Football litigation: Berekum Chelsea application for Stay of Execution dismissed


The GFA Disciplinary Committee has dismissed Berekum Chelsea’s application for a stay of execution pending the outcome of its appeal at the Appeals Committee filed on March 20, 2015.

The Disciplinary Committee on Friday 20 March, 2015 declared Chelsea losers of all their matches played after February 4 until they settle their indebtedness to WAFA in respect of Solomon Asante’s transfer fees.

Chelsea immediately filed an appeal on Friday and also applied for a Stay of execution to keep the Disciplinary Committee’s ruling on hold until the Appeals Committees rules on the case.

However the Disciplinary Committee dismissed the Club’s application for a Stay of Execution.

Below are the facts of case, findings and the decision:

SUMMARY OF THE FACTS
On March 20, 2015, the Applicant through its solicitors, Egbert Faibille, Jnr. of Faibille & Faibille applied to this Committee on a Notice of Motion for a Stay of Execution pending the outcome of its appeal filed on March 20, 2017 at the Appeals Committee of the GFA to overturn the decision of Protest Case 008/2015 (Kumasi Asante Kotoko SC vrs. Berekum Chelsea FC) delivered by the Disciplinary Committee on March 20, 2015 upon the grounds contained in the accompanying Affidavit deposed to by the General Manger of Berekum Chelsea FC, Ralph Gyambrah.

The salient parts of the supporting Affidavit are:
a. that the Applicant (Berekum Chelsea FC) has been served with the Disciplinary Committee Decision.

b. that the aggrieved by the said Decision, the Applicant has filed a Notice of Appeal (Notice of Appeal was attached).

c. that the appeal has more than likely chance of success and that in the circumstance if the stay of execution is not granted, the Appeal will be rendered nugatory.

d. that there are special and exceptional circumstances warranting the grant of the instant application making this a proper instance where this Committee ought to grant the stay of execution.

FINDINGS AND GROUNDS OF THE DECISION
The Committee finds as follows:
1. that Berekum Chelsea has made the Application properly by a Motion and a supporting Affidavit.

2. that there were grounds set out on the affidavit to support the application with the appeal filed at the Appeals Committee properly attached.

The relevant regulations on stay of execution are Articles 37(17)(a), 37(17)(b) and 37(17)(c) of the General Regulations of the GFA.

These provisions are as follow:
37(17)(a): ‘An Appeal to the GFA Appeals Committee does not operate as Stay of Execution except so far as the Disciplinary Committee may otherwise order’.

37(17)(b): ‘An application for stay of execution shall be by motion or (sic-on) notice within three (3) days after being notified in writing of the ruling on (sic-by) the Disciplinary Committee’.

37(17)(c): ‘Any application for stay of execution shall be heard by the Disciplinary Committee after the aggrieved party had paid the appropriate fee of GH¢250.00, GH¢150.00 and GH¢75.00 in the case of Premier, First and Second/Lower Division clubs respectively’.

It is clear that the Applicant has satisfied the requirements of Articles 37(17)(a), 37(17)(b) and 37(17(c) of the General Regulations of the GFA and it is properly before the Committee for adjudication.

It is worthy to note that, under the Regulations of the GFA and under the above mentioned Articles for that matter, no room is made for a Respondent in the process for an application for a stay of execution. This, the Committee believes is to avoid delays in the grant or otherwise of the application.

It is also worthy to state that, a stay of execution filed under the GFA rules must through the affidavit in support disclose all the grounds and arguments for the grant of the stay of execution. For, by the operation of Article 41.5 of the GFA Statutes and Articles 37(10)(a) to 37(10)(d) of the GFA General Regulations, a judicial body of the GFA is not obliged to invite a party to its sitting to give further evidence, except in cases of misconduct or violence, when it deems it fit.

Thus, in such matters (one may say civil matters or non-violence and non-misconduct matters), the statements filed by the parties are deemed as the full evidence from the party unless the Committee thinks it requires further evidence. The concluding paragraph of Article 37(17)(d) of the General Regulations sums this up as follows:

Article 37(17)(d) ‘… Accordingly, representations made through their Statements shall be deemed final and conclusive of the factual and legal basis of their cases’.

In this respect, the Committee therefore proceeds to determine the stay of execution based on Motion and the supporting Affidavit of the Applicant.

To warrant a grant of a stay of execution, the Applicant must, at least, show that if it is not granted the club would be caused some irreparable suffering or that the outcome of the appeal at the will be rendered nugatory should the party be successful at the Appeals Committee.

The Applicant argues that there are special and exceptional circumstances warranting the grant of the instant application making this a proper instance where this Committee ought to grant the stay of execution. The Applicant has only suffered forfeiture of its matches from February 5, 2015 until the settlement of its indebtedness to WAFA. The decision only affects the results of the club’s matches in the First Capital Plus Premier League, the MTN FA Cup and the Elite Clubs Cup.

First Capital Plus League
It is the position of the Committee that, the club’s league results can easily be restored to the Applicant and thus the refusal to grant the stay shall not render the outcome of the appeal nugatory.

The Applicant will continue to play its matches in the league and the Premier League Board will record the results even though the club shall continue to forfeit its matches. Once the appeal is successful the recorded results shall be restored.

The Committee will, therefore, refuse the grant of the stay in this respect.

Effect MTN FA Cup
The Committee notes that should the decision of the appeal delay before the next round of the MTN FA Cup (which we do not anticipate), the outcome of the appeal may be rendered nugatory should New Edubiase FC be allow to play in the next round of the MTN FA Cup competition before the delivery of the Appeal Committee.

The Committee is, however, aware that the reverse of the situation is also likely. Thus, if we grant the stay and Berekum Chelsea plays in the Round of 32 of the MTN FA Cup, should the appeal be unsuccessful, New Edubiase FC would suffer an irreparable damage.

Thus, in the MTN FA Cup, the position of the Committee is to refuse the grant of the stay of execution in this respect. The Committee is, however, mindful to make an appropriate order to ensure that the Applicant, Berekum Chelsea and New Edubiase FC do not suffer any injustice should the outcome of the appeal go one way or the order.

Elite Clubs Cup
In the Elite Club Cup, the Applicant has already qualified to the 4th Round of the competition due to the withdrawal of Guan United from the competition and is yet to play a match. The 4th Round of the Elite Clubs Cup will be played in a league format. The Committee’s reasoning for not granting the stay of execution in terms of the league matches shall hold.

The Committee will, therefore, refuse the grant of the stay of execution in this respect.

DECISION
The Committee therefore, makes the following decisions:

1. That Berekum Chelsea could not demonstrate that the outcome of its appeal before the Appeals Committee will be rendered nugatory because the results of the forfeited matches of Berekum Chelsea can easily be restored without causing any irreparable damages to the club, the application for stay of execution of Berekum Chelsea shall fail and is hereby dismissed.

2. That being mindful of the closeness of the draw date and the match day of the Round of 32 of the MTN FA Cup (to be played on April 5, 2015), the FA Cup Committee is hereby ordered to put on hold the fixture of New Edubiase after the draw until the delivery of the decision by the Appeals Committee in the appeal filed by Berekum Chelsea.

Credit: Ghana FA

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