6 ESLJ [i] (2008)
Maurice Odumbe Investigation and Judicial Review of the Power of International Sports Organizations, The; Akech, Migai

handle is hein.journals/entersport6 and id is 41 raw text is: C s This article examines whether, and the circumstances in Ree s which, national courts should review the power of International Sports Organizations (ISOs). It uses the case of Maurice Odumbe as an illustration, and argues that national courts should regulate the power of bodies such as the International Cricket Council (ICC) where such power has been exercised unreasonably, where the rules and regulations of ISOs are themselves unreasonable, and also where ISOs interpret their rules and regulations unreasonably or wrongly. Private Bodies - Sports - Judicial Review - Kenya - Democracy Sports such as soccer, cricket, athletics and rugby have experienced stratospheric levels of commercialization in the last two decades as multinational firms seek to exploit the global fame of star athletes and teams to market their products. While athletes participate in these sports for the sheer thrill and fun of competition, and perhaps the desire to be famous and adored by multitudes of fans, many are equally attracted by the phenomenal wages that they can earn from sports. In many ways, therefore, sport is predominantly a means to a living for athletes and the personnel of sports teams. The paradox is that these same incentives have motivated a good number of athletes and teams to cheat, thereby bringing their sports into disrepute. Thus doping and match-fixing scandals in athletics, baseball, cycling, soccer and cricket abound (Vaerenbergh, 2005, pp.7-12). Such scandals shock the moral sensibilities of sports fans, with the likelihood that they may lose interest in the sport altogether, thereby jeopardizing the continued existence of the sport. For instance, the Tour de France, which was for along time the world's premier cycling competition, is now derisively termed the 'Tour de Farce' (Seaton, 2006). It has therefore become important to regulate sports in order to ensure 'fair play.'2 Accordingly, transnational sports organizations and federations have emerged to govern international sport. The International Football Federation (FIFA), the International Cricket Council (ICC) and the International Olympic Committee (IOC) are good examples. These organizations largely operate outside the purview of national and international law, and are governed by their rulebooks and constitutions as autonomous private entities. While membership in these organizations is voluntary, they invariably monopolize their sports because athletes are compelled to become members if they want to participate. These organizations are therefore extremely powerful and their decisions 'can have profound effects on the careers of players' (Foster, 2003, p.1). For instance, they can suspend or ban players from the sport, thereby depriving them of a livelihood. While such power may be necessary to ensure that the spirit of fair play prevails in sports, it is patently capable of being abused. Unfortunately, where such power is abused, the affected athletes are often at a dead-end since national courts in many jurisdictions remain reluctant to intervene, deeming their relationship as a private affair governed by contract and outside the purview of public law. This is the fate that befell Maurice Odumbe, a star cricketer and captain of Kenya's national cricket team at the material time. This article grapples with the question of the judicial review of this contractual private order, 3 using the Maurice Odumbe application for judicial review before the High Court of Kenya (hereinafter the Odumbe case) as an illustration. Odumbe was found guilty in an investigation authorized by the ICC and conducted by the Kenya Cricket Association (KCA) of having ' inappropriate conduct' with a bookmaker and banned from the game for five years (Ebrahim,

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