By Alexander Dolsingh , University of the West Indies, Cave Hil Campus, Barbados, and Aaron Morales LLB, University of the West Indies. St Augustine Campus, Trinidad and Tobago.
Judicial review is the principal mechanism through which the courts exercise their supervisory jurisdiction over, inter alia, public bodies or those which exercise public duties.
A fetter is, therefore, imposed on these bodies and their exercise of power with the chief objective of ensuring that the decision-making process in question is a lawful one, that is, one that is not tainted by illegality, procedural impropriety or irrationality.
The increased commercialisation of sport has required sporting bodies to improve their administrative capabilities such that decisions are made in a robust, equitable and efficacious manner. Central to this development is the expectation that sporting bodies will have a fair and efficient dispute resolution forum through which sporting disputes can be ventilated.
The issue of whether Sports Governing Bodies (SGBs) are amenable to judicial review has been subject to extensive academic and judicial exegesis. The Jockey Club cases in the United Kingdom (UK) have pronounced on the issue, holding that such bodies are not amenable to the jurisdiction of domestic courts. This has remained good law within the UK for over the past two decades, albeit subject to some academic criticism.
Caribbean Courts have been confronted with the same issue, upon which the majorityhave ruled in alignment with the UK’s position. Notwithstanding this, however, some regional courts have held that SGBs are, in fact, subject to judicial review, thereby creating some element of doubt as to the true legal position within the region.
This article seeks to examine the case of Fédération Internationale de Football Association v Trinidad and Tobago Football Association (the TTFA case) in an effort to determine whether it potentially sounds the death-knell for judicial review of SGBs within the Caribbean region.
Existing Case Law
Most regional courts have ruled that SGBs are private entities, whose decisions are not amenable to judicial review.
In La Clery Football League, for example, the St Lucia Football Association was held to be a private body and, therefore, not amenable to judicial review. Cottle J, in substantiating his decision, noted that the rules and regulations of the Association were drafted internally, and that its decisions flowed from the consent and consensus of members.
In a similar vein, the Barbados Court of Appeal has ruled that the decisions of the Barbados Cricket Association cannot be judicially reviewed. It outlined two primary factors which militated against the Association being captured by judicial review:
(1) it did not enjoy exclusive control of cricket in Barbados; and
(2) the Barbados Cricket Association Act established that the Association was a body corporate whose governance documents were solely applicable to its members, thereby underscoring the private nature of the body’s operations.
The source of SGB power is another indicum of its nature and susceptibility to judicial review. Thus, in Ramdial, a decision of the Disciplinary Committee of the Trinidad and Tobago Racing Authority could not be reviewed by the High Court, since the body’s powers stemmed from a purely contractual agreement between the parties in question and, accordingly, fell outside the realm of public law.
Put differently, the matter was of a private nature. Notably, however, even if an SGB derives a statutory source of power, the relevant statutory provisions would have to influence the body, so as to enable it to be ‘woven into the fabric of public regulation’.
On the other end of the spectrum are the cases of Griffith v Barbados Cricket Association andKeith Look Loy v Trinidad and Tobago Football Associationwherein the respective sporting bodies were held to be amenable to judicial review.
In Keith Look Loy, the court echoed that an entity’s source of power is a pivotal consideration and ultimately held that the Association, in question, was subject to the domestic courts of Trinidad and Tobago, having been incorporated by an Act of Parliament. Interestingly, although the court in Griffith found that the body, in question, was not a creature of statute, as it derived its power from a contractual source, it nonetheless ruled that the matter could be heard before the High Court.
In short, the cases of Keith Look Loy and Griffith both concluded that the decisions of the respective sporting bodies were amenable to judicial review but diverged in terms of how those conclusions were arrived at.
Beyond the Caribbean, the Indian courts have also addressed this issue and have endorsed a sharp interventionist approach. In Board of Control for Cricket in India (BCCI) v Cricket Association of Bihar, it was decided that cricket, being a ‘public good’ in India, provided a strong basis for the Board of Control for Cricket in India (BCCI) to be susceptible to judicial review. This judgement is particularly interesting as one may postulate that cricket can also fall within the parameters of a ‘public good’ in the Caribbean context. In fact, in Ramnarine v Trinidad and Tobago Cricket Board of Control (TTCB), the court expressed that cricket is a sport which is ‘intricately woven into the cultural and social fabric’ of Trinidad and Tobago and the wider Caribbean region.
The TTFA Judgement: A landmark decision for SGBs in the Caribbean region?
The legal dispute between the Trinidad and Tobago Football Association (TTFA) and the association football world governing body, Fédération Internationale de Football Association (‘FIFA’), arose following the FIFA decision to appoint a Normalization Committee in place of the elected executive of the TTFA, after it was found that the TTFA was devoid of proper internal control and in a poor financial state having incurred $TT50M in debt.
The ousted executive sought to challenge this appointment before the Court of Arbitration for Sport (CAS) but later withdrew its application, alleging that FIFA did not demonstrate its willingness to proceed. The TTFA also questioned the apparent institutional biases shown by CAS in so far as the CAS demanding that TTFA pay the full advance costs of the arbitration. Consequently, the matter was brought before the High Court of Trinidad and Tobago.
The High Court ruled in favour of the TTFA. It pointed to the fact that the TTFA was a statutorily created corporation which effectively brought it into the realm of public law. Moreover, it noted that Parliament would have expressly outlined if FIFA’s statutes intended to oust the jurisdiction of the courts, but that this was not the case. In this regard, the position countenanced in Keith Look Loy was largely adopted.
On appeal, however, the ruling was subsequently overturned. Amongst other things, the Court of Appeal declared that the High Court erred by refusing to stay the domestic proceedings so as to allow the matter to be countenanced before the CAS. In particular, it pointed to fact that the TTFA, by virtue of s. 67 of its Constitution, submitted itself to CAS jurisdiction, thereby foregoing the civil jurisdiction of the High Court. It is worthy to note, however, that s.7 of the TTFA Constitution permitted judicial intervention if there was a sufficient reason for such. This, one may advance, allowed for a balance to be struck between party autonomy, on the one hand, and the possible need for domestic litigation, on the other. Nevertheless, the court found that s.7 did not come into operation in these circumstances and, as such, the jurisdiction of the court remained ousted.
Secondly, the court propounded that the lower court had misapplied the source of power test by concluding that the TTFA incorporation by an Act of Parliament was sufficient for the purposes of bringing it into the realm of public law. Whilst the TTFA did, in fact, derive a statutory source of power, a deeper level of scrutinization revealed that the TTFA Act had been introduced into Parliament, as a private member’s bill, without being subject to debate in either the House or the Senate. Thus, the entity’s incorporation was not strictly underpinned by public policy.
Finally, the court noted that the CAS is a specialised arbitral body, comprised of a highly skilled panel which can adequately deal with sporting disputes. It is submitted that the CAS is the most appropriate forum for the ventilation of sports-related disputes, equipped with the machinery and competence to dispense justice in a contextualised manner to the nuanced area of sports law.
The TTFA case represents yet another decision where a Caribbean court has concluded that a sporting entity falls outside the scope of public law.
The Court of Appeal in TTFA rightly took the opportunity to dispute the ratio decidendi of the Keith Look Loy decision since most courts within the region have found SGBs to fall outside the purview of judicial review; and out of the minuscule number of judgements which have held otherwise, one of them (Griffith) has already been potentially overruled.
Ultimately, the Court of Appeal decision in the TTFA case has potentially put the nail in the coffin with respect to the argument that SGBs within the Caribbean region are amenable to judicial review.
The operative word is ‘potentially’ as this decision can be challenged before the Privy Council, although no such appeal has been filed to date.
In the absence of a Privy Council ruling, one will have to wait and see whether the judgement will be endorsed by other regional courts.
 R v Disciplinary Committee of the Jockey Club ex p Aga Khan  1 WLR 909 and R v Disciplinary Committee of the Jockey Club ex p Massingberd-Mundy  2 ALL ER 207.
 Ben Cisneros, ‘Challenging the call: Should sports governing bodies be subject to judicial review?’ (2020) International Sports Law Journal < https://link.springer.com/article/10.1007/s40318-020-00165-9 > accessed 8 June 2021.
 Civil Appeal No. P225 of 2020.
 LC 2008 HC 10.
 BB1999 CA 8.
 Ramdial v. Trinidad and Tobago Racing Authority TT 1985 HC 64.
 United Bookmakers Association v. Caymanas Track Limited JM 2011 SC 56.
 HC 13 1989.
 CV 2018-03080.
 CIVIL APPEAL NO.4235 OF 2014.
 The Fédération Internationale de Football Association v Trinidad and Tobago Football Association Civil Appeal No. P225 of 2020.
 Daily Express, ‘FIFA appoints Hadad to lead normalization committee’ Trinidad Express Newspapers (Port-of-Spain, 27 March 2020) <https://trinidadexpress.com/sportsextra/fifa-appoints-hadad-to-lead-normalisation-committee/article_f6605ea4-705d-11ea-a6de-d7412e3c1969.html> accessed 23 October 2020.
 The Fédération Internationale de Football Association v Trinidad and Tobago Football Association Civil Appeal No. P225 of 2020, para 29.