ZIFA, PSL dispute escalates
16 December 2016
ZIFA’s dispute with PSL has escalated to the extent that the league is responding to the association through their lawyers.
PSL are rejecting directives from the association, including the appointment of Dynamos president Kenny Mubaiwa as the chairperson to replace suspended Peter Dube.
The league is sticking to their position that there is a dispute between them and the association which must be resolved through the Court of Arbitration for Sport in Switzerland.
There is a leadership vacuum at PSL and if anything happens to PSL chief executive Kenny Ndebele, the league will be plunged into more chaos.
PSL lawyer Wellington Magaya of Coghlan, Welsh and Guest has written to the Zifa president Philip Chiyangwa giving his client’s position regarding Zifa’s latest letter.
“In your letter under reply you purport to have appointed Mr. (Kenny) Mubaiwa as the Chairman of the PSL. This you claim to have done in terms of Article 34 (e) and (O) of the ZIFA Constitution. We advise as follows: –
“The Articles of the ZIFA Constitution that you purport to rely on do not in fact give you the powers to “appoint” office bearers for affiliates,” read the letter.
“Article 34 (e) of the ZIFA Constitution relates to the appointment of the Electoral Committee established under that Constitution. It cannot be stretched to cover the appointment of the Chairman of an affiliate let alone an affiliate whose office bearers are appointed or elected in terms of such affiliate’s Constitution. You have acted outside both power and capacity in this regard.”
Magaya also noted that PSL are concerned with the moves taken by Zifa as they threatened to kill the league.
“You are also aware that the PSL in its Special Congress of the 19th November 2016 noted with concern your interference with the administrative structures of the PSL with the primary intention of thereby rendering the same dysfunctional,” read the letter.
Read the full letter below…
14 December 2016
Zimbabwe Football Association
160 Enterprise Road
Dear Dr. Chiyangwa
RE: PREMIER SOCCER LEAGUE AND ITS MEMBER CLUBS[OUR CLIENTS] V ZIMBABWE FOOTBALL ASSOCIATION CAS 2016/0/4873; RE YOUR LETTER OF THE 10TH DECEMBER 2016.
Your letter of the 10th December 2016 referenced “Request for information”, and directed to the Premier Soccer League has been referred to us for advice and response.
You will be aware from previous correspondences that our Mr. Magaya represents the Premier Soccer League (“PSL”) having been duly appointed by a committee compromising of the PSL Chief Executive Officer and Dr. Lewis Uriri, set up for that purpose at the PSL’s Annual General Meeting of the 5thMarch 2016. The appointment is in terms of Article 37a(1) of the PSL Constitution.
You will be equally aware that we are the PSL’s principal attorneys in case number CAS 2016/0/4873 pending before the Court of Arbitration for Sport (“the CAS”). You will have had sight of the resolution of the PSL Special Congress of the 19th October 2016 reaffirming an earlier resolution of the 29th October 2016 to take the dispute between the parties to the CAS. Kindly note that the PSL as a universitas capable of suing and being sued in its name as such, and its member clubs took the collective decision to all and each approach the CAS. The resolution of the Special Congress of the 19th November 2016 appointed agents for both the PSL and its member clubs for the purposes of the the CAS proceedings. Such agents could only be formally instructed by the PSL’s regular attorneys. We accordingly represent each of the member clubs of the PSL pursuant to Article 37a (4) of the PSL Constitution.
In your letter under reply you purport to have appointed Mr. Keni Mubaiwa as the Chairman of the PSL. This you claim to have done in terms of Article 34 (e) and (O) of the ZIFA Constitution. We advise as follows: –
3.1 The Articles of the ZIFA Constitution that you purport to rely on do not in fact give you the powers to “appoint” office bearers for affiliates. The said Articles read in relevant part as follows:
“Article 34 Powers of the Executive Committee
The Executive Committee:
e) shall appoint the Chairman, Deputy Chairman and members of the Electoral Committee;
o) may delegate tasks arising out of its area of authority to other bodies of ZIFA or third parties.”
3.2 Article 34 (e) of the ZIFA Constitution relates to the appointment of the Electoral Committee established under that Constitution. It cannot be stretched to cover the appointment of the Chairman of an affiliate let alone an affiliate whose office bearers are appointed or elected in terms of such affiliate’s Constitution. You have acted outside both power and capacity in this regard.
3.3 Article 34 (o) of the ZIFA Constitution relates to the delegation by the ZIFA Executive Committee of its powers under Article 34 (a)-(n) of that constitution. The appointment of a Chairman for the PSL or any affiliate of ZIFA is certainly not one of the functions of the ZIFA Executive Committee and cannot thus be delegated. You cannot in short, delegate a power you do not have.
3.4 The PSL which in correspondence from your good offices and statements attributed to the Chairman of the ZIFA Constitutional Review Committee has been asserted to have no legal recognition under the ZIFA Constitution, is an affiliate of ZIFA. It has an existence independent, distinct and separate of ZIFA. It has specific constitutional provisions for the election or appointment of its office bearers.
3.5 The PSL Board of Governors remains extant and capable of executing its functions as such. It has not, seating as an electoral college in congress, elected Mr. Mubayiwa as its Chairman. The position remains as resolved by the Special Congress of the PSL, namely that pending the disposition of the matter relating to the status of its “suspended” Chairman, the PSL shall be superintended over by the Emergency Committee established by Article 33 of its Constitution.
3.6 The PSL Emergency Committee (with the exception of Uriri who has voluntarily withdrawn from all football related administration functions regardless of his purported “suspension”, “reinstatement” and “re-suspension”) remains capable of discharging its duties as such.
3.7 The PSL Chief Executive Officer is mandated by resolution of the Special Congress aforesaid to report to the Emergency Committee. The PSL CEO will continue to report to the Emergency Committee as resolved. Until the PSL Congress resolves otherwise, and for the avoidance of doubt, the PSL Board of Governors does not recognise your appointment of Mr. Mubayiwa as the Chairman of the PSL. The PSL, its Board of Governors and Emergency Committee remain bound by resolutions of the Special Congress aforesaid and will accordingly not follow your directive to comply with instructions given by Mr. Mubayiwa in his capacity as your imposed Chairman of the PSL.
You are also aware that the PSL in its Special Congress of the 19th November 2016 noted with concern your interference with the administrative structures of the PSL with the primary intention of thereby rendering the same dysfunctional. The PSL noted that its very existence is under threat and resolved to seek interim measures of protection from CAS barring your interference with its administrative structures and the purge of its Governors perceived to be influential and less likely to tow your line. You have continued on this path regardless of the fact that this is now the subject of a judicial process. You have gone as far as the unilateral proclamation of a position that will prevail regardless of the fact that the matter in issue have neither been resolved by the CAS nor been compromised upon by the parties. This is, needless to say, contemptuous of both our clients and the CAS procedures.
Given that this matter is now purely legal and pending before a court established by law which is empowered by its Procedural Code to rule on its own jurisdiction regardless of your public pronouncements to the contrary, we urge that the legal process be respected. We demand further, that all correspondence on matters that touch on issues that are before CAS be directed to us. We should be grateful to be advised of your nominated agent(s) in order that we may directly liaise with the same.
We advise further that all requests for documents that touch on the PSL and its member clubs’ litigation should be dealt with on the basis that all relevant documents have been attached to the Request for Arbitration as exhibits. Any further documents that may be necessary will be disclosed and exchanged at the appropriate stage of the arbitration process.
We have taken the liberty of copying this letter, as well as forwarding your letter under reply, to the Counsel for CAS to whom case number CAS2016/0/4873 has been assigned pending the constitution of the Arbitral Tribunal.
COGHLAN, WELSH & GUEST
CC – (1) Jose Luis ANDRADE, Counsel to the CAS – by email (firstname.lastname@example.org) copy by courier.
Encl.Letter dated 10 December 2016 from the Zimbabwe Football Association President, Dr. Phillip Chiyangwa, to the PSL CEO, Kennedy Ndebele.
(2) PSL Governors
(3) Mr. T. Nyawanza, Genesis Law Associates Solicitors LTD, by email (email@example.com)
(4) Mrs. Pattie Kachidza, of Counsel, by email (firstname.lastname@example.org).