INTRODUCTION
The commercial significance of sports has increased tremendously in recent decades both globally and locally. Sports are no longer viewed merely as a source of entertainment but also as a source of business and as a career path for professional sportspersons.[i] Consequentially, the need to regulate sporting activities by governments, international sporting bodies, and sports associations has increased as well leading to the development of Sports Law locally and internationally.[ii]
Sports law can be defined as an efficient set of rules and regulations which govern all activities conducted and related to the field of sports[iii]. Sports law is highly interlinked with other disciplines such as contract law, labour and employment law, media and entertainment law, intellectual property law, competition law, tax law, administrative law, and human rights law.
Sports law is also comprised of governmental regulations in form of national legislation and policy, non-governmental regulations by international sporting associations and local federations such as FIFA and FKF. It also exists in laws made by international organizations like the UN Educational Scientific and Cultural Organization’s Convention Against Doping in Sport, as well Private regulations made sporting clubs.[iv]
In Kenya, sports law is primarily governed by the Sports Act, 2013[v]. The Act, regulates the local sports industry by creating several regulatory and administrative bodies such as Sports Kenya, National Sports Fund, Kenya Academy of Sports, The office of the Sports Registrar, and The Sports Disputes Tribunal. The Act is the first of its kind in Kenya and has been hailed because it legitimizes institutions and establishes boundaries for the operation of various institutions under sports. [vi]
This paper is the first of a three-part series assessing the nitty-gritty of sports law in Kenya. The first paper lays out the legal framework of sports law in Kenya while the second paper shall interrogate the relationship between sports and other disciplines of law. The final paper shall address the various dispute resolutions mechanisms available under sports law in Kenya.
Here we shall focus on the legal framework of sports law in Kenya, particularly the provisions of the Sports Act, 2013.
Salient features of the Sports Act 2013
The Sports Act, 2013 was enacted by parliament to facilitate regulation of sports activities in the country through formal legislation something that had not been done prior to 2013. To this end, the Sports Act introduced new and progressive provisions which are meant to improve the status of sports in Kenya. Such provisions include:
- Creation of Sports Kenya.
Sports Kenya is established under section 3 of the Act as a body corporate with perpetual succession and a common seal. In its corporate name, Sports Kenya is capable of suing and being sued, taking, purchasing or otherwise acquiring, holding and disposing of moveable and immoveable property, borrowing money, and doing or performing any other things or acts for the proper performance of its functions under the Act that may be lawfully done or be performed by a body corporate. It is established as the successor to the previous body known as the Sports Stadia Management Board. This means that all functions that were before the commencement of the Act being done by the Sports Stadia Management Board were effectively transferred to Sports Kenya. Additionally, the Act also gives Sports Kenya a wide array of functions the main one being to promote, and implement sports programs in Kenya at all levels i.e. at the grassroots, national and international levels. Sports Kenya is also mandated to deal with all matters pertaining to the creation, management, and maintenance of sports facilities in Kenya and for that purpose, to coordinate with other organisations including county governments and sports federations for the realization of its functions. It also has a duty to oversee and facilitate the participation of Kenya in international sporting activities and competition and this includes the duty to plan, organise and host international competitions and also to determine colours to be used in national and international competitions in consultation with national sports organisations.
- Creation of the Kenya Academy of Sports.
The Act at Section 33 creates the Kenya Academy of Sports as a body corporate with perpetual succession and common seal and with all the abilities of a body corporate. The functions of the Academy as per section 34 of the Act are to: establish and manage sports training academies; organize, administer and co-ordinate sports courses for technical and sports administration personnel. Further, the Academy is mandated to promote research and development of talent in sports, in collaboration with institutions of higher learning, national sports organizations, and other stakeholders. It also has a duty to collect, collate, store and disseminate tangible and intangible historical sports material to the public, sports organizations, researchers, and institutions of learning; receive and analyse data on training requirements from sports organizations and to link with other institutions and organizations for regular updates on the current sports trends.
- Registration and licencing
The Act also creates the office of the Sports Registrar under Section 45 which falls within the Public Service. As such, the Sports Registrar is appointed through the Public Service Commission. The key functions of the Sports registrar are; to be responsible for matters concerning the registration and regulation of sports organizations, the licencing of professional sports and professional sportspersons, and also to arbitrate registration disputes between sports organisations.
The Act further makes it mandatory for sports organisations to be registered and applications for registration to be submitted to the Sports Registrar in the prescribed form giving such details as required under the Act. Upon registration, a certificate of the registration is issued and the Act stipulates that such certificate acts as conclusive evidence of authority to operate throughout the country but in compliance with such conditions as the Registrar may give at the time of registration.
Further, rules on the requirements and procedure for registration of national sports organisations, the registration of sports institutions, and the licencing of professional sportspersons sports bodies are found in the Sports Registrar Regulations, 2016.
It is important to note that the Act limits the number of national sports organisations for a particular discipline to only one. The Act also provides that sports organisations previously registered under the Societies Act and existing before the commencement of the Act, are required to apply for registration within one year after commencement of the Act and shall be deemed to be operating unlawfully if it does not apply for registration within one year.
- Creation of the Sports Disputes Tribunal
The Act at section 55 creates a sports disputes tribunal as the arbitral body of all sports-related disputes in Kenya. The Jurisdiction of the tribunal shall be to hear and 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 also has jurisdiction to 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; and appeals from decisions of the Sports Registrar.
Other important provisions in the Sports Act 2013 include;
- A requirement of confidentiality from members, servants, or officers of sports institutions not to disclose information acquired while in service for that institutions unless where it is required of them by law; Section 63.
- The protection from liability of officers or servants of sports institutions for actions done in good faith in the execution of their official duties, powers, and functions; Section 65.
- Every sports institution shall, within a period of four months after the end of each financial year, submit to the Cabinet Secretary an annual report dealing generally with the activities and operations of the sports institution; Section 67.
- Anti-doping rules. The Act empowers the Cabinet Secretary to make rules for the better management of anti-doping activities and penalties for contravention of the rules; Section 73.
CONCLUSION
Sports Law as an independent and distinguishable branch of law has developed immensely over the past few decades. We have experienced the same growth here in Kenya especially due to the enactment of the progressive Sports Act, 2013. This Act brought about the much-needed change in approach on matters sports in terms of governmental regulation on the sports industry. The Act has created several regulatory bodies and has also introduced a national registration system for sports organizations and licensing of professional sportspersons. Although the Act requires further amendments to fully comply with international standards, it is a great tread in the right direction.
Submitted by William S. Muthama – Advocate of High Court of Kenya and practicing in the name and style of Muthama & Co. Advocates
Email: williammuthama428@gmail.com
Tel: 0706 335 030.
[i] Fabian Simmank, Sports Global Law –Racing Against The Clock, Competing For A Comprehensive Understanding, Revista Electrónica De Direito Público. Número 5, 2015 ISSN 2183-184x
[ii] Timothy Davis,What Is Sports Law?, 11 Marquette Sports Law Review (2001) 211-244 Available at: http://scholarship.law.marquette.edu/sportslaw/vol11/iss2/7
[iii] Lazar Nanev, Sports Law as an Independent Branch of Law Balkan Social Science Review, Vol. 2, December (2013) 167-187.
[iv] Simmack, Sports Global Law, p 3.
[v] Sports Act No. 25 of 2013 Laws of Kenya.
[vi] Mugala Hannington Bulinda & Wahome Peninah, Unbundling The Kenyan Sports Act: Role, Challenges And Opportunities In The Kenyan Sports Act 2013, European Journal of Physical Education and Sport Science – Volume 3 Issue 10 (2017) 367-374.
