Summary of Ndoro and another v South African Football Association and others

  1. Mr Ndoro, the First Applicant is registered as a professional football player with the Second Applicant, Ajax Cape Town Football Club (“Ajax”). Ajax competes in the National Soccer League (“NSL ), the Second Respondent. The NSL is a Special Member of the South African Football Association (“SAFA”), the First Respondent. SAFA regulates professional football in South Africa and SAFA is affiliated to the Federation Internationale de Football Association (“FIFA”), the governing body of world football.
  2. Mr Ndoro was registered with the NSL as a player with Orlando Pirates Football Club, the Fifth Respondent, for whom he played one game. Thereafter, Mr Ndoro was transferred to a football club in Saudi Arabia, Al Faissaly where he played official games between September and December 2017. He then was transferred to Ajax in January 2018, was registered with the NSL as an Ajax player, and played for Ajax in two official games in January 2018.
  3. In the course of January 2017, it came to the attention of the NSL that Mr Ndoro had played games for three different football clubs, in apparent contravention of a FIFA regulation that, subject to exception,precludes a player from playing for more than two clubs in a season. NSL advised Ajax not to field Ndoro pending confirmation by senior counsel. Ajax and Mr Ndoro brought proceedings to the Dispute Resolution Chamber (DRC) of the NSL which ruled that it had jurisdiction and that Ndoro was eligible to play for Ajax. The NSL appealed to the SAFA Arbitration Tribunal. Mr Cassim, appointed to hear the Appeal, determined that the DRC lacked jurisdiction, that a FIFA body the Players’ Status Committee (“PSC”) did so, anddeclined to determine Mr Ndoro’s status.
  4. The Applicant sought judicial review of the decision of Mr Cassim.
  5. The issues considered by the Court were as follows.
  6. First, was the decision of Mr Cassim reviewable at all and, if so, on what basis?
  7. Second, if it was, did the Applicants make out grounds for review?

Was the decision reviewable?

  1. The Applicants contended that the decision taken by Mr Cassim was reviewable under the Common Law, alternatively the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) or by way of legality review.
  2. The Respondents submitted that the matterbefore Mr Cassim was a private arbitration and thus only capable of review under section 33 of the Arbitration Act (which was not relied upon by the Applicants).
  3. The Court considered the different positions taken by our Courts as to whether sporting bodies exercise public powers resulting in administrative action reviewable under PAJA. It was held that the bodies that regulate professional football in South Africa, though private juristic persons, carry out exclusive, compulsory, coercive regulatory functions that go beyond the private interests of their members and seek to secure public goods. This rendered their regulatory competences susceptible of classification as administrative action. The appeal to the Arbitration Tribunal is not arbitral in nature, rather, Mr Cassim’s decision formed part of a scheme of regulatory enforcement through dispute settlement and thus amounts to administrative action. Mr Cassim’s decision was accordingly found to be reviewable under PAJA.

Have the Applicant’s made out grounds for review?

  1. One of the grounds of review relied upon by the Applicants was that Mr Cassim made an error in law when he ruled that the DRClacked jurisdiction to hear the dispute. This turned upon the proper characterization of the dispute. The DRC held the dispute to be one concerning employment and Mr Cassim characterized it as a dispute about Mr Ndoro’s status as a player. The Court found,firstly, thatMr Cassimproperly characterized the dispute as one of status. Second, the Court ruled that the DRC did not enjoy jurisdiction over the matter, whereas the PSC did. In consequence no error of law could be found, nor could any other ground of review be sustained.