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  • The CSA, FIFA and Alberta: A Hypothetical Worst-Case Scenario


    ccs-3106-140264008098_thumb.jpgAnyone who follows Canadian soccer will be stirred by the happy goings-on in the past few days: we were awarded the 2015 Women's World Cup and, even if CONCACAF didn't get a fourth spot for the 2014 World Cup, we didn't lose anything either. On balance, we come out ahead.

    Anyone who reads this site regularly should be familiar with Ben Knight's fantastic efforts to expose the festering sore that is the Alberta Soccer Association (ASA) governance debacle. And, if you're paying attention, you might have realized that Friday's development in that mess – the thunderous judgment handed down by and Alberta court – could be very, very bad for Canadian soccer indeed. If have a hugely pessimistic and hypothetical imagination, like me.

    Forget the good week we had, there could be dark clouds on the horizon.


    The Background

    Without going into too many details of the twisting and turning tale (you'll find the whole story over on Ben's page), the gist is this that, last year, the ASA elected a reformist president. Non-reformist elements in the ASA suspended the president and his supporters, allegedly with the backing of the CSA. The ousted president and his supporters took the issue to court; the CSA is alleged to have pressured ASA members not to join the lawsuit or to act as witnesses for the litigants.

    It all played out in the litigious he-said-she-said manner that such things do, and, being a matter of provincial soccer in Canada, got no real attention from the mainstream press. (More kudos, then, to Ben for taking up the task.) But a judgment that came down on Friday, relating to an appeal on the reformists' part, hints at possible repercussions that could have an impact across the Canadian soccer landscape.

    The Judgment

    Friday's judgment overturned a previous decision to stay a judicial review of the whole mess. Of particular note, the judgment (find the whole thing here) also made a special note of a legal issue that – while it was not relevant to the specific appeal at hand – it couldn't let go unmentioned. Specifically: criminal obstruction of justice.

    From the judgment (note: "respondent" = CSA):

    There is another important aspect which the reasons of the chambers

    judge did not discuss,

    but is relevant to both sides of the balance of convenience (and likely to

    irreparable harm).

    Everyone in Canada has a constitutional right of access to Her

    Majesty’s courts as a litigant or as a witness. The punishment impending here (and imposed against the

    other litigants in the parallel proceedings) is for doing just that.


    One must also note s. 139(3) of the Criminal Code on obstruction of

    justice by attempting to dissuade someone from giving evidence, by means

    of threats.

    We must emphasize that the issue here is not merely litigating in

    some forum topics such as who has jurisdiction, or when proceedings

    are premature. This is a question of express threats to harm someone for

    going to court or acting as a witness in court. Or of punishing him for

    having done so and (partly) won.

    This is not judicial review of a jurisdiction decision, still less

    judicial review of a decision

    on the merits of an election. It is judicial review of punishment for

    merely having gone to court. The respondent is going beyond

    supervising the superior court, which would be

    upside down. It is emasculating the superior court.

    Now, I'm not a lawyer, and that's just so much legalese. But what I glean from it isn't good. Contravening section 139(3) of the Criminal Code (find it here) is no mean matter.

    Here's what could, maybe, hypothetically, if you want to see the darkest of all domino effects, go wrong.

    The Worst-Case Scenario

    Again, I'm no lawyer, so I'm not even going to try to speak to the legal ramifications to the parties involved under Canadian law. And – of course – I'm not actually accusing the CSA or anyone involved in the CSA of anything: that's the job of the courts. Moreover, the CSA isn't on trial and as far as I know the organization and its members have done nothing illegal. I'm just looking at the judgment handed down on Friday and setting out a series of "what ifs?"

    The judgment, from what I can tell, frees up a judicial review into whether the CSA (the respondent) "emasculated the senior court," and issued "express threats to harm someone for going to court or acting as a witness in court." What if, when it's all said and done, that is proved? What if the courts find individuals within the CSA to be implicated personally? Even senior people in the CSA? That's a big black mark on the face of Canadian soccer.

    But it could get worse from there: FIFA is sure to be watching developments. As we've seen in the past, FIFA takes a very hard line against government meddling in the running of national soccer associations. If Canadian courts intervene in CSA business, would FIFA step in – even to suspend the CSA?

    Sound unlikely? I hope it is. But it FIFA does seem to take a very dim view of the idea that national FA's should be subject to the courts of their countries – Friday's judgment itself makes note that the CSA "[gave] evidence (likely hearsay) that an international body may discipline them if they do not discipline the appellants." And FIFA is not afraid to flex its muscles against what it sees as "government involvement" in a national FA.

    Any court actions that might come against the CSA might not be "government interference" in the same vein as with Iraq or Peru, that's true. But the last thing FIFA needs is another scandal. Especially with the brouhaha about the Qatar's hosting of the 2022 World Cup, FIFA will be loathe to be seen as having just handed the 2015 WWC to a scandal-ridden association.

    So let's pretend the CSA gets suspended by FIFA. (And who knows when that could even happen? On the one hand, legal business takes a long time; on the other, FIFA may want to act before things are too far gone.) What would it mean?

    Goodbye to this summer's Gold Cup? Goodbye to Germany 2011? Maybe that's too soon, even for the doomsday scenario I've got going here.

    Goodbye 2014 World Cup qualifiers, slated to kick off later this year or early in 2012? It's not impossible.

    Goodbye 2015 Women's World Cup? Maybe FIFA decides to sate the anti-corruption dogs at its door and make an example of Canada. We could prove a tempting target: we carry no great weight in international soccer, and no one will cry for us if we get the chop.

    What else? If CSA bigwigs topple in scandal, how will that affect governance reform? It could potentially boost it, true, by scandalizing and ousting a few bad apples, and by blowing in undeniable winds of change. But it could quash reform, with the skittish CSA opting to dig in, batten down the hatches and put off any major changes.

    Goodbye to all of the progress of the last few years?

    A Brighter Outlook

    The CSA knows that FIFA is watching. They know that reform is in the air and that any of the cronyism of years past won't fly anymore. Being – for all our complaining – comprised overwhelmingly of good and decent men and women working honestly for the betterment of soccer in Canada, the CSA could act swiftly and decisively against again anyone who turns out to be guilty of something nefarious.

    Maybe, then, the CSA purges itself, and FIFA doesn't intervene from above, as it were, could be avoided. Criminal proceedings may or may not continue against individuals, certainly, but the CSA as an organization could be spared.

    And we all look back on this mess as the death rattle of the pre-reform era in Canadian soccer.

    Here's hoping.

    Note: Please forgive the preponderance of question marks, and overuse of the words "hypothetical" and "what if," but I think you'll all understand my desire to stay firmly on the legalistic safe side here, now that that the lawyers are out in full force.

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