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TAS 2021 A 7678 Constant Omari c. FIFA (with grounds) (CAS)

Why it matters

This case is significant for clarifying the extensive discretion of FIFA's Review Committee in determining the eligibility of candidates for high-ranking positions. It establishes that a candidate can be declared ineligible based on a *prima facie* ethics investigation, even without a formal finding of guilt, if there are serious suspicions. The decision underscores the paramount importance of "impeccable integrity" and being "beyond suspicion" for top football officials. Crucially, it differentiates administrative eligibility decisions from disciplinary sanctions, affirming that principles like proportionality and presumption of innocence do not apply with the same rigor in eligibility assessments, thereby setting a stringent standard for governance in international football.

Summary

Constant Omari, a prominent football official serving as President of the Congolese Football Association and 1st Vice-President of CAF, sought a position on the FIFA Council. His candidacy was challenged when the FIFA Ethics Committee's Investigatory Chamber initiated a preliminary investigation into his conduct. The investigation focused on potential violations of the FIFA Code of Ethics (CEF), specifically concerning his involvement in contracts between CAF and Sportfive/Lagardère Sport. Allegations included that an amendment to a contract, made while Omari was the highest-ranking member of an ad hoc committee, served his and Lagardère's interests to the detriment of CAF, causing an estimated financial prejudice of USD 6.7 million. Further, luxury expenses for Omari, totaling EUR 66,444, were allegedly paid by Lagardère. Based on this ongoing formal investigation and the serious nature of the charges, the FIFA Review Committee declared Omari ineligible for the FIFA Council position on January 26, 2021. The Committee emphasized that a candidate for such a high office must be "beyond suspicion." Omari subsequently appealed this decision to the Court of Arbitration for Sport (CAS). The CAS Sole Arbitrator, Prof. Petros C. Mavroidis, applied the FIFA Statutes, FIFA Governance Regulations (specifically Article 1 par. 4 of Annex 1), and the FIFA Code of Ethics, with Swiss law as a subsidiary. The Arbitrator upheld the FIFA Review Committee's decision, rejecting Omari's appeal. The CAS found that the Review Committee possessed a "wide margin of appreciation" in assessing eligibility. It was not necessary for Omari to have been formally found guilty of misconduct; the existence of a *prima facie* case of potential violations, stemming from a properly conducted preliminary investigation, was sufficient to conclude that he did not meet the "impeccable integrity" standard required for a top FIFA position. The Arbitrator noted that Omari, being privy to communications regarding the modified contract and having had luxury expenses paid by Lagardère, knew or should have known about the contentious aspects. The CAS also clarified that eligibility decisions are administrative, not disciplinary, which means that principles such as proportionality and the presumption of innocence do not apply with the same force as they would in a disciplinary context. Consequently, the appeal was rejected, and Omari was ordered to bear the full costs of the arbitration.

The detail

Parties: TAS 2021 A 7678 Constant Omari c. FIFA (with grounds)

Outcome: The appeal filed by M. Constant Omari against the FIFA Review Committee's decision of 26 January 2021 was rejected, and the FIFA Review Committee's decision was confirmed. M. Constant Omari was ordered to bear the full costs of the arbitration.

Applicable law: FIFA Statutes, FIFA Governance Regulations, FIFA Code of Ethics (CEF), and Swiss law (subsidiary).

Issues in play: The case involved the FIFA Code of Ethics (CEF) and FIFA's governance regulations concerning eligibility checks for high-ranking officials. The central legal question was the scope of the FIFA Review Committee's discretion in declaring a candidate ineligible based on ongoing ethics investigations, and whether principles like proportionality and presumption of innocence applied to such administrative decisions.

Read the full decision at Court of Arbitration for Sport (football, via FIFA) ↗

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