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India is a place that is known for umpteen games. While sports like cricket have been pursued like a religion, present occasions have achieved a dynamic and numerous different games are being pursued currently more than ever. As the type of amusement has developed significantly and India has turned into an overflowing scene for holding numerous national and international sporting events amid its time that rules and regulations are additionally set up. The UN has officially acknowledged sport as a method for advancing health, education and development. Therefore, there is a need to streamline the field of sports with reasonable law framework.
However, India has been seeing litigations on issues of broadcasting rights and arbitrary actions of Sports authorities. However, the Indian judiciary’s contribution towards developing sports jurisprudence has been very negligible. Adjudication in the field of Sports generally involves application of several laws. It has been seen that courts have refrained themselves from adjudicating upon issues involving sports. This situation can be ascribed to the incompetence of the Indian courts as sports issues include matters which require technical expertise in the field of games and the judicial officers in India or in some other country are not technically equipped for the same.
Nevertheless in the last decade, dispute resolution in matters relating to sports has certainly seen imperative advancements across the globe. The international sports bodies are commonly independent bodies, having their very own adjudicatory organs for settling sports related debate and always express their hesitance to submit to any Jurisdiction. For example, when sued in the American Courts for banning Butch Reynolds from international athletics, the governing body of the sport replied, “Courts create a lot of problems for our anti-doping work, but we say we don’t care in the least what they say. We have our rules, and they are supreme.”
Indian legislator too has not shown much interest in contributing to sports jurisprudence. Sports law in India, in contrast to USA, France, China or Canada is still underdeveloped despite the presence of numerous sports authorities.
Approach of the Indian Judiciary
This judgment of the Hon’ble Supreme Court in Zee Telefilms ( aforementioned) is referred as Magna Carta of Indian Sports Law. The issue in question in this case was BCCI’s arbitrary termination of broadcasting rights agreement. Zee Telefilms, being the aggrieved party, filed a writ petition in the Supreme Court under Article 32 of the Constitution. However, a writ under Article 32 can only be filled against authorities that come within the meaning of ‘State’ under Article 12 of the Constitution. The court in its majority judgment ruled that BCCI did not constitute State within the meaning of Article 12 of the Constitution. Although, in his minority opinion Justice Sinha opined that BCCI is State. Over the span of his judgment, he featured the significance of Sports in India with explicit reference to cricket. His minority opinion discussed that importance of the role played by the sports authorities in various jurisdictions, for example, United States of America, Australia, United Kingdom, Scotland and New Zealand. This is presumably the only ruling in India which has talked about the significance of games in such expound detail.
Aside from Zee Telefilms case, there are different decisions as well which have contributed to the jurisprudence of Sports Law in India. In 1991, the Supreme Court in the case of K. Murugan v. Fencing Association of India, Jabalpur discussed the importance of sports in India. The issue under consideration was regarding election of members to the executive council of the Indian Olympic Association. The Supreme Court while expressing its hesitance to adjudicate upon the issue commented:
“This does not appear to us to be a matter where individual rights in terms of the rules and regulations of the Society should engage our attention. Sports in modern times have been considered to be a matter of great importance to the community. International Sports has assumed greater importance and has been in the focus for over a few decades. In some of the recent Olympic games, the performance of small States has indeed been excellent and laudable while the performance of a great country like India with world’s second highest population has been miserable.”
Subsequent to the absence of enthusiasm of the State in Sports, the Sports experts in India remain generally ungoverned. There are different Sports bodies, for example, the Board of Cricket Control India for Cricket, the Indian Hockey Federation for Hockey, the All India Football Federation for Football, the Indian Basketball Association for Basketball, the All India Tennis Federation for the Tennis, and the Indian Olympic Association and the Sports Authority of India at the zenith. There is no focal sports authority other than the Ministry of Sports Affairs which externally administers these games bodies. Truth be told, there are instances where the financially sound sports authorities like BCCI have denied any intention to join the Ministry of Sports Affair. This shows that the Sports authorities integrate themselves with the Ministry for monetary advantages alone. In Zee Telefilms v Union of India, the Supreme Court touched upon this issue. It said that “the Sports bodies largely remain unaccountable to the state or any other central body inside the territory of India, which however should not be the case considering the importance of sports in the modern arena”
Are there no Enactments to Govern Sports?
In absence of a specific enactment for the entire country, the National Sports Development Code, 2011 governs the conduct of the National Sports Federations in India. Even though sports form a part of Entry 33 of the State List, Seventh Schedule of the Constitution of India, the validity of the above-mentioned code has been upheld by the Delhi High Court in Indian Olympic Association v. Union of India. 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.
Corruption – Betting and Match Fixing
The sports law majorly revolves around the corruption that takes place in an event of sport. betting, gambling and match fixing are among the other integral factors contributing particularly to this corruption. Every event of sports, big or small, has been and is continued to be subject to betting and match fixing. To this topic, betting is acceptable to some extent; however, when such betting leads to match fixing is when it becomes problematic. This has led to development of profit making industry that indirectly is regulating sports while defeating the main essence of having a sport.
Remedies to Sportsmen
In this part we will examine the remedies available to Sportsmen if he finds himself in dispute with the sports authority. Every Sports authority has its own dispute resolution mechanism to deal with disputes. When a dispute arises between the Sports authority and the sportsmen, the sports authority would of course be a party to the dispute as well as the adjudicator.
- The international body to which they owe their allegiance also has a great role to play in the outcome. Hence, it is never an ideal process of adjudication when the disputes are handled by the sports authority.
- An athlete lives in a world where one misplaced word or action often threatens the immediate end of his athletic career. An athlete is always placed in a vulnerable situation in relation to Sports authorities.
The second option left for an aggrieved sportsman is to approach the Judiciary, which in all probability will add to the agony of the sportsmen rather than providing any relief. There are various infirmities associated with the Indian judiciary.
- The delay in disposing cases. Given that the opportunities for Sportsmen in their career are scarce and short-lived, it is wiser for him to restrain himself from approaching the judiciary.
- The judges are not well equipped with intricate aspects relating to the particular sports.
- There are very few advocates with dedicated practice in Sports law, Khurana and Khurana being one of exceptional few. It is also to be noted that sports disputes tend to rest on complex issues of Law.
Further, it is also to be noted that all the Sports authorities in India which are affiliated with the Indian Olympic Association have a much complex and unreasonable mode of dispute resolution. It is to be noted that a precondition to affiliation with the Indian Olympic Association is that the respective National Sports Federation/ Association/ State Olympic Associations would have to surrender right of seeking redress in any Court of law. All the disputes involving these Sports authorities would be submitted to the Indian Olympic Association which would suggest a panel of arbitrators from the Indian Olympic Association who would resolve the disputes.
This practice goes against the fundamental principles of Natural Justice Nemo Judex in Causa Sua, as it fails to provide an Independent adjudicatory mechanism.
In case a Sportsman finds himself in dispute with the Indian Olympic Association or any Sports federation affiliated with the Indian Olympic Association, the adjudicators of the dispute would be his adversaries.
- The right to have resort to Civil Court is forfeited
- The adjudicator is the same as the disputant.
Such is the agony of Sportsmen who a member of I.O.A or of a Sports federation which is affiliated to I.O.A in India.
The third option for the Sportsmen is to have resort to private Arbitration or submit the dispute to Dispute resolution bodies like ICC, FICCI etc. These institutions have a panel of arbitrators from amongst whom the Arbitrator or mediator is appointed. Though it provides reasonable degree of flexibility regarding the choice of arbitrators, it is a rare possibility to choose an arbitrator reasonably well versed in the Sporting arena. A formal Sports Dispute Resolution body has its own advantage over any other form of Alternative Dispute resolution body like ICC or FICCI. This demonstrates the urgent need for establishing a standardized Sports Dispute Resolution Body.
Is Alternative Dispute Mechanism an Ideal method of Resolution of Sports Disputes
The success of Court of Arbitration Sports or other Central Dispute resolution mechanisms in Canada, Australia or Ireland stands testimony to the success of alternative dispute mechanism in resolution of Sports disputes. However, it is important at this juncture to identify the reasons why there is a sudden influx towards these bodies. The prime advantage is that these Dispute Resolution Bodies are specialized and standardized Sports Dispute Resolution Bodies. Owing to the dearth of sports related litigation in Indian Courts, we take clue from the cases in other jurisdictions.
- There are numerous deficiencies in litigation and hasn’t been a satisfactory mode or resolution of disputes whenever litigation has occurred. The general reluctance of Sports authorities to submit to the Jurisdiction of national Courts has been the major drawback. For example, in the case of the track star Butch Reynolds famously brought legal action that went on for four years and some fifteen stages of litigation and arbitration. At one point, after the International Amateur Athletic Federation (IAAF) had refused to appear in the proceedings, Reynolds won a $27 million default judgment.
This on the contrary would not be the case if the dispute was referred to Specialized Sports Dispute Resolution bodies, to which the Sports authorities have reverently submitted themselves.
- The resolution of dispute through litigation gets unnecessarily protracted and complicated. The popular Lindland’s case featured two competitors for a single weight-class position on the United States wresting team for the 2000 Olympics in Sydney. The loser of the match, Matt Lindland, complained that the winner, Keith Seracki, had used illegal holds. The dispute went through thirteen stages of arbitration and litigation in the federal Courts, including unsuccessful appeals to the United States Supreme Court, as well as the CAS. In the end, the plaintiff won both his case and the silver medal in the Olympics. A simple one or two-step arbitration process would have been preferable. Moreover, ADR process allows the parties to obtain timely hearing, low overall costs,confidentiality, flexibility and a decision made by an expert familiar with sports.Confidentiality is one of the major highlights of ADR process in sports. We live in a world where sportsmen are regarded morally very high in the society. Media glare could do irreparable damage to this facet of Sports. Apart from the success rate of the Sports dispute resolution, bodies specialized in alternative dispute resolution mechanism like CAS, these are few of the advantages of having resort to Alternative dispute resolution. In the light of the arguments advanced above, we suggest that Alternative Dispute Resolution on a comparative scale is an ideal mode of dispute resolution for sports disputes.
- A legal action brought at the eleventh hour of a Sports competition can disrupt the competition. It raises very important questions of respecting judiciary and continuing with the competition as well as connected questions about the eligibility of the player. In 1994 winter games, world-class skater Tony Harding was accused of physical assault on her United States competitor.The consequences of this timely litigation resulted in severe hardships to the United States Olympic Committee. Pursuant to this, the United States Congress amended Amateur Sports Act in 1998. According to the amendments, a Court may not generally impose any injunction against the United States Olympic Committee within 21 days of the beginning of a major Sports Competition. In contrast, none of the Indian Legislations or judicial pronouncements have imposed any such embargo limiting such timely litigations.
ADR process allows the parties to obtain timely hearing, low overall costs,confidentiality, flexibility. Further, arbitrators have expertise in the field. Apart from the success rate of the Sports dispute resolution, bodies specialized in alternative dispute resolution mechanism like Court of Arbitration of Sports, these are few of the advantages of having resort to Alternative dispute resolution.
For Sports and Sportsmen to flourish, Sport law needs to flourish in India; the intervention of the Legislature is must. India need to understand that sports is no more an insignificant array of sportsmen battling for top position but it also involves intricate legal issue and the entire career of the sportsmen is at stake. There is a distinct legal system emanating from this field and should be given adequate attention. Sports law should form part of the course curriculum for law students.
Sports Law is definitely a rewarding profession. Attempt should be made to ameliorate the sporting environment with the aid of law. Sport is not limited to recreation alone but is a matter of National pride. The emergence of Indian Premiere League and Indian Cricket League has started to raise very important issues regarding Competition Law in the recent times. This adequately demonstrates the need to improve Sports Law in India. Khurana and Khurana is actively involved in Sports Litigation as well as Sports Law arbitration.
Author: Mr. Shubham Borkar, Senior Associate – Litigation and Business Development and Parimal Kashyap – Intern, at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at firstname.lastname@example.org or at www.linkedin.com/in/shubhamborkar.
Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, AIR 1995 SC 1236
Zee Telefilms v. Union of India, (2005) 4 SCC 649.