Sports Arbitration in a Nutshell
Author: Shalom Bright Omondi
McInnes v. Onslow-Fane - “Sports bodies are far better fitted to judge [sports-matters] than the courts,”
The sports world is a vast world of endless opportunities befitting only the greatest of physical specimen of mankind. Within this arena of champions, it is not trophies that are won but legal battles as well.
These battles involve not only contractual disputes but transfer disputes, affiliation dispute, appeals from disciplinary sanctions and anti-doping matters as well. In the middle of this, there are attempts to resolve disputes without involving the ever-arching hand of the national courts or even governments which at times can be politically motivated to act.
In a nutshell this is where sports arbitration takes the main stage. The main recourse being of course justice. The question remains is, how can we use arbitration to better support athletes in Kenya?
What is Sports Arbitration?
Sports Arbitration in simple terms is just sporting disputes being solved by arbitration. In other words, the dispute in a sport will be solved by one or more arbitrators by which a decision made, (arbitration award) is legally binding on both sides and enforceable. Sports Organizations have set up a unique way of dispute resolution which usually involves arbitration at two or three levels.
First at club level, then at national level and then finally at international level.The Sports Dispute Resolution system is designed to resolving sports related disputes in a flexible, fast, and inexpensive manner.
This beats courts whereby the lack of specialized or technical expertise by ordinary courts would cause substantial financial, administrative or even logistical pressure on sports organizations. In many instances, sports organizations or the players themselves do not want drawn out in public courts their affairs which could cause a stain not only on their image but reputation as well.
In Kenya the Sports Act has produced a special Sports Disputes Tribunal having the mandate of resolving sports related disputes.
Overview of Kenya Sports Act- Dispute Resolution
The Sports Disputes Tribunal, as established under Section 55 of the act, comprises members appointed by the Judicial Service Commission. These members possess a diverse range of qualifications and experiences, including legal expertise and substantial involvement in the sports domain. The tribunal's jurisdiction encompasses appeals against decisions made by national sports organizations, disputes agreed upon by all involved parties, and appeals from decisions made by the Registrar under the act.
Key Provisions and Powers of the Tribunal One of the significant powers granted to the tribunal is its authority to apply alternative dispute resolution methods, emphasizing flexibility in resolving sports-related conflicts. This provision acknowledges the need for tailored approaches to address the unique nature of disputes within the sporting realm.
Additionally, the tribunal is mandated to provide expertise and assistance in alternative dispute resolution to the disputing parties, fostering a collaborative environment conducive to resolution.
Challenges and Future Solutions: While the Sports Act lays a solid foundation for sports arbitration in Kenya, several challenges persist that warrant attention for future improvement. These challenges include:
1. Accessibility: Ensuring equitable access to the tribunal's services for all athletes and stakeholders, regardless of their financial resources or social status, is crucial. Implementing mechanisms to subsidize arbitration costs or providing legal aid to underprivileged individuals can enhance accessibility.
2. Timeliness: Expediency in dispute resolution is essential to prevent prolonged legal battles that may detrimentally impact athletes' careers and the integrity of the sport. Streamlining procedures and setting clear timelines for case adjudication can mitigate delays.
3. Transparency: Upholding transparency in tribunal proceedings is vital for fostering trust and credibility among stakeholders. Implementing measures such as public disclosure of decisions and rationale behind rulings can enhance transparency and accountability.
4. Age and Incorporating New Arbitrators: In 2016 independent research showed that there were only 27 Africans out of 356 who were appointed as CAS Arbitrators, none of whom were female. The oldest African arbitrator was 82 years old; the youngest was 38 years old, while the average age of the African arbitrators was 62.7 years.
5. The Rise of Esports and Arbitration: Currently, the Sports Act in Kenya does not have adequate frameworks in place to envision the incorporation of a dispute resolution system in place for e-disputes. In the Esport world, a majority of these issues can come from cheating, max fixing and using performance enhancing drugs. The Africa Gaming Market size is estimated at USD 2.14 billion in 2024. With this comes opportunity for regulation and dispute resolution.
The Sports Disputes Tribunal established under Kenya Sports Act represents a significant step towards promoting fairness and accountability in sports arbitration in Kenya. By leveraging its powers and addressing existing challenges and tackling issues such as cultural barriers within disputes in Kenya, the tribunal can serve as a beacon of integrity, ensuring that athletes receive just resolutions to their disputes, thus safeguarding the spirit of sportsmanship and fair play in the country.
