SPORTS QUASI-JUDICIAL AND DISCIPLINARY COMMITTEES IN KENYA (THE REFEREES IN THE OFF-FIELD FOOTBALL DISPUTES)
Gor “Sends Off” Club Record Signing
On January 2, 2019, 33 year old Dennis Oliech agreed a two year contract with Kenyan football giants Gor Mahia, becoming the highest paid footballer in the country at an estimated fee of Kshs. 350,000. Oliech was also promised a sign-on fee which of 1.5 million Kenyan shillings. Oliech’s contract was to end after 18 months, but was terminated in August 2019 by Gor Mahia. The club cited Oliech’s failure to attend training sessions, his participation in the Kibra politics and avoiding communication with club officials as some of the reasons for his dismissal. Aggrieved by the club’s decision, Oliech approached the Sports Dispute Tribunal seeking redress. This scenario is common in a number of football clubs in the country and this raises the question of what avenues are available to handle such sporting disputes.
Sports in Kenya is regulated by the Sports Act, 2013. The Football Kenya Federation (FKF) is the National association recognized to govern football in Kenya. It was founded in the year 1960 and has been affiliated to FIFA since its inception, and affiliated to CAF since 1968.Article 69 of the Football Kenya Federation Statutes prohibit submission of disputes affecting leagues, members of leagues, clubs, members of clubs, players, officials and other FKF officials to ordinary courts unless the FIFA regulations, FKF statutes or binding legal provisions specifically provide for or stipulate recourse to ordinary courts. In keeping these sporting disputes out of the ordinary courts, the FKF constitution provides for quasi-judicial and disciplinary committees that adjudicate issues including transfers and contractual disputes. These committees include;
- Independent Disciplinary & Complaints Committee (IDCC)
The committee may pronounce the sanctions described in the Statutes and the Disciplinary Code of FKF on Members, Officials, Players, Clubs and match and players’ agents. These provisions are subject to the disciplinary powers of the General Meeting and the Executive Committee with regard to the suspension and expulsion of Members. The IDCC also deals with on field offences by players and fan indiscipline.
FKF created an Arbitration Tribunal which deals with all internal, national disputes between FKF, its Members, and Players, Officials and match and players’ agents that do not fall under the jurisdiction of its judicial bodies. This includes disputes between two clubs or a club and a club.
Similar to the FIFA Players’ Status Committee (PSC), the FKF Players’ Status Committee as established under the FKF constitution is tasked with setting up and monitoring compliance with transfer regulations in accordance with the FIFA Regulations for the Status and Transfer of Players and determine the status of Players for various competitions of FKF. The National Executive Committee may draw up special regulations governing the Players’ Status Committee’s powers of jurisdiction. The Players’ Status Committee consists of a chairman, a deputy chairman and not more than three other members. Players’ status disputes involving FKF, its Members, Players, Officials and players’ agents / intermediaries shall be settled by an Arbitration Tribunal or by the Court of Arbitration for Sport.
- Ethics and Fairplay Committee
The Ethics and Fairplay Committee may pronounce the sanctions described in the FKF Statutes and in the relevant FKF and FIFA codes on members, officials, players, clubs and match and players’ agents. These provisions are subject to the disciplinary powers of the General Meeting and the Executive Committee with regard to the suspension and expulsion of members.
The Appeals Committee is responsible for hearing appeals against decisions from the FKF Disciplinary Committee or the Independent Disciplinary and Complaints Committee (IDCC) of the FKF Premier League that are not declared final by the FKF constitution.
The Tribunal is established under section 55 of the Sports Act 2013 to arbitrate on Sports related disputes. Its functions include determination of appeals against decisions made by national sports organizations or umbrella national sports organizations such as the Football Kenya Federation, whose rules specifically allow for appeals to be made to the Tribunal and other sports related disputes that all parties to the disputes agree to refer to the Tribunal and that the Tribunal agrees to hear.
The Regulations on the Status and Transfer of Players grant jurisdiction to independent tribunals such as the Sports Dispute Tribunal to hear employment-related disputes between a club and a player in a domestic league where both parties explicitly opt in writing for such disputes to be decided by an independent arbitration tribunal that has been established at national level within the framework of their football association and/or a collective bargaining agreement. Any such arbitration clause must be included either directly in the contract or in a collective bargaining agreement applicable to both the player and the club. The independent national arbitration tribunal must however guarantee fair proceedings, maintain impartiality and respect the principle of equal representation of players and club.
A contract between a professional and a club may only be terminated upon expiry of the term of the contract or by mutual agreement. The exception to this rule is where a party is terminating a contract with just cause. Just cause as defined in labour/employment law refers to misconduct of an employee, or some other event relevant to the employee, which justifies the immediate termination of the employment contract. A contract may be terminated by either party without consequences of any kind (either payment of compensation or imposition of sporting sanctions) where there is just cause. This is reiterated by Article 15 of the FIFA Regulations on the Status and Transfer of Players state that if a player is guilty of any serious and persistent misconduct and continued poor performance in the field of play, they shall be liable for suspension or termination of the contract. Thus the work of the Sports Dispute Tribunal in Oliech’s case will be to determine whether or not the termination of his contract was with just cause and if he is entitled to the full amount he quoted as his wages and sign on fee.