Structure of this Book

Dispute Resolution in SA Football

PART ONE - UNDERSTANDING THE 11. What is Force Majeure?
DISPUTE RESOLUTION SYSTEM 12. What Is the Meaning of Disrepute?
1. The Constitution is the Bedrock 13. Proportionality in CAS Jurisprudence
14. Abuse of Ad Hoc Committees
2. Democratization of World Football
15. The Applicability of PAJA
3. Separation of Powers
16. Constitutional Protections for Accused
4. SAFA’s Relationship with Its Members Persons
17. How to Challenge Disciplinary Sanctions
5. SAFA’s Regulatory Framework
18. A Toolkit for Disciplinary Hearings
6. The Different Types of Sanctions 19. Procedural Rules for Disciplinary Committees
7. Disciplinary Powers of an Executive PART TWO - RESTORING THE BALANCE
Committee OF POWER
8. Unreasonable Delays & Blocking 20. Democracy Through Free and Fair Elections
21. Six (6) Case Abstracts
9. Role of the SAFA Judicial Bodies
22. Epilogue – The Value of Rules
10. What Are Unforeseen Contingencies?
The Football Dispute Resolution Universe

Building Blocks of the Dispute Resolution System

1. 2. 3.
Players’ Status Agents Disciplinary
4. 5. 6.
Regulatory Compliance Rights (naming, image) Interpretation
7. 8. 9.
Inter-Member Disputes Interpersonal Conflicts Behavorial Conflicts
10. 11. 12.
Gender-Based Violence Racism Int’l Coach Disputes
13. 14.
15.
Territorial Solidarity & Training
NATURAL JUSTICE

SEPARATION OF POWERS
POLICIES
INTEGRITY COMPLIANCE
APPLICABLE LAW
UNIVERSITAS
STATUTES / CONSTITUTION
REGULATIONS
TRANSPARENCY

AUDI ALTERAM PARTEM

NO BIAS
DISCIPLINE
FAIRNESS

RULES
 Establishes the
organisational
framework
Defines the
relationship Sets out the
between the principles on
organization which the
and its organization is
The Basic Members &
Officials
founded

SAFA
Structure of
Statutes
the Statutes Directs how
Defines the
the rules &
powers of the
regulations are
organization
made

Defines the
bodies of the
organization
The Principles of
Good Governance accountability

integrity transparency

Good
Governance

leadership participation

predictability
 Separation of Powers

• Congress
Legislative
• Passes all laws

• Policymaking body
Executive • Oversees Standing
Committees &
Secretariat

• Interprets the
constitution
The Statutes prescribe Judicial • Imposes
the boundaries for each disciplinary
of these branches sanctions
The
Symbol
of a
Broken
Promise
 Until our … system accounts for
people as well as things, we will
operate our organizations in the
dark. Of course, some people don’t
mind the dark, especially those who
are into “mushroom management”,
the primary ethic being “Keep
people in the dark, pile lots of
manure on them, and when they
are fully ripe, cut off their heads and
Mushroom can them.”
Management
Stephen R Covey, Principle-Centered Leadership, p225
 Standing and Ad
Hoc Committees
52 Regional Members, 10 Associate
Members, 1 Special Member (NSL) National Executive
Management Board
Committee
CONGRESS

Judicial Bodies General Secretariat

Provincial Executive
Committee

The Statutes outline what each body can do

 Article 2 of the SAFA Statutes
Aims, Objectives and Powers of the Association

How Authority is Separated

 6b. Legal principles that govern implementation of the rules
--nulla poena sine lege
-nulla poena sine lege clara FIELD OF FOOTBALL JURISPRUDENCE
-force majeure
-disrepute
THE LEGAL
FERTILIZER
Organic Layer
-stare decisis
-audi alteram partem
-nemo iudex in causa sua
-sine poena nulla lex
Surface Soil
-contra proferentem
-ne eat iudex ultra petita partium
-nemo est supra legem
-nemo tenetur armare adversarium contra se
Subsoil
-nulla poena sine culpa
-nullum crimen, nulla poena sine praevia lege poenali
-sine poena nulla lex
-tempus regit actum
Substrate
-ubi lex voluit dixit, ubi noluit tacuit
-expressio unius est exclusio alterius
-testis unus, testis nullus
-venire contra factum proprium
Bedrock
- omnia praesumuntur rite esse acta
 Constitutional Connections
Primary Relationship Primary Relationship

• National Competitions • Regional Competitions

• Player Registration & Transfer • Player Registration & Transfer
• Service Members ito Art.12 • Service Members ito Art.12
• Monitoring Compliance w/ Art. 13 • Monitoring Compliance w/ Art. 13
• Receive Committee Reports • Receive Committee Reports

National ToE
Regional ToE
LFA
Statutes Statutes Statutes

Secondary Relationship
ToE = Terms of Engagement
 National Governance Structure
NATIONAL CONGRESS
Art. 22 decides
(The Legislature) what Congress
52 Regions, 1 Special Member, 10 Associate Members can do

Art. 34 decides what National Executive Arts. 67 & 68

the NEC can do Judicial Bodies decide what
Committee Judiciary can do

Arts. 41-69 decide

Standing and Ad National Disciplinary
Committees roles Hoc Committees Committee

National Appeal
Art. 65 decides what Secretariat Board
Secretariat can do
 Regional Governance Structure
REGIONAL CONGRESS
Art. 22 decides
(The Legislature) what Congress
# of LFAs, # of Associate Members can do

Art. 34 decides Regional Executive Arts. 52-54

what the REC Judicial Bodies decides what
can do
Committee Judiciary can do

Regional Disciplinary
Standing and Ad Committee
Art. 50 decides Hoc Committees (serves as Appeal
Committee for LFA Appeals)
what the
Committees can do
Arts. 51 decides
Secretariat what the Secretariat
can do
 LFA Governance Structure
LFA CONGRESS
Art. 22 decides
(The Legislature) what Congress
# of LFAs, # of Clubs can do

Art. 34 decides Local Executive Arts. 52-54

what the LEC Judicial Body decides what
can do
Committee Judiciary can do

Standing and Ad LFA Disciplinary

Art. 50 decides Hoc Committees Committee
what the
Committees can do
Arts. 51 decides
Secretariat what the Secretariat
can do
 National Soccer League Governance Structure
NSL BOARD OF GOVERNORS
(Legislature)
16 Premier League Clubs, 16 First Division Clubs

Executive
Committee

Standing and Ad
Hoc Committees

NSL Disciplinary Premier Soccer National First

Committee League Division
The South African Football Affiliation Hierarchy

SAFA
Separation of 4 tiers of functional
role-players
CONGRESS
Powers NEC
CEO / GS

STAFF

The (1) role of the NEC is

(2) on behalf of its
members (3) to see to it
that the organisation (4)
achieves what it should
and (5) avoids what is
unacceptable
South
African

INTEGRITY
CONSTITUTION
Football’s
Governance
Principles DISCIPLINE
FAIRNESS
 SAFA’s Regulatory Framework
SAFA STATUTES RULES
• National • Competitions
• Regional Standard Statutes • Meetings
• LFA Statutes • Application of the Statutes
• PEC Standard Statutes

REGULATIONS
-Disciplinary Code -Ethics, Fair Play & Anti-Corruption
-Electoral Code -Hosting Int’l Matches in SA
-Player Status & Transfer Regulations -Communications Policy
-Players’ Agent Regulations -Match Commissioner Code of Conduct
-Academies Regulations -Electoral Code of Conduct
-Standing Orders for Meetings -Regulations on Application of the Statutes
-Club Licensing (amateur & professional) -Referees Code of Conduct
-Code of Ethics

ADMINISTRATIVE POLICIES
• Financial
• HR
• ICT
• Other operational policies
 Disciplinary Code • Financial
-Ethics, Fair Play & Anti-Corruption
• National • HR
-Electoral Code
• Regional -Hosting Int’l Matches in SA • ICT
• LFA -Player Status & Transfer Regulations • Other operational
• PEC policies

-Academies Regulations
-Electoral Code of
Conduct
-Standing Orders for
Meetings
-Regulations on
Application of the • Competitions
Statutes • Meetings
-Club Licensing (amateur • Application of the
& professional) Statutes
-Referees Code of
Conduct
-Code of Ethics
-Communications Policy
-Players’ Agent Regulations
-Match Commissioner Code of Conduct

THE SAFA REGULATORY FRAMEWORK

 For a measure to qualify as a SANCTION or disciplinary in nature, the
prevailing view requires that the adverse effects be inflicted in response
to an alleged violation of the rules or some form of misconduct. In short,
a Sanction and a Decision
there are three necessary elements of a sanction:
What is a (i) adverse consequences;
Sanction?
(according to CAS)
(ii) that are designed to punish;
(iii) misconduct by the addressee of the sanction.
CAS 2020/O/6689 World Anti-Doping Agency (WADA) v. Russian Anti-Doping
Agency (RUSADA), award of 17 December 2020

A DECISION is a unilateral act sent to one or more determined recipients

and is intended to produce legal effects. Such act must:
(i) express an animus decidendi (an intention to decide on a matter) of
What is a a sport governing body in connection with a specific topic or legal
situation, and
Decision? be communicated to the relevant addressee.
CAS 2016/A/4586 Altay Football Club v. Professional Football League of
Kazakhstan & Football Federation of Kazakhstan (FFK), award of 23 January 2017
(operative part of 24 October 2016)
Different Types of Sanctions
• from the sport itself
Expulsion
• from a match/es
Suspension • For a defined period

• for a defined period of time

Dismissal
• from a place or activity under the jurisdiction of the
Ban Association, player acquisition and transfer

• How to remove officials according to the rules

Removal of Elected Officials
• Intervening in the administrative and/or financial affairs of
Invoking Article 2.17.16 a Member
3 Models of Statutory
What does the text
Interpretation*
mean to the
Textualism
reasonable person?
(literalism)

In what What was the

context is the Pragmatism Intentionalism intent of the
rule situated? legislature?

*Ruth Sullivan, Statutory Interpretation in the Supreme Court of Canada, University of Ottawa, Ottawa Law Review, Vol. 30, No. 2, 1999, pg. 181
Article 2.17.16 Does Not Allow SAFA to Put A Member Under Administration

6. 7.
1. DC Investigation & If DC Agrees with Step 4,
Complaint Received Hearing into Officials’ Take Over Administrative
Misconduct and / or Financial Affairs

5. 8.
2. If Serious Misconduct If Officials are Guilty of
Investigation Found, Refer Individuals Misconduct, DC Will
to a DC Sanction Them

4. 9.
3.
If Measures Not Hand Over When Matters
Corrective Measures
Implemented, Initiate DC Are On a Satisfactory
Recommended
Process for a Takeover Footing
“Blocking” Is Another Form of Decision

Judicial
Bodies
“A DECISION is a & DRC
unilateral act sent
to one or more
determined
recipients and is
intended to
produce legal
effects.”

Refusal to forward a matter to the relevant body cannot be considered as a binding decision, but rather an
administrative act of not forwarding a complaint to the first instance body tasked with dealing with the matter.
6. Participants in a Disciplinary or Appeal Hearing

Chairperson
Pro-Forma Prosecutor
Applicant’s Representative

The
Chairperson
cannot be
the
prosecutor
Organization at the same Defendant or
Representative time Appeal Applicant
SAFA’s Disciplinary & Appeal Structure
Ethics Committee complaint

(appeals to CAS only if a bilateral agreement exists between

INTERNAL
MECHANISMS
Courts of Law or CAS
the parties or if a constitutional requirement)
National Disciplinary
complaint
Committee
ARBITRATION Nat’l Appeal Committee
PANEL (incl. Appeals from Regional DC
Decisions)
(Final step of the internal mechanisms)
Regional Disciplinary
Committee (sits as Appeal complaint
Committee for LFA DC Decisions)

LFA Disciplinary
EXTERNAL
Committee
MECHANISMS
complaint
Unforeseen Contingencies

Bad Plannin
g
How to Turn a Constitutional Principle Into A Football Law
6. 6a.
1.
In case of violation, Apply CAS, FIFA, SAFA,
Committee Introduces a
Judiciary adjudicates & South African
Rule to Exco to give effect
apply sanctions ito the jurisprudence / judicial
to the PRINCIPLE
Regulation precedent

5. 6b.
2.
Exco & Secretariat Apply established legal
Exco Debates & Proposes
Monitor & Implement the principles, incl. separation
to Congress
Regulation of powers (see next slide)

6c.
4.
3. Apply established
Exco Approves
Congress Debates & interpretive models
Implementation
Approves (textualism, pragmatism,
Mechanism (Regulation)
intentionalism)
 The Electoral Committee is responsible for
ALL elections in SAFA.
√

If Regions or LFAs do not have their own

electoral codes, then the SAFA Electoral Code
Ballot must be applied in terms of Article 1(b)
Box

OTE
If the Electoral Committee
did not oversee the
election, it is not legitimate
 √
Voters must choose √

their leaders!
Ballot Ballot
Box Box

Leaders must not

choose their voters!
 Crossed communication occurs when the message sent by one
person’s ego state is reacted to by an incompatible unexpected ego
state on the part of the other person
P P

A A

C C

“Mother Body” “Affiliate”

P P

A A

C C

Source: HRDC India

Redesigning The Dispute Resolution System

Legal Action
Arbitration
Appeal to a
Higher Body
Initiate
Disciplinary
Intervention Steps
of the
Early “Elders”
Conflict
Compliance Mediation
Education &
Monitoring
The Justice & Fairness Line-Up
Good Practice
Codes

Governance
Regulations
Sports Law
Education

Affordability

Head of Disciplinary Judicial

Judicial Bodies
Code Lex Sportiva Precedent
The Referee:
Speedy
Trials
Uniform
Rules
Code of
Ethics

Evidentiary
Standards
The Statutes
Laws of the Game:
The Ancient
Chinese
Cuju Ball