We are punished
Less than a fortnight before Ecuador is due to play in the World Cup, the Court of Arbitration for Sport (TAS) has ruled on the Byron Castillo case.
Castillo’s Ecuadorian citizenship has been reaffirmed, for the obvious reason – cited earlier by FIFA – that it’s up to the Ecuadorian government whether Castillo is a citizen. It was legitimate for Ecuador’s soccer team to field Castillo. No points earned in the 2022 World Cup qualification tournament are to be deducted. Ecuador will play in this World Cup, as scheduled.
But the TAS also has ruled that Castillo was born elsewhere and earlier than his passport says. So, although his citizenship and his eligibility to play are not objectionable, his documentation is. What is more, the TAS explains, the Federación Ecuatoriana de Fútbol (FEF) “is liable for an act of falsification … even if the FEF was not the author of the falsified document but only the user.”
The TAS grounds this on FIFA’s Disciplinary Code (the 2019 edition, presumably), article 21, paragraph 2:
♦ ♦ ♦ ♦ ♦
How sensible is this ruling? For argument’s sake, assume that Castillo – or his parents or other representatives – indeed gave false information so that he could obtain his citizenship papers.
The TAS’s ruling is consistent with the letter of FIFA’s Disciplinary Code. But a lesser punishment, or no punishment, also would have been consistent with the Code. An association may be held liable, the Code says. That is, punishment is optional; it should be determined on a case-by-case basis (and, eventually, by precedent).
Now, to take the word “may” so seriously is to interpret the Code rather literally; but then, a ruling against Ecuador depends on a severely literal reading of the Code. (Think of this as a “pound of flesh” sort of case.) As it is written, the Code says nothing about whether it matters if the party in question deliberately “used” a falsified document. But it seems that deliberate “use” was the Code’s target: it’s what the rule-makers evidently wished to discourage or punish (see paragraph 1 of the Code’s same article). And the TAS hasn’t determined whether Ecuador intentionally “used” a falsified document – at least, this isn’t stated in the ruling.
It behooves the authorities to be lenient on this occasion. The TAS is now imposing a harsh punishment for what hasn’t been proven to be anything worse than an unintended error. But this sets a fearsome precedent. How many other clubs or countries might be found similarly liable for failing to reject a false claim in this or that player’s papers? More than a few. And if this case becomes a precedent – as it must, if judgments are to be consistent – other cases would demand punishment than those involving “uses” of eligibility-determining falsifications. The present ruling makes it explicit that Castillo took the field eligibly. Ecuador’s punishment is for falsification, full stop – not for falsification-in-order-to-field-an-ineligible-player.
For insance, precedent would dictate that:
If a player lies about his birthday (height, weight, address, criminal record, etc.) but not his parentage, birth country, or any nationality-determining facts;
and if the falsehood is printed on his papers;
and if his country’s soccer association, acting in good faith, or in compliance with its national government, treats those papers as proof of the player’s citizenship;
then the soccer association must be harshly punished.
♦ ♦ ♦ ♦ ♦
There’s at least one other, perhaps more egregious, problem with this ruling. Again: FIFA’s Disciplinary Code only states that an association may be held liable for the offense of falsification. The Code doesn’t require FIFA to hold an offender liable; precedent, or some other consideration, would have to be adduced to generate such a requirement. Indeed, in its June ruling, FIFA refrained from holding Ecuador liable.
In so doing, FIFA acted in conformity with its Code. As far as I can see, then, without precedent, there is no basis for a higher court to overturn FIFA’s ruling; it was within FIFA’s discretion to rule as it did.
Castillo’s Ecuadorian citizenship has been reaffirmed, for the obvious reason – cited earlier by FIFA – that it’s up to the Ecuadorian government whether Castillo is a citizen. It was legitimate for Ecuador’s soccer team to field Castillo. No points earned in the 2022 World Cup qualification tournament are to be deducted. Ecuador will play in this World Cup, as scheduled.
But the TAS also has ruled that Castillo was born elsewhere and earlier than his passport says. So, although his citizenship and his eligibility to play are not objectionable, his documentation is. What is more, the TAS explains, the Federación Ecuatoriana de Fútbol (FEF) “is liable for an act of falsification … even if the FEF was not the author of the falsified document but only the user.”
The TAS grounds this on FIFA’s Disciplinary Code (the 2019 edition, presumably), article 21, paragraph 2:
An association or a club may be held liable for an act of forgery or falsification by one of its officials and/or players.As punishment, Ecuador will be fined and must begin the next World Cup qualification campaign with a three-point deficit. That’s the equivalent of a three-draw or single-victory head start for each of Ecuador’s competitors. (Goal differential – and other tiebreakers – aren’t affected.)
♦ ♦ ♦ ♦ ♦
How sensible is this ruling? For argument’s sake, assume that Castillo – or his parents or other representatives – indeed gave false information so that he could obtain his citizenship papers.
The TAS’s ruling is consistent with the letter of FIFA’s Disciplinary Code. But a lesser punishment, or no punishment, also would have been consistent with the Code. An association may be held liable, the Code says. That is, punishment is optional; it should be determined on a case-by-case basis (and, eventually, by precedent).
Now, to take the word “may” so seriously is to interpret the Code rather literally; but then, a ruling against Ecuador depends on a severely literal reading of the Code. (Think of this as a “pound of flesh” sort of case.) As it is written, the Code says nothing about whether it matters if the party in question deliberately “used” a falsified document. But it seems that deliberate “use” was the Code’s target: it’s what the rule-makers evidently wished to discourage or punish (see paragraph 1 of the Code’s same article). And the TAS hasn’t determined whether Ecuador intentionally “used” a falsified document – at least, this isn’t stated in the ruling.
It behooves the authorities to be lenient on this occasion. The TAS is now imposing a harsh punishment for what hasn’t been proven to be anything worse than an unintended error. But this sets a fearsome precedent. How many other clubs or countries might be found similarly liable for failing to reject a false claim in this or that player’s papers? More than a few. And if this case becomes a precedent – as it must, if judgments are to be consistent – other cases would demand punishment than those involving “uses” of eligibility-determining falsifications. The present ruling makes it explicit that Castillo took the field eligibly. Ecuador’s punishment is for falsification, full stop – not for falsification-in-order-to-field-an-ineligible-player.
For insance, precedent would dictate that:
If a player lies about his birthday (height, weight, address, criminal record, etc.) but not his parentage, birth country, or any nationality-determining facts;
and if the falsehood is printed on his papers;
and if his country’s soccer association, acting in good faith, or in compliance with its national government, treats those papers as proof of the player’s citizenship;
then the soccer association must be harshly punished.
♦ ♦ ♦ ♦ ♦
There’s at least one other, perhaps more egregious, problem with this ruling. Again: FIFA’s Disciplinary Code only states that an association may be held liable for the offense of falsification. The Code doesn’t require FIFA to hold an offender liable; precedent, or some other consideration, would have to be adduced to generate such a requirement. Indeed, in its June ruling, FIFA refrained from holding Ecuador liable.
In so doing, FIFA acted in conformity with its Code. As far as I can see, then, without precedent, there is no basis for a higher court to overturn FIFA’s ruling; it was within FIFA’s discretion to rule as it did.