On 4 October 2019 the Ghana Football Association (“the GFA”) Normalisation Committee (“NC”) announced that Amanda Clinton, George Ankoma Mensah, Nana Yaw Amponsah, Kurt Edwin Simeon Okraku, George Afriyie and Frederick Pappoe had completed the vetting process for the then pending GFA elections.
According to the NC, although Wilfred Kwaku Osei (“Palmer”) applied to run for the office of GFA president, his application was unsuccessful. He appealed the decision three days later but this, too, was dismissed.
On 9 October, Palmer responded in a letter:
“I duly filed my appeal on Monday at 3.40 pm, I further filed an interim injunction and requested for a record of proceedings which was handed over to me after 5pm on Monday 7th October 2019 on pen drive. As I earlier indicated in my statement on Tuesday 8th October 2019, I filed an appeal on Monday 7th October 2019. However, there is an erroneous impression created by the Normalisation Committee and its assigns that I failed to file an Appeal. For the avoidance of doubt, my appeal brief indicated all the issues I was seeking for.”
Subsequently, Palmer took the matter to the Court of Arbitration for Sport (“the CAS”), claiming that he was “unfairly disqualified”.
Why did the NC disqualify Palmer in the first place?
My understanding of the letter from the GFA to Palmer in 2019 is that his application failed because of the GFA Ethics Committee’s decision of January 2017, and because of a violation of Article 35(c) of the GFA statutes.
What was the legal basis for Palmer’s disqualification in the light of the alleged existence of: (1) the GFA Ethics Committee decision of January 2018, and (2) a violation of Article 35(c) of the GFA statutes?
Months before the 2019 GFA elections, FIFA introduced an integrity test after the expiration of the NC’s term. From what I have gathered, the integrity test is a test conducted during the vetting of candidates for football-related offices which gauge a candidate’s reputation for being truthful and honest. It begins with a self-disclosure component, which elicits answers to questions.
The questions mostly pertain to the candidate, including whether or not they have ever been found culpable and/or sanctioned for conduct which violates “the general conduct rules” of the FIFA Code of Ethics, and whether or not a candidate is currently in compliance with all applicable laws.
What details, as alleged by the GFA, formed the basis for his disqualification?
In an interview with Citi FM, offering a post-mortem of the Black Stars’ failure to qualify for the World Cup in 2017, Palmer made a number of comments which were rather shocking, not so much because of what he said, but the fact that he could say it publicly.
“If we had spent around $300,000 [on referees] and stood to benefit about $8 million [by appearing at the World Cup], I see nothing wrong with it.”
He was hauled before the Ethics Committee for a hearing. The committee reprimanded Palmer for the statements and ordered him to apologise on 8 January 2018, in line with Article 13 (28) of the GFA Ethics Code. He was also advised to refrain from making further public statements relating to the GFA.
Palmer obliged, wrote and filed an apology letter to the GFA Ethics Committee and did as instructed, refraining from making public statements related to the Association.
Before we go any further, let’s go back to 2018, shall we? In June that year, Tema Youth transferred Joseph Paintsil to the Belgian side Koninklijk Racing Club Genk in a deal worth €3 million.
Under normal circumstances, Tema Youth would have paid 10% of the transfer fee to the GFA, which would then issue an international transfer certificate (ITC) for the deal to be processed, as required by the regulations. That did not happen.
Tema Youth say they requested an ITC from the GFA but one was never granted. Instead, FIFA had to issue a provisional ITC for the deal to go through. This, Tema Youth say, strengthens their belief that the GFA has lost its entitlement, because it played no part in the transfer process.
Conversely, the GFA believes Palmer acted in bad faith because he had earlier signed an agreement with them to pay €300,000 to the GFA subject to the issuing of the ITC.
A few months to the elections, the NC’s lawyer, Frank Davies, wrote to Palmer and Tema Youth, asking them to pay the money. Palmer refused.
My understanding and the findings of my research are that the GFA appears to allege that Palmer, in his capacity as a football official as defined by the GFA and FIFA Ethics Code/s, due to his position and direct involvement as an official and de facto managing director and controller of his club, Tema Youth Sporting Club, failed to ensure that his club honoured its financial obligations to the GFA. It is the GFA’s view that because the club failed to pay to the required 10% of a foreign transfer into the GFA development fund, Palmer and Tema Youth have violated Article 35(c) of the GFA Statutes.
Consequently, the GFA appears to contend that the statements are prima facie violations of Article 13 of the FIFA Ethics Code. It is my understanding that the GFA also considers the failure to pay the 10% into the GFA development fund constitutes conduct that is a prima facie violation of Articles 13(1), (2), (3) and (4) of the FIFA Code of Ethics, as well as Articles 29(1) and (2). If this is established to be true, it would create a conflict of interest that would violate Article 15 of the FIFA Code of Ethics if Palmer were elected as GFA president – all of which should have been listed on the integrity test questionnaire. Wawolo!
All of these sins by one man? Palmer must be the devil incarnate.
Palmer’s arguments
Palmer’s claim of unfair disqualification appears to be based on his position that his disqualification was pretextual and based on his refusal to pay the 10% of the funds received from a foreign transfer to the GFA developmental fund.
Palmer also contends that his club was not under the obligation to pay the 10% it received as payment for Joseph Paintsil’s transfer from the club to KSR Genk, to the GFA development fund. Why? Because the GFA did not issue the international transfer certificate for the player.
My sources tell me that Palmer also contends he has already been punished for the statements he made on public radio in 2017 and that some of the Vetting Committee may not have held other candidates to the same strict standards.
The CAS considerations
I believe, from my research and understanding, that the Court of Arbitration for Sport (CAS) will only review a decision of an Elections Committee on a FIFA-related election, if the Elections Committee in question could not reasonably have decided to exclude a candidate.
In determining whether or not the Elections Committee had reached its decision to disqualify a candidate reasonably, CAS appears to look at the basis on which the decision was taken. That is to say, CAS will seek to be convinced that the basis is grounded on evidence of a specific course of conduct by the candidate available in a candidate’s file at the time of the evaluation, which is a prima facie violation of any of the general conduct rules of the FIFA Code of Ethics.
How do the two cases (Palmer and GFA) compare?
Although Palmer apologised for his conduct concerning public statements about Ghana’s failure to qualify for the 2018 FIFA World Cup, the GFA’s position – that the apology in itself does not vitiate the existence and/or evidence of his conduct – may prove difficult to dispel.
It is tempting to argue that Article 35(c) of the GFA Statutes is unambiguous as to the conditions under which the payment of the 10% of proceeds of international transfer must be paid into the GFA development fund. By existing convention, it is always due when a GFA-affiliated club receives payment for the international transfer of any of its players. However, you cannot disregard Palmer’s position, either – at least not entirely.
His interpretation of Article 35(c) is that the GFA’s inability to issue the International Transfer Certificate (ITC) strengthens his belief that the GFA loses its entitlement, as it played no part in the transfer process. Conversely, the GFA believes Palmer acted in bad faith because he had earlier signed an agreement, in his capacity as an official of his club with the GFA, to pay €300,000 to the GFA after the ITC was issued.
How will this be interpreted by CAS? I have no idea but that is their job.
Now, if there is evidence that the Elections Committee said that it will disqualify Palmer for not paying the said amount into the GFA development fund as promised, Palmer still has to prove that the GFA Elections Committee decision to disqualify him was not supported by evidence and that it could not have reasonably concluded so.
Even if there are similarly situated candidates who were not disqualified it will not help Palmer’s case if there is still evidence of his conduct which violates the FIFA Code of Ethics. Similarly, the GFA has to be prepared to convince CAS that this did not happen – because, if anything is certain, it is that Palmer’s legal team will clutch at anything to prove its case, as a drowning man will to a straw.
All of this makes for a compelling showdown and I, for one, cannot wait for the verdict.
So, with bated breath, we wait, as Palmer and the GFA learn their fate in an undoubtedly seminal ruling. Seminal in the sense that a win for the GFA potentially ends Palmer’s presidential ambitions. Conversely, victory for Palmer could annul last year’s elections, forcing fresh elections.
Victor Tamakloe
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