In 2003, after becoming affiliated to UEFA following six years of delays and a successful appeal to the Court of Arbitration for Sport (CAS), the Gibraltar Football Association (GFA) recommenced its application for FIFA membership, which was initially lodged in 1997 (the ‘Application’).
Last September, the Application was rejected by FIFA on the grounds that Gibraltar is not “an independent state recognised by the international community” and thus does not fulfil the membership requirements set out in Article 10 of the FIFA Statutes 2014. The GFA appealed to CAS, which will hear the case in May, determining it in accordance with Swiss Law.
The key question will be whether the test in Article 10 of the 2014 Statutes applies to the Application, given that it was not introduced to the Statutes until after the Application was lodged.
According to Swiss Law and CAS jurisprudence, it is arguable that the Application must be judged against the requirements of the FIFA Statutes in force in 1997 (with which the GFA complies), as these are ‘rules of a substantive nature’ which cannot be retrospectively amended. However, FIFA will no doubt argue that Article 10 is not a substantive rule, but a procedural one and therefore the rule against retrospective application does not apply.
Even if CAS does apply the 1997 test, FIFA could still invoke the Swiss law principle of freedom of association, arguing that as a private members’ organisation, it is entitled to decide any membership application at its complete discretion.
To counter FIFA’s arguments, the GFA may be able to rely on the Swiss Civil Code, according to which, for reasons of public policy, organisations must act in good faith when exercising their rights. FIFA may not be acting in good faith if it were to exclude Gibraltar from membership despite its compliance with the requirements of the applicable Statutes, on the basis of irrelevant factors, such as the (seemingly political) opposition of the Real Federación Española de Fútbol, as seems to be the case.
The Swiss Civil Code also provides that “the manifest abuse of a right is not protected by law”; it could be argued that FIFA has abused its right to freedom of association, such that its decision may be overturned by CAS. The potential unreasonableness of FIFA’s stance is reinforced by its current membership statistics: 22 of its affiliates are not independent countries, including the Football Association of Anguilla which, like Gibraltar, is a UK dependency.
Finally, it is commonly argued that international sporting federations have a monopoly, as they have complete control over the competitions within their sport. The GFA may argue that, by refusing to accept new members, FIFA is protecting its current members from the competition of a new affiliate, in contravention of the Swiss Federal Law on Cartels.
While the decision in this matter will be interesting from a legal perspective, Gibraltar has lost all four games in its UEFA Championship qualification campaign, conceding 21 goals without scoring, therefore it seems unlikely to have a fundamental effect on the landscape of world football…
Jennifer Norris is a solicitor at Brabners
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