CAS Ruling on Cape Verde Appeal a Welcome Decision for FIFA

1265380665_334Last December the 2014 World Cup draw took place in Brazil and 32 national teams discovered their round-robin fates for the World Cup, which kicks off on June 12.  And yet as of the beginning of this month, the results of the qualifying rounds for the 2014 World Cup—at least for Confederation of Africa (“CAF”) qualifying—were not finally settled.

On February 4, the Court of Arbitration for Sport (the “CAS”) ended any remaining uncertainty, dismissing an appeal filed by the Cape Verdean Football Federation (“FCF”) against a FIFA Appeal Committee decision that confirmed a FIFA Disciplinary Committee decision finding that the FCF fielded an ineligible player during a World Cup qualifying match against Tunisia.  As a result of the infraction, the FCF was sanctioned with a 3-0 loss for the match and lost the opportunity to advance to the next round of World Cup qualifying.

The incident at issue occurred on September 7, 2013, during the final match of second round CAF qualifying for Group B, in which Group B leader Tunisia hosted the tiny African nation of Cape Verde with a spot in the third round of CAF World Cup qualifying on the line.  Cape Verde went on to win the match 2-0, ending Tunisia’s World Cup hopes and setting off a series of events, including the resignation of Tunisian head coach Nabil Maaloul.  Several days later, however, the FIFA Disciplinary Committee concluded that Cape Verde had improperly allowed suspended defender Fernando Varela to play in the Tunisia qualifier.  The FIFA Disciplinary Committee awarded Tunisia a 3-0 win as a sanction, which meant that Tunisia proceeded to the third round of CAF qualifying, and Cape Verde’s World Cup qualifying run was over.  Tunisia went on to lose in the third round of qualifying to Cameroon, 4-1 on aggregate in a 2-leg playoff.  In December, Cameroon was drawn into Group A of the 2014 World Cup with host country Brazil, Croatia, and Mexico.

Varela had received a red card in a March 24, 2013 Cape Verde World Cup qualifier against Equatorial Guinea, which Equatorial Guinea originally won 4-3.  As a result of the red card, which was issued for unsporting behavior towards a match official, Varela was suspended for four matches.  Ironically, Cape Verde was later awarded a 3-0 win as a sanction for Equatorial Guinea’s fielding of an ineligible player in the match.

Cape Verde went on to play two additional World Cup Qualifying matches before the September 7, 2013 match against Tunisia: a 2-1 win over Equatorial Guinea on June 8 (which was later awarded as a 3-0 win due to Equatorial Guinea fielding the same ineligible player) and on June 16, a 1-0 win against Sierra Leone.  Varela was not in the 18 for either match. As of the September 7 game against Tunisia, Varela had two games remaining on his suspension.

The FCF appealed the FIFA Disciplinary Committee’s decision to the FIFA Appeal Committee, which dismissed the appeal.  In challenging the FIFA Disciplinary Committee’s decision, Cape Verde argued that because FIFA invalidated the March 24 match in which Varela had been suspended (awarding Cape Verde the 3-0 win over Equatorial Guinea), Varela’s red card and suspension had no effect.  On September 23, 2013, the FIFA Appeal Committee dismissed the FCF appeal, and on October 11, 2013, the FCF filed a statement of appeal with the CAS, challenging the grounds for the FIFA Appeal Committee decision and requesting that it be set aside.  A panel of three arbitrators—Luigi Fumagalli, Rui Botica Santos, and Jose Juan Pinto—held a hearing on the matter on January 14, 2014.

The CAS concluded that Varela was not eligible to play in the Tunisia match.  In particular, the CAS explained that the FCF had received a list of matches in which Varela would serve his suspension, including the Tunisia match. As a result, the CAS upheld the FIFA Appeal Committee and FIFA Disciplinary Committee decisions, and declared the qualifying match between Tunisia and Cape Verde a 3-0 win for Tunisia.

Ultimately, the facts did not strongly support the FCF’s position, so perhaps the outcome of the CAS appeal was never in doubt.  One could imagine the troublesome consequences for all parties if the CAS had reached a different outcome.  As an initial matter, the CAS decision came over two months after the World Cup draw was held in December.  If the CAS had found in favor of the FCF and restored the initial result of a 2-0 Cape Verde win over Tunisia, Cape Verde would have won Group B in the second round of qualifying and would have been entitled to advance to the 2-leg third round of qualifying against Cameroon.  But Cameroon had already defeated Tunisia and earned a trip to Brazil.  Would Cameroon be forced to play Cape Verde in a 2-leg qualifying matchup for the right to represent the CAF in Group A in Brazil?  That seems highly unlikely.

First, it would seem unjust to Cameroon.  Cameroon has engaged in extensive preparations for the World Cup.  Combined with Cameroon’s lack of fault or responsibility under the circumstances, a third round replay would be untenable. Second, a third round replay between Cameroon and Cape Verde would be logistically unfeasible.  FIFA would have to mandate a 2-leg matchup on early notice with scarce FIFA-sanctioned international fixture dates available and the 2014 World Cup fast approaching.  In short, a third round “re-do” would be out of the question.

In the alternative, it is possible that the FCF could be entitled to monetary damages, and it would be interesting explore how to calculate such damages and determine the amount of damages to which the FCF would be entitled.  Fortunately, FIFA will not have to address the hypothetical in reality: the CAS decision ends the FCF’s pursuit of legal relief.

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