ADJUDICATION OF SPORTS DISPUTES IN KENYA – THE HOPES, FEARS AND
EXPECTATIONS FACING THE SPORTS DISPUTES TRIBUNAL
Simon Shivaji1
A. Introduction
The attitude of the Courts around the world has, in general, been to shun interventions in sports
disputes, except in very special and limited circumstances.2 The role of intervention has therefore
been ceded to other specialized tribunals as numerous disputes abound and the situation abhors a
vacuum.
One body offering this form of extra-judicial dispute resolution of sports disputes is the Court of
Arbitration for Sport. This article reviews the creation, composition, jurisdiction as well as the
challenges that the nascent Sports Disputes Tribunal in Kenya faces in its early life. It will then
give two proposals on what the Sports Disputes Tribunal will to do in order to succeed in its
mandate. The proposals are based on an analysis of the early successes as well as failures of the
Court of Arbitration for Sport (hereinafter called the “CAS”) on the international plane.
The Discussion will then posit that in most aspects, the Sports Disputes Tribunal will need to
adopt the modus operandi used by the CAS and strive to achieve the levels of goodwill such as those
enjoyed by the CAS in order to rise above the ordinary levels occupied by other quasi-judicial
tribunals in Kenya.3
B. The Nature, Jurisdiction Structure and of the Sports Disputes Tribunal in Kenya
The Sports Disputes Tribunal (hereinafter referred to as “The Tribunal”) is one of the Sports
Institutions created by the Sports Act 2013 of Kenya,. The main jurisdiction of the Tribunal, as
The Author is an Advocate of the High Court of Kenya, practicing in Nairobi, Kenya, and a Senior Partner in
Sporting Spirit Legal Consultancy, a firm based in Nairobi Kenya, which specializes in legal matters pertaining to
sports in particular and entertainment in general. The firm runs the blog www.sportingconsultancy.com , where this
article and others with a similar inclinations are to be found. The Author also wrote a thesis entitled The Law Regarding
Violent Misconduct in Sport in partial fulfilment of the requirements for the award of the LL.B degree at the University
of Nairobi.
1
For example, see McInnes v. Onslow-Fane, ChD 1978 - [1978] 3 All ER 211; [1978] 1 WLR 1520, where Megarry VC
observed, inter alia that “sports bodies are far better fitted to judge than the courts”. Also Lord Denning remarked in
Enderby Town Football Club Ltd v. Football Association Ltd, [1971] Ch 591 that “…justice could often be done in domestic
tribunals better by a good layman than by a bad lawyer”.
2
3
For a detailed discussion on the relative successes of the Court of Arbtration for Sport, see Yi, Daniel H., "Turning
Medals into Metal: Evaluating the Court of Arbitration for Sport as an International Tribunal"(2006). Student Scholarship Papers.
Paper 24. http://digitalcommons.law.yale.edu/student_papers/24
1|Page
encapsulated by Section 58 of the said Act , will be to hear appeals from the decisions of the Sports
Registrar4 under the Act, including:a)
b)
c)
d)
e)
Rejection of Applications for registration by sports organizations;
licensing of, or refusal to license professional sports and professional sportspersons;
arbitration of registration disputes between sports organizations;
Cancellation of a certificate of Registration of a sports organization; and
Directions in relation to any matter arising out of an inspection report made under section
52(4) of the Act.
The Tribunal also has the jurisdiction to determine appeals by sportsmen and women against
disciplinary decisions and omission of selection into national teams made by national sports
organizations or umbrella national sports organizations, subject to the condition that the rules and
regulations of such national sports organizations or umbrella national sports organizations
specifically permit appeals to be made to the Tribunal.
It further has the original jurisdiction to determine other sports-related disputes, provided that all
parties to the disputes agree to refer such disputes to the Tribunal and that the Tribunal agrees to
hear the said disputes.
The Tribunal is a quasi-judicial body appointed by the Judicial Service Commission in Consultation
with the various National Sports Organizations in Kenya. Its members are required to be at least
Five, namely the chairperson who must be a person qualified to be appointed as a judge of the
High Court of Kenya, at least two lawyers of seven years having more than a mere passing
acquaintance with sport and at least two (but no more than six) other persons who have been
actively involved in sport for a least ten years immediately prior to the appointment
C. The Challenges/Limitations ahead for the Tribunal
There are a number of challenges, both statutory, and institutional that are bound to negatively
affect the effectiveness of the Tribunal.
The first challenge, ironically, is the fact that the Tribunal has effectively been made part of the
Judiciary of Kenya, by virtue of the fact that the Judicial Service Commission is the de jure
appointing authority. The corollary to this state of affairs is that challenges against decisions of the
Tribunal must necessarily be filed for determination in local courts, particularly the High Court of
Kenya.
Note that the functions of the Sports Registrar under the Sports Act 2013 are spread throughout the Statute. The
decisions listed above can only be determined after reading through the Act.
4
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The current Chairperson of the Tribunal is on record as stating that challenges will have to be filed
at the CAS.5 However this is debatable. As pointed out earlier, the main jurisdiction of the Tribunal
is to determine appeals from the decision of the Sports Registrar. It is inconceivable therefore that
appeals against decisions relating to the decisions of the Sports Registrar in the matters enumerated
above would lie with the CAS6. In deed the Constitution of the Football Kenya Federation and
other National Sports organizations are yet to be amended to give effect to the jurisdiction to the
Tribunal as contemplated by the Sports Act.7
This is a challenge in so far as it automatically renders the Tribunal an irrelevant player in the
national sphere of sports arbitration and alternative disputes resolution. Most sports bodies frown
upon the resolution of disputes by national court systems, instead preferring to use their internal
dispute resolution mechanisms before resorting arbitration through the CAS. National Courts
adopt very complex and esoteric procedures, have costly procedures and are inefficient in terms
of the time spans that are required for final adjudication of disputes.
While it is not intended that there should be an irruption of disputes into the Tribunal, there is a
real danger that the Tribunal will be shunned and consequently be underemployed due to the
limited jurisdiction donated to it by the Sports Act 2013, as discussed above and an evanescence
of disputants may instead result in the event that the Tribunal fails to carry out its mandate in
accordance with their expectations. However, the Tribunal has the opportunity of distinguishing
and acquitting itself and even becoming a model institution of dispute resolution. It has the
advantage of being a novel forum, comprising mainly of eminent advocates experienced in the
area of sports arbitration and dispute resolution.
The CAS, sitting in Lausanne, Switzerland, is the pinnacle of the worldwide dispute settlement
system for sport matters. CAS enjoys significant autonomy from states, despite the great
importance of its decisions for the lives of athletes. Setting aside proceedings against CAS arbitral
The Chairman of the Sports Disputes Tribunal gave a press interview in which he attempted to explain how the
Tribunal was going to operate. Unfortunately, at the time of writing this article, the Chief Justice of Kenya had not
yet published the rules and regulations of practice for the Sports Disputes Tribunal. The excerpts of his interview can
be found via this link :- https://www.youtube.com/watch?v=85PmalbKlv4
5
6Rule
27 of the Statutes of the Bodies Working for the Settlement of Sports-Related Disputes (Commonly known as
the CAS Statutes) provides that, “These Procedural Rules apply whenever the parties have agreed to refer a sports-related dispute to
CAS. Such reference may arise out of an arbitration clause contained in a contract or regulations or by reason of a later arbitration
agreement (ordinary arbitration proceedings) or may involve an appeal against a decision rendered by a federation, association or sportsrelated body where the statutes or regulations of such bodies, or a specific agreement provide for an appeal to CAS (appeal arbitration
proceedings).” Consequently, the decision of the Sports Registrar, which is in effect an administrative decision should
be the subject of either an appeal or an application for judicial Review rather than a challenge directed at the CAS.
For Instance, the Constitution of the Football Kenya Federation is yet to be amended and therefore there is no
clause that would clothe the Tribunal with jurisdiction. It is also highly unlikely that the Football Kenya Federation
will agree to submit to the Jurisdiction of the Tribunal.
7
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awards may only be filed with the Swiss Supreme Court due to the seat of CAS tribunals being in
Lausanne. The number of such setting aside proceedings has greatly increased, to the point that
almost half of the Supreme Court’s case load relating to international arbitration now concerns
CAS awards.8
The other problem is the possibility of vested interest and conflict of interest. It is a fact that three
of the members of the Tribunal are high ranking official National Sports organizations.9 One of
the said National Sports organizations is involved in endless wrangles and the member from that
particular organization happens to be at the vocal forefront of the feud. It is not unreasonable to
speculate that the said member may influence the direction of the matters before the Tribunal.10
This was an initial challenge experienced even by the CAS in the earlier days when the affairs of
the CAS were heavily influenced by the International Olympic Committee until the case of Gundel
v. Federation Equestre Internationale11.
A caveat must be put at this stage, that this article has been put forth without the benefit of
accessing the rules of procedure made by the Tribunal. The same are yet to be published12.,
although Sports Act 2013 provides that The Chief Justice may in consultation with the chairperson
of the Tribunal, and by notice in the Gazette, make rules governing the practice and procedure of
the Tribunal having regard to the objectives of this Act.13
D. The Way Forward for the Tribunal
There are two basic, albeit broad, ways for the Tribunal to succeed where numerous other
Tribunals have failed:a) To win the faith of those potential disputants submitting themselves to its jurisdiction, in
order to have what may be termed as “the party preference”; and
b) To have a way of having its decisions being respected and acted upon.
See Antonio Rigozzi, Challenging Awards of the Court of Arbitration for Sport , Journal of International Dispute Settlement, Vol.
1, No. 1 (2010), pp. 217–265 The Article can be Downloaded from http://jids.oxfordjournals.org/
8
9
See the link in note 5 supra.
The case of Sam Shollei, the immediate former Vice President of the Football Kenya Federation was reportedly the
first one to be filed before the Tribunal. Although we have already opined herein that the same is a non-starter for
lack of jurisdiction, it is worthy of note that Mr Shollei’s successor, Mr. Joseph Asembo now has a seat at the Tribunal.
10
in DIGEST OF CAS AWARDS 1986-1998, at 561
The Proposed Rules of Procedure and practice appear to be still in draft form.
13
Section 61 of the Sports Tribunal Act. No publication of the Rules had been done as the time of publication of
this paper.
11
12
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1. Towards achieving Party Preference
The Tribunal must, at the inception, convince potential disputants that it is, when compared to
other like forums for disputes tribunals, “the better option”, by offering a visibly simpler, fairer,
impartial, more efficient and superior means of dispute resolution dispute resolution method.
For instance, on the simplicity and efficiency card, the CAS routinely concludes its decisions on
disputes within four months from the time of filing. It has a fairly simple procedure for filing cases.
Unlike normal courts, the CAS has relatively simple procedures before the hearing.14
The cost of arbitration before the CAS is relatively cheaper than National courts or other arbitral
proceedings, especially when the cost of each arbitrator is concerned. Added to the relative
efficiency discussed before, this has made the CAS attractive and it is a trait worth of emulation.
As regards impartiality, it has already been observed elsewhere in this article that the Tribunal has
the latent weakness of having members with potential conflicts of interest. Hence, the Tribunal
must demonstrate that National Sports Organizations will not impose their will, whether
individually or collectively against it. The CAS has been able to carry out its mandate in spite of its
composition, such is in the case involving the United States athlete Jerome Young.15
The CAS has proved to be a very popular and effective body for settling a wide range of sports
disputes fairly, effectively, quickly and relatively inexpensively. Its cases are varied and come from
all over the sporting world, including the commercial side. As such, as the CAS tends to follow its
previous decisions, it is contributing to and building up, if not a lex sportiva, then at least a lex
specialis. In doing so, it retains the required confidence of its clientele and it serves the needs of
sport, which continues to be an ever-expanding global social and business phenomenon.
In a nutshell, the Tribunal may be well advised to follow the modus operandi of the CAS in order to
be the preferred forum for dispute resolution.
2. Having Effective Speech Acts
The pronouncements emanating from the Tribunal should be capable of being acted upon just in
the same way as orders of the National Courts.
See Rules 44 to 46 of the CAS Statutes which can be downloaded from here.
Arbitration CAS 2008/A/1545 Andrea Anderson, LaTasha Colander Clark, Jearl Miles-Clark, Torri Edwards,
Chryste Gaines, Monique Hennagan, Passion Richardson v. International Olympic Committee (IOC), award of 16
July 2010 which can accessed here.
14
15
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This is the essence of effective speech acts, associated with philosophers J.L. Austin and John Searle,
has been broadly used to evaluate problems in adjudication of disputes. In other words, the
pronouncements of the Tribunal will need to have felicity and effectiveness.
Speech acts may fail because the conventional procedures for performing the acts do not exist or
those procedures are such that they cannot be applied to particular cases. They may also fail
because actual performances do not correspond to conventional procedures: the speaker simply
makes a mistake and produces a wrong sound, produces an inaudible sound, misunderstands
conventional procedures for the performance of a specific act, or the hearer does not acknowledge
the purported act.
The International Court of Justice must be particularly familiar with failed speech acts. Although
Article 94(1) of the Charter of the United Nations obliged every state “to comply with the decisions
of the International Court of Justice in any case to which it is a party,” several states have refused
to obey adverse court rulings. The CAS fares better and the pronouncements of the CAS are laws
unto themselves that require no further action by way of execution proceedings.
In one particular instance Jerome Young was stripped of his Gold medal.16 He however blatantly
refused to hand over the medal. Unfortunately for Jerome Young the important aspect was that
in actual fact the CAS had declared that he was not a gold medallist at the Sydney Summer Olympic
games in the year 2004. That alone meant that Jerome young had lost all the goodwill, because
being a gold medallist was more a question of the legitimacy of his victory rather than the actual
circlet of gold plated metal. In effect the athlete was driven to destitution.
Further still the CAS can rely effectively on the existence of Police Power and Eminent Domain
to have its decisions accepted and enforced particularly when it comes to dealing with Commercial
arbitrations. The CAS is recognized as an international Arbitration Tribunal and therefore The
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 17
(the “New York Convention”) is a powerful tool that the CAS uses to expand its alliance of
supporting extra-linguistic institutions. In the 137 nations that have signed the New York
Essentially, the New York Convention harnesses the enforcement power of individual states and
puts it at the disposal of the CAS. Specifically, article I 1 of the New York Convention provides
as follows:
See: Arbitration CAS 2004/A/725 United States Olympic Committee (USOC) v. International Olympic
Committee (IOC) & International Association of Athletics Federation (IAAF), award of 20 July 2005 which can be
accessed here.
16
The full text of the New York Convention is available at :http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/XXII_1_e.pdf
17
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shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or
enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or
enforcement of domestic arbitral awards.”
Although there are certain circumstances where domestic courts still can review and refuse to
enforce CAS judgments, this is actually rare in real life. The Convention makes it tough for parties
to challenge an arbitral judgment. The unsatisfied party can do so in the country where the
arbitration was held (the primary enforcement jurisdiction), or in a country where the award might
be enforced (the secondary enforcement jurisdiction). A successful challenge to an arbitral decision
in the primary jurisdiction annuls the award in all 137 countries that signed the Convention. A
successful challenge in any secondary jurisdiction only annuls the decision in that particular
country. This may mean that if a party would wish to challenge the award of CAS, it would have
to do in the Swiss Supreme court.
Coming back to the Tribunal, it will be imperative that conditions similar to those that exist in
favour of the CAS be entrenched in law so as to make its pronunciations and awards to be
possessed with the necessary speech acts.
The following therefore are the proposals for this to work: a) The Tribunal needs to be necessarily de-linked from the judiciary or the judicial service
commission. In that way, the jurisdiction of the Tribunal can be easily expanded so that it
can deal with matters of sport and appeals from its decisions be subject to Appeal at the
CAS. The current set-up appears to suggest that any appeals from the decision of the
Tribunal will be by way of Appeal to the High Court and so on, which does not augur well
for the sports fraternity. The set up will have to be reorganized so that only matters
pertaining to executive matters such as registration of sports organizations may be
challenged by way of recourse to the High Court. This has been done in other Jurisdictions.
In the Rules of the Sports Tribunal of New Zealand, for instance, Rule 28 thereof provides
that the decision of the Tribunal shall be final and binding and shall not be questioned in
any Court of law and that party may appeal a decision of the Tribunal to the Court of
Arbitration for Sport if the rules or policies of the relevant International Federation or
National Sports Organizations so provide18.
b) The Sports Act 2013 will to be amended so as to give proper room for rules and regulations
that give proper effect to the decisions of the Tribunal and ensure respectability of the
same;
18
The rules can be accessed via this link
http://www.sportstribunal.org.nz/Global/Rules%20and%20Forms/Rules_sports_tribunal_2012.pdf
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c) It will be necessary to rework the composition of the Tribunal, by expanding its
membership to include persons properly qualified by demonstrable experience in
adjudication and resolution of sport disputes, rather than the mere participation in sports
activities. This would help in making the Tribunal a respectable body capable of giving
well-reasoned, even if aureate, decisions that are also difficult to set aside.
d) The process of vetting of prospective members of the Tribunal also needs to be stricter
and more transparent to avoid cases of conflict of interest. The issue of expanding
membership of the Tribunal is crucial considering that there is a real possibility that the
Tribunal will have a real irruption of disputes in due course.
e)
Provide a rule where the tribunal may be approached to give Advisory Opinions on
various matters relating to sport and to also conduct mediation as opposed to merely sit as
a tribunal adjudicating disputes, such as is contemplated by Section 59 of the Sports Act
Number 25 of 2013. Such ‘Consultation Proceedings’ are, for instance, governed by articles
R 60–62 of the Procedural Rules of the CAS Code of Sports-related Arbitration.
f)
Create rules that oblige Sports organizations to submit to the jurisdiction of the Tribunal
as a court of all matters sport. This of course will need a radical amendment of the Sports
Act Number 25 of 2013, for it to have the validity borne out of express provisions of the
law.
g) Strive and lobby for further extended jurisdiction to include matters relating to anti-doping
law. As matters currently stand, the Cabinet Secretary in charge of Sorts in Kenya has gone
out of his way to create a body known as the Anti-doping Agency of Kenya, quite contrary
to the requirements of Section 73 of the Sports Act.
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