The fallacy of ‘toothlessness’ at the Sports Disputes Tribunal: a comprehensive analysis of the tribunal’s far-reaching jurisdiction

There has been, in recent times, criticism of the Sports Disputes Tribunal, with said critiques supposing the tribunal to be powerless against the onslaught of complex sports disputes in the country. Primarily, concern for the extent of the tribunal’s jurisdiction stems from section 58 of the Sports Act, which provides that the tribunal may exercise jurisdiction in matters concerning sports organizations in Kenya only if their rules provide for the same and with regard to private parties only if they all agree. This, according to the concerned individuals, significantly limits the tribunal’s jurisdiction. On the contrary, such narrow reading of section 58 of the Sports Act presents only a snippet of what the Sports Dispute Tribunal is enabled in law to do. Without regurgitating relevant legal provisions, the following is a fuller picture of the far-reaching jurisdiction of the Kenya Sports Disputes Tribunal.

Preliminarily, it is important that Kenyan legal scholars note that the Sports Disputes Tribunal has powers to determine questions of its own jurisdiction, a mandate akin to the principle of kompetenz-kompentenz in arbitration. This power is granted in Part VII of the Sports Act, 2013, as well as the Sports Disputes Tribunal Rules 2022, (Legal Notice No. 49 of 2022) and has been exercised whenever counsel has challenged the authority of the Tribunal to hear a matter.1 In pursuance of such mandate, the Tribunal has in its decisions utilized the following mechanisms to bypass any constraint occasioned by section 58 of the Sports Act:

I. Application of the principle that the Sports Disputes Tribunal is the first recourse before appealing to the Court of Arbitration of Sports

While deciding a case against the National Olympic Committee of Kenya in 2015, the tribunal stated in no unclear terms that the Court of Arbitration of Sports “has been domesticated vide the Sports Disputes Tribunal in Kenya.”2 This seems like an innocuous statement until one considers that it essentially brings all matters that can be adjudicated by the Court of Arbitration of Sports within the jurisdiction of the Sports Disputes Tribunal in Kenya.

II. Strict definition of scope

Section 58 (b) seems like a particularly troublesome provision as it requires the consent of all parties to a dispute for it to be adjudicated by the tribunal. Indeed, most sports professionals have cited this provision as being the number one reason why sports disputes are unlikely to end up before the tribunal. However, the tribunal has taken a purposive approach to interpreting this provision, essentially positing that the legislators could not have possibly intended for claimants to be held hostage by their unwilling respondents. As such, the tribunal in Charles Wambugu Kariuki v National Olympic Committee of Kenya opined as follows:

We hold the view that this section gives room to the parties who would have had other avenues but opt as a final resort, to choose the tribunal as the ultimate arbiter, get this opportunity.3

Simply put, the rationale in this argument is that the discharge of justice is the foremost and ultimate goal of tribunals and courts in the country.4

III. Interpretation of the nature of parties to a proceeding

It goes without saying that statutes are to be applied to the particular parties they refer to. Pursuant to this principle, the tribunal has taken the step of interrogating whether a party is of a nature that would bar it from hearing its case in such terms:

Section 59(b) of the said Act does not relate to disputes between or among national sports organizations or national umbrella sports organizations. It relates to disputes that may arise between such organizations and third parties relating to for example, the performance of contractual obligations between the national sports organizations and the third party.5

By this interpretation, the tribunal is then enabled to hear disputes between or among national sports organizations or national umbrella sports organizations without making reference to their rules.

IV. Assertion of umbrella jurisdiction as granted in the Sports Act

In delimiting the nature of sports disputes that can be heard by the Tribunal, Section 58 (b) of the Sports Act provides that the Tribunal handles ‘sports-related disputes’. For this reason, when Counsel for the Respondent in Maqbull

Abdi Karim -v- Gor Mahia Football Club attempted an argument that a sports-related employment matter should be referred to the Employment and Labour Relations Court, the Tribunal proceeded to give a lesson on the latin maxim Generalia Specialbus non derogant translating loosely to ‘a general law does not prevail over a special law’. This essentially means that the Employment and Labour Relations Act, being a general law on all employment matters, cannot triumph the Sports Act which is a special law for all matters sports.6

For the avoidance of doubt, the same matter clarified that:

‘’…where a remedy provided to an athlete is ineffective or ineffectual or involves a resort to a municipal court, the Tribunal will accept jurisdiction in order not to leave an athlete or sportsman without a remedy or otherwise offend the principles which most international sporting organizations have put in place which prohibits sporting disputes from being ventilated in courts of law7

V. Reliance on the requirement in law that organizations should subscribe to the tribunal’s jurisdiction in their constitutions

Section 46 (5) as read together with the Second Schedule of the Sports Act requires that as part of the bare minimum requirements for the registration of a sports organization, its constitution should contain subscription to the jurisdiction of the Sports Disputes Tribunal as well as

the Court of Arbitration of Sports. For this reason alone, one can give warning and require that at no point should counsel appearing before the Sports Disputes Tribunal defend their preliminary objection against the jurisdiction of the Tribunal while stating that the constitution of the concerned sports organization does not provide for reference of matters to the Sports Disputes Tribunal. Such an advocate would be admitting a constitutional defect on the part of the organization and proposing that it be deregistered until such adherence is achieved!

VI. Appellate jurisdiction after exhaustion of internal remedies

The case of Maqbull Abdi Karim -v- Gor Mahia Football Club is informative of the principle that the tribunal forms an automatic forum for a second appeal once the arbitral and internal organization mechanisms of a Sports Organization have been exhausted.8 Drawing from the clarity of this principle, Sports men and women should be aware that non-existent or ineffectual internal dispute resolution mechanisms cannot bar the resolution of their disputes as the Tribunal can hastily come to their rescue.9

VII. Consideration of public interest

In Milton Nyakundi -v- FKF Electoral Board and 4 others where the bone of contention were the elections carried out by the Respondents, the tribunal relied on, among other factors, the public interest doctrine to determine that while its adjudication of the matter would not prejudice the Respondents who had objected to its jurisdiction, elections form a matter of public interest as the public is concerned with the leadership of a sports organization.10

VIII. Application of arbitration as a method of dispute resolution

On the subject of the methodology to be applied in the determination of sports-related disputes, nothing is more telling than the titling of Part VII of the Sports Act which reads “Arbitration of Sports Disputes Tribunal”. This deliberate choice of wording translates through the literal method of interpretation of statutes to the position that the Tribunal is expected in law to depart from the litigious mechanisms of the Kenyan courts to the more friendly arbitral alternative dispute resolution mechanism.

This modus operandi is, once again, advantageous to the Kenyan sportsmen, whose sports are often subject to international statutes that forbid reference of sports disputes to courts and other judiciary proper governmental bodies.

In football, for instance, Article 59 (2) of the FIFA Statute reads:

Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. Recourse to ordinary courts of law for all types of provisional measures is also prohibited.

The provision goes on further to allow recourse only to the Court of Arbitration of Sports and other arbitral mechanisms. As the international court is expensive and too involving for the ordinary sportsperson, Kenyan footballers are fortunate to have the Sports Disputes Tribunal as an alternative that does not offend the FIFA principles since it applies arbitration in the resolution of disputes.11

Recommendations: a comparative analysis

As the Kenyan Sports Disputes Tribunal manoeuvres the potential impediments in its establishing statute, the idea of a sports disputes tribunal is, unfortunately, alcove in the rest of the world as only a few jurisdictions have a comparative body, inter alia New Zealand, England, and South Africa.

In New Zealand, the Sports Tribunal is established and governed by the Sports Anti-Doping Act, 2006. The tribunal’s striking similarity to Kenya’s Sports Disputes Tribunal is reflected in its mandate which includes determining anti-doping violations, appeals on decisions from national sports organizations and New Zealand Olympic Committee, sports-related disputes referred to it by private parties, and references from the Board of Sport New Zealand.12

As if reading from the same script as its Kenyan counterpart, the New Zealand legislature includes a precondition to the tribunal’s exercise of jurisdiction in appeals from national sports organizations and the New Zealand Olympic Committee, which precondition is that the bodies’ constitutive documents must allow for an appeal to the Tribunal. The problematic constraint found in section 58(b) of the Kenyan Sports Act that individual parties must both agree to the tribunal’s jurisdiction is also reflected in New Zealand.13

As has been done in Kenya, nevertheless, the New Zealand Sports Tribunal has worked through and despite these provisions using some of the mechanisms highlighted above as being important for the Kenyan Sports Tribunal to adjudicate most of the claims brought before it. Markedly, the New Zealand Sports Tribunal utilises its position as the first recourse before appeal to the Court of Arbitration of Sports to adjudicate on majority of the matters, although litigants are still at liberty to seek audience with the court first.14 Notably, quite a large number of cases from the country are heard at the Court of Arbitration of Sports as compared to the negligible number from countries in Africa, a fact which speaks to the centralisation of the court’s activities and forms a question deserving of its own comprehensive treatise.

Australia forms an interesting case for decentralised sports disputes tribunals as such bodies have been established under different sporting leagues in the country. Collective bargaining agreements and players’ contracts will often include clauses that the relevant tribunal has exclusive jurisdiction or that it is the avenue of first instance before approaching the court.15 Kenya fairs better comparatively as the Australian tribunals are sport-specific and their decisions may be subject to appeal in the international bodies for the different sports such as the International Cricket Council for the cricket sport and FIFA for football.

England does not particularly provide for a sports dispute tribunal, but is nevertheless comparable to Kenya’s tribunal in so far as it provides for non-court mechanisms for the resolution of sports disputes. Specifically, arbitration is available to sports professionals who are party to agreements providing for the same. The redemptive fact for this avenue is that many sports have such agreements requiring reference of disputes to arbitration and where there lacks a standard procedure then the general United Kingdom Arbitration Rules of Sports Resolution kick in. The country can thus form a good example of universal alternative dispute resolution. Other countries with the arbitral model include Brazil, Canada, Denmark, France, Germany, Hungary, Israel, Netherlands, Poland, Portugal, Singapore, Spain, Sweden, Switzerland, the United Arab Emirates, and the United States to mention but a few.16

All in all, the idea of a sports disputes tribunal is an acclaimed one globally, with countries such as Nigeria and South Africa receiving proposals from sports stakeholders to benchmark and borrow from Kenya.17

1Chemilil Sugar FC and Kenyan Premier League Limited v. Nick Mwendwa, Barry Otieno and Football Kenya Federation, Petition No. 7 of 2020.; Sports Disputes Tribunal Appeal No. 2 Of 2015, Charles Kariuki Wambugu v. The National Olympic Committee of Kenya (NOCK).

2Ibid

3Charles Wambugu Kariuki v National Olympic Committee of Kenya, Sports Disputes Tribunal Nairobi
Appeal No. 2 of 2015.

4Constitution of Kenya, 2010, Article 159.

5Supra n3; N.B. Reference to section 59 of the Sports Act pre-2017 is to be interpreted as referring to section 58 as the 2017 and 2019 revisions renumbered the provision to section 58 without a change in its content.

6Maqbull Abdi Karim -v- Gor Mahia Football Club, Sports Disputes Tribunal Nairobi Appeal No. 6 of 2018.

7Ibid; Also see Article 59 (2) of the Fifa Statute

8Sports Disputes Tribunal Nairobi Appeal No. 6 of 2018.

9Peter Omwando -vs- Nick Mwendwa & others (sued as officials of Football Kenya Federation) SDT Pet No. 25 of 2016

10Milton Nyakundi -v- FKF Electoral Board and 4 others, Sports Disputes Tribunal Nairobi Appeal No. 11 of 2020.

11Chemilil Sugar FC, Kenyan Premier League Limited v. Nick Mwendwa, Barry Otieno and Football Kenya Federation, Petition No. 7 of 2020.

12’Guide To The Sports Tribunal – Sports Tribunal NZ’ (Sportstribunal.org.nz, 2022) <https://sportstribunal.org.nz/guide-to-the-sports-tribunal/> accessed 20 July 2022.

13Ibid.

14András A Gurovits, The Sports Law Review (Law Business Research Ltd 2017).

15Ibid.

16Supra n13.

17’Committee Told That Sport Arbitration Tribunal Is Much Needed – Parliament Of South Africa’ (Parliament.gov.za, 2022) <https://www.parliament.gov.za/news/ committee-told-sport-arbitration-tribunal-much-needed> accessed 20 July 2022; Kariuki Muigua, Promoting Sports Arbitration in Africa; A discussion Paper for the Chartered Institute of Arbitrators (Kenya Branch) (2nd Annual Lecture on the theme ‘Promoting Sports Arbitration in Africa’ held on Thursday 28th November, 2019 in Nairobi).

Conclusion

From the foregoing, it is clear that the Sports Disputes Tribunal will not suffer a claimant to go without having their dispute adjudicated. To this end, the judicial body has employed such pertinent tools as drawing from its relation to the Court of Arbitration of Sports, strict definition  of the terms of provisions that would otherwise limit its jurisdiction, assertion of umbrella jurisdiction, reliance on legal compulsion of parties, and the public interest doctrine. The same mechanisms are reflected in comparative jurisdictions that have the tribunal avenue for sports-related conflicts. The tribunal has indeed shaped itself over the years into a conducive and level playing field where sports persons can petition an unbiased umpire with as little as a letter and be back to the games they love within the shortest possible time. Considering how expensive and long-winding proceedings before both national courts and the Court of Arbitration of Sports can be, it is indeed the welcome reprieve it was meant to be to all sports men and women in Kenya.

Be that as it may, the fact that the Tribunal could do that much more with a clearer enabling statute that further mandates it cannot be understated. The author’s recommendation then, is that the Sports Act should be revised to reflect the needs and exigencies of sports disputes in Kenya.

John Ohaga, SC is the Chairman of the Sports Disputes Tribunal. He has a passion for sports and was a rugby international having played for Kenya at fly half from 1987 to 1995 including at the All-Africa Games held in Nairobi, Kenya in 1987. John now utilizes his great passion for sports in trying to inculcate a culture of proper governance and integrity in the management of sports.

Mr Ohaga is a Senior Counsel. His full-time job is as Managing Partner in the renowned law firm of TripleOKlaw Advocates LLP. He is an experienced litigator and has a particular passion for commercial litigation. He advises several blue-chip companies listed on the Nairobi Securities Exchange as well numerous private companies in addition to some of Kenya’s largest state corporations. Moreover, he also has significant experience in other aspects of civil litigation.

He has been recognized for his high-quality work and expertise in dispute resolution by Legal 500 (https://www.legal500. com/firms/51034/offices/51944), Chambers Global (https:// chambers.com/lawyer/john-m-ohaga-global-2:278964) among others.

Ms. Ouma is an Advocate Trainee at the firm of TripleOKLaw LLP Advocates and a holder of an LLB degree from the University of Nairobi. Charity is due for admission to the bar upon completion of her pupillage and hopes to be a constant face in the Kenyan courts, passionately submitting and fighting for justice.

The budding litigant has horned her trial advocacy skills through participation in both national and international moot court competitions, notably the 2019 Nuremberg International Moot Court Competition held in Nuremberg, Germany; the 9th Justice P.N. Baghwati International Humanitarian Law Moot Court Competition held in Pune, India; and the national rounds of the Phillip C. Jessup Moot Court Competition where her team emerged the national winners. Ms. Ouma is inspired by the lustrous career of former International Criminal Court Prosecutor, Fatou Bensouda.

Bibliography

• The Constitution of Kenya, 2010.

National Statutes

• Sports Act, No. 25 of 2013 Laws of Kenya

International Statutes

• Fédération Internationale de Football Association Statutes, Regulations Governing the Application of the Statutes Standing Orders of the Congress, August 2018 Edition.

Case Law

• Charles Wambugu Kariuki v National Olympic Committee of Kenya, Sports Disputes Tribunal Nairobi Appeal No.2 of 2015.

• Maqbull Abdi Karim -v- Gor Mahia Football Club, Sports Disputes Tribunal Nairobi Appeal No. 6 of 2018.

• Milton Nyakundi -v- FKF Electoral Board and 4 others, Sports Disputes Tribunal Nairobi Appeal No. 11 of 2020.

• Peter Omwando -vs- Nick Mwendwa & others (sued as officials of Football Kenya Federation) SDT Pet No. 25 of 2016.

• Sports Disputes Tribunal Appeal No. 2 Of 2015, Charles Kariuki Wambugu v. The National Olympic Committee of Kenya (NOCK).

Books

• András A Gurovits, The Sports Law Review (Law Business Research Ltd 2017).

Online Resources

• ‘Guide To The Sports Tribunal – Sports Tribunal NZ’ (Sportstribunal.org.nz, 2022) <https://sportstribunal. org.nz/guide-to-the-sports-tribunal/> accessed 20 July 2022.

• ‘Committee Told That Sport Arbitration Tribunal Is Much Needed – Parliament Of South Africa’ (Parliament.gov.za, 2022) <https://www.parliament. gov.za/news/committee-told-sport-arbitration- tribunal-much-needed> accessed 20 July 2022.

• Kariuki Muigua, Promoting Sports Arbitration in Africa; A discussion Paper for the Chartered Institute of Arbitrators (Kenya Branch) (2nd Annual Lecture on the theme ‘Promoting Sports Arbitration in Africa’ held on Thursday 28th November, 2019 in Nairobi).

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The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.

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