South African Football Association (SAFA) v. Appeal Board of the CAF, Confédération Africaine de Football (CAF), Disciplinary Committee of the CAF, General Secretary of the CAF

II. FACTUAL BACKGROUND

6. Below is a summary of the main relevant facts and allegations based on the parties’ written submissions and evidence adduced during these proceedings. Additional facts and allegations may be set out, where relevant, in connection with the legal discussion that follows. Although the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, it refers in this award (the “Award”) only to the submissions and evidence it considers necessary to explain its reasoning.

A. What is this case about?

7. Essentially, this appeal is against the sanctions handed down by the CAF through its Appeal Board, resulting from SAFA’s decision to withdraw its national futsal team from the CAF National Futsal 2020 final tournament which was due to start 15 days later.

B. The Decision of the CAF Disciplinary Board

8. On or around July 2018, the Fédération Royale Marocaine de Football applied to the CAF to host the final stage of Coupe d’Afrique des Nations Futsal 2020 (“AFCON 2020”).

9. On 2 December 2019, the CAF invited the teams which had qualified for AFCON 2020 to attend the draw ceremony in the city of Laâyounne, Morocco on 7 December 2019. As SAFA’s team was one of the eight qualified teams for the final tournament of AFCON 2020, it was invited to the draw ceremony. SAFA, like any other qualifying team, was given the option to attend the draw ceremony via a member of its respective Embassy in Morocco.

10. On 6 December 2019, SAFA received correspondence from Ambassador Dayanand Naidoo, through the Department of International Relations and Cooperation (“DIRCO”) advising that because the CAF had decided to stage the final tournament in the city of Laâyoune, the capital of the occupied Western Sahara, the South African Embassy could not attend the draw on behalf of SAFA.

11. On 7 December 2019, as scheduled, the draw ceremony took place. SAFA did not attend the ceremony, but was still officially part of the competition at this time, and so was drawn into Group A. Its National Executive Committee met on that day.

12. On 9 December 2019, SAFA wrote to the CAF to request, inter alia, that the tournament and related events be hosted outside of the territory of Western Sahara:

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“…Unfortunately, the Embassy could not attend due to the Republic of South Africa’s Government policy of not travelling and/or visiting the territory of West Sahara for meetings, conferences and sporting events.

During the National Executive Committee (NEC) Meeting of the 7 December 2019, the NEC deliberated the matter and it expressed keen interest to participate in the tournament. The NEC further resolved to make a submission to you to persuade and encourage Morocco to stage the tournament and related events outside of the territory of Western Sahara. This arrangement will enable us to participate in the tournament freely. The alternative, which is not desirable at all, is that would reconsider our participation in the tournament”.

13. SAFA shared DIRCO’s position paper with the CAF which stated, inter alia, that Morocco’s illegal occupation of Western Sahara remained a matter of international concern, and that this runs in contradiction to South Africa’s foreign policy on Western Sahara. As such, the position paper stated:

“…while South Africa does not object to official participation in recognised multilateral conferences and sports events hosted in Morocco, the level of participation must be carefully considered…

…It is therefore recommended that the South African team should not participate at the forthcoming Total AFCON Futsal in Morocco for as long as it is taking place in the disputed territory of Laâyoune, West Sahara”.

14. On 5 January 2020, the CAF sent all participating member associations, including SAFA, the circular for AFCON 2020 detailing the fixtures of the final tournament.

15. On 13 January 2020, SAFA decided to withdraw its team from the AFCON 2020 by way of letter stating:

“Due to the fact that Morocco Organizing Committee has decided to stage the AFCON 2020 in the capital city of the disputed territory, it is with regret that we have to advise you that we have to withdraw our Futsal National Ream from the Tournament. The South African Government Policy and Regulation….does not allow us to participate in the territory...

…we humbly invite submit that you should kindly consider waiving the provisions of Article 73 and 74 of the Rules and Regulations of the Futsal AFCON…we would like to motivate for a force majeure invoking”.

16. On 14 January 2020, the CAF General Secretary addressed a letter to the Members of the Development Committee for Futsal and Beach Soccer informing them of SAFA’s withdrawal and requesting them to “decide on the team to replace South Africa or to proceed with having a group of three teams”.

17. The final tournament of AFCON 2020 took place as scheduled on 28 January 2020 until 7 February 2020, and SAFA did not participate in the tournament. Its place was taken by Mauritius.

18. On 30 January 2020, the CAF Disciplinary Board rendered a decision regarding SAFA’s withdrawal from AFCON 2020. It decided that SAFA was in violation of Article 74 of the

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Futsal Africa Cup of Nations Regulations (the “Regulations”), and accordingly it issued a fine of USD 75,000 and a suspension from any participation in the next two editions of the Futsal African Cup of Nations (the “First Instance Decision”). Article 74 of the Regulations states:

“A forfeit declared less than twenty days before the start of the final competition or during it, shall entail in addition to the loss of the entry fee, also causes the loss of the right of entry, a fine of seventy five thousand (75,000) U.S. dollars as well as the suspension of the relevant association for the next two editions of the FUTSAL AFCON except in cases of force majeure as defined by the Organising Committee of CAF”.

C. Proceedings before the CAF Appeal Board

19. On 7 February 2020, SAFA appealed the First Instance Decision before the CAF Appeal Board.

20. In its appeal, SAFA requested the following prayers for relief:

“3.2 The Appellant in its appeal under Article 53 of the CAG Disciplinary Code seeks an order setting aside the decision passed by CAG Disciplinary Board issued on the 30 January 2020.

3.3 … Appellant requests the appeal board to…issue a new decision replacing the decision appealed against with immediate effect as follows:

3.3.1 The Appellant be reinstated into the forthcoming or any future Futsal African Nations Cup with immediate effect and that the Third Respondent be directed to take the necessary steps to facilitate the inclusion of the Appellant into the forthcoming or any future Futsal African Nations Cup.

3.3.2 Confirmation that the fine of 75 000 USD is null and void and of no force and effect”.

21. On 20 February 2020, a hearing took place which SAFA attended with its legal representatives.

22. On 16 March 2020, the CAF Appeal Board handed down its decision to SAFA, essentially deciding to confirm the First Instance Decision passed by CAF Disciplinary Board (the “Appealed Decision”):

“SAFA’s representatives were reminded by the Appeal Board that political reasons are in no way a valid reason that would justify a withdrawal from a CAF competition; for there should never be political interferences regarding football associated and their decisions, CAF is a district neutral body that is not influenced by political ideologies.

The Appeal Board members agreed following the appellant’s argumentation that SAFA’s decision regarding the withdrawal of their national team from the African Cup of Nations FUTSAL 2020 was purely political as it is arising out of solidarity to a political agenda.

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Finally, the Appeal Board noted that the determination of a force majeure in the case of article 74 of the African Cup Nations FUSAL does not fall under their competence, as it had to be determined by the Organizing Committee who never pronounced said force majeure. In view of the foregoing conclusion, the Board considered there is no force majeure concerning SAFA’s withdrawal.

The Appeal Board decided as follows:

1. The appeal lodged by the South African Football Association is admissible;

2. The appeal lodged by the South African Football Association lacks merit for the abovementioned reasons;

3. The decision no 001-CAI-30.01.2020 is confirmed;

4. All requests of relief are dismissed”.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORTS

23. On 26 March 2020, in accordance with Articles R47 and R48 of the Code of Sports-related Arbitration (the “CAS Code”), SAFA filed a Statement of Appeal at the Court of Arbitration for Sport (the “CAS”) against the Respondents, challenging the Appealed Decision. In its Statement of Appeal, SAFA requested the appointment of a panel of three appeal arbitrators appointed by the President of the Appeal Arbitration Division, pursuant to Article R54 of the CAS Code.

24. On 27 March 2020, the CAS Court Office wrote to the parties to acknowledge receipt of the Statement of Appeal and noted the Appeal was not complete. The CAS Court Office provided a deadline of 31 March 2020 for SAFA to file its completed Appeal.

25. On 1 April 2020, the CAS Court Office wrote to the parties again noting SAFA had not supplied a copy of the proof of payment of the CAS fee of CHF 1,000 advising that if this was not supplied in the next two days, the Appeal before the CAS would not proceed.

26. On 3 April 2020, having received the required documentation and information from SAFA, the CAS Court Office wrote to the parties to acknowledge receipt of the Statement of Appeal and provided a deadline by which the Appeal Brief was due by SAFA. In the same correspondence the CAS Court Office also acknowledged that SAFA had requested this matter to be expedited in accordance with Article R52 of the CAS Code and subsequently asked the CAF to confirm whether it accepted this request. The CAF was also provided with 10 days in order to nominate an arbitrator. SAFA had already put forward its nominee, Mr. André Brantjes, Attorney-at-Law, Amsterdam, the Netherlands, as arbitrator.

27. On 5 April 2020, pursuant to Article R51 of the CAS Code, SAFA filed its Appeal Brief with the CAS Court Office.

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28. On 7 April 2020, the CAS Court Office wrote to the parties to confirm that given the CAF had disagreed with SAFA’s request for an expedited procedure, this would not be implemented in these proceedings.

29. On 14 April 2020, the CAF requested an extension of time until 17 April 2020 to jointly nominate an arbitrator, in accordance with Article R32 of the CAS Code, in conjunction with the CAS Emergency Guidelines. The CAS Court Office confirmed in its letter dated 15 April 2020 that this extension was granted.

30. On 17 April 2020, the CAF appointed Mr Rui Botica Santos, Attorney-at-Law, Lisbon, Portugal as arbitrator.

31. On 14 May 2020, in accordance with Articles R33, R52, R53 and R54 of the CAS Code, and on behalf of the President of the CAS Appeals Arbitration Division, the CAS Court Office informed the parties that the Panel appointed to this case was constituted as follows:

President: Mr Mark A. Hovell, Solicitor, Manchester, United Kingdom

Arbitrators: Mr. André Brantjes, Attorney-at-Law, Amsterdam, the Netherlands

Mr. Rui Botica Santos, Attorney-at-Law, Lisbon, Portugal

32. On 18 May 2020, in accordance with Article R55 of the CAS Code, the Respondents filed their joint Answer with the CAS Court Office.

33. On 24 August 2020, all parties submitted a signed copy of the Order of Procedure.

34. The hearing was held on 27 August 2020 by video-conference. The parties did not raise any objection as to the composition of the Panel. The Panel was assisted by Brent J. Nowicki, Managing Counsel to the CAS. The following persons attended the hearing:

For SAFA: Messrs Choudree SC, Govindasamy, Marikam, Soni and Terumal, all counsel; Mr Mokoena, the former SAFA CEO and Ambassador Naidoo, both witnesses; and

For the Respondents Mr Cavaliero and Ms Etter, both counsel; Ms Mahamat, CAF Director of Legal Affairs and Mr Magdy from the CAF Legal Team.

35. The witnesses were invited by the President of the Panel to tell the truth subject to the sanctions of perjury. The parties and the Panel had the opportunity to examine and crossexamine the witnesses. Unfortunately, before the parties were able to present their cases and to make their submissions and arguments, SAFA’s legal team were the subject of an incident in their offices, whereby there was a break-in, and their papers and equipment was stolen.

36. Mr Choudree SC managed to call into the hearing on a borrowed phone and while he was prepared to proceed, upon the suggestion of Mr Cavaliero, the parties agreed that they would

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commit these to written post-hearing briefs. The Panel agreed that this was the most appropriate way to proceed.

37. The hearing was then closed and the Panel reserved its detailed decision to this written Award, once it had received and considered the post-hearings briefs. Upon closing the hearing, the parties expressly stated that they had no objections in relation to their respective rights to be heard and that they had been treated equally in these arbitration proceedings. The Panel has carefully taken into account in its subsequent deliberation all the evidence and the arguments presented by the parties, both in their written submissions and at the hearing, even if they have not been summarised in the present Award.

38. On 11 September 2020, all parties submitted their respective post hearing submissions to the CAS Court Office.

39. On 18 September 2020, all parties submitted their respective replies to the post hearing submissions.

IV. THE PARTIES’ SUBMISSIONS

40. The following summary of the parties’ positions is illustrative only and does not necessarily comprise each and every contention put forward by the parties. The Panel however, has carefully considered all the submissions made by the Parties, even if no explicit reference is made in what immediately follows.

A. SAFA’s Submissions

41. In its Statement of Appeal, SAFA submitted the following prayers for relief:

“5.1. The Appellant requests that its appeal in terms of Rule 47 of the CAS Code proceeds in an expedited manner as contemplated and provided for in Rule 52 of the CAS Code;

5.2 The Appellant seeks that the President of the Appeal panel direct the First, Second, Third and Fourth Respondents to produce the entire and complete record of the hearing of the Second and Third Respondent before reviewing the facts and the law.

5.3. The Appellant in its Appeal under Rule 47 of the CAS Code seeks an order reviewing the facts and the law setting aside the [Appealed Decision].

5.4. Subsequent to the setting aside of the [Appealed Decision], the Appellant requests that the Appeal Tribunal of CAS exercise its discretion as contemplated in Rule 57 to issue a new decision thus replacing the [Appealed Decision] as follows:

5.4.1 Annulling the final tournament of the Futsal African Nations Cup Morocco 2020;

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5.4.2 Directing the First Respondent to immediately reschedule the final tournament of the Futsal African Nations Cup Morocco 2020 in a venue of Morocco (not in the disputed territory of Western Sahara);

5.4.3 Reinstate the Appellant into the rescheduled final tournament of the Futsal African Nations Cup Morocco 2020 with immediate effect;

5.4.4. Declaring the fine of 75,000 USD imposed by the Third Respondent against the Appellant null and void and of no force and effect”.

42. SAFA did not submit any prayers for relief in its Appeal Brief.

43. In summary, SAFA submitted the following in support of its Appeal:

44. SAFA submitted that it was left with no option other than to comply with its government’s policy on Western Sahara, the decision to withdraw therefore was out of its control. SAFA further strengthened this point by referring to DIRCO’s correspondence whereby it recommended SAFA not to participate in the Futsal National Team in 2020 and the fact that it received no response from the CAF in relation to the request it made to move/change the venue in Morocco.

45. It was SAFA’s view that a change of venue was within the CAF’s gift and powers. In putting this position forward, SAFA referred to Article 4 of the Regulations:

“4.2. Qualifying and final phases:

4.2.1. Ensuring that the sanctions taken by any CAF body are implemented;

4.2.2. Replacing, in conformity with the present regulations, the associations declaring their withdrawals;

4.2.3. Taking decisions relative to any complaint. Its decisions shall be based on the written reports of the referee, the assistant referees and/or the commissioner, and any other official designated by CAF;

4.2.4. Taking decisions in cases of force majeure;

4.2.5. Designating commissioners;

4.2.6. Homologating the results of the matches. In the absence of protests or claims, the matches are automatically homologated 10 days after the match in the qualification phase and 48 hours after the match in the final phase. All homologation decisions are binding and final;

4.2.7. In emergency cases, the Organising Committee may take decisions by correspondence or by fax or email.

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4.3. Final Phase:

4.3.1. Ensuring, with the collaboration of the organising association, the preparatory work of the Final Tournament;

4.3.2. Proceeding to the drawing of lots;

4.3.3. Fixing, after consulting the organising associations, the dates, the venues and the time of the kick-off of the matches;

4.3.4. Taking all the necessary decisions for the good organisation of the competition in compliance with the provisions of the present regulations;

4.3.5. Creating Sub-Committees having the rights and prerogatives of the Organising Committee”.

46. In particular, SAFA went further to say that it was not until 2 December 2019, when it received an invitation to attend the draw, did it become aware that the venue for the matches of the final tournament would take place in Western Sahara. At that point it took a pro-active approach in liaising with the CAF.

47. As such, there was no doubt that the principle of force majeure was well established by SAFA given the choice of venue was outside of its control and it could not be expected that it goes against the recommendations of its own government policy and breach its own laws to participate.

48. It was SAFA’s argument that the Organising Committee in Morocco (which was responsible for organising the final phase of the futsal tournament) which was appointed for the 2019/2021 cycle lacked integrity and legitimacy and as such, was not the appropriate body to choose the location and venue of the final futsal tournament.

49. In particular, SAFA pointed to a letter submitted by the Mauritius futsal team to CAF withdrawing its futsal team from the final tournament on similar grounds:

“Having sketched the background herein and having regard to the fact the duly appointed Organising Committee for Futsal AFCON 2020 failing to hold any meetings after 26 March 2018, I am at a loss to understand where and when the decision to organise the tournament in the city, of Laâyoune, Western Sahara was taken by the Organising Committee as should have been the case in accordance with Article 4.33 of Chapter 2 of the Regulation for Futsal AFCON”.

50. In SAFA’s view, by failing to invite certain members to be involved with the organising and supervision of the tournament, the Organising Committee lacked proper standing to make the decisions which led to the final tournament being held in Western Sahara:

“Clearly the de jure organising committee, the validity appointed standing committee of the First Respondent was not involved in the development, organisation and supervision of the final tournament in terms of the First Respondent’s statutes, regulations and in particular the regulations of the Futsal AFCON Cup of Nations”.

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51. Further, SAFA submitted that the CAF failed to even respond to the request of a change in venue, and as such, by failing to neglect this request, the CAF was in breach of its own regulations, namely Article 4.3 of the Regulations.

52. Accordingly, and in light of the above, SAFA submitted that the Organising Committee was not legally and validly appointed and as a result the final tournament should be nullified and any decisions by the Organising Committee should not have any force or effect.

53. SAFA went further to say that the CAF Disciplinary Board (i.e. the Second Respondent) was not properly constituted, and its composition was irregular and invalid, therefore any orders/decisions made by it against SAFA lack jurisdiction.

54. To strengthen this proposition, SAFA stated that during the appeal hearing conducted by the Appeal Board, the First and Fourth Respondents failed to produce a record of the proceedings which took place between SAFA and the Second Respondent and therefore, SAFA was not able to properly understand and deliberate how the Second Respondent rendered its decision against SAFA.

55. Notwithstanding the above, it was SAFA’s view that it was not given a fair hearing given that none of the Respondents even confirmed that any disciplinary action was going to be taken against it and as such, the decision of the CAF Disciplinary Board was handed down without SAFA even being present.

56. SAFA provided further that at the final hearing conducted by the Appeal Board, although SAFA was present and able to represent itself, the Appeal Board failed to fully consider all the evidence it was presented with. SAFA pointed to the fact that it was given 10 minutes to present its arguments to strengthen this submission.

57. SAFA asserted that by failing to properly consider and determine that force majeure was established, the Third Respondent showed its true colours of bias against it and this was prejudicial.

58. SAFA put forward that its political reasons were valid and justified its withdrawal from the final tournament. SAFA pleaded with the CAF and stated that the sports industry had a history of protecting and defending human rights and dignity of people all over the world, and to decide that political reasons are not a valid reason not to do something was inconsistent with this ethos.

59. Finally, SAFA stated that the sanctions imposed by the Third Respondent were harsh and disproportionate

B. SAFA’s Second Submissions

60. In its second submissions, SAFA justified the position of the Second, Third and Fourth Respondents’ standing to be sued.

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61. To support its submission, SAFA stated Article 48.1 of the CAF Statutes:

“Only CAS shall be empowered to adjudicate on the appeals against any decisions or disciplinary sanctions taken in the last instance by any legal body of the CAF or FIFA …”.

62. Simply put, it was the SAFA’s view that as the Second and Third Respondents were legal bodies of the CAF, and that it sought relief from the sanctions and decisions as rendered by the Second and Third Respondent, and as such they had standing to be sued.

63. Further, SAFA argued that as the Fourth Respondent was called upon to produce a record of the proceedings conducted by the Second Respondent, and failed to do so, it was correctly being sued by SAFA.

64. The Panel was reminded of its de novo powers to determine these proceedings, and that pursuant to Article R57 of the CAS Code, the Panel could render a new decision if necessary.

65. SAFA went further to say that the prayers of relief sought were within the legal framework of the CAF statutes, noting in particular, Article 45(2) of the CAF Statutes:

“CAF may impose the following disciplinary measures:

2.3 Against legal entities:

(a) Ban on registering new players in CAF competitions

(….)

(d) Ban on playing in particular stadium;

(e) Annulment of results of a match;

(….)”.

C. SAFA’s Post Hearing Submissions

66. SAFA argued that its compliance with DIRCO’s recommendation was not ‘political interference in sports’, it was compliance with international law.

67. SAFA went further to say that CAF Statutes cannot, as a matter of law, contradict with human rights objectives. Therefore, CAF Statutes must comply with international law relating to Morocco’s illegal occupation of Western Sahara and not compel SAFA to participate in a tournament held there.

68. It was SAFA’s view that it was compelled to obey the law of the land as set out by DIRCO. Although DIRCO’s letter referred to a “recommendation”, it was SAFA’s understanding that

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diplomatic language was used, and indeed, SAFA would be expected to act rationally in respect of South African foreign policy.

69. In light of the above, SAFA put forward the notion of vis majeure in that it did not know the venue was going to be Western Sahara when it first entered the tournament, and it had no choice but to withdraw given not doing so would be a breach of UN resolutions.

70. Further SAFA argued that Article 64.3 of the Regulations requires that a final tournament be played in the territory of the organizing association, and as Laayoune cannot be considered as Morocco’s territory, holding a tournament there would be a breach of the Regulations. Thus, SAFA was justified in its withdrawal.

71. Finally, SAFA stated that Articles 59, 76 and 80 of the Regulations should apply in this instance and not Article 74. The former deals with withdrawal from tournaments specifically and include sanctions which are less harsh. Whereas the latter (i.e. Article 74) deals with withdrawals, sanctions for refusal to play and replacement.

72. In support of its submission that Article 74 of the Regulations has no application, SAFA stated that CAF’s letter dated 30 January 2020 referring to Mauritius’s withdrawal from the tournament made no reference to Article 74, and as such, as it was not mentioned or applicable in that instance, it should not be applied against SAFA.

73. In relation to a fair hearing, SAFA stated that Article 29 of the CAF Statutes stated that a party has a right to be heard, and as SAFA was denied this right because it simply received the CAF Disciplinary Board’s decision without being provided with an opportunity to represent itself, this led to procedural injustice.

74. On this point, SAFA rebutted any decision the Disciplinary Board made on the basis that the CAF Organisation Committee (which submitted its complaint to the Disciplinary Board of SAFA’s withdrawal from the tournament) was not lawfully arranged. It was SAFA’s view that four members of the Organisation Committee were side-lined/excluded from meetings relating to the supervision and choosing of the venue, including SAFA, and in turn the choice to hold the tournament in Western Sahara was improper.

75. SAFA also addressed the sanctions imposed, noting in particular that a suspension from 2 editions of the African Cup meant 12 years of no participation. This would discourage sponsorship of futsal in South Africa, cause disillusionment among players and result in a lull in this sport generally. SAFA urged the Panel to consider the hindrance the sanctions would have on the development of futsal in South Africa.

D. CAF’s Submissions

76. In its Answer, the CAF submitted the following requests for relief:

“1. The Appeal shall be declared partially inadmissible

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2. To the extent it is admissible, the Appeal shall be rejected and the decision of the CAF Appeal Board shall be confirmed in its entirety.

3. The South African Football Association shall be ordered to bear the costs of the arbitration and it shall be ordered to contribute to the legal fees incurred by the Respondent at an amount of CHF 20,000”.

77. The CAF argued in the first instance that the Second, Third and Fourth Respondents did not have standing to be sued by SAFA. The CAF pointed to the fact that neither the CAS Code nor the CAF Statutes contain any specific rule regarding the standing to be sued. Therefore, the question of whether or not the Second, Third and Fourth Respondents have standing to be sued must be derived from Swiss law, which was applicable on a subsidiary basis pursuant Article 48(2) of the CAF Statutes.

78. In light of the above, the CAF referred to Article 74 of Swiss Civil Code which states that associations have capacity to be sued, therefore the appeal cannot be directed against the members of the respective organ that has passed the decision or the members of the association. Thus, any appeal against the disciplinary decision passed by CAF judicial bodies should be brought against the association only, namely the CAF.

79. Having clarified its position in relation to legal standing to be sued, the CAF averred that SAFA’s prayers for relief (in particular 5.4.1, 5.4.2 and 5.4.3) fell outside of the scope of the disciplinary proceedings before the CAF judicial bodies, and consequently of the proceedings before the CAS.

80. To affirm its view, the CAF referred to Article R57 of the CAS Code, and reminded the Panel that the CAS’s powers of review is limited by the object of the dispute that was before the previous instance. As such, it cannot be construed that the CAS had wider powers than the power of the body that issued the decision appealed against.

81. The CAF pointed to previous CAS case law (TAS 2018/A/5792) to strengthen its position:

“An arbitral panel of the CAS may rule de novo on the subject matter of the appealed decision. It is not limited to a simple review of the legality of this decision, but may issue a new decision on the basis of the applicable regulatory or legal provisions. However, the full power of review of the arbitral panel is limited to the issues that were addressed in the contested decision”.

82. Given SAFA presented different unrelated prayers for relief, namely 5.4.1 to 5.4.3, which fall outside of the jurisdiction of the CAF and consequently the CAS, the Appeal is partially inadmissible.

83. The CAF averred that SAFA’s request to change venues and withdrawal from AFCON 2020 ignored all the consequences and effects on the host venue, the fans and qualified teams.

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84. The CAF put forward that to improvise the celebration of a continental tournament within a month was impossible, especially given the various stakeholders involved who it had contracted with.

85. It was the CAF’s view that SAFA’s withdrawal from AFCON 2020 as a result of political interference did not constitute a force majeure event. SAFA was not prohibited by DIRCO to take part in AFCON 2020, it was simply recommended not to partake. Further, during SAFA’s initial correspondence with CAF, in December 2019, it did not state that it would be withdrawing from AFCON 2020, despite knowing the location of the tournament would be Western Sahara.

86. To reaffirm its position, the CAF cited CAS jurisprudence on what constitutes a force majeure event, citing CAS 2018/A/5779, in which that CAS panel stated:

“… force majeure implies an objective (rather than a personal) impediment, beyond the control of the “obliged party”, that is unforeseeable, that cannot be resisted, and that renders the performance of the obligation impossible”.

87. In light of the above, it was the CAF’s position that none of the above criteria was met and as such, a recommendation by the government not to partake in an event cannot be seen as force majeure.

88. The CAF stated that as SAFA was unable to demonstrate the existence of any prohibition to participate in the AFCON 2020, it was therefore unable to discharge the burden of proof that it was precluded to take part in the AFCON 2020 by a governmental binding decision, and as such, the CAF correctly applied Article 74 of the Regulations in rendering its decision.

89. The CAF noted that notwithstanding the clear application of Article 74 of the Regulation, SAFA’s withdrawal as a result of its government’s political views was in breach of the CAF Statutes, namely Article 7(1)(g), which states that member associated should “manage their affairs independently and free of instructions and interferences of any kind by any person or body”.

90. Further the CAF noted that SAFA’s decision was also in breach of Article 7(1)(b) of the CAF Statutes:

“7.1 Members of CAG shall have the following obligations:

[…]

(b) To take part in competitions organised by CAF”.

91. The CAF, therefore, argued that even if one was to consider that the DIRCO’s correspondence to SAFA could be viewed as prohibiting it to participate in a given competition, quod non, any corresponding decision of SAFA to withdraw from a competition would remain in breach of CAF Statutes.

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92. The CAF also rebutted SAFA’s submissions in relation to the Organising Committee on the basis that this had no bearing on the issues at hand given the scope of the CAS proceedings revolve around the disciplinary sanctions imposed by CAF judicial bodies following SAFA’s withdrawal from the competition, and not the selection processes of the venue itself.

93. Notwithstanding the above, the CAF stated that it was the responsibility of the host association to conclude the necessary contractual relationships with third parties, and as such, the Organising Committee had the powers to do just that.

94. The CAF also rebutted SAFA’s assertions that its Disciplinary Board was improperly constituted and had no authority to hear the dispute by referring to Article 45 of the CAF Statutes which provided for the CAF’s disciplinary powers clearly to render the First Instance Decision.

95. Further, the CAF noted that given Article 74 of the Regulations clearly applied (as SAFA withdrew from AFCON 2020 less than 20 days before the start of the final competition), there was no margin of discretion and as such, proportionality of the sanctions should not even be a question.

96. Finally, the CAF addressed SAFA’s argument in relation to its rights to a fair hearing. The CAF referred to the CAS’s de novo powers and noted how any procedural unfairness can be cured by a de novo CAS proceedings. Accordingly, any infringements of the parties’ right to be heard can generally be cured when the procedurally flawed decision is followed by a new decision, rendered by an appeal body which had the same powers to review the facts and the law as the tribunal in the first instance.

97. The CAF put forward that, in casu, any violation of the right to be heard that would have occurred in the first instance, quod non, would have been cured before the CAF Appeal Board. Thus, any allegations made by SAFA in this regard should be disregarded in full.

E. CAF’s Second Submissions

98. In its second submissions, the CAF further elaborated on its initial submissions and in particular, noted that SAFA’s prayers for relief would undoubtedly affect third parties who have not been named as additional respondents in these proceedings and ought to be if SAFA’s prayers were admitted by the CAS.

99. It was the CAF’s view that awarding prayers 5.4.1 to 5.4.3 would have very wide ranging consequences, not least because the host associated would have to re-organise a world tournament and all participants of AFCON 2020 would need to be ordered to call up their players gain, train and play the tournament again, affecting the winners of Futsal AFCON 2020 as it currently stands.

100. In light of the above, it was CAF’s position that it would be possible for the Panel to grant any requests that would affect third parties without giving them their rights to be heard.

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F. The CAF’s Post Hearing Submissions

101. It was the CAF’s view that none of the reasons cited by SAFA showed it was prohibited from participating in the Futsal AFCON 2020. In fact, it showed the level of interference by political views and regulations into its own affairs.

102. The CAF clarified that although it abides by UN policies and resolutions, it does not however imply that it adopts any politic stance the UN adopts. In any event, the UN resolution in relation to Morocco’s occupation of the Western Sahara is a recommendation and not legally binding.

103. Additionally, the CAF submitted that SAFA’s assertions in relation to applicability of Article 74 of the Regulations are belated, and were not included in its Statement of Appeal and as such, should be disregarded.

104. In any event, the CAF noted that any literal systematic interpretation of the Regulations would point that Article 74 which relates specifically to refusal to participate in a competition prior to the start of said competition (as is the case here) would apply. There can be no doubt about this, especially as this Article was even referred to in SAFA’s own letter withdrawing from the competition dated 13 January 2020.

105. The CAF rebutted any submissions made by SAFA regarding the development of futsal in South Africa, by stating that it had not made any arguments referencing legal considerations as to the legality of the sanctions or any possible lack of proportionality.

106. Further, the CAF argued that SAFA had not even mentioned this point in its prayers for relief, and therefore, the Panel is prevented from assessing any alleged repercussions of the suspension of SAFA for the next two editions of futsal AFCON, and the effects this would have on the development of futsal in South Africa.

107. The CAF also put forward that Mauritius Football Federation received the identical sanction to that of SAFA when it withdrew from Futsal AFCON 2020, therefore any submissions made by SAFA in respect to the principles of equal treatment were rebutted.

108. Finally, the CAF clarified the role of the Organising Committee. It stated that SAFA was confusing the term ‘venue’ with ‘host city’. The latter being the exclusive prerogative of the Host Association and as such the references made to the Organising Committee were irrelevant.