Controversy in African football: Why the 2019 Champions League final highlights fundamental concerns over due process at CAF
“You are what you do, not what you say you'll do.”
Carl Gustav Jung
This article reviews the events arising out of the 2019 Confederation of African Football (CAF) Champions’ League Final between Espérance de Tunis (Espérance) and Wydad Athletic Club Casablanca (Wydad), which began when Wydad left the pitch following a disallowed goal that the referee declined (or was unable) to review using VAR technology.
The incidents and decisions that followed raise a number of issues worthy of analysis. The question of what exactly happened to the VAR system (and what the regulations state should happen if the system is not operational) is intriguing. However, this piece instead focuses on broader concerns over the decision-making processes that followed the debacle, which cast a critical light on the federation’s commitments to due process and proper separation of powers.
It is worth noting at the outset that a lot of the reporting on the final has been so partisan1 that it is difficult to know exactly what happened at the second leg of the Final held in Tunis on 31 May (or even at the first leg of the final in Rabat, which also saw its own VAR controversies2and the refereeing heavily criticised).
Espérance went into the second leg leading 1:0. The match (and so the title) was awarded to Espérance by the referee (Bakary Gassama of Gambia) after their opponents, Wydad, left the field of play and refused to return. This followed what appeared to be an equalising headed goal by Wydad that was disallowed. There is some uncertainty over why it was disallowed: it seems to be clear that the scorer, el Karti, was not offside, but there are suggestions he may have fouled a defender.
The Wydad team implored the referee to review the decision using VAR technology. The referee refused to do so, which seems to be because the system was not operational due to technical issues. There are also reports of difficulties with its transportation3 from the first leg. According to the Espérance team captain, both teams knew the system was not operational before the game and started the match anyway. According to other reports, the players did not know the VAR system was not working, with Wydad chairman, Said Naciri, reportedly saying “[w]hy would we have asked for VAR to be used if we were informed that it was not operational in the first place?”4
Chaotic scenes then ensued as the Wydad substitutes and head coach, Faouzi Benzarti, flooded onto the pitch to join in the protest. When this did not have the desired effect, the entire Wydad team left the field and refused to return.
Reportedly, CAF President Ahmad Ahmad and other senior CAF officials then tried to convince the teams to continue the match but ultimately failed. After a lengthy delay the referee awarded the match to Espérance (who also led 2:1 on aggregate at the time).
The media commentary has ranged from attacks on the match officials, CAF as the organiser, Tunisia as host, Espérance for sabotaging the VAR system5, and even Hawk-Eye6, the providing company; to articles lauding the achievements of Espérance for successfully defending their title without losing a match and blaming Wydad for the charade. The Wydad narrative has it that the CAF Champions League Regulations7 mean that the absence of a working VAR system meant the match had to be awarded to Wydad8; whereas others in favour of Espérance refer to the International Football Association Board’s Handbook, which apparently say, or mean, the very opposite.9 Needless to say, the whole episode left a very bitter aftertaste, and an overarching feeling among the African footballing community of embarrassment, shame, anger and frustration.
Intervention by CAF Executive Committee and appeal to the Court of Arbitration for Sport (CAS)
The on-field controversy was followed on 5 June by perhaps an equally controversial off-the-field decision. In an unprecedented move, the CAF Executive Committee ordered that Espérance return the trophy and medals and that the match be replayed at a neutral venue. The decision followed a lengthy Executive Committee meeting in Paris, after which CAF presidential advisor, Hedi Hamel, stated:
"The playing and security conditions were not met during the second leg of the CAF Champions League final, preventing the match from reaching its conclusion.As a result, the match will have to be replayed at a ground outside of Tunisia… (and) Esperance will have to the give trophy back.The match will be played after the CAN (Africa Cup of Nations) at a date to be determined” 10
Unsurprisingly, the decision pleased no-one. Both Espérance and Wydad believed that they were the rightful winners, and accordinglyboth teams challenged the decision before the CAS. Commentators were equally bemused, questioning the legal and regulatory basis for CAF Exec Co’s intervention. Even Tunisian Prime Minister Youssef Chahed tweeted that the decision was a "farce".
On 1 August 2019, the CAS rendered its award in the appeal, declaring the decision by the CAF Executive Committee a nullity because it lacked jurisdiction to make such an order. The CAS then directed that the dispute be referred to the appropriate CAF tribunal to assess the merits of the case and decide the way forward:
The CAS Panel in charge of this matter has considered that the CAF Executive Committee did not have jurisdiction to order that the second leg of the final be replayed and has decided to annul the decision challenged. The appeals of both clubs are therefore partially upheld for that reason.
It is now for the competent CAF authorities to review the incidents which occurred in the Radès stadium on 31 May 2019, to order the appropriate disciplinary sanctions, if any, and accordingly to decide whether the second leg of the CAF Champions League Final 2018/2019 shall be replayed or not.11
Referral to the CAF Disciplinary Board
The case was then duly referred to the CAF Disciplinary Board, who found12 that Wydad were guilty of abandoning of the match and so awarded the match to Espérance (essentially upholding the referee’s decision). They also fined13 Wydad $50,000 USD for abandonment of the match and a further $15,000 USD for the use of flares by the supporters.
Espérance did not escape unscathed either. They were fined $50,000 USD for the use of smoke and projectiles and the unsporting behaviour of their supporters and ordered them to play their next two home interclub matches behind closed doors for the excessive use of smoke and firecrackers. This part of the sanction was suspended provided Espérance are not found guilty of a similar offense for the next twelve months.
The President of Espérance was fined $20,000 USD and warned for his unsporting behaviour against the President of CAF.
Analysis of CAF’s regulatory framework for decision making
While the matter now appears to be finalised (subject to any appeal, and perhaps lingering questions over what exactly happened with the VAR) it has seemingly exposed – or perhaps some would say highlighted – the CAF Executive Committee’s lack of regard for the rules and due process.
Yet if we examine the relevant regulations, there seems to be no doubt which body is responsible for dealing with scenarios such as this.
The CAF Statutes
The CAF, like many continental sports regulatory bodies, is a creature of and is governed by, its own statutes and related regulations or policies. The CAF Statutes15 establishes the CAF and its various committees and bodies, and sets out their respective powers.
The CAF General Assembly is the supreme structure, and legislative body, of the CAF.16 It is followed by the CAF Executive Committee which is the executive authority of the organisation.17 The day-to-day administration of the CAF is the responsibility General Secretariat.18 There are other committees or bodies, but of particular relevance to this article are the Disciplinary Board and the Appeal Board.19 To ensure fundamental fairness, and checks and balances on power, these legal bodies are (and must be) separate from and independent of the other bodies or committees, especially the CAF Executive Committee.
If it is of a disciplinary nature, it must be for the Disciplinary Board
The Disciplinary Board’s powers are set out in the CAF Disciplinary Code. Pursuant to this, the Disciplinary Board has general jurisdiction to
"sanction any breach of CAF Regulations which does not come under jurisdiction of another body of the Confederation.”20
This applies to every disciplinary case and supersedes the regulations of every competition organised by the CAF.21
The Disciplinary Board has the power to impose an array of sanctions which include monetary fines, annulment of the result of a match,22 awarding a match by default,23 among many others. A party that is “affected by a decision [of the Disciplinary Board] or has a direct interest and was a party to the decision justifying amendment or cancellation of the decision may submit[an appeal] to the Appeal Board.”24
Interested parties include national associations and they can appeal against decisions sanctioning their players, officials or members.25 An appeal against the decision of the Appeal Board must be submitted to CAS.26
The CAF Champions’ League Regulations
The CAF Champions League is the premier tournament for Africa’s continental football clubs. The winner gets the bragging rights as the continental club football champions and the right to participate in the FIFA Club World Cup
The Champions League is regulated by the CAF Champions League Regulations. These regulations mainly regulate technical matters such as the qualification process and how the tournament is structured. The CAF Champions’ League matches are played in terms of the Laws of the Game as determined by the International Football Association Board (IFAB) from time to time.27 Like any other CAF tournament, the Champions League is subject to the CAF Disciplinary Code.
A sufficient regulatory regime
Accordingly, the CAF has a perfectly sufficient regulatory regime equipped to ensure that disputes concerning the application of its rules, or relating to its competitions, are dealt with by the appropriate body: namely the Disciplinary Board.
And eventually we seem to have arrived at the correct body confirming the original decision of the referee; a decision that appears to be rooted inArticle 148 of the CAF Disciplinary Code that specifically deals with the abandonment of a match and the applicable sanctions:
"if a team refuses to play a match or to continue playing one which it has begun, it will be sanctioned with a minimum fine of twenty thousand US dollars ($20 000) and will, in principle, forfeit the match.”
It should be noted that the Disciplinary Board only released their decision, not their full reasons, so we do not know if or to what extent they addressed questions over what exactly happened to the VAR system, what the teams knew, and indeed what the proper process is if the system is not operational. Instead, they seem to have focused on the abandonment and other misdemeanours. While this is another interesting area for analysis, the remainder of this article will instead focus on the bigger question of: “how did the CAF end up with this drama?”
Comment - are the problems symptoms of a larger rot in African football?
There are partisan views on the source of the problems and the drama.
For most Moroccan journalists the entire thing smacked of bias. The behaviour of CAF officials, the match officiators, technical issues relating to VAR - all were symptoms of a bigger problem of improper influence at CAF.
Safaa Kasraoui, a journalist at Morocco World News, wrote, on 2 June 2019, that speculation concerning inappropriate lobbying had been echoed by the former President of Espérance de Tunis, Slim Chiboub. Chiboub is said to have acknowledged (improper?) Tunisian influence at CAF. According to Kasraoui, Chiboub said:
“We do influence…. We have always been influencing in the CAF,” Chiboub said referring to Tunisia’s influence on CAF decisions.
“We are there to influence. When the federation put a member in (in the confederation) isn’t for protecting its interests? When someone is elected (to the CAF board), he goes there to serve the interests of his country; if there is a good referee he brings him, if there was any bad referee he should put pressure so he won’t be appointed…. This is the mission done behind the scenes.”28
After the furore following the abandoned final, CAF President Ahmad Ahmad speculated that this may all be part of a“conspiracy” against him. He told Morocco’s Mountakhab Newspaper he was“surprised and angry against all the issues that happened so fast. It appears that there has been something going down against me.”29Reportedly FIFA President Gianni Infantino weighed in on the final saying that the“incident was unfortunate” for Africa’s credibility. Ahmad then called for the emergency meeting of the CAF Executive Committee on the 5 of June 2019 in Paris.30
What of adjudication? Administrative justice? Access to justice? For the teams, the match officials?
There are obvious difficulties with the decision of the CAF Executive Committee to overrule the referee’s decision to award the match to Esperance and order a replay of the abandoned match.
But the more fundamental question is: why wasn’t there a proper hearing? There were clear disputes of fact; there were arguments about the rules that apply; and about the nature of the relevant rules.31 A just decision could only conceivably be made after these aspects were properly canvassed before a properly equipped independent body (not a political one). For most of us that would seem pretty obvious, one would think. And few outside of football (or sport perhaps) would accept that the CAF Executive Committee could decide the facts, appropriate rules and their meaning, and arrive at an acceptable award/sanction in circumstances in which serious allegations of bias, political interference and conspiracy have been made against the CAF President and that very body? Particularly after the CAF President had actually involved himself in the events on the field at Tunis. The deeper question is how could it ever be lawful for the Executive Committee to usurp the powers of the legal bodies?
We all hoped the end of the Sepp Blatter FIFA heralded a new dawn for governance of the game. The work of the indefatigable journalist, Andrew Jennings,32 and the Federal Bureau of investigation, meant the nature and extent of the"rampant, systemic, and deep-rooted”33 corruption in world football could no longer be denied. But while certain individuals faced prosecutions of various sorts, it was plain that real change would require a frank assessment of the governance shortcomings that had allowed these things to happen. A fundamental change in approach was required. Central to any such change would have to be a proper appreciation and implementation of the doctrine of separation of powers and rule of law (albeit catering for the specificity (such as there is) of sport generally and elite football in particular).
When Gianni Infantino was elected FIFA President in February 2016, he spoke of a commitment to change. In the same month the FIFA Congress approved wide ranging reforms.34 Certain principles were said to be key to a reformed FIFA. Separation of powers was one of these. Separation of powers may seem mundane (and it is quite obviously necessary) but committing to the doctrine (in fact) was a start. While there had been talk of the doctrine – and the rule of law in general – adherence to it in practice was certainly not top of mind. And so, if these words were matched by “doing” this was truly a new dawn for football. It held out the hope of a movement away from arcane (and corrupt, or at least enabling) customs and practices towards a system of checks and balances and proper appreciation for the rights of all participants. 35
Separating executive power from the adjudicative/judicial.
The concept of, and need for, separation of powers (generally considered in respect of public bodies and/or power) is well established.36 While there are obvious differences in approach, four principles are generally stressed:37
The principle of separation of personnel so that each component is separately staffed and a person serving in one component is disqualified from serving in any other;
The principle of the separation of functions which requires that every component be entrusted with its appropriate functions only;
The principle of checks and balances so that each component be entrusted with special powers designed to keep a check on the exercise of functions of others.
The doctrine of separation of powers is recognised in the founding documents and regulations of FIFA (and CAF for that matter).41 So it is really about enhancing, protecting and respecting these processes. And then going further to ensure that founding documents and rules are clear, the practices of executive bodies accord with these and ensure that when there are disputes these are actually referred to independent adjudicate bodies. And of course, that the members of the latter bodies are truly independent. It is about doing - not just saying. And the doing must be second nature – particularly to Executive Committee members responsible for ensuring change in football.
The failure (or refusal) to accept, apply, and respect the rule of law and its requirements come from attitudes that have held sway in sport for a very long time. Writing of opposition to the general requirements of the rule of law and why these attitudes are often prevalent (and entirely understandable) in what he referred to as“miniature legal systems”42 Lon L. Fuller wrote in his “The Morality of Law”43 –
“Often managerial direction is accompanied by, and intertwined with miniature legal systems affecting such matters as discipline and special privileges. In such a context it is a common-place of sociological observation that those occupying posts of authority will often resist not only the clarification of rules, even their effective publication. Knowledge of the rules, and freedom to interpret them to fit the case at hand, are important sources of power. One student in this field has even concluded that the ‘toleration of illicit practices actually enhances the controlling power of superiors paradoxical as it may seem.’ It enhances the superior’s power, of course, by affording him the opportunity to obtain gratitude and loyalty through the grant of absolutions, at the same time leaving him free to visit the full rigour of the law on those he considers in need of being brought into line. This welcome freedom of action would not be his if he could not point to rules as giving significance to his actions; once cannot, for example, forgive the violation of a rule unless there is a rule to violate. This does not mean, however, that the rule has to be free from obscurity, or widely publicized, or consistently enforced. Indeed, any of these conditions may curtail the discretion of the man in control – a discretion from which he may derive not only a sense of personal power but also a sense, perhaps not wholly perverse, of serving well the enterprise of which he is a part.”44
FIFA appears to have embraced the challenge of addressing these attitudes.45 There is plenty of guidance to be had for any governing body keen to do the same.46 A necessary part of a true separation of powers is a truly independent adjudicative body to resolve disputes that arise; precisely the kind of body that could determine the facts in respect of the Tunis leg of the CAF Champions League final on 31 May 2019, and the appropriate consequences. CAF seemed, in 2017, to have committed itself to the very same reforms as FIFA. The CAF Disciplinary Board is provided for in the CAF Statute and has certain powers as outlined above. Presumably the Disciplinary Board could establish the facts, apply the appropriate rules, and do so in a manner that ensured all parties were afforded an opportunity to be heard. Why was that body not engaged in the first place – rather than having the CAF Executive Committee hurriedly hand down a decision on another continent.
When Ahmad Ahmad of Madagascar defeated incumbent Issa Hayatou of Cameroon (who was bidding for an eighth term as President) and became CAF President in March 2017, separation of powers was clearly on the agenda. In May 2017 after Ahmad reportedly refused a salary he said:
“The salaries of all CAF employees, from administrators to the executive committee and president, all have to be transparent. The reform of the administration is very important, everyone must know what is happening. First we must review the standards of management so that we can apply the reforms. I'm sorry to tell you when I was part of the CAF Executive Committee there was no separation of powers - the judicial body, the executive one and the congress - and we have to respect the independence of each body ". [Emphasis and underlining is added].
Ahmad also highlighted that:
" There is a big tendency to monopolise power in the Executive Committee. It has to be reviewed and reformed with new statutes for CAF so that everyone can concentrate on their proper tasks ." [Emphasis is added]
The election of a President who actually understood the need to respect the separation of powers and role of the CAF legal bodies or judicial arm was cause for hope. Separation of powers, respecting the judicial process, avoiding the monopolisation of power in an Executive Committee - these are matters that can be addressed practically, can be enhanced, and unacceptable power mongering can be brought to an end.
But what did the CAF Executive do?
When the time came todo separation of powers, to refer the issues that arose in the CAF Champions League final for adjudication, to avoid monopolising power at Executive Committee level … an urgent meeting of the CAF Executive Committee took a decision that poses more questions than it answers.47
Quite apart from the need to do what all the talk of respect for the principle of separation of powers required, this was clearly an instance where the competing allegations, and apparently conflicting (or misinterpreted) rules, cried out for independent adjudication. How could a political body (the CAF Executive Committee) decide the matter unless they accepted a particular narrative, or thought the best way to avoid dealing with allegations of bias and improper influence was to arrive at a political “compromise”?48
In South African for example, the Courts have in recent times applied administrative justice principles49 to decision-making by sports’ governing bodies, and so tested decisions as to their lawfulness, reasonableness and procedural fairness.50 A decision by a body that is not competent to decide a matter cannot be lawful. The CAF Executive Committee decision of the 5thof June 2019 was not, as has become apparent, a decision that body could, or should, have made. It would not have been too much to expect that the CAF Executive Committee members (each of those who participated in the decision), or at least Ahmad, who made the commitments referred to,51 would have insisted that the disputes and differences that arose be determined by the independent legal body or dispute resolution mechanisms provided for in the CAF Statute or relevant regulations.
What does it mean to say you are committed to the doctrine separation of powers, but then, when a dispute arises, to ignore that commitment?
Jung would no doubt have an answer.
Reporting on whether change is being pursued at all levels of the game is admittedly not as sexy as the shenanigans of venal administrators, but scrutiny of progress on this score is crucial if there is to be change for the better. Holding governing bodies to what they say about separation of power and the rule of law would be a good start. Unless, deep down, we all actually prefer the advantages that come from arbitrariness? And the sexy stories that follow?
The authors would like to extend their sincere thanks to Michael Murphy for his help in producing this article. Michael is Legal Counsel for the Premier Soccer League, South Africa and has been a practising sports lawyer for over twenty years. He led the litigation in South Africa which ended the then “retain and transfer system” which limited players freedom of movement.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
Chris is the Editor at LawInSport, and takes responsibility for the review of content in conjunction with the Editorial Board. Prior to joining LawInSport, Chris graduated from Nottingham University, and trained and worked as a litigation lawyer at King & Wood & Mallesons SJ Berwin.
Director, Maseko Murphy Njilo & Razano Inc.
Farai is a director at Maseko Murphy Njilo & Razano Inc. His practice focuses on sports law and entertainment law. He has acted for individual athletes, football clubs, sports associations, and several clients in the film and television industry. Farai has advised and acted for various clients before national and international specialist dispute resolution tribunals. He has also acted as a Prosecutor for the South African Institute for Drug-Free Sport and Boxing South Africa.