The enactment of the Sports Act 2013 ushered in a new order in sports dispute resolution. The Act established the sports disputes tribunal and empowered it to resolve certain sports disputes specified in the Act. A chairman and other members of the tribunal have since been appointed to carry out the mandate of the sports disputes tribunal. It is however not known whether any cases have been submitted to the tribunal, to date, for determination.
Under the Act, the sports tribunal is conferred with the jurisdiction: to determine appeals against decisions made by national sports organizations whose rules specifically allow for appeals to be made to the tribunal, to determine appeals against disciplinary decisions and team selection disputes, to determine other sports related disputes which all parties to the dispute have agreed to refer to the tribunal and to determine appeals from decisions of the registrar under the Act.
It must be noted as a preliminary point that the establishment of the sports disputes tribunal is a big step forward in sports disputes resolution in Kenya. To a large extent, the existence of the tribunal is expected to eliminate the inappropriate practice of using the civil courts to solve even purely sports disputes. Sports disputes differ to a large extent from ordinary civil cases and as such, the civil courts are not the best forum for sports disputes. This is so for several reasons. Firstly, many sports related disputes tend to rest on highly technical facts rather than issues of law. Specific knowledge in sports is required in deciding them which may be lacking in judges. Secondly, sports disputes mostly on team selection tend to arise on the eve of a major sports event or on the eve to departure hence requiring very fast resolution. It is a well known fact that resolution of a dispute in less than 24 hours is unheard of in ordinary civil litigation. Thirdly, due to the nature of disputes such as doping, confidentiality is required. This may not be very possible in ordinary civil courts as many times, cases proceed in front of packed courtrooms and are reported by the press. Fourthly, there is inherent resistance to litigation in the sports community as the adversarial nature of litigation may not preserve the ongoing relationships between the various participants in sports. Lastly, the international nature of sports tends to give rise to cultural barriers, conflict of laws and disagreements over jurisdiction which could protract legal resolution of disputes in court.
Further to the foregoing, arbitration of sports disputes as is envisaged by part VII of the act is a big advantage to sports disputes resolution since arbitration is flexible and accommodative and parties can set specific convenient times for the arbitration even during the continuance of a sports event. It can also be argued that the sports disputes tribunal is the solution to the apparent imbalance of power between athletes and coaches on one hand and national sports organizations on the other hand. The perception of bias present in internal dispute resolution mechanisms in disputes involving athletes or coaches on the one hand and national sports organizations on the other, will be eliminated as the tribunal will be independent, having no interference from national sports organizations. It is also worth noting that the sports disputes tribunal will ensure consistency and predictability of outcomes and build a legal jurisprudence for sports disputes in Kenya.
Despite the many clear advantages of the sports disputes tribunal outlined above, there are still a few gaps, mainly on jurisdiction of the tribunal, which need to be addressed. One intriguing question is whether athletes and other sports personalities can count on the tribunal to protect them from the excesses of their parent national sports organizations which hold and sometimes exercise a monopolistic position over them. As has been noted above, the tribunal can only deal with appeals from the decisions of national sports organization where the governing rules of the national sports organization specifically allow for appeals to be made to the tribunal. What happens then if the rules of the national sports organisation do not allow for an appeal to the tribunal? Is the athlete’s right to appeal extinguished? Also, the Act is silent on whether the tribunal can determine doping offences. Further, it is rather disappointing to note that the drafters and the legislature chose to put the tribunal at the mercies of its litigants in that it is for the parties to choose whether they wish to be bound by or submit to the tribunal.
That the Act permits national sports organizations to elect whether or not they wish to submit to the appellate jurisdiction of the sports tribunal puts athletes in a very precarious position. An athlete’s right to appeal may be jeopardized if the constitution or the rule book of his parent national sports association is silent on or does not specifically allow for appeals to be made to the tribunal. This, pushed to its logical conclusion, could then mean that it is possible for a national sports organization to insulate its decisions from interference by the sports tribunal and thereby constitute itself as the final decision maker. In this way, athletes are left exposed and at the mercy of national sports organizations which may end up being both their adversary and the final decision maker, all at one go. In other jurisdictions, in a bid to cure this mischief, submitting to the jurisdiction of the local sports dispute resolution mechanism in place is a prerequisite to government funding of the national sports organization. This strategy leaves national sports organizations with no option but to donate jurisdiction to the sports dispute resolution program in place so as to qualify for government funding. This is particularly so in Canada. This is a good and efficient way of ensuring that all local sports associations are bound by the sports disputes tribunal and the same should be adopted by Kenya.
Further, that the sports disputes tribunal is not conferred with the jurisdiction to handle anti doping rule violations can only be construed to mean that Kenya is not really intent on fighting doping despite the rising reports of doping by Kenyan sports personalities. Even section 74 of the Act which is dedicated to anti doping does not give any guidelines on how anti doping activities are to be coordinated or how anti doping rule violations are to be prosecuted and or determined. It must be noted that anti doping rule violations are treated as offences of strict liability and as such do not qualify as ‘disputes that all parties to the dispute agree to refer to the tribunal.’ They can therefore not be brought before the tribunal under section 59 (b). Further, the Kenya Anti Doping Agency, which would be expected to be the alternative body to handle doping offences, only exists on paper. As such, a jurisdictional lacuna is left by the Act when it comes to dealing with doping offences. It is expected though that doping offences ought to fall under the jurisdiction of the sports disputes tribunal as is the case in other jurisdictions with sports disputes tribunals. There is clearly need for amendment of the Act to expand the jurisdiction of the tribunal and confer it with the power to tackle anti doping rule violations.
To draw this discussion to a close, it is hereby submitted that the establishment of the sports disputes tribunal is a timely achievement made by Kenya in sports dispute resolution. If handled correctly, the tribunal can be the solution to a myriad of challenges that have in the past faced sports dispute resolution in Kenya ranging from contempt by stakeholders on the face of local sports disciplinary committees to refusal by the courts to determine some sports disputes. It is however important to redefine the jurisdiction of the tribunal to not only make it mandatory for stakeholders in sports but to also expand the jurisdiction to cover sports offences that have been overlooked but are increasingly threatening the credibility of our sports personalities and sports events.