A condensed overview of the National Sports Act 2023
On 17 August 2023, the eagerly anticipated National Sports Bill was officially signed into law, marking a pivotal moment in Uganda’s sports sector. This legislation, now known as the National Sports Act 2023, repealed the National Council of Sports Act Cap. 48. Bearing in mind that the repealed law was one of 1964, it was surely designed for a different era when sports was treated entirely as a leisure activity and that explains why it couldn’t address pressing issues like betting, match fixing, and doping that had emerged over the years due to the professionalisation of sports. In transitioning to the present, below is a condensed overview of the National Sports Act 2023 (“the Act”):
1. Key terms defined
The repealed law lacked a clear distinction between a national sports association and a national sports federation. The Act now defines these two terms – a national sports association is an organisation registered under the Act to develop, promote, manage and regulate amateur sport, while a national sports federation is an organisation registered under the Act to develop, promote, manage and regulate a professional sport and an amateur sport. Suffice to note, the National Council of Sports (“the Council”) has the mandate under the Act to register such associations and federations.
2. Mandatory registration for sports associations and sports federations
The above definitions clearly introduce a policy of mandatory registration under the Act for national sports associations and national sports federations.
It is important to note that upon registration under the Act, the applicant (a national sports association or a national sports federation) becomes a body corporate with perpetual succession and may, in its corporate name, acquire, hold and dispose of property, sue or be sued etc., – meaning, such associations and federations can now acquire the status of a body corporate without necessarily creating a trust or going through URSB registration processes.
Therefore, all national sports associations and national sports federations (even those that were incorporated as companies) that were recognised by the Council under the National Council of Sports Regulations 2014, should again register with the Council and the Act requires them to do so within twelve months from 17 August 2023.
3. Establishment of the National Recognition and Reward Scheme
Through the National Recognition and Reward Scheme, the Government can now systematically recognise and award outstanding and deserving sports personalities who bring honor to Uganda. This scheme will not only boost athletes’ motivation and morale but shall also serve as an incentive for continued excellence, ultimately raising the profile of Ugandan athletes on the global stage.
4. Requirement of “Presence” in a Sports Activity
The word ‘presence’ for the purposes of registration under the Act means the participation of Ugandans in a sports activity. For a national sports association to be registered under the Act, it must be engaged in a sports activity that has a presence of at least 50% in the districts of Uganda. And for a national sports federation, it must have a presence of at least 75% in all the districts of Uganda for it to be registered under the Act.
5. Period of Validity of a Certificate of Registration
Upon satisfaction that an applicant (a national sports association or a national sports federation) meets the requirements for registration, the Council is required under the Act to issue it with a certificate of registration which shall be valid for a period of one year from the date of issuance. A national sports association or a national sports federation which wishes to renew its certificate of registration can apply to the Council for renewal.
6. Authorisation toParticipate in a Sports Competition outside Uganda
Under the Act, a national sports association or a national sports federation which intends to participate in a sports competition outside Uganda, must apply to the Council for authorisation to do so. Similarly, if a national sports association or a national sports federation intends to be affiliated to an international sport governing body for the respective sports activity, it must also seek the authorisation of the Council to do so.
7. Continuation of affiliations to international sports governing bodies
The Act allows national sports associations and national sports federations affiliated to international sports governing bodies to continue/maintain their affiliations but must do so in accordance with the Act. In addition, the Act is to be interpreted and applied in recognition of the statutes and regulations of the international sports governing body to which an association or a federation is affiliated – meaning, when interpreting and applying the Act, the statutes and regulations of the international sports governing body must be taken into account – for example in football, the FIFA Football Agent Regulations must be taken into consideration when applying the Act’s provisions on agents.
8. Annual Financial Report
Under the Act, a national sports association or a national sports federation is expected within four months after the end of each financial year, to submit its financial report to the Council. The said report must include – the financial statements of such an association or federation, including the audited accounts of the association or the federation; the estimates of revenue and expenditure of such an association or federation for the preceding financial year; and a report of the activities of such an association or federation conducted in the financial year.
9. Beneficial Ownership
A beneficial owner, as per the Act, is a natural person who ultimately owns or controls a national sports association or a national sports federation or the natural person on whose behalf a transaction is conducted in the national sports association or national sports federation, and includes a natural person who exercises ultimate control over a national sports association or a national sports federation.
Just like companies, trusts, cooperative societies and partnerships, a national sports association or a national sports federation is also expected under the Act to keep a register of its beneficial owners at its registered office. Such a register must contain particulars of each beneficial owner, the date on which each beneficial owner was entered in the register as a beneficial owner, the date on which any person ceased to be a beneficial owner etc. And it’s also stipulated in the Act that every national sports association or national sports federation shall, within fourteen days after creating the register of beneficial owners, transmit a copy of the register to the General Secretary of the Council.
10. Registration for Community Sports Clubs is optional
Surprisingly, the Act does not define a community sports club. It merely states that a person who wishes to register such a club shall apply to the Council for a certificate of registration; and that on registration, such a club shall become a body corporate with perpetual succession.
Notably, the Act places an obligation on the Minister of Education and Sports to make regulations, by way of statutory instrument, giving effect to the operation and administration of community sports clubs.
11. Authorisation of Sports activities for Schools, Tertiary Institutions, and Universities
The Ministry of Sports and Education is the main regulatory body for sports in schools, tertiary institutions, and universities. And under the Act, the Council cannot authorise sports activities in which pupils and students may participate without the ministry’s approval.
Further, the Act requires every school and institution of higher learning to offer at least fifteen ‘authorised’ sports activities for the pupils or students.
12. Sports academies are to operate under licence
The Act provides no definition for a sports academy, but it does give a clue on what they are – that is, they provide specialised training in particular sports activities for athletes and sportspersons.
It is important to note that for a person to operate a sports academy, he or she must be licenced by the Council on approval of the respective national sports federation. In addition, the Council is obliged under the Act to safeguard the welfare, rights and best interests of a child whenever it licenses a sports academy.
13. Continuation of the Uganda Olympic Committee (UOC)
The UOC’s continuation in existence is subject to the provisions of the Act. The UOC is also required under the Act to only recognise a national sports association or a national sports federation that is registered by the Council.
14. Establishment of the National Anti-Doping Organisation (Nado)
Doping is defined in the Act as “the use of prohibited substances and methods in any sporting activity whether competitive or recreational in order to artificially enhance performance”. The Act prohibits doping in all forms to the extent that an athlete is not even allowed to have in his or her possession a substance banned by the World Anti-Doping Agency (Wada).
Given the absence of a modern sports regulatory framework prior to the Act, the UOC in conjunction with the Regional Anti-Doping Agency for the East African region took the lead in coordinating anti-doping efforts in the country.
However, with the Act having established an anti-doping organisation (Nado) for the country, the weight of responsibility for anti-doping efforts is expected to shift. This transition will not only lighten the load on the UOC but shall also bolster the said committee’s anti-doping initiatives, something that will ultimately enhance the effectiveness of anti-doping measures in the country.
15. Sports disputes are to be settled using Arbitration only
It is stressed in the Act that sports disputes between a national sports association or a national sports federation and its members shall not be taken to courts of judicature but rather shall be settled through arbitration. In that regard, such associations and federations are required under the Act to include in their constitutions a provision – 1) recognising the jurisdiction of arbitrators appointed by the Minister of Education and Sports and subjecting the association or federation to arbitration in the event of a dispute with its member(s) or the Council; 2) recognising the decision of the arbitrators as final; 3) obligating the association or federation and its members to respect and comply with the decision of the arbitrators; and 4) prohibiting courts of judicature from adjudicating over sports disputes involving the association or federation and its members.
It is also imperative to note that under the Act, a constitution of a national sports association or a national sports federation that deviates from or does not include such a provision on arbitration, is null and void and therefore must not be accepted by the Council.
16. Ownership of commercial rights
A commercial right is defined in the Act as “a right of a commercial nature, connected with a sports event such as image rights, audio-visual rights, media rights, endorsement and official supplier rights, sponsorship rights, merchandising rights, licensing rights, advertising rights, hospitality rights, promotional rights, incorporeal rights, intellectual property rights, rights arising under the Copyright and Neighbouring Rights Act, 2006 and includes, any other rights the Minister may by statutory instrument prescribe”.
The Act labels national sports associations, national sports federations, and their respective members as “the original owners of all the commercial rights coming under their respective sport discipline, without any restrictions to content, time or place”. However, this does not mean that athletes have no commercial rights. In fact, an athlete’s commercial right is protected in Section 60(1) of the Act which prohibits the use of an athlete’s commercial right without his or her consent.
Since such associations, federations, and their respective members are the original owners of all the commercial rights coming under their respective sport discipline, the Act creates several offences that are based off such ownership. For example, it is an offence for a person licensed under the Lotteries and Gaming Act 2015 to allow betting on a sports activity or use results of a competition organised by a national sports association or a national sports federation without the written authorisation of that association or federation.
17. Certain persons are prohibited from betting
A person that is ‘involved’ in a sports activity, event or competition organised by a national sports association or a national sports federation, either as an athlete, match adjudicator, coach, owner of a sports club, employee of a sports club, or as an employee of that association or federation, is prohibited from betting or advising any person on any betting activity in respect of that sports activity, event or competition.
18. Manipulation of a sports result or a sports competition is prohibited
The Act is clear on what amounts to a manipulation of a sports result or a sports competition. For example, an umpire or match referee that deliberately misapplies the rules of the sports competition or sporting event for a financial reward or benefit, will be said to have manipulated the course of a sports competition.
A person that is found guilty of the offence of manipulating a sports result or a sports competition, will be liable to a fine not exceeding Ushs. 100 million or a term of incarceration not exceeding five years, or both.
19. Participation of a minor in a sports activity with adult participants
A minor of sixteen years of age or more can participate in an ‘authorised’ sports activity with adult participants. However, the minor cannot do so without the written consent of his or her parent or guardian.
Surprisingly, the Act uses the word ‘shall’ in respect of the said consent. Section 74(2) (b) of the Act states that, “the parent or guardian of the minor shall give consent, in writing, to the participation of the minor”. The word ‘shall’ definitely connotes a mandatory tone – but the question is, would it be morally and legally right to force a parent or guardian to consent to their minor child participating in a sports activity with adult participants? Kindly refer to the concluding observations herein for my opinion on this.
20. Public sports facilities are to be vested in the Council
According to the Act, the land on which public sports facilities are situated and the public sports facilities thereon shall vest in the Council. Some of the public sports facilities in Uganda include – the Mandela National Stadium, the Lugogo Indoor Stadium, the Lugogo Tennis Complex, and the Kakyeka Stadium in Mbarara City.
Notably, the Act bars the Council from selling, leasing, mortgaging, disposing of or otherwise dealing with public sports facilities and the land on which they are situated.
On the requirement of “presence” in a sports activity, the Act does not lay down any criteria for the Council to use when determining whether a sports activity qualifies as having a 50% or 75% presence in Uganda’s districts. The 75% threshold applicable to national sports federations might be a bit too much and unrealistic especially for sports activities that are not so popular in Uganda. There’s therefore need for more flexible thresholds that can accommodate the diversity of sports in the country.
On the aspect of commercial rights, the Act primarily focuses on commercial rights from a standpoint of national sports associations and national sports federations. It does not address in depth the commercial rights of athletes. The minister responsible for education and sports should therefore make regulations on how athletes can better protect and leverage their image rights, endorsements, and other aspects of their commercial interests for their benefit.
On the mandatory language used in Section 74(2) (b) in respect of a parent’s consent, I am of the view that forcing a parent or guardian to consent to their minor child participating in a sports activity with adult participants would amount to a gross violation of his or her parental/guardianship rights. As such, Section 74(2) (b) of the Act should be re-visited for the purposes of streamlining it with the welfare principle enshrined in the Children Act Cap. 59 as amended.
Still on the involvement of minors in sport, the Act is silent on the employment of minors in sports activities. Much as the Employment Act 2006 covers the employment of minors generally, it would massively benefit Uganda’s sports sector if regulations were introduced providing specific and tailored guidelines for employing minors in sport.
On the requirement of every school having a minimum of 15 ‘authorised’ sports activities, the Act’s stipulation might be unrealistic for many schools that struggle to fund even 5 such activities. A reasonable approach, one that reduces the minimum number to 5, would be more practicable.
On the settlement of sports disputes through arbitration only, the Act does not define what amounts to a sports dispute and more importantly, the sports disputes envisaged in the Act are only those between a national sports association or a national sports federation and its members or the Council. This is likely to cause confusion in determining which sports disputes are subject to arbitration since disputes in sport can manifest in various ways and involve a wide range of parties e.g., disputes that involve athletes and their agents, disputes between a sports club and a sponsor etc. Therefore, the boundaries of what constitutes a sports dispute should be clarified upon in a statutory instrument made under the Act.
On specific persons being prohibited from betting, I feel that that list of persons should be broadened to include commentators – reason being, allowing commentators to bet on games they cover may lead to unethical and unprofessional behaviour e.g., commentators yelling at players in a game to shoot or pass the ball so that the bets that they (the commentators) placed can win.
All in all, the National Sports Act 2023 presents a promising development for the sports sector in Uganda. Its potential to truly benefit the said sector, however, hinges on the effectiveness of its implementation and its practical application.
Click here to access the National Sports Act 2023.