Wednesday, September 23, 2020

BFA failure to establish Arbitration Tribunal prejudice affiliates

Botswana Football Association (BFA) has been castigated for not creating an independent Arbitration Tribunal to deal with internal disputes that cannot be determined by the association’s already existing judicial structures.

Despite a provision by the BFA constitution for the Arbitration Tribunal to be created to deal with internal disputes, the association has neglected to create it, leaving affiliates with no place but only the Switzerland based Court of Arbitration for Sports (CAS) as the place to seek relief.

However, taking into consideration the high financial costs related to taking a matter to the CAS, BFA affiliates end up with no avenue to seek relief on some issues of bother as the BFA and FIFA constitution does not allow for football matters to be taken to courts.

The issue of failure by the BFA to establish the Arbitration Tribunal once again took prominence this past week as the BFA DC ruled it cannot help Notwane with its appeal as it had no jurisdiction.

It was the second time in a space of eight months that the BFA DC had turned down an appeal by a club to attend a matter related to clarity on BFA laws.

In December last year, Atlantic Swallows failed to convince the BFA Disciplinary Committee (DC) to deal with matters related to the interpretation of the BFA statutes with the BFA DC ruling it cannot deal with such matters.

Notwane had appealed to the BFA DC questioning the legality of the BFA’s decision not to invite it to the association’s Annual General Assembly (AGA). Notwane had sought to compel the BFA to extend them an invite to attend the AGA as Botswana Premier League (BPL) affiliates following their promotion at the end of the 2017/18 league season.

Opposing Notwane’s plea, BFA through its legal advisor contested that the BFA DC had no jurisdiction on the matter before them, saying just as it was with Atlantic Swallows, Notwane had no option but to take their matter to CAS.

“As it was said during the Atlantic Swallows case, the BFA DC has no jurisdiction over these matters. However, there is still one avenue Notwane has, to take the matter with CAS. If Atlantic Swallows, a team that plays in the dusty Southern Region Football Association (SORFA) can go to CAS, then Notwane who will be playing in the BPL can take the same avenue,” the BFA legal advisor contested.

The BFA legal advisor however said going forward, the BFA is in the process of establishing the Arbitration Tribunal ‘so that matters of this nature can go there.’

“But as it is, there is nothing that has changed. This is the same constitution that we looked at last year December, similar facts, nothing has changed … but unfortunately, we cannot assist Notwane, and we really want to assist Notwane but we can’t,” the BFA legal advisor argued.

Quizzed by the BFA DC on how matters brought on urgency should be dealt with as the BFA constitution does not allow them to be taken to the courts of law and the Arbitration Tribunal is non-existent, Hule had this to say: “Unfortunately the member will have nowhere to go. Unfortunately, that is the position we find ourselves in,” the BFA legal advisor said.

Reached to comment on why the BFA had failed to establish an Arbitration Tribunal despite provision for such as well as the apparent need following the Atlantic Swallows case, BFA Public Relations Officer (PRO) Tumo Mpatane had this to say;

“The BFA constitution is currently undergoing review to align all regulations of the BFA with both FIFA and CAF statutes.  Depending on the outcome of the review, appropriate and necessary action will be taken.”

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The Telegraph September 23

Digital edition of The Telegraph, September 23, 2020.