FAM Disciplinary Committee refers Wanderers’ Airtel Top 8 fiasco back to the Competitions Committee

* The second leg of the Airtel Top 8 match between Wanderers and Silver Strikers should not yet be played until the resolution of the matter

* Where the right to a hearing was completely abrogated, the decisions of such a flawed process cannot stand

By Duncan Mlanjira

The Disciplinary Committee of Football Association of Malawi (FAM) has determined that Mighty Wanderers were not provided their right to be heard when the Competitions Committee reviewed and made determinations following the violence and abandonment of the Airtel Top 8 between the Nomads and Silver Strikers on September 23.

And quoting Article 94 of FAM’s Disciplinary Code, the Competitions Committee “completely abrogated” Wanderers’ right to a hearing and thus “the decisions of such a flawed process cannot stand”.

This is contained in a determination that the FAM Disciplinary Committee Allison M’bang’ombe (chairperson); Ted Roka (vice-chairperson) and member Khumbo Bonzoe Soko has issued on Tuesday, October 17, which orders that the case be referred back to the Competitions Committee emphasizing that “no disciplinary measure or indeed any other measure which adversely impacts another can be meted out against any person before that person is heard”.

“The Committee, therefore, sets aside all of the decisions that were made by the Competitions Committee as communicated in its Determination dated 28th September 2023.

“This however, cannot be the end of the matter,” continued the determination. “It is quite clear to the Committee that the matters that occurred on 23rd September 2023 ought to be properly inquired into and appropriate decisions made.”

Meanwhile, the second leg of the Airtel Top 8 match between Wanderers and Silver Strikers — whose first leg was determined that it ended 2-0 in favour of Silver Strikers and not 2-1 when it was abandoned should not yet be played until the resolution of the matter.

Amongst other decisions that the Nomads were appealing included a financial sanction of K500,000 for being found guilty of failure take the necessary precautions to prevent their supporters from displaying unsporting behaviours by throwing objects into the field of play and damaging stadium seats.

The Committee has also ordered Wanderers to pay for the costs associated with the repair and restoration of all damaged facilities at Bingu National Stadium which stands at K22,083,400 as per the preliminary assessment by Bingu Stadium authorities.

Wanderers were also fined K2 million for being found guilty of bringing the game of football, FAM, and the name of the sponsor into disrepute.

The Disciplinary Committee maintains that the Competitions Committee “does not have adjudicative powers especially where the allegations of misconduct are contested”.

Quoting Article 94 of the Disciplinary Code for FAM, it clear indicates that teams that flout competition rules shall be heard before any decision is passed and that they may, in particular refer to the file; present their argument in fact and in law; request production of proof; be involved in the production of proof; and obtain a reasoned decision — while special provisions may apply in certain circumstances.

The Disciplinary Committee further observes that the Competitions Committee’s mandate is to organise and monitor the competitions of FAM in compliance with the provisions of the Statutes and the regulations applicable to FAM competitions.

It shall be responsible for drawing up of fixtures, rules and regulations and competitions calendar, which have to be forwarded to the Executive Committee for approval.

“Pursuant to this mandate, it took charge of the FDH Bank Cup. Its further powers and competencies were elucidated in the FDH Cup Rules and Regulations of 2021.

The Rules — Articles 10.2 and 10.3 — provide that:

* Any acts of violence or hooliganism that shall threaten the successful outcome of the match shall be dealt with by the Competitions Sub-Committee;

* The Competitions Sub-Committee through the Disciplinary Committee of FAM shall take any appropriate measures to deal with culprits that are deemed to have perpetrated or caused any acts of violence or hooliganism.

Article 24.2 on the other hand provides that the Competitions Sub Committee shall impose fines for unsporting behaviors or misconduct which include imposing the fines straight away or charge the culprits first depending on the gravity of the unsporting behaviours and availability of undisputed evidence.

“The question that has exercised the mind of the Committee is whether the Respondent can exercise disciplinary powers in managing competitions under rules specifically promulgated for those competitions.

“The view of the Committee is that the Respondent would only be competent to do this where the proposed disciplinary measure and the evidence which grounds it are uncontested (Article 24.2 of the Rules).

“This, in the Committee’s view, would strictly speaking be an administrative as opposed to a judicial process. To determine otherwise would, in the view of the Committee, be to undermine the ability of the Respondent to effectively and efficiently manage a competition over which it has been given charge. This would especially be undesirable where the charges are not being contested.

“Where the evidence is disputed or the charge contested, however, the Committee’s view is that the Respondent must cede jurisdiction to the Committee as one of FAM’s judicial organs”.

Thus the Disciplinary Committee observes that if the Competitions Committee was to start conducting hearings — where the evidence was being disputed – it would in essence usurp its authority as per Article 42 (1) (a) of the FAM statutes, which establishes the Competitions Committee, “has not given it judicial powers”.

“These powers cannot be claimed under rules that are promulgated under the Statutes for these rules must of necessity be subservient to FAM Statutes. Where there is an inconsistency between any rules governing a specific competition and the FAM Statutes, therefore, the provisions of the Statutes will always prevail.”

The Disciplinary Committee goes further to say since the Competitions Committee “would invariably have been intimately involved in the factual matters leading to the charges”, the Disciplinary Committee “finds that it would be contrary to the rules of natural justice for the Respondent to then purport to assume jurisdiction over the case and to determine the charges. This would be akin to a person being a judge in his own cause.

“The Committee notes that Article 44 (10) of FAM statutes explicitly proscribes a member of any judicial organ of FAM from being a member of any other body of FAM. This, in the committee’s view, was not an accident. It was a deliberate design to ensure that the ‘judges of FAM’ are properly distanced from the arena where football disputes are likely to originate.

“This distance, in turn, preserves the integrity of proceedings and decisions that are made by the judicial organs.”

Further, the Disciplinary Committee finds and holds that once it became apparent that when Wanderers were contesting the charges levelled against it, the Competitions Committee should have referred the matter to Disciplinary Committee for adjudication.

It further argued that the determination of the fate of the match is not a disciplinary proceeding per se but rather part of administrative functions that the Competitions Committee itself has to manage, saying if the Disciplinary Committee was “to determine the fate of the match, it would have usurped the powers of the Competitions Committee which itself would be contrary to the statutes of FAM”.

“The matter of the fate of the match will be remitted back to the Competitions Committee, therefore, for its disposal. In considering this matter afresh, the Competitions Committee is hereby directed to solicit and consider representations from the Appellant and possibly Silver Strikers FC as these are the parties that will be directly affected by any decision that the Competitions Committee will make.

“In respect of the rest of the disciplinary matters that arose from the game, that is assuming that the Competitions Committee and FAM are desirous of pursuing the same, then the following orderers are issued:

(a) The Competitions Committee should, within 48 hours from the date of this Decision, proffer charges against any party that the Committee feels should answer for what happened at BNS on 23rd September 2023. The charges should be accompanied by evidence which the Committee will rely on.

(b) Should the respondents to the charges accept the charges, then the Competitions Committee can proceed to administratively impose the relevant sanctions.

(c) Should the charges be contested, however, then the matter will be heard and disposed of by the Disciplinary Committee on a date to be advised.

Of necessity, the Disciplinary Committee maintains that the second leg of the Airtel Top 8 match between Wanderers and Silver Strikers “be stood over and an interim order suspending this fixture until the resolution of this matter is hereby issued”.

The Committee stresses that “it might benefit the development of the game and its attendant institutions and procedures if the proceedings before it were taken seriously by all disputants”.

“While there may be cost implications, it might not be out of place for disputants to consider retaining Counsel. This will not only result in more sharply streamlining the issues that must be resolved, but it will also make the Committee’s work a lot easier.

“Organs of FAM should get guidance from decisions of the Committee. Much as the principle of stare decisis, the bedrock of the common law legal system, may not have explicit application in the resolution of football disputes, it is imperative that the Committee be consistent in the manner in which it resolves like disputes.

“This has the benefit of creating certainty. In this particular case, it would appear to the Committee that the Competitions Committee completely ignored the previous decision of this Committee in In the matter of silver strikers football club against the competitions committee of the Football Association of Malaŵi.

“In the same vein, the Committee would like to encourage parties that seek to bring cases before it to ensure that they familiarise themselves with the previous Decisions of the Committee.

“This is how this matter shall be disposed of. Any party not satisfied with this Decision may appeal the same to the Appeals Committee of the Football Association of Malaŵi.”