[2024] KESDT 1286 (KLR)

Ouma & 3 others v Kenya Professional Esports Federation & another (Tribunal Case E019 of 2023) [2024] KESDT 1286 (KLR) (10 September 2024) (Decision)

Neutral citation: [2024] KESDT 1286 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E019 of 2023

E.Sifuna-Shiveka, Chair, Gabriel Ouko & A.M Owinyi, Members

September 10, 2024

Between

Alex Otieno Ouma

1st Claimant

Eric Wambugu Maina

2nd Claimant

Lawrence Kipkoech Bett

3rd Claimant

Oduor Kevin Akumu

4th Claimant

and

Kenya Professional Esports Federation

1st Respondent

Nick Kibe

2nd Respondent

Decision

Hearing: Proceeded via written submissions.Panel:1. Elynah Sifuna – Panel Chairperson2. Gabriel Ouko – Member3. Allan Mola - MemberAppearancesThe firm of Munene & Munene Advocates appeared for the ClaimantsMs. Stacey Bonareri for the 1st and 2nd Respondents The Parties 1. The Claimants are individuals who were actively engaged in the qualifying rounds for the International Esports Federation National qualifiers.

2. The 1st Respondent is a professional esports body established in Kenya to promote, coordinate, partner and build a professional esports framework as a means of achieving sustainability of the Kenyan esports sector.

3. The 2nd Respondent is a representative of the 1st Respondent herein and fully conversant with the matters in this suit and duly authorized by the 1st Respondent to appear as such.

Background 4. The matter was brought before the Honourable Tribunal by an application dated 31st May 2024 for Orders:i.That the Application be certified as urgent and be heard ex parte in the first instance;ii.That this Honourable Tribunal issue an Order nullifying the International Esports Federation Kenyan Qualifiers which took place on May 4th 2024;iii.That this Honourable Tribunal issue an injunction to halt the International Esports Federation African Qualifiers event scheduled for June 10th 2024;iv.That Pending the inter partes hearing of this Application, this Honourable Tribunal hereby orders a suspension of the submission of the selected names of players from the National Qualifiers to the African Qualifiers;v.That this Honourable Tribunal issue any additional orders deemed necessary to serve the interests of justice;vi.That the Respondent be ordered to pay costs of this Application and the suit.

5. Upon reading the Certificate of Urgency together with the Notice of Motion dated 31st May 2024 and presented to the Tribunal on 4th June 2024 by Counsel for the Claimants, the Tribunal ordered;i.The suspension of the submission of the selected names of players from the National Qualifiers to the African Qualifiers pending the hearing of this application;ii.A temporary injunction halting the International Esports Federation African Qualifiers event scheduled for June 10th 2024 pending the hearing of this application;iii.The application be served upon the Respondents immediately and in any event on or before 7th June 2024;iv.The matter be listed for mention for directions on Tuesday 11th June 2024 at 2. 30pm via Microsoft Teams;

6. On 11th June 2024, Mr. Mokire for the Claimants, informed the Panel that the matter was coming up for directions on the Application filed on 4th of June 2024 and served the Respondents on 7th of June 2024. Ms. Bonareri confirmed service and requested for ten (10) days to file a response.

7. On 25th June 2024, the matter came up for further directions.Ms. Bonareri informed the Tribunal she had just been served with the Respondent's Supplementary Affidavit and requested more time to peruse the same.

8. Mr. Mukire apologised for serving the Respondent with the Application late and agreed for counsel to be given more time. The Tribunal ordered the matter to be scheduled for hearing on 8th July 2024 at 2:30pm via Microsoft Teams.

9. On 31st July, the Tribunal directed that the players participating in the competition from 17th - 21st August may do so pending the determination of the case. The date of the determination was scheduled for 20th August 2024.

The Case The Claimants’ Case 10. The Claimants filed an application through a Notice of Motion accompanied by a Certificate of urgency and a supporting affidavit based on the following grounds;i.That the Respondents conducted a national competition on May 4th, 2024, which was not held in a fair manner, was riddled with inconsistencies, and contravened the Laws of Kenya.ii.That the qualifiers that were held were full of match fixing, thus rendering the same unfair.iii.That given that this activity involves income generation by players, it is equitable and just for the Applicants' rights to be protected by this Honourable Tribunal.

11. The Application was certified urgent based on the grounds that;i.On May 4th, 2024, the first Respondent organized and facilitated a national competition. However, the manner in which these competitions were conducted did not adhere to principles of fairness and were in contravention of the applicable legal statutes and regulations of the Republic of Kenya.ii.The Applicants hereby pray for the cancellation of the International Esports Federation Kenyan Qualifiers which took place on May 4th, 2024, due to identified procedural and regulatory discrepancies associated with the 1st Respondent and planned execution of these qualifiers.iii.These qualifiers, which were organized by the 1st Respondent, were intended for the selection of the national team representing Kenya in the International Esports Federation African Qualifiers which are scheduled for 10th June 2024. The Kenyan qualifiers and the subsequent African Qualifiers include monetary prizes provided by the International Esport Federation.

12. The 1st Claimant in his Supporting Affidavit stated that;The Claimants participated in the International Esports Federation National Qualifiers and on May 4th, 2024, the Kenya Professional Esports Federation (1st Respondent) organized the qualifiers.

13. These qualifiers were marred by irregularities such as match-fixing, preferential treatment, coercion, and discrimination as the 2nd Respondent held multiple roles during the event, including Secretary General, participant, organizer, and referee, violating principles of fair play.

14. The 2nd Respondent manipulated outcomes, gave walkovers, and favored certain participants, as evidenced by the challenge platform's records. Additionally, short notice and high registration fees discouraged participation, while fee waivers were secretly granted to select players. Security was also used to limit spectator access.

15. In the PUBG category, on April 24th -25th 2024, NS was unfairly declared the winner, prejudicing other teams. The 1st Respondent did not provide guidelines or dispute resolution mechanisms, consolidating decision-making with the 2nd Respondent.

16. After publicly announcing registration fees, the 1st Respondent privately rescinded them, disenfranchising teams. Complaints of cheating were dismissed by the 2n Respondent, who threatened participants with expulsion.

17. On May 8th, 2024, the 1st Respondent acknowledged the cheating incident publicly. Investigations revealed the 1st Respondent is not registered with the Sports Registrar, lacking legal standing for national events. The 1st Respondent also lacked a professional sports license, violating regulatory requirements.

18. No public participation was conducted for upcoming qualifiers, leading to concerns about transparency and fairness. The 1st Respondent's lack of a constitution prevented it from legally organizing significant events.

19. The absence of organizational structure hindered the protection of innocent members in disputes.

20. The 1st Respondent's failure to disclose key details of the competition exacerbates transparency and accountability issues.

21. The Honourable Tribunal should take action against the 1st Respondent for operating unlawfully without public participation, contrary to Section 46 of the Sports Act and that the 1st Respondent’s actions constitute an abuse of Kenyan laws, misleading international bodies into recognizing it as the legitimate governing body for Esports in Kenya.

The Respondent’s Submissions/Response The Respondents submitted that; 22. In response to the instant application, the 1st and 2nd Respondents filed Grounds of Opposition and a Replying Affidavit sworn by the 2nd Respondent a representative of the 1st Respondent on 21st June 2024 in opposition to the Application dated 31st May 2024.

23. The Issues for determination were;a.Whether the Claimants have locus standi to file the present Application.b.Whether there were any irregularities during the National Qualifiers that compromised the fairness of the competitions.c.Whether the Claimants sufficiently made use of the dispute resolution mechanisms available to them.d.Whether the 1st and 2nd Respondents violated the orders granted by the Honourable Tribunal in this instant Application

24. On Whether the Claimants have the locus standi to file the present application, the Respondents averred that the Claimants lacked the legal standing (locus standi) to file the current application challenging the national qualifiers. The Claimants, through Alex Otieno Ouma, alleged participation in these qualifiers. However, the Claimants had not registered for the disputed titles and had previously been assured by the Tribunal in a related case (SDTSC EO12 OF 2024) that they could participate. The Respondent provided evidence showing the Claimants did not participate, thus lacking the right to challenge the qualifiers or claim prejudice.

25. They placed reliance on the case of Law Society of Kenya...v..Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000, where the Court held that: - "Locus Standi signifies a right to be heard. A person must have sufficiency of interest to sustain his standing to sue in Court of Law".

26. Further in the case of Alfred Njau and Others...v..City Council of Nairobi (1982) KAR 229, the Court also held that "the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings."

27. On whether there were any irregularities during the National qualifiers that compromised the Fairness of the competitions, the Respondents contended that the 1st Respondent's primary goal is to ensure fair competitions, with all participants given equal opportunities. They argued that the rules were communicated to participants and upheld during the qualifiers. The Claimants' accusation of the 2nd Respondent occupying multiple roles was deemed misplaced, as the 2nd Respondent, who also serves as Secretary General, has been trained by the International Esports Federation (IESF) as a referee. The Respondents emphasised that in esports, the roles of a tournament administrator and referee are considered similar, and the Claimants failed to provide evidence to the contrary.

28. They placed reliance on the IESF Regional Qualifiers 2024 Regulations, Regulation 1. 1 which partly states as follows: "All rules in these Competition Regulations may be changed without prior notice if tournament circumstances require it. All referee decisions are final unless a protest is explicitly allowed. Referees may also adjudicate any cases not specifically covered in this rulebook, and their authority extends to the entire tournament. Any rule changes will take effect immediately upon communication to the participants."

29. The claimants have further alleged that the competition was full of match fixing, limitation of participants in the efootball category to 8, charging of a registration fee and collusion with security guards to bar participants from accessing the venue of the tournament. In response to the allegations, the legal burden of proof is clearly stated in Section l07 of the Evidence Act, Chapter 80 Laws of Kenya, which states that; 1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

30. The Claimant's assertion that the 2nd Respondent engaged in match manipulation using the pseudonym "MajiMoto" is baseless. The use of a gamer tag alone does not conclusively link it to the 2nd Respondent, as these tags are common identifiers used by gamers online, and anyone could have used that tag during the tournament. Additionally, none of the participants in the eFootball category raised any concerns about irregularities, making the Claimants' allegations, especially given their non-participation in the event, both unfair and unfounded.

31. The Claimants' allegation that the number of football participants was limited to 8 is untrue. The Respondents rely on the World Esports Championships 24 Competition Guidelines which provide the criteria for national selections.

32. There was sufficient notice from the first announcement made on 16th April 2024 to the official dates for the efootball tournament announced on 30th April 2024. The tournament had 8 participants. This met the minimum requirements of the national selection process as efootball is a single game title whose threshold for participation was 8 players.

33. The Claimants' allegations that the tournament was held in secrecy are incorrect. The announcement on April 30, 2024, clearly included the venue, registration fees, and event details, with a registration link stating a 10:30 AM kickoff time. Additionally, the eFootball tournament ran from morning to afternoon, and the Tekken event took place from 6 PM to 6 AM, all of which were clearly outlined in the announcement poster. Therefore, the Claimants' assertion of undisclosed event details is untrue.

34. The Claimants' assertion of collusion between the 1st and 2nd Respondents and the security personnel is unfounded. The security team was fulfilling its duty to protect the premises, allowing two hours for tournament participants to enter before restricting movement from 9 PM to 6 AM for safety reasons. This was done in line with their contractual obligations and does not indicate collusion. The Claimants have not provided sufficient evidence to support their claims of collusion at Pinetree Plaza.

35. On whether the Claimants sufficiently made use of the dispute resolution mechanisms available to them, the Claimants' allegation that the 1st Respondent lacks an internal dispute resolution mechanism is inaccurate. The 1st Respondent offers multiple avenues for raising disputes, including contacting officials during competitions or using provided channels such as email or social media. Complaints are investigated, and actions may include cancelling the tournament or awarding a new winner. Additionally, the International Esports Federation Competition Regulations give referees the final decision-making authority in tournaments.

36. That the nature of the issue raised by the PUBG participants regarding the winners Star 4orce did not result from a violation of the competition rules and instead it is regarding the nationality of one of the teammates of Star 4orce. In line with regulation 1. 1 of the IESF Regional Qualifiers 2024 Competition Guidelines, "A referee may adjudicate any cases not specifically covered in this rulebook and their authority extends to the entire tournament." Further Regulation 1. 2 partly states that: -"the competitive roster of each participating party must consist solely of citizens of the nation they represent."

37. The winning PUBG team included non-Kenyan nationals, and upon inquiry, the team couldn't provide valid identification. The captain admitted one teammate was not Kenyan and used someone else’s ID. As the team failed to provide a substitute within the given timeframe, they were disqualified. The second-place team was then declared the winners of the PUBG competition.

38. It is worth noting that while the Claimants alleged irregularities in the efootball tournament, they have failed to raise the issue with the 1st Respondent which would have allowed for avenues to mitigate their concerns. Further, they have failed to provide sufficient evidence to demonstrate that they attempted to raise their concerns and the same was not dealt with.

39. On Whether the 1st and 2nd Respondents violated the orders granted by the Honourable Tribunal in this instant Application, the Respondents only became aware of the orders during their Tribunal appearance due to the Claimants' failure to serve them properly. The names of selected players were submitted before the application: for PUBG on May 15, 2024, at 7:41 PM, and for efootball on May 21, 2024, at 12:04 PM. These players secured spots in the offline Africa Regional Qualifiers and the World Esports Championships, scheduled for Casablanca, Morocco, in August 2024, and Riyadh, Saudi Arabia, in November 2024.

40. The World Esports Championships 2024 had specific deadlines that needed to be met for gamer participation. The names of the selected players have been sent to the Moroccan Embassy for visa processing by the International Esports Federation. On the same day the Respondents became aware of the orders, fixtures for the online Africa Regional Qualifiers 2024 were scheduled. The Claimants' allegations about players participating in the tournament are unfounded.

41. We assert that the Claimants' orders have expired, and once the Respondents were informed of them, they complied fully. Participants scheduled to compete after the Respondents' awareness of the orders have been disqualified. Only the winners of the PUBG and efootball categories, who qualified directly, are set to participate in the Offline Africa Regional Qualifiers and the World Esports Championships. Additionally, the Claimants have not provided adequate evidence to show that the 1st and 2nd Respondents violated the Tribunal's orders.

42. The instant application against the 1st and 2nd Respondent should be dismissed for the following reasons:i.The Claimants in this application did not participate in the national qualifiers and have failed to prove their participation in the national qualifiers which is the subject matter of this instant application.ii.The Claimants have failed to provide sufficient evidence that the tournament was filled with irregularities and should therefore be nullified.iii.The Claimants have not provided sufficient evidence to warrant nullifying the national qualifiers that would otherwise amount to Kenya being disqualified from participating in the offline Africa Regional Qualifiers according to Regulation 1. 4 of the Regional Qualifiers Competition Regulations. Thus, disenfranchising those that actively participated and qualified for the regional qualifiers.

Hearing 43. The matter proceeded by way of written submissions.

Discussion 44. Having taken into account the parties’ pleadings and written submissions, the Tribunal states as follows:

45. The jurisdiction of this Tribunal stems from Section 58 of the Sports Act which provides 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.”

46. Section 59 of the Sports Act states further that:“The Tribunal may, in determining disputes apply alternative dispute resolution methods for sports disputes and provide expertise and assistance regarding alternative dispute resolution to the parties to a dispute.”

47. This is a claim touching on issues of procedural compliance, deadlines for participation, and whether the Respondents adhered to the Tribunal's orders regarding player participation in esports tournaments. This is therefore a dispute falling under section 58 (c) of the Sports Act. The Tribunal therefore has jurisdiction to handle this matter.

48. We also take the view that the Claimant is properly before us and has locus standi to file this case. Section 58(c) of the Sports Act provides that the Tribunal has jurisdiction to determine appeals from the decisions of the Sports Registrar under the Act. As much as the proposed sports organization, the Kenya Professional Esports Federation is not registered this suit has been brought by the Claimants who have capacity to sue or file this appeal against the Respondents.

49. The interpretation by the Respondents and the assertion that the Claimants have no locus standi is to say the least too narrow and bereft of critical underpinnings of the law. Certainly, this was never the intention of Parliament when they promulgated the Sports Act, 2013. Indeed, Article 48 of the Constitution of Kenya provides that:“The State shall ensure access to justice for all persons...”

50. Having stated as much we are of the view that this dispute can best be addressed under Section 59 of the Sports Act. The Claimants and the Respondents have attempted to resolve this matter amicably but without any measure of success as seen from their pleadings. However, this dispute still provides a watershed moment for the parties to resolve it through mediation with the expertise and assistance of this Tribunal.

Conclusion 51. It is therefore in consideration of this, as well as the parties’ submissions that the Tribunal makes the following orders:a.The parties will proceed to mediation immediately. The file will be placed before Hon Bernard Murunga who is already handling a mediation process in STDSC/E012/2024 involving Kenya Professional E-Sport Federation. Mr. Murunga will advise the parties after review of the file on the modalities of the process within 7 days of this decision. The Tribunal may extend such timelines where it considers it necessary;b.Should the parties herein fail to agree the Tribunal shall proceed to determine the matter on merit;c.The matter shall be mentioned on 24th September 2024 virtually via a platform that will be shared with the parties ahead of time to confirm compliance and for further directions;d.Each party shall bear its own costs.

DATED AT NAIROBI THIS 10TH DAY OF SEPTEMBER 2024Elynah Sifuna - Panel ChairpersonGabriel Ouko - MemberAllan Mola - Member