Dechert Represents Asian Football Official, Mariyam Mohamed, in Landmark Gender Discrimination and Third-Party Interference Case Against the Asian Football Confederation
Dechert’s client, Mariyam Mohamed, former Head of Women’s Football at the Football Association of Maldives, has prevailed in two appeals at the Court of Arbitration for Sport (CAS) against the Asian Football Confederation (AFC) in a landmark gender discrimination and corruption case.
Ms. Mohamed was a candidate seeking election to the Asian Football Confederation (AFC) Executive Committee and to the FIFA Council during the 29th AFC Congress held on 6 April 2019 in Kuala Lumpur (the 2019 AFC Elections). Dechert filed two appeals on behalf of Ms. Mohamed alleging, first, that the 2019 AFC Elections indirectly discriminated against women by effectively limiting the positions for which they were allowed to stand for election and, secondly, that the elections were tainted by corruption and the AFC’s failure to investigate properly that allegation amounted to a denial of justice.
The appeals were subject to Malaysian law and seated in Lausanne, Switzerland. Dechert lawyers participated virtually from Singapore, while other participants joined from Malaysia, Switzerland, Italy, New York, Australia, the UK, Spain and Uruguay.
In awards handed down on 25 January 2021, the CAS Panel rejected all of the admissibility and jurisdiction objections raised by the AFC in an attempt to prevent the appeals being heard by CAS and upheld all of Ms. Mohamed’s factual allegations.
Specifically, in the first appeal (CAS 2019/A/6310), the CAS Panel declared that the AFC’s refusal to investigate Ms. Mohamed’s discrimination complaint was an appealable ‘decision’ under Article R46 of the CAS Code and the AFC Statutes and AFC Electoral Code. Having therefore satisfied itself that it had jurisdiction to consider the discrimination complaint de novo (ie consider it afresh), the CAS Panel proceeded to uphold the substance of the allegation. That is, found that the AFC Statutes and procedures for the election of officials to the AFC Executive Committee and to the FIFA Council discriminated against women. In essence, the AFC, through its statutes and election practices, was found to have set a ceiling on the participation of women in Asian and FIFA football governance rather than a floor as it was required to do, thereby breaching the AFC Statutes, the FIFA Statutes, the FIFA Code of Ethics and FIFA’s Guidelines for Promoting the Involvement of Women on the FIFA Council.
In the second appeal, CAS/2019/A/6496, CAS upheld Ms. Mohamed’s allegation that she was subjected to inappropriate third-party interference in the elections. The appeal posed numerous challenges. First, the AFC has never made a formal ‘decision’ on Ms. Mohamed’s complaint that she was subjected to inappropriate pressure to withdraw from the elections, whereas normally a ‘decision’ is needed in order to bring an appeal to CAS. Nonetheless, Ms. Mohamed argued that the AFC’s failure to complete its investigation and make a decision within a reasonable period of time constituted a denial of justice, which, on the basis of CAS jurisprudence and other leading authorities, should be appealable to CAS. The CAS Panel agreed, finding that there was a ‘very obvious denial of justice’, which empowered the Panel to consider the corruption allegation de novo.
The Panel then proceeded to consider Ms. Mohamed’s substantive allegation that inducements and threats were made by a third-party in the presence of an AFC office-bearer for her to withdraw from the 2019 AFC Elections. The CAS Panel accepted her evidence in full, finding that she was a credible witness whose version of events was not contradicted by the AFC. The Panel held that the conduct at issue constituted a breach of the AFC Statutes, the AFC Electoral Code, the AFC Electoral Guidelines, the AFC Disciplinary and Ethics Code, and the FIFA Statutes.
The CAS Panel, however, held that it did not have the power to annul the elections tainted by gender discrimination and unlawful third-party interference, ruling that the power to do so rests with the AFC Congress.
The Panel further ordered the AFC to make a contribution towards Ms. Mohamed’s legal costs and to pay 75% of the costs of the arbitration.
Commenting on the case, Mark Mangan, partner, Singapore at Dechert LLP, said, “These are landmark decisions. First of all, the appeals vindicate Ms. Mohamed, whose allegations were all upheld. It is never easy to come forward with serious allegations against established interests and have the courage to see them through. She deserves enormous credit. Secondly, if I may say, the appeals vindicate the strategy we deployed to ensure that Ms. Mohamed was able to be heard by an independent CAS panel, and in the process established important precedents in sports jurisprudence.”
Mangan added: “It is difficult to prove a denial of justice, corruption (which by definition lurks in the shadows) or indeed gender discrimination, let alone prove all three in the one set of related proceedings in a hearing conducted remotely. Thus, the appeals represent a significant triumph in the struggle for diversity and transparency in sports governance, particularly here in Asia. It is a good day for Ms. Mohamed and international arbitration.”
Prior to elevating the matter to CAS, Dechert advised Ms Mohamed on the internal investigations conducted by the AFC and represented her in an in-person interview conducted by the AFC Disciplinary & Ethics Committee in Kuala Lumpur.
The Dechert team was led by Singapore-based partner Mark Mangan, supported by associates Ananya Mitra, Henry Defriez and Shilun Chen.
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