Is a Sports Tribunal Really Necessary in Uganda?
In recent times, there has been a lot of debate in Uganda over whether or not a sports tribunal is necessary in the country. The debate was sparked off by clause 42 of the National Sports Bill, 2021, which provides for the appointment of a tribunal to determine sports disputes. On 25 January 2023, the Attorney General of Uganda, Hon. Kiryowa Kiwanuka, while appearing before the Committee on Education and Sports, shed some light on the issue.
According to the Attorney General, creating a special sports tribunal would take away resources available for the administration of justice – that the goal is to decentralize the Court of Appeal of Uganda by having different Courts of Appeal in different regions of the country with enough judges. Based on the Attorney General’s comments, it appears that the Government does not find it necessary to allocate resources towards the establishment of a sports tribunal in Uganda, and I am inclined to agree with this assessment as I believe there are several compelling reasons for this position.
Firstly, Uganda has fully-functioning courts of law that are well-equipped to handle civil matters, including sports disputes. These courts have Judges who are well-trained in the law and have experience in handling complex legal issues. Given that sports disputes are not substantially different from other civil disputes, there is no compelling reason to establish a separate tribunal for them.
Secondly, even if a sports tribunal were to be established, its decisions would not be final, just like the decisions of existing tribunals, such as the Tax Appeals Tribunal. This means that the parties involved would still have the option of appealing the decision to a higher court, which would likely be the High Court of Uganda. Therefore, the establishment of a sports tribunal would not necessarily provide a more efficient or effective means of resolving sports disputes.
Thirdly, there is no law in Uganda that bars sports bodies or any person for that matter from seeking alternative dispute resolution mechanisms, such as negotiation, reconciliation, mediation, and arbitration. These mechanisms can be faster and less costly than going through the courts, and they can also help to maintain good relationships between the parties involved. Therefore, there are already existing options for resolving sports disputes that do not require the establishment of a special tribunal.
Fourthly, sports associations themselves have dispute-resolution mechanisms within their administrative structures. For example, the Federation of Uganda Football Associations (FUFA), has judicial bodies such as the FUFA Ethics and Disciplinary Committee, the FUFA Adjudicatory Chamber, the FUFA Appeals Committee, the FUFA Dispute Resolution Chamber etc. These mechanisms are designed to address disputes that arise within the association and can help to maintain order and promote fair play. By utilizing these mechanisms, sports associations can avoid the need to involve the courts or a special tribunal.
Finally, there is already the Court of Arbitration for Sport (CAS), which is an independent international body that provides a specialized forum for resolving sports disputes. The CAS has everything that one would ask for from a sports tribunal, including expertise in sports law and a panel of arbitrators who are experienced in handling sports disputes. Given that the CAS is available to Ugandan athletes and sports bodies, there is no need to establish a separate tribunal.
With the CAS’s impeccable record in issuing well-reasoned arbitral awards, it is clear that exploring its jurisdiction, procedures, and benefits is a necessary endeavor. As such, from hereon under, I will take a closer look at the jurisdiction of the CAS, a glimpse into its procedures, and some of the benefits of utilizing its services to resolve sports disputes.
The CAS is based in Switzerland and all of its arbitrations have their legal seat in Lausanne. It is one of the most active international arbitral institutions, resolving cases of high profile sports icons bearing names such as Platini, Sharapova, Contador, Semenya and many others. Just like any other Alternative Dispute Resolution mode, disputes filed with CAS are resolved quickly and cost-effectively without the need for lengthy court proceedings.
Since CAS arbitrations are legally seated in Switzerland, Swiss law and jurisprudence apply as lex arbitri, meaning that Swiss law governs the arbitration process and the decisions made by the CAS.
The procedure for accessing the Court of Arbitration for Sport involves submitting a request for arbitration to the CAS Secretariat, along with the necessary fees and documents. The dispute will then be referred to a panel of impartial and independent arbitrators who are experts in sports law and have been appointed by the CAS. The panel will then hear the case and make a final and binding decision – that is why the CAS is commonly referred to as “the Supreme Court of Sports Law”.
The CAS can act as both a court of first instance and appellate jurisdiction, depending on the nature of the dispute. This is why the CAS is composed of two principal divisions namely, the Ordinary Arbitration Division and the Appeals Arbitration Division.
The Ordinary Arbitration Division, as its name reflects, deals essentially with one-off commercial disputes connected with sports, in which the parties have agreed to submit resolution of their dispute (whether through a clause in the relevant contract or by a special arbitration agreement) to the CAS as a first instance adjudicator.
The Appeals Arbitration Division, as its name reflects, handles cases involving appeals from the decisions of federations, associations or other sports-related bodies insofar as the statutes or regulations of the said sports-related bodies or a specific agreement so provide. Given the nature of this Division, a lot of emphasis is placed on the mandatory requirement that an appellant must first exhaust the legal remedies available to it prior to the appeal in accordance with the statutes or regulations of that body.
One of the benefits of utilizing the CAS is that it has a specialized panel of arbitrators who are experts in Sports Law and can provide specialized expertise in resolving sports-related disputes. This ensures that disputes are resolved in a fair and transparent manner, promoting a level playing field for all parties involved. The Court of Arbitration for Sport also has a reputation for providing efficient and effective dispute resolution services, which can be beneficial in resolving sports-related disputes quickly and cost-effectively.
Further, it is imperative to note that a CAS appeal is not a classic, limited appeals proceeding, but a special hybrid as it is of a “de novo” nature, meaning that the CAS does not simply review the decision-making process or the legal reasoning used by a lower tribunal or committee/panel; but rather, it makes a fresh examination of the case, as if the original decision had never been made. In other words, the parties are free to raise facts and arguments that they did not raise in the prior proceeding and – albeit in a restricted fashion – introduce evidence not submitted in the prior proceeding. All this is allowed because the CAS is not bound by the findings of an independent tribunal, however well-reasoned they are. For example, in the case of Maria Sharapova v. International Tennis Federation, CAS 2016/A/4643, the Russian tennis star succeeded in reducing from 2 years to 15 months the period of ineligibility imposed on her by an independent tribunal appointed by the International Tennis Federation for her use of the recently-prohibited substance Meldonium on the basis of a finding of “no significant fault” (and no intention to cheat) in her use of the substance. The Panel in that case referred to its de novo powers under Rule 57 of the CAS Code Procedural Rules, and in their award stated that;
“As a result, this Panel is not bound by the findings of the [independent] Tribunal, however well-reasoned they are. More specifically, this Panel has full power to examine de novo the Player’s actions, and the evidence before it, in order to verify whether the Player’s plea of NSF [no significant fault], dismissed by the [independent] Tribunal, is grounded or not. Such exercise is linked to the appellate structure of CAS proceedings”. [Emphasis mine]
In conclusion, it is evident that at the moment setting up a sports tribunal in Uganda would be a waste of resources. The country already has a fully functioning legal system that can handle sports disputes, and ADR mechanisms are available. Additionally, sports associations have their dispute-resolution mechanisms, and the Court of Arbitration for Sport provides everything that one would ask for from a sports tribunal. Therefore, it is prudent to focus on strengthening existing legal and dispute-resolution mechanisms while directing resources to highly prioritised areas that can uplift the quality of life for the people and contribute to the nation's sustainable growth. Such areas include; - healthcare, agriculture, education, and ecological conservation.
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