MURIUKI: CS Amina faces simple astute test on FIFA engagement
- FIFA’s response to the recent ruling by Kenya’s Sports Dispute Tribunal ruling was not unexpected.
- On one hand, the SDT gave excellent rulings around the practicality of Kenya’s Sports Act regulations but on the other hand it ignored FIFA’s statutes.
- In making its ruling on eligibility, the SDT acted like an ordinary court enforcing the “laws of the land” than a sports tribunal. Kenya’s Bill of Rights is supreme but that’s matter of public law. Privately, you can give up rights. For example, boxers enter a ring and what happens in there is not considered a crime. It’s a matter of choice.
FIFA’s response to the recent ruling by Kenya’s Sports Dispute Tribunal ruling was not unexpected. Sports stakeholders who are versed in sports law and international sports conventions expected worse.
In rejecting the ruling FIFA stated; “first and foremost, we would like to highlight that the FKF statutes do not expressly recognize the jurisdiction of the SDT as being the ultimate arbitration forum at national level. Moreover, we note that the SDT is not a national arbitration tribunal in the sense of FIFA circular 1010 dated 20 December 2005.”
According to the circular, issued by the then FIFA Secretary General Ur Linsi, FIFA requires that an arbitration tribunal meet five minimum international procedural standards associated with rules of procedure for arbitration bodies. FIFA notes that its member federations have the right to establish their own arbitration tribunal or recognize an independent tribunal of their choice.
Currently, the FKF statutes do not recognize the SDT as the tribunal of choice. Some of the FIFA members such as the Brazilian Football Federation (CBF) have used their statutes to set up an independent tribunal, the Brazilian National Dispute Resolution Chamber to handle all football related disputes in the country.
It is this 2015 guidance that FIFA is citing in its rejection of SDT’s ruling. In its letter, FIFA chides FKF for making a decision to turn to the SDT. In its defense, FKF had stated that it filed an anticipatory case regarding some of the statutes of the sports act.
The Kenyan Sports Act and the Sports Registrar has come under a barrage of criticism from sports bodies. In fact, many sports bodies including Athletics Kenya have not held their elections citing some of the provisions of the Act. They are now pointing out FKF’s case as a validation. However, the Sports Act is a story for another day.
Secondly, FIFA rejected the ruling because the tribunal stepped out of its boundary and undertook the role of a national court. Sports tribunals adjudicate upon disputes within the rules or constitution of the organization concerned (read FKF) and establish a body of legal principle which is consistent to international rules and conventions. The tribunal deals with private procedures accepted by the participants as members of the organization. FIFA states that the electoral code was passed in a FKF General Assembly and that no member raised any issue.
In making its ruling on eligibility, the SDT acted like an ordinary court enforcing the “laws of the land” than a sports tribunal. Kenya’s Bill of Rights is supreme but that’s matter of public law. Privately, you can give up rights. For example, boxers enter a ring and what happens in there is not considered a crime. It’s a matter of choice.
This is dictated by specificity of sport. Specificity of sport for example means a man cannot insist on his constitutional rights against discrimination to play in a women’s league. When participants agree to participate in sport, they voluntarily waive some of their rights in order to participate. In order for Kenya to participate in FIFA accredited tournaments, its member federation must subscribe to FIFA statutes.
What seems to have irked FIFA more was SDT’s decision to entertain arguments from a few non-members of FKF who are not bound by the rules of FKF, CAF, FIFA and their affiliate bodies. No association of members would allow non-members to determine its fate under the pretext of concerned stakeholders. The same was applied with local LSK elections.
The tricky balancing act faced by the SDT was to ensure that the legal principles and rules developed are in the interest of sport not just locally but globally. On one hand, the SDT gave excellent rulings around the practicality of Kenya’s Sports Act regulations but on the other hand it ignored FIFA’s statutes.
Other international federations and their local affiliates are likely to reassess the standing of the SDT.
The tribunal’s proposal to establish a normalization committee is just that, a proposal. FIFA remains the sole authority on the need for a normalization committee to run football matters in any of the member countries. In rejecting the ruling, FIFA demonstrated that it has a different criterion for establishment of such a committee. A good example is Nigeria (2014). Ghana (2018) and Trinidad and Tobago (March 2020).
The Ghana Football Association (GFA) was thrown into crisis when former president Kwesi Nyantakyi resigned from all of his roles in the sport following corruption allegations.
FIFA’s own Ethics Committee had suspended him after he was caught on camera appearing to accept a bribe. His decision to step down prompted the country’s Government to begin a process to dissolve the GFA.
Ghana’s Attorney General Gloria Akuffo was on record saying that “urgent measures” were needed to “protect the public” against the GFA. The move caught the attention of FIFA as it prohibits any Governmental interference in its Member Associations. It is instructive to note that FIFA has historically had its way on such matters.
To prevent the suspension of the country, FIFA’s president summoned Ghanaian Government officials and Federation for a discussion. A deal was struck to prevent Ghana from suspension and allow the appointment of a Normalization Committee. The Ghanaian case study shows despite the FIFA taking a firm decision on its own member, it still abhorred the interference of Government.
In Nigeria’s case, the Nigerian Sports Minister Solomon Dalung openly backed one of the FA president candidates, Chris Giwa. A Supreme Court verdict also ruled that Giwa should be in charge. FIFA backed the incumbent Amaju Pinnick and refused to recognize his rival. Pinnick later regained control of the federation and was re-elected in 2018.
Two weeks ago, FIFA instituted a Normalization Committee for Trinidad and Tobago following the findings of a FIFA/Concacaf fact-finding mission. The mission and an independent financial auditor found that the federation had extremely low overall financial management methods, combined with a massive debt.
Kenya’s government can prevent or exacerbate the situation. It can prevent the situation by playing an enticement strategy. It can learn from SDT’s errors and dialogue with FIFA without seeming to assert itself on FIFA’s territory. That is, running of federations.
On the other hand, the Government can run with SDT’s ruling and follow those calling for dissolution of the Federation’s Executive Committee. The outcomes of the former is a fix on the current situation whilst retaining its power to hold the federation accountable to Government funds. The latter decision will result in suspension of Kenya from all FIFA activities.
It is important to note that the lifting of any suspension is based on fulfillment of FIFA’s conditions, not SDT’s or the Government.
Muriithi Muriuki, a sports enthusiast, is a strategic Communications consultant with Valorem Consulting Ltd
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