Kenya has distinguished itself as a powerful sporting nation over the years which has in turn helped to project a positive image for the country in the global arena. The athletic accomplishments of middle- and long-distance runners from Kenya are well known and talked about around the world. Just to put it into perspective, Kenya’s very own Eliud Kipchoge is regarded as the greatest marathon runner of all time, he is the 2016 and 2020 Olympic marathon champion and the world record holder in the marathon with a time of 2:01:09 set at the 2022 Berlin Marathon. Eliud Kipchoge has run four of the six fastest marathons in history. Thus, sports has contributed immensely toward enhancement of the growth, development, and general quality of life of Kenyan youth as well as the country’s international image.
Far from being an encomium on Kenya’s and the world’s greatest marathon runner, this piece rather focuses on the double-edged sword role that sports law as an industry has played over the last few decades and the impact of sports lawyers in ensuring the continued development of the sports industry.
THE ‘LAW OF SPORTS’ OR ‘SPORTS LAW’?
The definition of sports law has been a source of robust debates over the years. What is “sports law” is a question often asked by students, academics, lawyers and lay persons. The person attempting to respond often searches in vain for a response that is cogent and demonstrates some modicum of understanding of “sports law.” Perhaps the difficulty in articulating a response is, in part, a result of uncertainty related to what information is being sought. I offer a two-fold approach at answering this question.
- Where the “what is sports law” query intends to focus our attention on the content of the practice of sports law? In other words, which substantive areas of practice fall under the rubric of sports law? Specifically, is the role of the sports lawyer intended as the principal focus of the question? In this regard, perhaps what is sought is information concerning the range of services provided by the Advocate who practices in the sports law context.
- Where the query “what is sports law” seeks an answer to a more fundamental consideration – does such a thing as sports law exist? In other words, is sports law recognized as an independent substantive area of the law such as torts, contracts or employment law?
To this end, some jurists have argued that Sports Law is not an identifiable and substantive area of law but merely deals with how other “established” areas of law like Contract Law, Torts Law, Intellectual Property Law, Administrative Law, et al impact sports.
In other legal schools of thoughts, Lex Sportiva is simply a body of law created by reiterated decisions regarding sports disputes issued by the Court of Arbitration of Sports (CAS).
Sport is a global phenomenon and for its integrity there must be uniform enforcement of rules by delegated federations. Its intrinsic global nature inevitably raises jurisdictional issues and its internal unique technicalities require not just its substantive legitimacy but its own system of redress altogether.
It appears the jury is still out as to the status of “Sports Law”, but it seems that there has been an increased willingness to recognize Sports Law as a unique area in and of itself in Kenya. The Sports Act No 25 of 2013 is conclusive evidence of the same bearing the mandate of harnessing sports for development, encouraging and promoting drug-free sports and recreation; providing for the establishment of sports institutions, facilities, administration and management of sports in the country.
LAWYERS’ ROLE IN SPORTS LAW
The continuing commercialization and commodification of global sports such as football, cricket, rugby, and athletics means that individuals and entities that participate in them or organize them will from time to time require various kinds of legal services. Their legal needs will relate to:
1. Contract Drafting & Reviewing
The law of contract is the cornerstone on which sports law has been built and which is of primary importance in most areas where there is an interface between sport and the law. Whether sport is being played at an elite level or at a more humble one there is always a contract working somewhere. Usually, it is an enforceable one. Many sporting disputes revolve around the proper interpretation of the contract in question. Sports, particular amateur ones, are not always financially well resourced. Often the relevant contractual regimes in place in respect of such sports are drafted or prepared by people without any formal legal qualifications.
2. Dispute Resolution
In sports, the importance of quick dispute resolution cannot be overemphasized There is often a loss both in revenue as well as deterioration in form and fitness anytime athletes are out of active sport. There is need for sports lawyers in Kenya not only to have the expertise in dispute resolution in the area, but also to be in a position to advise clients on Domestic and International Arbitration and Mediation, League/Club/Association Dispute resolution, Court of Arbitration for Sport, Intra Club Sport Resolutions’ arbitration and mediation forums, Civil and Criminal courts matters, Regulatory disputes and rule infringements, Contractual disputes, Debt recovery matters amongst others.
3. Doping
In a report published by the World Anti-Doping Agency (WADA) in 2018 titled ‘Doping In Kenya’, 138 Kenyan athletes were found to have tested positive for prohibited substances between 2004 and 2018. This is a prevalent issue in Kenya and many athletes, coaches and agents are unaware of how to proceed in these instances which have caused athletes irreversible damage and ended careers in the process. Sports lawyers are at the forefront in educating and providing technical and legal support to their clients.
4. Formulation & Implementation of Sports Legal Framework in Kenya
There are various laws in Kenya that seek to regulate sports starting with the Sports Act, 2013. However, the various legislations regulating the different sporting associations, clubs and Leagues have to be in alignment with the Constitution. Further, there needs to be serious benchmarking to ensure adherence with international sporting standards to ensure that the Kenya regime matches up to international standards. The continued development of the legal framework regulating sports in Kenya is only possible through constant scrutiny, and positive criticism of the provisions of the already existing legislations in the Kenyan Courts.
5. Immigration and Citizenship
Many athletes have been caught up in immigration issues in Kenya and there seems to be no clear policy or clear procedure and/or redress where this happens. This is a fairly expansive area that must be looked at. The legal field, in tandem with the various government agencies concerned with immigration and citizenship are at the forefront of streamlining and tailor-making the existing policies to the needs of sports men and women in the country.
In a nutshell, the continuing commercialization and commodification of global sports such as football, cricket, rugby, and athletics means that individuals and entities that participate in them or organize them will from time to time require various kinds of legal services. Their legal needs will relate to:
- Obtaining contracts that best safeguard their interests;
- Resolving claims of injury to parties involved in sports;
- Registration of Intellectual Property rights emanating from the exploitation of sports such as image rights.
- Safeguarding of the aforementioned Intellectual Property rights through litigation in infringement claims.
- Ensuring that the bodies that regulate sports make fair decisions and do not abuse their powers (including the power to discipline athletes for misconduct such as doping); and
- Resolving disputes between athletes, clubs, and the bodies that regulate sports.
At Adhiambo Okech & Associates Advocates LLP, we recognize the value of sports at both national and international levels. Indeed, sports has evolved over the years from just being conducted for entertainment and recreation purposes to being more commercial in nature and with this evolution there has arisen a need for putting in place dispute resolution mechanisms that will resolve sports disputes. To this end, we offer tailor made legal services to our clients that are major players in the sports industry.