The growth of sports from a recreational activity to becoming one of the most popular professions in the world has not come without challenges and this has been seen through the emergence of sports disputes, legally speaking. This has then led to respective emergence of dynamic dispute resolution mechanisms.
What is a dispute? A dispute is a disagreement between people or groups on matters earlier pre-agreed upon.
What are the Disputes in Sports?
Disputes in sports arise from lack of adherence to terms stipulated in set agreements between;
- Sports people and their Sports Clubs
- Sports Clubs and their Federations
- Sports people and their Sponsors
- Sponsors and Sports Clubs
The disputes usually arise from issues to do with;
- Contracts – be it employment or endorsement contracts
- Disciplinary issues
- Registration and Transfer of Players from one sports club to another
- Sports person eligibility to participate in a sports competition
- Transfer of allegiance from one nationality to another
- Allegations of doping
Legal and Institutional Framework for Management of Sports Disputes in Kenya
Sports Disputes Tribunal
The Sports Act 2013 has allowed for dispute resolution in sports through establishing the Sports Disputes Tribunal which hears cases to do with issues of doping on a national level and other issues arising from section 58 of the Sports Act,2013 such as;
- appeals against disciplinary decisions by the sport organization, or;
- appeals against not being selected for a Kenyan team or squad;
The Sports Disputes Tribunal has also been given the power under section 59 of the Sports Act, 2013, to use ADR mechanisms such as arbitration in solving disputes in sports.
Alternative Dispute Resolution (ADR) and Sports
Arbitration in Sports
Arbitration is a process for settling a dispute by agreeing to let a neutral third party make a decision, instead of going to court.
The Advantages of using Arbitration in settling sports disputes is;
Issues such as a Sports person eligibility to participate in a sports competition can come up on the day before the actual competition and in such a case the sports person cannot wait for months to have their issue resolved in court as time is of the essence. This is where the option to resolve such a dispute through arbitration is advantageous as the process will take less time in resolving the issue and still be within the time limit to participate in the sports competition.
- Choice of arbitrators
In arbitration parties have the advantage of choosing the arbitrator that is an expert who understands the governing rules and regulations of the sport of the particular dispute being handled.
- Confidentiality & privacy
Sports has become very popular and sports people tend to become celebrities and have many fans just on the mere fact of the sport they play in. This means that a lot of sports people tend to be scrutinized by the public and the media, therefore when a sports dispute arises the scrutiny heightens placing the sports people careers and reputations at risk.
This is where arbitration comes in as an advantageous option to sports people as parties to the arbitration proceedings and also the arbitrator (s) in the tribunal will be under the duty to maintain confidentiality. The hearing will also be held in private, the documents used in the proceedings must be kept confidential and the compensation given to the party who wins the dispute is not made public. Arbitration goes as far as to keep the names of the parties in the arbitration proceedings confidential.
While sports disputes taken to court are dealt with in a totally different manner where anyone can obtain access to the documents relied upon in the case, the names of the parties of the case, the decision made by the judge in the case and this more often than not causes irreparable damage to the sports person career and reputation.
In sports contracts it is very common to find arbitration clauses which usually state that in case a dispute arises between the parties to the contract, the dispute will be resolved through arbitration. The clauses also provide that the award given to the party that wins the dispute will be final and binding on the parties, which limits the options of the party that lost to challenge the decision made by the arbitrator in the dispute.
Sports Dispute Resolution is growing steadily but has made very positive and significant developments in sports justice.
Image courtesy of johnsflaherty.com
By Joan Kamau
MSA Legal Consultant