Hits & misses of the National Sports Act, 2023 

The National Sports Act of 2023 (NSA) was signed into law by the President on August 17, 2023.

The aim of the act is to promote sports and recreation among Ugandans. The act is yet to be gazetted for it to come into effect. That said, it is great that a futuristic law is now in place to regulate the sports industry instead of the obsolete National Council of Sports Act Cap 48.

The NSA introduces some interesting proposals but also has shortcomings. For this article, I will assess the effectiveness of Part IX of the act, which deals with the settlement of sports disputes through arbitration. Section 55 of the act provides for settlement of sports disputes through arbitration and it states as follows:

(1) The settlement of sports disputes shall be by arbitrators who shall be appointed under this part.

(2) The Minister shall appoint arbitrators from nominations made by the Council and each national sports association and national sports federation.

(3) The parties to a sports dispute may choose at least three arbitrators from the list of arbitrators appointed under subsection

(2). My understanding of the above provisions is that all sports disputes are to be resolved through arbitration presided over by at least three arbitrators chosen from a pool of arbitrators appointed by the minister of Education and Sports.

Whereas it was well-intentioned for the formulators of the law to provide an alternative dispute resolution mechanism within the NSA, the obligatory requirement to arbitrate provided therein is a travesty to ADR.

For starters, the act does not define what amounts to a sports dispute. Good draftsmanship requires the law to define terms that are likely to cause controversy in its definition section for purposes of clarity. Otherwise, it creates ambiguity in the application of the law.

Secondly, as an arbitration practitioner, I am aware that the foundation of every arbitration proceeding is the arbitration agreement that represents the consensual undertaking by the parties to refer any disputes that may arise between them to arbitration for final resolution.

This is what is commonly known as party autonomy. Party autonomy anticipates the freedom of the parties to an arbitration agreement to decide on pretty much anything to govern the resolution of their disputes, including the choice of venue of arbitration, the governing laws, the seat of arbitration, the number of arbitrators, and the payment of costs among other things.

Therefore, to compel parties to resolve their disputes through arbitration using legislation defeats the purpose of arbitration. This is because arbitration is meant to provide an alternative choice to the ordinary court process already provided for under pre-existing laws.

One can also argue that the legislation in Sec. 55 of the National Sports Council Act, which requires parties to resolve sports disputes through arbitration, is a violation of Article 139 of the Constitution of the Republic of Uganda 1995 (as amended), which grants the High Court unlimited original jurisdiction over all matters.

Section 56(1) states that each party involved in a sports dispute is responsible for their own expenses during the arbitration process. However, this contradicts the principle of ‘costs follow the event,’ which means that the successful party to a dispute should be able to recover their reasonable costs.

In other words, winning a dispute should not only result in an award but also compensation for the expenses incurred during the process. Additionally, this provision not only deprives the arbitration tribunal of its discretionary powers to decide on the award of costs, it also discourages individuals who cannot afford arbitration fees from bringing their disputes forward because there is no possibility of recovering their expenses at the conclusion of the process.

Lastly, Sec. 57 of the NSA requires every national sports association or federation to include a provision on arbitration in their constitution and punishes the ones that don’t comply by denying them registration under the Act. This is discriminatory and contravenes Articles 42 of the Constitution.

Therefore, the National Sports Act 2023 has missed an opportunity to launch arbitration as the dispute resolution mechanism of choice for all sports-related matters. This could have been achieved by establishing a sports arbitration center independent from National Council of Sports or any other sports administrative body.

The writer is an advocate at Muwema & Co. Advocates