The fears around a Sports Tribunal: real or misplaced?
What you need to know:
Credit should be given to the likes of Fufa and their internal judicial organs, however, their affairs are not transparent enough and for a public sport like football, it is high time, these judicial processes were subjected to public scrutiny.
The draft Physical Planning and Sports Bill does not contain a provision on a Sports Tribunal. This unfortunate development is deliberate on the part of those in charge of matters of sports in this country and entrenched in the sports administration’s notorious legacy as a closed-door affair.
Sports bodies due to their pretensions towards independence which this columnist has often argued is not entirely accurate, more often than not have their internal dispute resolution systems.
These dispute resolution systems are for lack of a better word, opaque, shrouded in mystery, lack accountability, and not transparent.
However, because of the public interest that comes with sports, these dispute resolution mechanisms are slowly beginning to take the shape of public courts and are being measured at the standards of transparency and accountability that must be met by a public judicial body.
This is best exemplified by the Court of Arbitration of Sport (CAS). Over time, the calls for transparency at CAS have had hearings opened up somewhat and awards published.
The advocates for this have argued that due to the public function of sports, as a judicial institution impacting on the public interest that comes with sports, its transparency is of the essence.
The CAS which is more or less the ‘Supreme Court of World Sport’ in fact had a public hearing in the Sun Yang, an anti-doping case involving a Chinese swimmer.
This transparency detour at the CAS is a shift away from its origins as an arbitration body steeped in the confidentiality that comes with arbitration. Under arbitration as an Alternative Dispute Resolution (ADR) mechanism, parties agree to take their case out of court and have it resolved by an impartial person and/or body with binding outcomes as if it were a normal court.
These calls for transparency, accountability, and access to information are being felt across the arbitration world in arbitration processes that have a public element to them like in investment arbitration especially at the International Centre for Settlement of Investment Disputes (ICSID).
At this particular institution, reforms have led to a limited number of awards published and others carefully summarized for the public.So, there seems to be a shift away from traditional arbitration in sports adjudication to hybrid judicial organs in Sports Tribunals.
The Sports Act of Kenya, 2013 established a Sports Disputes Tribunal. This Tribunal is vested with the powers to handle sports contractual disputes, disciplinary issues of athletes, doping, and disputes arising from selection for international competitions, among others.
It has original jurisdiction in disputes concerning international athletes like doping and has appellate jurisdiction in disputes of local athletes in appeals arising from disciplinary decisions from local sports federations.
CAS is the appellate body of this Tribunal. The intention of the legislators in creating this special court was to keep sports disputes away from ordinary courts.The proceedings at this Kenyan Sports Tribunal are public and the awards from it are published on its website.
If anything, this Kenyan Sports Tribunal has helped in keeping sports disputes away from the normal courts and helped emboss what our sports administrators like terming as “going to court brings sports into disrepute”.
Kenya is on a firm march towards developing a solid Lex Sportive since the establishment of that Tribunal. Credit should be given to the likes of FUFA and their internal judicial organs, however, their affairs are not transparent enough and for a public sport like football, it is high time, these judicial processes were subjected to public scrutiny.
A Sports Tribunal would come in handy as an appellate body for instance in achieving this.
Ironically, inspite of the fears of sports administrators, a Sports Tribunal will go a long way in creating legitimacy and enhancing their favourite concept, the independence of sports.
The writer is a Sports Lawyer and [email protected]
