No short-cuts: a lesson for sports regulators
Yves Jean-Bart v FIFA (CAS 2021/A/7661)
On 14 February 2023 The Court of Arbitration for Sport (‘CAS’) upheld the appeal of former president of the Haitian Football Federation, Yves Jean-Bart, against the findings of the Adjudicatory Chamber of the FIFA Ethics Committee, that he had sexually assaulted a number of female players at the Haitian National Technical Centre. In November 2020, FIFA banned Jean-Bart from football for life and fined him CHF 1m (£888,000).
The CAS award was made public on 24 February. The decision sparked consternation amongst some observers. Such has been the reaction that CAS has sought to clarify, and further justify, its decision in subsequent press releases, shifting the blame firmly onto the sufficiency of FIFA’s investigation and case presentation, and noting that neither “his guilt could be proven (nor his innocence)”.
The case demonstrates the risk to sports’ governing bodies of relying on anonymous hearsay evidence in disciplinary proceedings, even if such an approach is followed for understandable reasons and permitted by the rules.
The FIFA proceedings
An investigation by the FIFA Ethics Committee began in May 2020, following an article published in The Guardian in which anonymous sources made serious allegations against Jean-Bart. He was said to have sexually abused female players, including minors, using threats, coercion, and inducements on those who refused to accept his advances. His behaviour was said to be persistent and part of a systematic treatment to which female players were subjected.
Perhaps unsurprisingly given Jean-Bart’s status with Haiti as a powerful man, and the nature of the allegations, complainants and witnesses were reluctant to come forward. Witness intimidation was an unpleasant feature of the case.
This presented a difficulty for the FIFA investigation, and, ultimately, it meant that FIFA could only rely upon direct evidence from only two (anonymised) complainants, of whom only one was prepared to give oral testimony to the investigatory panel; the other providing hers in writing.
Accordingly, FIFA collaborated with two non-governmental organisations (‘NGOs’) Human Rights Watch (‘HRW’) and the Fédération Internationale des Associations de Footballeurs Professionnels (“FIFPro’) as “institutions that were able to establish direct communications with the victims and witnesses” in an effort to evidence the widespread nature of the abuse alleged.
The reports from both NGO’s were damning of Jean-Bart. The FIFPro report, for example, claimed to have gathered the names of 14 alleged victims of Jean-Bart’s abuse.
The reports were comprised of complaints from anonymous sources. This approach was justified by the NGOs on the basis of fear of recriminations, and concern over the well-being of the victim, with the leading therapist of the group of clinicians providing psychological assistance to the victims confirming that it would not be in their interests to give evidence.
Not only were the complaints anonymous, but they contained limited detail. This was justified on similar grounds: the FIFPro report explained that it had been provided with a greater level of detail “but that we have had to omit details to protect the identity of individuals”.
In other words, the majority of the complaints made against Jean-Bart were generalised in nature, and came in the form of anonymous hearsay.
Common with most sport disciplinary forums, there was no bar on evidence of this nature being admitted in the FIFA proceedings: indeed, the FIFA Ethics Code expressly states that “any type of proof may be produced”. The Committee reasoned that it could rely on the evidence of the reports on the basis of the reputation and independence of the NGO authors. And so the reports formed the basis, in significant part, for the decision of the FIFA Ethics Committee to find the allegations proven, and sanction Jean-Bart accordingly.
The CAS proceedings
In allowing Jean-Bart’s appeal, CAS took an altogether different, more conventional, view of the nature of reports, declaring them not to be “sufficiently evidentiary”, explaining: “anonymous or indirect testimony or rumours cannot be sufficient to convict a person, otherwise fundamental principles of law would be violated”. That conclusion is entirely in keeping with the approach generally taken to anonymous hearsay in professional disciplinary proceedings: while it might be admissible (unlike in criminal proceedings), absent supporting evidence, it will be afforded little or no weight at all.
CAS was at pains to point out that it was “not an investigating authority” but an adjudicating one, and in a subsequent press release, stated “it must be noted that the task of investigating and proving the existence of the facts of the case rests with the parties and not with the Tribunal, even when the alleged facts are extremely serious”.
Inherent in CAS’s decision are criticisms of FIFA’s investigation and the way it presented its case. CAS clearly thought that the reports ought to have formed the basis for further investigation by FIFA “to verify their validity” but the reports “had not been corroborated or confirmed by other means of proof regularly administered” for example, through witness testimony.
In this connection, CAS observed that FIFA “did not seek to call as witnesses the authors of the various documents to which it refers and who are supposed to have had contact with victims who allegedly refused to testify”. In other words, there was more that FIFA could have done to strengthen its case that would not require frightened and traumatised witnesses to give evidence.
While the case offers no easy answers as to how sports’ governing bodies can persuade reluctant witnesses, with genuine concerns about their safety, to come forward, it does underline the importance of corroborating hearsay evidence through proper investigation. FIFA appears to have too readily and uncritically accepted the NGOs reports without considering the weight a fair tribunal might give such evidence. The failure to call the authors of the report to give evidence appears to be an obvious tactical misstep.
FIFA may yet appeal the award, especially given Jean-Bart’s announcement that he wants to return to the top of Haitian football. Inevitably, a further dispute between FIFA and Jean-Bart looms. It is hard to avoid the conclusion that FIFA might have avoided such a situation with a little more diligence and nous on its part.