Tag: sports law

Case Update: ‘Giwa v. Pinnick’ NFF Leadership Tussle

Having keenly followed the controversial ‘Giwa v. Pinnick’ case since 2014, yours truly was on hand at the Supreme Court today (20th February, 2017) to keep up with proceedings.

The current matter may not necessarily add significantly to the sports law jurisprudence in Nigeria, primarily because it simply entails whether or not the case earlier filed by the Giwa-faction, which was struck out, should be relisted. So, one does not believe the Justices of the Supreme Court – the apex court in Nigeria – have been presented with an opportunity to deliver a landmark decision in the Nigerian sports law context.

However, given the intrigues that this Nigeria Football Federation (NFF) leadership tussle has delivered both in and out of court, the case is worth following.

Brief History

Two factional elections into the Executive Board of the NFF were held in 2014, on 26th August and 30th September, which produced Chris Giwa and Amaju Pinnick respectively, each of whom claimed to have been elected President of the NFF. The Pinnick-led board was given recognition by the football authorities, including FIFA, which prompted the Giwa-led board (suing through its members led by Yahaya Adama) to go to court seeking to validate their election.

The case travelled back-and-forth through the Federal High Court, where the Giwa faction (following the intervention of former President Goodluck Jonathan, as reported) withdrew their case, which was then struck out on 30th October, 2014. Over a year later, with the end of the Jonathan Presidency and no end to the dispute, the Giwa-faction returned to court. On 8th April, 2016 the Federal High Court made an order relisting the case that was earlier struck out.

Upon Pinnick’s appeal, the Court of Appeal reversed the decision of the Federal High Court and in effect dismissed the application to relist the case. Mr. Giwa has now approached the Supreme Court to further pursue his application to relist his case.

The Supreme Court Proceedings

On the last court date – 16th January, 2017 – the Supreme Court had adjourned the case to 9th May, 2017 to determine, amongst other pending motions, a motion filed by the Pinnick-group lawyer, Festus Keyamo, requesting that the appeal be struck out. Mr. Keyamo is contending that the lawyer who signed the Notice of Appeal at the Supreme Court was not competent to do so in the circumstances that he had previously been barred by the Court of Appeal from appearing in the matter.

Presently, the Giwa faction requested the Court for an accelerated hearing of their own motions seeking for extension of time within which to file their appeal as well as for accelerated hearing of their appeal (i.e. before the return date of 9th May 2017).

The Supreme Court panel however delivered a quick ruling, stating that all circumstances were taken into consideration before the case was adjourned to 9th May and that no special circumstances had been shown as to why the adjourned date should be brought forward. The application was therefore refused, with the effect that the case will continue on 9th May, 2017.

Conclusion: The Road Ahead

There is indeed an incredibly long road ahead if the Giwa v. Pinnick dispute is to be resolved by litigation. Incredible because one struggles to see how a judicial solution can be reached ‘timeously’ in the present circumstances.

If the Supreme Court agrees to the relisting of the case, that would seem to take the substantive matter all the way back to the Federal High Court (i.e. for the Federal High Court to proceed to determine which is the valid election between Giwa and Pinnick), not to mention possible appeals therefrom.

On the other hand however, it could be the end of the road for the Giwa-faction if the Supreme Court decides on 9th May 2017, or thereafter, that there is no basis to relist the case that was earlier struck out.

Also, looking ahead to the possible implication if the judgment goes in favour of the Giwa faction, one wonders what effect such judgment would have on the ban imposed on Giwa and others. Earlier this month, FIFA announced a worldwide extension of the five-year ban imposed on Chris Giwa and four others (including Yahaya Adama and other members of his Board).

On 12th May 2016, the NFF Disciplinary Committee banned Christopher Giwa, Muazu Suleyman, Yahaya Adama, Sani Fema and Johnson Effiong from taking part in any football activity, owing to their breaches of NFF statutes and FIFA Code of Ethics (the charges included taking football matters to court).

Apparently, that would take us back to the cycle of imminent FIFA sanction on NFF for judicial interference.

Jos Hosts Crucial Triple-Header on Monday

 

In the build up to any high-profile football match, it is typical to see fans and spectators trooping towards the stadium and focus shifting to match ahead of kick-off. Come Monday, 26th September, 2016, Nigerian football focus will be on the city of Jos for a crucial 9:00am kick off in an unprecedented triple-header. The venue is not the Rwang Pam Stadium; rather it will be the Jos Division of the Court of Appeal.

The assigned Justices of the Court of Appeal shall be the umpires in three football cases listed for hearing on the day. The cases involve the Mr. Chris Giwa-led faction (seeking to lay claim to the mantle of leadership of the Nigeria Football Federation) and the NFF led by Mr. Amaju Pinnick; as well as a couple of cases stemming from the case filed by Mr. Mustapha Abubakar on behalf of Giwa FC, challenging the decision of  the League Management Company to expel Giwa FC for failing to honour three matches as stipulated in the League Rules. In recent years, Nigerian football has been embroiled in legal disputes, but never before have three cases, with the possibility of severe consequences on the administration of the sport, come up on the same day, before the same court at the same location.

So, why is Jos suddenly the host city of modern Nigerian football crisis? Also, why are the High Courts in Jos quick to interfere with sports administration by issuing injunctions and ex-parte orders? There is no disputing the role of courts as a sanctuary for justice; but the issue is not just about whether or not there is a valid grievance. The focal point is the procedure being adopted to seek redress – whether it is a sustainable means for the development of the sport.

It is common knowledge that the globally accepted norms and regulations governing football prohibit the taking of football dispute to ordinary courts of law. The point has often been stressed that this principle is not to deny an aggrieved party access to justice, but to deliver justice in a forum that promotes the speedy, amicable and specialist resolution of whatever sporting dispute there may be. Football administration worldwide favours arbitration and other internal mechanisms, which better serve these purposes.

The ripple effect of the current state of affairs where any aggrieved person can simply approach a court and obtain an injunction to stifle the administration of a professional sport is clearly being felt. It is high time our courts acknowledged the need for a sustainable reaction to sports disputes in Nigeria. This includes the acknowledgement of the peculiar nature of sports administration and the specificity of sport. Two examples of the global standard of sports jurisprudence, from which our courts can learn are illustrated in the decisions of the Court of Appeal of Paris, France and the Federal Court in Switzerland, briefly highlighted below.

In 1998, Laurent Piau filed a complaint against the FIFA Players’ Agents Regulations. The dispute eventually reached the Paris Court of Appeal, which in arriving at its decision to reject the appeal stated that sports organizations know the specific nature of each sport and are in the best position to apply the regulations to meet the objectives and to protect the ethics of the sport. While this is a pointer as to why football matters and disputes should be left to the internal specialist mechanisms, one wonders what would have been if a court had restrained the implementation of the FIFA Players’ Agents Regulations for the whole of the 18 years it took for the case to reach this decision.

Another example is the Swiss Federal Court, which refused to issue a preliminary injunction that would have allowed Russian athletes to compete at the recently concluded Rio 2016 Paralympic Games. In a further appeal against the International Paralympic Committee’s decision to ban Russian athletes from the Games for state-sponsored doping, the Russian Paralympic Committee’s request for an injunction was rejected on the ground that the interest of the sport governing body in fighting doping and in the integrity of the sport ordinarily outweighed the interest of the Russian Paralympic Federation in an immediate lifting of the suspension. What readily comes to mind is how the interest of a single supporter (or even a single club) will outweigh the interest of a governing body in implementing the regulations to preserve the integrity of competition, or the interest of all other participating clubs, players, supporters or even sponsors, etc., to the extent of issuing injunctions or orders to interfere with or even stop a professional league from running.

It will be apt to summarize by borrowing from the words of a Senior Advocate of Nigeria. According to Abdulhakeem Mustapha (SAN) in a recently published interview, the series of court cases on football matters will cripple the sport, if not checked. He advocated for the resolution of football disputes via the internal mechanisms, as is done in other parts of the world. By this, a preliminary check that a court should make when approached with a football matter, is to confirm whether or not the aggrieved party has explored the internal dispute resolution mechanisms. A party that has failed to resort the internal mechanisms is then usually referred back to the sports dispute resolution mechanism. This will certainly serve to prevent the opening of floodgates to endless law suits that will only serve to cripple the administration and development of football in Nigeria.

How the Court of Appeal Dismissed Giwa’s Case

I have just spent the past hour reading through the 53-page decision of the Court of Appeal in the infamous ‘Giwa case’ and thought to pen these thoughts.

On 25th July, 2016 the Court of Appeal, sitting in Jos, overruled the decision of the Federal High Court, which had earlier relisted the case, leading to controversy as to the effect of that decision, with the Giwa group claiming that the decision recognized Chris Giwa as the President of the Nigeria Football Federation (NFF).

Perhaps it is worth stating here that although the original case was actually filed by Yahaya Adama and another (on behalf of the Executive Committee of the Giwa faction) against the members of the defunct Executive Committee of the NFF (led by Aminu Maigari) and others, one will refer to both parties as “the Giwa group” and “the NFF” respectively.

The Court of Appeal Decision

The Federal High Court, Jos struck out the original case on 30th October, 2014. This was after the Giwa group had formally informed the court of their decision to withdraw their case – their reason being “to give greater consideration to national interest”. However, earlier this year, they returned to the Federal High Court, requesting that the case be relisted. On 8th April, 2016 the Court granted their request. The NFF then appealed to the Court of Appeal.

In its appeal, the NFF argued, amongst other things, that the case should not have been relisted after almost two years, since there was no cogent reason to do so.

In arriving at its decision, the Court of Appeal noted the following:

  • that it is not permissible for parties to jump in and out of court whenever they like;
  • that even though the case technically remained alive due to the fact that it was merely ‘struck out’ and not ‘dismissed’; what was the reason for it to be relisted after almost two years? More so, given the fact that the reason it was struck out in the first place was national interest.
  • was it suddenly in the interest of the nation to have the case relisted?
  • that the Giwa group did not at any time give any reason why it would now be in the national interest to relist the case.

Upon the above considerations, the Court of Appeal was of the opinion that it was justifiable to set aside the decision of the Federal High Court. It therefore dismissed the application of the Giwa group seeking to relist the case.

The Effect of the Decision

The implication of this decision is that the case remains struck out. This simply means that the Court – and the law – does not recognize any legal challenge to the NFF Presidency of Amaju Pinnick. Presently, this certainly should bring an end to any claim to the NFF Presidency by Chris Giwa.

In his many incursions against the NFF led by Amaju Pinnick, Chris Giwa had often hinged his audacity on the phrase “he who the law of the land recognizes”. One now wonders what his stance will be, given this decision of the Court of Appeal, the interpretation of which is devoid of controversy.

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Note: The decision in respect of the suit, Appeal No.: CA/J/119/2016 was delivered by Joseph Tine Tur, JCA on Monday, 25th July, 2016.

What Nigerian Courts Should Learn from Piau’s Case

Challenges to decisions and rules of sports governing bodies are not new. Despite the well-entrenched principle of self-regulation, sports governing bodies occasionally have to defend their decision-making in courts of law. The trend in Nigeria, particularly involving football disputes, is indeed worrying. The frequency of court cases and the mostly interim judgments that arise from them often generate a sense of instability, distraction from the core process of administration and ultimately lower the brand appeal from a business perspective.

What began 18 years ago, when Laurent Piau filed a complaint before the European Commission against the FIFA Players’ Agents regulations, came to a conclusion earlier this year. On 13 April 2016, in France, the Court of Appeal of Paris rejected Mr. Piau’s appeal against the decision of the High Court of Rennes relating to alleged violations of European Union law by FIFA. He had challenged provisions of the FIFA Regulations on the Status and Transfer of Players, which he alleged were contrary to European Union law.

In reaching its decision to reject his appeal, the Court of Appeal of Paris – in addition to stressing that the contested provisions of the FIFA regulations did not violate the freedoms (such as competition and the free movement of services) guaranteed by European Union law – stated that:

“… sporting organisations know the specific nature of each sport… [and] are best placed to establish and apply a set of regulations that meets the objectives of protecting the image and ethics of football… FIFA, an international sporting organisation, has the legitimate authority to determine the rules and monitor ethical matters [concerning the profession of players’ agents] at international level.”

Of particular interest here is this rationale behind the decision of the Court i.e. that sporting organizations are best placed to establish and apply their own rules and regulations and to oversee ethical matters. This rationale is certainly relevant to sports jurisprudence in Nigeria and indeed globally. It is standard procedure for courts to insist on recourse to the internal dispute resolution mechanisms available for football disputes, thus upholding the requirement that football matters are not to be taken to ordinary courts but rather to sport-specific tribunals that appreciate the specific nature of the sport.

Therefore, for our courts to give unfettered access to every football litigant who takes a case to court and to hastily grant obstructive interim orders is not only bad for the sport but also shows the lack of appreciation of the specific nature of the sport, which the Court of Appeal of Paris talked about.

It is high time our courts began to treat football disputes in the manner in which they treat other disputes that involve what is akin to an arbitration clause i.e. direct that the litigants revert to the internal dispute resolution mechanism which all parties signed up to. Also, it behoves the sporting organizations to ensure the availability of viable tribunals for the resolution of such disputes.

Understanding FIFA’s ‘No Court’ Rule

The ‘Giwa vs. Pinnick’ battle for the Nigeria Football Federation (NFF) Presidency has resumed and resurrecting with it is an order of the Federal High Court, Jos Division, which set aside the NFF election of 30th September, 2014 that brought the Amaju Pinnick-led board into office. On 11th April, 2016, FIFA issued a letter to Mr. Pinnick – whom it recognizes as the President of the NFF – warning that the implementation of the court decision “would likely be considered as an interference in the internal affairs of the NFF” (contrary to FIFA regulations), as a result of which sanctions would be considered, “including the suspension of the NFF”.

Many have reacted to the letter from FIFA with defiance, insisting that FIFA’s regulations cannot supersede Nigerian laws or judicial process. Such views are incorrect and this post aims to clarify why there is no attempt to subjugate national laws by the FIFA regulatory requirements of independence, non-interference and prohibition of recourse to regular courts.

The FIFA ‘No-Court’ Rule Explained

The FIFA Statutes prohibit members from taking disputes to regular courts of law, except where it is specifically provided for in the FIFA regulations (article 68(2)). Such exceptions include employment-related disputes as contained in the FIFA Regulations on Status and Transfer of Players.

Similarly, the NFF Statutes also include this ‘no-court’ rule in article 69(1).

It is important to understand that this rule does not deny a party with a complaint from seeking justice before a judicial body. The way the rule operates is, simply put – instead of going to a regular court, the aggrieved party should take the dispute to the Alternative Dispute Resolution (ADR) mechanism. The operation of the rule is similar to an ‘arbitration clause’ in a civil agreement, where the parties entering into a contract agree that in the event of a dispute, they will make recourse to arbitration rather than to a regular court. In fact, thIS FIFA rule must be read together with article 68(3), the latter part of which states that –

“Instead of recourse to ordinary courts of law, provision shall be made for arbitration. Such disputes shall be taken to an independent and duly constituted arbitration tribunal recognised under the rules of the Association or Confederation or to CAS.”

The aim is simply to ensure that football disputes are taken to specialist (sports-specific) tribunals, where they will be determined not only speedily but also with proper appreciation of the governing rules and the specific nature of sports.

The Rule and National Courts

Contrary to what some have argued, the FIFA ‘no-court’ rule does not in any way imply that FIFA regulations supersede national laws or seek to undermine the national judicial process. Rather, as stated earlier, it merely operates like an ‘arbitration clause’ in a civil contract. Thus, it should be enforced just as a court would enforce an arbitration clause which stipulates that disputes arising from the contract will be settled by arbitration rather than taken to the court.

Participation in association football could be viewed as a contract between the members/stakeholders to be self-regulated and be bound by the rules of the association.

Therefore, while it is not the case that the ‘no-court’ rule seeks to strip a national court of its powers or that the court lacks jurisdiction to hear the case, the court usually enforces the agreement by directing the party to take the dispute to the relevant sports tribunal.

Just as parties are encouraged to seek ADR in commercial disputes, the business of professional sport has necessitated the recourse to sports-specific ADR for speedy and specialist resolution of sports disputes.

Suggestions

If we must put an end to the frequent recourse to courts, it is crucial that there exists a viable alternative dispute resolution mechanism within the football (and sports) industry.

This is in two levels:

Firstly, within the football administration, there must be a national Dispute Resolution Chamber (DRC).  The NFF Statutes state that NFF shall provide the necessary institutional means to resolve any internal dispute that may arise between Members, Clubs, Officials and Players of NFF – article 4(3). It is on this basis that the statutes further envisage the establishment of an Arbitration Tribunal in article 68. It would suffice to say that this tribunal needs to be a full-fledged, specialist and independent arbitration tribunal.

Secondly, for sports in general, there is the need for the establishment of a national sports arbitration tribunal. On 25th May, 2012, the Planning Committee inaugurated by the National Olympic Committee to develop the legal framework/guidelines for the establishment of a Nigerian Court of Arbitration for Sport (NCAS) submitted its report, the implementation of which is still pending.

Conclusion

It is difficult to doubt that the establishment of a standard alternative dispute resolution mechanism for football will not only curb the frequent recourse to regular courts, but will also induce the courts to see that there is indeed an effective internal mechanism within the industry, to which court-goers should be referred.

The situation is aptly depicted by Adokiye Amiesimaka (Chairman of the NCAS Planning Committee) thus: “In the absence of an independent, neutral and reliable body in the prevailing sports structure to fairly and definitively resolve sports-related disputes, it is commonplace for athletes, administrators and other participants in sports to seek redress in civil courts”.

 

NPFL: Understanding the 3-Year-Minimum-Contract Rule

A lot has been said about the three-year-minimum-contract rule being implemented in the Nigeria Professional Football League (NPFL). Some have argued against it, while others have argued in favour of it. Whereas the aim of the rule is to enhance contractual stability and welfare of players, there are those who feel that it ties players down to contracts which clubs often fail to implement. Strangely enough, among the antagonists of this rule is the Association of Professional Footballers of Nigeria (APFON), whose aim is the labour-unionist goal of protecting the interest of players. The Association argued in a recent petition, that the rule enslaves players and encourages the abuse of players’ rights by clubs. Perhaps, the problem that antagonists have with the rule is the lack of proper understanding of what it entails and it is hoped that this piece will go some way to remedy that.

 

What is the three-year-minimum-contract rule?

The rule simply states that a contract between a club and a player shall not be for a period less than three years (or three seasons), subject to the stated exceptions. The rule is contained in section B, article 9.40 of the Framework and Rules of the NPFL, which provides as follows:

9.40:

Subject to the exceptions set out below, a contract between a Club and a Player shall not be for any period less than 3 calendar years provided that its expiry date is at the end of any season. The exceptions to this Rule are:

9.40.1:

contracts with Players who have played professional football for a total of 10 years or more, who may be contracted to play for not less than 3 months at a time;

9.40.2:

contracts with Contract Players under the age of 18 years which must not be capable of lasting for more than 2 years

So, unless a player has been a professional for up to ten years (who can sign a minimum of a three-month contract), or is below 18 years (who can sign a maximum of a two-year contract) a player contract in the NPFL must be for a minimum of three years.

The rule does not apply to loan deals neither does it prevent players from being signed on loan. The league rules allow players to be signed on loan; however, an academy or a lower league club cannot release a player to an NPFL club on loan and a loan agreement cannot be for more than one year.

 

Must the player remain at the club for three years?

This is perhaps one point that critics of the three-year rule fail to completely appreciate. It is important to note that the rule does not prevent a player from getting transferred to another club before the expiration of the three-year contract. A player may be transferred to another club after the first year of the contract (article B9.41). However, as is the common practice around the world, the club intending to sign the player must first negotiate with the club to which the player is contracted (article B9.27).

In addition, with some clubs being guilty of irregular payment of players’ salaries, the three-year rule does not tie a player down to a contract that is not adhered to by the club. The rule that permits a player to unilaterally terminate his contract for just cause is a global one and also applies in the NPFL. The league rules state that the terms of a contract must be strictly adhered to (article B9.45) and as has been the case in other leagues, where a player is not paid for up to three months, that is a ground for activating the ‘just cause’ rule.

 

The necessity of the rule

In the LMC’s response to criticism of the rule, the league organizers highlighted the situation that led to the implementation of the rule. Previously, it was common for players to be signed on one-year contracts and at the end of every season there would be a mass exodus of players. Players would automatically become jobless and were often only paid for the duration of the league season rather than throughout the calendar year. With clubs recruiting new sets of players every season, there was no focus on the development of players and this certainly has an adverse effect on club/player identity as well as branding.

The implementation of the three-year-minimum-contract rule thus serves the purpose of stabilizing the contract regime and giving players some level of job security. Also, the clubs would benefit from focusing on player development, which will not only provide a steady pool of players but also a source of revenue where players are transferred before the expiration of their contracts.

 

Conclusion

The current problems associated with player transfers and the disputes over player ownership are not as a result of the implementation of the three-year rule, rather they are as a result of non-compliance with standard procedure for transfer of players. Where a player desires to leave a club as a result of non-payment of salaries or some other dispute, it is not proper to simply switch camps and arm-twist the club into releasing him. If the club that intends to sign the player is not going to first negotiate with the player’s club and obtain prior written consent as required under the rules, the player must first take the steps to have his contract terminated.

Given the instability of player contracts and the lack of job security, the ever-changing squads and lack of club identity, the three-year-minimum-contract rule is certainly a step in the right direction. Interestingly, those that have criticized the rule have not proffered any alternative solution to the problems the rule was created to tackle.

 

Understanding the League Governance Structure in the NPFL: The LMC Model

 

Introduction

For the past couple of seasons, the Chairmen and Managers of the elite football clubs in Nigeria have – in addition to their on-field battles – been fighting to exclude the League Management Company (LMC) from the management and operation of the top-flight football league in Nigeria. This battle is based on what they deem to be their right to elect an Executive Board from amongst themselves to exclusively manage the league in which they participate. Historically, professional football league commenced in Nigeria in 1990 by virtue of decrees of the then Federal Military Government; however, since the incorporation of the Nigeria Football League in 2006, club officials have been elected to spearhead the management of the Nigeria Premier League. The past couple of seasons have witnessed a shift from this model, with an independent body responsible for the day-to-day management of the league and the implementation of the rules that govern it.

This new model apparently does not sit well with some stakeholders, chief among who are the club chairmen, who see it as taking the control of the league from them. The aim of this piece is to throw light on the issue of ownership of association football and to analyse the LMC league governance model vis-à-vis other models in different countries. It is expected that upon reading this piece, one would have a clear understanding of the true status of the LMC, its role, structure and the league governance model it is designed to operate. Then one should be equipped to make an informed decision as to the propriety or otherwise of this model for the advancement of league football in Nigeria.

 

Who Owns League Football in Nigeria

It is a common assertion by club chairmen (popularly referred to as “club owners”) that they own the league. They admit that over the past couple of seasons they have been pre-occupied with how to ‘reclaim’ the league from the LMC so as to manage it in accordance with what they perceive to be the provisions of FIFA and NFF statutes which, according to them, give the management of the league to the participating clubs via election. First, we will consider what the FIFA Statutes stipulate, before taking a look at the domestic statutes.

FIFA statutes:

The portion of the FIFA Statutes which deals with the status of Leagues and other groups of clubs is Article 18, which states that –

Leagues or any other groups affiliated to a Member of FIFA shall be subordinate to and recognised by that Member. The Member’s statutes shall define the scope of authority and the rights and duties of these groups. The statutes and regulations of these groups shall be approved by the Member

Whereas this provision could be interpreted to mean that recognition may be given to a league as an entity, it says nothing about giving ownership of any such entity to the participating clubs. Perhaps this argument is illuminated by Article 78 which stipulates that the Member of FIFA (the Nigeria Football Federation in this case) is the original owner of all rights emanating from competitions and events coming under its jurisdiction.

NFF statutes:

As seen above, the FIFA Statues empowers the relevant FIFA Member to define the scope of any competition under its jurisdiction and to – through its statutes – define the scope of any league or group of clubs. Therefore, the NFF Statutes should be the place to look for further clarification on the issue of league ownership or scope. In addition to the general statutory objective of encouraging the development of football in Nigeria, Article 2 of the NFF Statutes lists the objectives of the NFF as including to –

  • develop, promote, control and regulate the sport of association football in all its forms throughout the territory of Nigeria; and
  • organize competitions in association football in all its forms by conceding areas of authority to the various league

In addition, Article 78 states in clear terms that the NFF “organizes and coordinates” competitions including the Premier League and any other competition that the General Assembly may approve.

The above provisions show that the NFF has the responsibility for organization of league football (whether professional or amateur) and when read together with the FIFA Statutes, it appears untenable for ownership of league or association football to be ascribed to any entity other than the NFF. The principle that a league or other group of clubs is subordinate to and recognized by the NFF cannot be overstretched to connote an inordinate level of exclusivity or ownership by the clubs themselves.

There is an added perspective under the NFF Statutes, which speaks of the power of the NFF to assign/concede/delegate its league governance functions to another body or third party. Specifically, Article 34 states that the powers of the Executive Committee of the NFF includes the power to –

delegate tasks arising out of its area of authority to other bodies of NFF or third parties

The final point is based on what the NFF, through its statutes, perceives a League to be. The definition clause describes a “League” as –

any other body subordinate and duly affiliated to NFF, that has been granted the authority by NFF to organize a competition or competitions which has been sanctioned by the NFF in accordance with this statutes (emphasis mine)

The above should suffice to erase any doubt as to where ‘ownership’ of a league resides. Not only is the NFF the only body statutorily empowered to organize and regulate all forms of football (whether professional or amateur) in Nigeria, it is also empowered to assign or delegate that responsibility. It is a popular tenet that “you cannot give what you do not have”. There is nowhere in the statutes of either FIFA or the NFF where clubs are given ownership of the league in which they participate.

 

The Status of ‘Club Owners’

There is the need to clarify the status of the group of club chairmen. Whether referred to as ‘club chairmen’, ‘club owners’ or as a group of the clubs themselves, the NFF Statutes recognizes a league (collectively) as a member of the NFF and not merely the clubs or their officials. No mention is made in the statutes of an entity comprising the owners/managers/chairmen of the clubs by themselves. The Statutes only recognizes the players’ association, the coaches’ association and the referees’ association as members of NFF. It is worth reiterating that recognition is given only to the League body and not the chairmen of the clubs participating in the league. Therefore, the incident of club chairmen purporting to exclusively determine the structure and tenure of a league or league body recognized by the NFF is an aberration.

 

League Governance Models

Prior to the advent of the Nigeria Professional Football League (NPFL), the top-flight professional football league in Nigeria was known as the Nigeria Premier League (NPL). However, ever since a judgment of the Federal High Court, Abuja declared the NPL and the Nigeria Football League Ltd (the company under which it was registered) illegal, there arose the need to operate the top-flight league on a legitimate footing. An Interim Management Committee was appointed to oversee the league and workout modalities for its long term sustenance. This was an opportunity to fashion a modern league governance model that would not only meet international standards but also address peculiar domestic needs. This eventually led to the formation of the League Management Company (LMC), licensed by the NFF to manage the top-flight professional football league.

In order to put the LMC model in proper perspective, it is apt to analyze different league governance models that operate in some other countries. For this purpose, we will first consider four common types of league governance models, after which we will take a look at how the models are applied in the top-flight league in countries such as England, Germany, USA, Australia and the UAE.

Apart from instances where the national football association organizes the league by itself (in Ghana for instance, the Premier League is organized by the Ghana Football Association),  there are four common types of league governance models, viz:

  • the Club Delegate model: where the participating clubs elect or appoint delegates or representatives into the Executive Board which governs the sport;
  • the Independent Board model: where the Executive Committee is made up of persons who are not officials of the clubs participating in the league, but professionals with proven expertise;
  • the Commissioner model: where the league appoints a Commissioner who handles the day-to-day management of the league, and
  • the Operator License model: where the national association issues a license to a third party to manage the league.

The model adopted by any particular country is determined by the peculiar local circumstances. In modern times, many professional leagues have opted for the independent board structure because of its feature of employing seasoned business professionals to increase the technical capacity and revenue generating ability of the league. We will now look at the specific models applied by some countries.

England – the Premiership:

In 1992, top-flight English football clubs resigned from the Football League to operate a commercially independent league under license from the Football Association. The aim was to increase revenue accruing to the top-flight clubs (through commercial independence) and enhance their competitiveness amongst their European counterparts. Clearly, this model has worked, since the Premiership clubs in England have repeatedly recorded the highest spending ability among the top five European leagues.

The Premiership is managed by a Board of Directors, comprising a Chairman and Chief Executive Officer (CEO) appointed by the participating clubs, but none of whom is an official of any of the clubs. This guarantees administrative independence, integrity and absence of conflict of interest. The members of the Board are usually professionals with sound business track records, appointed to manage the league. Their experience has helped the league to attract lucrative broadcast and sponsorship deals, culminating in increased revenue for the clubs to build upon.

This is an example of the Independent Board governance structure.

Germany – the Bundesliga:

The German Football Association (DFB) is responsible for the overall governance of football in the country, while the League Association and its 100% subsidiary DFL (Deutsche Fußball Liga GmbH) are responsible for the management of the top two divisions (Bundesliga and Bundesliga 2). Unlike the Premier League which is registered as a limited liability company, each of the three bodies is a registered members’ association. The League Association is regarded as an independent member of the DFB and governed by its statutes.

While the DFB has overall responsibility for referees, the coaching system and disciplinary procedures, the day-to-day management of the league is handled by the DFL, which comprises a Chief Executive Officer and a Chief Operating Officer – neither of whom is an official of any of the participating clubs. There is however supervisory board, some of the members of which are club officials. Also, in the parent company, although the League Association Board contains representatives of the participating clubs, about half of the members are not officials of any of the participating clubs.

The point remains that the management of the league and implementation of its rules, including club licensing regulations are handled by an independent board. The DFL examines each club’s fitness to participate in the league according to sporting, legal, staffing, administrative, infrastructural, security, media-technical and financial criteria.

USA – Major League Soccer:

The Major League Soccer (MLS), operates as a single entity rather than as consisting of independently owned clubs. The MLS, via its investors, centrally owns the teams in the league and merely relinquishes some control and operation of clubs to investors in the form of franchise.

The MLS operates the Commissioner model, wherein the Board of the League appoints a single Commissioner, who is tasked with the day-to-day management of the league, including negotiation of contracts and enforcing the disciplinary process.

Australia – Australian Football League:

The Australian Football League (AFL) historically operated the club delegate governance structure with delegates elected from amongst the participating clubs. However, with the league and its clubs facing financial instability in the 1980’s, an Administrative Structure Review was conducted. In the findings published in 1993, parochial interests among the club officials who made up the league board were identified as a problem (Crawford, DA, ‘AFL Administrative Structure Review – Findings’, March, 1993, 5-7). It was then suggested that there was the need for a board that would act independently in the interest of the league as a whole and free from conflict of interest.

There was a shift from the club delegate model to the independent board structure due to the problems associated with the former, which led to the formation of the AFL Commission, consisting of persons who were not officials of the participating clubs. This model is acknowledged to have improved the fortunes of the league with increased finances as well as increased fan presence. The independent board has been hailed as having acted in an essentially corporate manner and operating the league as a business. In a review of ‘League Structure, Economics and Best Governance Practice in Metropolitan Australian Football Leagues’ published by the Australian and New Zealand Sports Law Association, the preferable league governance structure was said to be the independent board structure, where the interest of the league is placed above the interest of the clubs and by 2007, all the metropolitan leagues had followed the path of the AFL by switching to the independent board structure from the club delegate structure.

UAE – Arabian Gulf League:

The Arabian Gulf League in the UAE is controlled by a body known as the Pro League Committee. The Pro League Committee was established in February 2007, by virtue of a resolution issued by the UAE Football Association General Committee, to set a committee concerned with establishing a professional league according to the Asian Football Confederation (AFC) regulations.

The Pro League Committee is responsible for organizing the Arabian Gulf League and holds the league’s commercial rights, working under the umbrella of the UAE Football Association. The Pro League Committee thus is neither owned nor controlled by the clubs that make up the professional league in the UAE and its CEO is not an official of any of the participating clubs. However, it holds General Assembly (and other) Meetings together with the clubs to outline the needs and requirements of the league.

Having outlined one of its objectives as being to enhance the technical and administrative capabilities of the professional clubs, the emergence of the Pro League Committee in the UAE is an instance of the football association licensing its league operation function to a third party – the operator license model. Indeed, similarities can be drawn between the UAE model and what operates locally under the NPFL/LMC model, especially given the need to establish a truly professional league with clubs meeting the requisite standards.

 

The LMC Model

Whatever the sport, whatever the country, the governance model to be adopted is a product of the relevant rules and the peculiar domestic circumstances. For instance, the Premiership model in England was developed to meet the need for increased financial strength among English top-flight clubs in order to make them more competitive internationally. In Nigeria, the current challenge amongst domestic clubs is undoubtedly the need to adopt appropriate legal structure and to meet club licensing requirements. Over the years, the club delegate structure that had been in operation in the Nigerian league failed to make positive impact on the fortunes of the participating clubs and was plagued by power tussles and court cases. The resultant instability of leadership did not augur well for the development of the league, making it unattractive to potential sponsors and investors, keeping them away and inhibiting the growth of the league. These problems reached climax when a Federal High Court judgment declared the league body – The Nigeria Football League Ltd and the Nigeria Premier League operated by it – illegal, leading to the inauguration of an Interim Management Committee to oversee the top-flight league and to help secure its long-term future. This mandate ultimately led to the incorporation of the League Management Company (LMC) – a corporate body licensed by the NFF and saddled with the responsibility of operating the top-flight football league in Nigeria, in line with modern practice.

It seemed that not everyone appreciated or welcomed this new concept, due largely to either misinformation or a selfish abhorrence of change. The advent of the LMC indicates a paradigm shift from the club delegate model that operated in the NPL to a pragmatic blend of the independent board, club delegate and operator license models. The LMC basically operates under license from the NFF since, as highlighted earlier, the NFF is the institution vested with the responsibility of football administration in the country. The advantages of the LMC model include the injection of leadership stability, independence and the introduction of much-needed business expertise in the administration of the league.

The incessant power tussles led to frequent changes in leadership, which stifled the development of the league. Also, with the vast majority of clubs being owned by state governments, the club chairmen were political nominees of government with uncertainty of tenure and these government-owned clubs have over the years witnessed sudden changes in leadership, raising concerns as to what becomes of a club chairman who after being elected onto the league board, is suddenly removed from the club position. The clubs themselves have consistently failed to show any internal democratic or suitable corporate structure, which reflected in their dealings at league board level.

However, the LMC model does not seek to alienate the clubs from the administration of the league. The LMC operates through a Board of Directors which, in addition to an independent chairman, the CEO, two independent directors, as well as a representative of the NFF, includes three club delegates. This mix of league governance models appears suited to local circumstances, as it brings the advantages of independence and expertise without alienating the participating clubs. It is apt in view of the local circumstances – the need of bringing the clubs up to speed with the club licensing requirements, yet not involving them in the day-to-day management of the league and still ensuring effective communication between the league management and the club components. Also, in a joint communiqué published on the LMC website, at a plenary meeting with all the top-flight clubs held on 6 September 2013, it was agreed that the LMC model would be a modification of the independent board league governance model that operates in the Premiership in England (http://www.lmc-ng.org/pdf/COMMUNIQUE.pdf retrieved on 10 September 2014).

The Board of the LMC is subject to the powers of supervision and policy direction of the Members in a General Meeting (Art. 19 of the Supplementary Regulations), which includes the clubs. Also, the LMC model is not designed to impose an independent chairman or the two independent directors on the clubs, as the appointment process is done by a Selection Committee – which comprises two representatives of clubs, two members of the outgoing board, two co-opted persons with experience in human relations, management or law and one NFF representative. This selection committee is charged with recommending persons for appointment, based on set criteria. The criteria for independent chairman includes passion for the game, educational qualification not less than a certificate from a tertiary institution for at least 10 years prior to the date of his selection, an indemnity bond on terms prescribed by the board in favour of the company for a sum not less than 10% of the company’s authorized share capital at the time of appointment, of good corporate standing, a confirmed business address and capacity to sustain and drive the league to greater commercial success, goals and development. In addition, contrary to fears that have been expressed by some that certain individuals want to hijack the league in perpetuity, the chairman and independent directors have a tenure of four years in the first instance (renewable for only one further term of three years for purpose of stabilizing the league administration and winning the confidence of sponsors and partners).

The LMC must be firm in implementing the club licensing requirements, which is at the forefront of its tasks. In the MLS for instance, two clubs – Miami Fusion and Tampa Bay Mutiny – had their franchises withdrawn in 2002 for failing to meet the league standards. The development that the MLS and other leagues have witnessed is a reflection of their implementation of rules and maintenance of standards. The LMC wields powers to sanction clubs for failing to meet club licensing requirements and these powers must be exercised.

 

The LMC and the NFL

The implication of the Federal High Court judgment which declared both the NFL Ltd. and the Nigeria Premier League operated by it to be illegal is that no aspect of the administration or management of football in Nigeria can be conducted in the names of either NFL of NPL. Therefore, in carrying out its mandate to secure the future of the league, the Interim Management Committee realized that the way forward was to incorporate a new and legally recognizable body for the administration of the top-flight league. This led to the incorporation of the LMC as a new company, distinct from the NFL and the NPL, which did not inherit their assets or liabilities. This was apt because the court judgment erodes the identity and legal capacity of the NFL and the NPL. One significant contrast between the NFL and the LMC, which surprisingly has been ignored, is that whereas the NFL did not list the participating clubs as members or shareholders, the LMC gives shares to the participating clubs, in addition to naming two of their representatives on the Board.

One of the failings of the league governance model under the NFL was the inability to enter into valid contract as a result of the faulty corporate structure. In order to rectify this going forward, the new league structure required a vehicle through which it could enter valid contracts and attract corporate sponsorship; hence the registration of the LMC as a legal corporate entity – a limited liability company with its subscribers possessing legal personality. As required by the law governing registration of companies (the Companies and Allied Matters Act), the LMC as a limited liability company has shares, divided into two classes – ordinary and preference shares. The NFF only is entitled to hold preference shares, while the eligible clubs – upon meeting the club licensing requirements – hold ordinary shares together with the person who is appointed as the independent chairman for the time being. (i.e. when a chairman leaves the post, he does not walk away with the shares but transfers them to the succeeding chairman).

 

Conclusion

The legitimacy of the LMC model is presently hinged on the licensing agreement entered into between the NFF and the LMC and the next step would be to reflect same in the statutes of the NFF. This authority given by the NFF to the LMC to organize the NPFL is compliant with definition of a League in the NFF Statues – a body that has been granted authority by the NFF to organize competition.

As for the clubs, they need to embrace this new model, wake up to its positive realities and welcome the idea of ensuring that they improve technically and administratively to meet licensing requirements. The only election that the club chairmen should be talking about is that of electing their representatives into the LMC board; the NFF (represented by its President) and the independent chairman are already signed on as the initial subscribers, awaiting the notification of those selected by the clubs as their representatives on the board. The truth is that unlike the NFL/NPL, which did not have the league clubs or their representatives as members of the company, the LMC model is actually more inclusive of clubs.

In the light of the above, it is unfathomable why anyone would resist the progressive change that the LMC model represents, especially in the light of the improved sponsorship and broadcast deals already secured, which are testaments to the potential for development. All over the world, leagues and football clubs have had to review their legal structure and this has had a positive impact on not only their technical, administrative and financial capabilities. With the LMC model already on course, one is scared to imagine what it portends for the Nigerian league if the league governance model reverts to what it was under the Nigeria Premier League.

 

Setting Up Nigeria’s Court of Arbitration for Sport

As a result of the FIFA ban on Nigeria and in line with efforts to forestall similar crisis in future, the Minister of Sports, Tammy Danagogo has stated that he will immediately set in motion machinery to encourage the Nigeria Olympic Committee (NOC) to quickly activate the Nigerian Court of Arbitration for Sport (NCAS). This specialized court would be the venue for adjudication of sports disputes, away from the regular courts –which has been a source of run-ins with the world football governing body (FIFA) in times past. It is common knowledge that FIFA prohibits the taking of sports disputes to the ordinary courts of law and sports in general globally adopts alternative dispute resolution for sports disputes. Hence, the decision of the Minister is in line with international best practices.

The Nigerian Court of Arbitration for Sport, when set up, will be the national equivalent of the international Court of Arbitration for Sport (CAS). Based in Lausanne, Switzerland, CAS was set up by the International Olympic Committee (IOC) in 1984 as the judicial body that sits over sports disputes. Its jurisdiction is mostly of international dimension, thus there is need for countries to set up their national equivalent. For instance, Sports Resolutions UK is the national body that serves the purpose of sports-specific dispute resolution in the United Kingdom, while the Arbitration Foundation of South Africa (AFSA) is the appointed dispute resolution body for sports federations in South Africa. In Nigeria, with domestic sporting disputes often finding their way to ordinary courts in times past and the consequent threat of international sanctions, the current football crisis is a repeat scenario. Consequently, setting up of NCAS has been on the front burner for quite some time.

Interestingly, there is not a lot of work left to be done with regard to the setting up of NCAS. The National Council on Sports of Nigeria had already endorsed the decision of the Nigerian Olympic Committee (NOC) to establish the Nigerian Court of Arbitration for Sport as a solution to the recurrent sports (mostly football) disputes being taken to ordinary courts. On the 9th of June, 2011 a Planning Committee comprising lawyers from different parts of Nigeria was inaugurated by the NOC to develop the legal framework/guidelines for the establishment of NCAS. The committee, which was headed by the renowned Adokiye Amiesimaka, submitted its report to the NOC during the Annual General Meeting on the 25th of May, 2012. However, since then, it is not apparent that further steps have been taken by the NOC to actually constitute and establish the NCAS.

It is commendable that the Minister of Sport has embraced the need to set up the body. Now, rather than expend time and resources in commencing the process all over, all that needs to be done is to revert to the report of the Amiesimaka-led committee. Based on available commentaries, the job done by the committee included wide consultations and comprehensive review of Nigerian law and sports regulations, all culminating in the following conclusions:

  • Under Nigerian law, there are no statutory impediments to the use of alternative dispute resolution (ADR) mechanisms for the resolution of sports disputes, rather Nigerian law encourages the use of ADR;
  • the rules and regulations of Nigerian sports federations (including the Nigeria Football Federation) need to be amended to include recognition of the jurisdiction of NCAS, which is prerequisite to NCAS assuming jurisdiction;
  • the NCAS will save time and cost, as well as enhance affable and pragmatic resolution of sports disputes in Nigeria.

Indeed, the establishment of the Nigerian Court of Arbitration for Sport will be a huge step towards averting similar problems for the development of Nigerian football in particular and sports in general.

Dispute Resolution in Nigerian Football: the Need for a National Dispute Resolution Chamber

Article published on African Sports Law and Business JournalAfrican Sports Law and Business Bulletin, Issue 2/2014

 

1. Introduction

As sport has grown over the years in terms of commercial value, there has been a corresponding growth in sports-related disputes. This increased commercial significance of sport means that the stakes are higher than ever before. Not only are there heightened expectations from the on-field performance of sports men and women; there are also increasingly significant off-field obligations on all those involved in sports. Where obligations are unfulfilled, there must be a means of enforcing them. Also, when disputes arise, there must be a means of resolving them. These represent fundamental principles on which any society or industry thrives.

Traditionally, the main form of dispute resolution has been court-based legal proceedings i.e. litigation. However, in many jurisdictions, alternative dispute resolution (ADR) mechanisms have been embraced as a means to circumvent the challenges associated with litigation. These challenges are typically the inordinate length of time it takes for legal proceedings to be concluded by courts, the huge costs often incurred by litigants, as well as the acrimony that characterises such proceedings. The football world has likewise developed its own sport-specific dispute resolution mechanism, based largely on arbitration. The aim is to curtail the recourse to ordinary courts for the settlement of football-related disputes and the attendant disruptive problems associated with it. The point has often been made that where sport lacks a means within its structures to effectively and efficiently resolve sports-related disputes, seeking redress from the ordinary courts would be inevitable. This often disrupts the sports calendar and brings with it the typical challenges associated with litigation by being antagonistic, procedurally slow and relatively expensive.

In Nigeria, as with many other parts of the world, football is the most popular sport and has grown from a mere pastime to a means of economic empowerment. Based on a recommendation by the Fédération Internationale de Football Association (FIFA) in 2004, the Nigerian Football League (NFL) 1 became established as a professional football league and upon incorporation in 2006, landed its first sponsorship deal (worth N1.1billion over a four year period) with Globacom Nigeria Limited.2 As in other parts of the world, the number of football-related disputes in Nigeria has increased significantly in recent years and with it the ever-increasing need for an efficient football dispute resolution mechanism.

Follow the link to read or download the full article – http://www.africansportslawjournal.com/Bulletin_2_2014_Omuojine.pdf

LGBT Rights: Is Sport Pushing it too Far?

Introduction

There is a manifest increase in the global acceptance of lesbian, gay, bisexual and transgender (LGBT) as a lifestyle and also as the subject of human rights worthy of being safeguarded. From the classification of homosexuality as a mental disorder in 1952[1] to the passing of a resolution on the rights of LGBT by the United Nations Human Rights Council in 2011[2], more and more individuals and nations have begun to accept and/or tolerate unconventional sexual orientation and gender identity. Between 2008 and 2011, Fiji, Rwanda and Sierra Leone switched from opposing LGBT rights to supporting them at the UN and this growth in support is also manifest in the statement of Charles Radcliffe[3], viz:

“I think we have seen the balance of opinion amongst States really shifting significantly in recent years. Some 30 countries have decriminalized homosexuality in the last two decades or so.”[4]

The clamour for recognition and protection of LGBT rights has entered into the sporting sphere. Since sport has historically been an effective, albeit sometimes unwilling, campaign tool, LGBT advocates have seized the opportunity offered by international sporting events, as a platform for being heard. Similarly, sports administrators have used their sport to promote social causes. This is not implausible; after all, one of the fundamental principles of Olympism is for sport to serve as a tool for promoting a peaceful society concerned with the preservation of human dignity.[5]

During the 2011 FIFA Women’s World Cup, the coach of the Nigerian team, Eucharia Uche stated in a widely reported New York Times interview that lesbianism had been eradicated from the team and that homosexuality was ‘dirty’ as well as ‘spiritually and morally very wrong’. In response, the FIFA head of women’s competition, Tatjana Haenni criticised those comments, insisting that FIFA was against all forms of discrimination. In present day, as Russia prepares to host the Sochi 2014 Winter Olympics, there has been pressure because Russia, like Nigeria, has what is popularly referred to as anti-gay legislation. LGBT advocates are pushing for a rescission of the legislation, a boycott of the Games or reassignment of hosting rights.

Recognising sport as a veritable tool for promoting societal values and social change, this article takes a critical look at the use of sport as a tool for advocating the LGBT rights, taking cognisance of the fact that sport is apolitical and the debate that LGBT rights are yet to be accorded recognition on the scale of universal human rights.

Sports and Human Rights

Since the Beijing 2008 Olympics, the Human Rights Watch group has documented human rights abuses linked to sports and the hosting of international sporting events. These include forced evictions, abuses of migrant workers, media censorship, and a clampdown on civil society during China’s preparations for the 2008 Olympics; Saudi Arabia’s discrimination against women is sports, evidenced by unavailability of sporting infrastructure for women and the fact that the Kingdom has never sent a female athlete to the Olympics; Russia’s harassment of activists who are critical of the authorities’ preparations for the Sochi 2014 Winter Olympic Games, cases of migrant workers working on construction sites in Sochi who have been denied contracts and wages and who faced retaliation for protesting these violations, the authorities’ unlawful expropriations and forced evictions to make way for Olympic venues and related infrastructure and government’s failure to provide home owners whose properties are expropriated for Olympics-related projects with fair compensation or an effective mechanism to challenge the evictions.[6]

Historically, sport has been an avenue for challenging human rights abuses and canvassing their protection. The potential of sport as a means of advancing human rights causes can be gleaned from the vast audience figures that major international sporting events rake up. The competence of sport as a means of advancing human rights causes can be gleaned from the rules and principles of sporting organisations; for instance, the Olympic Charter seeks to place sport at the service of the harmonious development of humankind, with a view to promoting a peaceful society concerned with the preservation of human dignity, as well as hinder any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise.[7] Also, even at the comity of nations, in 2011 the Human Rights Council of the United Nations adopted a resolution urging member States to “prevent, combat, and address all manifestations of racism, racial discrimination, xenophobia and related intolerance in the context of sporting events”.[8] Sporting tenets such as fairness and equality also form the bedrock of human rights.

Incidents such as the Black Power/Human Rights Salute in the Mexico 1968 Olympics[9] and the Australian aborigines’ protest at the Sydney 2000 Olympics are examples of sporting events being used to amplify protests and human rights advocacy. There have also been protest against and calls for boycott of various sporting events recently hosted by nations such as Azerbaijan, Bahrain and Ukraine, due to their poor human rights records. As long as sports and human rights continue to share common ideals, the relationship is bound to continue.

The Issue with LGBT Rights

As highlighted earlier, LGBT rights have grown in recognition over the years. Apart from socio-political recognition, there is also growing recognition for LGBT in the sporting landscape – from sports administrations canvassing sporting equality for people with LGBT orientation to sportspersons openly declaring such orientation[10].

That sport should be used to promote human rights and prevent discrimination is apposite. However, the question as to what type of ‘rights’ sports can and should promote is in issue. In other words, what is the basis for the support for LGBT rights in sporting circles and by sports governing bodies? Are LGBT rights recognised as part of the universal human rights which sport seeks to promote?

The Universal Declaration of Human Rights (UDHR)[11] and the treaties that make up the International Bill of Human Rights[12] constitute the primary resource for universally accepted basic human rights. Universal human rights and freedoms are elaborately spelt out therein, including the rights to dignity of the human person, to freedom of opinion and expression, to freedom of assembly and association, to freedom of thought, conscience and religion, etc. It even allows the freedom to change orientation such as religion and belief, as well as the freedom to impart ideas or orientation on others. Nonetheless, it is pertinent to note that these rights ascribed to individuals are not without limitations, specifically with regard to the rights and freedoms of other individuals as well as for the greater good of society at large. Specifically, the UDHR provides that:

“ In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”[13]

It is inherent from the above that the just requirement of morality is a significant consideration in the limitation of human rights. It is a basis for legal limitations such as those regarding unlawful acquisition of property through stealing and the expression of nudity in many jurisdictions, etc. However, it is obvious that society is losing touch with this moral requirement and it is as a result of this that advocates seek to smuggle LGBT rights into reckoning as a basic human right. The UDHR states that “men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family”.[14] These wordings, coupled with the recognition of the ‘family’ as the “natural and fundamental” unit of society entitled to protection by society and the State[15] can hardly be inflated to accommodate the ‘unnatural’ sexual orientation and gender identity that LGBT contains.

Besides the issue of morality, there is the need to consider the legal competence upon which sport may be used to promote LGBT rights. In addition to the fact that there is no indication of LGBT rights being amongst the universally protected rights in the UDHR presently and certainly not at the time of enactment, it is instructive to note that at the United Nations level, the General Assembly has not officially recognised LGBT rights as a basic human right. This is in spite of the open support by prominent political figures such as the UN Secretary-General, Ban Ki-moon and American President, Barack Obama. Presently, amongst UN member States, the balance of opinion is basically divided between the 94 States that back the 2008 declaration and the 2011 Human Rights Council resolution in favour of LGBT rights[16] and the 54 States backing the 2008 statement opposing LGBT rights.[17] The apparent suggestion that the numbers favour the pro-LGBT States is perhaps whittled down upon consideration of the fact that another 46 States refrained from supporting or even opposing LGBT rights. Overall, there was inadequate support for the adoption of an official UN General Assembly resolution supporting LGBT rights.

The question then arises as to the basis or legal competence upon which sports administrators promote LGBT rights. In 2011, African political leaders were critical and defiant towards reports that the UK Prime Minister had threatened to withdraw aid from countries with anti-gay legislation. Clearly, in the absence of any legal obligation by such countries to recognise LGBT rights, aid became a tool aimed at pressuring such countries into according recognition to those perceived rights. It is a scenario where political machinery is at play. Sport is decidedly not a political tool and the Olympic Charter, for instance, prohibits all kinds of demonstration or political, religious or racial propaganda at Olympic events.[18]

From the foregoing, it may not be untenable to contend that the canvassing for LGBT rights through sports amounts sports being used for political propaganda. If this argument is sustainable, then any implementation of calls for boycott or reassignment of hosting rights would constitute discrimination against countries that do not adopt the socio-political ideologies of those advocates. This would clearly contradict item 6 of the Fundamental Principles of Olympism[19] highlighted earlier; it provides as follows:

“Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement.”

The above principle which prohibits discrimination clearly protects countries as well as individuals; hence, if there is no proper basis to sanction a country for failing to protect what is a flawed perception of a human right, then it translates to political discrimination for political leaders with the backing of sports administrators to question the participation of such countries in sports and their hosting of sporting events. With the U.S., the E.U., Brazil, South Africa, Israel, Japan, South Korea amongst the pro-LGBT group, predominantly African and Asian countries form the opposition hanging on to traditional norms and values. In particular, Nigeria and the significant European exception – Russia have recently been the target of pressure from the sporting world on account of their ‘anti-gay laws’. The IOC must stay reminded of its statutory role to oppose any political or commercial abuse of sport and athletes.[20]

In light of the fact that certain countries or regions are open to LGBT rights while others are against it indicates a difference in cultural attitudes. The UN Secretary-General, Ban Ki-moon (whose country – South Korea supports the pro-LGBT declaration) revealed his political leanings when he declared in his 2010 Human Rights Day speech that as “men and women of conscience, we reject discrimination in general, and in particular discrimination based on sexual orientation and gender identity”; and in apparent recognition of the significant opposition, he added that when there exists “tension between cultural attitudes and universal human rights, rights must carry the day”[21]. The question that readily comes to mind is this – are LGBT rights indeed “universal human rights”?

It is perhaps in recognition of the fallible nature of the pro-LGBT rights argument that the IOC has refrained from taking a decisive stand in opposition to the anti-gay law which operates in Russia and which has been the subject of criticism and pressure. The IOC would instead be constrained to regard the pro-LGBT clamour in the context of the Sochi 2014 Games as political demonstration and propaganda, which is prohibited by the Olympic Charter.

Toonen’s Case

The 1994 decision in the case of Toonen v. Australia[22] is viewed by LGBT protagonists as a landmark. Nicholas Toonen, a resident of the island state of Tasmania, Australia brought a human rights complaint before the United Nations Human Rights Committee challenging Sections 122(a) and (c) and 123 of the Tasmanian Criminal Code, which criminalise consensual sex between adult males in private. He argued that they constituted a violation of his rights to privacy and freedom from discrimination guaranteed under Articles 17 and 26 respectively of the International Covenant on Civil and Political Rights (ICCPR).[23] His argument was hinged on, inter alia, the position that the law does not distinguish between sexual activity in private and sexual activity in public, thus bringing private activity into the public domain; and that its enforcement results in a violation of the right to privacy since it enables the police to enter a household on the mere suspicion that two consenting adult homosexual men may be committing a criminal offence.

It is worthy of note that the Committee, in ruling in favour of Toonen, based its decision on the preservation of the right to privacy vis-a-vis the arguments highlighted above, without delving into the issue of the law being a violation of the right to freedom from discrimination.  Also, in answering the question raised by the Australian government as to whether sexual orientation may be considered as a basis for freedom from discrimination under article 26[24], the Committee responded by stating that it “confines itself to noting, however, that in its view the reference to “sex” in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation”. In addition to deliberately refraining from hinging its decision on imputing a right to freedom from discrimination on account of sexual orientation into article 26 of the ICCPR, the conscious use of the words “confines itself to noting…that in its view” connote that the UNHRC cannot be said to have created an official UN-backed LGBT right on the strength of the decision in this case.

Conclusion

It would be imprudent to ignore the rising global trend in acceptance and publicity of LGBT orientation, even within countries that are opposed to same. However, the traditional and moral values of these sovereign entities should be respected both in the political and sporting contexts. Regardless of the lure of the ever-increasing scope of civil liberties, sport must stay confined to the limits core values from which it earned it peculiarity. If sport were to become a ready political tool, it would only be a matter of time before it lost its claim to self-regulation.

It would be unfair to ignore the extra-judicial harassment and abuses faced by LGBTs. Whether unconventional sexual orientation and gender identity are expressly prohibited by extant laws or merely dissuaded by societal norms and values, extra-judicial harassment and abuse of people with LGBT orientation amounts to a violation of the recognised basic human rights, such as the rights to due criminal justice procedure and/or freedom from torture, cruel, inhuman or degrading treatment or punishment.[25]

The point must be stressed that whereas LGBT orientation should not be the basis for harassment or human right abuse, the freedom to possess, practice and/or impart such unconventional sexual orientation and gender identity are presently not accorded the status of (basic) human rights; therefore, for sports to be used to promote LGBT orientation is at worst misplaced and at best premature.

 


[1] The first edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association in 1952 classified homosexuality as a mental disorder. However, following research and studies, homosexuality was declassified in from the DSM in 1973.

[2] Pursuant to the resolution, the UN High Commissioner for Human Rights presented a report on Discriminatory Laws and Practices and Acts of Violence against Individuals Based on their Sexual Orientation and Gender Identity A/HRC/19/14.

[3] Head of Global Issues Section, Office of the High Commissioner for Human Rights.

[4] United Nations News Centre: http://www.un.org/apps/news/story.asp?NewsID=40743#.Ugo739JQHVw (retrieved on 13th August, 2013).

[5] The Olympic Charter.

[6] Human Rights Watch, Statement on sports and human rights at the UN Human Rights Council, http://www.hrw.org/news/2012/02/27/statement-sports-and-human-rights-un-human-rights-council  (retrieved on 13th August, 2013).

[7] Fundamental Principles of Olympism, as contained in the Olympic Charter.

[8] “A world of sports free from racism, racial discrimination, xenophobia and related intolerance”, HRC resolution A/HRC/RES/13/27.

[9] http://en.wikipedia.org/wiki/1968_Olympics_Black_Power_salute (retrieved on 13th August, 2013).

[10] In April 2013, NBA player Jason Collins became acknowledged as the first openly gay athlete in a major team sport. This followed the open declaration of the likes of professional boxer, Orlando Cruz and U.S. female soccer player and Olympic Gold Medalist, Megan Rapinoe.

[11] Adopted by the General Assembly of the United Nations in 1948, as “the equal and inalienable rights of all members of the human family”.

[12] Comprising the UDHR (adopted in 1948), the International Covenant on Civil and Political Rights (adopted in 1966 and entered into force in 1976) and the International Covenant on Economic, Social and Cultural Rights  (adopted in 1966 and entered into force in 1976) .

[13] Article 29(2).

[14] Article 16(1).

[15] Article 16(3).

[16] HRC resolution A/HRC/RES/13/27.

[17] 57 member States had signed the statement in 2008, but by 2011 three switched to supporting the resolution in favour of LGBT rights.

[18] Rule 50(3).

[19] The Olympic Charter.

[20] Rule 2(10) ibid.

[21] See paragraph 2, Introduction to Report of the United Nations High Commissioner for Human Rights on ‘Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’, supra.

[22] University of Minnesota Human Rights Library, http://www1.umn.edu/humanrts/undocs/html/vws488.htm (retrieved on 14th August, 2013).

[23] A treaty adopted by the UN General Assembly, which forms part of the International Bill of Human Rights.

[24] “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

[25] Articles 5, 10 and 11 of the Universal Declaration of Human Rights.