REPUBLIC OF KENYA

 THE JUDICIARY

OFFICE OF THE SPORTS DISPUTES TRIBUNAL

SDTSC E015 OF 2021

AMAZING SPORTS TALENT AGENCY........COMPLAINANT

-VERSUS-

TUSKER FOOTBALL CLUB............................... RESPONDENT

DECISION

Hearing:     21^st December, 2021

Platform:      Microsoft Teams  

Panel:

1. Mr. John M. Ohaga, SC, C.Arb    - Chairman

2. Mrs. Elynah Sifuna-Shiveka        - Deputy Chairperson

3. Mrs. J. Njeri Onyango, FCIArb   - Member

Appearances:

1. Mr. Silas Ombati instructed by SED Legal LLP, Advocates for the Complainant;

2. Mr. Nyaburi instructed by Iseme. Kamau & Maema, Advocates for the Respondent;

3. Mr. Abdullahi, instructed by Abdullahi & Associates, Advocates for the Interested Party.

A. PARTIES

1. The Complainant describes itself as a football agency registered in Kenya as an Intermediary between sports personas and respective football teams.

2. The Respondent is a football club founded in 1969 and is based in Nairobi, Kenya.

3. The Interested Party describes itself as a sports organization that works with International Clubs and facilitates the transfer of players.

B. BACKGROUND

4. The Applicant/Complainant herein approached this Honourable Tribunal by way of a Notice of Motion under a certificate of urgency on 2^nd December 2021 (hereinafter “the Application”) seeking the following orders:

i. THAT the matter herein be certified as urgent and the same be heard ex-parte and interim orders be granted in the first instance.

ii. THAT the Respondent be restrained by way of a temporary injunction from remitting the transfer fee for one Henry Meja Atola to the Interested Party pending the hearing and determination of this Application.

iii. THAT the Respondent be restrained by way of a temporary injunction from remitting the transfer fee for one Henry Meja Atola to the Interested Party pending the hearing and determination of the Complaint.

iv. Costs of this Application be provided for.

5. The Complainant also filed a complaint dated 1^st December 2021 (hereinafter “the Complaint”) wherein it prayed for:

i. A permanent injunction restraining the Respondent from paying into the accounts of the Interested Party the transfer fee.

ii. That this Honourable Tribunal directs the Respondent to pay into the accounts of the Complainant the 30% being the transfer fee of Kenya Shillings Sixteen Million Five Hundred Thousand (Kshs. 16,500,000.00) being the fees owed as a result of the signing of Henry Atola Meja by Swedish Allvenskan Club AIK.

iii. That this Honourable Tribunal directs that 50% of the said transfer fee be paid to the Interested Party upon the issuance of an invoice.

iv. Any other order or further order that this Honourable Tribunal may find fit, proper and just to issue.

v. Costs.

6. The Tribunal upon considering the Application filed by the Complainant granted the following orders on 8^th December 2021:

i. THAT this application be and is hereby certified as urgent and be considered ex-parte in the first instance;

ii. THAT pending the hearing and determination of this Application the Respondent be restrained by an order of injunction from remitting the transfer fee for Henry Meja Atola to the Interested Party;

iii. THAT pending the hearing and determination of the Complaint the Respondent be restrained by an order of injunction from remitting the transfer fee for Henry Meja Atola to the Interested Party;

iv. THAT this Order and the Application be served upon the Respondent and the Interested Party immediately and in any event before Friday 10^th December 2021;

v. THAT the matter be listed for mention for direction on Tuesday 14^th December 2021 at 2:30p.m;

vi. THAT the costs of this Application are reserved.

7. The matter came up for mention on 14^th December 2021 when the Respondent was granted seven (7) days to file its Replying Affidavit and the matter was set for hearing of the Application on 21^st December 2021.

8. On 21^st December 2021, the Respondent filed a Preliminary Objection wherein it objected to the jurisdiction of the Tribunal to hear and determine both the application and the complaint.

C. BRIEF FACTS

9. It was the Complainant’s contention that it entered into an Agency Agreement with one Henry Atola (hereinafter “the player”) dated 7^th March, 2021 where it was agreed that the Complainant was to be the agent of the player.

10. Subsequently, the player, the Complainant and the Interested Party entered into a Representation Agreement dated 21^st April 2021 which was to govern the intermediary’s activities as the player’s representative.

11. Further, the Complainant and the Interested Party entered into an agreement dated 26^th April, 2021, being a joint venture agreement, which provided that the Interested Party had a right to receive 50% of the transfer fees collected from a successful transfer of the player to a new club owing to the involvement and contribution of the Interested Party.

12. The Interested Party managed to transfer the player from the Respondent to a Swedish club, Allvenskan Club IAK. The agreed transfer fee was Kshs. 16,500,000.00, which amounts according to the Complainant have been paid to the Respondent.

13. The Complainant averred that 30% of the transfer fee was to be paid to it after which it was to remit 50% of the said sum to the Interested Party.

14. According to Clause 2.3 of the contract dated 26^th April, 2021, the 50%due to the Interested Party was to be paid upon the issuance of an invoice to the Complainant by the Interested Party ten days after the transfer fee has been paid to the Complainant.

15. It was the Complainant’s submission that it has not received any invoice from the Interested Party towards the payment of the 50% owed. However, it learnt vide an article that the Interested Party, in blatant disregard of their contractual agreements, has threatened to sue the Respondent in its individual capacity for the recovery of the transfer fee with the intention of locking away the Complainant and getting the full transfer fee.

D. PLEADINGS

16. The Complainant herein moved Honourable Tribunal by way of a Notice of Motion under a certificate of urgency on 2^nd December 2021.

17. The Complainant also filed a Complaint supported by an affidavit on 2^nd December 2021.

18. The Interested Party filed its Replying Affidavit and annexures on 21^st December 2021.

19. The Respondent filed its Replying Affidavit and Notice of Preliminary Objection on 21^st December 2021.

20. The matter came up for hearing on 21^st December, 2021 where the parties submitted on both the Preliminary Objection and the Application as highlighted hereunder.

E. COMPLAINANT’S CASE

21. In response to the preliminary objection raised by the Respondent, the Complainant relied on Section 58(b) of the Sports Act and addressed each limb of the three- pronged test established under the said section.

22. The Complainant argued that the matter is a sports related dispute because the Complainant and the Interested Party are agents, and the Respondent is the players football club.

23. In addressing the issue of whether the parties had agreed to refer the dispute to the Tribunal, the Complainant referred the Honourable Tribunal to Clause 13 of the contract dated 7^th March 2021 between the player and the Complainant which provides for the jurisdiction of the Tribunal.

24. The Complainant made further reference to clause 4 of the contract dated 26^th March 2021 between the Respondent and the Interested Party which provides for the jurisdiction of the Tribunal. It was on these grounds that the Complainant asserted that all the parties had submitted to the jurisdiction of the Tribunal.

25. The Complainant explained that no contract existed between it and the Respondent. However, by virtue of the contract dated 21^st April, 2021, which was a joint venture between the player, the Complainant and the Interested Party, the Complainant and the Interested Party were to act jointly as intermediaries for the player. The Complainant submitted that this contract was deposited with the Respondent who throughout the negotiations was aware of the joint venture.

26. Following from the above, it was the Complainant’s evidence that in view of the contract dated 21^st April 2021, the Interested Party in its contract with the Respondent represented the interests of the Complainant.

28. On the last limb, whether the Tribunal has agreed to hear the matter, counsel for the Complainant submitted that the Interested Party has failed to prove to the Tribunal that the Complainant was aware of the cause of action filed at the Chief Magistrates Court.

28. In support of its position that the Tribunal has jurisdiction to hear this matter, the Complainant relied on the case of Robert Williams v FKR Tribunal Case No 28 of 2016.

29. With regard to the Complainant’s application filed on 2^nd December 2021, it was the Complainants contention that it entered into an Agency Agreement with one Henry Atola (hereinafter “the player”) dated 7^th March, 2021 where it was agreed that the Complainant was to be the manager of the player.

30. Subsequently, the player, the Complainant and the Interested Party entered into a Representation Agreement dated 21^st April 2021 which was to govern the intermediary’s activities as the players representative.

31. Further, the Complainant and the Interested Party entered into an agreement dated 26^th April, 2021, being a joint venture agreement which provided that the Interested Party had a right to receive 50% of the transfer fees collected from a successful transfer of the player to a new club owing to the involvement and contribution of the Interested Party.

32. The Interested Party managed to transfer the player from the Respondent to a Swedish club, Allvenskan Club IAK. The agreed transfer fee was Kshs. 16,500,000.00 which amounts according to the Complainant have been paid to the Respondent.

33. The Complainant averred that 30% of the transfer fee was to be paid to it after which it was to remit 50% of the said sum to the Interested Party.

34. According to Clause 2.3 of the contract dated 26^th April, 2021, the 50%due to the Interested Party was to be paid upon the issuance of an invoice to the Complainant by the Interested Party ten days after the transfer fee has been paid to the Complainant.

35. It was the Complainant’s submission that it has not received any invoice from the Interested Party towards the payment of the 50% owed. However, it learnt vide an article that the Interested Party, in blatant disregard of their contractual agreements, has threatened to sue the Respondent in its individual capacity for the recovery of the transfer fee with the intention of locking away the Complainant and getting the full transfer fee.

36. The Complainant submitted that the Interested Party has not approached the Tribunal with clean hands as the contract dated 21^st April 2021 annexed to the Interested Party’s Replying Affidavit has been tampered with.

37. Further, the Complainant highlighted that the contract dated 26^th April 2021 did not have a termination clause and therefore the statutory provisions on termination of a contract and the notice requirements are applicable. The Complainant relied on the case of Alpha Lettings Ltd v Neptune Research and Development [2003] EWCA  704.

38. The Complainant asked that the Honourable Tribunal determines whether it is the contract between the player and the Complainant or that between the Respondent and the Interested Party that takes precedence.

39. The Complainant also pointed the Tribunal to clause 3 of the contract dated 21^st April 2021, which provides that any party may terminate the agreement after the lapse of six months. It was the Complainant’s submission that the six months had not lapsed by the time the e-mail dated 28^th August 2021 had been sent effecting the termination and therefore the contract cannot be said to be validly terminated.

F. THE RESPONDENT’S CASE

40. On ground one and two of the Preliminary Objection, it was the Respondent’s submission that the Tribunal does not have jurisdiction to hear the complaint and application. This was premised on Section 58(b) of the Sports Act, 2013 which provides inter alia that all the parties to the dispute should agree to submit the dispute to the Tribunal.

41. The Respondent submitted that the Complainant had failed to prove that indeed, a contract existed between it and the Respondent wherein both parties agreed to submit to the jurisdiction of the Tribunal.

42. The Respondent, on the third ground of the preliminary objection, submitted that there is no privity of contract between the Complainant and Respondent and that the joint venture agreement referred to by the Complainant is not sufficient to confer jurisdiction on the Tribunal. Counsel for the Respondent relied on the landmark case of Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR.

43. With regard to the application before the Tribunal, the Respondent averred that there was already a pending suit between the Respondent and the Interested Party, CMCC E 1478 of 2021 - Atotos Sports Empire v Tusker Football Club, the subject of the suit being the validity of the contract between the Respondent and Interested Party. Therefore, if the Tribunal was to entertain the present dispute, it would offend the principle of sub judice.

44. In the Respondent’s view, the Complainant does not disclose any reasonable cause of action against the Respondent as it was neither a party to the Agency Agreement dated 7^th March 2021 nor the contract dated 21^st April 2021.

45. Further, the Respondent submitted that the Complainant having been made aware of the suit before the Chief Magistrates Court vide the Replying Affidavit of the Interested Party, it should have sought to be enjoined as a party as the reliefs sought therein are the same reliefs being sought before the Tribunal.

G. THE INTERESTED PARTY’S CASE

46. The Interested Party submitted that it is in support of the preliminary objection raised by the Respondent. It associated itself with the submissions of the Respondent as it had raised the same issue at paragraph 19 of its Replying Affidavit sworn on 14^th December 2021 on grounds that the dispute is a contractual matter and not a sports related dispute.

47. The Interested Party averred that presently, no contract exists between the Interested Party and the Complainant as the same was terminated by the Complainant vide an e-mail dated 28^th August 2021 whose subject was “NOTICE OF TERMINATION OF AGREEMENT.”

48. It was the Interested Party’s considered view that the contract had been validly terminated as the e-mail effecting the termination was sent on 28^th August 2021 and the player was transferred in September. Further, the Complainant sought to terminate the contract with immediate effect and the same has not been disputed by the Complainant.

49. The Interested Party submitted that a valid contract exists between the Respondent and the Interested Party as they entered into an agreement which provided for the facilitation of the transfer of players by the Interested Party on 26^th March 2021.

50. Further, the Interested Party highlighted to the Tribunal that in fact the player has other agents and there is the possibility of other claims being brought.

51. It was the Interested Party’s submission that on 21^st April, 2021, it entered into a Representation contract with the player for purposes of negotiating the sale and transfer of the player to a Swedish football club.

52. The Interested Party through its parent company successfully negotiated for the transfer of the player to AIK Football AB in Stockholm, Sweden for a transfer fee of Kshs. 16,500,000.00 which was confirmed vide a letter dated 4^th November 2021 by AIK AB Football Club

53. Following the successful transfer of the player and in accordance with the terms of the agreement with the Respondent dated 26^th March 2021, the Respondent was obligated to pay the Interested Party 30% of the transfer fee ten days after the transfer fee is paid and an invoice raised by the Interested Party.

54. The Respondent, to date, has not paid the Interested Party its fee which then necessitated the filing of a suit, CMCC E 1478 of 2021 Atotos Sports Empire v Tusker Football Club. It was the Interested Party’s submission that the Complainant was not entitled to any compensation as it terminated its contract with the Interested Party before signing of the player.

55. Further, the Interested Party averred that the Complainant had not met the threshold for the grant of a temporary injunction as was held in the case of Giella vs Cassman Brown [1973] E.A 358 and further reiterated in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR where the Court of Appeal held:

“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;

(a) establish his case only at a prima facie level,

(b) demonstrate irreparable injury if a temporary injunction is not granted, and

(c) ally any doubts as to (b) by showing that the balance of convenience is in his favour.

These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent.  It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.”

56. It was further submitted that the Complainant has not demonstrated that it has a prima facie case. The Interested Party relied on the case of Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 which fashioned a definition for “prima facie case” in civil cases as:

“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.

57. The Interested Party relied on the case of Pius Kipchirchir Kogo versus Frank Kimeli Tenai [2018] eKLR in support of the fact that the Complainant has failed to prove to the Honourable Tribunal that it will suffer irreparable damage that cannot be adequately compensated by damages if the injunction is not granted. The court in this case stated in part as follows:

“irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.”

58. Additionally, the Interested Party averred that the Complainant has failed to prove that the balance of convenience tilts in its favour for the grant of an injunction as was held in the case of Pius Kipchirchir Kogo (supra) where the court stated:

“The meaning of balance of convenience in favour of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.”

59. The Interested Party submitted that the temporary injunction issued on 8^th December 2021 was obtained without full disclosure of material facts, this being that the Complainant has terminated the contract between itself and the Interested Party and that it was the Interested Party that solely negotiated the transfer of the player. Consequently, the Interested Party urged the Tribunal to vacate the said order and relied on the case of Kenleb Cons Ltd v New Gatitu Service Station Ltd & another [1990] eKLR where the court stated:

“To succeed in an application for injunction an applicant must not only make a full and frank disclosure of all relevant facts to the just determination of the application, but must also show he has a right, legal or equitable, which requires protection by injunction.”

60. The Interested Party prayed that the orders issued on 8^th December, 2021 be vacated and that the suit be dismissed.

H. ISSUES FOR DETERMINATION

61.The Tribunal will firstly direct its mind to the question of jurisdiction as set out in the Respondent’s Notice of Preliminary Objection dated 20^th December 2021 before delving into the substantive issues raised by the parties.

I. Whether the Tribunal has the requisite jurisdiction to hear and determine the application and the complaint

62. The landmark case of Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR underscores the centrality of jurisdiction of a court or tribunal on any matter brought before it. The Court of Appeal in this case held in part as follows:

“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

……. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court.”

63. The Tribunal, as rightly stated by the parties, derives its jurisdiction from Section 58 of the Sports Act, 2013 which provides that:

The Tribunal shall determine—

(a)appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including—

(i)appeals against disciplinary decisions;

(ii)appeals against not being selected for a Kenyan team or  squad;

(b) other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear; and

(c)appeals from decisions of the Registrar under this Act.

64. The Complainant’s argument in opposition to the preliminary objection raised by the Respondent is hinged on Section 58(b) of the Sports Act, 2013.

65. The Tribunal observed in its decision in the case of Dennis Kadito -vs- Sofapaka FC that Section 58(b) of the Sports Act, 2013 establishes a three-pronged test in determining the jurisdiction of the Tribunal. It held that:

 “However, a reading of Section 58(b) demonstrates that it is not sufficient that the matter before the Tribunal should be a ‘sports-related dispute’; the parties to the dispute must also agree to refer the matter to the Tribunal and the Tribunal must agree to hear the matter. It is clear that there is therefore a three (3) stage process for establishing the jurisdiction of the Tribunal under Section 58(b). Each limb of the three (3) stage process must be satisfied and each stage depends on a positive answer to the prior stage.”

66. It goes without saying that it would be imperative for the Tribunal to examine whether the conjunctive test established in the Dennis Kadito case (supra), which was upheld by the High Court in Dennis Kadito v Office of The Sports Disputes Tribunal & another [2017] eKLR, has been met.

67. The Tribunal shall examine each step sequentially.

i. Whether the matter is a sports-related dispute

68. The Complainant argued that the matter is a sports related dispute because the Complainant and the Interested Party are agents, and the Respondent is the players football club. However, the Respondent opined that the dispute is a contractual one in nature and therefore this ousts the jurisdiction of the Tribunal.

69. In determining whether this dispute is a sports-related dispute, the Tribunal would like to turn to the definition of “sports-related dispute” under the Code of the Court of Arbitration for Sport on Sports-related Arbitration, wherein under R27 it states as follows:

“These Procedural Rules apply whenever the parties have agreed to refer a sports-related dispute to CAS. Such reference may arise out of an arbitration clause contained in a contract or regulations or by reason of a later arbitration agreement (ordinary arbitration proceedings) or may involve an appeal against a decision rendered by a federation, association or sports-related body where the statutes or regulations of such bodies, or a specific agreement provide for an appeal to CAS (appeal arbitration proceedings). Such disputes may involve matters of principle relating to sport or matters of pecuniary or other interests relating to the practice or the development of sport and may include, more generally, any activity or matter related or connected to sport.”

70. Albeit the definition given above being very broad, it is the Tribunals considered opinion that a sports related dispute is one that is directly or indirectly linked to sport. The import of this is that sports related disputes may cut across various areas of law one of which may be the law of contract.

71. In that regard, the Tribunal finds that the dispute is in fact a sports-related dispute involving the transfer of a football player from one club to another and the various rights that accrue to the contracting parties.

ii. Whether all the parties to the dispute have agreed to refer the dispute to the Tribunal

72. In addressing the issue of whether the parties had agreed to refer the dispute to the Tribunal, the Complainant referred the Honourable Tribunal to Clause 13 of the contract dated 7^th March 2021 between the player and the Complainant which provides for the jurisdiction of the Tribunal.

73. The Complainant made further reference to clause 4 of the contract dated 26^th March 2021 between the Respondent and the Interested Party which provides for the jurisdiction of the Tribunal. It was on these grounds that the Complainant asserted that all the parties had submitted to the jurisdiction of the Tribunal.

74. The Complainant explained that no contract existed between it and the Respondent. However, counsel for the Complainant went on to state that by virtue of the contract dated 21^st April, 2021, which was a joint venture between the player, the Complainant and the Interested Party, the Complainant and the Interested Party were to act jointly as intermediaries for the player. The Complainant submitted that this contract was deposited with the Respondent who throughout the negotiations was aware of the joint venture.

75. The Respondent, however, submitted that the Complainant had failed to prove that indeed, a contract existed between it and the Respondent wherein both parties agreed to submit to the jurisdiction of the Tribunal.

76. The Respondent further submitted that there is no privity of contract between the Complainant and Respondent and that the joint venture agreement referred to by the Complainant is not sufficient to confer jurisdiction on the Tribunal.

77. It is elementary learning, that under the common law doctrine of privity of contract, rights and obligations under a contract are only conferred or imposed on the parties to that contract.

78. In this regard, the Court of Appeal in the case of Agricultural Finance Corporation v Lengetia Limited & Jack Mwangi [1985] eKLR quoted with approval Halsbury’s Laws of England, 4th Edition Volume 9 (1) at Paragraph 748 which states:

“The doctrine of privity of contract is that, as a general rule, at common law a contract cannot confer rights or impose obligations on strangers to it; that is, persons who are not parties to it. The parties to a contract are those persons who reach agreement and, whilst it may be clear in a simple case who those parties are, it may not be so obvious where there are several contracts, or several parties, or both, for example in the case of multilateral contracts; collateral contracts, irrevocable credits; contracts made on the basis of the memorandum and articles of a company; collective agreements, contracts with unincorporated association; and mortgage surveys and valuations.”

79. However, a party may rely on the exceptions to the doctrine of privity of contract as was discussed extensively in the case of William Muthee Muthami v Bank of Baroda [2014] eKLR where the Court of Appeal enumerated the exceptions that a party may rely on to prove that they were a party to the contract as follows:

“i.  a collateral contract to the one in question in which he was a party,

ii.  an agency relationship in which the appellant transacted on his behalf,

iii. a trust by which the appellant contracted and held the property in trust for him (the witness),

iv. an express provision or implied term in the agreement made for the benefit of the appellant’s father.”

80. Turning to the case at hand, the Tribunal will address exception (ii) and (iv) above which it deems to be relevant to the current dispute before it.

81. It was the Complainants evidence that in view of the contract dated 21^st April 2021, the Interested Party in its contract with the Respondent represented the interests of the Complainant.

82. On the principal/agent relationship, the court in the case of David Njuguna Ngotho Vs. Family Bank & another [2018] eKLR observed as follows:

“Bowstead and Raynolds on Agency Seventeen Edition, Sweet and Maxwell, at page 1-001 defines an agent-principal relationship as a relationship which exists between two persons, one whom expressly or impliedly consents that the other should act on his behalf so as to affect his relationship with third parties, and the other of whom similarly consents so to act or so acts.”

83.  The Complainant and the Interested Party entered into a joint venture agreement agreement dated 26^th April 2021 for the nurturing and selling of players abroad which the Complainant later terminated according to the Interested Party. Further, the player, the Complainant and the Interested Party entered into an agreement dated 21^st April 2021 wherein the Interested Party and the Complainant were to act jointly as the intermediaries of the player.

84. The Tribunal is, however, not satisfied that these agreements would give rise to a principal-agent relationship.

85. Further, there did not exist an express provision or implied term in the agreement between the Respondent and the Interested Party made for the benefit of the Complainant. This therefore precludes the Complainant from claiming any reliefs under the contract dated 26^th March 2021.

86. The Tribunal is guided by the Court of Appeal’s holding in Aineah Liluyani Njirah versus Aga Khan Health Services [2013] Civil Application No. 194 of 2009 where it was held that:

“There is, however, an important distinction made between express and implied benefits which are enforceable under a contract by a third party.  When a contract expressly benefits the third party, there is a presumption that the contracting parties intended the third party to have a right of enforcement.  However, if the contract only impliedly benefits a third party, there is no such presumption, and the third party has no rights unless the contract expressly gives that third party a right to enforce the contract.  This creates certainty for, and protects, contracting parties, in that third parties cannot enforce contracts which only incidentally benefit them unless the contract expressly states that they may do so.”

87. The Complainant did not adduce sufficient evidence to the effect that it was a party to the contract dated 26^th March 2021 vide the exceptions to the doctrine of privity of contract. The Tribunal therefore finds in the circumstances of this case, that there is no privity of contract between the Complainant and the Respondent.

88. We find that the Complainant therefore cannot sustain an action against the Respondent based on the contract since being a third party, it does not have any rights under the contract which it could lawfully enforce. The import of this is that the Respondent cannot be said to have agreed to submit to the jurisdiction of the Tribunal, no valid contract having been in place as between the Complainant and the Respondent.

iii. Whether the Tribunal has agreed to hear the matter

89. It was the Respondents submission that there was already a pending suit between the Respondent and the Interested Party, CMCC E 1478 of 2021 Atotos Sports Empire v Tusker Football Club, the subject of the suit being the validity of the contract between the Respondent and Interested Party. Therefore, if the Tribunal was to entertain the present dispute, it would offend the principle of sub judice.

90. Further the remedies sought in CMCC E 1478 of 2021 Atotos Sports Empire v Tusker Football Club are similar to those sought before the Honorable Tribunal.

91. In view of the foregoing, the Tribunal cannot agree to hear the matter.

I. DETERMINATION

92. The Tribunal is not one to let justice bleed at the altar of technicality, however, a proper understanding of the pre-requisites the Tribunal must satisfy itself of under Section 58(b) of the Sports Act, 2013 obliges this Tribunal to down its tools with regard to the dispute before it and in view of the analysis above.

93. The words of the statute in section 58(b) are clear and unambiguous that parties must agree to refer any other dispute of a sports nature to the tribunal and the tribunal after examining the sort of the dispute has to agree to hear it.

94. The Tribunal is careful only to decline jurisdiction in instances where the party has an alternative forum through which they can have their dispute resolved.

95. The Complainant herein is not left without recourse as it can seek to be enjoined in CMCC E 1478 of 2021 Atotos Sports Empire v Tusker Football Club as the same remedy is being sought from the court in this matter.

96. Additionally, seeing as the claim by the Complainant is a liquidated claim, the Tribunal is satisfied that damages would be an adequate remedy.

97. The orders that commend themselves to the Tribunal in view of the forgoing are as follows:

I. The Application and Complaint filed by the Complainant are hereby dismissed.

II. The interim orders issued on 8^th December, 2021 by the Tribunal are hereby vacated.

III. Each party to bear its own costs.

DATED AT NAIROBI THIS 11^TH DAY OF JANUARY, 2022

JOHN M. OHAGA, SC, CARB  CHAIRPERSON

MRS. ELYNAH SIFUNA-SHIVEKA      - DEPUTY CHAIRPERSON

MRS. J. NJERI ONYANGO, FCIARB     - MEMBER