Sports Arbitration under the NCS Act Part III; more focus on Fufa

In last week’s column, it became clear that a Member Association of Fifa can depart from the jurisdiction of the Court of Arbitration for Sport as per Article 58 “Such disputes shall be taken to an independent and duly constituted arbitration tribunal recognised under the rules of the association or confederation or to CAS”.[Emphasis added]. Member Associations therefore have options-they can take their disputes to CAS, a confederation, or to CAS.

National Sports Organizations more often than not exist in a dual regulatory context. In Uganda’s case, they are international through their International Federations and national through the National Sports Act which establishes the National Council of Sports as a regulator of sports.

The National Sports Act is somewhat alive to this; Section 18 of the Act states this but uses quite interesting language under 18 (4) and states “The interpretation and application of this Act shall recognise the provisions of the statutes and regulations of the international sports governing body…” [Emphasis mine] The use of “recognise” other than more mandatory language like “bound” for instance is something note-worthy.

The Act is by and large making the point that and this columnist dares to say-the regulation of sports in Uganda is more local than international and Uganda's legal regime prevails over those private law statutes of International Federations. Explains why perhaps the bold Arbitration mechanism under Section 57 exists-a local and final Sports Arbitration.

Section 17(1) (b) of the Act that recognizes the independence of National Sports Organizations in the application of the statutes of their international governing body is not lost on me, but my overall reading of the Act as a whole maintains the notion that we have a local sports regime assumes supremacy over the international one.

To be honest, one cannot really begrudge the government on this because except for a few sports like football, many of the other Federations/ Associations largely survive off government funding.

Whether the above remains the position in the long haul especially with many of the sports disciplines listed under the Act being Olympic sports disciplines and with some powerful International Federations like FIFA wielding more power than many governments remains to be seen.

Indeed FIFA after receiving several complaints from stakeholders issued guidelines on what a voluntary deviation from CAS or the Fifa dispute resolution channels should look like or what amounts to “an independent and duly constituted arbitration tribunal” under Article 58 (3) of the Fifa Statutes through a 2005 document, “Fifa Circular no. 1010”. In essence, this Fifa Circular 1010 sets down the minimum procedural standards that this Arbitration Tribunal should meet for it to pass the test of an independent and duly constituted tribunal.

Fifa Circular 1010 states that the parties to the dispute must have equal influence over the appointment of arbitrators in what it terms as the “Principle of parity when constituting the arbitration tribunal”. In line with the Arbitration principle of Party Autonomy-every party should have the right to appoint an Arbitrator and the two appointed Arbitrators appoint the chairperson of the Arbitration Tribunal.

The document continues and says that even “where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list”. Section 55 of the Act gives the Minister of Sports the powers to appoint the Arbitrators from nominations made by the Council and Sports Federations and Associations.

This seems to fall short of this standard as for instance in a dispute between a player and Fufa, the player will not have an opportunity to choose an Arbitrator

The Circular states another principle “The right to an independent and impartial tribunal”. This one goes without saying and the Circular continues and says that there should be rules stipulating how an Arbitrator that is deemed not independent or conflicted or partial can be rejected. Such Regulations under the National Sports Act have not yet been developed.

The “Principle of Fair hearing”, “Right to contentious proceedings”, and the “Principle of equal treatment” are the other standards laid down by FIFA Circular 1010 which more or less tie into a party’s right to see, examine and respond to the allegations against them, be represented by a lawyer and participate in the proceedings. Hopefully, the Regulations being developed shall address this, but for now they are not yet in place.

The Fifa Regulations on the Status and Transfer of Players (RSTP) have similar provisions stipulating how the jurisdiction of the Fifa Tribunal can be deviated from.

In a CAS matter, CAS 2024/A/10400; Aris Limassol FC v. Abdeljalil Medioub, CAS stated that for an Arbitration Tribunal to be independent and duly constituted, there must have been evidence of players’ unions participating in not only the appointment of Arbitrators but also in the development of the regulatory framework regarding that Tribunal, in Uganda’s context, the National Sports Act and the Regulations thereto. Did our players/ athletes or their unions participate in the development of this law?

Fufa and other Sports Organizations in the country have complied with the Act and stated clearly that they subscribe to the Arbitration regime under the Act, it remains to be seen whether because of the international dynamics regarding the regulation of sports, they will be proven right.

Otherwise, as it currently stands, with the Arbitration process not yet properly defined through Regulations, can it be said that we have an independent and duly constituted arbitration tribunal? A clear case of being cast into the darkness!

Ojakol is a Sports Lawyer, Partner at Matrix Advocates

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