Legal analysis of CAF Appeal Board decision on Morocco vs. Senegal AFCON final chaos

Senegal stripped of AFCON title Morocco declared winners — this shocking development has taken the football world by storm. 

In a dramatic twist, Senegal has reportedly lost their Africa Cup of Nations title, with Morocco now declared winners.

The decision has sparked massive reactions from fans, analysts, and players across Africa and beyond. Many are questioning what really happened and how such a major change could occur.

Transcript

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Well, the last time I was here on VAR, I was speaking about the CAF disciplinary board's decision relating to Senegal and Morocco and the outcome of the AFCON. I did give you a high-level analysis as to how I thought people would react to this. And generally speaking, how this looks like as the case heads to the cast. Well, on this follow-up episode, what I want to do is to just break down the case for Morocco and the case for Senegal. A lot of emotions have been poured into the responses relating to this. But you have to understand that ultimately, emotions aside, the final decision that will be made by the Court of Arbitration for Sport will be based purely on the arguments that have been submitted and the letter of the applicable regulations relating to the Confederation of African football. So let's start with why the disciplinary, the appeals board of CAF ruled the way they did. It's always important for us to understand that laws, when they are drafted, are drafted with a clear intent of the draftsman. And it's very clear that the African Cup of Nations regulations that were applied by the CAF Appeals Board appear to have been drafted to maximize the punishment for non-compliance with the regulation. It's quite clear to me that they were meant more as a deterrent. However, the incidents that they sought to deter well came to fruition with Senegal's quote and unquote walk off the pitch. People have raised issues about the flaction of time. I won't raise it because the flaction of time was not fatal to the appeals process or the rights of the Moroccans to appeal. So let's start with the so-called heavy-handedness of the CAF disciplinary board decision. It was quite obvious from my analysis of the regulations that the regulations were structured and drafted with strict liabilities in mind. And you'd have to look particularly at the articles 82, 83, and 84, which are the applicable regulations concerning um the decisions that were taken by the CAF disciplinary, well, the CAF Appeals Board. Now, based on the regulations of African Cup of Nations, the expression that the board relied on was that the team which contravenes the provisions of Article 82 and 83 shall be eliminated from good from the competition. And it has a severe and perhaps absolute effect on the status of the penalized team. That's why I have stated that although Senegal just simply lost the match in the sense that the board established that Morocco, Morocco had won by three goals to nil, if the letter of the law was to be applied fully, then Senegal would no doubt lose their place in the tournament completely rather than becoming second place finishers. Now, when you look at the provisions of the competition, it talks about eliminated for good, which reasonably means that it triggers a chain of administrative and sporting erasures, which could be for feature of the medals or an override of the scoreline and probably future bans. The discipline board did not go as far. And my question has always been: if they decided to apply the punishments for losing, why didn't they apply the second part? Because the expression relating to the tournament is conjunctive. The expression used there is and. And upon a strict interpretation of the 82, then it should have been applied wholly. Now, for those who have said that this is harsh and perhaps they shouldn't have just looked at their letter of the law, they should have looked at the spirit of the law. You would see that the expression leaves the ground before the regular end of the match, which is in Article 82, leaves very little rigged room or exercise of discretion and functions as a strict liability trigger. Why do I say so? The regulations do not define a minimum duration for the absence. The legal breach is the act of leaving the pitch itself. Whilst the match is live, it means that once Senegal decided to leave the pitch, this article and the corresponding punishment was triggered, which means they decided to leave before the regular end of the match without the explicit permission of the referee in charge. The issue of the referee authority also comes in. The referee is the sole arbiter of what constitutes authorization. And so if a referee does not formally sanction a team's departure, the threshold for the breach is met immediately upon the team's exit from the field of play. There have been several arguments about which arena of the pitch constitutes the area that a team will have to leave. That those who have said, well, ground actually means the stadium in English. I have read the French version, and ground used in the FIFA regulation French translation says literal. And littoral means the pitch. And so for a strict application of Article 82, you could say the moment the Senegalese players left the pitch, the law does not indicate how many out of the team should have left the pitch and how many should have stayed. So that issue does not come up. So Senegals return after 17 minutes onto the pitch act as a motivation. Well, you have to note that the way the text is drafted, it functions as a strict liability trigger. It does not define a minimum duration for the absence. The actual legal breach is leaving the pitch whilst the match was still ongoing. This is what they describe as before the regular end of the match without the explicit permission of the official in charge. Is that what happened? Really, that's what happened. They left the pitch. They left Litoran, as the French um translation of the regulation says. The referee is the sole arbiter of what constitutes authorization. Did the referee give Senegal authorization? As far as the evidence that has been tendered or that is available to us in the media is concerned, no. Now, did returning to the pitch undo mitigate or wave off the offense of having to walk off the pitch, which is triggered by the fulfillment of the 82. The regulations do not state that coming onto the pitch after one minute, two minute, 30 seconds act as a mitigating factor. In fact, 82 states that a team committing this act shall be considered a loser and shall be eliminated for good from the current competition. It seems to give an air of irreversibility once a team walks off the pitch. Now, the big question that has come up is what's the referee's rule in all of this? And that if the referee knew that this triggers a forfeiture and in the CAF referee's committee knew that this triggers a forfeiture, why was not the referee informed or reminded that the forfeiture has been triggered? And so he then proceeds to enforce it. Does the fact that he did not trigger the forfeiture mean that a team that feels agripped or that feels that that particular regulation has been breached cannot retrospectively have this applied based on a disciplinary hearing? It's a big question. But then again, staying within the text, the text uses the imperative shall. In the French, it talks about absolute murd, uh something along the sides. In fact, the expression used in the French version seems to say certainly, which is akin to show, which means that the legal status of becoming the loser is triggered in this case if you walk off the pitch before the regular end of the match. So legally, the match effectively ended for the offending team at the moment of the unauthorized departure, regardless of whether or not they opted to resume uh the match later. All this is just to make the point about the decision that the board made that on the letter of the law, those who argue that the appeals board were right and that the Moroccan appeal position was right may be justified in the application of the letter of the law because that is what the law said. The return from a strict regulatory standpoint was not illegal mitigation under the current AFCOM framework, which explains the harsh stance taken by the appeals board. The issue has been raised about discretion and whether the appeals board should have exercised discretion. Well, the 84 mandates that a team contravening 82 will lose the match by three goals to know. And and it's straightforward. So it will appear as if the board had very little discretionary room to lower the penalty or to massage the penalty because the regulations prescribe a very specific, non-negotiable outcome for the match under such circumstance. That raises the issue I spoke about initially, which is the for good application. That if it is so mandatory, why did the board not go as far as including the elimination from good? Which means Senegal will suffer more punishment beyond just losing by three goals to nil. So, in summary, whereas a return to the failed and the subsequent resumption of the match leading to the natural end of the match or the ordinary end of the match with Senegal um receiving their trophy may be seen as a waiver or a sporting motivations, mitigation, maybe in other jurisdiction, based on this CAF regulations. This regulation seems to prioritize deterrence over match disruption. And so under the some uh under the circumstances, it will appear as if the board viewed the 17-minute workout as a complete violation of Article 82 and a fulfillment of the requirement leading to the 3-0 that was awarded against Senegal. So, this is the case for the board. This is the case in favor of Morocco. Now let's look at the case for Senegal. Senegal have recently announced that they have filed their defense at the Court of Arbitration for Sports. Take note the Court of Arbitration for Sports, exports is the highest decision-making body. The decisions it makes are usually looked at based on sports integrity and are looked at from a very broad measure beyond just the chaos of a situation relating to African football. And so to successfully overtend the CAF Appeals Board decision at the Court of Arbitration for Sports, Senegal's team may have to leverage several compelling arguments which may not necessarily fulfill the letter, the letter of the regulations that CAF has established for the AFCON. So let's look at the first one: the resumption versus waiver argument. Senegal can argue that the referee's decision to resume and complete the match constituted a de facto waiver or refusal to play. Because if the referee thought the match had been forfeited, the referee simply had the duty to whistle and say the forfeiture has been triggered, and so Morocco are the winners. But the referee did not. The issue that has come up also relates to the referee's supremacy, and this could be an argument that Senegal advances under Article 2310 of the regulations. Once the match has started, it is exclusive and prerogative of the referee to decide on this suspension and total stop. The referee did not exercise this supremacy. And so it did not exercise the supremacy in favor of the forfeiture, but decided to exercise it in favor of resumption and continuation of the match. And Senegal will argue that this effectively meant the breach had been cured because they'll contend that by allowing the players to return and blow in the final whistle only after 120 minutes, the referee cured the temporary walk-off. And that legally a match normally reaches its regular end based on the final whistle and cannot be retrospectively or retroactively be declared a forfeit under 82. Strict versus a purposive approach of article 84. And the law tends to favor a modern purposive approach to interpretation. Now, Snegal may challenge the appeals board's interpretation of a penalty triggers. We've raised the issue of the conjunctive and disjunctive reasoning. That if you say then that you want to go with a strict interpretation of the regulation, the regulation says in 84 that articles 82 and 83 must be fulfilled for the punishment in 84 to kick in. Senegal may argue that the legislative intent of the AND or the conjunctive requires a cumulative breach of both article 83 and 82. So this is 83 talking about not showing up or showing up late. 82 talking about playing the match and then walking off. Of course, the counter-argument that have been made by people is that 82 and 83 cannot logically be fulfilled. You cannot, on the one hand, not show up and on the other hand show up and walk off the pitch. But then, hey, we are using the very basis that those who make the case for the appeals board have said, which is a strict interpretation. And so a strict interpretation of the conjunctive use of and would mean in the case of Senegal, take note that the conditions requiring 84 to be triggered have not been fulfilled. And then there's the issue of the lack of the definition of refusal, that the regulations do not define how long a delay must be to constitute a refusal to play. Assuming the trigger for the decision is the refusal to play. Snegal will argue that the 70-minute protest, followed by a full resumption, does not meet what is otherwise a high legal threshold of refusal to play, which typically may imply a permanent seization or refusal to play. Then there's the issue of proportionality. By deciding to take the trophy and reversing the score line, did the CAF appeals board kill an ant with a sledgehammer? Effectively, is the decision disproportionate to the acts that they seem to punish? Well, the first one becomes the issue of the maximum penalty and then the minimum delay, which is Snegal arguing that stripping them of a championship and perhaps going as far as eliminating them for good for a temporary delay, which did not lead to any violence or any external interference, is disproportionate to the extent that it is harsh. Again, they would point to the fact that the disciplinary committee decided to give alternative sanctions. And those are more nuanced and less controversial ways of addressing this. The final point has to do with force major and the match commissioner's role. Article 91 talks about a force majeure, which provides a basis for some of these actions. Could Senegal retrospectively raise issues around safety, that the walkoff was prompted by threats or perhaps player safety. Did any of the circumstances amount to a force major? Take note that the threshold for force majeure is quite high. Now, Article 2311 of the regulation says the match commissioner must reconcile the point of view during a protest. And if the match commissioner failed to properly mediate within the 17% delay, 17-minute delay, sorry, could Senegal argue that the match commissioner's role was integral to the series of steps that led to the forfeiture? And once this was not done, they cannot be held to have forfeited the match. Now, finally, this is the Court of Arbitration for Sports. And one of the core tenets has been the issue of sporting integrity. And Senegal will likely appeal to the Court of Arbitration for Sports precedents by saying that overturning the scoreline and making Morocco win by three goals to nil and taking the trophy will value the principle of sporting integrity to the extent that it will be overturning a result achieved after 120 minutes of football, of competitive play. And they are most likely to cite the fact that Morocco accepted a resumption and therefore they may have waived their right to benefit from a forfeiture. So you can see clearly on the letter of the law, there's a strong case to be made for the board's decision. But this is caste. And as I said, they tend to have a wider perspective. And at one of the cornerstones of their decision is the sporting integrity of a decision. So who do you think will win the case at the Court of Arbitration for Sports? Over to you then. This is VAR. My name is Samuel Bartels. Come to our page on Yo Charlie and subscribe to all our content and like our content as well as we bring you insightful, in depth, and mind blowing analysis of some of the key things in the world of sports, plus so much more in entertainment on our page. We'll see you for the next episode of VR.