[2017] KESDT 8 (KLR)

REPUBLIC OF KENYA

THE JUDICIARY

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

CAUSE NO. 1 OF 2017

ELLY KALEKWA..................................................................1ST CLAIMANT

JIMMY CARTER AMBAJO................................................2ND CLAIMANT

EMMANUEL KIYOYI.........................................................3RD CLAIMANT

(ALL SUING AS REGISTERED OFFICIALS OF

SOFAPAKA FOOTBALL CLUB)

KENYA PREMIER LEAGUE LIMITED..........................4TH CLAIMANT

-versus-

NICK MWENDWA..........................................................1ST RESPONDENT

PETRA DORIS................................................................2ND RESPONDENT

ROBERT MUTHOMI....................................................3RD RESPONDENT

(ALL SUED AS OFFICIALS OF FOOTBALL KENYA FEDERATION)

GEORGE OMONDI........................................................4TH RESPONDENT

AGIL ALIT.......................................................................5TH RESPONDENT

(BOTH SUED AS OFFICIALS OF KCB FOOTBALL CLUB)

INDIMULI KAHI............................................................6TH RESPONDENT

MIKE SENELWA............................................................7TH RESPONDENT

(BOTH SUED AS OFFICIALS OF VIHIGA

UNITED FOOTBALL CLUB )

-And-

EMMANUEL OBIERO OCHIENG....................1ST INTERESTED PARTY

SPERUS GOR OKECH........................................2ND INTERESTED PARTY

SADAT ABDALLA KHAMISI............................3RD INTERESTED PARTY

DECISION

Hearing:2nd & 8th March 2017

Panel:John M Ohaga, FCIArb - Chairman

Elynah Shiveka - Member

Peter Ochieng - Member

Appearances:Ms. Mary Bonyo instructed by Obura Mbeche & Co. Advocates for the Claimants

Ms. Patricia May Mitei instructed by Sila Munyao & Co. Advocates for the Respondents;

Mr. Jimmy Simiyu instructed by Wafula Simiyu & Company, Advocates for the Interested Parties.

1. 0 Background

1. 1 Those who have no real understanding of the governance issues that continue to bedevil the sport of football might construe this dispute simply as a sequel to the ongoing contest for control of the running and management of football between the Kenya Premier League Limited (‘KPL’) and the Football Kenya Federation (‘FKF’) and as following from the last episode when the Tribunal finally settled the question of the number of teams that should participate in the Kenya Premier League for the 2017 season. However, there is a graver issue at play which is the manner in which the recently introduced Club Licensing Regulations are to be implemented and cemented as part of the structure and culture of the football environment in Kenya. The dispute is symptomatic of the hazards inherent in the introduction of change to any situation and the landmines buried in the terrain waiting to explode in the face of any agents of change, however good or bona fide the intentions might be.

2. 0 What is Club Licensing Regulations?

2. 1 Club Licensing Regulations (CLR) dates back to 2007 when its principles were accepted at the 57th FIFA Congress. It was then adopted by the FIFA Executive Committee on 29th October, 2007 and came into force on 1st January, 2008. In its Circular to Members, FIFA described the CLR as:

“the basic working document for the club licensing system, through which the different members of the football family aim to promote common principles in the world of football such as sporting values, transparency in the finances, ownership and control of clubs and the credibility and integrity of club competitions.”

2. 2 This presupposes that there are minimum requirements which football clubs have to meet in order to be licensed to participate in competitions and national and international levels. The basic working document (known as FIFA Club Licensing Regulations) has been produced by FIFA and Confederations such as CAF were then required to create their own club licensing regulations, while Member Associations such as FKF were in turn required to adopt their own CLR for implementation at the national level. Hence, the FIFA CLR is transformed into CAF CLR, while the National Football Federation adopts its own CLR, all the way maintaining the minimum standards set out in the FIFA CLR. It is worthy of note that at the national level, the Member Association is allowed to delegate its club licensing responsibilities to an affiliated league. For instance, the NFF may delegate its club licensing responsibility to the League Management Company (LMC).

2. 3 The minimum requirements are the basic criteria which must be met by clubs in order to be eligible to participate in continental or national competitions as the case may be. These requirements or criteria are divided into five categories as follows: sporting criteria, infrastructure criteria, personnel and administrative criteria, legal criteria and financial criteria.

2. 3.1 Sporting criteria: The criteria require clubs to have quality youth development programmes. This involves having at least one youth team each of age range 15-21 and 10-14, as well as investing in their football and non-football education and medical care. Of benefit to clubs is that in addition to the youth development programme producing talents for the senior team, clubs also get compensation for players under the age of 23 trained by them who are transferred to foreign clubs.

2. 3.2 Infrastructure criteria: Under the criteria clubs are expected to have a safe and well-equipped stadium, to cater for fans as well as accommodate press and the media. The infrastructure criteria include adequate training facilities for players. These are regarded as long-term investments with benefit of fans being attracted to a safe, accessible and well-equipped stadium that promises an entertaining match-day experience.

2. 3.3 Personnel and administrative criteria: Basically, a truly professional football club needs professionals or specialists in relevant technical fields such as finance, marketing, entertainment, media, law, human resources, etc. With the increased commercial viability of football clubs, the regulations envisage that they will need to be run and managed professionally, thus there is the need for the involvement of skilled specialists in direct employment and/or consultancy capacity so that clubs can compete favourably off the pitch as well as on it.

2. 3.4 Legal criteria: The legal criteria aims to protect the integrity of competition by avoiding a situation where more than one club in the same competition is owned, managed or influenced by the same entity. Other features are that clubs must have transparent ownership structure and control mechanism and must accept to be bound by competition rules, including those which prohibit cases from being taking to ordinary courts.

2. 3.5 Financial criteria: The requirement here is for clubs to adopt financial transparency and credibility measures. The maintenance and scrutiny of financial records and statements are expected to enhance the financial stability of clubs, promote credibility as well as protect creditors and stakeholders.

2. 4 An important element of the club licensing system is the grading of different items of the different criteria into categories A, B and C. Each of the five criteria is divided into various items, each of which is graded in terms of their necessity. Grades A and B are mandatory requirements, whereas Grade C represents ‘best practices’ that are desirable and may be made mandatory in future. They are distinguished as follows: ‘A’ Criteria (Mandatory) – if a club does not meet a Grade A requirement, it will not be eligible to take part in competition. ‘B’ Criteria (Mandatory) – despite also being a mandatory requirement, the difference here is that the clubs that fail to meet the requirement could still be allowed to participate in competition, albeit with some sanction imposed. For instance, under the Infrastructure Criteria the requirement for a club’s stadium facility to have sufficient toilet/sanitary facilities is listed as a Grade B requirement. Thus, where this is lacking, although the club may be allowed to participate in competition there would be some form of sanction, perhaps such as being forced to play home matches in a different stadium. ‘C’ Criteria – failure to meet such requirements does not lead to disqualification from competition or sanction. However, clubs are expected to strive towards them as they may be made mandatory in future. An instance is the Infrastructure Criteria requirement for the stadium to be equipped with numbered individual seats.

2. 5 The club licensing system operates in such a way that clubs that are to participate in a competition apply for a license, which is issued upon certification that they meet the minimum standards under the CLR. However, there is room for appeal if a club’s application for license is refused.

2. 6 This is the change which FKF seeks to introduce into the running and management of football in Kenya, albeit a decade after the CLRs were introduced and accepted by FIFA.

3. 0 The Parties

3. 1 The 1st, 2nd and 3rd Claimants are the Chairman, the Chief Executive Officer and Treasurer respectively of Sofapaka Football Club (‘’Sofapaka’’or‘the Club’’). Sofapaka describes itself as being registered under the Societies Act and accordingly brings these proceedings through its identified officials.

3. 2 The 4th Claimant is a limited liability Company duly incorporated under the Companies Act and whose shareholders are member clubs participating in the Kenyan Premier League. Pursuant to an agreement dated 25th September 2015, between the 4th Claimant and FKF, the 4th Claimant is mandated to run, organize and manage the Kenyan Premier League.

3. 3 The 1st, 2nd and 3rd Respondents are the President, Vice-President and Chief Executive Officer of the FKF. The FKF is the national sports organization responsible for the running of the game of football in Kenya.

3. 4 The 4th and 5th Respondents are the Chairman and the Chief Executive Officer respectively of KCB Football Club whilst the 6th and 7th Respondents are the Chairman and the Chief Executive Officer of Vihiga United Football Club.

3. 5 KCB and Vihiga have been joined to these proceedings as secondary Respondents because they happen to be the beneficiaries of FKF’s Licensing Committee’s decision to deny Sofapaka a license and therefore participation in the Kenyan Premier League, 2017 season.

3. 6 The Interested Parties are fans of Sofapaka (and Muhoroni Youth FC) who had previously initiated proceedings before the High Court of Kenya at Kisumu by way of Constitutional Petition No. 2 of 2017 and were joined to the present proceedings by the Tribunal’s order made on 2nd March 2017.

4. 0 The Pleadings and Preliminaries

4. 1 The cause was commenced by a Statement of Claim filed on behalf of the Claimants on 10th February 2017. Simultaneously with the filing of the Statement of Claim, was filed an application by way of Notice of Motion under certificate of urgency seeking various interim reliefs, the principal purpose of which was to preserve the Club’s position so that if its cause was successful it should be allowed to participate in the league.

4. 2 The application was placed before the Tribunal on the same day, being 10th February 2017 when it made the following orders in consultation and with the consent of counsels for the Claimants and the Respondents:

4. 2.1 The matter be and is hereby certified as urgent;

4. 2.2 Pending the hearing and determination of this cause, the status quo relating to the subject matter, being the composition of the Kenyan Premier League, be maintained in accordance with the decision of the Tribunal made on 10th and 26th January 2017 in Petition No. 41 of 2016;

4. 2.3 Pending the hearing and determination of this cause, the 4th Claimant, Kenya Premier League Limited, shall immediately issue provisional fixtures for the 2017 Kenyan Premier League but shall exclude therefrom the following teams, that is to say Sofapaka Football Club, Muhoroni Youth Football Club, KCB Football Club and Vihiga United Football Club;

4. 2.4 The decision purporting to suspend the commencement of the 2017 Kenyan Premier League, by whomsoever and howsoever made, be and is hereby nullified;

4. 2.5 The 4th Claimant, being the Kenya Premier League Limited, and the 1st, 2nd and 3rd Respondents being Football Kenya Federation, shall work in co-operation to ensure that the 2017 season of the Kenyan Premier League shall kick-off as soon as practicable and in any event not later than Saturday 25th February 2017;

4. 2.6 These orders shall apply to Cause No. 2 of 2017 in relation to the action by Muhoroni Youth Football Club;

4. 3 The Respondents elected to respond by filing the replying affidavits of Professor Edwin Wamukoya and Nick Mwendwa on 21st February 2017;

4. 4 The pleadings were effectively closed when the Claimants filed the further affidavit of Jimmy Carter Ambajo on 2nd March 2017

4. 5 Despite the Tribunal’s directions recited above which sought to allow the Kenya Premier League to proceed whilst this dispute was being resolved, 3 fans thought fit to file a petition at the High Court in Kisumu against the Kenya Premier League Limited, Football Kenya Federation and the Tribunal founding their cause of action on their alleged emotional and financial investment in their Clubs’ participation in the 2017 Kenyan Premier League.

4. 6 The High Court in its wisdom issued an ex-parte order on 15th February 2017 which had the effect of restraining the Kenyan Premier League from publishing fixtures in accordance with the Tribunal’s decision of 10th February 2017 and even though these orders of the High Court were vacated on 23rd February, their effect was to derail the publication of fixtures which would have seen the league commence on 25th February 2017 in accordance with the directions of the Tribunal.

4. 7 Fortunately, good sense has prevailed and the fans have applied to join this cause as interested parties which application the Tribunal readily admitted. The result is that the impediment to the commencement of the Kenyan Premier League has been removed and the league has finally kicked off last Saturday 11th March 2017 with some startling and exciting results.

4. 8 The framework and mechanism by which the Tribunal seeks to resolve disputes within the sporting arena is captured by the manner in which the Tribunal has approached this matter, which is to allow the fullest participation by all interested parties in the resolution of a dispute without allowing the dispute to infect and stall sporting activity on the playing field.

5. 0 The Hearing

5. 1 The hearing before the Tribunal commenced on 2nd March 2017 at 4:00pm and run until 8:00pm when the matter was adjourned; the hearing then resumed on 8th March 2017 and was concluded at around 6:45pm.

6. 0 The Claimants’ Case

6. 1 The Claimants’ case is as set out in the supporting affidavit of Jimmy Carter Ambajo sworn on 9th February 2017 and filed on 10th February 2017 and the further affidavit of the same deponent sworn on 2nd March 2017 and filed on the same day.

6. 2 The Claimant’s case is briefly that following the introduction of the Club Licensing Rules (‘CLRs’), all teams participating in the Kenyan Premier League (the Premier League) and the National Super League (NSL) were required to submit applications for licensing. That Sofapaka duly made an application which was submitted ahead of the deadline fixed by FKF being 16th December 2016. That on 19th December 2016, the Chief Executive of the FKF wrote to various clubs inviting them to receive their scores on the following day, 20th December 2016. However, on 20th December, when Sofapaka attended the meeting, FKF demanded further documentation which could not be produced immediately with the consequence that the deadline was extended to 23rd December 2016. On the same day 20th December, the Club was served with a letter listing about 17 requirements which had to be fulfilled and which the Club claims it duly fulfilled. The Club did not receive any further communication until 9th January 2017 when it received a letter advising it that its application for a license had been denied.

6. 3 The Club says that the basis for such denial was purely financial and the Club therefore lodged an appeal with the FKF Appeals Committee. The Appeals Committee ruled that the Club should be allowed to re-submit its application which the Club duly did. The Club complains that in the meantime it learnt through the sports pages of one of the daily newspapers of 10th January 2017 that FKF had promoted Nakumatt FC and Zoo United from the NSL to the KPL even before the lapse of the 14-day appeal period provided in the regulation.

6. 4 Subsequently on 2nd February 2017, the President of FKF announced through the media that the Club Licensing Committee had denied the Club a license and it had been relegated to the NSL. It is the Club’s case that this announcement was made before any formal communication was made to it.

6. 5 The Club argues that the decision to deny it a license was based primarily on the Club Licensing Committee’s assessment of its financial position including allegations of non-payment of players’ dues which was based on allegations from unnamed players and which allegation the Club was not given an opportunity to respond to. The Club therefore contends that it has been condemned without being heard, that it has been discriminated against and that the decision to deny it a license was taken on the basis of considerations other than sporting merit. The Club also argues that the Licensing Regulations do not permit FKF to issue a sanction of relegation in the circumstances.

6. 6 The decision is further challenged on the basis that it is unfair, malicious and had been made in bad faith.

7. 0 The Respondents’ Case

7. 1 Despite having filed two replying affidavits of Nick Mwendwa and Professor Edwin Wamukoya, the Respondents chose to advance their case through the oral testimony of Professor Edwin Wamukoya. The result was that Professor Wamukoya was subjected to extensive and searching cross-examination by Counsel for both the Claimant and the Interested Parties.

7. 2 Professor Wamukoya explained that he was the Chairman of the FKF Club Licensing Committee (‘the Committee’) and that the Committee had undertaken scrutiny of applications from various clubs in the KPL and NSL in preparation for the 2017 football season. The Committee had been guided by the regulations contained in the 2017 FKF Club Licensing Manual which regulations had been unanimously passed at the FKF’s AGM of 15th October 2016.

7. 3 The witness testified that the Committee had begun its activities by holding a series of seminars and meetings as early as April 2016 to sensitize clubs on the requirements under the regulations and the consequence of failure to observe these requirements. He confirmed that Sofapaka was duly represented and did attend all the seminars. He, however, complained that Sofapaka submitted its application to the Committee on the deadline date being 16th December 2016 which did not allow the Committee sufficient time to scrutinize Sofapaka’s application properly. This was in contrast with most other teams which had made their applications early and had therefore been guided in good time on rectification of any anomalies in their documentation.

7. 4 The witness testified that Sofapaka together with Western Stima, Mathare United, Sony Sugar, Nzoia United, Thika United, Muhoroni Youth and Posta Rangers did not meet the basic criteria to be awarded a license and the FKF’s National Executive Committee had taken the decision to extend the period for submission of documents to 23rd December 2016 during which period these clubs would be allowed to resubmit their documents for re-evaluation. After re-evaluation, all the other clubs save for Sofapaka, Thika United and Muhoroni Youth were determined to have fulfilled the minimum requirement to be licensed to participate in the 2017 Kenya Premier League and were therefore issued with provisional licenses.

7. 5 Subsequently, Sofapaka being aggrieved by the decision of the Committee, preferred an appeal to the FKF Appeals Committee. The Appeals Committee in a short and reasoned decision allowed Sofapaka to resubmit its application to the Committee for further re-evaluation. The witness continued to testify that in obedience to the decision of the FKF’s Appeal Committees it analyzed Sofapaka’s application again and awarded scores under Criteria B of the manual. According to the scores, Sofapaka scored 38. 5% which fell under the Red Range of scores that is below the 50% range with the consequence that Sofapaka could not be issued with either a license or a provisional license and it was therefore declared ineligible to play in the 2017 KPL season but eligible to apply for the 2017 NSL license.

7. 6 The FKF consequently informed the Confederation of African Football of this position as it was required to.

8. 0 Challenge to Jurisdiction

8. 1 Having dealt with its factual response to the complaint, FKF then raised an objection to the jurisdiction of the Tribunal on the basis that under the CLR, the decision of the Appeals Committee established under the regulations was final and that therefore the Tribunal did not have jurisdiction to entertain the present dispute.

8. 2 In a short response, Counsel for the Claimant relied on the provisions of the agreement dated 24th September 2015 between the KPL and FKF, clause 10 of which requires that any dispute or disagreement be referred to the Sports Disputes Tribunal. The basis for this argument was that the denial of a license to Sofapaka had the consequence of its being relegated and that because promotion and relegation were matters addressed under clause 1 (g) of the agreement, such dispute could be entertained by the Tribunal.

8. 3 Counsel for the Interested Parties on his part was of the view that the dispute constituted a sports dispute within the meaning of Section 58 (b) of the Sports Act (‘the Act’).

8. 4 A challenge to the jurisdiction of the Tribunal having been raised it behooves us to consider this issue before we embark on any consideration of the merits.

9. 0 Jurisdiction

9. 1 The Tribunal’s jurisdiction is statutory and is set out at Section 58 of the Act as follows:

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.

9. 2 Article 9 of the 2017 FKF Club Licensing Manual on the other hand deals with Decision-Making Bodies and identifies these bodies as being First Instance Body (FIB) and the Appeals Body (FAC) which bodies must be independent of each other.

9. 3 The FKF Appeals Committee has been designated as the Appeals Body in terms of Article 9. 2 of the Manual and it provides as follows with respect to the jurisdiction of the Appeals Body:

1) The FAC will decide on appeals submitted in writing and make a final decision on whether a license should be granted or withdrawn.

2) Appeals may only be lodged by:

(a) A license applicant who received a refusal from the FIB.

(b) A licensee whose license has been withdrawn by FIB.

(c) The FIB;

3) The FAC shall make its judgement after reviewing the decision of the FIB and examining all the evidence provided by both the License Applicant and the Licensor within a set deadline of two weeks from the date the appeal is lodged.

4) Members of the decision-making body will be appointed by the FKF Executive Committee and shall:

(a) Act impartially in the discharge of their duties.

(b) Abstain if there is any doubt as to their independence from the License Applicant or if there is conflict of interest.

In this connection, the independence of a member may not be guaranteed if he or any member of his family (spouse, child, parent or sibling) is a member, shareholder, business partner, sponsor or consultant of the License Applicant.

(c) Not act simultaneously as a member in both the FIB and the FAC.

(d) Include at least one person with a legal background.

5) The quorum of the decision-making bodies is three members. In case of a tie, the Chairman has the casting vote.

9. 4 Further under Article 9. 2 (6) (g) the decision of the Appeals Committee is to be provided to the License Applicant in writing with reasoning.

9. 5 Our consideration of the pivotal issue of jurisdiction has led us to a close examination of the dispute brought before us by the Claimants in the present cause, the features of the Appeals Body under the Licensing Regulations and the decision of the Appeals Body which is said to be final.

9. 6 Starting with the cause presently before us, we note that the same has been brought as a statement of claim rather than as an appeal against the decision of the appeals body established under the Licensing regulations. In other words, whilst the Claimants may effectively be seeking to exercise a second right of appeal, they have not in fact framed their cause as an appeal against the decision of the Appeals Committee; in addition, the inclusion of the Kenyan Premier League Limited as a Claimant takes the dispute out of the direct purview of the appeals procedure under the CLR because the Kenyan Premier League Limited is not a license applicant and cannot therefore be subject to the Appeals Body.

9. 7 The cause is also framed under the provisions of Section 58(b) of the Sports Act 2013; Article 58 of the FIFA Statutes; Article 47 of the Constitution of Kenya and Article 67 of the Constitution of Football Kenya Federation. What the Claimants have sought to achieve in this deft fashion is to challenge the decision of the licensing body without in fact bringing themselves directly under the purview of the licensing manual. In other words, the challenge goes beyond the narrow provisions of the licensing regulations and is brought on a much wider platform.

9. 8 Next, we have examined the question whether the Appeals Body is independent of the First Instance Body as required by the CLR. To examine this, the Tribunal has interrogated appointment to both the First Instance Body and the Appeals Committee. In terms of Clause 9. 1 (1) of the Manual, the FKF Executive Committee shall name the FIB that would implement and enforce these regulations. In terms of clause 9. 2 of the Manual, the Appeals Body shall be the existing FKF’s Appeals Committee. We note that the FKF Appeals Committee is one of the judicial bodies of FKF established under Article 61 of the Constitution of the FKF. We therefore note without deciding that both the First Instance Body and the Appeals Body are creations of FKF which necessarily begs the question whether they are independent of each other as required by the licensing regulations.

9. 9 Indeed, CAF in its guidelines to national federations with respect to the club licensing system states as follows:

CAF Member Associations are required to ensure that the conditions for appointing the members of the 2 above-mentioned Decision-Making Bodies are properly applied. When revising the documentation provided by the Federations, we found some of our Member Associations not in compliance with Articles (4. 1.d) and (4. 2.viii) of CAF Club Licensing Regulations regarding the independence of the members of both decision making bodies from any other Statutory body or Committee of the Licensor.(emphasis ours).

9. 10 The Appeals committee being a Committee of the FKF cannot therefore be the Appeals Body designated under the Appeals Body Club Licensing Regulations.

9. 11 Finally, we have given consideration to the decision of the FKF Appeals Committee following the appeal by Sofapaka against the denial of a license. The decision following the hearing on 26th January 2016 is as follows:

DECISION

1. That the Sofapaka FC have not complied with the rules and regulations provided by the football license committee.

2. However in the interest and inconclusiveness and because the league begins on 11/2/2017, the Appeal is allowed and Sofapaka allowed to re-submit the application for license on or before 31st/1/2017 decision of committee stands.

3. that the submission of documents does not guarantee the club to qualify participating in the Kenya Premier League.

9. 12 The Tribunal has examined and re-examined this decision of the Appeals Committee to determine whether it conforms with the requirements under the licensing regulations. Firstly, the Appeals Committee is required to make a final decision on whether a license should be granted or withdrawn and there is no jurisdiction to allow a License Applicant to re-submit its papers; secondly, the regulations require the decisions of the Appeals Committee to be reasoned. Unfortunately, we cannot see that the decision of 26th January 2017 was a reasoned decision by any stretch of the meaning of the word ‘’reasoning’’.

9. 13 Accordingly, we conclude that there is no effective decision of the Appeals Committee as contemplated under the CLR and we find therefore that the assertion that the decision of the Appeals Committee is final and the Tribunal lacks jurisdiction is not well founded.

9. 14 That leaves us therefore with the exercise of the Tribunal’s jurisdiction under Section 58(b) of the Sports Act. This is an original jurisdiction and is not based on a review of the decision of the Appeals Committee established under the Licensing Regulations.

9. 15 In Dennis Kadito vs. Sofapaka FC, the Tribunal set out the basis of the activation of its jurisdiction under Section 58(b) of Sports Act as follows:

However, a reading of Section 58(b) demonstrates that it is not sufficient that the matter before the Tribunal should be a ‘sports-related dispute’; the parties to the dispute must also agree to refer the matter to the Tribunal and the Tribunal must agree to hear the matter. It is clear that there is therefore a three (3) stage process for establishing the jurisdiction of the Tribunal under Section 58(b). Each limb of the three (3) stage process must be satisfied and each stage depends on a positive answer to the prior stage.

In this case, the Tribunal acknowledges that the dispute is sports related; the next question is therefore whether the parties have agreed to refer the matter to the Tribunal. Only if the answer to this is in the affirmative will the Tribunal consider the question whether it agrees to hear the dispute.

9. 16 In the present case, the challenge to the Tribunal’s jurisdiction has been taken after both parties had put forward their respective factual and legal arguments on the merits of their respective positions and the Tribunal had sat through two (2) days of hearings. The Respondents, by participating fully in these proceedings must be seen as having agreed to refer the matter to the Tribunal; and having sat through these lengthy hearings, the Tribunal has obviously agreed to hear the dispute so that the jurisdictional challenge, coming as it does with the Respondents’ last breath, cannot derogate from the election made by the Respondents to accede to the matter being heard by the Tribunal.

9. 17 Whilst we acknowledge that the agreement dated 28th September 2015 between FKF and the KPL provides for all disputes to come before the Tribunal, we are hesitant to found our jurisdiction on the basis of this agreement for the simple reason that the 1st, 2nd and 3rd Claimants are not parties to that agreement and cannot take the benefit of it. The proposition that Sofapaka is a shareholder in the KPL is not sufficient to give the Club a footing in the agreement on basis of the well-known principle as set out in Salomon v Salomon & Co Ltd [1895-1899] All ER 33.

9. 18 Premised on the foregoing the Tribunal finds that it is clothed with the requisite jurisdiction under Section 58(b) to hear and determine this dispute.

10. 0 The FKF Club Licensing Manual

10. 1 The FKF Club Licensing Manual for 2017 is derived from the Confederation Africaine De Football (CAF) Manual which is in turn derived from the FIFA Club Licensing Regulations. In order to therefore appreciate the framework of the FKF Manual, it is material and relevant to start at the apex which is the FIFA Club Licensing Regulations.

10. 2 These regulations where relevant provides as follows:

Introduction

The confederations and member associations are invited to:

a) read and understand the FIFA regulations;

b) decide whether the club licensing system applies to the national context (which divisions or clubs and which criteria);

c) take into account national law, statutes and regulations;

d) adapt their own structure and relevant organisation according to the minimum requirements regarding the core process and further procedures;

e) consider increasing the minimum criteria set in this document and upgrading or adding other criteria according to the speci?c needs and the existing quality of confederations and domestic competitions;

f) set up a working plan for the implementation of the FIFA regulations at confederation and national level. The national regulations must be accredited by the relevant confederation

10. 3 In the Tribunal’s understanding, therefore, FIFA recognized amongst other things that the club licensing regulation adopted by different national federation would have to conform and comply with among other things, national laws and statutes. In view of the potential ramifications of the failure to obtain a license under the club licensing regulations, the Tribunal considers that Article 47 of the Constitution of Kenya 2010 which deals with fair administration action becomes material. As required under Article 47, Parliament has enacted the Fair Administrative Action Act No. 4 of 2015. In terms of Section 3 of the Act and Section 4 (1), the Act provides as follows:

3(1)This Act applies to all state and non-state agencies, including any person-

(a) Exercising administrative authority;

(b) Performing a judicial or quasi-judicial function under the Constitution or any written law; or

(c) Whose action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates.

4(1) Every person has a right to administrative action which is expeditious,efficient, lawful, reasonable and procedurally fair.

10. 4 The Tribunal is satisfied that the nature of the decision made by the Club Licensing Committee is such as would subject that decision to scrutiny in terms of the Fair Administrative Action Act and the Tribunal will be giving consideration to this in the course of rendering its judgement.

10. 5 However, as a starting point the Tribunal has given anxious consideration to the legal validity of the Club Licensing Regulation as enacted by FKF and notes that under Article 20, the Federation makes a declaration that:

These rules come into force upon being signed as provided below and unless amended, these regulations shall remain in force in the seasons beyond 2017.

10. 6 The declaration is then signed by Mr. Nick Mwendwa as FKF President and Mr. Robert Muthomi as FKF CEO. What is material, however, is that the date appearing as the date on which the rules come into force is 1st August 2016. The difficulty that immediately becomes apparent is that the Respondents have testified and Professor Edwin Wamukoya confirmed in the course of his testimony that these rules were put before the FKF General Assemby and approved at the AGM on 15th October 2016. This therefore begs the question of the validity of these regulations in view of the date on which the President and the CEO signed them and the date when the FKF General Assembly in fact approved the regulations. It is the Tribunal’s view that the effective date could only be 15th October 2016 and the earlier date endorsed on the Manual would mean that the regulations were inoperative before 15th October 2016.

10. 7 Giving the FKF the benefit of doubt with respect to the effective date, and recognizing that Clubs had until 16th December 2016 to submit their respective applications, it is necessary to give consideration to the various criteria set out in the Manual and to examine the manner in which these were applied by the Licensing Committee.

10. 8 Professor Wamukoya has testified that the Club was felled by its failure to meet the financial requirements; he has also testified that with respect to the re-consideration of the club’s application following the decision of the Appeals Committee, the Licensing Committee did not subject Sofapaka to the ‘A’ Criteria requirements even though those requirements were mandatory and were required to be fulfilled by the Club before the Committee could evaluate the Club under the ‘B’ Criteria. It was Professor Wamukoya’s evidence that these was based on the Appeals Committee’s directive. With respect to the ‘B’ Criteria, the Club was required to meet certain financial requirements and it is common ground between the parties that the Club was deemed to have fallen short specifically under this requirement.

10. 9 The startling feature of the Respondents’ position, however, was that the Tribunal was not given the benefit of the Scorecard and therefore has no visibility of the manner in which the Licensing Committee conducted the scoring and arrived at the score of 38. 5% which placed the Club under the ‘red range’. Professor Wamukoya’s testimony was attacked on the basis that the Committee had taken into account allegations of non-payment of players’ dues and that the Club was not afforded an opportunity to respond to the allegations nor was the source of the allegations disclosed.

10. 10 In response, Professor Wamukoya stated that the Committee did not give any weight to the Players’ outstanding remuneration and the club was therefore not prejudiced.

10. 11 Another area was the question whether the Club had an auditor and if so the identity of such auditor. Counsel for the Claimants sought to demonstrate that the Club did in fact have an Auditor and it should not have been penalized on the basis that there was no Auditor.

10. 12 Another area was the Club’s financial base which the Licensing Committee scrutinized with a view to establishing the amount of funds available to the Club to finance its season. The Committee established that 87% of Sofapaka’s income being Kshs. 55,085,000. 00 were funded by an individual who offered no back guarantee and the monies allegedly held in the individual’s bank account were held in a foreign bank account and not in the Club’s account. It also emerged that it could not be established with any certainty in what dollar currency these funds were held.

10. 13 Whilst the Tribunal has said time and again that it is not its place to second guess the decisions of bodies established by sports organizations, the Tribunal is nonetheless enjoined to give consideration to those decisions in order to ensure that they are fair, reasonable and conform to both sporting and legal requirements.

10. 14 In the present case, as we have stated the Scorecard has not been availed to us and the decision not to exhibit this must unfortunately be held against the Respondents. We say this because at the commencement of the hearing, Counsel for the Claimants raised an objection to the fact that the document showing the scoring had not been exhibited and the response from counsel for the Respondents was that this decision was deliberate. When this matter was revisited at the conclusion of the hearing, Counsel for the Respondent offered to make available the document showing the scorecard but Counsel for the Claimants objected because in her view it was too late. In the end, the Tribunal upheld the position taken by the Claimants.

10. 15 The result therefore is that in the absence of the scorecard, the Tribunal cannot validate the assertion by Professor Wamukoya that the issue of outstanding player emoluments was not marked against Sofapaka; or for instance how many points were deducted because the Committee found that the Club did not have an Auditor when in fact the Club has demonstrated that it does have an Auditor.

10. 16 Of further concern to the Tribunal was the issue regarding the deposit of Kshs. 5,000,000. 00 which the Committee required the Club to deposit into its account and which the Club did in fact deposit. Did this requirement lead to a legitimate expectation that the Club would satisfy the financial requirements if it deposited these funds or what was the basis for requiring that such amounts be deposited?

10. 17 The thrust of the foregoing is that whilst these licensing requirements are laudable and can only improve the administration, governance and financing of football in Kenya, the manner in which bodies such as the Club Licensing Committee exercise their mandate must be transparent and open to scrutiny and the failure to exhibit the scorecard is inimical to tenets of fair administrative action.

10. 18 Of greater importance, however, was the question of sanctions that were provided for under the FKF Club Licensing Manual. Article 14 (6) of the Manual provides as follows:

If the License Applicant receives the Red Range Score. It shall not be issued with a license or a provisional license. The affected Club:

a) If it had applied for KPL License, will thereafter be sportingly eligible to apply for a Nationwide Super League (NSL) Club License.

b) If it had applied for a NSL License. will thereafter be sportingly eligible to apply for a FKF Division 1 League (FD1) Club License.

c) If it had applied for a FD1 License. Will thereafter sportingly eligible to play in a FKF Branch League.

10. 19 Premised on the foregoing provisions, the Club Licensing Committee takes the position that it did not in fact relegate Sofapaka but the Club was denied a license because of its score and could not therefore be eligible to participate in the KPL League. The fact of its relegation to the NSL or other lower league is therefore merely a consequence the application of the regulations. What is of concern to the Tribunal arising from this is the failure by the FKF, in formulating these regulations, to provide for a range of sanctions as anticipated under the FIFA Club Licensing Regulations as well as the CAF Regulations.The FIFA Club Licensing Regulations provide as follows at clause 2. 27 under the heading ‘Sanctions under the national club licensing system’’

2. 2.7. 1 To guarantee an appropriate assessment process the member association shall:

a) set up a catalogue of sanctions for the club licensing system (e.g. for non-ful?lment of B criteria). It pertains to the relevant licensing bodies to determine these sanctions against licence applicants/licensees. The catalogue of sanctions may include a caution, a ? ne and the obligation to submit evidence or ful?l certain conditions by a certain deadline, etc. If the club licensing system also applies to participation in national competitions, the catalogue of sanctions may additionally include the deduction of points, a prohibition on concluding new transfer agreements or players’ contracts, the obligation to submit guarantees, etc. Furthermore, the licensor may sanction the club before the start as well as during the season;(emphasis ours)

10. 20 CAF on the other hand, in its guidelines to national federations states as follows:

The Club licensing manual shall at least include a clear explanation of the following points:

Introduction and objectives of the Club Licensing System.

Deadlines and timelines for clubs as well as the Federation.

Duties and responsibilities of the Federation.

Duties and responsibilities of the Clubs.

The book of sanctions.

10. 21 We have scrutinized the FKF Club Licensing Manual and have been unable to identify the Book of Sanctions and we find this omission to be material both from the context of the guidelines established by CAF and the tenets of fair administrative action. It is our understanding in any event, that because of the nature of the club licensing regulations, the imposition of sanctions must be incremental as provided by the FIFA Regulations which we have set out above. Indeed, CAF in its guidelines to Clubs, provides guidelines as follows:

Decision of the First Instance Body

The First Instance Body shall vote in order to come up with a decision regarding the approval or rejections of granting the license to the Club after discussing and evaluating the File of the Club. As we mentioned before, the chairman of the First Instance Body has the Casting Vote.

The First Instance Body does not necessarily have to reject granting the license to a club because it missing one of the Licensing System Criteria but it could be given a certain amount of time to complete the missing criteria. If the Club doesn’t fulfil the missing criteria, the Federation must impose sanctions that could reach withdrawing the License…….. (emphasis added)

10. 22 The result of the foregoing is that we find the FKF Club Licensing Regulations as set out in the manual defective in certain material respects. We also find the manner in which the Club Licensing Committee undertook its responsibility to be wanting.

10. 23 We have gone into an exhaustive examination of the Club Licensing Regulations because the Tribunal recognizes the importance of their implementation in improving the game of football in Kenya. The recognition of such importance imposes a heavy responsibility on the FKF to implement these regulations properly and with appropriate respect for the legal and sporting rights of Clubs which are subject to the regulations, always upholding the principle set out in the FIFA Statute to the effect that:

A club’s entitlement to take part in a domestic league championship shall depend principally on sporting merit

10. 24 And where considerations other than sporting merit come into play and result in the relegation of a Club the process by which that decision has been reached must be one that can stand up to scrutiny both in respect of substance and form.

11. 0 Conclusion

11. 1 Having stated the foregoing, two avenues become available for resolving the complaint brought before the Tribunal by Sofapaka. 11. 2 The first is to require the Club to submit itself to the Club Licensing Regulations and for the Club Licensing Committee to undertake a proper scrutiny applying the identified criteria in accordance with the Manual. We note, however, that this would effectively be the fourth time that the Club would be required to subject itself to the licensing process. We have in any event found that the manual is defective in material respects which must be rectified before it could properly be used as the basis for undertaking the licensing process. We have also reached the conclusion that the Appeals Body established under the FKF Club Licensing Regulation is inoperative. This first route is therefore unattractive because it has the potential to impair the Club’s legal and sporting rights.

11. 3 The second avenue is to have consideration to the Club’s qualification to participate in the KPL Premier League on the basis of sporting merit. The Club has told the Tribunal that it was ranked at position 14 in the 2016 season. The Club has also participated in the KPL Premier League for a considerable period of time and has attracted a significant following in terms of its fan base whose aspirations and expectations we must also have regard to. Indeed, the potential frustration of such expectations led these fans to institute a constitutional petition in the High Court at Kisumu as already recognized in this decision.

11. 4 In the result, we have reached the conclusion that the justice of the case requires that we sustain Sofapaka’s continuing participation in the Kenyan Premier League and we accordingly order that Sofapaka Football Club be reinstated to the Sportspesa Premier League/Kenya Premier League for the 2017 Season. The effect of this decision is to nullify the decision of the Football Kenya Federation to promote Vihiga United FC and the KCB FC from the NSL to the Kenya Premier League for the 2017 season.

11. 5 We decline to issue the permanent injunctions sought by the Claimants in the statement of claim for the simple reason that Football Kenya Federation remains at liberty to require Sofapaka to subject itself to the FKF Club Licensing Manual once FKF has rectified the anomalies identified in the Manual.11. 6 Because of the public interest involved in this case and the fact that our decision has ramifications beyond the interest of the parties to this dispute we direct that each party should bear its own cost.

11. 6 The Tribunal wishes to commend Counsels for their very helpful submissions and the cordial manner in which they conducted themselves.

Dated at Nairobi this 5th day of March2017

Signed:

John M Ohaga FCIArb

Chairman, Sports Disputes Tribunal

Delivered in the presence of:

Member

Member