By Dr. Kenneth Wyne Mutuma, PhD1
Abstract
In recent years, sports dispute resolution has become an increasingly important issue, due to the advent of sports law and the use of Alternative Dispute Resolution (ADR) mechanisms. This paper emphasizes the importance of effective sports dispute resolution mechanisms in promoting and sustaining the growth of the sports industry. It highlights the potential benefits of ADR mechanisms, such as arbitration and mediation, in resolving sports disputes, while also acknowledging the challenges and limitations that these mechanisms face. The paper argues that further innovations and reforms are necessary to ensure that sports dispute resolution mechanisms remain effective, fair, and efficient. By promoting the use of ADR mechanisms, and implementing reforms and improvements to the current legal and institutional framework, the paper suggests that the sports industry in Kenya can continue to grow and thrive in a sustainable and responsible manner.
1.0 Introduction
Sports have undoubtedly played a significant role in many cultures around the world, serving as a platform for communication and instilling values in young people. However, as sports have become increasingly commercialized, the focus has shifted from participation to winning, leading to more disputes in the sports industry. The resolution of sports disputes is critical to maintaining the value of sports and allowing athletes and teams to continue their athletic endeavors.
The development of sports law and sports dispute resolution mechanisms, including alternative dispute resolution (ADR) processes like mediation and arbitration, have helped address these issues. This chapter provides a critical analysis of the legal framework for sports dispute resolution in both the Kenyan and international contexts, identifying areas of strength and weakness. It also examines the opportunities and challenges that exist in the resolution of sports disputes using ADR and suggests potential reforms to improve the efficiency and fairness of the resolution process.
Ultimately, the effective resolution of sports disputes requires timely action before the contested event takes place. By addressing the challenges associated with sports disputes and implementing the suggested reforms, sports disputes can be resolved fairly, efficiently, and effectively, allowing the sports industry to continue to thrive.
2.0 The Rise of Sports Law and the Role of Arbitration and Mediation in Sports Disputes
It is important to note that the growth of sports in Kenya has also brought about positive impacts in the country. Sports have become a platform for national unity, promoting social cohesion, and integration of different communities. It has also created employment opportunities for sportsmen and women and contributed to the growth of the economy through sports tourism. Moreover, sports have been used as a tool for promoting peace and reconciliation in conflict-prone areas.
However, challenges such as lack of adequate funding, infrastructure, and talent development still exist in the sports industry in Kenya. The development of sports law and dispute resolution mechanisms is crucial to ensure that the rights of sportsmen and women are protected, disputes are resolved in a timely and efficient manner, and the integrity of sports is preserved.
In conclusion, the evolution of sports in Kenya has been influenced by colonialism, independence, and the growth of professional sports. Disputes arising from commercialization and financial incentives have necessitated the adoption of ADR mechanisms in sports dispute resolution. While ADR mechanisms have been embraced in the resolution of sports disputes in Kenya, more efforts are needed to fully explore the convergence of sports and law, promote talent development, and ensure the sustainability of the sports industry.
3.0 The Legal and Institutional Framework for Sports Disputes Resolution
3.1 Kenyan Context
The article discusses the use of alternative dispute resolution (ADR) mechanisms in resolving sports disputes in Kenya, particularly arbitration and mediation. The Sport Act of 2013 and the Constitution of the Football Kenya Federation serve as the legal frameworks governing sports and sports dispute resolution in the country. Various institutions, including Sports Kenya, the Office of the Registrar of Sports, the Anti-doping Agency of Kenya, the Athletics Kenya Arbitration Panel, and the Sports Dispute Tribunals, derive their authority from these laws. The article further explores the legal and institutional frameworks for sports dispute resolution in Kenya.
3.1.1 Legal Framework
Sports dispute resolution in Kenya is governed by the Sports Act of 2013, which recognizes the use of alternative dispute resolution mechanisms, such as arbitration and mediation, in settling disputes brought before the Sports Dispute Tribunal (SDT). The SDT has jurisdiction over appeals relating to team selections, disciplinary decisions, and other appeals referred to it. However, the Act is unclear on how disputes that the SDT has no jurisdiction over or refuses to hear should be resolved, and it does not specifically mention mediation as a viable option.
On the other hand, the Constitution of the Football Kenya Federation (FKF) limits the use of ordinary courts in football-related disputes and gives preference to arbitration, unless the FKF Constitution or FIFA regulations expressly refer disputes to ordinary courts. This means that the rules and regulations governing football in Kenya prioritize the use of arbitration as a dispute resolution mechanism, particularly in disputes involving clubs, club members, soccer leagues and their members, officials, or players.
3.1.2 Institutional Framework
The Sports Act of 2013 establishes Sports Kenya as a body corporate responsible for promoting national and international sports programs in collaboration with relevant sports organizations, and overseeing the active participation of Kenyans in regional and international sporting activities. The Office of the Registrar of Sports, also established under the Act, is responsible for registering and licensing sports organizations and personalities, maintaining a register of registered organizations, and resolving registration disputes between sports organizations through arbitration.
The Sports Disputes Tribunal (SDT) is established under the Anti-Doping Act and the Sports Act, with the mandate to resolve sports disputes through arbitration. It serves sports federations, clubs, athletes, club officials, the Anti-Doping Agency of Kenya, and Registrar of Sports. Its jurisdiction is limited to resolving sports-related appeals from national sports federations, appeals from decisions of the Registrar under the Act, and other sports-related disputes that all parties agree to refer to the Tribunal and that the Tribunal agrees to hear. Decisions of the Tribunal may only be appealed to the Court of Arbitration for Sport, and are subject to judicial review jurisdiction of the High Court.
The Athletics Kenya Arbitration Panel is responsible for resolving disputes between the executive and members, as well as between members through arbitration, but it only resolves non-disciplinary disputes. Lastly, the Confederation of African Football issues certificates to clubs that have met the minimum licensing requirements prescribed by the statute in order for them to participate in inter-club competitions overseen by the CAF.
3.2 International Context
The Court of Arbitration for Sport (CAS) is responsible for resolving sports disputes through arbitration and mediation, with three divisions for different types of disputes. The Code of Sports-Related Arbitration and Mediation Rules outlines the formal requirements for CAS operations. The International Council of Arbitration for Sport administers and finances the CAS, and many organizations have endorsed the World Anti-Doping Code to prevent doping in sports. The Olympic Charter governs the operation and conduct of the Olympic movement, with disputes related to the Olympics resolved by the CAS. The FIFA Statute encourages fair play and ethics, with disputes subject to internal management mechanisms before being brought to the CAS. The International Association of Athletics Federation (IAAF) Constitution governs athletics worldwide, with appeals against IAAF decisions required to be lodged with the CAS within 21 days.
4.0 Opportunities in Sports Disputes Resolution
The commercialization of sports has led to the need for athletes to sign contracts to govern their affairs with sponsors, clubs, teams, and managers. The establishment of the Sports Disputes Tribunal has not been able to handle sports disputes effectively. Hence, there are opportunities for legal and ADR professionals who are sports enthusiasts to provide training to practitioners who wish to specialize in sports dispute resolution. Mediation has proven to be a more efficient method of resolving disputes than arbitration, and international sports dispute resolution bodies are encouraging disputants to pursue mediation in the first instance. AI can also be utilized to reduce tax disputes by simplifying the process and enabling athletes to accurately calculate tax owed, make payments, and upload proof of payments.
5.0 Challenges Encountered in Sports Dispute Resolution through ADR
There are several challenges facing sports dispute resolution in Kenya, particularly in relation to arbitration and mediation. The first challenge relates to the jurisdiction of the Sports Dispute Tribunal (SDT), which is limited to appeals expressly provided by the national sports organizations’ rules. This means that disputes outside the tribunal’s jurisdiction may go unresolved, denying access to justice or resulting in rights violations by sports organizations. The need to restructure dispute resolution mechanisms with regard to doping conflicts is also highlighted, with critics calling for an established international framework for conducting investigations, classifying punishments, and appealing WADA decisions.
Another challenge is the lack of adequate coverage of employment in sports by existing labor legislation. Technical matters such as contract reviews and contract periods are not adequately catered for by the Employment Act of 2007. As a result, disputes at Kenya’s Sports Disputes Tribunal often relate to unpaid wages and unjust termination of employment. There is a need to implement laws that are fully dedicated to sports employment issues and broaden the Tribunal’s jurisdiction to include all employment disputes in the sports arena.
Finally, tax dispute resolution is also a challenge, particularly for athletes plying their trade in foreign jurisdictions, where they may be subjected to double-taxation. There is a need for legal representatives and sports personalities to have a thorough understanding of the tax system, and for training on tax issues to be a mandatory requirement for legal representatives wishing to practice in the sports arena. Arbitrators and mediators specializing in tax can also offer their expertise in resolving tax disputes.
6.0 Reforms
Overall, the proposals outlined in this chapter suggest that there is a need for improvement in the current sports dispute resolution system in Kenya, specifically in terms of accessibility, jurisdictional limitations, and capacity development. Decentralizing the CAS to regions like East Africa, embracing technology like video conferencing, and reviewing the current legislation governing alternative dispute resolution for sports are some of the ways in which these challenges can be addressed. In addition, the inclusion of sports law in university curriculums and the introduction of short courses on technical aspects of sports law by ADR institutions in collaboration with the CAS would also contribute to a more efficient sports dispute resolution system. If these proposals are implemented, the sports industry in Kenya will be able to effectively resolve disputes through arbitration, mediation, and other ADR processes.
7.0 Conclusion
The passage discusses the need for efficient and effective dispute resolution mechanisms for sports disputes in Kenya. It suggests that arbitration and mediation are appropriate processes for resolving such disputes, but highlights challenges such as limited jurisdiction and capacity deficiencies. The passage proposes solutions such as decentralizing the Court of Arbitration for Sport (CAS), reviewing legislation to expand jurisdiction, and introducing sports law in legal education. It emphasizes the importance of resolving sports disputes quickly and fairly, while considering the rights of all parties involved.
Key words: sports law, sports dispute resolution, alternative dispute resolution, sports arbitration and mediation
- Dr. Kenneth W. Mutuma is a senior advocate and academic. He holds a PhD (Cape Town), LLM (Cape Town) and LLB (Liverpool). He also has extensive academic and practical knowledge in Alternative Dispute Resolution (ADR International Law, Refugee Law, Human Rights Law, and Humanitarian Law.
