondent’s letter of 4th October 2019 for disqualifying Appellant from
contesting the presidency of Respondent’s Executive Council are not
justifiable.
iii.
An order nullifying any election conducted by Respondent pending the final
determination of the instant proceedings.
iv.
An order directed at Respondent to conduct fresh elections giving each
candidate a fair chance of contesting same based on Respondent’s rules.”
On 25 October 2019, the CAS Court Office provided the Parties with the Operative Part
of the Order on the Request for Provisional Measures, pursuant to which the A pp ellant’s
request was dismissed.
On 28 October 2019, the CAS Court Office notified the Parties that in the absence of
the Respondent’s consent no expedited procedure was to be implemented.
On 7 November 2019, the Respondent filed its Answer to the Appeal Brief, in
accordance with Article R55 of the CAS Code, submitting that:
– CAS has no jurisdiction to hear this case and therefore, the Appeal is inadmissible;
and
– the Appeal is without merit and must therefore be dismissed.
On 13 November 2019, the Respondent informed the CAS Court Office of its agreement
that the President of the CAS Arbitration Division should decide on the number of
arbitrators and to appoint them herself.
On 18 November 2019, the Appellant filed his submission with regard to the jurisdiction
of CAS and requested that the present case shall be decided based only on the written
submissions of the Parties, without holding a hearing.
On 22 November 2019, the Respondent submitted to the CAS Court Office its agreement that the CAS issues an award based only on the written submissions of the
Parties, without holding a hearing. In this letter, the Respondent did not maintain its
objection to the jurisdiction of CAS.
On 17 January 2020, the CAS informed the Parties that the President of the CAS
Appeals Arbitration Division decided to submit the present proceedings to a Panel of
three arbitrators and invited the Parties to nominate their respective arbitrator.
On 20 January 2020, the Appellant nominated Mr. John Adam Didulica, Lawyer in
Melbourne, Australia, as arbitrator.
The same day, the Respondent nominated Mr. Hendrik Willem Kesler, Attorney-at-law
in Enschede, The Netherlands, as arbitrator. Also in this letter the Respondent did not
maintain its objection against the jurisdiction of CAS.
On 16 March 2020, the CAS Court Office notified the Parties that the Panel appointed
to decide the present case had been constituted as follows:
– Mr. Michele A.R. Bernasconi, Attorney-at-law in Zurich (Switzerland), as
President of the Panel;
– Mr. John Adam Didulica, Lawyer in Melbourne (Australia), as the arbitrator
appointed by the Appellant; and
– Mr. Hendrik Willem Kesler Attorney-at-law in Enschede (The Netherlands), as the
arbitrator appointed by the Respondent.
On 22 June 2020, the CAS Court Office submitted to the Parties an Order of Procedure
and informed the Parties that the Panel had decided (i) to confirm jurisdiction of CAS
to issue a decision on this case and (ii) to proceed in issuing an Award on the basis of
the written submissions filed by the Parties, without calling any hearing.
A signed version of the Order of Procedure was submitted by the Appellant and his
representative on 22 and 23 June 2020, respectively, and by the Respondent on 23 June
2020. No party added any remarks in the Order of Procedure.
IV. SUBMISSION OF THE PARTIES
IV.1. The Appellant
Mr. Wilfred Kwaku Osei’s submissions, in essence, may be summarized as follows:
As a preliminary issue, the Appellant considers that according to Art. 81 GFA S tatutes
and Art. 24 GFA Election Regulations, the decision of the GFA Elections Committee
shall be final and binding. Therefore, the same body cannot be competent to hear an
appeal against a decision of its own.
Secondly, the Appellant submits that the decision of the GFA Elections Committee is
in violation of Artt. 2(1) and 3(b) of the GFA Election Regulations as it is based on preconceptions by some members of the GFA Elections Committee against the Appellant,
particularly:
• Mr. Frank Davies and Mr. Emmanuel Darkwah, both members of the GFA Elections
Committee, work in the law firm Davies & Davies, which was instructed by the NC
to represent the GFA in a dispute against the Appellant’s football team, Tema Youth
Football Club, concerning a 10% participation fee (amounting to EUR 300’000.-), of
the transfer of the player Joseph Paintsil
• Furthermore, Mr. Davies is also a very close friend of the NC president, Dr. Kofi
Amoah, who appointed Mr. Davies’ law firm in the transfer fee dispute as mentioned
here above.
• Moreover, Dr. Kofi Amoah publicly declared that he will, in his capacity as president
of the NC, ensure that the Appellant will not contest the elections.
• Therefore, it is undeniable that due to the involvement of some members of the NC
and the GFA Elections Committee in the dispute between the Appellant’s club and
the GFA, the GFA did not guarantee the Appellant a fair electoral process.
Thirdly, the Appellant argues that due to their involvement in the dispute between his
club and the GFA, certain members of the Elections Committee were biased and had a
direct interest when taking their decision to disqualify the Appellant from his candidacy
as President of the GFA.
I
Fourthly, the grounds of the decision to disqualify the Appellant from his candidacy are
not supported by the relevant laws and regulations:
• Art. 7(1) GFA Election Regulations stipulates the following eligibility criteria for
persons who intend to be nominated to the position of the GFA President:
“1. Must be a Ghanaian.
2. Must be of sound mind and has not been detained as a person of mental
disorder under any enactment.
3. Has not been convicted of an offence involving fraud, dishonesty or
moral turpitude.
4. Helpful to have a working knowledge of the GFA, CAF and FIFA rules
and regulations.
5. Has practical experience in Management, Administration, Finance or
Corporate Governance.
6. Must be a person high moral integrity.”
• Furthermore, Art. 7 (2) GFA Election Regulations states:
“The Elections Committee shall not impose any eligibility criteria that
are not provided for in the Statutes of GFA or impose any other formal
requirements that are not provided for in these Regulations and Elections
or in the Statutes of GFA. The Elections Committee shall only request the
documents that help establish whether the relevant eligibility criteria
have been fulfilled.”
As a result of the above, the Appellant argues that the Appealed Decision was rendered
in violation of Artt. 7(1) and (2) of the GFA Election Regulations since the GFA
Elections Committee imposed eligibility criteria that are not foreseen in the applicable
regulations.
Furthermore, the Appellant sustains t hat the reasons set out in the Appealed Decision of
4 October 2019 cannot be justified in law or evidence and therefore, the decision is
against the weight of the evidence since (i) the Appellant was not in breach of Art. 33
(5) GFA General Regulations and (ii) the reliance on the GFA Ethics Committee
decision of 13 December 2017 is without legal basis:
• The entity that was subject to disciplinary proceedings and therefore in violation of
Art. 33 (5) GFA General Regulations, i.e. the 10 % percent trading & transfer fee
rule, was Tema Youth Football Club, which is a limited liability company registered
under the laws of Ghana.
• The Appellant is an official of Tema Youth Football Club. However, the Appellant
was never charged personally or requested to pay the demanded percentage of the
transfer fee and also not subject to disciplinary sanctions by the Respondent
according to Art. 63 GFA Disciplinary Regulations in connection with the dispute
between the Appellant’s club, Tema Youth Football Club, and the GFA.
• The GFA Ethics Committee decision of 13 December 2017 did not charge and/or
convict the Appellant for any offence committed under Part II, Section 5 or any other
provision of the FIFA Code of Ethics and therefore, cannot be taken as ground for
his disqualification as candidate for the presidency of GFA.
Finally, the Appellant argues that based on Artt. 16, 61, 62, 63 and 81 GFA Statutes,
CAS has jurisdiction to rule on the present case. The Appellant has exhausted all GFA
internal channels in accordance with Art. 62 GFA Statutes. Furthermore, even if the
decisions of the NC are, according to Art. 81 (2) GFA Statutes, final and binding, they
do not bar the right to appeal before CAS in accordance with Art. 61 GFA Statutes.
IV.2. The Respondent
The GFA’s submissions, in essence, may be summarized as follows:
At the start of the proceedings, the GFA considered that CAS has no jurisdiction to hear
this case for the following reasons:
• In accordance with Art. 81 (2) GFA Statutes a decision of the NC is final and
binding and, unlike as in cases of decisions issued by the GFA Appeals Committee
in accordance with Art. 58 (5) GFA Statutes, cannot be appealed.
• Normalisation Committees appointed by FIFA are in general empowered to issue
final and binding decisions.
• The intention of the GFA Congress when adopting the new statutes and the
transitional provisions in Article 81, was to hold timely elections without being set
back by any formal appeals against decisions of the NC. This would only have a
detrimental effect on the GFA as a body, would destabilize the electoral process
and calendar as well as the league 2019/2020.
• Invitations to rely on, mere acknowledgments, references to, reproaches to comply
with decisions of CAS or a mere recognition of the CAS as a desirable venue forthe resolution of disputes do not qualify as basis for the CAS to have jurisdiction to
hear this case.
These objections were not maintained in the later course of the proceedings as detailed
below.
Secondly, in the course of the application process for the presidency of GFA and the
personal interviews, the Appellant was granted the possibility to object to the
composition of the GFA Elections Committee. However, the Appellant did not make
any objections, nor did he raise any issue of a conflict of interest, bias or the likelihood
of bias against any of the members of the Elections Committee. Therefore, the Appellant
accepted the composition and waived his right to challenge the composition of the GFA
Elections Committee.
Thirdly, the Appellant was in violation of A rt. 33 (5) GFA General Regulations. In his
capacity of chief executive officer, a director and controller of Tema Youth Sporting
Club Limited, he received, failed and refused to turn over the custody of funds received
in trust on behalf of the GFA, representing 10% of the transfer fee of the player Joseph
Paintsil.
The Appellant touts himself as the founder, owner, bankroller and executive board
chairman of Tema Youth Football Club. Nevertheless, he refused to abide by the rules
and regulations of the organization he wants to head. For this reason, the GFA Elections
Committee came to the correct conclusion that the Appellant failed to have the high
moral integrity expected from a person who intends to hold the position of President of
the GFA.
Fourthly, the Appellant when holding the position of member of the GFA Executive
Committee has been sanctioned for an Ethics Rule violation for the following public
statement made during a radio broadcast with Citi FM in Ghana:
“If we had spent around $300,000.00 on referees, and stood to benefit
about $8,000,000.00 by appearing at the World Cup, I see nothing wrong
with it…”.
Fifthly, the integrity check on the Appellant was unsuccessful because the Appellant
failed to fully and voluntarily self-disclose the following requested material information
in the eligibility check questionnaire:
• The Appellant failed to declare that he has been subject to disciplinary or similar
sanction imposed by the GFA Ethics Committee in the past.
• The Appellant failed to correctly declare that he was not in full compliance with the
GFA Disciplinary Code and the GFA Code of Ethics by not mentioning in question
number 4 of the integrity check questionnaire that:
o he was previously sanctioned for conducts that violate Art. 2 GFA Code
of Ethics and Artt. 3 (3) and (4) FIFA Code of Ethics, and he was in breach of Art. 33 (5) (C) GFA General Regulations, Art. 2 GFA
Statutes and Art. 13 (1) and 28 (2) FIFA Code of Ethics because he
refused to return funds to the GFA.
• By not mentioning in question number 6 of the integrity check questionnaire the
GFA’s ongoing efforts to recover funds from his club Tema Youth Football Club,
the Appellant failed to correctly declare that there are circumstances that give rise
to potential conflicts of interest.
Finally, the Respondent submits that decisions regarding an integrity check shall only
be overturned by a CAS Panel in cases when the decision seems to be unreasonable.
V. CAS JURISDICTION
Article R47 of the CAS Code provides as follows:
An Appeal against the decision of a federation, association or sports-related body may
be filed with CAS if the statutes or regulations of the said body so provide or if the
parties have concluded a specific arbitration agreement and if the Appellant has
exhausted the legal remedies available to it prior to the appeal, in accordance with
the statutes or regulations of that body.
To argue in favour of the jurisdiction of CAS, the Appellant relies first on the fact that
both the Appellant and the Respondent “are engaged and relate to one another in the
context of the sport of football” (Request for Arbitration, p. 23). The Appellant however
seems to admit that the jurisdiction is conditional to an agreement to arbitrate by the
Respondent: “This submission, it is conceded, is subject to the agreement of the Parties.
It is however, argued that being related to one another in a sporting way, both Parties,
must in good faith submit to the jurisdiction of the Court.” (Request for Arbitration, p.
23).
Further, the Appellant relies on Art. 61 et seqq. of the Statutes of GFA according to
which any dispute relating to the Respondent and its members shall be decided by CAS,
once all internal channels have been exhausted (Request for Arbitration, p. 24 et seq.).
The Respondent objects to the jurisdiction of CAS. The Respondent argues that the
Appealed Decision is not appealable at all, because according to the GFA Statutes, the
Appealed Decision is said to be “final and binding” (Answer to Appeal Brief, para. 67
et seqq.). The Respondent did not make substantial comments on the provisions of its
Statutes to which the Appellant referred to, i.e. Art. 61 et seqq.
The Panel notes that Art. 61 et seq. of the Statutes of GFA read as follows:
“Art. 61 – Arbitration
(1) Disputes in GFA or disputes affecting Members of GFA, Leagues,
members of Leagues, Clubs, members of Clubs, Players and Officials
shall not be submitted to Ordinary Courts, unless the FIFA regulations,
CAS 2019/A/6517 Wilfred Kwaku Osei v. Ghana Football Association – page 11
these Statutes or binding legal provisions specifically provide for or
stipulate recourse to Ordinary Courts.
(2) Such disputes as specified in paragraph 1 shall be taken before the
Court of Arbitration for Sport (CAS) in Lausanne, Switzerland.
Art. 62 – Jurisdiction
(1) Recourse may only be made to an Arbitration Tribunal once all
internal channels of GFA have been exhausted.
(2) GFA shall have jurisdiction on internal national disputes, i.e.
disputes between parties belonging to GFA. FIFA shall have jurisdiction
on international disputes, i.e. disputes between parties belonging to
different Associations and/or Confederations.”
Based on the information submitted by the Parties, the Panel is satisfied that there were
no further internal legal remedies available to the Appellant for objecting against the
Appealed Decision. As to the meaning of the terms “final and binding” when linked to
a decision, the Panel comes to the conclusion that the Statutes and the Regulations of
GFA can only be interpreted as excluding any internal legal remedy. Art. 61(1) of the
Statutes of GFA leaves open the possibility to bring a dispute before CAS, unless the
Statutes or mandatory rules would foresee the jurisdiction of state courts. In fact, not
even the Respondent has argued that Art. 61(1) has to be understood as leaving the
possibility of a third kind of matters that shall not be subject to any legal review. Further,
Art. 63(1) of the Statutes of GFA states that CAS shall not “hear appeals on violations
of the Laws of the Game, and suspensions of up to four matches or up to three months
(with the exception of doping decisions).” In other words, final decisions of a GFA
Elections Committee are not listed among those for which CAS shall not have
jurisdiction.
The Panel therefore comes to the conclusion that CAS has jurisdiction to hear this
dispute. The Panel is comforted in its view by the fact that the Respondent itself, in its
letter dated 22 November 2019, has asked CAS to issue a decision, without maintaining
any objection against the jurisdiction of CAS and without arguing any limitation of
scope of such a decision.
Finally, in addition to the above, the Panel acknowledges that the Order of Procedure,
in which it was specifically detailed that the Respondent had first objected to the
Jurisdiction of CAS but had later on asked CAS to issue a decision, without maintaining
any objection against the jurisdiction of CAS, has been signed without reservations by
both the Appellant and the Respondent.
VI. ADMISSIBILITY
The was filed three days after receipt by the Appellant of the Appealed Decision.
Besides the issue of jurisdiction, the Respondent did not raise any issue concerning the
(formal) admissibility of the appeal. Taking this into consideration and further in view of the fact that the Appeal complied with all other requirements of Article R48 of the CAS Code, including the payment of the CAS Court Office fee, the Panel is satisfied that the Appeal is admissible.
VII. APPLICABLE LAW
Article R58 of the CAS Code provides the following:
“The Panel shall decide the dispute according to the applicable regulations and,
subsidiarily, to the rules of law chosen by the parties or, in the absence of such a
choice, according to the law of the country in which the federation, association or
sports-related body which has issued the challenged decision is domiciled or
according to the rules of law that the Panel deems appropriate. In the latter case, the
Panel shall give reasons for its decision.”
The GFA Statutes are silent as to which law shall apply on any dispute submitted to
CAS. Further, the Parties have not agreed on the application of any specific national
law. In their respective submissions, the Parties refer exclusively to GFA and FIFA’s
Regulations. Taking all of this into due consideration, the Panel is satisfied that the
present dispute shall be decided primarily according to the applicable rules and
regulations of the GFA. Whether any rule or regulation of FIFA is relevant for the
present dispute is a matter that can be left open, in view of the legal considerations
below. The Laws of Ghana shall apply complementarily.
B. MERITS
I. THE ISSUES
The main issues to be resolved by the Panel in deciding this dispute are the following:
(i)
Are the “structural” arguments raised by the Appellant against the Appealed
Decision justified? I.e.:
a. Illicit composition of the GFA Elections Committee;
b. Lack of neutrality (“preconceptions”);
c. Conflicts of interest.
(ii)
Are the substantial arguments raised by the Appellant against the Appealed
Decision justified? I.e.:
a. No valid grounds to declare the Appellant ineligible;
b. No evidence to support the Appealed Decision.
II. THE “STRUCTURAL” ARGUMENTS RAISED BY THE APPELLANT
As indicated above, the Appellant argues that the GFA Elections Committee was
composed in an illicit manner, with members that were not neutral towards the
CAS 2019/A/6517 Wilfred Kwaku Osei v. Ghana Football Association – page 13
Appellant and that were conflicted in acting as members of the GFA Elections
Committee.
First, the Panel notes that the Appellant had the opportunity to bring his objections well
before the GFA Elections Committee took any decision, but he did not do so. It was
only when the Appellant filed his appeal on 7 October 2019 that the Appellant claimed
that the members of the GFA Elections Committee had “pre-existing preconceptions
against the Appellant” and a general position of bias against the Appellant.
After duly considering all the evidence produced, the Panel is satisfied that when the
Appellant submitted his candidature and filed the respective Nomination Form, dated
19 September 2019 with the relevant annexes, the Appellant seemed comfortable in
undergoing an integrity check in accordance with the GFA Statutes as well as, among
others, the “Questionnaire for Integrity Checks” that was signed and filed by the
Appellant as Annex B to his Nomination Form.
The Panel concedes that it is impossible to state that there were no potential risks of bias
by any member of the GFA Elections Committee. However, based on the evidence
produced, the Panel is satisfied that no such bias existed. The Panel is in particular
satisfied that the Appellant has been treated in a fair manner, notwithstanding the
allegations advanced by the Appellant which include, for example, the existence of a
relationship or friendship between a member of the GFA Elections Committee and other
candidates or that a law firm of which a member of the GFA Elections Committee is
part represented a counterparty to the Club of which the Appellant is President.
The Appellant has raised no arguments against the composition of the GFA Elections
Committee and its members which convince the Panel that due to the structure and the
composition of the Committee, the Appellant has been treated in an unfair manner and,
by consequence, that the Appealed Decision shall be set aside. Also, there are no valid
legal arguments advanced to question the validity of the Appealed Decision, simply
based on the fact that according to the applicable rules the Appealed Decision has been
taken by the same body that had taken the original decision. Accordingly, the Panel
comes to a preliminary conclusion that the alleged lack of neutrality or the presence of
conflicts of interest have not been established by the Appellant to the satisfaction of the
Panel. The Panel therefore rejects the “structural” arguments advanced by the Appellant
against the GFA Elections Committee and its members.
III. THE SUBSTANTIAL ARGUMENTS RAISED BY THE APPELLANT AGAINST THE APPEALED
DECISION
III.1. No valid grounds to declare the Appellant ineligible
The Appellant argues that the Appealed Decision should be set aside because there were
no valid grounds to declare the Appellant ineligible.
The Panel notes that the Appealed Decision is rather short. There are basically two
grounds that have been debated with the Appellant during the Integrity Check procedure
and on which the Appealed Decisions is based.
The first ground relies on the fact that the Appellant had signed on behalf of his club an
acknowledgement of debt and promise of payment in favour of GFA and thereafter
refused to honour such declaration.
The Panel considers this first argument advanced to confirm the Appellant’s ineligibility
not to be very strong. An owner and president to a club may have legitimate reasons to
refuse to honour a debt, notwithstanding a valid and binding obligation to do so.
Similarly, the Panel acknowledges that not honouring a debt of a club towards the
national federation may be in conflict with the aspiration to become president of the
same federation. Further, the behaviour of the Appellant and of his club does raise some
legitimate doubts, particularly given that the Appellant has not submitted any
convincing evidence to prove the legitimacy of the club’s refusal to make the payment
and his own capacity and efforts to positively influence the club’s compliance.
However, the Panel would not be satisfied that, solely based on this ground, the GFA
Elections Committee could declare the Appellant non-eligible.
The second ground on which the Appealed Decision is based is the behaviour of the
Appellant in violation of the applicable Ethics Rules of the Respondent. In particular
the argument raised by the Appellant in the public that representatives of the Respondent
and of the Sports bodies of the Ghanaian Government should have made “unclassified
payments” to match officials and that a failure to do so accounted for Ghana’s inability
to qualify for the 2018 World Cup.
On the basis of the evidence submitted, and in particular the undisputed existence of a
final decision of the Ethics bodies of the Respondent, which reprimanded the Appellant
for his public remarks, the Panel is satisfied that the GFA Elections Committee had
grounds to determine the non-eligibility of the Appellant. The Panel is of the opinion
that a person desiring to represent the GFA as President should be of irreproachable
behaviour and be in possession of a high spectrum of norms and values including full
integrity. The words quoted on Citi FM, which are not in dispute, establish a lack of the
requisite integrity for the presidency that the GFA Elections Committee properly and
reasonably relied upon.
The defences raised by the Appellant do not convince the Panel that such a
determination is illicit. In particular, the fact that the Appellant has not been sanctioned
by an Ethics body of FIFA does not mean that his behaviour was not questionable.
III.2. Conclusion
The Panel therefore comes to the conclusion that the Appealed Decision relies on valid
grounds, in particular when considering the violations of the Ethics Code committed by
the Appellant. Accordingly, the decisions rendered on 4 October 2019, respectively 8
October 2019 by the GFA Elections Committee shall be confirmed and the appeal filed
by the Appellant shall be dismissed.
The Panel finally notes the Respondent’s objective of regulating and proceeding to the
elections of the GFA in a proper and transparent manner. It is true that the GFA
Elections Committee has adopted a high stance when judging the eligibility of the
Appellant. The Panel trusts that such high standard was applied to all candidates and relevantly, no material has been produced in these arbitral proceedings to retain the
opposite. The Panel also trusts that in the future, the Respondent will continue to apply
a high standard of integrity for candidates to the GFA Presidency and the GFA bodies.
Any different behaviour would be unfair.
IV. OTHER PRAYERS FOR RELIEF
The above conclusion, finally, makes it unnecessary for the Panel to consider the other
requests submitted by the Parties to the Panel. Accordingly, all other prayers for relief,
requests and claims are rejected.
C. COSTS
Article R64.4 of the CAS Code provides:
“At the end of the proceedings, the Court Office shall determine the final amount of
the cost of arbitration, which shall include:
– the CAS Court Office fee,
– the administrative costs of the CAS calculated in accordance with the CAS scale,
the costs and fees of the arbitrators calculated in accordance with the CAS scale,
– the costs and fees of the arbitrators,
– the fees of the ad hoc clerk, if any, calculated in accordance with the CAS fee
scale,
– a contribution towards the expenses of the CAS, and
– the costs of the witnesses, experts and interpreters. The final account of the
arbitration costs may either be included in the award or communicated separately
to the parties”.
Article R64.5 of the CAS Code provides:
“In the arbitral award the Panel shall determine which party shall bear the arbitration
costs or in which proportion the parties shall share them. As a general rule and without
any specific request from the parties, the Panel has discretion to grant the prevailing
party a contribution towards its legal fees and other expenses incurred in connection
with the proceedings and, in particular, the costs of witnesses and interpreters. When
granting such contribution, the Panel shall take into account the complexity and
outcome of the proceedings, as well as the conduct and financial resources of the
parties”.
In the present case, upon due consideration of the outcome of the present appeal
proceedings and of all the circumstances of the case, the Panel is satisfied that the costs
of the arbitration, to be determined separately at a later stage by the CAS Court Office,
shall be borne by the Appellant.
In view of the outcome of this arbitration, the circumstances of the present matter, the
behaviour of the Parties during the present proceedings and the fact that no hearing was
held, the Panel considers appropriate to decide that each Party shall bear its own costs.
ON THESE GROUNDS
The Court of Arbitration for Sport rules that:
1.
The appeal filed on 14 October 2019 by Mr. Wilfred Kwaku Osei against the Ghana
Football Association (GFA) with respect to the decisions rendered on 4 October 2019,
respectively 8 October 2019 by the Elections Committee of the Respondent is dismissed.
2.
The decisions rendered on 4 October 2019, respectively 8 October 2019 by the GFA
Elections Committee of the Respondent are confirmed.
3.
The costs of the arbitration, to be determined and served to the Parties by the CAS Court
Office, shall be borne by Mr. Wilfred Kwaku Osei.
4.
Each Party shall bear its own costs in connection with these arbitration proceedings.
5.
All other or further claims are dismissed.
Seat of arbitration: Lausanne, Switzerland….
Date: 1 September 2020
THE COURT OF ARBITRATION FOR SPORT
Michele A.R. Bernasconi
President of the Panel
