The Sports Tribunal

#Long post alert. Because this is imporrant!!!

Today I want to talk about this very important institution in the area of sports in Kenya. Tribunals are meant to be specialized forums through which grievances are addressed within a certain discipline before one can proceed lodge proceedings before the normal courts, usually the High Court. Thus, The Sports Tribunal would be the forum where sportsmen and women, sports organizations and agencies can present issues for adjudication.

The Tribunal is established under Section 55 of the Sports Act. It consists of a Chairman; two persons who are lawyers and have experience in legal issues concerning sports or who have been involved in sports in one way or the other; and between two to six other members who have been involved in sports in the ten years preceding their appointment. Therefore, at any given time the Tribunal consists of at least 5 members, and at most 11 members, all of whom are appointed by the Judicial Service Commission (JSC). The members are to serve for a term of five years, renewable once.

The scope of operation

The Act gives the scope of disputes which can be determined by the Tribunal (Section 58). One such dispute is where someone is aggrieved by the decision of a national sports organization. However, such disputes can only concern a disciplinary measure implemented by the national sports organization, or a dispute concerning not being selected to the national team. In addition, anyone aggrieved by the decision of the Sports Registrar can also move to the Tribunal for determination of their dispute. Other issues concerning sports can also be heard by the Tribunal, but on condition that all concerned parties agree that the dispute be determined by the tribunal.

Has the Tribunal been effective?

With this backdrop of the scope of operation, it is arguable whether the Sports Tribunal is effective in addressing the numerous grievances in sports. The Act actually fails to give the Tribunal powers that are sufficient enough to give the Tribunal significance in sports disputes. For instance, numerous disputes have been taken out of the jurisdiction of the court UNLESS ALL the parties to the dispute agree to have the Tribunal decide on the issue. Therefore, if a national sports organization does not have provisions subjecting themselves to the jurisdiction of the Tribunal, issues which arise in that particular sports discipline will not be addressed by the Tribunal. Looking at the Kenya Basketball Federation (KBF) Constitution, there is no such provision. FKF, which governs football also does not have such provision in their constitution. Further, parties who are in disagreement over an issue are highly unlikely to agree to have the matter determined by the Tribunal.

Another aspect of insufficiency of the Act concerns the remedies available to an aggrieved party. There is no indication of what the Tribunal can order in response to an issue. It is not clear whether the Tribunal can order that someone be included in the national team after being cut off, or whether the Tribunal can reverse a disciplinary action, or even order the payment of damages by the injuring party.

However, the recent decision by the Sports Tribunal regarding FKF seems to be saying otherwise. The FKF Constitution stipulates that disputes are to be resolved only through internal dispute resolution mechanisms, and makes no deference to subjecting disputes to the jurisdiction of the Tribunal. Nevertheless, the Tribunal ruled that it does have jurisdiction to determine the case because it involved a sports dispute.

What is the way forward?

Disciplines such as football and boxing, have sought the intervention of the Sports Tribunal, and have been able to successfully present their grievances. However, The Sports Act should be amended to give The Tribunal the powers to adjudicate ALL sports disputes. In addition, national sports organizations must be obligated to tailor their respective constitutions to facilitate the Tribunal’s adjudication even as they establish internal dispute resolution mechanisms. Also, the Tribunal should be accessible to any person or organization at any point without having to go through internal dispute resolution mechanisms within the federations. With these amendments in place, national sports organizations would be motivated to establish good practices and ensure efficient, effective and equitable management of their respective sports disciplines.

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