Sports Law: Making a case for a tribunal as bills create draconian penalties

Sometimes Courts advise the warring parties to find remedies in their sports federation constitutions.

For these reasons, it is menacing that The Physical Activity and Sports Bill, 2022 – propelled by government since last July – does not provide for a Sports Tribunal. It is actually inconsistent with The National Physical Education and Sports Policy that the Ministry of Education and Sports wrote in September 2022.

It is believed that government, in this new era of budget cuts, tries to avoid anything like such laws that come with financial implications.

However, Moses Magogo – Member of Parliament for Budiope East and Fufa president – is a huge advocate for the tribunal in his private bill; The National Sports Bill – 2021.

Magogo states that National Council of Sports (NCS) may, upon request or on its own volition, appoint a tribunal (comprising an odd number of members not exceeding five) to determine disputes between itself and national sports organisations or between these bodies and their members.

Federations must prohibuit settlement of sports disputes by normal courts and have provisions in their constitutions recognizing the jurisdiction of a tribunal whose decisions should also be recognized as final and complied with.

Our columnist Ivan Ojakol, a Sports Lawyer and Partner at Matrix Advocates, says the tribunal is “very important to keep people accountable.”

Moses Mwase, a lawyer and president of Uganda Swimming Federation (USF), agrees but insists Council cannot appoint people to hear disputes in which it is involved and prefers such help is sought from independent bodies like Uganda Law Society (ULS) or the Judicial Service Commission.

“Federations should not be forced but rather persuaded, as part of good practice, to adhere to arbitration clauses. In fact there should be an option for parties that do not agree with tribunal decisions to appeal as provided for by international bodies or Cas (Court of Arbitration for Sports),” Mwase argues.

Magogo indicates that Council should provide, regularly update and publish in the gazette and newspapers a list of arbitrators from whom a panel may be appointed. And further emphasizes that a person qualifies to be included on the list if they are; a Judge or Justice of a Court of Judicature in Uganda, advocates of the High Court and more controversially if one has experience in football administration or management. One wonders why people with experience in management of other sports do not qualify.

Magogo proposes that each party to a sports dispute bears the costs it incurs during arbitration and that every federation pays an annual arbitration fee prescribed by the Minister that NCS can use to offset the costs of the tribunal.

Funding still a controversial issue

Federations struggle with finances already but the proposal to have them make these contributions to the tribunal is perhaps the only realistic way of making this proposal work.

Funding is still a contentious issue in sports and the proposed laws almost exonerate government from being the biggest financier of the industry.

Government recognizes funds as; monies appropriated by Parliament; grants, gifts or donations from the government or other sources made with the approval of the Minister and the minister responsible for finance; revenue earned from activities of Council; fees charged, civil fines and penalties recovered by the Council.

Government appropriated Shs47bn for NCS for the financial year 2022/23 and Parliament ordered some of it be ring-fenced for federations. This proved impractical as only Shs24bn has been released thus far and there is no law compelling the National Treasury to release all funds.

In the past, NCS and federations running facilities in Lugogo agreed to share revenues generated from hiring out these spaces. For example Uganda Hockey Association (UHA) and NCS agreed that whoever, between them, hires out the astro-turf pitch takes a 60 percent cut of the accumulated fees while the other takes the balance but this has always been violated. There are no proposals in the laws to show how such revenues can be used or to compel parties to follow agreements.

The government bill, subject to article 159 of the Constitution and the Public Finance Management Act (2015, suggests that Council may with the approval of the minister responsible for finance raise a loan as may be required for meeting its obligations.

This could help. Remember the war between NCS and basketball body, Fuba, in 2021?

The latter received Shs340m in a sack from NCS general secretary Bernard Patrick Ogwel for the Afrobasket in Rwanda that year. But Fuba used it to clear a loan that facilitated the postponed second part of their qualification for Afrobasket in Morocco earlier in the year (NCS had provided funds for the second round of qualifiers that was initially supposed to be held in Tunisia in February 2021 but games were cancelled after members of Uganda’s team tested positive for Covid-19).

Ogwel insisted he would be abusing the law if he helped Fuba clear a debt they accumulated without his blessing. This proposal, if not abused, should help in circumstances where NCS have to fund national teams but are tight on funds.

Magogo wants Council, with approval of the minister responsible for finance, to invest any surplus money it may have in conformity with good commercial principles. 

Magogo also wants federations to be able to solicit, receive and utilize financial resources or assistance from domestic or international sources. This is already happening in practice but putting in the laws helps with accountability as federations have not been straightforward with declaring non-government funds.

Reading further into the Policy, government notes that the budgeting monitoring framework for sports will be reviewed to consider all sources of funds during financial reporting. Sources listed are; government, international sports organizations, private sector contributions and internally generated revenues.

Government policy also proposes that other ministries like the local government contribute to funding their mandates in the development of sports. It also wants to establish a National Sports Provident Fund contributed to by professional sportsmen and their employing organizations.

A provident fund is an investment fund that is voluntarily established to serve as long term savings to support an employee's retirement.

This is further supported in the bill where they say that the Minister may, in consultation with the Public Service statutory instrument, establish a pension scheme for the purpose of awarding outstanding personalities who bring honour to the nation.

In the bill, government also proposes that the Minister establish a National Recognition and Reward Scheme for the purpose of awarding outstanding and deserving personalities in sports. 

Currently, outstanding sports personalities at the Olympics and world stage are rewarded by the President but athletes have severally raised their dissatisfaction with the implementation and narrow scope of this recognition.

Vesting assets

Furthermore, government will require all local governments to gazette public land for establishment of public sports infrastructure. The Ministry of Sports and Education alongside NCS have asked District Sports Officers to secure at least 11 acres of land per district for sports infrastructure.

The government bill suggests that land titles and ownership documentation of the public land and sports infrastructure be transferred and issued in the names of the Council, who should manage these properties.

This does not apply to land governed by the Memorial Facility Trust Act, Cap. 47 (Nakivubo Stadium) but it is unclear on whether government also wants to control land that federations might acquire to develop facilities.

“This is a clause we want to fight head on,” Mwase said.

“In our case, we would like to build a swimming pool but people are only comfortable to invest in such a venture if it is done on public land. But that means NCS will be in control of the facility yet we are not putting it up to maximize profits,” Mwase added.

Magogo, who runs a federation with lots of assets, argues a similar case when he writes that all property belonging to a national sports organisation shall vest in the national sports organisation.

Doping

Meanwhile, government neglected issues of independence when suggesting that Council be designated National Anti-Doping Agency of Uganda (NADO) just as Magogo did in suggesting that the Minister establish a NADO which will be in charge of dispensing penalties and bans to sportspersons that are convicted of doping.

Government says the NADO shall not require the consent of any person or authority to commence any investigations or impose administrative sanctions but it also has to recognize the role of WADA (World Anti-Doping Agency).

WADA, according to Mwase, guides in their Code that NADOs must prohibit any involvement in their operational decisions or activities by any person who is at the same time involved in the management of any international federation, national federation, National Olympic Committee, National Paralympic Committee or government department with responsibility for sport or anti-doping. On December 12, 2022, WADA requested all governments to submit draft legislation for their review and approval.

Penalties

The current Act has been accused of not protecting the rights of those who wish to invest in sports. So both bills have sought to remedy this by criminalizing what they deem as “abuse” of certain rights.

Both bills argue that a person who without authorisation of a national sports federations uses commercial rights granted by a national sports federation commits an offence and is on conviction liable to a fine not exceeding seventy two currency points, or a term of exceeding three years or both fine and imprisonment.

Magogo also moves to criminalize illegal access of sports venues, recording of sports events without authorization. This could target fans recording games for social media.

Journalists have to worry about the clauses that prohibit the broadcasting of sports events without the authorization of the federations in both bills.

The days of random story sourcing could be over if the law is applied to the letter. But the real fear is that some of these laws could be used selectively to get at journalists deemed to be ‘fighting’ certain federations.

Match officials, referees, umpires, match adjudicators cannot participate in betting on their sports. Neither can coaches, athletes, owners of clubs, members of the national sport federation; or employees of a federation or club bet on a discipline in which they are involved. This is almost standard practice to avoid match fixing and manipulation of results.

Finally, Magogo also seeks to criminalize the use, production or distribution of counterfeit merchandise in Ugandan sports. So your local dealer in downtown Kampala could be in trouble for selling a Uganda Cranes jersey not endorsed by Fufa.

Ojakol and Mwase say “while it is okay for people to be protected, it is draconian to create offences which are capable of being compensated in damages.”

“The creation of these new offences may upset our jurisprudence and should be seriously scrutinized.

Some of these are wrong on an individual and not a crime against society. The legal principle is simply wrong,” Mwase adds.

In conclusion, Mwase further found it surprising that both bills do not take into account e-sport (video gaming), which is growing on the youth in Uganda and could be detrimental to them if left unregulated.

"Some governments have started outlining the need for stringent gambling regulations to be imposed on eSports, which fall in line with the regulations that conventional sports are subject to.

Also the longest running organisation ESL (Electronic Sports League) has worked with WADA to implement an anti-drug policy in the eSports world. This policy has included random drugs testing in the same fashion that conventional athletes are subject to," he shared.

Overall, both parties could have done with wider consultations before writing the bills. Most of the work has been left to the Parliamentary Committee on Education and Sports, which has so far done well to entertain views from various stakeholders like ULS, Uganda Olympic Committee and federations.

Penalties and fines

*A currency point is equivalent to Shs20,000

Magogo

-Violating commercial rights: imprisonment for a period not exceeding five years or fine not exceeding 120 currency points (Shs2.4m) or both

-Unauthorized electronic media production: imprisonment for a period not exceeding five years or fine not exceeding 120 currency points (Shs2.4m) or both

-Unauthorized broadcasting: imprisonment for a period not exceeding five years or fine not exceeding 120 currency points (Shs2.4m) or both

-Unauthorized importing, manufacturing, distributing, producing, selling counterfeit material: imprisonment for a period not exceeding five years or fine not exceeding 120 currency points (Shs2.4m) or both

-Unlawful access to sports events: imprisonment for a period not exceeding five years or fine not exceeding 120 (Shs2.4m) currency points or both

-Unauthorized use of sports results in betting: imprisonment for a period not exceeding 10 years or fine not exceeding 2,000 (Shs40m) currency points or both

-Betting for those prohibited: imprisonment for a period not exceeding 10 years

-Not reporting betting offences: imprisonment for a period not exceeding five years or fine not exceeding 5,000 currency points (Shs100m) or both

-Violence or hooliganism: fine not exceeding 480 currency points (Shs9.6m) imprisonment not exceeding 10 years or both

-Victimizing those that report betting offences: imprisonment not exceeding five years

-Contravenes a provision of this Act for which no penalty has been prescribed: a fine not exceeding 100 currency points (Shs2m) or imprisonment for a term not exceeding one year

Government

-Violating commercial rights: imprisonment for a period not exceeding three years or fine not exceeding 72 currency points (Shs1.44m) or both

-Unauthorized broadcasting: imprisonment for a period not exceeding five years or fine not exceeding 120 currency points (Shs2.4m) or both

-Unauthorized use of sports results in betting: imprisonment for a period not exceeding 10 years or fine not exceeding 2,000 (Shs40m) currency points or both

-Betting for those prohibited: fine not exceeding 72 currency points (Shs1.44m), or a term of imprisonment not exceeding three years or both.

-Manipulation of sports result or competition: imprisonment for a period not exceeding five years or fine not exceeding 5,000 currency points (Shs100m) or both

-Violence or hooliganism: fine not exceeding 480 currency points (Shs9.6m) imprisonment not exceeding 10 years or both

-Contravenes a provision of this Act for which no penalty has been prescribed: a fine not exceeding 72 currency points (Shs1.44m) or imprisonment for a term not exceeding three years or both