The realm of sports which is cherished by many is unfortunately clouded and harbored by an environment where the young and vulnerable athletes often face various of forms of abuse, notably sexual abuse. Studies suggest that a substantial percentage, ranging from 2% to 20% endure sexual harassment or abuse within the sporting context.[1]

There are numerous factors that are intrinsic to sports that contribute to the vulnerability of these groups. These include elements such as the presence of authoritarian structures, close interpersonal relationships between coaches and athletes, evident power differentials, and the perpetuation of secrecy.[2]

Concerns surrounding sexual abuse prevail, raising significant challenges for safeguarding the well-being of athletes. Acknowledging and understanding the risk factors is inherent and paramount to devising effective preventive strategies and protective measures, checks and balances.

Briefly outlined are key risk factors contributing to the vulnerability of athletes to sexual abuse, including normative and constitutive risks, contextual factors, and the profound consequences of such abuse. The obstacles encountered in implementing preventive measures and managing cases of sexual abuse within sporting organizations.

By comprehensively examining these issues, stakeholders can work towards fostering safer sporting environments and prioritizing the protection of athletes from harm.

a)     Normative risk factors comprise of autocratic authority systems, intimate relationships between coaches and athletes, conspicuous power imbalances, and the maintenance of secrecy.

b)    Constitutive risks involve hierarchical status systems, performance-driven rewards, which may be contingent upon compliance with authority, and systems lacking formal procedures for staff screening, hiring, and oversight.

c)     Locations such as international or international competitions and scenarios like massages administered by coaches, medical procedures and check-ups by team doctors and physicians and /or other authoritative figures, as well as instances of seclusion, heighten the risk.

Other common barriers that contribute in preventing individuals from disclosing instances of abuse, include shame, guilt, fear of not being believed. Building a support system and creating safe spaces where individuals feel comfortable disclosing their experiences without fear judgement or disbelief is crucial in addressing this issue and providing survivors with the help and support they need.[3]

What happens when authority figures fail to respond appropriately to disclosures of sexual abuse. When institutions create environments where predators can flourish unafraid and unabated. When these figures refuse to listen, put friendships in front of the truth, fail to create or enforce proper policy and fail to hold enablers accountable.[4]

Sexual abuse within sports organizations is a pressing issue, that stems from institutional cultures that ignore, deny, or tacitly accept abusive behaviors. [5] It involves sexualized verbal, non-verbal or physical behavior, whether intended or unintended and often involves the process of grooming.[6] Such conduct takes place over a long period of time where the abusers often find ways to make themselves seem trustworthy and authoritative, putting them in positions of control.[7]

Institutions ought to urgently address such a pervasive issue through proactive measures. Perpetrators, often managers, fellow players or coaches, exploit their positions to prey on vulnerable athletes, while organizations turn a blind eye prioritizing their own reputations and image over the safety of the athletes.[8] Clear reporting procedures such as the British Football Association’s ‘Tell Us, We’ll Tackle It’ campaign, is an succinct example of a sporting organization that emphasizes its commitments to the athletes by encouraging reporting of sexual abuse incidents. [9]

Joanna Maranhao, a Brazilian Olympic Swimmer is but one example of long-term sexual abuse that went unreported, where she was abused from the age of nine years old severely and systematically by her swimming coach. [10] Her case, after having the courage to speak out changed the trajectory of Brazil’s judicial system. Previously, victims had a limited window to seek legal action. The judicial system gave victims sixteen years to initiate legal action against their abuser, but once they turned eighteen, if they had not already spoken out, they were given only six months to take legal action. Now thanks to her courage, after a victim turns eighteen, they have twenty years to take legal action against the perpetrator.[11]

Activist athletes that speak out against sexual abuse risk facing severe retaliation, including career sabotage, threats, intimidating messages and even lawsuits from their abusers.[12] Therefore, ensuring confidentiality and whistleblower protections is crucial to fostering a culture of transparency and encouraging individuals to report abuse without fear.  

While legislation exists in various jurisdictions, these protections often come into play post-hoc, that is after the victim has experienced retaliation. Only then can they seek recourse in court or legal forums. [13]  Maintaining confidentiality of the reporting persons is essential for effective reporting mechanisms. Limitations may exist as to what sports organizations can do to maintain confidentiality, however, good reporting mechanisms ought to be aware of such limitations and communicate them to the reporting bodies. Properly established reporting mechanisms only disclose details relating to the identity of the reporting person, witnesses and alleges wrong doers on a strict need-to- know basis.[14]

Sexual abuse incidents in sports are not isolated to a few individuals, they are systemic issues that demand institutional-level solutions, addressing flaws such as lack expertise in decision-making bodies, insufficient resources, intention, and willingness as well as lack of gender perspective. [15] The widespread nature of sexual abuse is evident in cases like the Larry Nassar scandal in gymnastics where hundreds of girls were abused from the year 1990. He was thereafter sentenced to 40 to 175 years’ imprisonment in 2018. [16]

Responsible sports organizations have a duty to develop and implement clear and effective remedies for all forms of abuse and violence against athletes under their care. A human rights-based, trauma-informed approach to investigations and proceedings is essential, providing support, empowerment and minimizing re-traumatization for survivors.[17] Involving victims in the development of support systems can greatly enhance their effectiveness.

Initiatives such as the U.S. Center for SafeSport’s disciplinary database plays a crucial role in keeping the public informed about investigations and sanctions related to misconduct in Olympic or Paralympic movements, serving to protect the broader community and ensure accountability within sports organizations.  [18]

Addressing sexual abuse in sports organizations demands a collective effort from everyone involved in the sports community.  It requires a multifaceted and proactive approach that draws from successful examples and learns from past mistakes.

The repercussions of sexual abuse are grave and may include depression, psychological distress, diminished self-esteem, substance abuse, dissociative identity disorder, severe post-traumatic stress disorder (PTSD) symptoms, and even psychopathy disorders.[19]

Implementing preventive measures poses challenges due to various hinderances. Concerns often revolve around the fear that such measures may unveil pre-existing issues within the organization. Additionally, there may be a lack of leadership, competence, and resources, insufficient training and awareness-building initiatives, ambiguous boundaries or a lack of rules, and inadequacies in managing cases of sexual abuse.

By fostering a culture of dignity, respect and safety, sports organizations can create lasting change. This entails a comprehensive commitment to prevention, reporting, investigation, and cultural transformation. Only through such commitment can sports organizations truly become safe and inclusive spaces for athletes, free from sexual abuse.

BIBLIOGRAPHY

Department of Justice, ‘Investigation and Review of the Federal Bureau of Investigation’s Handling of Allegations of Sexual Abuse by Former USA Gymnastics Physician Lawrence Gerard Nassar,’ 2021

Hall Law, ‘A Comprehensive Investigation of Sexual Abuse in Youth Sports,’ 2022

Leao G, ‘An Interview with Sexual Assault Survivor and Olympic Swimmer Joanna Maranhao,’ 2018

Mountjoy M Brackenridge C et al, ‘The IOC Consensus Statement: Harassment and Abuse (Non-Accidental Violence) in Sport,’ 2016

 Ofasi K, ‘Grooming & Whistleblowing – How to Tackle Sexual Abuse in Sport,’ 2022

Play the Game, ‘Sports Organizations Are Bad at Handling Sexual Abuse, and Athletes Risk Retaliation for Speaking Out,’ 2024

The FA, ‘Kick it Out and The FA Launch Grassroots Action Plan to Tackle Discrimination,’ 2023

United Nations Office on Drugs and Crime and International Olympic Committee, ‘Reporting Mechanisms in Sport: A Practical Guide for Development and Implementation,’ 2019

In 2016, little known David Emong a 26-year-old Ugandan Paralympian was motion paper discussion in the in the Parliament of Uganda[1] wherein a motion was moved by Kioga County Member of Parliament Mr. Anthony Okello Moving parliament to pay tribute to David Emong for wining a Silver Medal the Rio 26 Paralympics in Brazil, the motion was supported and among other resolutions that were;

NOW, THEREFORE, be it resolved that:

1.    .......

2.    ……..

3.       The President’s directive to support medallists with financial support should be regularly implemented;

4.       ………

From the foregoing it can be inferred that the Government of Uganda’s commitment to support and enhance athlete welfare has been ongoing for years. The question however, regarding athlete welfare management is a challenging one. As to whether it should be addressed by the athlete himself, his/her management team, or a be approached from wholistic national perspective still remains tricky.

Many athletes who rise from the amateur (open) or national team duty to international stardom have experienced a tidal rise and fall sequence making them grapple with life in their later years of life. This is not only a Ugandan case – the Mike Tyson bankruptcy story must still be ringing a bell in the readers’ mind. At the international level, you would expect excellent management, lifelong investments, astounding financial literacy, management and advisory.

Veteran sports men have had a sad ending to their sports careers some turning into ‘hand to mouth’ survivors and alcoholics at the extreme. These include previously excelling professional football players, boxers and Olympians, Commonwealth Games and other major tournament victors in different sports categories.

The government of Uganda has over the years tried to have in place different schemes to recognize the athletes that have raised Uganda’s flag at the international arena including but not limited to having monumental iconic establishments like the controversial Akii Bua Stadium in recognition of the late John Akii Bua’s athletics Olympic Gold Medal[2] (Uganda’s first Olympics ‘Gold Medal’, but not the first Medal as largely publicized). Government has also taken a shot at constructing houses, providing vehicles and cash handouts to athletes like Joshua Cheptegei (Olympic 5000M Gold Medalist and three-time 10,000M world Athletics Champion), Dorcus Inzikuru (Helsinki, World Athletics Steeplechase Gold medalist & Commonwealth 300m steeplechase champion) among others.

In July 2021, the National Council of Sports (NSC) General Secretary, Dr. Bernard Ogwel announced that there was to be a scheme to reward athletes who excel in different disciplines under the National Council of Sports vote/budget[3] this, he emphasized was not only about money but ensuring sustainable welfare of the athletes. Consequently, guidelines for the establishment of the National Sports Persons Reward and Recognition Scheme were drafted and submitted to the Minister of Sports along with a list of athletes that have excelled in different sports overtime (past and present) for further guidance by the Minister[4]. Following the same, several medalists were rewarded for their exceptional performance by the President of Uganda on 30^th September 2022 at the 11^th National Sports Forum organized by National Council of Sports[5]

In 2023, the National Recognition and Reward Scheme was enshrined in the National Sports Act, 2023. The long title to the Act provides that the objective of the Act is to provide for the National Recognition and Reward Scheme and section 5 of the Act paraphrased provides thus:

“There is established, the National Recognition and Reward Scheme which shall be a scheme of Government to recognise and award outstanding and deserving sports personalities who bring honour to Uganda”

Under the scheme, the Minister may, by statutory instrument, prescribe the awards, including monetary payments, pension and gratuity that may be awarded to the sports personalities[6].The spirit and objective has clearly been set out – to enhance athlete’s welfare.

The Act also creates more avenues for protection and enhancement of athlete’s welfare by way of upholding their commercially viable rights including and not limited to their image rights which position has been emphasized by the recent landmark court decision on player image rights in Proline Soccer Academy Limited versus MTN Uganda Limited and Others[7] that has clearly discussed the socio-economic implication of player-image rights which can be a great source of income if properly propagated, and legally exploited by both the athletes and their respective clubs and sports federations/associations.

The establishment of the National Anti-Doping Agency[8] is another way of ensuring that athletes maintain a clean sports career pathway unfettered by doping sanctions and equally strengthened by non-abuse of prohibited substances.

Athlete’s will further enjoy benefits from commercial rights owned by their respective associations[9] this, similar to the holding in the Proline v MTN case supra, is one of the avenues that athletes can jointly benefit from, with their sports federations, it should be noted that Broadcast and media rights sponsorship ins on the rise as several media houses are increasingly picking interest in sports content.

The Act also seeks to streamline and regulate sports agency and academies[10] the different sports federations and National Council of Sports shall act as a watchdog over the sports agents, to ensure non-exploitation of athletes more so those who wish to turn professional. The Law however, unlike the FIFA Solidarity benefits[11] does not stipulate any percentage gains that would accrue to a given sportsman, agent or club but seeks to ensure that player-agent contracts are not exploitative of the athletes. Be that as it may, this will go a long way in ensuring that sportsmen achieve the best out of their brow.

To this extent, it is imperative to note that the establishment and inclusion of the National Rewards Scheme in the National Sports Act 2023 along with other provisions for protection of athlete welfare is a move in the right direction towards inspiring and nurturing more and better talent for the country.

The implementation of these provisions currently lies largely with National Counsel of Sports and the Ministry of Education and sports as also pointed out about, several athletes are already beneficiaries of the scheme the much as the impact on their well being may not easily be assessed, the law as it stands is one that upholds the long-standing question on protecting and enhancing athlete’s welfare and development in Uganda.

Sport Dispute Resolution Bodies are not often identified as human rights courts.[1] They have predominantly focused on interpreting the regulations set forth by international and national sport governing bodies (SGBs). 

The Court of Arbitration for Sport (CAS), as the international entity that settles disputes related to sport, has recently embraced an intersection between sports law jurisprudence and human rights.  As it is established in Switzerland and operates as per Swiss Law,  the Swiss Federal Tribunal (SFT) has been found to have appellate jurisdiction over CAS awards on the basis of Swiss public policy.[2] This unique legal nexus provides entry for the consideration of the European Convention on Human Rights (ECHR) in sports disputes such as doping.

The question of the applicability of the ECHR on private bodies, therefore arises. The ECHR, being an international treaty to which states are parties, is not inherently designed for direct application between private parties but rather for public decisions. Even as SGBs are portrayed as governing bodies, they are usually constituted as private associations.  Their private nature raises the fundamental question of whether their decisions can at all be subjected to a review under the ECHR.[3]

On one front, CAS awards have staunchly denied the direct or indirect applicability of the ECHR. The SFT in the Abel Xavier doping case, asserted  that the appellant was not the subject of a measure taken by the State and as such rendering the ECHR provisions, as a matter of principle, inapplicable.[4] Procedural fundamental rights protect citizens against violations of such rights by the State and not to legal relationships between private entities such as sports associations and their members. [5]

Proponents of this stance propose that CAS would need to be institutionally reformed in order for human rights to effectively scrutinize the transnational power of SGBs in CAS proceedings.[6]

In opposition, there has been growing recognition of the indirect applicability of the ECHR in CAS panels. Instances where CAS awards make explicit references to the ECHR, decisions of the European Court of Human Rights (ECtHR) are invoked and referenced in CAS jurisprudence or appellants partially succeed in challenging SGB decisions based on the ECHR, indicate a shifting landscape.[7] The CAS anti-doping division has  adhered to the view that they need to engage with the ECHR, even as they deal exclusively with private parties. [8]  Their rationale lies in adhering to Swiss public policy,  which encompasses the ECHR.

The pivotal Mutu and Pechstein decision by the ECtHR on sanctions imposed for doping unequivocally established that bodies such as CAS do not evade scrutiny by the ECtHR and are subject to the application of the ECHR.[9] This landmark decision  cemented the ECHR’s influence on the grounds of Swiss public policy, specifically affirming a  violation of the right to a fair trial as per Article 6 (1) of the Convention.

In a recent doping-related case, a disciplinary procedure was opened against a Russian athlete due to  irregularities reporting a prohibited substance found in her sample.[10]  Following a four-year suspension by CAS in 2022, the CAS panel, upon appeal, altered the starting point as the applicant directly invoked a violation of Article 13 of the ECHR, the right to an effective remedy.[11]  The article places an obligation on the States to prioritize human rights within their own legal systems, offering an additional guarantee for  individuals to ensure they effective enjoyment of their rights.[12] This was a deliberate attempt to directly invoke the provisions of the ECHR.

Moreover,  the battle against doping has been portrayed as intrinsically encroaching upon human rights, evident in the toll it takes on athletes’ privacy through whereabouts collection, the burden of proof imposed by disciplinary processes, and the invasive methods of urine and blood collection.[13] The interplay between doping and human rights materialized in the establishment of the Initial Human Rights Assessment (IHRA) by the World Anti-Doping Agency (WADA). The IHRA serves as a roadmap that guides WADA in fulfilling its human rights responsibilities as the global anti-doping agency.[14]

Whether indirectly or directly, the ECHR has progressively gained recognition by CAS panels as a relevant source for resolving disputes brought before them, thereby fostering judicial pluralism.  However, the active involvement of private actors in the implementation of the ECHR raises complex considerations. When the SFT or CAS applies the ECHR, its impact extends beyond the interests of the Swiss public. These decisions shape the lives of athletes globally, demonstrating a clear transnational dimension and effect. [15]

In conclusion, the intricate play between doping disputes and human rights, navigated within the framework of judicial pluralism, sheds light on a complex legal terrain. While CAS awards have historically resisted direct or indirect applicability of the ECHR, recent shifts indicate a growing acknowledgment of the ECHR's relevance.

As we navigate this evolving terrain, it becomes evident that the application of the ECHR by bodies like CAS extends far beyond national borders. The decisions rendered not only impact the interests of the Swiss public but also shape the transnational dimension of sports governance. In the realm of doping disputes and human rights, the evolving dynamics underscore the significance of judicial pluralism as a crucial mechanism for navigating the intricate intersections of sports law and fundamental human rights.

BIBLIOGRAPHY

1.   Abel Xavier and Everton FC v UEFA (2021)

2.   CAS Anti-Doping Division (2016) OG AD 16-011

3.   Duval A, ‘Lost in Translation? The European Convention on Human Rights at the Court of Arbitration for Sport’, The International Sports Law Journal (2022)

4.   Fédération Française de Natation (FFN) v. Ligue Européenne de Natation (LEN) (2010)

5.   Mavromati D,’European Convention of Human Rights Invoked Directly Before the Swiss Federal Tribunal in a Doping-Related Matter’ (2024)

6.   Mutu and Pechstein v. Switzerland, ECtHR (2018)

7.   WADA, ‘Human Rights and Anti-Doping Framework Proposal’ (2022)

Privacy can be understood as the control over autonomy of the individual –

‘ The right to be let alone, to decide about their accessibility to others, to withhold or conceal information, to control the information related to the individual, to preserve our personhood and to control the intimacies of personal identities, interpreted I the light of the actual context, traditions, norms and customs[1].’

Article 8 in the Convention Rights[2] to Privacy entitles “right to respect for private and family life” and provides as follows:

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the Law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the Country, for the prevention of disorder or crime, for the protection of health morals, or for the protection of the rights and freedom of others.

Everyone has the right to privacy and there shall be no interference with the exercise of this right by the public authorities except where the same is permissible by law and necessary in matters of public policy[3]. This means that this right is not absolute and can be interfered by public authorities where the same is necessary in protecting other people’s rights.

The right to privacy is by nature a qualified right and not absolute.

Article 10[4] further provides that;

The exercise of these freedoms may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others, for prevention the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Human rights belong to everyone, and instances may occur where one’s enjoyment and practice of one’s right interferes with the right of another person or the interest of the wider community.

A qualified right may need to be balanced for it to achieve a fair outcome, and it is the courts of law’s mandate to interpret and decide on this balance over personal rights[5].

The right to privacy has been recognised on a wider spectrum in the European Courts, where there was suggestion that pictures taken of an individual in a public place may engage in privacy rights, however the courts acknowledged that the public had an implied right to be informed of the private lives of personalities who contribute in public or political light[6].

It is impossible to give a proper and exhaustive legal definition on the subject of privacy protection and right.

What is Privacy?

Privacy is as old as mankind and can therefore be closely related to human dignity, personhood and individuality, however, in most cases this right is seen as not sufficiently legally protected by courts of law.

What is considered private and its qualification to be legally protected differs from the era (technological advancement), society and the individual claiming that particular right.

The right to privacy is deemed as a universal right, however, the definition and application of this right defers according to societal, economic and cultural characteristics and environment. Therefore the law must “meet the demand of society” it serves.[7]

Privacy can be understood as the limit between an individual and outside world, and this can alter and differ from individual to individual depending on the social status of that particular person[8].

‘In spite of the existing legal regulation and the appearance of the right to privacy and data protection, privacy protection meets new challenges constantly. We live in world where privacy is threatened by many ways in our everyday lives. Internet use, smartphones, social networks, drones, biometric identification…’[9]

The importance and need to maintain and develop these fundamental rights are emphasized by the European Convention on Human Rights[10] in its preamble, should be taken into consideration in order to effectively protect individuals’ privacy in the era of rapid societal development. The law has to evolve and create new rights to ensure proper and full protection of persons due to the dynamic and ever changing political, social and economic arena.

Privacy can then be defined generally as the ‘right to be let alone’ from mere emotional suffering[11], or as also put, “inviolate personality”[12], which is the protection of unwanted disclosure of private facts, thoughts and emotions, etc.

Daniel Solove explained in one of his articles, that the numerous attempts to define privacy have been either too narrow or too broad, and the main challenge poses where the authors use traditional methods of conceptualizing privacy.

He went ahead and identified six (6) elements of privacy:

a)     Right to be let alone;

b)    Limited access to self;

c)     Control of personal information;

d)    Personhood; and

e)     Intimacy.

Privacy would then essentially incorporate these elements in further defining the concept as; our concern and interest over accessibility to others; physically, what is known to others about us, subject to others attention, control of personal information, withhold/conceal information and what information is and should be known to others.

Legal Regulation of the Right to Privacy

Several international legal documents have recognised and categorized the Right to Privacy as a fundamental human right, which have been ratified and adopted by countries through national legislations for local acknowledgment and applicability.

However, these documents do not provide a detailed definition on what the Right to Privacy confers and applies to and therefore leaves the interpretations, implementations and the safeguarding of this right to the courts of law on a case to case basis.

i)               Article 12 of the Universal Declaration of Human Rights (United Nations, 1948);

ii)             Article 17 of the International Convention on Civil and Political Rights (United Nations, 1966);

iii)           Article 11 of the American Convention on Human Rights (1969)

iv)            Article 8 of the European Convention on Human Rights (Council of Europe, 1950)

v)             Article 7 of the Charter of Fundamental of the European Union (2000).

vi)            European Union General Data Protection Regulation (2016).

As mentioned earlier, this right is limited and its applicability is not absolute, it then has to focus its applicability and limitation, and the legitimate aim in its interference in the case where an individual then approaches the court of law on infringement of the right by a public authority.

Artificial Intelligence (AI)

Technology has changed the way people can access information, share personal information, use of devices, and has therefore exposed the kind of information that can be obtained about people. Despite the positive impact of AI, there is a major risk on the use of these new technological advancements in having a negative impact on human rights[13].

This era of internet, surveillance cameras, and commercial databases has made the right to privacy a luxury rather than a basic right and problematic to enforce.

Technological advancements must therefore be met by further legal and regulatory development in order to meet and help curb the negative impact that exposes individuals towards the infringement of their right to privacy and must: ensure protection of human rights, in particular, the right to privacy and encourage governments to review the adequacy of existing laws and regulations, with regards the protection of rights to privacy. Any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.[14]

The International Principles on the Application of Human Rights to Communication Surveillance further provides for the necessity and proportionate principle.[15] Where states or bodies develop or use AI in a manner that interferes with the right to privacy, that use must be subjected to the three-part test of legality, necessity, and proportionality.

Privacy is indispensable for the exercise of human rights, such as freedom of expression, freedom of association, as well as being fundamental for the exercise of personal autonomy and freedom of choice[16] as well as broader societal norms.[17]

United Nations Human Rights Council noted that AI may lead to discrimination or decisions that otherwise have the potential to affect the enjoyment of human rights, including economic, social and cultural rights[18].

Athletes’ Right to Privacy

Professional athletes arguably are exposed to higher standards of public scrutiny, of which, some may not be exceptionally reasonable hence then contravene right to privacy laws and regulations.

Courts when deciding invasion of privacy claims, are reluctant in the general applicability of the right to privacy especially when one has availed him/herself to the public eye.

Athletes’ privacy has become an oxymoron, despite attempts by these individuals to live a private life. They have been seen to be increasingly subjected to publicity through their employers, sponsors, media, managers and administrators.

This does not necessarily waiver the right to privacy to professional athletes. They may still enforce their privacy rights and successfully advance their right to privacy claims.

It is important to understand the nature an individual’s right to privacy, and the public figure status impacts the scope and depth of these rights.[19]

A professional athlete is then subjected to a higher standard of burden of proof in order to prove the extent of the offense of the personal matter exposed to the public and whether matter was of a legitimate public concern.

For a professional athlete to be able to advance their claim in invasion of privacy claims must further prove:

a)     the publication;

b)    of private facts;

c)     that are offensive;

d)    Are not of public concern.[20]

It is never discussed on how personal surveillance of athletes infringes upon their right to privacy. Aside from being individuals in the public light, the sports regulatory frameworks and sanctions that enforce and implement the ideals of sport more often than not lead to the intrusion of athletes rights to privacy, of which they have no choice but to accept and adhere to such surveillance systems and monitoring of their private and public life.

As athletes are persons who may be proper subjects of news or informative presentation, the newsworthiness and publicity privilege does not and should not extend to the commercialization of their personality via treatment distinct from dissemination of information.[21] Where sponsors managers or employers utilize private information of athletes for commercial purposes, this is found to be a clear infringement of their human right to privacy. 

Doping Tests

There seems to be an assumption or even expectations that elite sports persons are to declare and bare their lives to world to see. Every movement, drug and supplement taken to be disclosed.

Over the past recent years, the sports arena has been shaken by the invasion and widespread of drug use[22]. While standards athletics and sports in general differ, most drug tests are based on mandatory random testing.

Sports participation has been made contingent to passing administered drug tests.

A motion to set up the World Anti-Doping Agency was adopted in 1999, at the end of the first World Conference of Doping in Sports, which was attended by representatives from sports organisations and governments from all over the world.

The Adoption of the International Convention against Doping in Sport was adopted in 2005, to enable all governments to ratify and be legally bound by the non-governmental rules and regulations of WADA.

WADA then adopted the World Anti-Doping Code, which establishes the doping regulations imposed on all sports organisations and athletes.

This Convention gave the right to international and national sports federations and organisations to invade the lives of athletes, who are the subjects of this law, anytime, anywhere and without notice[23].While doping rules form part of the overall set of rules that govern sports, which affects the rights of all athletes[24].

Out-of-competition doping controls tests are mostly conducted without notice to the athletes and is deemed to be the most effective method of testing and deterrence of doping, to ensure clean sports.

This period is usually the most effective in detecting prohibited substances for performance-enhancing effect, which are only detectable over a short period of time[25].

Although this concept known as ‘whereabouts’ under the World Anti-Doping Agency rules is only applicable and enforceable on selected top athletes.

An athlete who is selected must provide a time slot between 5 am and 11 pm, an hour per day, and the location of which they are available and tested[26].

Any athlete can be subjected to random testing, not just those selected.

The urine samples are usually collected by an officer who is positioned to ensure that the urine leaves the body without any form of interference, which many consider it as a humiliating process[27].

There is no minimum age, and all athletes’ urine and blood samples are scrutinized.

Under age athletes have a chosen representative present.

Publicizing of blood sample results, with the claim that transparency is required to build trust – exposes athletes to an entire level of invasion of privacy. An athlete may legitimately not want to disclose some illnesses and medical conditions to the world.

In a bid to mitigate the privacy concerns resulting from the WADA code provisions, WADA established standards to protect privacy and personal information of athletes. [28] A minimum set of rules for Anti-Doping Organizations to adhere to whilst processing personal information including only processing relevant and proportionate personal information and in accordance with valid legal grounds. Further, Anti-Doping Organizations, have opted to establish internal legislations and policies on protection of privacy and personal information. 

A few years ago, a Belgian Cyclist, Kevin van Impe was demanded to give a urine sample while he was at his organizing his son’s funeral and was threatened with a two (2) year ban if he didn’t comply immediately[29].

Following the examination and assessment, the results (negative) borne out these tests are then turned into a public spectacle, where the public and sports world scrutinize their morals and discipline for failing to uphold the principles of clean sports.

Lawyer Brendan Schwab, Chief Executive of Australia’s Professional Footballers Association and General Secretary of Australian Athletes Alliance states that, ‘…there is no doubt that drug testing regimes are going beyond what is reasonable and effective to achieve their stated aims…governing bodies have tended to promulgate regulations that allow them to take disciplinary action, so they are seen to be tough on poor behaviour and strong guardians of their sport.

According to Schwab, ideals of sports and safeguarding the purity of it is a noble cause, but athletes are also entitled to the right to privacy as ordinary citizens, together with rights to fair trial, the presumption of innocence and natural justice.

Breach of Confidence and Freedom of Expression

The starting point for consideration for celebrities’ right to privacy protection was debated in the case of Douglas vs. Hello! Ltd[30] in trying to establish the balance between the potentially conflicting principles contained in the Convention Rights to Privacy (Article 8)[31] and the Freedom of Expression (Article 10)[32].

Article 10 expressly recognises the reputation and rights of others and obligations of confidence.

‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by pubic authority and regardless of frontiers…

The exercise of these freedoms may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others, for prevention the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Lord Woolf[33] asserts guidelines to be followed in proving breach of confidence, and that these three (3) elements must be satisfied for a case to prevail:

a)     Information having the necessary quality of confidence;

b)    Imparted in circumstances importing an obligation of confidence;

c)     Publication of information detrimental to claimant.

This seems to take a step back on Lord Sedley formulation on the law of privacy under English Law when he stated that:

“What a concept of privacy did, however, was accord recognition to the fact that the Law had to protect not only those people whose trust had been abused but those who simply found themselves subjected to an unwanted intrusion into their personal lives.”

Whereas in Dudgeon vs. United Kingdom[34], Lord Justice Keene provides that the more intimate the aspect of private life being interfered with, the more serious must be the reasons for interference.

In Bekham & Anor vs. News Group Newspapers Ltd[35] where the nanny employed by the Bekham family was required to sign confidentiality agreements as a condition of employment. However, the family lost in court in claiming breach of confidentiality whereas the nanny; Abbie Gibson was paid a newspaper to disclose private matters about the family.

Justice Eady ruled that Ms Gibson should not be barred from giving information that was already in the public domain, having already been published by the newspaper, and it leaves her free to defend her decision and uphold her freedom of expression[36].

"It is not necessarily the case that because personal information is already in the public domain that it is beyond the laws of privacy. Unfortunately, publication of the material has taken place on such a wide scale that it would be futile to try and prevent publication of these matters," said Mr. Justice Eady.”[37]

This clearly portrays that the courts, and other sports regulating bodies seem to protect the commercial interests and overlook the important human rights.

Further, the ECtHR in Axel Springer AG v Germany, where the Chamber ruled that Germany had violated the applicant’s right to freedom of expression when it published an article concerning the arrest of an actor for drug possession, set out the criteria to take into consideration when balancing freedom of expression and the right to privacy of public figures:[38]

a)      The contribution to a debate of general interest.

b)      The subject of the report and that it concerned a public figure.

c)      The prior conduct of the person concerned.

d)      The method of obtaining the information and its veracity.

e)      The content, form, and consequences of the media content; and

f)       The severity of the sanction imposed.

“No matter how intense curiosity about public figures can be, there is an important and deep principle at stake which is the right to some simple, human measure of privacy. I realize there are some who don’t share my view on that. But for me, the virtue of privacy is one that must be protected in matters that are intimate and within one’s own family. Personal sins should not require press releases and problems within a family shouldn’t have to mean public confessions.”[39]

While fame and celebrity status comes with its cons, this does not then necessarily erode the right to privacy for public officials and figures, and the moral entitlement to it.

Just because the public is curious and want to know, privacy should not be thrown out the window as respectable concept and God given right.

Does the ‘need to know’ or ‘want to know’ necessarily fit in the scope of exception provided under Article 8[40]which states that the right shall not be interfered except where ‘it is in accordance with the Law and is necessary in the democratic society in the interests of national security, public safety or the economic well-being of the Country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’?

The media should come up with ethical standards for publishing private information to meet the demand of public curiosity on the need to know basis. There is no legitimate justification to publish unsubstantiated rumours and claims.

Protection of Personal Lives

Court of Arbitration for Sports (CAS), recently ruled that “such discrimination is necessary, reasonable and proportionate means of achieving the IAAF’s aim of preventing the integrity of female athletics.”[41] according to the Post.

SGBs enjoy the right to autonomy, in that they rarely get any intrusion as to the regulations and decisions they impose upon sports persons, however, with the recent scrutiny and ruling on Caster Semenya’s case regarding her sexuality. The United Nations’ top human rights bodies have claimed the International Association of Athletics Federation (IAAF) may be in breach of “international human rights norms and standards”.[42]

The current IAAF requirements and mandates on physical, gynaecological, and radiological imaging to ascertain physical signs to prove testosterone sensitivity, such as an enlarged clitoris, is widely viewed as inappropriate and an invasion of privacy.

Especially in the disclosure of such private medical records and findings, as seen in Caster’s case.

The South African Society of Psychiatrists (SASOP), spokesperson; Dr. Anusha Lachman, stated on the recent acclaims and ruling on IAAF gender rule;

“The IAAF rule is being imposed on questionable grounds of ‘health’ and has no basis in scientific facts. Forcing athletes to medically alter naturally occurring hormones ignores the potential negative consequences on their physical and mental health, and is an invasion of their privacy and right to dignity.”[43]

Courts have also found that even public figures have the right to keep certain aspects of their lives private, publishing certain photographs and information does not always serve the public. [44]

A player may also face media scrutiny after a game where they may not have performed well. Where they get bombarded during press conferences, before or after a game or practice. By different sports networks or blogs/websites.

Fans also take to lambast them on social media such as Twitter, Facebook, Instagram, etc. and harass them through emails, letters or visits at their houses.

The damages caused due to these actions can be classified as invasion of privacy and cause emotional distress on the athlete(s).

Public & Private Duality

An increase in the distinction between whether one qualifies as a role model in the public light or as a private person in granting an injunction or order for breach of privacy and confidence.

As was the view of the Court of Appeal in the case of Naomi Campbell and Mirror Group Newspapers in 2003, where it was ruled that: ‘we do not see why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay.’[45]

In Von Hannover vs. Germany[46], the European Court of Human Rights drew a distinction between public and private persons. In which they argued that the Princess was not performing a public duty or role and the pictures were published without any justification as to the necessity of doing so.

This helps in drawing the line between life as public figure and private role in your life, say as footballer and a father or husband.

In Spelman vs. Express Newspapers where an aspiring rugby player lost an injunction for being ousted on using banned steroids. [47] The Court ruled that “a condition of participating in the high level sport is that the participant gives up control over many aspects of their private life.” this court’s decision seems to draw back the ruling of Lord Wolf in A vs. B, also known as the Flitcroft Case[48] whose ruling states that; ‘…a public figure is entitled to a private life.”

The role model arguments tend to try justifying the fact that sportsmen, especially elite athletes are seen as role models to other sports men and aspiring sports persons or the public at large. As was the case in AMC case by Mrs. Justice Laing; ‘…is a role model for sportsmen and aspiring sportsmen. Any scrutiny of his conduct away from sport ought to bear a reasonable relationship with the fact that he is a sportsman…He is not a role model for cooks, or for moral philosophers…I do not consider that being  a public figure & by itself makes the entire history of a person’s sex life public property.[49]

This then brings out the major factor of whether the otherwise private fact at issue, has any moral justification for being disclosed to the public.

Running sport has become a risk management career, whereas, we find that on many instances, there is an ambiguity as to whether athletes are always viewed as being ‘on duty’ and their conduct being under scrutiny 24/7 365 days.

There is a widespread failure to distinguish between professional and private lives and hence, commodifying athletes become a disservice to us all.[50]

The pre-requisite test has to be applied where “would the disclosure be highly offensive to a reasonable person of ordinary sensibilities?” [51]

David Flaherty seems to argue that every individual, especially sportspersons (celebrities) have to protect their personal privacy day in/day out by various developed strategies.

“You have to be your own privacy commissioner. And you have to decide, in your own life, to the extent that you can do it, where you want to draw the line between openness and candour; or, to what extent you want to control your personal privacy.”

Should then a higher standard of conduct be expected from ‘prominent public figures’?[52]

Hypocrisy

Britain’s privacy law is one of the most protective laws in the developed world. Public officials and celebrities have been granted injunctions by courts to seize the publication of sexual indiscretions amongst other issues. As was seen in the case of Ryan Giggs.

Giggs was granted an order of injunction, denying newspapers from publishing extra marital affair, and also attempted to sue the social media network, twitter, where the news had already leaked and had reached over 50,000 people at the time.

Rio Ferdinand[53] described the incident as “gross invasion of my privacy” and that there had been a misuse of private information, where he was unsuccessful in blocking a newspaper from publishing news of his affair with his interior designer.

While the newspaper argued that they had a public interest responsibility by asserting Article 10 of the ECHR on the right to freedom of expression.

Salary and Finance

Salary caps are generally accepted by players who view it as a reasonable measure for the greater good of the game and transparency. Although this presents another avenue where athletes rights have been uniquely breached and eroded.

Salaries are often wrongly reported, and footballers and other sports persons, experience critics for what they earn.

Many claim this to be unwarranted and unjustified.

Salaries and finances of public figures working at an institution forms part of the realm of ‘economic privacy’. Unless where there is personal interest in attaining such information belonging to this realm of privacy  publication of such information is seen to violate international human rights on the right to privacy.[54] This however has arguably been noted to violate right of access to information.

In some situation we find that public interest overrides the confidential nature of information of personal finances especially where athletes try or have evaded tax payments.

Protection of Athletes Privacy

Some guidance and advice can be offered to sports persons where they seek to protect their privacy from the prying eyes on the public.

When claiming and wishing to obtain an injunction or an order against the breach of privacy, the following needs to be considered:

a)    Who does the private information concern;

Courts will have to consider the issue of who does this information concern, and the affected party to be regarded.

Just because one is a sportsperson or elite athlete does not automatically guarantee them that right. However, where children or other innocent parties, who shall be detrimental to the publication of such information, the courts and regulatory bodies have to protect the vulnerable.

b)    What is the private information and what does it entail;

Issues such sexual matters, nakedness, medical, children-related, private home affairs and even confidential financial information are likely to be categorized as one’s private life as they a reasonable expectation of its privacy.

Unless it has been satisfied and legally justified that the same is of public interest, or already in the public domain and that the claimant has come with clean hands.

c)     The source of the information;

How was the information obtained?

In the case of photographs, was the claimant in a location where he reasonably expects some privacy, such as, private home, private venue or function or a secluded place?

In Douglas & Others vs. Hello! Ltd, the court stated that the pictures from the private wedding could not possibly be deemed private as the event was attended by over 250 guests.

In Von Hannover vs. Germany, the court was able to distinguish whether the pictures justified the public official being on duty or performing their role or in a private setting, where they expect privacy from the public.

d)    How was it obtained;

Photos or information obtained through harassment, hacking, or surreptitiously or where the person who obtained the information ought to have known that it is to be held in confidence.

Lord Woolf’s Guidelines on the elements to be satisfied:

·      Information having the necessary quality of confidence;

·      Imparted in circumstances importing an obligation  of confidence

·      Publication of information detrimental to claimant.

Duty of confidence would arise where the person in possession of the information knew or ought to have known that the claimant reasonably expected his privacy to be protected.

The Right to Privacy is a ‘Qualified Right’ therefore the claimant or the party that expects or wishes to be obtain an order from the court to safeguard the same, has the burden of proof.

Conclusion

“An innate right of humanity, indeed the human condition, is the right to privacy. The current free for all cannot go on.”

-       Former Prime Minister of Australia, Paul Keating

It is important to note and understand that sports regulations may potentially breach human rights through the unintentional outcomes, in categorizing, labelling and excluding athletes from participation in sports without legal and ethical considerations stemming matters considered private and personal.

Elite athletes and all sports persons in general are afforded a number of privileges and for them to expect some degree of privacy should be one of the things to be considered.

Athletes are not commodities to be owned, they are ordinary people who should not be expected to live their lives as a public spectacle, and by so expecting is taking it too far.

Justice Nariman asserts that the concept of the Right to Privacy has evolved from the mere right to let alone to the acknowledgement of a various number of other privacy interests, including but not limited to rights to data protection.[55]

Publication of information and materials, there should be a high regard to the importance of upholding the right to freedom of expression and public interest for the right to privacy to have a legitimate and justifiable reason as to its breach thereto.

“In my considered opinion, right to privacy of any individual is essentially a natural right, with the human being till he/she breathes last. It is indeed inseparable and indelible from a human being. In other words, it is born with the human being and extinguishes with the human being.

-       Justice Abhay Mandhar Sapre

Bibliography

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Cooper & Van Quatham, “EU Data Protection reforms: impact on anti-doping” (2013) 11(5) WSLR 10

European Court of Human Rights (ECtHR) in Von Hannover vs. Germany (2004) Application No. 59320/00)

McGruther et al. sporting bodies continue to fight off-field conduct, (2010), SLAP 17(1), 9.

Mcmillan & Schneider, Sports celebrity photographs and copyright law in the United States (2006), ESLJ 1(1).

Redman & Dwyer, Pstard from Australia: private lives of public people-Australia Football League v. the age Co Ltd [2006] VSC 308, SLAP 13(5).

Lukomski, “The John Terry Case – An overlap of criminal and disciplinary proceedings” (2012) 3-4 ISLJ 63

Roberts & Ors, “WADA International Standard for the Protection of Privacy Approved for Implementation in January 2009”, (2008) 15 (5) SLAP 1*

Shardlow, “Freedom of information – impact on NGBs” (2013) 20(5) 14(4) WSLR

Sithamparanathan and Himsworth, “Are Sporting Bodies Abusing Human Rights?” 11(3) SATLJ 138

Socolow & Jolly, game changing wearable devices that collect athlete data raise data raise data ownership issues, (2017) WSA 15(7).

Teach, Publicity seekers: Protecting their privacy, (2012), WSLR 3(6).

Totman & Thote, Dealing with allegations made by the media, (2010), WSLR 8(7), 8.

Payton and T. Claypoole, Privacy in the age of big data: Recognizing threats, defending your rights, and protecting your family, Rowman & Littlefield, 2014.

U.N. Human Rights Council Resolution on the Right to Privacy in the Digital Age, U.N. Doc. A/HRC/34/L.

Verroken, “WADA’s International Standard for the Protection of Privacy,” (2008) 6(7) WSLR 12

Warren, S.D., Brandeis, L.D.: The Right to Privacy. 1890 Harvard Law Review, 4(5). p.193

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Superior Court of Sports Justice or infractions committed against its members, by natural or legal persons mentioned in article 1, paragraph 1, of the Brazilian Sports Justice Code; declare its auditors to be prevented from serving.

The Disciplinary Committees are made up of 5 (five) members.

Sports Prosecutor's

 The Sports Justice Prosecutor's Office is designed to promote the liability of natural or who violate the provisions of the Brazilian Sports Justice Code, exercised by prosecutors appointed by the respective Court (Superior Court of Sports Justice or Court of Sports Justice), which is responsible for: offering a complaint, in the cases provided for by law or the Brazilian Sports Justice Code; to give na opinion in cases within the jurisdiction they are attached, in accordance with the functional attribution defined in internal regulations; formalize legal and procedural measures and accompanying them in their proceedings; requesting views of the file; file appeals in the cases provided for by law or the Brazilian Sports Justice Code or propose measures aimed at preserving the principles governing sports justice; request the opening of an investigation; carry out other attributions conferred on it by law, the Brazilian Sports Justice Code or internal regulations.

CHAPTER ONE

1. Introduction

1.1.Background

It is no secret that on the world sporting stage, the continent of Africa has more often than not, found itself on the outside looking in. Of Course, there have been flashes of brilliance from the incomparable Eliud Kichoge and the odd unforgettable moments like the Roger Milla dance at Italia 90, or the Ghana U-20 side beating Brazil to win the 2009 FIFA U-20 world cup; but that is all they are, flashes and moments. On the whole, sporting success has been sporadic and never sustained.

Let us take the example mentioned above of the Ghana national team. In 2009, the u-20 side won the world cup which was a first for an African country. At the 2010 FIFA world cup, the Ghana men’s senior side made it to the quarter final and narrowly missed out on the Semi-final in controversial circumstances against Uruguay. The future certainly looked promising. Finally, an African team able to compete with the rest of the world. What came next however tells a familiar story. The Ghana U-20 side failed to qualify for 3 of the next five U-20 world cups and The senior side did not fare any better; failing to make it out of the group stage at the 2014 world cup and missing out entirely on the 2018 FIFA world cup in Russia.

Contrast this with the situation at the German national team which also enjoyed success at youth level in 2009, when the U21 side won the UEFA U21 European championships.The Men’s senior team went on to win the 2014 FIFA world cup. This feat was made all the more impressive by the fact that five of the starting players in that world cup final in Brazil, had also started in the U21 UEFA European championship final  in 2009. How is it that Germany was able to use success at youth level to propel themselves to success at the senior level? Why was Ghana unable to do the same? How can African nations build this winning culture in football that many European and South American nations seem to have mastered?

1.2. Thesis

This paper answers the questions posed above by presenting the argument that Germany’s winning formula hinged on the strength of the country’s sports Legislation. That is to say that, wherever there has been enactment of sound laws governing sports and its development, success at national level has often followed. Invest in the law and success shall follow. This thesis seeks to provide African Football Federations with a blueprint for success, that is founded on a solid sports legislative framework; a model that has served the German Football Association well.

1.3. Structure

This paper is divided into three chapters. Chapter one, is the introduction which lays out the background to the problem and the proposed thesis. It also defines and explains what a winning culture is and its importance in the sports world. Chapter two reviews and critiques the sports Legislation  of three African countries; Rwanda, Kenya and Egypt,  while contrasting them with that of Germany, which will serve as the model country for the purpose of this study. It discusses the strategy adopted by Germany and showcases how they were able to reorganise and once again propel themselves to footballing success. Chapter Three, acknowledges other  factors that are contributing to the continued failure of African football.  Taking these factors into consideration, chapter three puts forward practical recommendations and a strategy for CAF and African national teams to follow, if they are to build a winning culture that is not only effective but also sustainable.

Finally, I hope to conclude this paper by showing the importance of having sound sports Legislation at the core of CAF’s and Africa’s plan to become a successful footballing continent.

1.4. Defining a winning culture?

“Winning culture” is a phrase that won’t be new to you. You’ve probably heard it during a passionate speech from a coach or player in the NBA while watching ESPN or you’ve heard it uttered by the CEO during your monthly company meetings. Regardless of the industry or sector, it seems that this phrase is a popular one.

The two words “winning” and “culture”, though different, have one big similarity. They are both born out of the human desire to be the best both at an individual level and as a collective. Winning is derived from the verb “to win” which is defined as being “the most successful in a competition” or “to succeed in coming first in a contest”. Culture on the other hand, has been defined differently by various scholars but the definition always seems to point to the concept of identity. For the purpose of this paper I will lean on the definition put forward by Miller M.R. (Miller, 2007) that culture is “ nothing more than collective values, ideas and experiences of a community”. She goes on to say that the more we understand a culture of a community the easier it will be to understand an individual (Miller, 2007). Culture provides some form of “predictability”. By combining both words, these coaches, players and CEOs are trying to find out what ideas and values they should rely on in order to make their success predictable. Essentially, they want their brand and identity to be synonymous with “success”. That is what a winning culture is.

So how exactly do we build this winning culture? When answering this question, the starting point is always the Mission. As Jack Welch puts it in his book, an effective mission helps a business to balance what is possible and impossible (Welch & Welch, 2005). Once you have your mission in place you’ll then be able to answer an even more important question which is “how do we intend to win?” (Welch & Welch, 2005). This is the first question that African football federations should be asking themselves in their quest to attain sustainable success and build a winning culture. Answering this question in turn resolves the issues on where to invest, who to partner with and what people to appoint as leaders of the sporting projects. More importantly, answering this question will help define the values of the African Football Federations and their respective sporting projects.

Some might believe that a winning culture is trying to succeed at all costs. The danger with that kind of thinking is that; not only is it short sighted but it is likely to lead to illegal behaviour such as corruption and fraud. There can be no winning culture if the leadership or the organisation is always willing to undermine its mission and forsake its Values at the prospect of short term gain.

If the goal for African football is long term success then the two key words to remember and live by should be “Mission” and “Values”. The mission indicates where we are going and the values describe the behaviours that will get us there (Welch & Welch, 2005). This is and should be the foundation of a Winning culture in African football and there is no better place to enshrine it than within our Sports Legislative frameworks. 

CHAPTER TWO

2. Literature review

2.1. The African Problem: Reviewing Sports Legislation across the African Continent

2.1.1. Rwanda

In January 2004, the Rwanda national team boarded a flight bound for Tunisia. They had qualified for the African cup of Nations (AFCON) for the very first time in their history. There was a genuine sense of hope and excitement for a nation that was still recovering and rebuilding itself. Unfortunately, they were not to make it to the knockout phase of the competition. This, however, did not shake the faith nor the ecstasy felt by the fans. The team returned to Rwanda to a hero's welcome awaiting them at the airport. The sentiment and perspective was a simple one, “this was only the beginning”. Sadly, this is a feat that has not since been replicated as qualification for major tournaments has continuously eluded the nation.

As part of a review into the failures of the National football team, the Ministry of Sports (MINISPORT) enacted the Rwanda Sports development policy in 2012 (MINISPORT, 2012). The mission of the policy was to pursue the attainment of a sports culture that promotes healthy living for Rwandans and ensures a winning culture for those undertaking professional sports. By doing so, the Rwanda Ministry of sports hoped that this policy would result in Rwanda being ranked in the top 10 in African football by 2020. This policy is supported by Law No.32/2017 governing organisation of Sport, Games and Leisure  (Rwanda, 2017) and the Rwanda sector strategic plan for sports and culture (MINISPORT, 2017). Additionally, the ministry of Education (MINEDUC) also enacted the Rwanda school Sports policy (MINEDUC, 2020), with the aim of improving participation of school students in sports across the country. These may be considered the primary sports Legislations in the country. So what impact has this Legislation had on the football sector in Rwanda?

We’ll focus on one of the central objectives from Rwanda Sports development policy (MINISPORT, 2012), which is the development of a framework that promotes identification of young sports talent and supports their development. The sector strategic plan (MINISPORT, 2017)  identified the absence of a link between the youth leagues and senior national team as a major contributor to the continued failures in Rwanda football.  The strategy to overcome this was, inter alia, to enter into partnerships with education institutions so as to create centres for excellence which would be used to develop talent, feed the national senior team and in turn lead to better performances. As of 2022, there are 18 talent development centres for 5 sporting disciplines including football which has all been made possible through partnerships. The PSG and visitRwanda partnership led to the creation of the PSG Academy opened in 2021. This partnership has already seen Rwanda u-13 team participate in and win the PSG academy world cup 2022. Similarly, the government of Rwanda has partnered with the Tony Football Excellence Program with the shared objective of investing in capacity building in sports, sports infrastructure and development of sports technology. 

FERWAFA, which is Rwanda's football governing body charged with overseeing and promoting the development of football in the country (Article 2, FERWAFA, Amategeko Shingiro, 2018) has also incorporated this objective of the policy (MINISPORT, 2020) into its regulations.  Article 11 of the FERWAFA club licensing rules, 2019 now provides that  investment in a youth development program shall be a prerequisite for all participating clubs to acquire a licence. Clubs are required to also have at least one qualified youth coach and a head of youth development with a CAF C licence (Article 11.1 club licensing rules, 2019). FERWAFA has also partnered with the Rwanda school sports Federation (RSSF) to promote football competitions in school, which is in line with the school sports policy (MINEDUC, 2020). This partnership has resulted in the successful hosting of the CAF school championships in 2022, which represents a positive step at an institution level. 

On the field of play, however, it appears that the Legislation is yet to lead to any tangible success especially at senior level. Rwanda’s current ranking (40th)  falls well short of the targeted “top ten” in African football. Similarly in club football, Rwandan teams have not been able to compete with the quality of foreign clubs when participating in competitions such as the CAF champions league. Based on this, there is an argument to be made that clearly sports Legislation does not impact the  footballing success of national teams. However, I believe this argument to be premature. The reality is that most of the relevant Legislation in Rwanda, has only been enacted in the last two (2) years which is certainly not enough time to conclusively determine the impact Legislation has had and will have on Rwanda football.

Success has also been hindered by the gaps in the Legislation that have been left unattended by FERWAFA and MINISPORT. As an example, Article 11.1 of the club licensing rules 2020 refers to regulations regarding football centres and academies “as provided by the ministry of sports”. However, these regulations are currently non-existent. FERWAFA should nonetheless be able to enact these regulations themselves without delegating this matter to the ministry. The prerogative is with them as the governing body of football in Rwanda. The problem, in Rwanda’s case, appears not to be the lack of Legislation, but rather the application and implementation of these laws by the relevant authorities.

2.1.2. Kenya

Kenya is a well known name in the world of sports; particularly famous for producing some of the most prolific track and field athletes in history. Sporting activities in the country are primarily governed by the Kenya Sports Act No.25 of 2013. This sports Act (Kenya, 2013) is one of the most comprehensive pieces of sports Legislation on the African Continent. The Act is unique in that it provides as much clarity as possible on how the development of sports in kenya is going to be handled. The first issue dealt with by the Act  was the creation of Sports Kenya which was tasked with overseeing the management of sports activities in the country (Kenya, 2013). One of sports Kenya’s most crucial roles is promoting coordinating and implementing grassroots sports programs in the country (Kenya, 2013). Section 3 of the Act also charges Sports Kenya with the duty to develop, manage and maintain sporting facilities as well as setting stadia standards. This has already led to the construction of Kirubia stadium which is one of the 7 stadium projects promised in the 2013-2017 jubilee manifesto. Projects such as these serve the purpose of decentralising the sport and making it more accessible to more people across the country which widens the talent pool and amplifies the talent identification process.To support these envisaged projects, Public finance management regulations (Kenya, 2018) established the sports, Arts and social development fund under regulation 3.

The standout provision of the Act (kenya, 2013), is section 55, which established the Sports Dispute Resolution Tribunal. Kenya, as a result of this provision, is one of a handful of African countries that have an independent dispute resolution tribunal for sports related matters. The importance of such tribunals cannot be overstated. Such structures provide some form of consistency and predictability which two traits are necessary in order to legitimise the sports legal order in any jurisdiction (Lindholm, 2019). In essence this predictability and consistency gives cause to the citizens, athletes and sports organisations to trust in the rules.

In football, the Sport Act is supported by the Kenya Football Federation(FKF) Rules and Regulations (FKF, 2019). The regulations provide clarity on how clubs qualify to be registered as members of the federation and how the league shall be governed. Regulation 9.6 is a stand out provision which thoroughly regulates the act of hooliganism and provides that if found guilty, the defaulting club may lose two points or be deemed to have forfeited the match depending on the circumstances. FKF regulations on media and commercial rights (FKF Rights, 2018) provide for the leagues’ right to negotiate centrally all commercial and broadcast rights on behalf of the clubs. Part VI also details what rights the clubs can exploit individually (FKF Rights, 2018). This is an important step taken by the FKF that is often forgotten by other member associations on the African continent.

There is no doubt that the Kenyan government has been very intentional and detailed in their sports Legislation and yet there are still a few key issues that have been left unattended especially in reference to football development. The FKF regulations make it a requirement for football Academies to register with the federation in order to be recognized. Appendix 1 of the regulations (FKF, 2019) provides how these academies will be classified and the requirements that will need to be fulfilled. There is no prerequisite however for these football academies to be operated by or be connected to the member clubs. The wording under regulations 6.3 and 8.1 implies that operating a youth side is optional for the clubs in the league. This setup is counterproductive to the football development goal in my view. A winning culture requires predictability and consistency and in footballing terms that means having a unified philosophy for Kenya football. There needs to be a clearly defined bridge for youth players to progress to the senior team.

The other criticism has to do with the power granted to the cabinet secretary under the sports Act ( Kenya 2013). Section 54 of the act allows the cabinet secretary to intervene and appoint a person or committee to manage the affairs of a sports organisation that has failed in its duties. The danger of having such a provision is evident from the recent ban from world football imposed upon FKF by FIFA which was a result of the government appointing a caretaker committee due to allegations of corruption within the federation. The usefulness of FIFA’s position on such matters is worth studying on its own but what is clear is that presently Kenyan football has suffered as a result of a provision within its own sports law.

2.1.3. Egypt

By February 2010, Egypt had won their third successive African cup of nations (AFCON) and become the most successful side in the tournament’s history. It seemed unimaginable that they would then go on to fail to qualify for the next three AFCON tournaments but that is exactly what happened. There is no doubting that Egyptian football was gravely affected and set back by the after effects of the Egyptian revolution of 2011. In recent years, Egyptian football has been able to make a recovery and become competitive again, making it to the final of the AFCON in two of the last three tournaments. At club level Egyptian teams have dominated the continental CAF champions league with Al Ahly holding the record for most titles won in the tournament. So what does the sports Legislative framework look like?

Egypt’s sports law no.17 of 2017 (Egypt, 2017) is the primary law governing sporting activities in the country. It covers a number of important issues ranging from structuring of sports bodies to investment in sports. Previously, sporting activities were regulated by a section in Law no.77 of 1975 governing Civil Associations (El Shentenawi et al., 2017). After 40 years, there was a need to address and modernise  Egypt’s sport law which is why the current law was passed in 2017. Under the current sports Law (Egypt, 2017) there is an implication that sports organisations such as sporting clubs are “quasi public entities' ' and entitled to various benefits as a result (El Shentenawi et al., 2017). As an example, Article 9 exempts these sports organisations from real estate taxes as well as customs charges and taxes on imported equipment needed for the practice of their activities (Egypt 2017). Such an arrangement allows sports organisations to use the retained income to invest in the development of their respective sports activities.

On the other hand where the entity incorporated for the purposes of setting up a sports club or providing other sports services is a private one then the benefits will not apply as per article 71 (Egypt, 2017). Additionally, under article 71 these companies are required to be incorporated as joint stock companies and may offer their shares for public subscription. The ministry of sports’ guidelines on the granting licences to sports services companies required the applicant companies to have issued capital of 250,000 Egyptian pounds if the licence is for one field of sports services and one million (1,000,000) Egyptian Pounds if in more than one field. The goal is to ensure that the issued capital is equal to or more than a third of project’s investment costs (Hakim, 2017) .  Both these provisions serve to improve financial stability and encourage continued investment into the Egyptian sports industry. Football Clubs have been able to amass enough revenue to open and invest in football academies outside of Egypt such as Al Ahly and Zamalek SC (Alaa, 2017).

The law also establishes a sports arbitration centre, similar to what was done in Kenya. Article 67 provides for how the centre acquires jurisdiction/competency with emphasis placed on having an arbitration clause in a contract. The disputes that may be handled by the centre are those arising from interpretation of the sports regulations and disputes arising from sporting contracts (Egypt, 2017).

There is much to like about the Egyptian sports law and I do commend the Ministry of youth and sports for promulgating and overseeing implementation of the law. However, just as in the cases of Rwanda and Kenya discussed above, there are still gaps that are hindering the progress and development of football in Egypt. Articles 63 to 65 of the law provide for the establishment of Talent discovery and development centres. The law neglects to provide any clear incentive for sports organisations to undertake to establish these talent centres and yet the onus is solely on these organisations (Egypt 2017). The law is relying on sports organisations that have no actual reason to invest in these talent development centres which undoubtedly defeats the purpose of the provision in the first place.

2.2.  Sports Legislation as a Catalyst for the Success of German Football

The German federal Sport policy is based on three principles; Autonomy of sport, subsidiarity of sport funding and cooperation with sport organisations. The successful practice and implementation of these three principles is made possible by the nature of German sports law; that is its “Dualism” (Krause & Vieweg, 2013). What this means is that, German sports organisations on one hand have the power to legislate their own sporting affairs and on the other hand, the Federal Republic along with the 16 “Bundesländers” or states both contribute to the overall regulation of sports law in Germany through various statutes (Krause & Vieweg, 2013). This dual nature of sports law aligns with the principle of autonomy of sport in as far as sports is able to regulate and govern itself to the highest extent possible. The principle of autonomy allows for a more informed and purposeful approach when it comes to enacting regulations to govern sports. The success that the German Football Association (DFB) has had through its regulations especially in relation to youth development is testament to how effective this principle of autonomy can be. The main aim of having the autonomy of sports Organisations to regulate their affairs is to ensure prompt and uniform resolution of past, present and future obstacles to the progress of Sports in the country.

When the curtain closed on the UEFA Euro 2000, Germany was reeling from another humiliating showing following their acrimonious exit at the hands of Croatia at the 1998 FIFA world cup. Lacklustre performances at back to back International tournaments was unacceptable. In the eyes of those that cared about German football, it was clear that something had to change. The solution was to change philosophy and make youth development the focal point of the DFB’s work to promote German football (Honigstein, 2015). From this point onward, every decision and regulation made by the DFB was geared towards making sure that this strategy to focus on Youth development yields the right results. The starting point was the establishment of the German football League (DFL) which was given financial and regulatory independence from the DFB in October, 2000 (Honigstein, 2015). The purpose of the DFL according to its Statutes, is to “operate the Bundesliga divisions 1 and 2 competition structures” and participate in the development of football in the Federal Republic of Germany. A dual regulatory system was adopted whereby the DFB would now mainly be responsible for football at the amateur level and professional German league football would be managed by the DFL (Krause & Vieweg, 2013).

The next step was to enshrine this proposed youth development strategy in the sports Legislation of the country. All clubs participating in the Bundesliga 1 and 2 divisions were required to build performance centres or football academies as per the DFL Liga statut. §3 no.2 of the DFL licensing regulations made it one of the sporting criteria that qualify a club to acquire a licence to participate in the Bundesliga(Satzung und Ordnungen, 2014). This provision was particularly helpful in quieting the Bundesliga 2 teams that were against the academy system due to the “high costs” (Honigstein, 2015). The incentive was clear, if you want to participate in league football, then invest in the development of German youth talent. Annex V of the Licensing regulation provides  detailed guidelines on how these youth performance centres are to be established and maintained. The clubs are allowed to develop unique content and methodology for their performance centres “so long as they do not deviate from the principles of the guidelines” (Satzung und Ordnungen, 2014). The reason for this is to ensure “harmonisation” of the DFB talent development projects across the country as stated in Guideline no.1 of Annex V. Guideline no.3 provides the structural conditions of the performance centres such as how many full time coaches the centres should have, the type of training licence, the number of training pitches and the requirements regarding medical care. The condition that stands out in  my view is  under Guideline no.3 (f) which discusses the requirement to have a written youth development program. It should contain an education programme for the prevention of gambling addiction and gambling manipulation especially at the U16-U23 level. Similarly, Guideline no.3 (h) requires the clubs to have cooperation agreements with schools to ensure that the sporting demands are coordinated with the school requirements for these young talents. These two guidelines show how much the DFB cares about the futures of these youth players and the extensive steps taken to ensure that youth talent development is not at the expense of their academic education. As Robin Dutt, the DFB sporting director puts it “ you need intelligent players on the pitch  anyway” (James, 2013).

These guidelines are further supported by the DFB Youth Regulations. § 5 of the youth regulations lists the permitted age groups for the youth teams which start as young as U 7 up to U 19/U 18. The regulations offer clear guidance on how matches and youth competitions should be handled at every age group. As an example, §8 provides that the maximum duration a match should last at the U 7 age group is two halves of twenty minutes or 2 X 20 minutes. Annex IV of the youth regulations  provides special regulations for games to be played on small and reduced pitches especially in the U 7 - U 9 age group. At this level you’ll have 2 v 2 games to ensure that all children get to work with the ball as early as possible. Arguably the most important introduction made by the youth regulations, however, was the establishment of the Junior national leagues where teams can be promoted and relegated in accordance with §19 and §20 respectively. This league system was deemed a necessity in order to build a winning mentality as early as possible while also providing a high level of training to the youth players (James, 2013).

The DFB’s youth development strategy did not stop solely at the scouting and identification of talent but also increasing the number of coaches. The importance of maintaining a high standard of coaching was recognized and promoted through the regulations. Guideline no. 3 (b) in Annex V of the Licensing regulations requires all talent development centre coaches to have the DFB Elite youth licence. This licence was created by the DFB in 2003 to ensure “a uniform level of competence” (Honigstein, 2015).

The DFL statutes also ensure that all this talent that is developed does not go to “waste” for lack of a better word. According to §5 no. 4 of the licensing regulations requires that all bundesliga 1 and 2 clubs undertake to have a minimum of “twelve licensed players of German nationality”. Effectively, having such a provision ensures that the clubs will actively seek to retain German youth talents but more importantly that as many young German players as possible are able to find a club at the top level. §5 also requires that the club employs a fan representative as part of the personnel and administrative criteria to obtain a licence. Fans have played an important part in ensuring that German talent is considered first.

The success of the DFB’s youth system and comprehensive Football Legal framework was no more evident than at the 2009 U 21 UEFA Euro championship where Germany was able to win the tournament for the first time in their history. It was this same youth team that went on to form the core of the 2014 FIFA world cup winning team 5 years later. Only one year prior to their world cup victory, the footballing world had already witnessed  the first UEFA champions league final with two German teams.  Both teams had German coaches at the helm and had fielded a combined total of 26 locally trained players eligible to play for the German National team throughout the course of the season (James, 2013).

What is clear from all these regulations and results that have followed, is that the “success of the German national team is at forefront” for everyone involved including the clubs themselves (James, 2013). This mindset has been Germany’s greatest asset and provides an important lesson in why their sports Legislation has yielded positive results.  The biggest take away for African countries from Germany’s approach is to first understand what needs to be regulated and who is best suited to do it? Once this question is answered, the proper implementation of sports Legislation is made easier and a clear pathway to success becomes apparent.

CHAPTER 3

3. Final Thoughts

3.1. Other contributing factors to the continued failure of African Football

The most consistent reason put forward for the failure of Football is the issue of Corruption. It always seems that a corruption scandal is never too far away when it comes to African teams. This can prove to be a distraction which is bound to affect performance and morale. Cameroon’s abysmal showing at the 2014 world cup was the perfect example of just how distracting corruption can be to the team. It is well documented that the national team had earlier refused to travel to the tournament over “unpaid allowances” (Chiweshe, 2014). This problem also affected team Kenya at the Rio olympics where Athletes were left stranded and funds were misappropriated by top officials who were later charged and convicted (sport, 2016). In my view, the focus shouldn’t be on corruption but rather the Governance structure of these sports organisations. We should be asking what part of our governance structure is breeding corrupt officials? You can only fix governance issues by having sound by-laws, policies and statutes. Afterall it is not the system that is corrupt but the people operating it

There is an argument to be made that Poverty is what is holding back the development of African football. My view on the issue of poverty is that if there are “enough funds” for officials to be corrupt, then there are certainly enough funds to invest in the development of the game. I do acknowledge however that the resources available to most African nations pale in comparison to their European counterparts. FIFA has always stepped in to aid football development through various projects as well as providing funding. The focus on our end should therefore be on how to make the most of these limited resources and use them to develop teams that have a desire and mentality to win. The end goal is competing on the pitch and not financially.

Finally, African football has been hindered by other competing sports. This can be a good thing, in that countries have more opportunities for success if they compete in various sports disciplines. The disadvantage, however, is that this significantly depletes the talent pool for football which in turn negatively affects the likelihood of success (Chiweshe, 2014).  The prevalent belief that it is better to move to a European academy rather than staying in their respective countries  has further diminished the talent pool. Studies show that a bigger talent pool leads to better performance by countries (Chiweshe, 2014). We should therefore rely on sports Legislation to ensure that the talent pools in our respective countries are expanded and protected.

3.2. Recommended Strategy for Success

German football is testament to how effective sports Legislation is in propelling a country to success. The other factors that are contributing to the failure of African football discussed above, such as corruption, are not unique to the African continent. The world football governing body, FIFA, has dealt with the numerous well documented issues of corruption (Conn, 2017). The DFB itself has also been implicated in a corruption scandal relating to the 2006 world cup hosted in Germany (Reuters, 2015). The recovery made by both Federations, the DFB especially, Is why I believe that reliance on sound sports Legislation is the right strategy for the African continent.

The first step is identifying what issues plaguing african football need to be regulated and who is best placed to oversee their regulation. It makes little sense to enact a sports statute or regulation governing Esports for example merely because it is “trendy” without first doing a study on how compatible the sport is with the country’s economy or how appealing it is to the citizens. The law should be enacted to enhance the growth of the sport and it can only do so once the factors hindering the growth are well known. This attention to detail only happens if the importance of the Law is understood. In Germany, the state objective of promotion of sports was designed to be executed by legislative means (Krause & Vieweg, 2013). The state understood the true value of the Law and that is why the strategy served them well.

The second step is adopting the principle of “autonomy of sports”. There should be as little government or state interference as possible in the regulation of football matters. Sport is more likely to develop where it enjoys a reasonable degree of autonomy. This is why when German football was becoming highly commercialised and clubs were taking a more corporate structure, the DFL was able to quickly create the “50+1” under §8 no.3 of its statutes. The rule was aimed at ensuring that the parent association of the club maintained majority voting rights ensuring that the commercial interests are not pursued at the expense of the association's footballing interests. Similarly, when DFL faced arguments that the “50+1” rule was hindering German football’s ability to compete financially, the regulation was amended to exclude investors who have been actively involved with the parent association for more than twenty years (Krause & Vieweg, 2013). The autonomy that DFB and DFL enjoy allowed them to properly and promptly address the issue through their respective statutes and they did so from an informed position. African states should afford football and sports in general a similar level of autonomy and recognize that this ability or mechanism to self regulate is what will prevent the abuse of power within  sports federations (Krause & Vieweg, 2013).

Finally, a certain level of selflessness will be needed for this strategy to work. There is a need for collaboration especially at continental level. There is no reason why Kenya and Rwanda cannot have a joint mega Football centre that is also used by the rest of the national teams in the East African region. Such collaboration through agreements backed by sports regulations would help create a unified football identity within East Africa; a region that performs poorly at the AFCON and from which no country has ever qualified for the FIFA world cup.The onus is on CAF as the governing body to create and promote a collaborative spirit within African football. The same spirit should be cultivated at national level by the Football federations. German football has greatly benefitted from the willingness of all concerned to support its development. Their mindset seems to almost be that the success of the national team requires the help of everyone.This is why giant German companies like Adidas and Mercedes are readily willing to support and invest in the national teams’ activities such as construction of a training facility (Cortsen, 2014). That is the level of selflessness and willingness to collaborate needed for African football to succeed.

3.3. Conclusion

From the findings presented by this paper, it is clear that while most African countries have understood the importance of having sports Legislation in place, they have not yet grasped how to use it to create a clear identity and pathway to success. How long it will take for success to become a constant in African football is hard to predict. What is predictable, however, is that Strengthening and relying on Sports Legislation will definitely lead to success on the field. The success enjoyed by the DFB and German football in recent years perfectly illustrates the correlation between sound sports Legislation and national team success. I can think of no greater motivation than that for African Football to follow suit. It is time for CAS and the Continent’s Football Federations to change course and our Sports Legislation is the only map that will guide us to our intended destination.

Bibliography

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·      Ownership and Consent: The decision emphasizes that players own their image rights initially and that these rights cannot be exploited without the player's consent. It stresses the importance of clear and unequivocal consent in the use of player images.

·      Employment Contracts and Negotiations: The ruling highlights the role of employment contracts and image rights agreements in negotiating the use of player images. It suggests that negotiations typically revolve around the extent to which clubs may use player representations and image rights.

·      Collective Image Rights: The decision addresses collective image rights associated with clubs or national associations. It indicates that these rights are often governed by employment contracts and determine how player images can be used in connection with club or association branding.

·      Increased Awareness: The court ruling likely increases awareness among sports personalities about the importance of protecting their image rights. Players may become more proactive in negotiating contracts and agreements that adequately safeguard their image rights.

·      Deterrence of Unauthorized Use: The court's ruling serves as a deterrent against unauthorized use of player images by third parties. Organizations and individuals may think twice before using player images without proper consent, knowing  that                legal  consequences  could  follow.

·      Potential for Industry Growth: By recognizing image rights as valuable assets for sports personalities, the decision may foster the growth of ancillary industries related to image rights management, licensing, and marketing within the sports sector.

·      Player Empowerment: The decision empowers players by affirming their ownership and control over their image rights. This empowerment may encourage athletes to take a more active role in managing their personal brands and commercial opportunities.

·      Regulatory Considerations: Policymakers and sports governing bodies may consider the court's decision when developing or revising regulations related to image rights in sports. This could lead to updates in sports governance  frameworks  to  better  protect  athletes' interests.

·      Potential for Litigation: The court's decision may lead to an increase in litigation related to image rights disputes in the sports sector. As awareness and understanding of these rights grow, more cases may arise, leading to further legal  precedents  and   developments.

Conclusion:

This landmark decision sets a precedent for future cases involving image rights in Ugandan sports. It establishes legal principles and guidelines for protecting the image rights of sports personalities, which could lead to more robust contracts and agreements in the sports sector.

 ‘…media interest in sport has risen to new highs and the recent emergence of social media networks means sports is now subject to a greater and swifter level of scrutiny and public interest than ever before.’^[1]

In the past three decades, the sports community, together with academics have made attempts to deal with the efforts of the European Court of Justice (ECJ), when it comes to influencing sports law and the rule making power of Sports Governing Bodies (SGBs). Since the court does accept the rule of precedents (stare decisis) because it is more of a policy implementing body, deriving its power and control from the Treaty provisions^[2].

Cases may not be binding on the ECJ, due to changing circumstances, opinions among the judges and academic criticism, however, policy seems to have a great influence on the decisions. That is the values and opinions of the judges presiding on the objectives they wish to promote^[3].

 Debate revolves around the question of what is ‘sports law’ and whether it qualifies to be an independent area of law, or merely an application of already existing legislations in the interpretation of their rules and regulations^[4].

E. Grayson, on the existence of sports law;

No subject exists which jurisprudentially can be called sports law. As a sand bite headline, shorthand description, it has no juridical foundation: for common law and equity create no concept of law exclusively relating to sport. Each area of law applicable to sport does not differ from how it is found in any social or jurisprudential category…^[5]

The EU cannot ignore the laws made by the SGBs, whether nationally or internationally. It then becomes clear that SGBs do produce legal rules in the sporting sector, which does not pose any prejudice on the degree of autonomy.

The diversification of the international community, international law generally would govern the status of international organizations and private bodies to a certain extent. International law can be seen to intervene in the field of sports, but this does not guarantee the SGBs as subjects of international law.

“Community Law is applicable to sport only insofar as it constitutes an economic activity, and does not apply to matters, rules or events which are of sporting interest only.”^[6]

The Community authorities has since respected the autonomy and independence of sport, it would therefore be extremely difficult to establish the economic aspects of sports in the athletic activity, and the overall intervention brings in the organization of sports into question^[7].

Historically, state authorities have regarded sports in general to have similarities with culture and that under the EC Treaty, and that sport is not an economic activity, therefore, the community should respect the diversity of cultures in the region.

However, the points of similarities of sports and culture alleged, were rejected by the EC on the grounds that sports rules and sanctions affect fundamental freedoms, such as the freedom of movement of workers^[8].

For the EC Treaty to be applied, so far as it constitutes an economic activity, that is; sports activities taking the form of gainful employment, services of remuneration provisions^[9] etc. It cannot therefore exclude the whole of sporting activity from the application of Treaty, and the restrictions on the scope must remain in its proper objectives^[10].

Rules of sporting conduct traditionally are designed and composed to preserve the essence of sporting activity. Often designed with the aim to achieve^[11];

a)     Competitive Balance – which is the concept that spectators and participants are involved in a sporting spectacle from the uncertainty of the outcome and to the end of the sporting activity.

b)    Integrity of Sport – preservation of the advantage and undermining the values of the sport.

The competence and the intervention of European Union (EU) in matters of sports has been widely and deeply contested by proponents of the autonomy of sports governance, who claim that the same is at the heart of a constitutional matter^[12].

Some argue that the law should be molded in order to accommodate the ‘specificity of sport for its application to meet the special concerns and characteristics of sports^[13]. The ‘specificity of sport’ is covered by two prisms.

a)     Specificity of sporting rules which need to ensure the uncertainty of outcome and preservation of competitive balance.

b)    The structure of SGBs with their pyramid structures, autonomy and solidarity mechanisms and organization^[14].

While considering the specific nature of sports, The Lisbon Treaty^[15] (Article 165), despite its weak legislative reference to the specific nature of sports, promotes fairness and openness in competitions and cooperation between SGBs responsible. The inclusion of sporting competence in The Lisbon Treaty, does not exactly threaten the autonomy of SGBs but more of a ‘strategy of empowering the EU in order to restrain it.’

Article 165 ‘emphatically does not elevate the EU to the position of general ‘sports regulator’ in Europe’, since sport has been placed within the weakest of the EU competences due to the lack of legislative competences.

SGBs have jealously guarded their legal autonomy when it comes to governance and regulations of sports, with claim that their rules are of a diverse nature and doctrines, and that the relationships between the sports entities and, clubs, athletes and federations are of a contractual nexus and should be submitted to private arbitration^[16].

SGBs that do not practice good governance principles, procedures and practices can expect their autonomy to be curtailed^[17].

The European Court (EC) has no apparent or explicit authority under its Treaty as to the adoption of a legislation for the governance of SGBs on how they should operate, however, it derives a supervisory jurisdiction as with limitations from the broad function of the EC trade law rules.

Article 5 (1)^[18] of the EC Treaty states that; the EC shall act within the limits of the powers conferred upon by the Treaty.

It is equipped with no explicit powers in the field of sport. This enables the SGBs to frequently argue that sport is none of the EC’s business. However, sports governance still falls under the scrutiny of the EC law because its practices may coincide with the basic integrative and pro-competitive project of the economy set out by the Treaty.

It is the discretion of Courts of Justice to ensure that the law is observed when interpreting and applying of the Treaty laws of the European Union, and the courts are cloaked with the jurisdiction to hear and determine all cases brought before it within its competency^[19].

Sport has become a ‘big business’ especially in broadcasting rights (TV) has become very profitable. This demonstrates how sport has a huge economic impact in the EU, which continues to grow^[20]. This has had the Commission to deal with an increasing number of competition disputes involving the sports sector that has led the said Commission to deliver either formal or informal decisions.

Most of these cases are handled by EU antitrust laws, which prohibit anti-competitive contracts, as well as the prohibition of abuse of dominant position by SGBs. These cases more often than not, cover, revenue-generating activities in the sports sector, e.g., media rights and other regulatory and organizational aspects of sports^[21].

The Commission and the EU Courts have also recognized the importance of the social and cultural role of sport, in the application of the EU Competition law towards economic activities in the sports sector which are of great importance.

Such economic activities in the sporting sector, in football particularly are:

a)     Joint sale of media rights by the UEFA Champions League, FA Premier League, and Bundesliga.

b)    Sports Media Rights – where football associations enter into agreements on behalf of football clubs, to sell sports media rights through open and transparent tendering.

●      Limitation of such rights duration of not more than 3 years and the breakdown of the said rights to different packages to allow other competitors to acquire such rights.

c)     Infrastructure which constitutes an economic activity.

d)    Laws on fiscal & accounting rules for sports professional clubs – lower tax liabilities could affect trade in the EU.

EU sports law is far from coherent as it has evolved into ‘soft law’^[22], and demonstrates tolerance towards some sporting rules such as the UEFA’s ‘Financial Fair Play’ Regulations which impose restrictions for fair competition and lack proportionality, which should have attracted a sanction from the EC.

The latitude given towards the SGBs by the EU is more of a ‘politicization of public enforcement of competition law’ which has led to the ‘generous treatment of sport and football rules.’^[23]

SGBs’ attempts to protect the integrity of competition, competitive balance and training & development of young players have been the main areas of the regulations, practices and traditions that breach the EU law.

Weatherhill, encapsulates its amorphous nature when he refers to an EU sports law, since the EU institutions lack a concrete shape due to its limited competence^[24].

In Walrave^[25], CJEU stated that the emergence of EU sports law does not totally exempt the application of laws of the EU Treaties in the sports sector – ‘the practice of sport is subject to community law only in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty^[26].

In Meca-Medina^[27], it was stated that: ‘it is apparent that the mere fact that the rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or body which has laid down.’

Article 101 & 102^[28] does not confer a blanket immunity towards sporting rules, as it provides for the need to justify the same by a legitimate objective and be proportionate, especially those that pose an obstacle to a fundamental freedom^[29]. The restrictions imposed, by these rules, must hence be limited to ensure proper conduct of competitive sport^[30].

This has been a serious blow towards SGBs traditional legal autonomy, although EC promotes ‘democracy, transparency and accountability in decision-making, and inclusiveness in the representation of interested stakeholders.’^[31]

EU ‘can provide guidance for the good governance of sport at national, European and International level.’^[32] Based on the Rule of Law, EU promotes 3 principles:

a)     Separation of powers.

b)    Transparency and Impartiality in public procurement.

c)     Recognition of social dialogue on labor law and employment.

EC's lack of determination and ambition to promote ‘social dialogue’, since the parties involved are not equal in bargaining position.

Positively, it can be argued that community law can have a good impact in its intervention in that^[33];

a)     Assist in the development of SGBs.

b)    Help in maintaining a system of governance, in the sector of sports.

c)     Provide for an environment for the entities to operate, maintain and establish an ethical culture through their organization; and

d)    Provides the related stakeholders with a gauge on the performance by the establishment of benchmarks.

Under EU law, the general principle is that there shall be no discrimination in its application^[34]. As mentioned earlier, in decided cases, the ECJ would intervene in cases where the fundamental freedoms in the sporting sector were infringed by the sanctions imposed.

Some restrictions and regulation by the state and the EU can be seen to contravene the whole essence of freedom of establishment and provider services, such as the restrictions imposed on betting of sports events. This restrictions on gaming activities could only be allowed where, it is of justifiable imperative in the general interest, such as the protection of consumer interests and prevention of fraud^[35].

There are areas where sporting activities may be eligible for exemption from the application of EU law, as established in the Meca-Medina case^[36], as follows:

a)     Such rules or activity contribute to promoting economic growth and development.

b)    Allows consumers a fair share of benefits that result from it.

c)     Does not impose restrictions that undermine the overall objective of EU law; and

d)    Does not eliminate competition, where the result is not the raising of professional standards rather, they object to imposing restrictions on the accessibility of a certain occupation.

The basic principles observed by the European Court in the promotion of the EU integration are as follows:

a)     To strengthen the EU, especially in the supranational element.

b)    Promoting the effectiveness of the EU law in the region; and

c)     Increasing the powers of the European institutions.

After years of study on the cases previously decided by the ECJ, it seems highly unlikely that the autonomy enjoyed by SGBs, will be granted as much in the near future^[37].

The major international federations that have recently faced challenges are;

a)     World Athletics (WA).

b)    International Olympic Committee (IOC).

c)     The Federation Internationale de Football Association (FIFA).

d)    World Aquatics.

e)     Union Cycliste Internationale (UCI) (cycling).

f)     International Tennis Federation (ITF) and

g)    International Boxing Association (amateur) AIBA (boxing), on claims such as doping, corruption and match fixing.

Government has shown an increased interest in intervening accordingly in the sporting matters that are said to be fundamentally wrong in sport, including corruption and fraud. They are, after all, the major contributors to the budgets of sporting associations, especially in matters that are politically sensitive issues.

Actions taken on disciplinary front in ensuring that funds are spent properly, due to the new financial dimension that tests the governance structures. Transparency and clarity to;

a)     The institutional structures of the SGBs, such as separating the rule setting and executive functions.

b)    Powers as applied to participants.

c)     The disciplinary and regulatory rules that should be abided by.

Judicial Review (JR) should be introduced to the sports sector, given the huge growth of the sports industry. JR which has expanded to include review of the lawfulness of decisions of self-regulatory bodies, with sports being the odd one out^[38].

Hoffman LJ, ‘the mere fact of power, even over a substantial area of economic activity, is not enough…private power may affect the public interest and the livelihoods of many individuals…’

Therefore, SGBs must be subjected to the ‘public functions’ test, that these bodies make rules in their own self-appointed authority that affect rights of individuals^[39].

SGBs do carry out public functions such as ban of athletes in participating in competitive sport and financial sanctions that impact the potential income, hence making decisions that affect fundamental rights, reflecting a clear ‘public function’^[40] and have been deemed to have sufficient ‘public flavor’^[41].

 Further arguments on claims of public law intervention in that the control over SGBs functions should be found in the law of contract, has been found to be inadequate particularly where no contract exists. Finding the ‘implied contract’ can be difficult^[42].

The protection of fundamental rights and upholding the rule of law, must be established where courts need to intervene. If an individual is deprived of standards of good administration, the government should challenge it.

If the sporting activity falls within the scope and operation of the Treaty, the conditions for regulation are then subject to all obligations.

“ even though not having any direct powers in this area, the Community must, in its actions under the various Treaty provisions, take account of the social, educational and cultural functions inherent in sport, and making it special, in order that the code of ethics and the solidarity essential to the preservation of its social role may be respected and nurtured.’