Downside with Sport Legal guidelines in India – LexForti Authorized Information & Journal LexForti
Problem with Sport Laws in India written by Mohammad Shuja Uzair student of NMIMS Kirit P. Mehta School of Law, Mumbai
India is a country that is known for umpteen games around the globe. Sports like cricket have been followed like a religion and many different games are being currently followed more than ever. Over a period of years, India has turned itself into a hosting ground for numerous national and international sporting events.
Sport in India is listed as a State subject under the Constitution of India under the Seventh Schedule (33rd entry). There is neither a national nor state legislation for the regulation of sports in India. The Government of India set up The Ministry of Youth Affairs and Sports to create the infrastructure and promote sports for the achievement of excellence in various national and international competitive sporting events. Even though sports promotion is the responsibility of various autonomous National Sports Federations, the Ministry of Sports and Youth Affairs issues guidelines and notifications from time to time for the regulation of various NSFs.
Sports law usually has a developed pattern of global regulations and substantially overlaps with labor law, criminal law, contract law, administrative law, competition law, antitrust law, intellectual property rights law, etc. All these laws have been applied in the sporting context involving safety, conduct, disciplinary measures, drugs, and wider issues relating to match-fixing, anti-competitive behavior, and commercial exploitation of sports. However, over a period of the past few decades, the sporting world has been plagued by controversies and scandals. With the commercialization of sporting events problems relating to licensing, media rights, sponsorship, and ethical sporting practices are cropping up all over the world and India is no exception.
This research paper deals with the issues relating to Sports Law in India like public communication and transparency, doping, gender discrimination, and arbitration in sport disputes and highlights a range of other issues and how the Indian Sports Federations and the judiciary have been dealing with the same.
PUBLIC COMMUNICATION AND TRANSPARENCY
The sport administration especially at the amateur or lower-level relies heavily on the public exchequer’s finances. Sports administrations are required to implement procedures that ensure transparency, non-arbitrariness, and a proper flow of information. Therefore, it is expected that the sports federations stick to stringent disclosure requirements and adequate communication of activities to the public. Transparency and accountability are considered to be the first line of defense against malpractices.
The sports federations are answerable to the general public because it is deemed to be performing an important public function. The public function includes the selection of players for different national teams and the efficient management system ensures the competitive representation of the country at international sporting events.
In the case, Board of Control for Cricket in India Anr. v. Netaji Cricket Club and Ors, the role and nature of functions discharged by the BCCI were looked into. The Supreme Court observed that the BCCI is a society registered under Tamil Nadu Societies Registration Act and it enjoys a monopoly concerning rules and regulations. It enjoyed the benefits of tax exemptions, the right to use the stadium at a nominal rent earns huge revenue by selling tickets and broadcasting rights. Apart from being a member of the International Cricket Council (ICC), it represented India at international events and has authority over the selection of players, officials and umpires too. It was then held “that the Board &’s control over the sport of cricket was deep and pervasive and that it exercised enormous public functions, which made it obligatory for the Board to follow the doctrine of ‘fairness and good faith’.”
In the case of Ajay Jadeja v. UOI and Ors. , it was held that the board is clearly performing a public function, including supporting its member state associations. Along with this, the BCCI would be compliant to writ jurisdiction of the courts of India. Since BCCI is conducting the selection process for the national team and conducting national and international tournaments, it makes BCCI with the responsibility of performing a public function.
From time immemorial, gender discrimination in sports has been a broiling topic across nations and cultures. Women in India are still considered as the ‘weaker sex’ which is why sports in India continue to be dominated by males.
The ascertainment of eligibility for women athletes to participate in the female category has always been a source of controversy. The anti-doping case of Dutee Chand, an athlete, is the best example of gender verification controversy.
Dutee was disqualified from competing in Glasgow Commonwealth Games 2014 as a female athlete for showing certain traits of hyperandrogenism. In a landmark ruling on 25th July 2015, the Court of Arbitration for Sports (CAS) overruled the ban on hyperandrogenism rule and gave IAAF, a time of two years to produce scientific evidence in support of such a rule.
In another case of Pinki Praminik, a 4×100 meter relay Indian athlete was accused of being a man cloaked as a woman. Subsequently, she was arrested by the police under rape charges. The charges were eventually dropped after the medical tests were conducted to prove her gender.
The role played by sports authorities has been very negligible. Sports Authority of India has set out its aims and objectives. Out of all the objectives, one of them is the prevention of sexual harassment of women in sports. Until now there have been only two reported cases where the coaches were arrested on charges of sexual assault and molestation. Even though there is a provision for harassment in sports in The Sports Law & Welfare Association of India (SLAWIN), but it has never reported any incident. The National Sports Policy does not provide any data on the number of complaints that have been filed.
In the sporting world, doping has been one of the most serious issues. Doping could be defined as the use of a banned or prohibited substance to maintain or enhance sporting performance. Many efforts have been made to minimize, prohibit, and to restrict the use of such performance enhancement drugs in sports by the World Anti-Doping Agency (WADA). WADA coordinates with Regional Anti-Doping Organizations (RADOs) to conduct tests and to spread awareness among people regarding its effects. It is the responsibility of all the stakeholders to conduct education programs.
National Anti-Doping Agency (NADA) is India’s national organization which is responsible for coordinating, monitoring, and promoting doping control programs in sports in India. Like other countries, NADA has developed extensive programs like Programme for Education and Awareness on Anti-Doping in Sports (PEADS) to control doping in India but the enforcement has not been as per the expectations.
To understand reality more clearly at the grass-root level, a study was conducted on a sample of 75 international and national sportsperson residing in Gujarat. The questions were based on the general awareness about anti-doping regulations, their understanding of Anti-Doping Rule Violation (ADRV) and Therapeutic Use Exemptions (TUE) rules, etc. Apart from this, opinions were also taken from coaches, sports authorities, and professors from various sports universities.
The study revealed that 85% of the respondents did not receive any training on anti-doping regulations. Though a great number of respondents were aware of tests conducted by the WADA, they were unaware of the regulations. Out of the total respondents, 33% received more than 2 trainings, 33% received 2 trainings and 44% received only training. 20% of the sportspersons were aware of the WADA 2015 revised code, whereas 80% were unaware of it. 33% of the respondents were aware of TUE, whereas 67% were not aware of it. The same questions were raised in the Lok Sabha and it was revealed that the number of training programs was increased.
However, the programs conducted were even less than the target set by PEADS itself. At the same time, the number of cases has increased from 95 in 2014 to 120 in 2015. When it comes to the cases per sample collected ratio, India’s performance has been really poor.
Another issue with NADA’s training method is that it uses a very conventional teaching method and the language used in English, which may not be understood by everyone. Efforts should be made and vernacular languages should be given more importance for a better understanding by sportspersons.
ARBITRATION IN SPORTS DISPUTES
The need for alternate dispute resolution came out of dismay from the state-based methods of dispute resolution, i.e. the courts. The arbitration law (Arbitration and Conciliation Act, 1996) was updated in the year 1996 so that it could be in sync with the prevailing international standards. The updated act allowed for a wide range of disputes arbitrated. However, all the disputes are not arbitrable. In the case, Booz Allen v. SBI Home Finance, the Supreme Court of India gave the principle of arbitrability and said that disputes of certain nature could not be referred to arbitration. The arbitration of sports disputes in India is regulated by the Memorandum and Rules and Regulations of the Indian Olympic Association, rules of the sporting federation, the 1996 Act, and the rules of the arbitration commission (RAC).
Arbitration is a private dispute resolution mechanism that is dependent on the consent of all the parties involved. By giving consent to the arbitration agreement, parties voluntarily cease their right to have disputes adjudicated through a court-based system. In India, the consent for arbitration can be found in the Memorandum and Rules and Regulations of the Indian Olympic Association which requires all state Olympic associations, union territory Olympic associations, NDFs, to include a provision of all disputes are to be resolved through arbitration. The arbitration would be conducted by the Arbitration Commission (AC) established by IOA.
The requirement of all the members of the federation and association surrendering their right to seek redress in the court of law voluntarily is very unambiguous. Under the 1996 Act, any judicial authority faced with a valid arbitration agreement is mandated to refer the matter to arbitration. Whereas, under the Indian Contract Act, restraining a party from enforcing its rights by way of legal proceedings by way of a tribunal is considered void.
An important question from the arbitration standpoint is whether the requirement of clear and unambiguous consent fulfills the provisions. Any federation affiliated with IOA has to submit to mandatory arbitration. The rules are to be accepted in their entirety. Several scholars have argued that the consent obtained for arbitration by barring an athlete from participating in an event unless they consent would at least under the Indian Contract Act, 1872, annuls the arbitration agreement so entered.
Under a state-based court system, varying remedies such as revision, review, and appeal are available. Whereas, under arbitration, it is not the same. The Arbitration Commission is considered to be the highest internal authority for internal sports-related disputes in India. Any decision by the Arbitration Commission can only be appealed before the Court of Arbitration for Sports (CAS) within 21 days of the decision by AC. Being a tiered system, it becomes important to question, considering that the winning party may enforce the award, while the losing party may proceed to CAS. Now, if after an appeal the latter party wins, then the award rendered would be a foreign award from Switzerland, wherein the same dispute would have rendered both a domestic and a foreign award.
In a very similar situation, a case came to the Supreme Court of India which took almost 11 years to resolve. The case was M/s Centrotrade Minerals v. Hindustan Copper Limited. Under this, the parties had entered into an agreement for the procurement of copper from the Khetri Plant of HCL. The dispute was regarding the dry weight of the concentrated copper and the Centrotrade invoked the arbitration clause. The Indian Council of Arbitration (ICA) made a nil award and therefore Centrotrade initiated proceedings before the International Chamber of Commerce. The second proceeding went in favor of Centrotrade. Attempts were made by Centrotrade to enforce the second arbitral award. The court observed that though successive arbitrations were permitted, successive awards are mutually destructive.
The question of whether two-tier arbitration was valid under the 1996 Act went up to a division bench. The division bench could not make up its mind on the issue. In one view it was argued that by entering into a two-tier mechanism, the parties would have negated and contracted out of the mandated requirement of the statute. And it would not be permissible under law and such an action would be contrary to the public.
The difference in opinion led it to a larger bench and two questions were raised-
a) Whether two-tier arbitration is permissible under laws of India, and
b) Whether the award given in the appellate arbitration being a foreign award could be enforced under Section 48 of the 1996 Act.
The court only addressed the first issue and said that under a plain reading the contract was unambiguous as the parties had agreed to a two-opportunity system. But also pointed out that neither the Act of 1996 nor the Model Law on which it was based prohibited a two-tier system of arbitration.
The abovementioned setup is similar to the IOA rules, where at first, the arbitration is conducted by the AC and upon disapproval, a second appeal could be made before CAS. Even though the tier arbitration is under the Act, it still does not resolve the question of whether the award would be enforced as a foreign award in India or not.
Sports in India has grown from being just an activity for leisure to an activity that is treated as an industry. And just like all industries, there are issues that keep cropping up every now and then. Leaving it to the whims and fancies of sports governing bodies leads to the potential of rampant violation and exploitation of the rights of sports-persons. Sport’s governing bodies cannot be let off on the ground that they are autonomous as they have the ability to act arbitrarily. Sports in India entails lots of legal issues, yet our laws related to sports are not clear and transparent.
There are two other draft Central bills i.e. the National Sports Development Bill, 2013 and the Prevention of Sporting Fraud Bill, 2013, which if promulgated would give further credence to the existence of sports law in India. With multiple scandals in the sporting industry in India, the enactment of these two bills is the need of the hour.
The new bill is expected to be stringent in terms of tenure, age, cooling-off period, promoting ethical practices in the arena of sports, preventing sexual harassment of women athletes, preventing doping practices, etc.