Historically, the courts have been very slow to find the existence of an express or implied right to challenge the decisions of sports associations. In the Australian case of Australian Football League Vs. Carlton Football Club Limited, the learned judge held that, “… the kind of organizations with whose internal decisions the courts have declined to meddle include social clubs, sporting associations, trade unions, professional associations, friendly societies, parochial councils and other church bodies.” Also, in Cowley vs. Heatley, the learned judge ruled that sports would be better served if there was no running litigation at repeated intervals by people seeking to challenge the decisions of regulatory bodies. From the forgoing, it is safe to conclude that the court’s attitude towards sports is that of non interference.
The non interference stance held by the courts towards internal affairs of sports clubs was informed by several reasons. First of all, there was considerable legal uncertainty where sports disputes were taken to court. Many sports disputes turned upon technical issues which many civil court judges had no expertise in. Also, lack of precedent in sports cases contributed further to the uncertainty. Secondly, there was no clear indication of intention to create legal relations in contracts inferred between athletes and the body governing the particular sport. Thought it had been argued that athletes and sports governing bodies entered into contractual relations by virtue of the athlete agreeing to subscribe to the sporting body’s rules and regulations, what was still unclear is whether either party could sue under the ‘contract’. Thirdly, there was a general attitude by the courts that sports organizations should be left to regulate their own affairs. Indeed, even within the sporting community, there was inherent resistance to litigation of sports disputes in the domestic civil courts as the adversarial nature of courtroom litigation did not preserve the ongoing relationships between various participants in the field of sports.
In Kenya, our very own courts have traditionally been very reluctant to interfere with decisions of sports associations. One leading case which illustrates this point is the case of Republic Vs. Kenya Cricket Association & 2 others Ex parte Maurice Omondi Odumbe (2006 e Klr). In this case, the ex parte applicant had approached the courts seeking prerogative orders of certiorari and prohibition against the Kenya Cricket Association (KCA) and the International Cricket Council (ICC) who had banned him from playing cricket for 5 years. The court, in declining to grant the reliefs sought, noted that the process that had been used by KCA and the ICC in determining that the ex parte applicant should be handed a cricket ban for 5 years was a private arbitration within the rules governing the membership of KCA and ICC and as such the process was not subject to judicial review. This case set the legal precedent in Kenya for the courts non interference with internal affairs and decisions of private sports associations.
THE MAURICE ODUMBE CASE
At the time this case was instituted, Maurice Odumbe was a Kenyan cricketer facing a five year cricket ban. He was the immediate former captain of the national cricket team and was a household name following the national cricket team’s semi final finish at the 2003 cricket world cup.
In the year 2004, accusations of misconduct and match fixing were leveled against Odumbe and the KCA set up a tribunal to investigate the matter and give its recommendations. The tribunal investigating the conduct of the cricketer was chaired by Mr. Justice Ebrahim (Retired). Critics have commented that during the hearing, the rules of natural justice were flouted and the findings and recommendations were based purely on circumstantial evidence. The player’s ex girlfriend was one of the witnesses lined up to testify against him. At one point, it appeared like the player was being punished for his flamboyant lifestyle rather than for flouting any ethical rules of the KCA and the ICC. At the end, the tribunal indeed found that Odumbe was guilty of misconduct and recommended a five year ban, which was implemented by the KCA on 17/8/2004. In his decision, the chairman of the tribunal set up to investigate the cricketer noted that there was no right of appeal and that Odumbe could only seek Judicial Review. He also noted that his decision was not final but was subject to appointment of an official enquiry and ratification by the ICC.
On 16/12/04, Maurice Odumbe filed in court a judicial review application wherein he sought to have the high court revisit and quash the decision made by the KCA and ICC. In his judicial review application, he prayed for orders of certiorari and prohibition. An order of prohibition would prohibit the KCA and ICC from banning him from playing cricket therefore effectively restoring his status. At the hearing, Odumbe’s counsel relied on the main ground that the tribunal set up to investigate odumbe was not a domestic or private entity as it exercised quasi judicial functions and was headed by a judge who followed due process and imposed a punishment as that imposed by the courts. It was thus a public body. Also, he argued that in the judge’s ruling, he had found that the matter related to judicial review and that there was no right of appeal and as such, the court’s jurisdiction could not thus be questioned.
The respondents on the other hand raised a preliminary objection on grounds that KCA was a private body and its decisions were therefore not amenable to judicial review as judicial review could only be sought for where the impugned decision was that of a public body. Unfortunately for Odumbe, the court agreed with the respondents and upheld their preliminary objection. This particular ruling of the court had the effect of setting a precedent that judicial review remedies were not available to litigants who sought to challenge the decisions of sports associations.
A CHANGE OF HEART BY THE COURTS?
More recently, the courts have appeared to soften their non interference attitude towards sports decisions. In particular, the courts have found opportunity to intervene where a member of a private sports club, for example, approached the courts claiming that their constitutional right had been infringed. This was in the case of Rose Wangui Mambo & 2 others Vs. Limuru County Club & 17 others (2014 eKlr) where three petitioners went to court to challenge an amendment to the club’s by laws which they claimed breached their constitutional right to equality. Further, they took issue with the disciplinary process that was employed against them after they differed with the makers of this amendment, which process they claimed did not accord with due process and was a violation of their fundamental rights and freedoms. In this case, unlike the Odumbe case, the court was willing to intervene in the internal affairs of the Limuru county club and make a declaration that the offending amendment was indeed unconstitutional and the court proceeded to quash the same. The court also issued an order of mandamus ordering the club to reinstate the petitioners as members.
THE LIMURU COUNTY CLUB CASE
This petition was triggered by a resolution by the board of directors of the club amending part of the club’s by laws. The amendment had the effect of making the golf committee a ‘male only affair’ and excluding the lady golfers from participating in the golf general meeting elections. Henceforth, lady golfers would only attend the golf general meeting as guests with no voting rights. When the petitioners complained about the said amendments, the 2nd and 3rd petitioners were suspended from the club for ‘disrespecting the office of the golf captain’. The 1st petitioner lost her position as the vice chair person of the club and the chairperson of the membership and disciplinary committee. The petitioners, aggrieved by the actions and events that had befallen them, sought the courts intervention. The court first appointed mediators in a bid to resolve the dispute amicably but this was to no avail. A three judge bench was constituted to hear the case.
At the hearing, the petitioners argued that vide the offending amendments, their right to human dignity had been violated and further that the disciplinary process employed against them did not follow the rules of natural justice, was against the club’s own articles and by laws and violated article 27 of the constitution. They sought among other orders a declaration that the bylaw and the disciplinary process were unconstitutional, an order quashing the said disciplinary process and further an order reinstating them.
The respondents on their part contended that the gender discrimination the petitioners were complaining about was one that was permissible in the game of golf and that discrimination in private clubs is not fully outlawed. They produced in court copies of other club’s constitutions which contained similar discriminatory provisions and also decided cases where the court had held that discrimination in private members clubs was permissible to a certain degree. They urged the courts not to interfere with this tradition in the game of golf as such interference was likely to affect other clubs.
Unfortunately for the respondents, the court did not agree with their submissions. The court found that although private member clubs were discriminatory in their very nature in terms of who they may or may not admit, that did not absolve them from the constitutional burden to adhere to constitutional values and principles. The court found the offending bylaw to be unconstitutional and proceeded to quash the petitioner’s suspensions. The club was ordered to reinstate the petitioners.
This was a highly progressive decision on when or whether it was open to the courts to interfere in the internal management of sports clubs and it can be argued that in effect, the court created an exception to the general rule against interference with internal decisions of sports clubs by the courts. In effect, the court was saying that though the courts have a non interference attitude towards internal decisions of sports clubs, there were reasons that could compel the court to interfere with such decisions anyway and one such reason was when a party claimed that their constitutional right had been infringed by a decision of a private sports club. If that be the case, we can only wonder whether a different verdict would have been arrived at by the courts in the Odumbe case if the case had been brought as a constitutional petition claiming that Odumbe’s right to freedom of association had been infringed by the KCA following the imposition of a 5 year cricket ban on him. That is however a discussion for another forum. As it stands however, the two cases are distinguishable in that whereas the Odumbe case was a judicial review application and the court rightly declined to review the decision of a private entity, the Limuru county club case was a constitutional petition and the court was obliged to intervene and protect the rights of the petitioners as is enshrined in the constitution. Both the cases however relate to interference by the courts in the internal affairs of private sports clubs.
Going by the discussion above, it is clear that the courts decision whether to interfere or not with the internal affairs of a private sports club will vary on a case to case basis depending on the circumstances of the case. It is of paramount importance however that a divide is clearly drawn on when cases fall under the jurisdiction of the sports dispute tribunal and when they fall under the domain of the courts as this will avert confusion, conflict and duplication in sports law jurisprudence and sports dispute resolution in Kenya. There is thus need to explore the relationship and possible balance between the court’s interference in sports matters and part VII of the sports act 2013 on arbitration of sports disputes.