Yves Jean-Bart v FIFA: Observations from a safeguarding regulation perspective

The Court of Arbitration for Sport (“CAS”) recently announced that it upheld an appeal by the former President of the Haitian Football Federation, Yves Jean-Bart, against a decision of 18 November 2020 issued by the Adjudicatory Chamber of the FIFA Ethics Committee imposing a lifetime suspension and a fine of CHF 1 million for violation of the FIFA Code of Ethics1. The allegations against Mr Jean-Bart were very serious, including abusing his position and the sexual harassment and abuse of various female players, including minors.

It is fair to say that CAS Panel’s decision was a controversial one. Following the decision being announced, FIFPRO questioned “football’s ability to offer effective remedy for serious human rights violations”2 and Human Rights Watch asked (rhetorically) “How can survivors of sexual abuse be expected to report abuse to FIFA if this travesty of justice is the outcome?”3 (both organisations had engaged with investigations into Mr Jean-Bart’s conduct).

CAS itself released a media release, explaining (among other things) that “the Panel of Arbitrators unanimously noted inconsistencies and inaccuracies in the statements of the victims and witnesses presented by FIFA … the Panel did not consider the information contained in documents prepared by third parties, such as HRW and FIFPro, to be sufficiently evidentiary … [and] the Panel of Arbitrators considers that the evidence against Yves Jean-Bart regarding the allegations of sexual abuse is inconsistent, unclear and contradictory”.4

For its part, FIFA (which was among the first international federations to actively address abuse in sport5) has filed an appeal against the CAS Panel’s decision before the Swiss Federal Tribunal (requesting an annulment and referral back to CAS), noting that “FIFA is concerned that this award contains a number of very serious procedural and substantive flaws, including the CAS Panel’s failure to evaluate key pieces of evidence that were offered by FIFA”.6

The purpose of this brief article is not to critically assess the rights or wrongs of the proceedings or the manner in which they were conducted by any relevant party, not least because the case has not concluded, the author had no involvement in the case, and has read only a machine generated French to English translation of the CAS Panel’s decision.7 The purpose of this article is to make a few general observations of broader application with reference to the case, which might be of use to sports regulators in considering their own approaches to safeguarding regulation and proceedings involving allegations of abuse. These observations concern:

1. panel selection and composition,
2. the difference between ‘disciplinary’ and ‘safeguarding’ proceedings,
3. the standard of proof,
4. protecting witnesses, and
5. the scope of review on appeal.