The Sports Dispute Tribunal is established under Section 55 of the Sports Act,1 Kenya. The tribunal exercises its jurisdiction,2 which empowers it to hear and determine appeals against decisions made by National Sports Organizations and their umbrella organizations whose rules specifically allow appeals to the tribunal, and appeals from the decisions of the Registrar of Sports. Likewise, the Sports Act limits the powers of the tribunal to employing Alternative Dispute Resolution (ADR) Mechanisms in its dispute resolution and to provide expert assistance regarding ADR. The Anti-Doping Act also donates jurisdiction to the SDT to hear and determine matters relating to doping violation.3 In hearing and determining matters of doping violations, the tribunal shall develop its own procedures.4 Notably, the tribunal lacks powers to issue equitable remedies such as injunctions, damages, or restitution.5 Appeals against the SDT lie at the Court of Arbitration for Sport, which cannot be challenged in national courts.
However, matters processed through the tribunal can be subjected to the Judicial Review process under article 47 and 165 (6) of the Constitution of Kenya, 2010. The Sports Dispute Resolution Tribunal continues to encounter challenges in exercising its statutory obligations. In March 2020, FIFA issued an administrative letter purporting not to recognize the jurisdiction of the Sports Dispute Tribunal.6 This article examines the foundational basis of the letter and what steps, if any, Kenya needs to undertake to have its SDT recognized as a National Sports Dispute Tribunal by FIFA.
Background to the study
In March 2020, FIFA issued a letter to the Football Kenya Federal stating that FKF should not have subjected itself to the jurisdiction of the tribunal.7 Effectively, FIFA invalidated the tribunal’s decision counceling FKF elections scheduled for April 2020. The reason provided for FIFA’s position on not recognizing the SDT is that it is not established under FIFA Statutes specifically Article 60. Par. 3 and FIFA Circular 1010 of 2005.8 Therefore, according to FIFA standards, the SDT, Kenya is not duly established as a National Sports Dispute tribunal. Later, the Chair of the Sports Disputes Tribunal criticized FIFA’s decision about the tribunal stating that he would not be attending a joint meeting with other stakeholders in Kenya with FIFA regarding the FKF general elections that the tribunal had twice invalidated.9 Ohaga further stated that an independent tribunal would not be party to a compromise with FIFA in the upcoming stakeholders meeting. He further cited politics playing a factor in the FIFA decisions.
While FIFA’s statement on the status of the SDT of Kenya was administrative, it has widespread ramifications regarding future judicial determinations that touch of football matters in Kenya. This paper seeks to establish the relations between FIFA and other national sports tribunals and what the SDT needs to do to obtain recognition of FIFA. Notably, the SDT is an independent institution established and composed of esteemed members with extensive sports knowledge.
The Judicial Service Commission in consultation with the National Sports Organizations appoints the tribunal10. Under the Act, the chairperson of the tribunal shall be an advocate who is has practiced for a minimum of ten years11. Other members of the tribunal also include two advocates of at least seven years’ experience in matters related to sports law, or involvement in sports in any capacity.12 Another two, and not more than six people, who have experience in sports matters also complete the tribunal.13 Kenya’s Sports Dispute Tribunal hears matters at both first instance and on appeal. In both instances, each panel shall consist of three members appointed by the chairperson.14 However, disputes involving international level athletes are resolved by the tribunal at the first level instance and the Court of Arbitration for Sport on appeal.15 FIFA’s relationship with the Sports Dispute Tribunal has not been tested regarding matters relating to doping violations.
Essential elements of a National Sports Dispute Tribunal
The essential requirements for an institution to be recognized as a national sports tribunal include adherence to the principle of parity when constituting the tribunal, observance to the right to an independent and impartial tribunal, and fidelity to the principle of fair hearing.16 Likewise, each party must have a right to contentious proceedings and the institution must abide by the principle of equality.17 Ideally, FIFA’s decision to not recognize the decision of a National Sports Dispute Tribunal must be sanctioned by a complaint by an aggrieved party within a judicial atmosphere. However, the letter to FKF only served as an administrative decision.
Nonetheless, it is a sacrosanct practice by the Dispute resolution Chamber (DRC) that even
in clear terms where the parties agree to have their dispute resolved by arbitration through the National Dispute Resolution Tribunal, the party referring the matter to the tribunal must prove that the NSDT meets the minimum requirements as provided in Article 22 (b) of RSTP, in FIFA Circular no. 1010 of 2005, and FIFA National Dispute Resolution Chamber Standard Regulations (NDRC Regulations).18 It is therefore, laughable that FIFA issued their letter disregarding the tribunal of the SDT without any complaint against the impartiality or unfairness of the tribunal. In the letter, FIFA declined to establish a normalization committee as decreed by Kenya’s Sports Dispute Tribunal claiming that FKF should not have subjected itself to the tribunal’s jurisdiction.
DRC jurisprudence also asserts that the chamber has jurisdiction to entertain a matter even though the parties’ contract specifically referred a matter to a national arbitration tribunal.19 Moreover, the DRC has previously held that it retains jurisdiction to hear and determine disputes before it even though such a dispute is before a civil court.20 However, when a matter has been heard and determined before a competent tribunal, it can only be appealed to the Court of Arbitration for Sports. In any other case, for FIFA to act in the manner the acted, a complaint should have been filed showing lack of compliance of the tribunal to FIFA Statutes particularly on fairness and independence. In the instant case, none of the parties aggrieved of the decision filed a complaint with FIFA. Instead, FKF referred the ruling to FIFA for advice and action on the establishment of the normalization committee and held by the SDT. The actions of FKF only served to show their acceptance of the decision of tribunal. Elsewhere, countries have began establishing National Arbitration Tribunals to foster transparency, affordability, and access to justice in sports disputes. This paper explores sports arbitration in New Zealand, Australia, and the United Kingdom.
Sports Tribunal of New Zealand
The Sports Tribunal of New Zealand was established in 2003 to hear and determine ‘certain’ disputes relating to sports.21 Unlike Kenya, its members are composed of established individuals in the sports industry, lawyers, doctors, and formers sportspersons. The chairperson must be a senior lawyer, who is currently the former president of the Court of Appeal.22 The jurisdiction of the tribunal extends to matters referred to it by the Board of Sports of New Zealand, sports-related disputes that parties agree to refer to the tribunal, appeals from NSOs or the New Zealand Olympic Committee, and anti-doping violations.23 Notably, just like Kenya, sports-related disputes are referred to the tribunal by agreement.24 Indeed, Paul David admits that most disputes in sports will be solved through arbitration. Notably, the Sports Dispute Tribunal of New Zealand is admired globally for its quality, procedural clarity, and concise decisions.25
New Zealand’s Tribunal for Sports is anchored in the principles of independence and credibility, fairness, objectivity, and justice, and timely, efficient, and affordable. 26 The Tribunal’s regulations were promulgated on 6th March 2012. Further, the Sports Tribunal for New Zealand was established after aggressive deliberations from stakeholders that culminated into two reports namely; The Sport, Fitness and Leisure Ministerial Task Force Report (commonly known as the Graham Report) and the Maria Clarke Report.27 The mission of the STNZ was to:
“To ensure that national sports organisations, athletes and other parties to a sports dispute have access to a fair, objective and just means of resolving sports disputes within the Tribunal’s jurisdiction that is also affordable, timely and efficient.”28
In addition, New Zealand Sports Tribunal’s jurisdiction is mainly limited to anti-doping violation. The three main sports in New Zealand; Football, Cricket and Rugby have their own internal dispute resolution procedures. While Cricket and football donate minimal jurisdiction to the tribunal, rugby excludes the tribunal from all its disputes.29 Football and Rugby have international associations that guide their specific dispute resolution mechanisms, hence the need to limit the tribunal’s jurisdiction.30 The tribunal is widely accepted to be independent and free from political of NSO interference.
National Sports Tribunal- Australia
Perhaps, the Australian National Sports Tribunal is the most recent sports arbitration bodies in world sports. It was established by the enactment of the National Sports Tribunal Act 2019 in September 2019.31 The Sports tribunal of Australia has three divisions: the Anti-doping, general, and appeals divisions.32 Under the National Sports Tribunal Act, the Minister appoints members of the tribunal.33 Besides the National Sports Tribunal, Australia also reviewed the Sports Integrity Arrangements under the Wood Commission.34 Like many other sports tribunals, the Australian sports tribunal employs arbitration, conciliation, mediation, and case appraisal to resolve disputes.35 Strictly, the tribunal handles anti-doping violation cases, disciplinary disputes, selection and eligibility, bullying, harassment, and discrimination, and other matters that the CEOs approve in writing.36 On the other hand, the tribunal does not handle employment disputes, contractual or remuneration issues, where either party seeks a remedy of damages, and disputes occurring in the field of play.37 The Wood Commission38 also recommended the establishment of the Sports Integrity Commission, which gave birth to the Sports Integrity Bill, 2019.39 The government formed the tribunal after issuing a response agreeing with some of the recommendations of the Wood Commission.40 The body is intended to address issues related to sports integrity in Australia.
Notably, the National Disputes Tribunal of Australia is on triage for two years.41 The tribunal is part of the plan to realize the Sports plan of Australia based on four pillars: participation, performance, industry, and integrity.42 As already noted, the minister appoints members who sit on the tribunal. Membership to the tribunal is part time for a maximum of five years. The members of the tribunal have duties imposed on them as public officers namely, the duty to act honestly, in good faith and for a proper purpose, prohibition from abuse of office, and duty in relation to use of information obtained during the execution of official duties.43 Since the tribunal is in its infancy stages, it is yet to determine substantive matters. However, commentators have noted that its formation is the right step for Australia sports. Just like many others, the National Sports Tribunal of Australia has an opt-in clause that donates jurisdiction to most of its contractual disputes.44
Way forward for Kenya’s Sports Dispute Tribunal
From the foregoing, it is indeed clear that FIFA’s administrative decision to ‘not recognize’ the Sports Dispute Resolution decision of Kenya was ultra vires. Be it as it may, the National Dispute resolution tribunal of Kenya lacks in fundamental tenets that would enable it qualify under FIFA’s circular 1010 of 2005. Indeed, other countries have gone through a similar path where their national dispute resolution tribunal has failed the compliance test of FIFA’s minimum threshold. Kenya’s SDT falls short of satisfying the five core ingredients of parity in choosing the arbitration tribunal, fair hearing, independent and impartial tribunal, equality, and the right to contentious proceedings. One of the main shortcomings of Kenya’s SDT is its procedure of appointing the Chair of the tribunal and members of the tribunal.
According to FIFA guidelines, parties to a dispute must have a chance to nominate arbitrators who will sit and determine the dispute. However, in the case of Kenya’s SDT, the Chair, who is appointed by the Judicial Service Commission has the sole powers to appoint members who sit in the tribunals. Clearly, therefore, such an arrangement is in direct violation of FIFA circular 1010 of 2005 and Article 3(1) of the Standards or the Principles. Indeed, the Court of Arbitration for Sports has pronounced itself in a similar scenario where it held that the appointment of SDT members by the chair is in direct contravention of Article 3(1) of the Standards or the Principles.45
Besides Kenya, South Africa’s National Dispute Resolution Tribunal has faced a similar challenge in the past. However, the issue with South Africa’s dispute resolution chamber arose from a judicial decision of the Dispute Resolution Chamber Namibian footballer, Mr. Jacob Nambandi referred a matter to the DRC rather than the South African NDRT.46 One of the
main reasons that the DRC impeached the competence of the South African Dispute Tribunal’s competence was because the club failed to show how both parties could participate, on an equal basis in the appointment of the chair of the tribunal determining their case since the current chairperson was appointed by the Executive Committee of the League and not by clubs and players by mutual consent.47 The panel of DRC that determined the South African Tribunal case held, inter alia that:
“… the Panel finds that the South African NDRC cannot be qualified as a national arbitration tribunal that respects the principle of equal representation of players and clubs, as is required by article 22(b) FIFA RSTP. The Panel does not suggest that the proceedings before the South African NDRC are not fair or lack the desired quality, but rather that the appointment of the chairman of the South African NDRC was not in line with the minimum prescripts of FIFA.”
Similar sentiments have been echoed by the Court of Arbitration for Sport in Al Sharjah Football Club v. Leonardo Lima da Silva & FIFA discussed herein above. Therefore, the administrative decision by FIFA through their letter to Football Kenya Federation or the DRC judicial determination on the incompetence of the South African SDT does not mean that the tribunals were partial but rather, the failure to tick the necessary checklist provided by FIFA makes it difficult to discern the competence and impartiality of the said tribunals. Indeed, in January 2020, the South African National Soccer League (NSL) amended its Constitution and regulations governing procedures before the South African NDRC.
Conclusion
Following global practice, FIFA has taken a firm stand in enforcing standard on how National Dispute Resolution tribunals that arbitrate on football matters must comply. With the mushrooming of most of these tribunals in many parts of the world and the increased commercialization of sports, there is need for local authorities to establish national dispute resolution tribunals. However, for uniformity in applying football laws across the globe, all these tribunals must abide by the minimum requirements set by FIFA through their circulars and statutes. Notably, the tribunal’s composition must adhere to the five main principles that ensure they are duly constituted and independent. These principles are:
a. The principle of parity when constituting the arbitral tribunal;
b. The right to an independent and impartial tribunal;
c. The principle of a fair hearing;
d. The right to contentious proceedings; and
e. The principle of equal treatment.
Ultimately, these yardsticks ensure that justice is not only served, but is seen to have been served. They also seal the loopholes that could be exploited by corrupt officials to choose biased tribunals against players or clubs that would otherwise dilute the integrity of FIFA’s sports dispute resolution systems. The upshot of this argument is that Kenya needs to amend its Sports Act to provide for a mechanism that allows Players and clubs to choose members of the tribunal who determine their disputes. Until then, Kenya’s Sports Dispute Resolution Tribunal will continue facing recognition issues from FIFA’s DRC and even the Court of Arbitration for Sports.
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*The writer is an Advocate of the High Court of Kenya and Partner at MNW & Advocates LLP. He is also a director at MNW Consultancy Limited, a company that consults in Sports related disputes, commercial agreements, and Real Estate agreements. Mokua is passionate about Sports Law and has researched extensively on the topic. You can reach him through: mokua@mnwlaw.co.ke
1 No. 25 of 2013, Government Printer, Nairobi.
2 Ibi section 58.
3 Olivia Budd, Katie Hodgetts and Reece Whelan, Sports Law Review (2019).
4 ibid.
5 Kariuki Muigua, Promoting Sports Arbitration in Africa (2019).
6 ‘Kenya: SDT Ruling on FKF Inconsistent With World Sports Conventions – AllAfrica.Com’
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