News Analysis: FIFA interferes with CONCACAF election, what will CAS do?

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By James Dostoyevsky

May 5 – The ban of CFU President Gordon Derrick, which prevents him from running for CONCACAF president, is possibly one of the most lawyered documents we have seen of late. But it is a tale of law and its manipulation that is not over as the Court of Arbitration for Sport (CAS) is to be asked to rule on the case.

FIFA, the world governing body of football, which labours away, at times questionably, by trying to rectify its past malfeasance (and not particulalrly succeeding in its recent attempts), has produced a remarkable judgement in its banning of Derrick de facto from running for CONCACAF President.

Of course FIFA cannot ban him from running for that office directly.

CONCACAF is one of the six confederations that are not members of FIFA but regional competition organizing bodies (with UEFA always having tried to be a governing body juxtaposed to FIFA, so far unsuccessfully – but hey, now their own former employee runs FIFA…).

As such, FIFA has no jurisdiction over CONCACAF’s affairs – a fact serially pointed out by former FIFA president Blatter, who always decried how he and FIFA were unable, and prevented in law, from doing anything about CONCACAF and CONMEBOL corruption.

And since FIFA has no legal grounds to order CONCACAF to do anything at all, Domenico Scala, who it is rumoured was anglig for the job of new FIFA General Secretary, has used all of his (lawyers’) skills to interfere without interfering.

This resulted in some pretty interesting verbal gymnastics that led Derrick to throw in the towel, before even wiping his face with it.

What FIFA (Scala et al) did, and that is something they could do (well, kind of…) is ban Derrick not from running for CONCACAF president but for a high FIFA office.

Thing is, that running for Membership in the FIFA Council (the renamed ExCo), as a Vice President, would have implied Derrick winning the Presidency of CONCACAF: the CONCACAF President is automatically delegated into the FIFA Council as a FIFA Vice President. But to make certain that Derrick would not run for anything in FIFA’s fiefdom, Scala sent a second letter and decided that Derrick was not permitted to run for ANY position on the new Council. Funny, that he did not send either letter directly to the man concerned…

Hence Scala (thinks he) pulled a master fast-one by ruling that poor Derrick was not qualified to “run for FIFA Vice President nor Member of the FIFA Council”, which basically eliminated him from running for CONCACAF President.

Scala’s (FIFA’s lawyers’) reasoning will now be before CAS and should be quite interesting when tested in law: Derrick’s legal team filed their case before CAS a few days ago, we are told.

So, let’s review what all this means – and the reasons for this astonishing ban.

  • Scala banned Derrick from ever becoming a Member of FIFA’s new Council at a time when he, Derrick, was not even close to qualifying for such a post.
  • Not only was Derrick not running for FIFA Council Membership, he ran for CONCACAF’s presidential job – which has nothing to do with FIFA: not in law, not in structure, not in anything.
  • Hence, FIFA banned Derrick preventatively from a future Council Membership, before he would even have attempted to become a FIFA Member in its new Council
  • Duh
  • And the reasons given? For one, Scala referred to a slap-on-the-wrist-“reprimand” issued in 2011 after the Bin Hammam/Jack Warner fiasco, where Bin Hammam allegedly had Warner distribute cash funds to CFU Members (Bin Hammam challenged that allegation and won before CAS …just in case the collective memory had lost that fact). Derrick’s mortal sin at the time, always per FIFA explanations, was that he did not cooperate with the private cops FIFA had hired (the Freeh Group). For that he got his reprimand and paid a 300 CHF fine. But because the reprimand – in FIFA’s own verbiage – was so small, Derrick was prevented from appealing it. Yet now, five years later, FIFA use that old matter – which was not appealed because FIFA prevented Derrick from appealing since it was a very minor offence – as the first reason to prevent him from ever becoming a FIFA Council Member. But wait: a matter so small that he was prevented from appealing, is suddenly so big, so important that FIFA ban him from running for any FIFA Council Membership? Really?
  • Next reason was a pretty major broadside against Derrick, and Scala didn’t shy away from making reference to an “ongoing investigation for financial mismanagement”. This, for a man who sits on two bank boards, is devastating news. What it also does, is possibly prevent him from serving on those boards in the future. What it also does, is similar to the famous Bosman case where a footballer successfully pleaded that because of football rules and rulings, his ability to make a living and feed his family was substantially endangered, if not eliminated.
  • But Scala went much further: elsewhere, he delivered this bombastic statement of late: “In order to protect any investigations we can however not indicate if we have or have not preliminary investigatory proceedings against an individual.”
  • So, wait… if on the one hand, FIFA cannot state that they are actively pursuing a preliminary investigation against an individual, but in Derrick’s case, they do exactly that?
  • Why would Scala go that far, so far really that he abuses FIFA’s own maxim, which FIFA quoted only a short while ago?
  • Why is Derrick an exception to the rule that says: “In order to protect any investigations we can however not indicate if we have or have not preliminary investigatory proceedings against an individual.”

There are many reasons, many motives and many suspicions surrounding this case.

MAs speak of intimidation.

Others speak of deals being cut by CONCACAF members who have very personal fights to fight – and are therefore easily swayed to do as the Masters say they should do.

We shall watch carefully how this ridiculous saga ends. And we shall observe how rules are bent further only to create a scapegoat who may not be able to defend himself. Well, that part of the assumption may have been a serious error of judgment on the part of FIFA and others further afield.

Contact the writer of this story at moc.l1574277471labto1574277471ofdlr1574277471owedi1574277471sni@o1574277471fni1574277471