Throughout the world, it has been the practice to insulate all sports from the vagaries of litigation in the ordinary courts. It is because of this that there are various bodies established to adjudicate on sports disputes with the apex body being The Court of Arbitration for Sports. It is this thinking that the drafters of the Sports Act 2013 together with the legislature had when they established Sports Tribunal. Whereas the establishment of the Tribunal was a step in the right direction, the legislature failed to give the tribunal teeth with which to bite.
From the establishing statute, the Tribunal is starved off jurisdiction. Section 58 provides that the tribunal shall have jurisdiction to determine appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including appeals against disciplinary decisions and appeals against not being selected for a Kenyan team or squad. The Tribunal can also hear and determine other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear.
As framed, the provisions on jurisdiction pose some conundrum for the reason that the Tribunal will derive jurisdiction from sports organizations rather than from the statute. The reason I say so is because by allowing sports organizations to determine whether to be subject to the jurisdiction of the tribunal, we are telling these organizations that they can within the law avoid the jurisdiction of the tribunal. If all federations in Kenya do not in their constitution recognize the jurisdiction of the tribunal, it shall be rendered superfluous.
Secondly, the jurisdiction of the tribunal ought not to be left upon the parties to agree. If parties to dispute have thus far disagreed, it is highly unlikely that they will agree to refer the matter to the tribunal.
The other shortcoming of the tribunal as established is that it only enjoys appellate jurisdiction. It can only exercise original jurisdiction upon agreement of parties to a dispute. It would have been prudent to at least confer original jurisdiction on specific matters. It cannot be left on the parties to determine which dispute is to be determined by the tribunal.
The most striking shortcoming of the statute is that it does not provide for what remedy the tribunal can give after hearing a dispute. Most statutes establishing tribunals provide for specific remedies which the tribunal can grant after hearing a dispute. As we speak, we cannot tell whether the tribunal can award damages, grant an injunction, quash orders of the various federations etc.
The obvious ramification of the foregoing weaknesses is that any decision rendered by the tribunal can successfully be quashed in the High Court for want of Jurisdiction. This however not to say all is lost. The Sports Act 2013 should be amended to breath life to the Tribunal by conferring it with specific jurisdiction. Without the said amendments, sports dispute with continue to be subject to the ordinary courts hence exposing our industry to the bureaucracy of the court processes. An amendment to the statute will give sports real victory and not hollow victory as is the case at the moment.