HELLO! SPORTS
The history of sports extends as far back as the existence of people as purposive, sportive and active beings. It also shows how society has changed its beliefs and therefore how changes in the rules are brought. The history of sports in India dates back to the Vedic era. Chess, wrestling, polo, archery and hockey are some of the games believed to have originated in India. But somewhere between the historical lineage of sports and sports in the modern era there is a gap of enthusiasm and encouragement. Little importance is left for sports at grass root level in India with every school concentrating only on academics. Though there are various federations in India that provide sports facilities but apart from cricket, India is largely failing in every major event for sports such as Olympics. One of the main reasons for it is the lack of uniform regulation in India for sports. There is a need for a legislation that governs sports and brings the various authorities into one roof. Sports law has an unusually well developed pattern of globalized regulation and overlaps substantially with labor law, contract law, criminal law, public law, administrative law, antitrust law, competition law, intellectual property rights law, law of tort, media law, company law, human rights law etc. These laws have been applied to sporting context involving public order, drugs, safety, disciplinary measures, conduct and wider issues relating to restraint of trade, anti competitive behaviour, match fixing and the commercial exploitation of sports. Issues like defamation and privacy rights are also an integral aspect of sports law. In India sports figures in the State list of the Seventh Schedule (entry 33) of the Constitution.
ORGANIZATION OF SPORTS IN INDIA
In the field of sports, the club is the basic unit at the grass root level. At the top of the hierarchy are the international sports bodies for each sports made up of national bodies of different countries. The national sports bodies again consist of the provincial or state bodies of different countries. The provincial state bodies comprise the different districts or clubs. In India, national sports bodies field the national team representing the country for participation in international competitions where good performance is a matter of pride for the entire nation. They consider the players for participation Accordingly in the most countries including India, for enforcement of their public duties and obligations prerogative Constitutional Writs of High Courts lie against these private bodies like any public or Government Authority. (Indian Olympic Association Vs Veeresh Malik and Ors MANU/DE/0108/2010)
There is no national or state legislation for regulation of sports in India. The Ministry of Youth Affairs & Sports was set up by the Govt. of India to create the infrastructure and promote capacity building for broad-basing sports as well as for achieving excellence in various competitive events at the national and international levels. Sports promotion is primarily the responsibility of the various National Sports Federations (NSFs) which are autonomous in nature. The Ministry of Sports and Youth Affairs issues notifications and guidelines from time to time for the purpose of regulation of NSFs.
The Sports Law in India is governed and regulated by
• National Sports Policy
• Sports Law and Welfare Association of India
• Sports Authority of India
• The Sports Broadcasting Law in India.
NATIONAL SPORTS POLICY, 1984/2001
A Resolution on the National Sports Policy was laid in both Houses of Parliament in August, 1984. The National Sports Policy, 1984 was formulated with the objective of raising the standard of Sports in the country. The National Sports Policy, 1984 provided inter-alia that the progress made in its implementation would be reviewed every five years to determine the further course of action, as may be necessary, following such review. Over the years, it has transpired that even as the National Sports Policy, 1984 encompasses various facets in respect of encouraging sports in the country, the implementation of the same is not complete. In order to reformulate the National Sports Policy 1984, National Sports Policy 2001, was drafted
The objective of the guidelines of National Sports Policy 2001 is three fold:
• Firstly to define the areas of responsibility of the various agencies involved in the promotion and development of sports,
• Secondly, to identify National Sports Federations eligible for coverage under these guidelines, to set priorities, and to detail the procedures to be followed by the Federations, to avail of Government sponsorship and assistance.
• Thirdly, to state the conditions for eligibility which the Government will insist upon while releasing grants to Sports Federations.
In accordance with the provisions of the National Sports Policy, 2001, the Central Government pursues the objectives of “Broad-basing” of Sports and “Achieving Excellence in Sports at the National and International levels” in a combined effort with the State Government, the Olympic Association and the National Sports Federation. The Government of India and the Sports Authority of India, in association with the Indian Olympic Association and the National Sports Federations, are expected to focus specific attention on the objective of achieving excellence at the National and International levels. The National Sports Policy aims to pursue inclusion of “Sports” in the Concurrent List of the Constitution of India and introduction of appropriate legislation for guiding all matters involving national and inter-state jurisdiction.
SPORTS LAW AND WELFARE ASSOCIATION OF INDIA
The Sports Law and Welfare Association of India is a national non-profit and professional organization which work with the common goal of understanding, advancement, and ethical practice of Sports Law in India for the promotion of Sports, by bringing Legal Practitioners and Sports persons together. The Association provides consultancy on various matters including regulation of sports governing bodies, general sport and law issues, intellectual property issues in sport, online advocating in legal disputes of sports in court on behalf of sports persons and sports bodies, etc. The Sports Law and Welfare Association of India aims to further the discussion of legal problems affecting sports and to promote the exchange of a variety of perspectives and positions of sports law and provide a forum for lawyers representing athletes, teams, leagues, conferences, civic recreational programs, educational institutions and other organizations involved in professional, collegiate, Olympic, physical education and amateur sports.
SPORTS AUTHORITY OF INDIA
The Sports Authority of India was established to fulfil the need of an apex body to coordinate various sports activities in India. The success of the IXth Asian Games at Delhi has raised sports consciousness and enthusiasm in India which in turn, motivated the Government of India to focus on sports development to encourage physical fitness among youth and to direct their energy towards excellence. The Sports Authority of India has gradually, extended its operations to promote broad base sports. The other thrust areas of SAI include provision of strengthening of inputs for excellence and various supportive programmes, such as Academic Programmes, Coaching and Physical Education Awareness Programmes and Scholarship Schemes as incentives to sportspersons. The Sports Authority of India operates various Schemes at sub-junior, junior and senior level and endeavours to broad base sports and develop excellence by upgrading the skills of Indian sports persons.
THE SPORTS BROADCASTING LAW IN INDIA
The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act was passed in 2007 with an objective to provide access to the largest number of listeners and viewers, on a free to air basis, of sporting events of national importance through mandatory sharing of sports broadcasting signals with Prasar Bharati and for matters connected therewith or incidental thereto. The Act provides that any content right owner or holder television or radio broadcasting service provider shall not carry a live television broadcast on any cable or Direct-to-Home network or radio commentary broadcast in India of sporting events of national importance, unless it simultaneously shares the live broadcasting signal, without its advertisements, with the Prasar Bharati to enable them to re-transmit the same on its terrestrial networks and Direct-to-Home networks in such manner and on such terms and conditions as may be specified.
SPORTS AND COMPETITION LAW
Two teams playing against each other are like two corporate firms producing a single product. The product is the game, weighted by the revenues derived from its play. In one sense, the teams compete; in another, they combine in a single firm in which the success of each branch requires efficiency. Unequally distributed playing talent can produce “competitive imbalance”. Remuneration of the team members largely depends on the level of competition between the teams in the particular sports. sport is generally organized in a kind of a ‘pyramid’ structure, with a single governing body controlling most regulatory and commercial aspects of each sport, the governing body appears to be de facto ‘dominant’ and therefore claims relating to the abuse of monopoly.
Sports governing bodies such as BCCI, often attempt to preserve for themselves the sole ability to regulate the sport and to organize events. In order to prevent the development of rival organizations, they have sought to tie players in by prohibiting them from competing in other events, on pain of exclusion from ‘official’ events, and such rules have been the subject of challenge under competition law.
When the Zee launched Indian Cricket League, the BCCI sacked Kapil Dev as chairman of the National Cricket Academy for aligning with ICL and barred all the 44 defecting players from playing for India or at the domestic level. It made clear that any cricketer who aligns with ICL will be banned for life from playing for India. Such practice on part of the BCCI may attract liability under the provisions of the Competition Act, 2002. As per Section 4(2)(c) of the Act if any enterprise “indulges in practice or practices resulting in denial of market access in any manner”, then it shall be liable for abuse of dominant position. Thus, such practice of banning players from domestic tournaments on account of joining the rival leagues may prove expensive for the BCCI, which may face a challenge on grounds of abuse of dominant position.
The denial of stadiums by the BCCI can attract liability for abuse of dominant position under s.4(2)(c) of the Competition Act, 2002 as by denying the use of essential facility under its control it raises the barriers to entry in the market for its competitors, resulting effectively in denial of market access. Operating from just one stadium in Panchkula (in Haryana near Chandigarh), the ICL clearly missed out on one of the integral aspects of leagues sports i.e. a fan base, since it is unable to capture home crowds for matches on account of non-access to the stadiums in the club’s cities.
SPORTS LAW AND ARBITRATION
Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides. Other forms of ADR include mediation (a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. Arbitration in India is governed by the Arbitration and Conciliation Act 1996 (“Indian Arbitration Act”), which is based on the UNCITRAL Model Law. The Indian Arbitration Act is broadly divided into two parts. Part I applies to arbitrations held in India, whether domestic or international, and Part II applies to arbitrations held outside India. Part II, incorporates the rules related to international arbitrations governed by the New York or Geneva Conventions. In sports, the disputes are first referred to the federations that govern a particular sport and subsequently the international authorities that govern the sport. e.g. in hockey disputes are referred to the Indian Hockey Federation and after that the International Hockey Federation.
At a time when sports are becoming more professional and the stakes are becoming higher than ever, dispute resolution takes on an increasingly important role. In many respects arbitration offers the most suitable solutions with regards to the rapidity, diversity, incontestability and professionalism of the decisions rendered. With regular increase in the number of sports-related disputes in the country, India requires an independent authority that specializes in sports-related problems and that is authorised to pronounce binding decisions. The disputes when referred to courts take a long time to come up with the final decision since the Indian courts are already piled up with a number of pending cases. There is a need to have an authority for sports that offers flexible, quick and inexpensive method of resolution of disputes. With the inauguration of India’s first arbitration centre in Delhi in 2009, India is recognizing the necessity of arbitration for quicker disposal of cases. The increasing use of arbitration in sport over the last decade has challenged the legal framework in which arbitration disputes are addressed in many jurisdictions.
Court of Arbitration for Sport
Arbitration exists in international sport through the Court of Arbitration for Sport. All international disputes relating to sports are referred to it. The most prominent sports dispute resolution forum is the Court of Arbitration for Sport (CAS) which has its headquarters in Lausanne, Switzerland. The CAS was created by the International Olympic Committee (IOC) in 1983. It also has two permanent outposts in Sydney, Australia and New York, USA. It has a minimum of 150 arbitrators from 37 countries, who are specialists in arbitrations and sports law. They are appointed by the International Council of Arbitration for Sports (ICAS) for a four year renewable term and need to sign a ‘letter of independence’. The CAS also has a permanent President who is also the President of ICAS.
The body was originally conceived by International Olympic Committee (IOC) President Juan Antonio Samaranch to deal with disputes arising during the Olympics. It was established as part of the IOC in 1984. However in a case decided by the CAS, an appealed was made to the Federal Supreme Court of Switzerland, challenging CAS impartiality. The Swiss court ruled that the CAS was a true court of arbitration, but drew attention to the numerous links which existed between the CAS and the IOC. The biggest change resulting from this reform was the creation of an “International Council of Arbitration for Sport” (ICAS) to look after the running and financing of the CAS, thereby taking the place of the IOC. CAS is placed under the administrative and financial authority of the International Council of Arbitration for Sport (ICAS).
Almost all international sports federations or associations which are part of the Olympic Games require sports disputes arising between themselves and sportspersons to be decided by the CAS. Sporting federations whose sports are not part of the Olympics such as Formula I where the FIA which is the governing body of motor sports has its own dispute settlement tribunal. Even some sports which are included in the Olympics have their tribunals like football where its governing body FIFA has its own tribunal. For example, in 1993, a claim of bringing Formula I into disrepute was brought against former FI champion Alain Prost and the Williams Renault Team. The matter was however, satisfactorily resolved by the FIA resulting in Prost escaping a possible ban from competing in the remaining FI races of that particular season.
A dispute may be submitted to the CAS only if there is an arbitration agreement between the parties which specifies recourse to the CAS. The language for the CAS is either French or English. In principle, two types of dispute may be submitted to the CAS:
1. those of a commercial nature, and
2. those of a disciplinary nature.
Commercial:
The first category essentially involves disputes relating to the execution of contracts, such as those relating to sponsorship, the sale of television rights, the staging of sports events, player transfers and relations between players or coaches and clubs and/or agents (employment contracts and agency contracts). Disputes relating to civil liability issues also come under this category (e.g. an accident to an athlete during a sports competition). These so-called commercial disputes are handled by the CAS acting as a court of sole instance.
Disciplinary:
Disciplinary cases represent the second group of disputes submitted to the CAS, of which a large number are doping-related. In addition to doping cases, the CAS is called upon to rule on various disciplinary cases (violence on the field of play, abuse of a referee). Such disciplinary cases are generally dealt with in the first instance by the competent sports authorities, and subsequently become the subject of an appeal to the CAS, which then acts as a court of last instance.
The CAS is governed by its own Statutes and Rules of Procedure namely the Statutes of the Bodies Working for the Settlement of Sports Related Disputes, Code of Sports Related Arbitration and Mediation Rules. According to Articles S12, S20, R27 and R47 of the Code, the Appeals Arbitration Procedure is open for the appeal against every decision rendered by a federation or club and not limited to disciplinary matters, especially doping cases. In addition, Article R57 empowers the CAS Panels not only to annul a certain decision, but also to replace a decision by a decision by a decision of the arbitrators, or to refer the case back to the issuing body. Moreover, Article R58 authorises the Panel to apply the ‘rule of law’ it deems most appropriate for the case. Thus the Panels may deviate from the laws of the country in which the federation is domiciled and reach a decision on the basis of laws of another country or other rules of law, such as general principles of law.
The CAS acquires its jurisdiction in a particular case only through the mutual consent of the parties involved. Currently, all Olympic International Federations and many National Olympic Committees have recognised the jurisdiction of the CAS and included in their statutes an arbitration clause referring disputes to it. The CAS hears approximately 200 cases per year. While it was the international response to the rise in the use of performance-enhancing drugs and the resulting doping cases that fueled the creation of the CAS, the Court is called upon to assist in a wide range of sport conflicts, including sponsorship disputes, the eligibility of a particular athlete in accordance with a sport’s constitution, as well as the resolution of disagreements concerning competition results. The determination of issues arising in doping cases remains a significant portion of the CAS caseload.
CAS and Mediation
In addition to arbitration CAS also offers mediation services to any requesting parties of a sports dispute. Unlike arbitration, the mediation process is not binding—the mediator will provide recommendations, with solutions suggested, but these are not imposed as a result as in the case of arbitration. Mediations are designed to permit the adverse parties an opportunity to air their grievances in an atmosphere aimed at conciliation of the dispute.
Advantages for referring cases to CAS
- Expertise in sports-related disciplines (there are more than 300 arbitrators from 87 countries qualified to hear CAS disputes) whereas a typical civil judge will not likely possess such sports-specific knowledge.
- Its arbitrators are all high level jurists and it is generally held in high regard in the international sports community.
- Procedure is flexible and informal.
- Expeditious proceeding as cases are heard and determined within a few months from the date of reference. During the Olympics, awards are required to be made within 24 hours.
- Lower legal cost to the participants
- Also provides mediation services
- CAS is a private procedure and therefore is conducted without the public or media interference. The arbitrators and CAS staff are obligated not to disclose any information connected with the dispute.
Important CAS rulings
- In 2003, Canadian cross country skier Becky Scott successfully appealed to the CAS with respect to her claim that she be awarded the 2002 Olympic gold medal in the 5-km pursuit event. Russian skiers Olga Danilova and Larissa Lazutina finished first and second respectively in the competition, with Scott in third place, and each athlete passed their post-event doping test. Danilova and Lazutina each failed a subsequent doping test administered in relation to another Olympic cross-country event, when the presence of a prohibited blood doping agent, darbepoetin, was detected in each skier’s sample. Scott appealed her 5-km race result on the basis that both Russian skiers were engaged in ongoing doping practices. The Scott ruling was the first time in Olympic history that a gold medal had been awarded to an athlete as a result of a CAS ruling.
- In 2005, the CAS arbitration panel ruled that American sprinter Tim Montgomery be banned from international competition for two years as a result of doping, in spite of the fact that Montgomery had never failed a doping test. The CAS ruled that it could find a doping violation on the basis of the third party evidence called against Montgomery, most of which connected Montgomery to the Bay Area Laboratory Cooperative (BALCO) athlete steroid scandal that had arisen in the United States in 2003.
- In February 2010 Five-time Olympic speedskating champion Claudia Pechstein lost her appeal against a two-year ban for blood doping. CAS dismissed the German’s appeal against a ban imposed by the International Skating Union.
Setting aside proceedings against CAS arbitral awards may only be filed with the Swiss Supreme Court due to the seat of CAS tribunals being in Lausanne.
PROPOSAL AND CONCLUSION
The Indian Sports industry has progressed by leaps and bounds. Sports have assumed a corporate form with the number of commercial interests involved. With increasing market maturity and the need for clear and comprehensive legal documentation, sport issues are slowly becoming a major focus as contracts must be able to clarify parties’ expectations and commitments, must protect the athlete’s and the brand’s big-picture interests and must factor in regulatory, legal and other risks inherent in the industry. The country has reached a stage where India needs a legislation that deals with sports law. India’s failure in all the international sports events is an indication of poor infrastructure and corruption which exists within the federations. In order to meet the increasing demands of the changing scenario, national as well as international, it is important that a uniform code for sports be promoted.
International Journal of Research (IJR) 