APPEAL HEARING-TIGRESSESNETBALL TEAM VS NETBALL ASSOCIATION OF MALAWI (NAM) HELD IN THE MALAWI NATIONAL COUNCIL OF SPORTS BOARD ROOM

ON 4 OCTOBER,2013 STARTING AT 10.00 AM PANELISTS Mr. Mr. Mr. Mr. Patrice Nkhono Yasin Osman Krishna Achuthan Griffins Longwe : Chairman : Member :Member :Secretary (MNCS)

APOLOGY Mrs. Wilma Chalulu : Member

TIGRESSES NETBALL TEAM REPRESENTATIVES Helene Mpinganjira Charles Mhango Charles Baluti Dorothy Pananji Grace Thipa : Team Manageress : Coach :Team Manager :Team Doctor : Secretariat

NETBALL ASSOCIATION OF MALAWI Carol Bapu Abigail Shariff Junier Bamusi Kazembe : General Secretary : Treasurer : Team Doctor

INTRODUCTION The Chairman Mr. Patrice Nkhono welcomed everybody in attendance and called the meeting to order. He explained that the purpose of the meeting was to hear an appeal lodged by Tigresses Netball Club against the decision of Netball Association of Malawi on 21 September, 2013 to dock points and suspend the club from further participation in the 2013 Presidential Initiative on Sports Netball Competition which was held from 20 to 22 September, 2013 at Area 30 in Lilongwe. The following facts are common ground: 1. On 21 September, 2013 Tigresses Netball Club (Tigresses) was scheduled to play a quarter final match in the competition against MAFCO Netball Club when Mrs. Abigail Shariff ,the Netball Association of Malawi (NAM) Treasurer arrived and demanded that a Tigresses player, Loreen Ngwira, accompany her to a clinic for a pregnancy test.

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2. The NAM Constitution as well the rules for the particular competition prohibit netball players from playing competitive netball when they are pregnant. 3. In the interim Tigresses proceeded to play their quarter final match against MAFCO, won it and therefore qualified for the semi- finals of the Competition. 4. Mrs. Shariff, who had been accompanied to the clinic by the National Netball Team Doctor Junier Bamusi Kazembe, later reported that Loreen Ngwiras pregnancy test had returned a positive result. 5. Since Loreen Ngwira had played for Tigresses in their earlier group matches against Karonga and Kasungu Netball Teams in that order, the NAM Executive Committee decided that pursuant to Rule 17 of the particularCompetition Rules, Tigresses would forfeit four (4) points and suffer a loss of 100 baskets to 0 in each of the two earlier group matches. 6. The result of that decision was that Tigresses were ordered by NAM to have failed to qualify out of the group stage of the competition. Further, Tigresses forfeited their quarter final win against MAFCO and were disqualified from playing in the semi- final for which they had, earlier that day qualified. TIGRESSES GROUNDS FOR APPEAL Tigresses Netball Club challenged Netball Association of Malawi on the grounds that: (i) NAM did not have the power to dock any points from Tigresses on the ground that Article 37.3.2 of the NAM Constitution provides for a fine only and that NAM was not entitled to use the rule in the Competition Rules that appeared to empower them to take that decision because it conflicted with Article 37.3.2 of the NAM Constitution. If NAM was empowered to dock points and impose a loss of 100 baskets to 0 against Tigresses for fielding a pregnant player under Rule17 of thePresidential Competition Rules, they could only dock two (2) points and not four (4) points as they had done. Tigresses argued that if NAM had docked two points only, instead of four (4), Tigresses would still have qualified for the semi-final as a group runner-up. Generally NAM wrongly handled the whole issue, mistreated the concerned Tigresses player and the club as a whole.

(ii)

(iii)

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AUTHORITY OF THE COMMITTEE TO MAKE A DETERMINATION (i) The Malawi National Council of Sports formed a committee comprising: Mr. Patrice Nkhono, Mr. Krishna Achuthan, Mr. Yasin Osman, Mrs. Wilma Chalulu and Griffins Longwe (MNCS) as a Secretary (the Panel). The Chairman confirmed the fact that Malawi National Council of Sports brought the issue to the attention of both parties before the hearing that on the basis of Competition Rules and NAM Constitution, National Council of Sports, let alone the Panel, had no authority to deal with and handle the appeal, unless the parties themselves conferred such authority on the Panel. The Panel informed the Parties, Tigresses and NAM, of the problemat the hearing and that the dispute should have been handled according to Rules 20 and 21 of Competition Rules and Article 14.0 of the NAM Constitution. ThePanel noted that NAM did not follow the procedure on resolution of disciplinary issues and that by reason of making that decision NAM made it impractical for the issue to be dealt with by NAM any longer because NAM had already made a decision. It was therefore not feasible for an appeal by Tigresses in this case to be dealt with by NAM Executive Committee as would normally have been the case. The Panel asked both parties to confirmthat they were prepared to confer on the Panel authority as arbitrators to decide the dispute and for the parties to confirm that the Panels decision would be final and binding on both parties. Both parties duly granted and conferred authority on the Panel to decide the dispute and confirmed that the decision of the Panel would be final and binding on the parties.On behalf of Tigresses Helene Mpinganjira (Team Manageress) spoke for the team to confer authority on the Panel, while Carol Bapu (NAM General Secretary) spoke on behalf of Netball Association of Malawi in that regard. The chairman explained to the parties that the proceedings of the hearing would be recorded and kept by Malawi National Council of Sports in case of need for review by any otherbody or authority.

(ii)

(iii)

(iv)

(v)

(vi)

(vii)

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ISSUES TO BE DETERMNED BY THE COMMITTEE After consent by both parties it became the burden of the Panel to determine: (i) Whether NAM had the power, as they did, to dock four points or at all against Tigresses in the circumstances. Whether NAM Constitution and Presidential Competition Rules are in conflict with regard to appropriate punishment for fielding a pregnant player. If such conflict exists between the NAM Constitutionand the Competition Rules, which one takes precedence. Whether theNAM Treasurer conducted herself properly in the circumstances. Whether the exclusion of Tigresses players from National Team call up was appropriate. Whether LoreenNgwira (the Tigresses Player) played two matches in the Competition while she was pregnant.

(ii)

(iii)

(iv)

(v)

(vi)

OBSERVATIONS/FINDINGS On whether NAM had power as they did to dock four (4) points or at all against Tigresses in the manner theydid. (i) Under Article14.1 of the NAM Constitutionthe Panel established that the NAM Executive Committee should have appointed a disciplinary committee to handle all disciplinary matters. This was not the case in the issue at hand. Further the Executive Committee of NAM itself would act as the final court of appeal in the event of an appeal against a decision of the disciplinary committee. The NAM Executive Committee acted under Rule 17 of the Competition Rules to dock four (4) points against Tigresses and to declare a loss by 100 baskets to 0 for each match played in the group stage. From a reading of that particular rule the Executive Committee appears to have had the authority to make that decision. However the correctness of the exercise of that power and the validity of that power conferred by the Competition Rules is subject to what we say below in relation to whether a conflict exists between the NAM Constitution and the Competition Rules on the appropriate punishment.
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(ii)

(iii)

It appeared to the Panel, however, that if NAM could properly exercise its power under the Competition Rules to dock points and declare a loss by 100 baskets to 0, they could only dock two (2) and declare one set of the 100 to 0 loss. The Panel decided that this was because Rule 17 of the Competition Rules does not unambiguously empower NAM to dock two (2) points and declare the loss for each match played. Such ambiguity would have to be resolved favour of the Club. On whether NAM Constitution and Competition Rules are in conflict with regard to appropriate punishment for fielding a pregnant player. (i) Rule 9 of The Presidential Netball Trophy (the Competition) Rules (2013), states that the competition will be played on around robin in groups and will run in accordance with rules of the Netball Association of Malawi (NAM) and the International Federation of Netball (IFNA). (ii) Ms Carol Bapu said at the hearing (correctly in our view) that the NAM Rules referred to Rule 9 of the Competition Rules are comprised in the NAM Constitution. This confirms that the Competition was to be run in a manner that is consistent with the NAM Constitution. (iii) Under Rule 17 of the Competition Rules, an infringement of the rule against fielding a pregnant player will cost the concerned team two points and a loss of 100 baskets to 0. The Panel, as already stated, is of the view that this rule is ambiguous because it does not make clear whether the loss of two points would be per game and, unless it is amended to remove the ambiguity, it would always be interpreted in a manner favourable to the Club and thus against NAM. (iv) Article37.3.2 of The NAM Constitution states that a team which features a pregnant player, and a pregnant player who features in a competitive game of Netball, shall be fined as determined by the Executive Committee in the ByLaws from time to time. (Our emphasis). (v) The Panel is of the view that this article of NAM Constitution is in conflict with Rule 17 of the Competition Rules because Rule 17 provides for the docking of points and loss of the game whilst Article 37.3.2 provides only for a fine. Further, it is the view of the Panel that the phrase as determined by the Executive Committee in the By-Laws from time to time in the Article does not apply to empower the Executive Committee of NAM to determine the type of punishment for fielding a pregnant player but only to determine the magnitude
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of the fine. There is therefore no power under that provision of the NAM Constitution (until and unless it is amended accordingly) to impose any punishment other than a fine. (vi) The Panel is of the view that the NAM Constitution takes precedence over the Competition Rules to the extent of the conflict. The Panel reached this conclusion because it is from the Constitution that NAM Executive Committee derives its powers.Consequently the NAM Executive Committee cannot give a power to itself in rules if such power does not exist in the Constitution. In order to give itself such a power in the rules the NAM Executive Committee must first procure an amendment of the NAMConstitution to include such a power. (vii)The Panel is fortified in this view by the fact that Article 40.1 of the NAM Constitution confers power on the NAM Executive Committee to formulate, approve, issue, adopt, interpret and amend by-laws, regulations and policies for the proper administration of NAM and Netball generally but expressly requires that such by-laws must be consistent with the NAM Constitution. On whether decision making power by NAM has been properly exercised with regard to disciplining of Tigresses players. (i) During the hearing both parties were agreed that following the disqualification of Tigresses, the competition could not continue because Tigresses players disrupted play. NAM confirmed to the hearing that no disciplinary proceedings have been taken against Tigresses Players and / or officials who were responsible for the disruption. NAM appears to know the identities of the players and / or officials concerned but, according to NAM, no action could be taken until after this hearing. The Panel is of the view that NAM missed the perfect opportunity to stamp its authority. NAM should have dealt with those issues of alleged indiscipline right there and then. This hearing does not concern the disciplining of Tigresses players after their disqualification but only whether their team should have been disqualified in the first place. The Panel strongly recommends that NAM should promptly deal with this issue of allegedindiscipline.

(ii)

(iii)

(iv)

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On whether the NAM Treasurer conducted herself properly in thecircumstances. (i) Tigresses complained that the NAM Treasurer, Mrs. Shariff, is guilty of conflict of interest on the ground that at all material times she was an official MTL Queens as well as Treasurer of NAM and that she conducted herself in the way as she did in order to disadvantage Tigresses and place MTL Queens at a possible advantage in the competition. Mrs. Shariff denied at the hearing that she holds any position on the Executive Committee of MTL Queens. Further, Tigresses complained that the NAM Treasurer may have received the telephone call alleging that Loreen Ngwira was pregnant earlier than 20 September, 2013 but kept that information to herself resulting in unnecessary disadvantage to Tigresses. Apparently the NAM Treasurer behaved in a suspicious manner on 19 September, 2013 when she appeared to single out Loreen Ngwira for attention at Wenela Bus Station before Tigresses travelled to Lilongwe for the Competition. Mrs. Shariff said that she indeed walked over to the mini bus on which Tigresses were going to travel to Lilongwe and greeted Loreen Ngwira but also others. Mrs. Sheriff was adamant that she received the telephone call alleging pregnancy against Loreen Ngwira during the latter part of 20 September and after discussing with fellow NAM Executive Committee Members, took action on 21 September by requiring that Loreen Ngwira should submit to a pregnancy test. The Panel is of the view that this issue should be investigated more comprehensively by NAM and a decision made on it. The Panel has neither heard enough evidence on this issue nor is it directly an issue properly before it at this hearing. If such evidence of misconduct on the part of the NAM Treasurer exists, NAM should be seen to take proper action.

(ii)

(iii)

On the issue of dropping Tigress players from National Team call up. (i) The committee was of the view that if the dropping of Tigresses regular players to the National Team call-up was on disciplinary groundssurrounding the events of 21 September, 2013 as alleged by Tigresses,then NAM acted irresponsibly due the fact thatno disciplinary hearing has taken place regarding the events of that day. However Ms Carol Bapu insisted that the exclusion of Tigresses players from National Team call-up was a decision made by the coaching team and the Technical Panel. Apparently the suspicion of Tigresses has been stoked by
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reports in the press that the coach has said that this was a directive from NAM. (ii) The Panel does not have sufficient material or evidence to make any conclusive decision but only to point out that if the decision to exclude Tigresses players on technical grounds as suggested by Ms. Bapu at the hearing, there is nothing that anyone can do to interfere with such decision. Perhaps NAM could have handled the issue a lot more transparently to rule out any such suspicions. If the decision is, as alleged by Tigresses, based on alleged indiscipline about which NAM has not yet done anything yet, thats a sad day for Netball. Consequently, the Panel does not, in the circumstances, take any concrete position on this issue.

(iii)

On whether Loreen Ngwira (the Tigresses player) played two games in the Competition whilst pregnant. (i) The NAM Treasurer, accompanied by National Netball Team Doctor took Loreen Ngwira to the clinic at the end of which she said the clinic returned a positive result on the pregnancy test. Evidently, it was the Tigresses Team Doctor that asked the National Team Doctor to accompany Mrs. Shariff and Loreen Ngwira to the clinic. The Treasurer said that she had received a telephone call from a Tigresses player alleging that Loreen Ngwira was pregnant although she had played in the competition. According to the Treasurer the Tigresses player who telephoned her about Loreen being pregnant was concerned that Loreen Ngwira might be called to the National Team at that players expense.Mrs. Shariff admitted that she informed Tigresses that she had received an anonymous telephone call about the alleged pregnancy. She, however, told the Panel that she knew the Tigresses player who called her about the alleged pregnancy. Mrs. Shariff said that she initially said to Tigresses that she did not know the identity of the person who called her about the alleged pregnancy in order to protect her informant from possible reprisals. The Panel did not find it necessary to press Mrs. Shariff to disclose the name of her informant.

(ii)

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(iii)

After the pregnancy test at the clinic the Treasurer dropped Loreen Ngwira around the Shoprite Complex in Lilongwe. Mrs. Shariff said that this was at Loreens request. There was no disciplinary hearing conducted by NAM with regard to the allegation that Loreen Ngwira was pregnant. It is not evident to the Panel that Loreen Ngwira was even asked to comment on the issue. It appears therefore that the NAM Executive Committee made a decision to disqualify Tigresses on the strength only of the results issued by the clinic but without any formal process to ascertain the true position. Evidently, a false positive or a false negative is always a possibility in a pregnancy test. The committee therefore was not therefore able to decide whether the player was pregnant when she played those matches. On the part of Tigresses they indicated that they did know for sure whether their player was pregnant when she played those netball matches but accept the possibility that she might have been pregnant. Tigresses had not before the hearing sought to establish the true position with Loreen Ngwira. However, Tigresses accept that if their player was pregnant when she played competitive Netball, both her and the Club would be subject to appropriate punishment. The Panel is of the view that NAM should establish, for sure, through a proper hearing whether Loreen Ngwira played competitive Netball while pregnant and make an appropriate decision.

(iv)

(v)

(vi)

(vii)

DETERMINATION After thorough review of the appeal the Panel makes the following determination. (i) NAM had no power under its Constitution to dock four (4) points or at all against Tigresses for fielding a pregnant player or to award those points to an opposing team. There is a clear conflict between Article 37.3.2 of the NAM Constitution and Rule 17 of the Presidential Cup Competition Rules on the appropriate punishment for fielding a pregnant player. To the extent of the conflict, the NAM Constitution takes precedence.

(ii)

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(iii) (iv)

Any power given to NAM under its by-Laws has to emanate from and be consistent with the NAMConstitution. Consequently NAM had no power to disqualify Tigresses from the Presidential Cup Competition. Tigresses are entitled to be restored to the competition and to be credited with their qualification for the semi-final of the Competition. NAM should carry out an appropriate disciplinary hearing with regard to allegations of indiscipline against Tigresses players and / or officials. Unless Tigresses Players are proved to be guilty of indiscipline in a properly constituted disciplinary hearing, it is wrong that they should be subjected to any disadvantage in the National Team callup, if that is the case. Regarding the player who was allegedly pregnant when she played in the Competition (Loreen Ngwira), NAM should, according to its Constitution, carry out an appropriate disciplinary hearing and make its decision accordingly. The committee strongly recommends that proper procedures must be put in place with regard to regular and consistent pregnancy and other types of testing prior to or during competitions. Players privacy rights must, however, be fully respected at all times. NAM should ensure in future to design bye laws for their programs in line with the provisions of the NAM constitution

(v)

(vi)

(vii)

(viii)

Made at Blantyre the 8th October, 2013

Patrice Nkhono (Chairman).

Yasin Osman (Member)..

Krishna Achuthan (Member)

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