By Shalala Oliver Sepiso

SECOND STRIKE

I can exclusively reveal that The Court of Arbitration has for the second time in 48 hours (two days) rejected Kalusha’s request for suspension of the arbitration case.

Yesterday I exclusively reported that The Court of Arbitration for Sport in Switzerland has thrown out Kalusha’s request to suspend proceedings in his arbitration case with FAZ. I also reported how on 27th April 2020, Kalusha’s Spanish lawyers wrote to the Court of Arbitration for Sport requesting for suspension of arbitration proceedings basing this on the outcome of the Subordinate Court and High Court proceedings where the contempt proceedings were stayed and elections were stayed by the High Court before the whole case was also stayed pending a preliminary determination by the Constitutional Court. The letter, which was signed by Paolo Torchetti of Ruiz-Huerta & Crespo Sports Lawyers of Valencia in Spain, reads in part: “Although the Appellant’s position in his letter of 20 April 2020 remains unchanged, that he insists that an oral hearing be held in this matter, he writes to request that the procedure be suspended…..” I also reported how the appellants (Kalusha Bwalya) wrote a letter on 4th May 2020 in which they advanced new reasons for wanting the proceedings at CAS suspended. They said that a “FIFA delegation (including the manager of the FIFA Member Associations division) will be travelling to Zambia in order to meet with all affected parties in order to discuss possible solutions. We request the further suspension of this procedure in light that it is possible that the legal landscape of the FAZ may be significantly altered after that meeting.

But on 5th May, the Court of Arbitration looked at the request made by Kalusha and also the arguments made by FAZ and threw out the request made by the appellant in case number “CAS 2020/A/6812 Kalusha Bwalya v. Football Association of Zambia”. In a letter signed by Sophie Roud the Counsel to the CAS with reference number 2020/SR/jmj and dated 5 May, the court wrote: “….ON BEHALF THE OF SOLE ARBITRATOR, THE APPELLANT’S REQUEST OF SUSPENSION IS DENIED….”

DIFFERENT REASON FOR REQUEST TO SUSPEND ARBITRATION CASE

Following that decision, Kalusha’s lawyers, on 7th May 2020, wrote another letter asking for the case to be suspended this time using a fourth reason, which is that he has to be allowed a personal appearance in Switzerland when the COVID-19 pandemic ends instead of having a video-conference which he earlier requested for.

The letter dated 27th April 2020 [I assume this is an error] and referred “CAS 2020/A/6812 KALUSHA BWALYA v FOOTBALL ASSOCIATION OF ZAMBIA”, signed by Paolo Torchetti of Ruiz-Huerta & Crespo Sports Lawyers of Valencia in Spain and addressed to Sophie Roud, the Counsel to the CAS, reads in part: “With respect to the holding of an oral hearing via telecommunications during the month of May, we are cognizant of the fact that the Appellant has previously requested that a hearing be held in such a manner. Circumstances since this request, however, have changed. It is clear to the Appellant that an oral hearing, in person, in Lausanne, is now a necessity. The Appellant has already explained those circumstances, which include, inter alia, FIFA intervention, in previous communications, where it is not necessary to repeat them. Moreover, due to these changes in circumstances, the Appellant considers in fundamental to be able to cross-examine representatives of the Respondent in person, and to be able to make oral legal arguments in person. We note that the Respondent has previously wished to have an oral hearing due to internet connectivity in Zambia. As a result, the Appellant considers that holding the oral hearing via a telecommunication system would be a violation of his right to be heard. The Appellant requests that the oral hearing ought to be rescheduled to an appropriate date due to restrictions in relation to COVID-19.”

CAS REJECTS REQUEST AND SETS DATE FOR VIDEO CONFERENCE

On 8th May 2020, CAS responded as follows: “I acknowledge receipt of the Respondent’s letter of 6 May 2020 and the Appellant’s letter of 7 May 2020 (incorrectly dated 27th April 2020), copies of which are enclosed herewith. I first note that the Respondent would be available for a video-conference between 18th and 22nd May 2020 and that it would prefer that the hearing takes place on either 18th May 2020 or 19th May 2020. I also note that the Appellant requests that the oral hearing be rescheduled to an appropriate date due to restrictions in relation to COVID-19. ON BEHALF THE OF SOLE ARBITRATOR, THE APPELLANT’S REQUEST FOR RECONSIDERATION OF THE SOLE ARBITRATOR’S DECISION DATED 22ND APRIL 2020 IS DISMISSED.”

The letter further set the date for the video conference and gave details of the same.

“On behalf of the Sole Arbitrator, the Parties are called to appear at the hearing, which will be held by video-conference on: 19th May 2020 at 9h30 (Swiss time). Accordingly, the Parties are invited to provide the CAS Court Office, on or before 11th May 2020 with the names of all persons who will participate at the hearing… The hearing will be held via the platform Cisco Webex. …. In this regard, a test will be held prior to the hearing between the CAS Court Office and the Parties on 14 May 2020 at 10:00 CET.”

CAS ASKS KALUSHA TO PAY K210,000 WITHIN A WEEK

In a related development, the CAS Finance Director Mr. Miguel ABELAIRAS yesterday wrote to Kalusha Bwalya asking him to pay the CHF 11,000 that the Football Association of Zambia was supposed to pay but didn’t pay or else the whole case will be deemed withdrawn.

The letter reads in parts: “I refer to my letter dated 11th March 2020 in which the Court of Arbitration for Sport fixed the advance of costs to be paid by the Parties. Please be advised that the Respondent has not paid its share of the advance of costs. Accordingly, pursuant to Article R64.2 of the Code of Sports-related Arbitration, the Court of Arbitration for Sport is obliged to invite the Appellant to pay the Respondent’s share in order to cover the arbitration costs in this matter. Consequently, I invite Kalusha Bwalya to pay the Respondent’s share of the advance of costs, namely CHF 11,000.- (eleven thousand Swiss francs). This amount should be paid on or before 15 May 2020 to the CAS bank account:xxxxxxxxx … Finally, I remind you that in the absence of payment within the said time limit, the appeal will be deemed withdrawn.”

MY ANALYSIS

The CAS case is Kalusha Bwalya’s only chance to be on the ballot if the global board can give him relief and reverse the FAZ actions. Kalusha Bwalya’s appeal includes a request for an in-person hearing. This means that his appeal cannot be heard until after the COVID-19 pandemic unless a video-conference is ordered by CAS. In March, The Court of Arbitration for Sports yesterday issued a statement that it had made changes to its operating procedures due to the Coronavirus. As a result, the CAS could not host any in-person hearing before 1 May 2020, at the earliest. The Court made it clear that depending on the circumstances of each individual case, the arbitrators and parties were encouraged to conduct hearings by video-conference or to cancel them (final award on the basis of the written submissions only). If such measures were not possible or appropriate, the hearings were to be postponed until May 2020 or later. Because of the evolution of the COVID-19 outbreak, the prohibition of in-person hearings was extended by CAS indefinitely.

Since Kalusha wanted an oral hearing, which could only be had either physically or by video, on 22nd April 2020, a CAS Court letter to Kalusha and FAZ stated that there would be a video-conference hearing in this matter. And 2 days ago, on 5th Mat 2020, the CAS Court wrote another letter asking the parties to confirm availability on the dates failure to which the court would decide the date on behind of the parties. They were given dates of between 18th May and 22nd May inclusive.

With some of the preliminary decisions going against him, Kalusha needs this oral submissions to strengthen his case. It is for this reason that Kalusha has made sure that his initial request for the oral hearing is upheld. However, he initially asked for a video conference which CAS agreed to and set dates but now he is saying having the video conference will be a violation of his human rights.

So CAS had to decide whether the argument to hold a video conference was a violation of Kalusha’s rights and whether this right was so important that CAS had to change its rules of banning all in-person hearings for this one case only. In the end, CAS decided that since it was Kalusha’s request to have the video conference, there was no need to cancel the video conference and use the cancellation as a reason to suspend proceedings in the case.

On the deposit of costs and fees, its standard practice that fees are paid before the case takes off. On the costs, usually the CAS divides the costs between the appellants and respondents equally. When an appellant doesn’t pay his share, the case is dismissed. If the appellant pays his cost but the respondent doesn’t, the case goes ahead. However, if the respondent’s share remains unpaid, the final award is not made and the case is deemed withdrawn. It is common therefore that appellants usually pay both deposits for themselves and for the respondent to ensure the case is not withdrawn since they are the ones with more to lose.

So far Kalusha has paid K20,000 court fees and K200,000 deposits. Within this other deposit, his total costs will be K420,000 before his lawyers have been compensated for their time and skills. According to court documents, they have set the lawyers’ fees at CHF30,000. This means that this appeal will cost Kalusha a minimum of K803,395.48. I have not factored in his costs for the initial appeal at FAZ Appeals Committee and his lawyers time for correspondence to FIFA and NSCZ and even the Minister.

CONCLUSION
The oral hearing will now be held on 19th May 2020 (and not 18th or 22nd as reported by The Daily Mail of Zambia today). The Court of Arbitration will go ahead and decide Kalusha’s fate as to whether he is eligible to stand for FAZ presidential elections without taking into consideration the cases in the Zambian courts. It means that most likely there will be a final award from CAS before the cases before the courts in Zambia can be concluded. I predict a final award and closure of this case at CAS by 15th June 2020.