The case involves a dispute between the Namibia Football Association (NFA) and the Confédération Africaine de Football (CAF) concerning the eligibility of a player, Herve Zengue, who participated in qualifying matches for the 2012 Africa Cup of Nations (AFCON 2012) while representing Burkina Faso. The NFA alleged that Zengue was ineligible to play for Burkina Faso due to his Cameroonian birth and questioned the validity of his Burkinabe nationality. The NFA sought to overturn the match results, which would have allowed Namibia to qualify for the tournament instead. The NFA filed a protest with CAF, but it was deemed inadmissible due to non-compliance with CAF regulations. The NFA then appealed to the Court of Arbitration for Sport (CAS), requesting the reversal of the match results and Namibia's inclusion in AFCON 2012.
The CAS panel addressed two key issues. First, it ruled that the NFA should have included the Burkina Faso Football Federation as a party to the appeal, as the dispute fundamentally involved Burkina Faso. By not doing so, the CAS's review was limited to assessing CAF's decision rather than addressing the broader question of match results and tournament qualification, as this would infringe on the rights of an uninvolved third party. Second, the panel emphasized that the burden of proof rested with the NFA, which failed to provide sufficient evidence to support its claims. The NFA could not shift this burden by arguing that CAF or Burkina Faso had not disproven its allegations.
The case stemmed from two qualifying matches between Namibia and Burkina Faso in March and June 2011, both won by Burkina Faso with Zengue participating. The NFA protested Zengue's eligibility, but CAF's Appeal Board upheld the initial rejection of the protest, citing procedural non-compliance. The NFA then appealed to CAS, seeking an expedited resolution. During the hearing, both parties presented their arguments, and the panel confirmed that procedural fairness was maintained. The panel ultimately upheld CAF's decision, dismissing the NFA's appeal.
The ruling clarified that CAS's jurisdiction in such cases is constrained when a critical party is omitted from proceedings and reinforced the principle that the burden of proof lies with the party making allegations. The decision underscored the importance of adhering to procedural rules in sports disputes and respecting the rights of all involved parties. The Panel also examined whether the protest met the regulatory requirements under Article 37.1 of the AFCON 2012 Regulations. The NFA claimed the protest letter was properly signed by both team captains, while CAF disputed this, stating only the referee had signed. The Panel found the protest letter’s form acceptable but highlighted the lack of witness testimony from key figures like the captains, referee, or CAF Commissioner, leaving the burden of proof unmet by the NFA.
The NFA further argued that the player’s eligibility violated Articles 36 and 39 of the AFCON 2012 Regulations, claiming he did not meet residency requirements under FIFA Statutes. CAF countered that the player’s nationality and eligibility were properly verified, presenting his passport, residency documents, and marriage certificates. The Panel found the NFA’s evidence insufficient to prove ineligibility or fraud, noting the lack of direct evidence on the player’s residency and the failure to involve Burkina Faso’s football federation in the proceedings. The Panel upheld the CAF Appeal Board’s decision, dismissing the appeal and confirming the player’s eligibility. The Court of Arbitration for Sport ruled to dismiss the appeal and uphold the original decision, rejecting all further claims.
In summary, the CAS decision emphasized procedural fairness, the importance of including all relevant parties in disputes, and the necessity for the accusing party to meet the burden of proof. The ruling upheld CAF's decision and dismissed the NFA's appeal, leaving the original match results and tournament qualifications unchanged.