REPUBLIC OF KENYA
THE JUDICIARY
OFFICE OF THE SPORTS DISPUTES TRIBUNAL
SDT APPEAL NO. 9 OF 2019
IN THE MATTER BETWEEN
FERDINAND OMANYALA............APPLICANT
-VERSUS-
ATHLETICS KENYA..................RESPONDENT
DECISION NO. 2
Hearing: 1st August, 2019
Panel: John M Ohaga - Chairperson
Gilbert M T Ottieno – Member
Appearances: Ms. Sarah Ochwada instructed by the Centre for Sports Law,
Advocate for the Applicant;
Ms. Rebo Diana Rose instructed by Wanjao & Wanjau, Advocates for the Respondent
The Parties
1. The Applicant is a male professional international athlete sprinter and a student at the University of Nairobi who claims that his rights have been unfairly infringed by the Respondent by its decision not to allow him to participate in athletic events in the country and out of the country as a representative of Kenya.
2. The Respondent is an independent governmental body acting as the governing body for the sport of athletics in Kenya.
The Claim
3. The Applicant moved this Tribunal vide a Notice of Motion (‘the Application’) dated and filed on the 19th June 2019, supported by an affidavit dated and filed on the same date.
4. The gist of the Applicant’s claim is that through a resolution dated 25th April 2019, the Respondent promulgated a policy to the effect that any athlete who had been found to be in violation of the anti-doping rules would be barred from representing the country in any domestic and/or international competitions, and from participating in any athletic events organized by the Respondent or its affiliates.
5. Subsequently, and after the passing of the resolution of the Respondent and to coming into force, the Applicant having been previously found guilty of violations of the anti-doping rules by this Tribunal, was adjudged to be ineligible to represent Kenya in any domestic or international events pursuant to the new policy promulgated by the Respondent.
6. It is this decision that the Applicant presently challenges vide his Application, which prays for orders as follows: -
a. Spent
b. THAT pending the hearing and determination of this application, a mandatory injunction do issue against the Respondent compelling it to immediately suspend any alleged resolutions, rules or regulations preventing the Applicant or any other athlete with a past anti-doping rule violation from participating in athletics, from being selected for the Kenyan National Team, and from representing Kenya in international events.
c. Spent
d. Spent
e. Spent
f. Spent
g. THAT pending the hearing and determination of this application, a declaration do issue that the Applicant Athlete is free to participate in any national trials, national competitions or international competitions including the National Trials, to be held from the 15th to 17th of August 2019.
h. THAT pending the hearing and determination of this application, a mandatory injunction do issue against the Respondent compelling it to immediately suspend any alleged resolutions preventing the Applicant or any other athlete with a past antidoping rule violation from wearing the Kenyan vest or kit during any national or International competitions.
i. THAT pending the hearing and determination of this application, a mandatory injunction do issue against the Respondent compelling it to immediately issue the Applicant Athlete with a new unconditional Clearance Letter acknowledging that he is not an intentional doping cheat in accordance with the Sports Disputes Tribunal Ruling passed in the case of ADAK v Ferdinand Omanyala case number 30 of 2017, and allowing the Applicant Athlete to participate in athletics competitions.
j. Spent
k. Spent
l. THAT an injunction do issue against the Respondent restraining it whether by itself or any of its servants, employees, agents or any other person(s) howsoever acting on its instructions from writing letters, making statements, making phone calls or in any other way whatsoever, engaging or communicating with the Applicant Athlete, his management team, her training team or any other person or body with the intention of slowing down, interfering or stopping the Applicant Athlete from exercising his right and freedom to participate in the National Trials for the World Championships, to be held from the 15th to 17th of August 2019.
m. THAT pending the hearing and determination of this application, a mandatory injunction do issue against the Respondent compelling it to immediately pay the Applicant Athlete all allowances due to him from all previous oversea trips and camp trainings.
n. THAT pending the hearing and determination of this application, a mandatory injunction do issue against the Respondent compelling it to immediately reimburse the Applicant Athlete all costs incurred for training and preparation in the year leading up to the Yokohoma Championships.
o. THAT the costs of this application be provided for.
Facts & Background
7. The brief background and the circumstances leading to the present appeal by the Applicant can be summarized as hereunder:
8. The Applicant was invited by the Respondent to prepare and to participate in the Mauritius International Meet scheduled for the 25th and 26th April 2019.
9. Subsequently, the Applicant was invited to participate in the national trials for the Yokohama World Relays by the Respondent which took place on the 13th April 2019, which the Applicant duly passed and qualified to represent Kenya in the event scheduled for 11th and 12th May 2019.
10. According to the Applicant, while awaiting his travel to Mauritius, his ticket was confiscated by an official of the Respondent, but no reasoned explanations was given.
11. Subsequently, the ticket was returned to the Applicant who travelled, but his participation in the event was disqualified due to a false start during a scheduled race.
12. Upon returning to Nairobi, the Applicant claims he was summoned to one of the Respondent’s offices where he was asked to leave camp, with the reason given being that any athlete sanctioned with a past anti-doping rule violation was no longer allowed to represent Kenya at international events or wear the Kenyan vest. The Respondent was informed that this decision had been passed in a resolution of the General Assembly of the Respondent.
13. Due to the said resolution the Applicant missed the Yokohama World Relays, the World University Games held in Napoli, Italy from the 4th to 14th July 2019 and is apprehensive that he will also miss the National Trials for the World Championships to be held from the 15th to 17th August 2019.
14. It is instructive to note, which fact is not contested by either of the parties, that the Applicant was found by this Tribunal to have been in violation of an Anti-Doping Rule in September 2017 for testing positive for the presence of Betamethasone in his urine sample, in Anti-Doping Case No. 30 of 2017.
15. Upon being adjudged to have violated the anti-doping rules, the Applicant was sanctioned with a period of ineligibility of 14 months starting from 14th September 2017.
16. Subsequently, the Respondent issued the Applicant with a Clearance Letter dated 21st January 2019 re-instating the eligibility of the Applicant to participate in games events after the end of his suspension.
17. It is against this background that the present appeal is brought by the Applicant, challenging the decision by the Respondent to bar him from participating and representing Kenya in national and International athletics events.
Applicant’s Case
18. The gist of the Applicant’s case is contained in various pleadings filed before the Tribunal, among them being; the Applicant’s Replying Affidavit dated 26th July 2019 and the Supporting Affidavit dated 29th July 2019, all filed on the 29th July 2019. The Applicant also filed his List of Documents dated 26th July and filed on the 29th July 2019 and a Summary of Arguments dated 1st August 2019 and filed on the even date.
19. Without prejudice to the foregoing, the Applicant through his advocate Ms. Ochwada in her oral presentation before the Tribunal, condensed his case and submitted on four grounds upon which the Applicant’s case turns.
20. According to the Ms. Ochwada, the Applicant disputes the decision by the Respondent to bar him from participating in any competitions organized by the Respondent and from representing Kenya in both local and international events on the following grounds; the resolution as passed by the Respondent was irregular and therefore invalid as it was passed in total contravention of the Respondent’s Constitution; the resolution and the decision as taken by the Respondent is unfair to athletes; the Respondent acted in utter bad faith in its dealings with the Applicant; and that the Applicant duly qualified for the games the Respondent now seeks to bar him from participating in.
Irregularity of the resolution
21. It was the Applicant’s contention that the resolution passed by the Respondent on the 25th April 2019 in its Annual General Meeting (AGM) requiring that athletes who had been found to be in violation of the anti-doing rules were ineligible to represent the country in any events organized by the Respondent, was invalid due to the irregular manner in which the resolution was passed.
22. According to the Applicant’s advocate, the resolution as passed by the Respondent was in total contravention of the Respondent’s Constitution and therefore ought not to have any force of law.
23. It was Ms. Ochwada’s submission that the resolution specifically contravened Clause 10.2 (b) (i), which among other things, required that a Notice in writing to issue accompanied by the Agenda for the meeting to be sent to all members not less than 21 days before the date of the meeting, and where possible, the notice should be by way of a press advertisement not less than 14 days before the date of the meeting. The Applicant also drew the Tribunal’s attention to the rules governing Agendas in any AGM of the Respondent as contained in the Respondent’s Constitution.
24. Ms. Ochawada further pointed the Tribunal to the Affidavit of Susan Kamau, the Respondent’s Chief Administrative Officer dated 28th June 2019, and specifically to Exhibit ‘SK2’ produced by the said Susan Kamau. According to Ms. Ochwada, the exhibit are the minutes of the Executive Committee of the Respondent held on the 23rd April 2019, a mere two days before the adoption and passage of the resolution by the Executive Committee by the Respondent’s AGM on the 25th April 2019. It was therefore the Applicant’s case that the two daylapse between the two events was irregular in light of the requirements for Notices under the Respondent Constitution.
The resolution was unfair
25. It was further the contention of the Applicant that the resolution as passed by the Respondent was unfair not only to the Applicant but to the greater body of athletes in the country.
26. According to Ms. Ochwada, the Applicant had duly served his sentence being 14 months of ineligibility as handed by this Tribunal and the Respondent had subsequently issued the Applicant with a Clearance Letter and even invited him to participate in some races prior to the passing of the resolution. It was therefore the Applicant’s contention that applying the resolution retrospectively against athletes found to have been in violation of an anti-doping rule regardless of whether they had served and completed their sentences would be unfair.
27. Ms. Ochwada submitted that the resolution adopted by the Respondent was unfair as it violated the system of justice established not only in the country, but also in sports jurisprudence that required athletes charged with an offence to prove their innocence, and the further well established principles of unintentional doping, as the policy adopted by the Respondent blurred the lines between intentional doping cheats and unintentional dopers.
28. This policy according to Ms. Ochwada, had the effect of indefinitely extending athletes’ bans, which is contrary to the rules of justice; she submitted that the Respondent should be required to develop the rule in line with the principles of justice.
29. The Applicant cited various cases on the issue of proportionality, noting that the sentence meted out against any athlete found in violation of the anti-doping rules must be proportional to the significance or severity of the violations. To this end, the Applicant cited CAS 1999/A/246 W/International Equestrian Federation (FEI), award of 11 May 2000, CAS 2006/A/1025 Mariano Puerta v. International Tennis Federation (ITF), award of 12 July 2006, CAS A4/2016 Sarah Klein v. Australian Sports Anti-doping Authority (ASADA) & Athletics Australia (AA), award of 25 May 2017.
30. It was therefore the Applicant’s submissions that the rule passed by the Respondent was in violation of the principles of justice and proportionality, and the rules providing for intentional and unintentional doping as provided for under the IAAF, WADA Code and the various jurisprudence emanating from the Court of Arbitration for Sports (CAS).
Bad faith on the part of the Respondent
31. According to the Applicant, the Respondent has demonstrated utter bad faith in its action of misrepresenting the entry requirements for events. It was the Applicant’s contention that the Respondent was misrepresenting the rules for entry into competitions to suit its own agenda.
32. The Applicant argues that the entry standards relied on by the Respondent contradicted those set by the IAAF. Furthermore, the Applicant submitted that the Respondent has irregularly included in the qualification list athletes who had in fact not met the entry standards while at the same time purporting to bar the Applicant for not meeting the same entry requirements, further showing their bad faith towards the Applicant.
33. The Applicant further submitted that he had duly qualified for the upcoming All Africa Games and should therefore be allowed to participate in the said games.
34. The upshot of the Applicant’s case being that the application should be allowed with costs.
Respondent’s Case
35. On the other hand, the Respondent’s case is enumerated in the Respondent’s written submissions dated 22nd July 2019 and a further affidavit sworn by Susan Kamau dated on the even date and both filed on the 23rd July 2019 before the Tribunal.
36. In response to the Applicant’s submissions before the Tribunal, Ms. Rebo appearing for the Respondent submitted that the resolution as passed by the Respondent was regular and in accordance with the Respondent’s Constitution.
37. According to Ms. Rebo, the resolution was duly passed after adequate public participation and involvement of all the Respondent’s afiliates, including the Athletics Kenya Universities of which the Applicant is a member. The Respondent produced Exhibit ‘SK2’ being the minutes of the AGM of the Respondent indicating the representation at the meeting.
38. It was therefore the Respondent’s submission that the resolution by virtue of participation from all the members, passed the constitutional muster as required under the Respondent’s Constitution.
39. In any case, Ms. Rebo submitted that given the peculiar public interest circumstances involved in this issue due to the prevalence of anti-doping violations and the rank the country occupies under the IAAF ranking of risk averseness of countries-with Kenya ranked in Category A, meaning it has a high risk-the Respondent submitted that the resolution should be upheld.
40. It was also the Respondent’s submission that the Constitution of the Respondent empowered the executive committee of the Respondent to take any decision and any action that would further the objectives of the Federation, and hence the resolution as taken by the executive committee was proper and regular.
41. It was further the Respondent’s submission that the athletes were given questionnaires prior to the resolution being passed, and the overwhelming response from the questionnaires as filed by the athletes was that athletes should be banned from representing the country where they are found to be in violation of the anti-doping rules.
42. On the Applicant’s submission that the resolution was unfair and contravened the principles of justice and the principles of proportionality, Ms. Rebo submitted that the public interest involved in this matter and the interest of the state to curb anti-doping violations outweighed the Applicant’s interests and rights.
43. Ms. Rebo further submitted that the position of the country and other athletes was at stake and therefore the measure taken to curb anti-doping violations and protect the country and the athletes was a necessary step which ought to be affirmed by the Tribunal.
44. The Respondent further in its response to the Applicant’s claims that the resolution as passed was irregular due to the failure to meet the Notice requirements, submitted that the urgency of the matter necessitated such action.
45. It was further the Respondent’s submission that the Applicant’s case that the resolution was not proportionate was misconceived. According to the Respondent, the Kenyan situation was different, and it called for drastic measures to curb the doping menace in the country and secure the country’s position on the international plane. The imminent threat faced by the country, and the possible ban facing the nation necessitated such drastic measures. It was in fact the Respondent’s submission that whether the doping was intentional or not did not matter as to the application of the rule.
46. As to the qualification of the Applicant for the upcoming All Africa Games and the World Championships, the Respondent submitted that the Applicant had in fact not qualified for the above events, as he had failed to meet the entry standards required for participation in these events. On this point, both parties produced extensive material relating to the qualification standards which we will interrogate in our analysis.
47. The Respondent therefore asked the Tribunal to dismiss the application by the Applicant with costs.
Rejoinder by the Applicant
48. In his rejoinder, the Applicant specifically tackled the issue of the justification of the measures taken by the Respondent to curb the menace of doping in the country.
49. According to Ms. Ochwada, the existence of public interest and the need to protect the country’s standing on the international plane, did not justify the drastic measures taken by the Respondent to bar all athletes with previous anti-doping rule violations from participating in any athletic events as representatives of the country.
50. The Applicant further noted that the assertion by the Respondent to the effect that the ban did not bar the Applicant from participating from athletic events, but only barred him from representing the county, did not arise. It was the Applicant’s assertion that the athlete is a professional sportsman with no manager, and the measure taken by the Respondent essentially condemned him to obscurity as no manager or agent would want to commercially work with the Applicant. To buttress this submission, Ms. Ochwada submitted that essentially the measure amounted to writing off the Applicant as an intentional doping cheat, despite the fact he was not found to be an intentional doper by this Tribunal.
Analysis & Determination
51. The Tribunal has considered all the evidence and materials placed before it, the responses by each of the parties and their oral submissions before the Tribunal, and notes that the underlying issues that lend themselves to the determination of this Tribunal are as follows:
i. Whether the resolution as passed was regular and valid
ii. Whether the rule banning anti-doping rules violators is fair and just
iii. Whether the Applicant in fact qualified for the various upcoming events.
52. We would therefore proceed to address each of the issues enumerated above individually as hereunder:
i. Whether the resolution as passed was regular and valid
53. In deciding whether the resolution passed by the Respondent was regular and therefore valid, we find that the Tribunal need not look further than the primary legislations providing for the same.
54. The that extent, we note that our point of departure would be the Sports Act, No. 25 of 2013 which provides under Section 46 as follows:
(4) An application for registration under this section shall be accompanied by—
(a) a certified copy of the constitution of the applicant; and
(b) such fees as the Cabinet Secretary may prescribe.
(5) A constitution submitted under subsection (3) shall contain, as a basic minimum, the provisions set out in the Second Schedule
55. Further, the Sports Registrar Regulation, 2016 reiterate the importance that the law envisioned a sports organization’s constitution would occupy, providing thus:
3. Contents of Constitution
Subject to section 46 (4) (a) and the Second Schedule to the Act, the constitution of a sports organization seeking registration shall state-
(a)…
(b)…
(c )…
(d) such other matters as the Registrar may determine from time to time.
56. On the other hand, the IAAF Constitution 2019 further provides under Clause 9.1 that the local Federations must adopt a constitution to govern its affairs, and provides the same in the following terms:
In accordance with this Constitution, the Rules and Regulations, each Member Federation shall:
…
(f) Adopt a constitution, rules and regulations which comply with, and are not inconsistent with, this Constitution, the Rules and the Regulations;
57. We cite these provisions of the law if only to point out the centrality and important role that the organization’s constitution plays in the conduct of its affairs. We would in fact emphasize that this is more so the case in a sports organization that seeks to promote athlete participation in its activities.
58. According to the Applicant, the resolution as passed by the Respondent was irregular as it offended the provisions of the Respondent’s organization, specifically Clause 10.2 (b) (i). We therefore find it instructive and necessary that we reproduce the said provision and examine its intent to better appreciate the submissions of both parties.
59. The said Clause of the Constitution provides as follows:
The Annual General Meeting shall be held not later than the end of April of every year at such time and place as shall be determined by the Executive Committee. Notice in writing of such Annual General Meeting, accompanied by the agenda for the meeting shall be sent to all members not less than twenty-one (21) days before the date of the meeting and where practicable, by a press advertisement not less than fourteen (14) days before the date of the meeting.
60. We underline the above provision specifically, for our emphasis and that of the Applicant’s case. It was the Applicant’s contention that given the said resolution was passed by the AGM barely two days after it was adopted by the Executive Committee, it did not meet the threshold set by the Respondent’s Constitution as stipulated above.
61. It goes without saying, and we have to state that the Respondent in its submissions before the Tribunal does not dispute that the AGM as convened by the Respondent did not meet the requirements of Clause 10 of the Constitution. In fact, counsel for the Respondent, Ms. Rebo submitted that the resolution was passed in the manner it was, due to some overriding public interest and due to the urgency of the matter specifically the immense pressure being put on the Respondent by the international bodies, requiring them to curb doping in the country. It was therefore the Respondent’s submission as we understand it, that the public interest involved in the passage of the resolution ought to override any other procedural requirements.
62. The question then that we find this Tribunal needs to grapple with is whether there indeed existed an overriding public interest that would allow the Respondent to take the kind of measure it did, without undue regard to the procedural requirements provided for under the Respondent constitution.
63. As we had earlier stated, we note and reiterate that a Constitution is the paramount legislative document that ought to govern the affairs of any organization, and in fact specifically note that the procedural requirements contained in the organization’s constitution are not in vain as mere accompaniments, for without the procedural underpinnings, the entire governance of an organization would be chaotic. Procedural provisions are indeed the guiding light to the attainment of the substantive objects of the organization, without which an organization we find, would amount to a blind man walking in a busy street.
64. It goes without saying that the Respondent Federation as established under the Sports Act, is a body corporate and a separate legal entity from its members, with the right to sue and be sued.
65. However, we note that while the Federation is a separate legal entity, it operates through its human agents in this case being the Executive Committee. Therefore, the Executive Committee assumes the responsibility of ensuring that the Federation abides by all the legal requirements, and also ensures accountability to its members and the government bodies put in place under the law.
66. In fact, the very Respondent constitution calls upon and places on the members of the Federation the obligation to adhere to the Federation’s constitution, and places that as a requirement for admission as a member of the Federation. The Constitution provides:-
4.1 Any organization desiring to be a Regional Federation or Institutional member shall apply in writing to the Executive Committee of the Federation. The Application must be accompanied by the following mandatory documents and information:
…
(c) A declaration that it will observe and abide by this constitution, together with the rules and regulations of the Federation.
67. Therefore, the centrality of the constitution is again at play here. At the center of the Constitution of the Respondent, is the AGM as the highest authority of the Respondent, perhaps an acknowledgement we would observe, of the important role members of the Federation play in the decision-making process of the Federation.
68. It is also worth reiterating that the AGM of an organization plays two particularly important roles; in one sense, it plays the role of the Federation’s accountability to the members of the Federation, and secondly, as a compliance mechanism by the Federation to the law and specifically the requirements of the Respondent constitution.
69. Upon the finding and establishing that the resolution did not comply with the procedural rules of the Respondent’s Constitution, as we hereby do, the next logical question would be to determine the consequences of such breach.
70. It appears to be the submission of the Respondent that any such irregularity in the manner in which the resolution was passed can be cured by the overriding public interest present at the time. We, however, would like to disagree. We do not find, as we had earlier stated, that the procedural rules adopted by the Respondent constitution are mere technicality to be sacrificed at the altar of convenience or indeed even in the name of public interest. Such irregularity amounts to a substantial material breach capable of attracting legal ramifications, as we observe that it is indeed these procedural provisions that uphold, in a sense, the sanctity of the very constitution of the Respondent.
71. To this point, we would borrow the rationale of the High Court in the case of Agricultural Development Corporation of Kenya v Nathaniel K. Tum & another [2014] eKLR where it observed the following about the requirement for adherence to requirements for issuance of Notices prior to an AGM:
Did the notice issued on 11.11.2013 convening an Extra-Ordinary General Meeting on 10th December 2013 conform to the requirements of the law? Mr. Alfred Nyairo without elaboration submitted the notice was proper. Mr. Nyaencha, on the other hand, thought it did not and he cited two reasons; 1) that the notice dated 11.11.2013 did not give the mandatory 21 days to the directors; and 2) the said notice combined the two distinct steps in section 132 of the Companies Act and indeed called for a meeting straight away. On my part, I take the view that the notice fell far short of compliance with the law, and the non-compliance is a material one which cannot be diminished as a mere technicality, for it goes to the root of the company as a juristic person and the exercise of powers of management in a corporate entity. What is the nature of the violation? Although the notice stated the agenda for the meeting, it violated all the other principal legal requirements under section 132 of the Companies Act.
72. We therefore find that the wording of Clause 10 of the Respondent constitution has been worded deliberately to require that the Executive Committee ought to issue a twenty-one (21) days notice before convening any AGM and must send the Agenda of the meeting before-hand.
73. We would imagine that the rationale behind this requirement, would be to give the individual members of the Federation enough time to deliberate and consult with their members on what their position would be at the time the vote is taken at the meeting.
74. We therefore find that the argument by the Respondent that in any case the representatives of the member organization from which the Applicant belongs were present hence they participated and agreed to the resolution, as untenable. In an organization that seeks to promote the participation of individuals in the athletic sport, we find that they ought to run their affairs to the highest possible standards espousing democratic ideals.
75. We find that the failure to observe the strict requirements set out in the constitution bears the very real danger of diminishing the very essence of the law on corporate governance and would open-up the Federation to superfluous and hopeless meetings. This Tribunal and indeed the Respondent, and all the stakeholders who are genuine lovers of the sport of athletics, need to guard against a proliferation of unnecessary meetings not grounded on any applicable legal principles and avoid a practice and culture that diminishes the sustainability of the Federation as a separate legal person. For it is easy we find, to take refuge under the cover of public interest in flouting of procedural rules, until the shoe is turned to the perpetrator’s feet. As the popular adage goes, “make a law that you would be comfortable living under when your worst enemy takes the reins of power.”
76. In any case, we find that if passing the resolution was so important and urgent, then the Respondent constitution has provided well enumerated procedures for such situations, through calling of Special General Meetings, which only requires for a Notice to be sent out to the members seven (7) days before the meeting. This begs the question, why didn’t the Executive Committee of the Respondent resort to this?
77. We are not convinced that there was any urgent public interest that ought to have override the procedural requirements placed on the Respondent. No evidence has been placed before the Tribunal by the Respondent to point to an imminent need that would justify flouting the rules. This we say, very well cognizant of the fact that it has now become trite law that public interest does not override a well enumerated provision of the law. In fact, as the courts have observed which observation we adopt, we find that public interest would in fact best be served by enforcing the provisions of the Respondent constitution. This was observed by Justice G Odunga in the case of Kenya Squash Racquets Association v Sports Disputes Tribunal & another [2018] eKLR where he observed as follows:
It is now trite that contravention of the Constitution or a Statute cannot be justified on the plea of public interest as public interest is best served by enforcing the Constitution and Statute as was held in Republic –vs- County Government of Mombasa Ex-Parte – Outdoor Advertising Association of Kenya (2014) eKLR thus:-
“I have no hesitation in finding that the respondent’s decisions of the 29th May 2013 and the 8thOctober 2013 were made in breach of the rules of natural justice for the hearing of the affected persons and in contravention of their legitimate expectation created by the provisions of the Physical Planning Act and borne of the development approvals given by the national Roads Authority and the respondent’s predecessor upon payment of the requisite licence fees. There can never be public interest in breach of the law, and the decision of the respondent is indefensible on public interest because public interest must accord to the Constitution and the law as the rule of law is one of the national values of the Constitution under Article 10 of the Constitution. Moreover, the defence of public interest ought to have been considered in a forum where in accordance with the law, the ex-parte applicant members were granted an opportunity to be heard. There cannot be public interest consistent with the rule of law in not affording a hearing to a person likely to be affected by a judicial or quasi-judicial decision.”
ii. Whether the rule banning anti-doping rules violators is fair and just
78. The Applicant submitted that the new policy/rule adopted by the Respondent that would essentially declare all athletes previously found to have been in violation of the anti-doping rules, would be ineligible to represent the country in any of the global athletics events, was in fact not proportional as a form of sanction, was against the rules of justice and in fact violated the rules of both WADA Code and the IAAF.
79. On its part, the Respondent submitted that the public interest present in the current circumstances justified such measure, in order to curb the doping menace and secure the country’s position and standing.
80. After considering both the Applicant’s and the Respondent’s submissions on this particular point, the Tribunal finds that there are issues raised in this component that calls upon the Tribunal to examine them keenly, which we would proceed to do as follows: -
Proportionality of the measure & rules of justice
81. The gist of the Applicant’s submission on this point was that the measure of handing out what essentially amount to lifetime bans on athletes found previously to have violated anti-doping rules was not proportionate to the violation itself. This was particularly true as the Applicant submitted, of athletes whose violations have been found to be unintentional, as was the case with the Applicant.
82. It is indeed not in dispute that the Applicant was found by this Tribunal to be in violation of anti-doping rules and appropriately sanctioned to fourteen (14) months. It is also not in doubt that the Applicant’s violation was found to have been unintentional.
83. The question then that this Tribunal ought to examine as submitted by the Applicant, is whether such life-time ineligibility periods as proposed by the Respondent is proportional to the violation, especially to those athletes found to have been unintentional dopers.
84. The principles of proportionality under the international sporting dispensation has attained the position of notoriety. It has come to be generally accepted that where a federation or sporting association is implementing sanctions, then the sanctions must comply with the requirements of proportionality. This was clearly enumerated in the case of CAS 2005/A/847 Hans Knauss v. FIS, award of 20th July 2005 where the court observed thus: -
As a general rule when determining the period of ineligibility, the Respondent must observe the principle of proportionality…
85. We would however not hesitate to point out that the jurisprudence has always held that the consideration of the principles of proportionality was not automatic. The court has held to this effect in the above CAS 2005/A/847 [Supra] in the following terms: -
…at least in the opinion of the Swiss Federal Tribunal, sports bodies can limit in their rules the circumstances to be taken into account when fixing sanctions and thereby also restrict the application of the doctrine of proportionality. However, in the opinion of the Federal Tribunal, the sport associations exceed their autonomy if these rules constitute an attack on personal rights, the nature and scope of which is extremely serious and totally disproportionate to the behaviour penalized. In the Panel’s opinion, this threshold has not been exceeded in the present case. The Appellant has not convinced the Panel that the FIS Rules, by failing to take into consideration his age, his personal sporting career or the particularities of the type of sport, inflict such an extraordinary disadvantage upon him in setting the period of his ineligibility that the Panel is justified in departing from the central premise of the WADC, namely the harmonization and standardization of doping sanctions across all types of sports and athletes. [Emphasis Ours]
86. To reiterate, we also note the decision and the observation of the CAS in the case of CAS 99/A/246 W./International Equestrian Federation (FEI), award of 11th May 2000 while citing with approval other previous international cases upheld the importance of the doctrine and principles of proportionality in determining periods of sanctions, and observed:-
As mentioned, the FEI Judicial Committee suspended W. for eight months and fined him with CHF 2’500. In accordance with the above FEI provisions, the Panel must ascertain whether this is a “just penalty” (art. 174.4, second paragraph, of the GR), that is to say whether it is proportionate to the offense [Emphasis Ours].
The Panel notes that it is a widely accepted general principle of sports law that the severity of a penalty must be in proportion with the seriousness of the infringement. The CAS has evidenced the existence and the importance of the principle of proportionality on several occasions. In the cases TAS 91/56 (S. v. FEI) and TAS 92/63 (G. v. FEI), the CAS stated that “the seriousness of the penalty […] depends on the degree of the fault committed by the person responsible” (Digest of CAS Awards 1986-1998, Staempfli Editions, Berne 1998, 96 and 121).
In the advisory opinion TAS 93/109 of September 1994 (Fédération Française de Triathlon / International Triathlon Union), the CAS, quoting the IOC Charter against Doping in Sport, stated that all sports organizations must try to impose penalties graduated in accordance with the seriousness of the offence…
In the case TAS 95/141 (C. v. FINA) the CAS considered that the penalty imposed on the appellant was not proportionate to the circumstances of the case and stated that “it is the task of the sports authorities to establish the guilt of an athlete in order to fix a just and equitable sanction” (Digest of CAS Awards 1986-1998, Staempfli Editions, Berne 1998, 220-221 and 223).
In TAS 96/157 (FIN v. FINA) the CAS stated that a sports judge can overrule the penalties imposed by an international federation when the penalties provided by the rules can be deemed excessive or unfair (Digest of CAS Awards 1986-1998, Staempfli Editions, Berne 1998, 358-359). Lastly, an explicit reference to the proportion of the penalty was also made in TAS 98/204 (R. v. FEI), where the CAS confirmed the importance of respecting this general principle of law.
In light of the above case law, the Panel deems appropriate to apply the principle of proportionality. As a result, the Panel finds the suspension of eight months decided by the FEI to be slightly excessive…
87. Furthermore, while observing the limits placed on a Federation in placing sanctions, the CAS has held in the case of CAS 2005/C/976 & 986 FIFA & WADA, 21 April 2006 to the effect that when imposing a sanction, the sanctioning body must observe amongst others, the following limits:-
1.4.1 The Principle of Fault
…
1.4.3 The Principle of Proportionality
87. Specifically, concerning the principle of proportionality, the court above noted as follows:
The sanction must also comply with the principle of proportionality, in the sense that there must be a reasonable balance between the kind of the misconduct and the sanction…
A long series of CAS decisions have developed the principle of proportionality in sport cases. This principle provides that the severity of a sanction must be proportionate to the offense committed. To be proportionate, the sanction must not exceed that which is reasonably required in the search of the justifiable aim… the Panel is of the view that the principle of proportionality is guaranteed under the WADC; moreover, proportional sanctions facilitate compliance with the principle of fault. Consequently, each body must consider the proportionality of imposed sanctions for doping cases.
88. We therefore find that it is settled that any sanctions placed by a Federation must adhere to the principles of proportionality. What then this Tribunal ought to determine is whether the measure taken by the Respondent is proportional and would achieve the purpose to which it is intended and in accordance to the above set principles.
89. The submission by the Respondent, and we would note the Respondent was adamant, was that the measure banning all athletes who had previously been found to have violated the anti-doping rules from representing the country in any global athletics events despite the athlete being at fault or not, we find is not proportionate.
90. A very basic cursory look at the provisions of the WADA Code and the IAAF rules clearly provide a well demarcated line and differentiates between intentional and unintentional doping violations. We therefore find that it would in fact defeat the very purpose of the differentiation if the proposed policy were to go into effect. On this we agree with counsel for the Applicant, Ms. Ochwada that the rule passed by the Respondent would essentially blur these lines and lump together both the intentional and the unintentional dopers. In fact, we note that this would amount to an unfair treatment of the athletes. This is especially true given that equal treatment has been determined to be one of the factors a Federation ought to consider when imposing sanctions, as was observed in the case of violated the rules of both WADA Code and the IAAF
91. We therefore find that in as far as the Respondent’s measure seeks to permanently ban an athlete found to have unintentionally violated the anti-doping rules from representing the country, we find such measure to be in violation of the principles of proportionality and the requirement of fault and equal treatment.
92. Our finding is further strengthened by the fact that the Applicant had previously been found to be in violation of the anti-doping rule and has duly served the mandatory sanctions imposed by the Tribunal. Imposing further sanctions upon him in the nature and manner proposed by the Respondent would amount to the Respondent exceeding its autonomy in coming up with regulations and rules to govern its affairs, as such measure would as was observed in the case of CAS 2005/A/847 [Supra]:-
…constitute an attack on personal rights, the nature and scope of which is extremely serious and totally disproportionate to the behaviour penalised.
93. However, we refrain as the question is not before us presently, from determining the applicability, viability and proportionality of the proposed measure on athletes who have previously found to be intentional violators of the anti-doping rule.
Whether the proposed sanction violates the rules of both WADA Code and the IAAF
94. Another point of contention specifically by the Applicant, was whether the proposed sanction by the Respondent in fact violated the rules of the WADA Code and the IAAF.
95. It was Ms. Ochwada’s submission that the proposed sanction went overboard the rules provided for under the WADA Code and the IAAF rules, and were therefore invalid.
96. In response, the Respondent submitted that it was only enforcing its mandate under the law, and it had a justified reason for adopting the measure.
97. At the outset, we would acknowledge the important role the Respondent plays in promoting the sport of athletics and ensuring fair play in the sport, which includes the elimination of anti-doping violations among its members. This not only builds the reputation and the integrity of the sport, but also builds confidence among the athletes that the events they participate in are fair and well run.
98. The greater leeway given to local Federations to come up with rules and regulations to govern their affairs had long been recognized even on the international plane. However, as we have detailed above, such discretion must be applied within the confines and limits of the principles enunciated above.
99. The Tribunal notes that it has become the overarching philosophy interwoven through the provisions and the rules of WADA that cases must be considered in their own unique circumstances as opposed to issuing blanket bans regardless of the circumstances of the case such as whether the violation was intentional. This was clearly observed in the case of CAS 2005/C/976 & 986 FIFA & WADA, 21 April 2006 [Supra] when it was observed:-
The reference to “exceptional circumstances” in the title of art. 10.5 WADC has in the Panel’s view no separate meaning. Whether a specific circumstance is considered “exceptional” or “truly exceptional” is not a pre-requisite for the application of art. 10.5.1 and 10.5.2 of the WADC.
Such a construction of Section 10.5.1 and 10.5.2 of the WADC is consistent with the understanding of WADA’s Chairman, Mr. Richard W. Pound, as stated by him at the FIFA Centennial Congress on May 21, 2004 in Paris: “There is a universal view that each doping case has to be considered as an individual case and that all of the facts relevant to that case (such as the circumstances of the athlete, the nature and quantity of the substance, and the repetition of offenses) have to be carefully studied before any sanction could be considered. The WADA shares this philosophy entirely” [Emphasis Ours].
Accordingly, CAS Panels have taken a similar approach when deciding cases based on antidoping regulations of organizations which have implemented the WADC [Emphasis Ours].
100. We therefore find that the Respondent having implemented WADC, both as per the requirements of its constitution and the requirements of the Anti-Doping Act, 2016 and the subsequent Anti-Doping Rules, 2016, which has in fact reproduced the WADC, the Respondent is under an obligation to not only implement the WADC but to also formulate rules that do not derogate from the core principles and provisions of the WADC and the IAAF.
101. Clause 32.1 of the Respondent constitution is very clear in its provision and intent that the Respondent Federation is bound by the provisions of the WADA and the IAAF rules. It provides thus:-
a. The WADA, IAAF, ADAK Anti-Doping Rules and Regulations and the Federation’s Anti-Doping Regulations in force at any time are expressly incorporated into this Constitution and their Members are bound by them to the extent they are applicable.
b. All Athletes, Athlete Support Personnel and other persons under the jurisdiction of the Federation are bound by the WADA, IAAF, ADAK Anti-Doping Rules and Regulations and the Federation’s Anti-Doping Regulations.
102. Therefore, the Tribunal finds that the sanctions adopted by the Respondent must conform to the standards and the sanctions adopted under the WADC. Where the Respondent deviates and provides for alternative sanctions, then we find that such deviation must be justified appropriately and must pass the muster as detailed above. We therefore find that the deviation by the Respondent in this particular case has not been justified and it therefore fails.
103. The upshot of the above is that we find that while the Respondent has flexibility in the formulation of rules and regulations to govern its affairs, the particular sanction proposed for adoption violates the WADC and IAAF rules, specifically as far as in its purport to ban athletes found to have been unintentional in their violations, as the Applicant was to represent the Country permanently. Without any proper justification for such deviation, the Tribunal is at pains to find such a measure justifiable.
iii. Whether the Applicant in fact qualified for the various upcoming events.
104. At the center of the question whether the Applicant indeed has qualified for the upcoming events, are two upcoming international athletic events, namely; the All Africa Games Championships and the World Championships.
105. We would at the outset lament the very nature with which this question is being put to the Tribunal to determine. As this Tribunal has noted numerous times, and which we note again, matters of this nature belong to the field and not in the corridors of the courtroom. This has specifically been held in the case of Kenya Rugby Union v Registrar of Sports & 11 others [2015] eKLR thus: -
I have always known Rugby to be a sport. It is to be played on stadiums or designated fields. Sports are not to be played out in court rooms or before Tribunals. For the benefit of those Kenyans who are Sportsmen and women, for those Kenyans who are ardent lovers of sport, for the sake of those youngsters whose talents require to be harnessed, the courts need to firmly tell the administrators of sports organizations that, the place of sports is in the fields and stadiums not in court rooms.
106. We would proceed to interrogate the above claims individually on the two events in contention.
The All Africa Games Championships
107. According to the Applicant, he had duly met the entry requirement standards for the upcoming All African Games Championships to ne held in Casablanca, Morocco from the 23rd August- 3rd September 2019.
108. According to the Applicant, in the trials conducted at Kasarani Stadium from the 20th – 22nd June 2019, the Applicant avers that he clocked a time of 10.6 seconds and emerged second in the said trials. Indeed, the Applicant has produced Exhibit FOO17 annexed to his list of documents dated 26th July 2019 and filed on the 29th July 2019, showing that he indeed clocked with a time of 10.60. this time is not disputed by the Respondent, who in their oral submissions before the Tribunal indeed affirmed that the Applicant had clocked the same in the National Trials held at Kasarani Stadium.
109. In any case, the Applicant submitted both in his oral submission before the Tribunal and in his Summary of Arguments dated 1st August 2019 and filed on the even date, that given that the qualifying period for the All Africa Games Championships runs from 1st July 2018 and ends on 28th July 2019, a fact the Respondent does not dispute if the Further Affidavit of Susan Kamau dated 30th July 2019 and filed on the 31st July 2019, and which annexed Exhibit SK10 which seem to confirm this dates, it was therefore the Applicant’s submission that any time run by him in Trials during this open period ought to be considered. He therefore proposed that his time of 10.14 seconds at the World Relays Championships in Iten on 13th April 2019 ought to be considered for the qualification for the All African Games Championships.
110. The Applicant sought to produce Exhibit FOO27 to show the time clocked by him at the Iten World Relays Championships as stated above. The Tribunal however notes that the copy of the exhibit annexed and produced before this Tribunal did not indicate the time. Counsel for the Applicant promised to forward to the Tribunal a clear copy of the same but had not done so at the time of writing of this ruling, hence the Tribunal is tied to determine the matter based on the material presently before it.
111. On the part of the Respondent, it was the Respondent’s submission that in fact the Applicant had not qualified for the All Africa Games Championships, given that he had clocked 10.60 seconds against the entry qualification requirement of 10.4 seconds. The Respondent produced Exhibit SK10 which enumerated the qualification requirements for this event, being 10.20 seconds (hand timed) and 10.44 (electronically timed).
112. It is instructive that we note, the Applicant does not dispute the entry qualification requirement as produced by the Respondent. It is in fact the case of the Applicant that he met the time as required by the Respondent.
113. We find this to be a factual matter. We further find that at the center of the Applicant’s case, is the contention that this Tribunal should not rely on the qualification time achieved by the Applicant during the Trials at Kasarani but should instead go with the qualification time during the Iten World Relays on 13th April 2019.
114. We find the Applicant’s submission that we consider the Iten World Relays qualification untenable for various reasons. First of all, the Applicant did not produce to the Tribunal the profile indicating his time at those Trials as the counsel had promised, so the Tribunal has no basis upon which to place its reliance that indeed the Applicant clocked the alleged time.
115. Secondly, the Applicant came before this Tribunal seeking for orders that he be allowed to participate in the National Trials for All Africa Games held from the 20th-22nd June 2019, with the clear understanding both of the Tribunal and of the Applicant himself, that those trials would act as the qualifying basis for the upcoming All Africa Games Championships. Appropriate orders were issued, and the Respondent participated in the said trials, clocking a time of 10.60 seconds. It is therefore disingenuous for the Applicant to fall back and demand that his trial time of 10.14 seconds achieved at the Iten World Relays instead of the 10.60 achieved at the Kasarani Stadium National Trials, be considered. This we find, amounts to the Applicant trying to have his cake and eat it.
116. If this Tribunal were to find that the Applicant qualified using the time achieved at the Iten World Relay which has not been produced before the Tribunal, then it would amount to in fact holding that its own orders issued requiring the Applicant to be allowed to take part in the National Trials for the All Africa Games Championships held at Kasarani Stadium to be useless. Why then was this Tribunal issuing such orders if we could simply apply the Applicant’s time achieved at Iten on 13th April?
117. The upshot of the above is that we find the proper trials conducted for the All Africa Games Championships was the Kasarani Stadium National Trial conducted on the 20th -22nd June 2019, in which the Applicant clocked 10.60 seconds and emerged position two. In terms of the entry qualification requirements, we find from the material placed before us, that the Applicant did not qualify.
118. While the invitation by the Applicant to the Tribunal to engage the evidence of the WhatsApp group as conclusive proof that the individuals on the group had in fact qualified, seems attractive we find that we have been asked to determine this on a purely factual basis, and on that we find the inclusion of individuals on a WhatsApp group does not satisfy this Tribunal as a proper primary evidence, given that there are other material evidence that are primary in so far as determining whether the Applicant qualified for this event.
The World Championships Games
119. According to the Applicant, the Respondent has either delayed and or refused to invite or allow the Applicant Athlete to participate in the upcoming National Trials for the World Championships scheduled to take place from 15th -17th August 2019.
120. It was further the Applicant’s submission that the qualification rules relied upon by the Respondent were not the valid rules and this is only being used to bar the Applicant from participating in the said trials.
121. The Applicant further submitted that there are no entry standards and requirements for trials as by their very nature, they ought to be open to all. Only competitions have entry requirements.
122. The Applicant produced Exhibit FOO26 being the IAAF Qualification System and Entry Requirements and contended that the same produced by the Respondent as Exhibit SK6 was not the actual entry requirements.
123. The Applicant also submitted that the Respondent was only relying on this purported new IAAF rules for the upcoming World Championships in order to lock out the Applicant, as the rules require a participating athlete to have attended at least three (3) mandatory anti-doping seminar prior to the competition, of which the Respondent has failed to invite the Applicant for the same despite inviting other athletes.
124. To dispense with the issue of which of the entry requirements was indeed valid, the Tribunal has taken a cursory look at the website of the IAAF and indeed found the available entry standards are those produced by the Applicant. In fact, a cursory look at the exhibit produced by the Respondent, being Exhibit SK6 reveals from the letter attaching and forwarding the entry standards that the attached standards were yet to be approved, and the approval was to take place sometime in December 2018, which does not seem to have happened. Barring that, we have no other evidence to rely on. We, however, note that the two entry standards produced by the parties actually are similar, with the only minor difference being the qualifying times as per the two entry standards, with the Applicant’s providing the qualifying time for 100m to be 10.10 seconds, while the Respondent’s puts it at 10.05 seconds.
125. On the issue of whether the Applicant qualified for the World Championships, we would remiss if we did not lament the failure by the parties to properly address the Tribunal on the issue. The parties did not put before the Tribunal any material evidence to point to the fact that there was a trial for the qualification or it yet to be done. Even the Applicant himself seems unsure whether the same has been done as he states in his Summary of Arguments that the Respondent has ‘either delayed and or refused to invite or allow the Applicant Athlete to participate in the upcoming National Trials for the World Championships scheduled to take place from 15th -17th August 2019.’
126. The Respondent on the other hand submitted that the Applicant had not qualified owing to the fact that he had not met the entry qualification time for the Championships.
127. So, the question that begs determination is, was there any trials conducted for the World Championships? If not what trials are they basing their qualification entries on?
128. With the glaring lack of proper material put before the Tribunal to help it determine this matter, the Tribunal is left to decide the same on the material available to it, which isn’t much.
129. We find that even if the Tribunal were to assume that the Trials had already been conducted, the Applicant would still not have met the required qualification time of 10.10 seconds as the Applicant has not placed before the Tribunal any material evidence to in fact show that at any particular time he clocked the said time.
130. We further find that even if we were to apply the Qualification System and Entry Standards for the World Championships produced by the Applicant as Exhibit FOO26, the rules provide as follows:
Individual Athletes can qualify in one of four ways:
1. Automatically by achieving the Entry Standard within the qualification period in accordance with criteria decided by IAAF
2. Based on the finishing position at designated competitions as follows (in these cases the athletes shall also be considered as having achieved the Entry Standard):
· The Area Champions in all the individual events (except for the Marathons). However, in the case of 10,000m, 3000mSC, Combined Events, Field Events and Road Events, the entry will be subject to the approval of the Technical Delegates, based on the athlete’s level. The Member Federation of the Area Champion will have the ultimate authority to enter the athlete or not, based on its own selection criteria. For details see later.
· For the 10,000m, the top 15 athletes finishing in the senior Men’s and Women’s races at the IAAF World Cross Country Championships Aarhus 2019.
· For the Marathons, the top 10 finishers at the IAAF Gold Label Marathons held in the qualification period.
3. By Wild Card as:
o Reigning World Outdoor Champion
o Winner of the 2019 IAAF Diamond League
o Leader (as at closing date of the qualification period):
§ IAAF Hammer Throw Challenge
§ IAAF Race Walk Challenge
§ IAAF Combined Events Challenge If both are from the same country, only one of the two athletes can be entered with this Wild Card. If a Member Federation has four athletes in one event as a result of this regulation, all four will be permitted to compete.
4. As a result of being among the best ranked athletes as per the IAAF Top Performance Lists within the respective qualification periods [Emphasis Ours]. This does not apply to the 10,000m, Marathons and Race Walks where entries will continue to be administered by Entry Standards only.
131. We therefore find that the Applicant would have to qualify in the four ways enumerated above. We have not seen any demonstration as to which of the four ways above the Applicant has qualified through.
132. The upshot of the above is that we find that if the Trials have yet to be undertaken, then the Applicant ought to be granted a fair chance to participate in the said trials.
Issue of payment of allowances to the Applicant
133. On the issue of who ought to pay for the days the Applicant was in camp, we find that this has not been adequately argued before the Tribunal. None of the parties has provided adequate evidence to move this Tribunal to a finding of where such payment lies. All that is before the Tribunal are contentions without proper backing and the upshot is that we will leave the matter to lie where it fell. We will therefore not make a determination on this point.
Conclusion
134. In light of the above, we find that the Applicant’s appeal against the decision of the Respondent partially succeeds and that the following orders commend themselves to the Tribunal: -
a. That prayers (2), (7), (8), (9) and (12) of the Applicant’s Notice of Motion dated 19th June 2019 are allowed.
b. That prayers (13) and (14) of the Applicant’s Notice of Motion dated 19th June 2019 fail due to want of proof.
c. That the resolution passed by the Respondent’s AGM on the 25th April 2019 banning all athlete found to be/to have been in violation of anti-doping rules from representing the country in global athletic events is declared invalid due to contravention of the procedural rules for convening an AGM of the Respondent.
d. That as far as the resolution passed by the Respondent on the 25th April 2019 banning all athlete found to be/to have been in violation of anti-doping rules from representing the country in global athletic events does not distinguish between intentional and unintentional doping violations, it is invalid.
e. That the Respondent takes measures to ensure any future resolutions, policies or rules and regulations passed conform to the principles enunciated hereon.
f. Each party shall bear its own costs.
Dated at Nairobi this 8th day of August, 2019
___________________________________
John M. Ohaga, Panel Chairperson
_____________________ ___________________________
Gabriel Ouko, Member GMT Ottieno, Member
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