Introduction

Sports are viewed as an integral component of the social and cultural fabric of the majority of cultures worldwide. With the advent of professional sports and the consequent commercialization of the business, the traditional view of sports as purely leisure events has become untenable. Sports have grown in iportance not just in social and cultural debate but also in economic discourse throughout the world, with athletes among the highest paid persons. Additionally, governments and corporate groups devote significant sums in sponsoring athletic events. As a result of sports’ development and success, sports conflicts have emerged. These disagreements typically center on contract termination, non-payment, and suspension.1 Disputes in sport are unavoidable, especially in the areas of team selection and eligibility, and especially before a big tournament like the Olympic Games.2

The Nature of Court of Arbitration for Sports (CAS)

Traditional views have seen sports law as only a combination of several legal disciplines which apply to the sporting environment. Today, however, sports law has developed into a distinct field of law. Previously, only legislation pertinent to the sports business and regulations and court judgments that applied to both local and international sports federations and athletes were recognized as specialist practices.3 Sports arbitration differs greatly from general and commercial arbitration. For the most part, awards granted by CAS are made public. Conversely, in business arbitration procedures, client confidentiality is a foundational concept. Accordingly, there has been a significant demand for openness and uniformity across decisions and awards, culminating in the appearance of a single body of sports legislation and jurisprudence—the lex sportiva—which sports arbitration consumers can trust.4 It has also helped to establish uniformed application of the rules and equitable principles in sport. This is known as the “lex ludica.”5 Arbitrators frequently consult awards rendered by previous arbitrators and governing bodies in similar situations, even though those awards are not legally binding.

Though CAS awards are available to the public, CAS procedures in competitions are almost always held behind closed doors unless the parties agree differently, or, in the event of a disagreement over misconduct, the athlete who is accused has asked for CAS proceedings to be made public. As a result, it has always been feasible for CAS hearings to be held in public, with the first taking place in 1999 and the last in 2012.6 Apart from the general public interest, the European Court of Human Rights (ECtHR) states that the purpose of public hearings is to foster more faith in the decision-making process’s independence and impartiality. Despite this, the recent public hearing on disgraced Olympic champion Sun Yang’s CAS appeal, which was broadcast live across the world, was just the second of its sort conducted by CAS.7 That Nevertheless, a public hearing in commercial arbitration is definitely uncommon, much alone one that is extensively aired.

CAS’ Ad Hoc Division, which handles cases during big sporting events such as the Olympics, is another distinguishing aspect of sports arbitration. Its processes are hastened during significant athletic events such as the Olympics. Arbitration procedures used by the Ad Hoc Division of CAS calls for awards to be delivered within 24 hours, and this holds true even when participants in tournaments and previous matches are in disagreement about the outcomes of their matches.

In contrast to commercial arbitrations, all CAS arbitrations are required to be conducted in Lausanne unless a disputing party chooses to relocate the arbitration. Enforcing a CAS award that was issued by the Swiss Federal Tribunal is thus made more difficult as a result. Adding to the intrigue is the fact that parties are allowed to name only arbitrators on the list that CAS has for the purpose of resolving CAS arbitrations. This method is very contentious, yet it is supported by many people who believe that only sports legal professionals should make decisions. In contrast, parties in commercial arbitrations have the discretion to choose who will serve as the arbiter, whether the parties choose to cooperate or not.

The African & Kenyan Context

There is no central authority to handle sport disputes in Africa such as CAS. Institutional procedures developed by several African sports federations deal with these conflicts. It is acknowledged, however, that the sports federations adhere to the authority of the CAS as the international sports conflict manager. Under the CAF legislation, the CAF, national associations, clubs, players, and officials are allowed to go to CAS to have any disputes resolved.8 Decisions made in the last instance by CAF or FIFA, as well as the national associations, leagues, and clubs, are all subject to these appeals.9 Decisions must be notified and appeals must be made to CAS within ten (10) days after notification.10 Additionally, Kenya has made advances in establishing national sports tribunals. Other nations, including Nigeria and South Africa, are still working on this. Sporting conflicts in these nations are typically handled at the sports federation level.
Under the Kenyan Sports Act, the Sports Disputes Tribunal was formed. Section 58 of the Act grants the arbitral body the authority to decide on and hear any disputes. There are cases in which individuals are able to challenge judgments issued by national sports organizations or umbrella national sports organizations that explicitly allow for appeals to the Tribunal. Complaints include complaints about not being selected for a Kenyan national team or squad as well as complaints about a university’s decision to discipline a student. Additionally, the Tribunal’s jurisdiction extends to disputes connected to other sports-related matters in which the parties consent to have the dispute resolved by the Tribunal, and the Tribunal agrees to consider the case.

Recognizing the constitutional need that Tribunals, particularly the Sports Disputes Tribunal, promote other conflict settlement methods, the Sports Act granted jurisdiction to the Tribunal.11 Sports concerns are addressed under the Act by providing the Tribunal with the power to use ADR processes. And the Tribunal can assist parties in disputes by providing knowledge and support.12 While this is not being seen as essential, it does demonstrate the intentions of utilizing alternative dispute resolution to aid in addressing sports-related disputes. In the event of an appeal against a Tribunal judgment, the matter is heard by the Court of Arbitration for Sport, and the decision cannot be contested in national courts. In accordance with the requirements of Articles 47 and 165 (6) of the Constitution of Kenya, 2010, they are, nevertheless, subject to the judicial review authority of the High Court.

Conclusion

The CAS is a major actor in the establishment of international sports dispute standards. To ensure the speedy establishment of an independent sports tribunal, it is crucial that an independent sports tribunal is created promptly. This is most likely to result in contradicting outcomes between jurisdictions due to differing legal systems, cultures, and policies.13 There is a possibility of bias and prejudice in favor of individuals who raise their conflicts in their own country.14 Many individuals feel that bringing these concerns to the attention of the court of arbitration for sport (CAS) decreases the possibility of bias. I wholeheartedly agree. Due to the CAS’s lack of personal interest in the dispute’s resolution, the method also prevents bias and distributes benefits equitably, ensuring that both parties to the disagreement have an equal opportunity to profit from the presence of a neutral arbitrator. Finally, CAS arbitrators possess extensive expertise and knowledge, making them well-equipped to make decisions quickly and efficiently.

The adoption of the Sports Act, 2013, further encouraged sports arbitration by setting up the Sports Dispute Tribunal. Tribunal has already been developed and is already being utilized to decide disputes in several sports. Throughout this way, the Tribunal has simplified the running of sports federations in the country.15 Despite this, there remain several roadblocks to the Tribunal’s goals.

Section 58 of the Sports Act is controversial because of the numerous complications associated with the wording of the provision. Only when two parties have decided to utilize the Tribunal and when laws of a national sports organization allow for appeals to the Tribunal does jurisdiction start with legislation.16 The wording of the legislation presents a jurisdictional difficulty, since it provides sports groups with loopholes that allow them to circumvent the tribunal’s power.17 It is important to note that the parties will be in control of where the Tribunal convenes. Jurisdiction issues may be raised by any party in court even if there is no written agreement addressing them.

Another problem is that section 58 of the Sports Act places limits on the kind of cases that the Tribunal can consider to only appeals. Original jurisdiction may be invoked only with the permission of the parties to a dispute. It would have been reasonable to grant power over at least certain subjects in order to vest the Tribunal with original jurisdiction. Because the Act vests parties with broad discretion over which issues may be considered by the Tribunal, it creates a quandary.18 Additionally, the 2013 Sports Act was deemed to be deficient since it failed to specify the different remedies that the Tribunal may give following a hearing. As a result, the Tribunal’s decision regarding the remedy may be contested. With this in mind, it is critical to revise the new Sports Act, 2013 and to strengthen the Tribunal.