[2021] KESDT 82 (KLR)

REPUBLIC OF KENYA

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

SDTSC/E009/2021 AS CONSOLIDATED WITH SDTSC/E10/2021

AFC LEOPARDS SC.....................................................1ST PETITIONER

DR.DAN SHIKANDA..................................................2ND PETITIONER

VERSUS

FOOTBALL KENYA FEDERATION.............................RESPONDENT

DECISION

Hearing:09th November, 2021

Panel:

1. Jane Njeri Onyango – Panel Chairperson

2. Ms Mary Kimani - Member

3. Gichuru Kiplagat – Member

Appearances

1. The Petitioners are represented by MM & Mabeya Company, Advocates.

2. The Respondent is represented by Litoro & Omwebu, Advocates.

3. Ambrose Rachier & Gor Mahia FC represented by Mr. Weru Advocate of Obura Mbeche & Company Advocates.

The Parties

1. The 1st Petitioner is a football club playing in the top tier league know as Football Kenya Federation Premier League and a member of the Respondent.

2. The 2nd Petitioner is the Chairman of the 1st Petitioner.

3. The Respondent is a national sports umbrella organization registered under the Sports Act and affiliated to FIFA, CAF & CECAFA to manage the sport of football in Kenya.

The Case

4. The Petitioner has approached the Tribunal vide his petition and application under certificate all dated 05/08/21 filed with the Tribunal.

5. The petitioner prays that pending hearing and determination of their application inter-partes conservatory orders be issued against the Respondent’s National Executive Committee (NEC) of 01/08/2021 provisionally suspending the 2nd Petitioner. Secondly, the Tribunal do issue conservatory orders against the Respondent’s NEC decision of 01/08/2021 and its Leagues and Competitions Committee of 01/08/21 prescribing the following sanctions against the 1st Petitioner:

a) That in accordance with Article 3. 1.6 of the Rules Governing Kenya Football, the 1st Petitioner be docked three (3) points and two (2) goals from those already accumulated.

b) That the 1st Petitioner pays Kshs. 6,000,000 being costs incurred by match organizers and the Respondent in relation to the match and part of the fine levied by the League Title Sponsor, Star Times (Kenya) Limited for breach of contract on account of the 1st Petitioner’s failure to honour the scheduled fixtures.

6. The Petitioner also prays to the Tribunal to issue a temporary injunction restraining the Respondent’s Independent Dispute and Arbitration Committee (IDAC) from hearing and determining the complaint dated 02/08/21 or any other complaint registered or to be registered against the 2nd Petitioner.

7. The Petitioners claim that the decisions were unlawful and against the rules of natural justice as the Petitioners were not accorded an opportunity to state their case among other reasons.

8. The 2nd Petitioner contends that vide a letter dated 02/08/2021, the Respondent registered a complaint with its Independent Dispute and Arbitration Committee (IDAC) on the conduct of the 2nd Petitioner subject of that letter and or the petition herein.

9. The 2nd Petitioner further claims that IDAC in its membership is composed of the following members: Japheth Munyendo, Charles Njenga and Bernard Murunga who are advocates of the High Court of Kenya with its Secretary being David Thiru, the Respondent’s Premier League Manager.

10. The 2nd Petitioner further notes that Japheth Munyendo and Charles Njenga are Advocates in the Respondent’s panel of lawyers and that the two Advocates have represented the 1st Petitioner in numerous legal matters. Therefore, the 2nd Petitioner is apprehensive that he will not get a fair hearing before the IDAC.

11. The Respondent filed a preliminary objection dated 11/08/2021 against the entire petition and sought to have it struck out on three grounds:

a) The Sports Disputes Tribunal is an Appellate Tribunal mandated to hear appeals of a specific nature as prescribed in section 58 of the Sports Act and this Petition does not certify such criteria.

b) The Petitioners are bound by the provisions of Articles 14(1) (a) (d),19 (1) of the FKF Constitution as read together with Article 67 (2) of the FKF Constitution and Rule 10. 3.5 of the Rules & Regulations Governing Kenyan Football.

c) The Sports Disputes Tribunal lacks the jurisdiction to entertain appeals from decisions of the FKF National Executive Committee and FKF Leagues and Competitions Committee and this Petition has brought to circumvent well established and existing dispute resolution mechanisms providing for appeals within the structures and statutes of FKF while the Petitioners have access to invoke and exhaust the said appeal mechanisms.

12. The Tribunal heard the parties and dismissed the preliminary objection vide its ruling dated 12/10/2021 and thereafter the matter proceeded for hearing of the main petition.

13. The main petition was heard on 09/11/2021. The parties filed written submissions that were highlighted on the afore mentioned hearing date.

14. The petitioners relied on their petitions, supporting affidavits, motions and written submissions. They noted that the Respondent has an array of duties towards its members under Article 2 of the FKF Constitution and that under Article 3 of the said constitution FKF ought to respect all internationally recognized human rights and strive to protect their rights pursuant to Article 8 to ensure bodies and officials of FKF observe the Constitution and regulations of the FKF in their activities.

15. They also noted that the membership of the FKF is set out at Article 11 of the FKF Constitution and includes only juridical persons such as FKF Premier League Clubs that include Gor Mahia FC and AFC Leopards SC.

16. The Petitioners also note that FKF performs fiduciary duties as per Articles 81 and 82 of the Constitution for and on behalf of its members which include receipt and disbursement of funds earned by its members by way of grants, sponsorship funds and premier league media rights funds inclusive of funds drawn from Star Times and betting firm Betking.

17. The Petitioners contend that they participated in the FKF Betway Cup final on 04/07/2021 that pitted Gor Mahia FC and AFC Leopards and were entitled to Kshs. 2,000,000 and Kshs. 1,000,000 as winners and runner-up respectively. The two teams were also entitled to funds by way of grants, sponsorship funds and premier league rights funds which FKF handled as a fiduciary and was required to forward to the two teams alongside the prize money awards.

18. The Petitioners noted that FKF failed to remit the cash prize awards and their monthly payments for June and July 2021. They noted further that Gor Mahia FC and AFC Leopards were scheduled to play Match No.260 of the Kenya Premier League on 31/07/2021.

19. The Petitioners registered their displeasure with FKF for not remitting their cash prices and monthly remittances due to them and all other entitlements. They further noted that this conduct by FKF adversely affected their preparations for the next match. They also threatened not to honour their next match fixture should FKF fail to honour its obligation to remit the cash prizes and monthly remittances.

20. They noted that FKF responded tersely vide their letter dated 30/07/2021 and warned that should the Petitioners fail to honour their match fixture, then the FKF Leagues and Competitions Committee would upon receipt of the match officials ‘report discuss the matter and render appropriate sanctions. However, in their said letter FKF failed to address the concerns raised by the Petitioners.

21. The Petitioners on account of FKF not remitting their prize cash awards and other entitlements made good their threat and failed to honour Match Number 260.

22. On 01/08/2021 for failure to honour the match fixture, the Petitioners received a letter from FKF to the effect that the National Executive Committee (NEC) and on the advice of the FKF League and Competitions Committee the Petitioners would be docked three (3) points and two (2) goals as per Article 3. 1.6 of the FKF Rules and Regulations governing Kenyan Football and pay fines of Kshs.4,000,000 and Kshs.6,000,000 being part of the fine levied by the League Title Sponsor, the Star Times (Kenya) Limited for breach of contract on account of their failure to honour the scheduled fixture.

23. FKF’s NEC further proceeded to suspend the chairpersons of Gor Mahia FC and AFC Leopards as Article 39 (1) (m) of the FKF Constitution. NEC further ruled that that the matter would be remitted to the FKF Disciplinary Committee for processing.

24. The Petitioners noted that the Rules and Regulations governing Kenyan football at Chapter 3 sets out the procedure that should follow in the event a football club fails to honour a match fixture. In particular, they noted that Clause 3. 1.7 provides that a team that fails to attend a match shall submit a written explanation within 48 hours from the date of the match. They noted that the cut-off timeline was 02/08/2021.

25. The Petitioners also noted that they were not accorded fair hearing hence violation of their right. Their cries and concerns against FKF were also not taken into account yet this summed up to exculpatory evidence.

26. They also noted that NEC was not clothed with the jurisdiction to sanction them but this was the preserve of the FKF’s Leagues and Competitions Committee.

27. The petitioners also noted that the chairpersons of the two clubs are not members of FKF and cannot be subject to disciplinary measures by FKF as per FKF’s constitution therefore the suspension by the FKF’s NEC pursuant to Article 39 (l) (m) was null and void.

28. They noted further that only the FKF National Disciplinary Committee has power to suspend any official from misconduct and that the decision by NEC was illegal.

29. The Petitioners prayed for a number of reliefs to the effect that a declaration be issued against FKF for violation of fiduciary duty after failure to disburse funds to its members, they also sought for a declaration to be issued against the Respondent that the sanctioning of its members and chairpersons of its members is against the principle of natural justice and is based on procedural impropriety, a further sought a declaration be issued against the Respondent that the imposing of fines to the tune of Kshs.4,000,000 and Kshs.6,000,000 was arbitrary and does not meet the test of proportionality, and finally that a declaration be issued that the docking of two points and two goals was illegal and irregular.

30. The petitioners also prayed for a permanent injunction against FKF to sanctioning the chairpersons of the two clubs and a permanent injunction against proceedings conducted in FKF PL Independent Dispute and Arbitration Committee Complaint No.4 of 2021 against the petitioners.

31. The Petitioners further prayed for an order compelling FKF to remit any outstanding monthly dues owed to them, an order for general and exemplary damages, costs of the suit and any other relief.

32. The Respondent filed a replying affidavit dated 27/10/2021 deponed to by its CEO one, Barry Otieno.The Respondent also relied on its submission dated 09/11/2021.

33. The Respondent’s narrative of the events that led to this instant forum mirrors that of the Petitioners and need not be restated save to add that the Respondent claimed that the two chairmen were advised that there were no correlation between the Betway Cup Prize money and their scheduled match and that the Rules and Regulations Governing Kenyan Football were explicit on how and when a scheduled fixture may be varied.

34. The Respondent noted that the sanctions meted on the Petitioners were legal and procedural and met the dictates of the FKF Constitution in particular Articles 14(a)(1),14(1)(d),39(m) and 48. The Respondent also relied on Rules 3. 1.6 and 3. 1.8 of the Rules and Regulations Governing Kenyan Football (2019).

35. The Respondent claimed that Rule 3. 1.8 stipulates that lack of finance cannot be considered as an acceptable reason by FKF. Rule 3. 1.8 also allowed FKF to dock 3 points and 2 goals for the offending conduct by the Petitioners, this was also relied upon by the Respondent in support of its action.

36. The Respondent supported the sanctions meted out to the Petitioners as they were legal and proportional to the offences.

37. The Respondent also noted that the suspension of the two chairmen were provisional. The Respondent noted that the two would have a chance to defend themselves before the FKF AGM hence their right to fair hearing was still guaranteed. The Respondent also noted that the chairpersons were subject to the jurisdiction of NEC as per Article 39 (m) of the FKF Constitution which allowed the suspension of a person, body or member of FKF.

38. On the claim that members or some members of IDAC are conflicted, the Respondent stated that the Petitioners led no proof on this. The Respondent further noted that it was imperative for this Tribunal to give a chance in the first instance for internal mechanisms under FKF to be invoked.

39. The Respondent concluded that due to the Petitioners conduct unbecoming the sanctions meted against them are warranted and that they do not deserve the prayers sought. They prayed that the commission finds in favour of the Respondent and dismiss the claim and the prayers sought.

Determination

40. Having taken into account the parties’ pleadings and submissions, the Tribunal has framed the following questions for determination:

a) Whether the Petitioners were in breach of the FKF Constitution and FKF Rules and Regulations when they failed to honour the match fixture.

b) Whether the sanctions meted out to the Petitioners by FKF were merited.

c) Whether FKF has jurisdiction to discipline individuals or officials of its members.

41. Section 58 of the Sports Act provides:

“The Tribunal shall determine—

(a)appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including —

(i)appeals against disciplinary decisions;

(ii)appeals against not being selected for a Kenyan team or squad;

(b)other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; and

(c) appeals from decisions of the Registrar under this Act.”

42. As we indicated in our ruling of 12/10/2021 the Petition before us is an appeal from the decisions levelled against the Petitioners by the Respondent. Rule 10. 3.5 of the Respondent’s Rules and Regulations Governing Kenyan Football provide that Members have a right to appeal against any decision made by FKF.This petition meets the criteria under Section 58 of the Sports Act.

43. To the first question. We have examined the FKF Constitution and Rules and Regulations Governing Kenyan Football. Rule 3. 1.2 of the latter provides:

“Subject to 3. 1.1. above, should a team wish to change a fixture and /or kick off time, they shall be required to do so in writing within seven (7) days of the scheduled date unless for good reason which shall also be given in writing. Clubs shall be notified of fixture and /or kick off time changes, in writing at least seventy-two (72) hours prior to the match.”

44. We note that as much as the Petitioners were aggrieved and genuinely so by the Respondent’s conduct of not remitting the cash price and other entitlements, the action they took was not within the provisions of the FKF Constitution and Rules when they failed to honour the match fixture No.260 of 31/07/2021. Rule 3. 1.1 clearly spells out the path for them to follow but they opted not. The Petitioners should have pursued their claims contemporaneously as they played the scheduled match. Our answer to the first question is therefore negative.

45. On the second question. We take note of the decision in John Maritime Services Limited & Another v. Cabinet Secretary-Ministry of Transport and Infrastructure where the court delved into elements of a fair hearing. These elements are an opportunity to be heard afforded to all the parties in a dispute and the opportunity must be reasonable.

46. Article 50 of the Constitution of Kenya requires every person in a dispute to have a fair hearing that includes being informed of the charge with sufficient detail to answer it and to have adequate time and facilities to prepare a defence.

47. Article 3 of the FKF Constitution provides that it is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights.

48. Rule 3. 1.7 of the Rules and Regulations Governing Kenyan Football provides:

“A club failing to turn up for any league/competition match shall submit a written explanation to the FKF National Leagues & Competitions Committee within forty-eight (48) hours from the date of the match.”

49. The right to be heard is a central tenet of the rules of natural justice as seen from all these important provisions above. It is our observation that FKF failed to give the Petitioners an opportunity to be heard and the sanctions meted out were unmerited. No less than Rule 3. 1.7 of the FKF Rules and Regulations Governing Kenyan Football provide for this.FKF ought to have allowed the Petitioners to Respond to the charges before sanctioning them. It is therefore our considered view that the sanctions meted against the Petitioners were unjustified, illegal, irregular and null and void ab initio.

50. On the last question as to whether FKF has jurisdiction to discipline individuals or officials of its members, we have this to say.

51. Article 68 of the FKF Constitution provides that disciplinary measures are primarily for natural and legal persons. The disciplinary measures may include but not limited to a caution, a suspension or a ban. The FKF Constitution also defines an official to mean:

“means every board member, committee member, referee and assistant referee, coach, trainer, and any other person (except Players) responsible for technical, medical and administrative matters in FIFA, a Confederation, an Association, a League or a Club as well as other persons obliged to comply with the FIFA Statutes.” (Emphasis Ours)

52. Having closely scrutinized the above provisions of the FKF Constitution we are of the opinion that the Respondent has jurisdiction to discipline individuals or officials of its members which includes the chairpersons of the two football clubs under discussion here. Our answer to the third question is therefore in the affirmative.

Conclusion

53. It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:

a. The Petition dated 05/08/21 partly succeeds;

b. A declaration be and is hereby issued against the Respondent for violation of fiduciary duty after failure to disburse funds to the Petitioners;

c. A declaration be and is hereby issued that the sanctioning of Petitioners and its chairpersons by the Respondent is against the principle of natural justice and is based on procedural impropriety and is therefore null and void ab initio;

d. A declaration be and is hereby issued that the imposing of fines to the tune of Kshs. 4,000,000. 00 and Kshs. 6,000,000. 00 against the Petitioners was arbitrary and is therefore null and void ab initio;

e. A declaration be and is hereby issued that the docking of two points and two goals was illegal and irregular and is therefore null and void ab initio;

f. The Respondent is ordered to pay the Petitioners any cash prize awards and moneys due to them

g. Every party shall bear its costs of this suit.

DATED AT NAIROBI THIS 14TH DAY OF DECEMBER, 2021

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Njeri Onyango, Panel Chairperson

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Mary Kimani, Member

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Gichuru Kiplagat,Member