Sports Arbitration is different and the National Sports Act is somewhat right

Last month, on the sidelines of the Uganda Law Society AGM in Entebbe, I was privy to an interesting discourse as a couple of senior colleagues got into a discussion on Arbitration in Uganda and inevitably, the Arbitration mechanism under the National Sports Act also came under the spotlight.

The National Sports Act provides under Section 55 of the law that the settlement of disputes under the law shall be through arbitration with Arbitrators appointed by the Minister of Sports from a list of them nominated by the National Council of Sports and Federations.

Section 57 of the National Sports Act also mandates sports associations and/or federations to make arbitration mandatory in their constitutions.

Arbitration in a nutshell is an Alternative Dispute Resolution where parties agree in a contract that they will resolve their dispute not in a court but before an impartial person (s) or Tribunal and the decision therefrom is final and binding.

Sports arbitration confounds Arbitration lawyers and experts because it seems to deviate from some of the traditional principles of Arbitration especially as arbitration is applied say in International Commercial Arbitration. This poses unique challenges in and of itself.

Under the principle of party autonomy which is at the heart of Arbitration, the parties consent to have their dispute referred to Arbitration and are in control of the process throughout. This is unlike what happens in the ordinary court system. So, it becomes problematic in the eyes of an Arbitration practitioner that parties are being forced into a dispute resolution process. Mandatory recourse to arbitration is not unheard of, it actually seems to be the norm in sports. An agreement is often found in a particular sport governing body’s rules. Fifa’s statutes for instance through Article 59 impose this standard when it comes to sports disputes and the same has been adopted by its member associations.

The Kenyan Sports Act is a good example of mandatory Sports Arbitration which perhaps Uganda’s Parliamentarians borrowed from.

The other principle of Arbitration that Sports Arbitration departs from is confidentiality. In Arbitration, unless the parties agree otherwise, proceedings are ordinarily held in confidence and the arbitral award is not disclosed to the public. Sports Arbitration is increasingly becoming open to the public with awards being published for all and sundry to read.

This columnist in this very column has previously written about this subject in a piece that was advocating for a Sports Tribunal in the then “Physical Education and Sports Bill” entitled “The fears around a Sports Tribunal: real or misplaced”. In the said piece, I opined; “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 English Football League in England is an example of a Sports Arbitral institution that is required under their rules to publish their awards.

There has been an argument that it is a misnomer to label the dispute resolution style that transpires under many of these sports judicial bodies as arbitration-taking for instance what happens before a Fifa or Fufa Dispute Resolution Chamber.

Looking at the CAS, it has established an “appeal arbitration” as decisions from sports governing bodies are appealed to the CAS. Decisions from the CAS are themselves appealable to the Swiss Federal Court under certain parameters. Another detour from Arbitration as it was originally known

Lawyers will forever argue that the High Court especially in Uganda’s case has unlimited jurisdiction in all matters. The Courts have over time allowed for what are termed “ouster clauses” divesting jurisdiction from the High Court and placing it elsewhere as long as Parliament does so unequivocally.  Did Parliament take this jurisdiction away from the High Court unequivocally under Sections 56 and 57 of the Act? I believe it did so and hopefully the same is embossed by the Regulations to operationalize the provisions that will be drafted by the Minister.

Sports arbitration has taken on a form of its own and a hybrid approach of sorts. The National Sports Act would perhaps have done better with a Sports Tribunal but is not legally off the mark with its Arbitration regime.

Ojakol is a Sports Lawyer, Partner at Matrix Advocates, and Law Lecturer at IUEA 

Email: [email protected]

Contacts:0742116305/0787261019