Kenya: SDT Ruling on FKF Inconsistent With World Sports Conventions

opinion

The recent ruling by the Sports Disputes Tribunal (SDT) and the consequent curt response from Fifa has once again brought football in Kenya to the brink of a crisis.

The current turmoil erupted when the SDT, for the second time cancelled FKF elections and ordered that the federation's National Executive Committee vacate office and a normalisation committee be appointed to run football matters in the country. The SDT averred that FKF's provisions on the eligibility criteria of contenders run contra to the Kenya constitution.

The FKF rules provide that anyone seeking a leadership position must have been involved in football for three of the past four years.

According to the SDT, this provision locks out potential aspirants and is a violation of free and fair elections as enshrined in the national constitution.

Fifa's response was swift, rejecting the SDT ruling and extending the term of office of the federation until a way forward with regards to election was agreed between them and the government.

While many local actors have termed Fifa's response as disrespectful to our national laws, it is also important to examine Fifa's perspective and consider the international nature of sports.

Fifa runs football in the world. Fifa, with 211 national affiliates, has more members than the United Nations.

Tasked with maintaining the same standards worldwide while national laws differ from country to country, Fifa and all other international sports federations in the Olympic movement have incorporated sport arbitration clauses in their rules.

These effectively require the international federations and by extension their members and participants to submit their disputes to specialist sport dispute tribunals and never to national courts.

The general idea is to curtail the considerable legal uncertainty which surround sporting disputes when they came before national courts and for sport to have its own single global system to determine disputes in an efficient and effective manner.

For any person or federation that wishes to participate in international sports, taking disputes to courts is undesirable. The parties therefore voluntarily and by agreement submit disputes to sports tribunals and not national courts.

To that end, The Court of Arbitration of Sport (CAS) was established by the International Olympic Committee in 1984 and has a long history of settling disputes in sports.

It is considered the apex forum for sports disputes and has over the course of its existence come up with rules and conventions.

The fact that CAS is based in Switzerland and requires payment in advance for arbitration costs, works against federations and participants with limited resources and can be a barrier to access.

National dispute tribunals such as the SDT in Kenya are supposed to offer a cheaper mechanism to resolve sports disagreements.

They also offer the advantage of consistent application of developing legal principles across all sports where the maintenance of a harmonised international regime is of paramount importance.

Other countries that have also established national sports dispute tribunals include UK, New Zealand and Germany.

The major difference between Kenya and these other countries is that despite these tribunals also being created by statute, their jurisdiction is still based on agreement.

IMPOSE

In Kenya, the statute attempts to impose the jurisdiction of the SDT on sports organisations. The impracticality of this given the specificity of sports was pointed out by many hawk-eyed pundits when the Sports Act was passed in 2013.

The twin roles of a sports tribunal are to adjudicate upon disputes within the rules or constitution of the organisation concerned and to establish a body of legal principle which is consistent in relation to international rules and conventions.

The distinction between the role of the tribunal and the role of the courts should be recognised. The two systems are distinct, and each forum is controlled by different rules and laws which are established for different purposes. The tribunal deals with private procedures which have been accepted by the participants as members of the organisation.

TENUOUS RULING

The national constitution has eligibility criteria for leadership positions such as the presidential age limit and education for governors.

Practically, every association in the country also has eligibility criteria for their leadership within their rules.

In that regard, The SDT's ruling is very tenuous. Even without an in depth analysis of national laws and the legal merits of the SDT ruling, it is clear that in making its decision that the FKF rules do not conform to the constitution of the country, the SDT was acting more like an ordinary court enforcing the "laws of the land" than a sports tribunal.

Further, every football body of which FKF is a member or affiliated to also have candidate eligibility criteria within their rules. These rules were introduced as part of anti-corruption and good governance reforms efforts that have swept the sports world in the past decade.

The SDT's ruling in that regard is therefore inconsistent with international sports conventions. The SDT further erred by entertaining arguments from non-members of FKF such as journalists who are not bound by the rules of FKF, Caf, Fifa and their affiliate bodies.

No association of members would allow non-members to determine its fate under the pretext that they are concerned stakeholders.

It is therefore not surprising that Fifa, interested in maintaining the global standard and conventions, outrightly rejected the SDT's ruling in the same manner as it would if the ruling came from a national court.

The author is a strategic communications consultant with Valorem Consulting.

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