Score one for transparency

CONTACT sports are banned, but an important goal was nonetheless scored in court this month.

The ruling of Justice Carol Gobin in the challenge brought by the TT Football Association (TTFA) against FIFA’s appointment of a normalisation committee has far-reaching implications. It extends way beyond the field of play.

Justice Gobin’s finding that the operation of FIFA rules on local soil is subject to the court asserts our sovereignty. But it also holds up a red card to practices that have, in recent times, reduced transparency in public affairs.

Those practices relate to the way state bodies resolve conflicts through secret arbitration processes even when the public has a very clear interest in the outcome.

“I do not think that arbitration would be the appropriate forum for the resolution of this dispute,” the judge found. “This is not a matter for the Court of Arbitration for Sport (CAS).”

This, she said, was particularly so since the TTFA is a statutory body.

While the path is now clear for the matter to be ventilated at trial – and it could well be subject to further challenge – for the moment the judge has effectively reversed longstanding assumptions about arbitration processes as they relate to state entities.

Far too often, the public is denied a chance to be privy to such arbitration matters because they have been cloaked by watertight confidentially clauses.

Consider all of the important issues that have been subject to secret arbitration. Failed Petrotrin projects. The quashed contract for offshore patrol vessels. AV Drilling.

And these are cases we know about. Arbitration is sometimes so secret the fact that it is even taking place is itself secret.

Despite costing the State millions, and despite involving billion-dollar projects, the public is afforded little insight into any of these matters. Whatever the intentions of the parties involved, the long-term effect is an erosion of the authority of the court and a march towards secret government.

The prevalence of arbitration has also come alongside worrying trends in the public sector.

Private contractors working on public projects frequently secure confidentiality clauses from governments. Governments, too, often form “private” companies to do business, and these companies deem their financial information sensitive for commercial reasons.

Not to be forgotten are the many government-to-government infrastructure loan agreements left unpublished, often relating to mega-projects.

Even smaller disputes involve the reported use of non-disclosure agreements, as we learned in the Darryl Smith affair.

Justice Gobin’s ruling relates to a very specific legal matrix of laws, entities and organisations.

But by rebutting the assumption that contracts trump the rule of law, she has raised the tantalising prospect that transparency can score a late, game-changing goal.