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SPORTS AND THE LAW
Author: Francis Karoro & Rosemary Karoro
When we are caught up in sports' pleasure and satisfaction, it is easy to forget that it is a profession just like medicine, engineering, or law. Indeed, for most Ugandans, sports are merely entertainment, with many parents happy to support their children to participate for fun, but not as a career.
To be fair, that pragmatic attitude towards sports is warranted. As a nation, Uganda is not yet at a point where sports can adequately sustain someone financially.
Nonetheless, sport is a career that can transform people's lives and develop our nation. Take the life changing experiences of Joshua Cheptegei and Peace Proscovia. Now think of the sense of national pride their successes have brought us and how this is helping foster a spirit of nationhood!
Already we can see that Uganda's sports industry is changing individual athletes and our nation's fortunes even in its infancy. The big question for us is how do we move from sports as a form of entertainment to sports as a career?
For this transformation to occur, we need three things. First, we ought to fully enforce and operationalize the laws governing sports in Uganda. Second, sports organizations and athletes in Uganda must know of these laws. Also, they should implement and continuously improve said laws by identifying and addressing gaps. Third, sports should be promoted alongside a robust educational background.
For the past decade, l played as a semi-professional basketball player in Uganda's National Basketball League, unbothered by the laws governing my sport. However, when I became an Advocate, I realized it's essential for me and the sports fraternity in Uganda to know how to improve what we love.
As an Advocate of the High Court of Uganda, my ultimate duty is to my client. To execute this duty, I must know the laws applicable to my client's legal problem. In this article, I take the average Ugandan athlete, the National Council of Sports, and the sports agents as my clients and attempt to explain the laws governing them, the problem with those laws, and how to improve them. I also look at how to improve sports in our nation generally.
What the Ugandan Athlete should know?
An athlete, like any other profession, should be formally employed. That is, she/he should have an employment contract to protect their interests. In Uganda, the laws governing such an arrangement are the Contracts Act and the Employment Act. The sports club is considered an employer, while the athlete is viewed as an employee. What is important to note here is that the interaction between the sports club and the athlete (how the athlete is treated etc.) should adhere the provisions of the Employment Act.
The Employment Act protects an employee from harsh treatment by the employer or fellow employees. It also ensures that all legal rights an employee is entitled to (e.g., payment of wages, length of working hours, annual leave, etc.) are fully respected. The Act also gives employees the right to sue the employer if they infringe on their rights or terminate them unfairly.
In addition to the rights spelled out by the Employment act, a contract can have extra protections rooted in law that is not Statutory (written), i.e., Tort law. These protections are inserted in a clause(s) of the contract to accord the Athlete or the sports organization the additional boost of protection that is not explicitly provided for under the Employment Act in the event that an incident not governed by the Employment Act occurs.
What the Ugandan athlete should do?
As an athlete, you must have an employment contract, which governs the obligations between you and the club you play for. According to the law, the club you play for must give you a contract; therefore, you should demand for it. For basketball players in the NBL (National Basketball league), this is provided for by Rule 3 sub-rule 2 of the FUBA (Federation of Uganda Basketball Association) Rules. According to the above rule, all basketball players in the NBL must have an employment contract.
The remaining question is: What is the remedy in case of breach of the said contract? As an employee of a sports club, the athlete should take his complaint to the labor office as provided by the Employment Act.
Uganda has a National Council of Sports (NCS), which governs all sports federations in Uganda as established by the National Council of Sports Act. NCS is also obligated by the latter to promote sports in the nation, sponsor scholarships for the training of coaches and organizers, and advise the minister regarding external relations in sports. However, this Act was enacted in 1964, when little was known about sports in Uganda. Since then, sports have changed drastically, and sports law should be flexible enough to accommodate the modern-day athlete's needs.
As a career, sports takes on different facets when it interacts with other aspects of the entertainment industry, such as fashion and music, or entirely different industries such as the food industry. The above interactions bring into play a multitude of laws. Let's take the endorsement deal, which is the foundation of the interaction between sports and other sectors. Here, a popular sportswoman or man is contracted by a business to promote a particular product or brand. This interaction goes beyond the employment act and pulls in intellectual property law (trademark law), competition law (when passed as law in Uganda or should the athlete play in multiple countries that have different laws, following which the question of liability will be according to a country’s particular law), consumer protection laws, and property rights under the Constitution of Uganda. "Why many laws?" one may ask. You see, the more complex the interaction– in this case, the endorsement deal with let’s say multiple third parties that are governed by a different set of laws- the more likely the athlete's liability will be called into question in the event of litigation for or against her/him.
Here is the bottom line, consider an Athlete as an individual in interaction with a multitude of persons (both physical and artificial like companies) and bodies; the laws which the athlete comes into contact with; whether it is in the protection of the person or calling for her liability; will depend and vary from situation to situation morphing itself according to what constitutes a "modern-day Athlete." The Laws discussed above are merely the fundamental legal anchors which an Athlete should strive to have or in the least be aware of.
What a sports agent should know?
Uganda is not yet at the level where every sportsman and woman has an agent. In elite sports, agents play a pivotal role in promoting the interests of sports personalities they represent. Promoting the interests of sports personalities involves interactions with businesses and other entities that may not directly connect to the sports industry but benefit the athlete.
As an agent in Uganda, you are governed by the Contracts Act. Section 118 of the said Act defines an agent as a person employed by a principal to do any act for that principal or to represent the principal in dealing with third parties.
The agent's primary role is to represent the principal's (athlete's) best interests. This comes into play when negotiating contracts for players and making sure the player's employer follows through on the contract's terms and conditions. This places a duty of care (termed in Law as a “fiduciary duty”) on the Agent to ensure that that the Player’s interests are upheld and that no unscrupulous activities are carried out to the detriment of the athlete. In the event that the Agent acts contrary to their duties, an athlete may institute a suit against the Agent for breach of contract or negligent representation under tort law. To avoid such a scenario, Agents must strive to be transparent with their Principals and ensure constant communication of any developments and material information concerning the athlete be understood fully.
About Sporting Bodies:
Laws in Uganda also govern sports organizations. Taking the example of FUBA, FUBA is governed by the FUBA rules. Many sports organizations in Uganda often forget the most important person in the business. The sportswoman or sportsman. The main question is whether or not the sports organizations are fully aware of the laws that govern them and what the legal implications would be in the event that they fall short of their legal duties.
How do we improve sports?
The National Collegiate Athletic Association (NCAA) in the United States of America makes it mandatory for high school athletes to have a minimum education for them to be eligible to qualify for a sports scholarship. This legal requirement is fundamental in the development of not only sports women and men but also citizens. An educated sportswoman or man is a great asset to the nation. I say this because most, if not all, great sportsmen and women are characterized by their mental strength, confidence, and discipline. Now, add all these qualities to a person who has gained formal education, and you have an asset to the nation. The majority of famous sportsmen and women are great entrepreneurs and business people, not just entertainers.
Their ability to invest in the nation and set up life-changing organizations is due to an excellent educational background. I will take the example of Lebron James, who set up the "I promise school." His ability to use basketball as a tool to fight for rights and change his community is because he is highly knowledgeable and intelligent. I, therefore, believe that we must emphasize a foundation of academic excellence to run in tandem with sports. An educated athlete can use their knowledge to improve the particular sport they play.
In light of the above, FUBA should adopt practices that build up the athlete in a wholistic manner; particularly young athletes. It is therefore important to address some of the loopholes in the FUBA regulations pertaining to sections on protecting players below the age of 18. The reason being, young players, are the future of the sport. There must be laws protecting this talent as raw talent can be fragile. The Contracts Act does provide that a person below the age of 18 can't contract; however, a person of sixteen years and above can enter into an employment contract under Article 34(4) of the Constitution. Nonetheless, we should have the general Act governing interactions with teenage athletes, providing a high level of protection for them and motivating them to pursue their education through the provision of scholarships.
The Ugandan government through the Ministry of Education and Sports should work in tandem with sports organizations like FUBA to facilitate protections for athletes, provision of sports scholarship amongst other things. This Ministry’s mandate is to provide, guide, coordinate, regulate and promote quality sports services in the country. Furthermore, it is supposed to govern sports institutions in the nation. Because the educational sector has been commercialized, it's not shocking to see that many educational institutions don't have sports facilities. I believe the Ministry of education and Sports should enforce this and promote sports in every educational institution.
In a country ridden by hate, anger, internal wars, and conflict, Nelson Mandela used sport as a way to unify South Africa. He did this by calling upon South Africans of all races to rally behind a national Rugby team dominated by whites when tensions between Blacks and whites were still running high. That was during the 1994 Rugby World Cup hosted by South Africa. South Africa would go on to win the Rugby world cup creating massive celebrations around the nation. At that moment, it didn't matter that the team was dominantly white. What mattered was that sports had brought the people closer in celebration and joy. Nelson Mandela would go on to say:
"sport has the power to change the world. It has the power to inspire; it has the power to unite people in a way that little else does. It speaks to youth in a language they understand. Sport can create hope where once there was only despair".
I, too, believe sports can change Uganda if (1) laws governing sports are fully enforced and operationalized, (2) Ugandan athletes and sports organizations know and embrace the laws governing sports, and (3) appropriate amendments are made to close any loopholes in the existing laws. What do you think?