Sports disputes arise more often than those outside the industry realise and can take on many forms, from the complex and contentious, such as doping and integrity disputes, to the more straightforward disputes, such as employment issues. Just as in other business industries, access to justice and well-structured resolution mechanisms must be implemented in order to maintain the integrity of the sport as well as maintain good relationships between stakeholders.
Borrowing a leaf from the English system, the English FA Rule K is a fantastic example of how an industry can self-regulate and handle internal disputes amongst all the spectrum of its stakeholders using the instrumentality of arbitration. In Nigeria, on the other hand, the Arbitration and Mediation Act 2023 is the principal legislative instrument for the adoption of the ADR mechanism for the resolution of disputes in all sectors of the economy. This article analyses how the sports sector in Nigeria can draw inspiration from the application of the English FA Rule K, applying the Arbitration and Mediation Act 2023 to achieve a structured dispute resolution process within the sports industry.
What is FA Rule K?
The FA Rule K sets out a detailed arbitration process specifically designed for resolving disputes in English football. It ensures that all conflicts between participants, including players, managers, and clubs, are handled through a structured and impartial arbitration system. This rule has set a high standard for dispute resolution in sports, not just in England but globally, given its reputation for promoting fairness and efficiency.1
The Nigerian Arbitration and Mediation Act offers a comprehensive framework for arbitration and mediation across various sectors, including sports. This act underscores the need for alternative dispute resolution (ADR) mechanisms that can address the unique challenges faced by the sports community in Nigeria.
In exploring these frameworks, we will examine how the principles and practices from the United Kingdom can be adapted to enhance the resolution of sports disputes in Nigeria. By learning from the UK's experience, Nigeria can develop more effective and swift ADR processes that uphold the integrity of the sport and foster harmonious relationships among its stakeholders.
BACKGROUND TO THE INTRODUCTION OF THE FA RULE K IN THE UNITED KINGDOM.
The introduction of FA Rule K was spurred by a need to establish a clear and efficient arbitration process for resolving disputes within English football. Prior to its introduction, disputes were often handled through traditional legal channels, which could be time-consuming and costly. The FA recognised the importance of having a specialised mechanism to address conflicts quickly and fairly, ensuring that the sport's integrity and smooth functioning were maintained.
FA Rule K was designed to provide a structured arbitration process that would be accessible, impartial, and binding on all parties involved. This rule aimed to reduce the burden on the courts, expedite dispute resolution, and provide a consistent approach to handling conflicts in football. By implementing this rule, the FA sought to promote fairness, transparency, and efficiency in the resolution of sports disputes, ultimately benefiting all stakeholders in the football community.
THE JURISDICTION QUESTION UNDER THE RULE K.
It is a standard practice for parties in a dispute to use arbitration only when an arbitration clause exists in the agreement between the parties. Rule K(1) of the Regulation provides thus:
'(a) Subject to Rule K1(b), K1(c)and K1(d) below, any dispute or difference between any two or more Participants (which shall include, for the purposes of this section of the Rules, The Association) including but not limited to a dispute arising out of or in connection with (including any question regarding the existence or validity of):
- the Rules and regulations of the Association, which are in force from time to time;
- the rules and regulations of an Affiliated Association or Competition which are in force from time to time;
- the statutes and regulations of FIFA and UEFA, which are in force from time to time; or the Laws of the Game
shall be referred to and finally solved by arbitration under these Rules.'
From the above provision, any agreement that relates to or for applicable within the football industry in England is by law subject to arbitration, and parties cannot of their own free will decide to include a different means of dispute resolution in their agreement.
The regulation goes ahead to determine who the 'participants' are under this regulation, whose contracts are under Rule K(1) of the Regulation above, subject to the FA Arbitration Tribunal. 'Participants' are defined under the regulation as:
'Affiliated Association, Competition, Club, Club Official, Intermediary, Player, Official, Manager, Match Official, Management Committee Member, member or employee of a Club and all such persons who are from time to time participating in any activity sanctioned either directly or indirectly by The Association'
In an interesting case on the application of the Rule K to defined participants above, whether or not the parties included arbitration in their agreement. Davies v. Nottingham Forest Football Club Limited2 In this case, there was no prior explicit incorporation of Rule K arbitration in the player's contract. However, the case is notable for the Judge's decision that the parties were still bound by an arbitration agreement due to their adherence to the Rules. The Judge in his reasoning asserted that "Anyone who participates in the game of football (certainly at the professional level) is fully aware of the importance and the standing of the rules" (paragraph 16.c).
It would appear from the decision of the court in Davies above, and successive other decisions, as in Bony v. Kacou & Ors.3 The question that activates the jurisdiction of the FA Arbitral court is a much larger one than being an ordinary 'participant' within the meaning of Rule K(1) above; the question is whether the dispute among the parties is a 'football dispute'. If this question is answered in the affirmative, then the jurisdiction of the FA Arbitral court will be activated.4
ARBITRATION AND MEDIATION ACT 2023 AND THE SPORTS INDUSTRY.
A key aspect of the Arbitration and Mediation Act 2023 is its replacement of the previous Arbitration and Conciliation Act. This change builds on Nigeria's initial adoption of the New York Convention, which governs the enforcement of international commercial dispute resolutions. This adoption is a significant advancement, particularly for Nigeria's economic landscape and the sports sector. Before now, various sporting federations and other sporting bodies have had to rely on their organisation's internal set of enforcement mechanisms in order to enforce foreign procured Arbitral awards in Nigeria. But for the first time, by virtue of Nigerian law, foreign arbitral awards under the New York Convention are enforceable in Nigeria.
The following are Sections of the Arbitration and Mediation Act that are particularly relevant to the sports industry:
- Enforcement of Arbitration Agreements: The Arbitration and Mediation Act (AMA) enforces arbitral agreements, regardless of whether they are explicitly written. As long as evidence of the agreement exists in any form, including electronic communication, it is enforceable. This flexibility is particularly advantageous for sports contracts and agreements, many of which are conducted electronically.5
- Third-Party Funding: The AMA makes provision for funding by third-parties for the purpose of commencing arbitration. Practically, this suggests that an individual or an organisation that is alien or unrelated to the dispute or the parties themselves can provide financial support to either of the disputing parties involved in the arbitration process. 6 This is potentially a game-changing provision, especially as it relates to the sports industry, where the bargaining and financial power is skewed against vulnerable sports stakeholders such as athletes. Third parties in Nigeria may now fund the arbitration process of indigent athletes and local sports bodies.
- Interim Measures: The AMA grants the various arbitral tribunals the power to make interim orders to protect the urgent and immediate interests of the parties during arbitration proceedings.7 This is essentially an important provision as time is a precious resource in sports, whether it relates to an important event that takes place at a specific time of the year and needs to go on notwithstanding the arbitral proceedings or the career of an athlete that is dependent on his participation in an international sporting event. This provision will ensure that arbitral tribunals are empowered to serve justice between the parties, whether on an interim or permanent basis.
- Electronic Communications: in line with contemporary practice, the AMA makes provision for electronic formats of communications, this includes but not limited email, chats on social media applications as a valid making an arbitration agreement, this makes it easier for parties to enter into arbitration agreements, conclude third party sponsorships, and even conduct virtual proceedings without the need for physical contact.8
- Stay of Proceedings: The AMA provides that the courts must stay proceedings in matters before it whenever there is an existence of a valid arbitration agreement between the parties, the only exception, however, is in circumstances where the arbitral agreement is void or inoperative.9 This provision caters to the intention of the parties at the time of entering the disputed agreement.
THE NATIONAL SPORTS COMMISSION, THE ARBITRATION AND MEDIATION ACT 2023 AND THE SWIFT RESOLUTION OF SPORTS DISPUTES IN NIGERIA.
In October 2024, as a result of a cabinet reshuffle by President Bola Ahmed Tinubu, the Ministry of Sports and Youth Development was decommissioned permanently, and the National Sports Commission was reinstituted (for the 4th time), making it the Apex sports administrative body in Nigeria. A chairman was subsequently appointed to manage its affairs. It goes without saying that all sports federations and parastatals in Nigeria fall under the supervision of, and answer to, the Commission. Thus, these federations and parastatals are within the policy direction of the commission, making the implementation of a single dispute resolution mechanism across the sports industry in Nigeria a possibility.
The National Sports Commission currently operates under Decree 34 of 1971, which was the regulatory framework when it was first founded under the administration of General Yakubu Gowon. This legislative framework has, however, become obsolete and no longer serves the purpose of delimiting the administrative structure of the commission in 2024. A new bill for the establishment of a 21st-century National Sports Commission has since gathered dust within the Nigerian legislative Chambers, which would definitely hamper the efficient functioning of the newly revived Commission. It is against this background, doubtful whether the Commission indeed possesses the requisite legal wherewithal to embark on far-reaching reforms in the sports sector, in the absence of a legislative framework defining the scope of its powers and responsibilities. Nevertheless, the Commission possesses sufficient executive delegated power to, in the interim, commence the process of implementing its renewed mandate.
Against the backdrop of the National Sports Policy 2022-2026 which classifies sports as a business for the first time and emphasises the promotion and the private ownership of sports franchises in Nigeria, and the examination of the Rule K Arbitration by the English Football Association it becomes clear that there is an urgent need to reduce government participation in sport through its ownership and administration of the various sports franchises across the country, and allow the private sector to drive growth of this sector. The role of government is to provide an enabling environment, pass the laws and policies to assist stakeholder participation, but allow the private sector to take the reins. To avoid the sun setting on our submissions, we make the following recommendations:
- Speedy passage of the National Sports Commission bill in order to delineate the scope of the powers and responsibilities of the newly reconstituted National Sports Council.
- Building on the sports industry-friendly Arbitration and Mediation Act 2023, to enact an Arbitration Policy for the sports industry in Nigeria.
- Understand the English FA Rule K so as to adapt the same subject to local circumstances.
- Train specialised arbitrators to man the Sports Arbitral Body.
Footnotes
1. Grahame Anderson on FA Rule K Arbitration Jurisdiction Challenges, < https://littletonchambers.com/grahame-anderson-on-fa-rule-k-arbitration-jurisdiction-challenges/ > accessed 9 December, 24.
2. [2017] EWHC 2095 per HHJ Bird
3. [2017] EWHC 2146 (Ch.) at para. 33-35 per HHJ Pelling QC
4. ibid.
5. Section 2(3) of the AMA 2023
6. Section 62 of the AMA 2023
7. Section 20 of the AMA 2023
8. Section 73(5) of the AMA 2023
9. Section (5) of the AMA 2023
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