By introducing an article on “Menstrual Health” in its Regulations on the Status and Transfer of Players, effective June 1, 2024, FIFA is promoting the well-being of female athletes by guaranteeing paid menstrual leave. As the first international sport federation to add menstrual health to its policies, it acknowledges its impact on performance and sheds light on a topic that has long been taboo and plagued by negative gender stereotypes. This article examines the gradual recognition of the menstrual cycle in professional sports, mainly through athletes breaking the silence by speaking up about the detrimental effects of menstrual silence. Low menstrual health literacy, stemming from a gender science gap, is exacerbated by insufficient menstrual education across sport organizations. FIFA’s initiative could reduce the stigma and normalize menstrual health at all levels of sport.

Introduction

Estelle Nze Minko has won nearly every major title with the French National Handball Team. In 2019, she joined Győri ETO KC, a prominent Hungarian club with five EHF Women’s Champions League titles. Upon joining, she was initially taken aback when the club’s physical therapist asked about the onset of her periods, finding the question violent, even “perverse!”.[1] This prompted her to seek further understanding, leading to the realization that she had never trained according to her menstrual cycle. A year later, she authored an article on Règles Élémentaires’ website, an organization fighting period poverty, stating that although she had been playing at the elite level for over 10 years, this was the first time she had ever been asked about her menstruation.

Her story made it to national media outlets and started an important conversation to break a deeply embedded taboo in France, and in the French language, which is quite rich in euphemisms for menstruation. British or Canadians might find it amusing that “Niagara Falls” or “the British army has landed” are among the top fifteen commonly used expressions for periods.[2]

Menstruation, or period, is a normal biological process that marks the beginning of the menstrual cycle, with up to seven days of bleeding. It initiates the follicular phase, which lasts about 12 days. This is followed by ovulation, lasting approximately 16 to 32 hours, and then the luteal phase, which lasts about 14 days and includes a high hormone phase, during which pre-menstrual syndrome symptoms such as cramps or poor sleep may be experienced. A healthy menstrual cycle lasts between 28 to 35 days, with variations in hormone levels throughout.[3]

A professional female athlete who menstruates must manage her cycle while struggling with structurally challenging working conditions. These conditions include short-term contracts[4] (such as in professional football, where the median contract length is between 1 and 1.5 years) and salaries that show massive disparities compared to their male counterparts.

In a paper written by the International Labor Organization (ILO) for discussion ahead of the 2020 Global Dialogue Forum on Decent Work in the World of Sport, a professional athlete is defined as an individual “who gains income through competitive sport and whose activities are controlled by a sports organization, such as a club or federation.”[5] Therefore, professional female athletes are workers, and their physiology plays a role in their work as the paper goes on to acknowledge that “the sexual and reproductive health of athletes affects men and women differently, but the effects are not always well researched. Some female athletes have been outspoken that menstruation impacts their performance and can increase the likelihood of injury.”[6]

The final report of the Global Dialogue Forum on Decent Work in the World of Sport stated few points of consensus, among which that “All workers, including athletes, regardless of the type of employment relationship, require, as a minimum, to be protected by the fundamental principles and rights at work.”[7] In this documents the ILO recommends the enablement of a sport environment promoting decent work in the world of sport by “generating equal opportunities for all and providing equal conditions of work for female athlete”, including access to social protection coverage in relation to workplace injury benefits and maternity leave. One might have expected the ILO to underline the importance of developing policies that support the reproductive health needs of female athletes, by further “engendering”[8] the right to work by including menstruation. However, this was not reflected in the final document.

A few months later, following a proposal from the professional football players’ association FIFPRO[9], FIFA updated its Regulations on the Status and Transfer of Players (RSTP) to improve female players’ working conditions. This improvement was achieved by adding a new section on Special Provisions Relating to Female Players, which detailed its parental policy.[10]

Parental policies have been standard for most female workers globally for decades. Their recent adoption by FIFA may seem anachronistic given the progressive values typically associated with sport, but the federation is doing more than just catching up. It is setting a new standard in women’s sports by embarking on what philosopher Camille Froidevaux-Metterie refers to as a battle in the “genital turn”[11] of the feminist movement, which calls for the recognition of aspects of female physiology long considered taboo, such as menstruation and menopause.

Professional athletes are increasingly vocal about menstrual health[12] and its implications on performance and injury risk. Incorporating female physiology into sports organization policies is a first step toward breaking the silence, educating stakeholders, changing the culture of sport, and advancing scientific knowledge surrounding menstruation. Tracking and sharing menstrual data seems inevitable and brings with it the challenge of data protection.

FIFA’s menstrual health policy

In June 2024, FIFA made a remarkable change to its RSTP, introducing a section on “Menstrual Health”[13] within its special provisions for female players. Under this new provision, a player is entitled to be absent from training or matches whenever her menstrual health requires it. Additionally, she is entitled to receive her full salary while exercising this right, provided that a medical certificate is issued by her personal gynecologist or specialist medical practitioner.

Theoretically, players could already take medical leave due to any health issue, but the specific inclusion of menstrual leave in the RSTP acknowledges an aspect of women’s health that has long been neglected. This decision was driven by FIFA’s commitment to educating on the female body since 2011 with its guide for players and coaches on Health and Fitness for the Female Football Player.[14] In its guide, FIFA has been striving to educate on menstrual health, particularly focusing on the potential effects of irregular or absent menstruation on health and performance. The guide encourages athletes to track their cycles and to alert doctors in case of abnormalities to prevent bone mineral density loss. Additionally, the guide educates on the female athlete triad (disordered eating, amenorrhea, and osteoporosis), which was the subject of a consensus published by the International Olympic Committee (IOC) Medical and Scientific Commission in 2005 and updated with the consensus statement on Relative Energy Deficiency in Sport (REDs) in 2014.

In 2023, the FIFA Female Health Project was launched with a published report explaining FIFA’s current strategy and recommendations. In its foreword, Sarai Bareman, FIFA Chief Women’s Football Officer, highlighted the “lack of scientific literature on female athletes,” noting that “there is little information about how female hormones affect training stimuli and overall performance.”[15]

FIFA “recognizes the uniqueness of female physiology and is committed to providing women in football with the attention, resources, and knowledge they deserve.”[16] There is a pressing need to incorporate menstrual health considerations into sports as there is a lack of comprehensive studies detailing the specific mechanisms by which the phases of the menstrual cycle may disrupt athletic performance and increase the risk of injury.[17]

FIFA highlights the considerable impact of the menstrual cycle on women’s participation in sport. In fact, a survey conducted this year[18] on 622 French female football players from amateur clubs aged 11 to 18 years revealed that 70% of respondents miss training due to menstrual pain. Additionally, nearly 50% of respondents reported not feeling comfortable discussing their menstrual health with their club staff.

These findings in amateur sports today, if not addressed through research and education, are likely to affect those who advance to the professional level tomorrow. Surveys of professional athletes and their entourage, including coaches, continue to reveal low oral contraception[19] and menstrual cycle literacy.[20]^,[21]

In this perspective, the FIFA Female Health Project appears to be one of the most ambitious initiatives in sports focused on women’s health, performance, and well-being. It emphasizes “fundamental anatomical, physiological and hormonal differences between men and women.”[22] As a result, the project aims to normalize this natural biological process, educate at all levels, from grassroots to elite, and support athlete preparation through to retirement.

The cultural change needed to accept menstrual leave in professional sport

In February 2023, Tiger Woods faced backlash for handing a fellow golfer a tampon as a joke after outperforming him at a tournament. The act, captured in photos, was criticized for being sexist and immature, reinforcing negative stereotypes on menstruating women.[23]

Despite female athletes becoming increasingly outspoken about menstruation, the cultural battle to educate about the menstrual cycle, and on menstrual leave, must primarily be led by sports organizations as gender stereotypes are deeply rooted in the entire sports ecosystem, which acts as an echo chamber reflecting broader societal beliefs.

Law scholars have provided original and valuable insights on menstrual leave. In “Menstruation Matters,”[24] Bridget J. Crawford and Emily Gold Waldman examine the intersection of law and menstruation-related policies. They suggest that menstrual leave might be counterproductive, using Japan as an example, where such leave has been implemented since 1947. In Japan, the rate of menstrual leave utilization decreased from 26% in 1965 to under 1% in 2017, primarily due to concerns about workplace discrimination. Similarly, in some provinces in China, recent menstrual policies have caused women to hesitate to take leave for fear of upsetting their employers.

The authors also discuss Italy’s proposal to offer up to three days of paid menstrual leave per month in 2017, which was ultimately abandoned due to concerns about its potential negative impact on women’s employability. The authors explain that while tax exemptions on menstrual hygiene products are widely supported, the fact that menstruation is experienced differently by women raises “greater skepticism” about the real need for menstrual leave. They argue that to address menstrual equity in the workplace, a menstrual leave policy would be the least viable solution. They assert that gender-neutral policies are more favorable, especially from a legal standpoint, as they avoid the risk of sex discrimination, do not perpetuate gender stereotypes like perceived weakness, and protect the privacy of women’s health.

Another perspective on law and menstruation was published by Sydney Colussi, Elizabeth Hill, and Marian Baird.[25] Through a critical feminist lens, they analyzed two international conventions, namely the International Covenant on Economic, Social and Cultural Rights (1976) and the Convention on the Elimination of All Forms of Discrimination Against Women (1981). They point out that international law has “engendered” the right to work by acknowledging the reproductive body but has limited this to pregnancy and parenthood. They argue that to fully engender the right to work, menstruation and menopause should be recognized as equally important aspects of the reproductive body. They consider paid menstrual and menopause leaves as counterproductive if gender stereotypes are not addressed, as it could reinforce the sexist idea that women do not belong in the workplace. Additionally, they mention that treating these leaves as sick leave would medicalize innate bodily functions, thus undermining progress in women’s rights.

In fact, several athletes’ testimonies support their argument, as sports federations tend to medicalize innate biological processes. For example, Clarisse Agbégnénou, the most decorated woman in the history of French judo, revealed that when she announced her pregnancy to the French Judo Federation in 2022, it was “complicated” as she had to “remind them that pregnancy is not a disease.”[26]

Therefore, without initiating a cultural change to combat gender stereotypes in their sport, federations risk unintentionally reinforcing negative stereotypes around female physiology. This change must occur at all levels of their organizations and involve all stakeholders. Simply implementing menstrual leave, without addressing the underlying gender biases, could perpetuate the very stereotypes these policies aim to dismantle.

The struggle of menstruating athletes: employees versus entrepreneurs

Considering menstrual health, while a significant advancement in team sports, may not be applicable in the same way to individual sports. For example, in a team, it is possible to rotate players, allowing those who may experience painful periods to rest or adjust their playing time.

When experiencing menstrual pain, an individual sport athlete faces the dilemma of either competing through the pain or withdrawing from a competition she has prepared for years. The solution is not simple, as illustrated by British middle- and long-distance runner Eilish McColgan, who responded to a man criticizing her for complaining about getting her period during competition, saying, “As if I could simply call up the Olympic Games and ask them to move my event to the following week to fit my cycle.”[27]

Sport governing bodies are used to implementing policies regarding athletes’ health to ensure their safety and well-being as it is one of their missions and roles under the Olympic Charter.[28] For instance, many federations have adopted concussion protocols that prevent athletes from competing if they do not meet specific health criteria. Recently, the International Federation of Sport Climbing has announced its intention to combat REDs, which can manifest through disruptions in the menstrual cycle. Its REDs policy[29] restricts participation of affected athletes in any competition, including the Olympics.

This type of solution could work perfectly in settings where professional athletes have access to paid medical leave to recover. But what about sports where athletes are considered independent contractors?

Tennis, for example, presents particularly challenging working conditions, with 80% of the top 1,000 ranked players struggling to earn a livelihood.[30] Unlike sports where athletes have employment contracts, golf or tennis players are more like solo entrepreneurs. They manage and bear the financial burdens of their staff as independent contractors rather than employees. These financial pressures restrain athletes from taking necessary time off in order to sustain their income and improve their rankings. Consequently, female athletes classified as contractors are compelled to mitigate any health concerns to continue competing.

This situation presents a structural issue that could be resolved through negotiations to establish minimum compensation standards, safeguarding the well-being of athletes unable to work due to their menstruation. The ILO underscores that professional athletes, including those not directly employed by their club or sport organization, have a fundamental right to organize and negotiate Collective Bargaining Agreements (CBAs).[31] Such agreements are essential for advancing protection standards and fostering a constructive platform for social dialogue to improve athletes’ working conditions. Based on the Occupational Safety and Health Convention, 1981 (No. 155), and the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187), the ILO asserts that “athletes should not be required to shoulder the costs of measures required to protect their health and safety.”[32]

The cost of menstruation silence

Without greater visibility, particularly on prime-time television, which remains the “central bank of attention,”[33] female athlete may continue to suffer a wider gap on too many fronts: pay, visibility and research. In fact, only 8.8% of studies are exclusively focused on female athletes, compared to the 70.7% focused on male-only athletes.[34] In addition, available scientific studies on the impact of menstrual cycle suffer methodological differences preventing a clear understanding of its implications for athletes’ health.[35] Performance parameters in athletes can vary during the menstrual cycle, but the evidence is inconsistent regarding the nature and extent of these variations.[36]

Tunisian tennis player Ons Jabeur regularly speaks about the financial struggles she faced when she was not ranked among the top 10 of the Women’s Tennis Association (WTA), noting that nobody would listen to her during those times.[37] This led her to join the executive committee of the newly created Professional Tennis Players Association (PTPA) in January 2023. The PTPA is pushing for change in the “bureaucratic”[38] structure of tennis, which allows only a few players to financially break even.[39]

However, Jabeur goes further by explaining that the structure of the sport is mentally taxing on female athletes, influencing their decisions about delaying maternity due to financial concerns, period anxiety due to dress codes, and the management of period pain, as they have no other choice but to continue playing. In an interview with The Guardian, she stated, “I cannot tell you how many times I played on the first day of my period and how I was suffering and crying in pain. I have lost matches because of it.”[40]

Now-retired judoka Frédérique Jossinet told Le Monde that she experienced period anxiety throughout her career due to fear of blood leaking on her white kimono.[41] Moreover, the fear of menstrual blood leaking onto white shorts has been shown to negatively affect performance.[42] This concern has led several football teams to adopt darker-colored shorts. As of Wimbledon, known for its all-white dress code, it made changes in 2023, now permitting solid, mid-to-dark-colored undershorts, provided they are not longer than the outer shorts or skirts.[43] Allowing women to influence change in direction of their sport’s organization uniforms is an important cultural shift in an ecosystem still policing the bodies of female athletes.[44]

The rights gained by women in the general population tend to be implemented decades later for women in professional sports, as they are often not recognized as workers with rights. Even minimal protections enshrined in international law, such as maternity rights, are only now being recognized and adapted to professional sports (e.g., the WTA’s return to competition ranking policy after maternity leave in 2019 or FIFA’s minimum maternity leave in its 2021 RSTP).

As noted by the ILO, the autonomy of sport “exposes the sector to regulatory gaps and the risk of exploitation.”[45] These risks are mitigated by numerous factors, including membership in a players’ association. For instance, FIFPRO was the driving force behind the FIFA RSTP parental policies of 2021 and 2024, which is yet to be implemented at the national level by most of FIFA’s member associations.

Menstrual cycle tracking and data privacy

The FIFA Female Health Project calls for “individualized and proactive”[46] tracking of the menstrual cycle but does not recommend any specific method. As most athletes track their cycles through mobile applications and wearables, and may share personal health data with some of their club staff, it raises questions about data privacy.

In collaboration with FIFA, FIFPRO published a “Charter of Player Data Rights” in 2022 to establish standards for the protection of professional footballers’ data.[47] The Charter outlines several rights for players regarding their personal data: being informed about data collection and use, accessing their data, and revoking consent at any time. Additional to the right to restrict data processing, ensure data portability, correct inaccurate data, file complaints, and request data erasure.

Therefore, even if the Charter provides clear direction for the desired strategy in protecting players’ data within football, players’ associations have yet to negotiate CBAs that protect athletes’ health data. If wearables and tracking apps could facilitate the emergence of a “menstrual consciousness”[48] among professional athletes, it may come at the cost of data security.

To protect athletes’ data, one interesting example is the CBA between the NBA and the National Basketball Players Association (NBPA) which includes a section on wearables, introduced in 2017 with a “Wearables Committee” consisting of three representatives from each organization.[49] This committee reviews requests and authorizes device use based on criteria like data security. In the current CBA, effective through the 2029-2030 seasons, an NBA team can request a player to voluntarily wear an approved device, provided the team gives a written confidential explanation of the tracked data, its meaning, and the benefits for the player.

NBA players have full access to all data collected from approved wearable devices. Team staff can also access this data, but only for player health, performance, and on-court strategic purposes. According to the CBA, this data cannot be used for other purposes, including contract negotiations or player transactions. If a team violates this rule, a grievance arbitrator can impose a fine of up to 250,000 US dollars.

For professional female athletes, establishing a “FemTech[50] Committee” in CBAs would be a significant step towards safeguarding data privacy by selecting menstrual tracking apps and wearables[51] that protects athletes, given that female health data can be criminalized in certain jurisdictions (for example, some tracking apps ask about a past abortion).

While recognizing the usefulness of female mobile health apps, researchers from King’s College London and University College London examined the 20 most downloaded applications on the UK and USA Google Play Stores.^[52] They found inconsistencies and conflicts in the information provided across privacy policies, data safety, and app interfaces. In the post-Roe v. Wade world, the researchers highlighted that the policies of 13 of the studied apps permit user data to be accessed by law enforcement, security authorities, or regulatory agencies upon request or subpoena. These applications, which act as a form of “intimate surveillance” pose significant risks through the oversharing of information. Additionally, when consent is given to a tracking app, it can transfer data to third parties, leading to “cascading consent,” where users unknowingly allow further data sharing. The researchers also found that these apps cross-reference user data with browsing information from search engines, increasing the risk of “de-anonymization.”

In a work context without clear guidelines on data usage, there are concerns about the protection of personal health data and the potential for misuse. It could negatively impact women’s rights at work, such as in non-selection decisions and discrimination.

The IOC Medical and Scientific Commission published a paper in 2023 extending the IOC consensus statement on methods for collecting epidemiological data on injury and illness in sport to include ten domains affecting female athletes’ health throughout their lifespan including menstrual and gynecological health.[53]

The Commission recommends that, given the sensitivity of the data collected, it is essential to ensure that the data is only used for the purposes agreed upon during the consent process. It also advises that data-collecting tools owned by third parties be examined to determine ownership and usage rights, with this information communicated to athletes to ensure informed consent. Additionally, it stresses that the data security of these platforms must comply with the data protection laws of the jurisdictions in which they operate.

Conclusion

Early June 2024, singer and comedian Farideh published a TikTok video of her new song “Female Body”, a satire making fun of the ignorance surrounding the female physiology.[54] The video went viral, garnering millions of views and transforming the comments section into a global discussion forum among women on the repercussions of the gender science gap on their health.

From menarche to menopause, half of humanity experiences nearly 400 menstrual cycles over the course of a lifetime.[55] Millennia of stigma and stereotypes of a normal biological process led to the current situation in which women and girls have a low literacy of their cycle, including elite female athletes.

International organizations are increasingly advocating for menstrual health, framed as a human rights issue. In 2022, the High Commissioner for Human Rights acknowledged a “menstrual movement” and recognized menstrual health as an essential part of reproductive rights.[56] In addition, the World Health Organization called for addressing menstruation from a health and human rights perspective rather than as a hygiene issue.[57]

In sports, the IOC, the supreme authority of the Olympic Movement, states in its Charter that its role and mission along with international federations and national Olympic committees is “to encourage and support measures relating to the medical care and health of athletes.”[58] The institution remains gender-neutral in its Charter, leaving the door open for its members to implement their own health policies.

In that regard, FIFA is trailblazing in sports by adding gender-specific policies to its RSTP, including “Menstrual Health,” which secures paid menstrual leave for professional football players. It is supported by a clear vision, outlined in the FIFA Female Health Project: to inform, research, educate, disseminate knowledge, and ultimately change the culture of football.[59] Increased research and education on female physiology, along with cycle tracking, could change the working conditions of professional female athletes by improving their health, well-being, and performance, provided that menstrual health data is protected. It could also reduce the stigma and normalize menstrual health at all levels of sport.

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)

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.

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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.

The growth of Ecuadorian Professional Football is undeniable now where we can find a solid project at Independiente Del Valle and strong structures such as Emelec, Barcelona, Liga de Quito adding the consolidation of more clubs as Delfin from Manta, Aucas and Universidad Católica from Quito, Guayaquil City and Orense from Machala.

All these clubs have played and achieved numerous victories on international tournaments in our region, either on Copa Libertadores, Copa Sudamericana or Recopa Sudamericana making Ecuador the third country on the statistics, surpassing Colombia, Chile, Paraguay, and Uruguay, were the clubs had an historic advantage against Ecuadorian Clubs.

Besides our strong clubs we have a lot of young talented players disputing their place in the best league around the world like Moisés Caicedo, Piero Hincapié, Pervis Estupiñan, Kendry Páez, Enner Valencia, among many others.

On our national youth teams, we have qualified for the last U-20 World Cup and U-17 World Cup in the last editions visibly showing the number of players fully trained by Ecuadorian Clubs.

But the question is how Ecuador have grown so much compared to other countries in the region having the obligation in many cases to “fight” (on a sense of disputing on football in a hand-to-hand position) against other clubs from a considered “bigger country in football”.

I would like to try in this article, to resume the next points that I consider vital for Ecuador for the growth shown over the last years:

1.    The birth of LigaPro

In my opinion, the birth of LigaPro is the most important key aspect that happened to Ecuadorian Professional Football because now Ecuador is organized by a particular entity dedicated only to growth of all the Clubs.  LigaPro was born on 2018 by a common decision taken from all First Division Clubs, to create a Professional League that has the competence to organize the Ecuadorian tournament corresponding to First and Second Division and to negotiate TV rights for them.

For 2023, LigaPro is working with a total amount of 26 Clubs, 16 from First Division and 10 from Second Division.  Besides that, LigaPro deals with Disciplinary Process, eSports, Female Football, Sports Compliance, Marketing and Ambush Marketing, Financial Fair Play, Sports Integrity, and Sports Corruption.  Taking care of all these situations has helped Ecuadorian Clubs to be more professional and create new departments such as sports law departments, sports marketing department, sports secretaries and more so.

Having LigaPro is the best decision for Ecuadorian Professional Football and is undeniable the positive change after the creation of LigaPro. 

2.    Investment on youth academy’s

Independiente del Valle has shown how a well-structured Club can compete on regional tournaments with Ecuadorian players developed by their own youth academies. 

Independiente del Valle has trust on a process, on their youth academy and on Ecuadorian players that with training and focus on their goals they can reach the best positions on every Conmebol Tournament.

This situation has taken other Ecuadorian Clubs to bet on youth academies and create more academies through all Ecuador to sign the best players in Ecuador and complete them with balanced squad of talented South American players. Now we can see how more clubs have joined the vision and are trying to invest in their youth academies and we can notice how Liga de Quito, Barcelona, Aucas, Universidad Católica, Orense, Emelec and others, are focusing on young players to strengthen their skills and introduce them to the first division teams in order to help them increase their abilities so they can be reliable on a near future and possibly work on a business that generates even more income to the clubs.

Investing in the youth academies has been very successful lately for Ecuadorian clubs, where you can see how top players are leaving behind big amounts of money for their clubs according to the release clauses drafted on those contracts for example, the cases of Denil Castillo, José Cifuentes, Piero Hincapié, Moisés Caicedo or the next gen of players such as Allen Obando, Óscar Zambrano, or Kendry Paéz.

3.    Legal Structure

It´s been 5 years since the creation of LigaPro, so now all Ecuadorian clubs know how to work and have a correct structure to participate in national and international tournaments. The knowledge acquired by Ecuadorian clubs thanks to the legal structure created by LigaPro is very helpful for them because now they have acquired all the necessary measures to work on the youth team, to organize their marketing departments, to comply with financial fair play avoiding possible bankruptcy situations, contracts drafting according to sports law principles, development of female football, protection of a healthy environment for football, etc.

All these situations have given Ecuadorian Clubs a particular advantage against other clubs in the region that don’t have a legal structured system to help them organize and to be able to participate correctly in the tournaments.

Conclusion.

Ecuador is on an important stage where they need to find a balance for the next years. Nobody can deny that the new young players are very talented, and they have the opportunity to move to very important clubs all over the world but now is the moment to demonstrate what they are made of. Ecuador is in its best phase in football with a lot of players coming out every year with incredible skills, so this is the right time to take a bigger step, be more ambitious and fight hand in hand against Argentina and Brazil for the first position on CONMEBOL.

I truly believe that Ecuador can look forward on disputing the first position on CONMEBOL thanks to the good governance, structured legal system, and qualities of the players.  Having a correct system makes it easier for the young talented players to show their skills and believe in their selves to compete for the first place at CONMEBOL.