This article is written by Pratap Alexander Muthalaly, from Government Law College, Trivandrum. This article addresses the analysis of the draft of the national code for good governance in sport,2017.

Introduction

In the last decade, the sports scene in India has bore witness to considerable change and evolution. Most notably, there has been a massive increase in the number of professional sports leagues across the country. In light of this, industry stakeholders felt that it was necessary to revamp the existing National Sports Development Code of 2011 as it was not adequately equipped to regulate the newly formed professional leagues and the considerable revenue that they generated. As a result the ministry of youth affairs and sport, constituted a panel to draft a new code. However, when the draft of the code was finally put forward, it faced a backlash from the Indian Olympic association (IOA), the ministry and other groups. As a result, the code has remained in a state of limbo ever since.

Overview

The discourse on good governance in sport is not a new one. In fact, there have been numerous discussions related to this since 1975. With some of the most notable contentions revolving around age and tenure. While there were certain provisions in place even then, none of them was properly formalised. 

This changed with the coming of the 2010 Commonwealth games. The revelations of gross mismanagement and corruption on the part of the games organising committee was a huge shock to the system, it triggered a massive public outcry across the country. Furthermore, this increased the scrutiny on sports administrators and their role in Indian sports. This incident was essentially the catalyst for the formation of the 2011 code. 

The 2011 code was essentially a set of broad guidelines on governance, which covered elections and term limits among other things. The code has since been upheld as ‘binding in nature’ by a number of notable High court and Supreme court decisions.In spite of this, there have been a few compliance issues, on the part of a number of associations. As a result, the sports ministry has come under fire for failing to ensure that national federations complied with the norms and principles laid out in the 2011 code. 

In fact, lawyers and sports activists have taken the issue into their own hands, to hold the associations accountable for breaches to the code. The focal point of this campaign is Rahul Mehra, a reputed barrister and sports activist. With Mr. Mehra having successfully brought forth PILs against the Indian Olympic Association and also a number of notable sports federations.

Following this, the next major turning point in the realm of sports governance came in the form of the 2013 IPL match fixing and betting case. This time, the courts also played a key role with the Mudgal Committee set up almost immediately to look into the issue. This was followed by another enquiry in the form of the Lodha committee, with the explicit purpose of shoring up governance and management in the BCCI and making them comply with the regulations enshrined in the 2011 code.

All of this, compounded with the growing prominence of sports leagues in India, saw the first attempt to create a new and improved sports code in 2015. A committee was formed under Justice Mahajan with the intention of creating a new sports code which was more in tune with the present situation. However, the Mahajan draft never saw the light of day and was essentially never implemented. The Mahajan draft was however taken into consideration, when fresh attempts were made in 2016 to create what would eventually become the 2017 draft national code for good governance in sport.

Why is the 2017 draft in a state of limbo

Owing to the fact there is a lack of consensus between stakeholders on a variety of different issues, the draft has remained in a state of limbo for the last three years.

From the onset, certain stakeholders were unhappy with the fact that the bill was not drawn up directly by the sports ministry but rather by a committee. Also, in 2018 there were reports that the ministry was less than satisfied with the 2017 draft. However, what created the most of contention between various stakeholders were three specific provisions in the draft. These are:

Ban on politicians

A major sore point for a number of shareholders is the provision in the draft that bans politicians from serving as office bearers and board members in the national Olympic committees and also the national sports federations. This is no surprise given the numerous politicians who serve as board members in the different sports federations across the country.

The politicians that could stand to lose out and those in support of them, feel that this provision is unjustified and discriminatory. It is further argued that implementing this provision could prove to be quite detrimental to Indian sports. That is, for associations to obtain grants, funding and approval for various sports infrastructure development programmes they require a certain degree of political pull. Also, it is argued that having politicians in the mix, especially at the state level ensures that sport is taken seriously and not pushed to the fringes. This is especially important as most of the sports infrastructure in India is state-owned.

Alternatively, there are those who argue that the involvement of politicians halts the progress of sports, as there is always a risk of things getting political. Furthermore, experts have pointed out that the degree of political involvement in Indian sport is highly unusual especially for a democratic country.

Age limit

In accordance with the draft, anyone who reaches the age of 70 will for all purposes be ineligible

To take part in elections for board positions, this applies to both the Indian Olympic Association and also the various different National Sports Federations. It also stipulates that if an existing board member reaches the age of 70, he must immediately step down from his post.

Proponents of the age limit argue that this will increase youth participation and representation in sports governance. This would essentially lead to an influx of new ideas and greater diversity among stakeholders.

However, those who are against an age limit, point out that this will result in the wisdom and acumen of senior administrators going to waste. Furthermore, this could cause problems for boards where there are very few qualified and experienced stakeholders. Essentially, forcing out veteran administrators could risk leaving behind a huge void which cannot be filled that easily.

In reference to this provision, the IOA in a letter to the sports ministry suggested that it would be wiser to set the age cap at 75 years. According to the IOA, even though an age limit of 70 years was in line with the principles of the Olympic charter, 75 would be a better age limit considering the Indian situation.

Term limit and cooling off period

The 2017 draft states that an office-bearer or board member can hold a post for two consecutive terms of up to four years, after which the person will only be eligible to hold such post once more after a four-year cooling period. A couple of things can be understood from this provision. That is, while there is no maximum number of terms for board members, they have to observe a mandatory cooling-off period for the stipulated time period after serving two consecutive terms.

There is a uniform consensus among experts in the field that this provision is effective in stimulating good governance and plays a role in ensuring that no single individual or group centralizes or consolidates power disproportionately.

While the concept of a cooling-off period is relatively unique, it can be argued that it could be a novel tool in preventing power centralisation. Interestingly, the IOA accepted term limits for office bearers but was opposed to there being limitations like cooling-off periods for other board members.

What changes need to be made to the draft

It is undeniable that in its current form the draft lacks universal approval and hence will struggle to become an actual law. This then begs the question as to how it can be made more acceptable.

Consultative approach

First and foremost, we might want to consider a change in approach. It is not enough to simply list out a set of conditions and requirements that federations must comply with. One alternative would be a ‘consultative approach’ as stated by Shaun Star, a renowned sports law and governance expert. That is, rather than simply putting out directives for stakeholders to follow, it would be better if there was open discussion.  This however should by no means be reserved to our board rooms, instead, it should be out in the public sphere for all interested parties to hear. This could have the dual benefit of increasing public participation especially that of the youth in Indian sport. Furthermore, with the public having greater awareness on the issue, it would reduce the risk of politicians and bureaucrats cutting corners or misappropriating 

Taking notes from the Australian model

While undoubtedly one size doesn’t fit all, the framework that is being followed by sports Australia is worth considering. In Australia, sports governance is centred around monitoring and maintaining checks and balances along with the effective evaluation of organisational performance. Basically, Sports Australia aims to work with the various federations and stakeholders rather than simply dictate terms to them. They have a learning-based approach, where they aim to educate stakeholders on what good governance is and how they can bring about the same.

There are no hard and fast rules that associations and federations are expected to follow. Instead, there are nine principles which set a general standard for all the sports organisations to follow. The role that sports Australia plays is essentially that of a facilitator and guide. They monitor the progress various boards are making in reaching the expected standard and also help them progress further by providing them with various tools and assistance when and where required. In fact, the sports Australia website has a variety of resources to assist federations and boards. This includes providing a template board calendar and also a template constitution, from which board members and CEOs can draw inspiration. If and when the draft is reorganised, it might certainly be worth considering the practices and provisions in place in Australia.

Other than the aforementioned changes, it would be wise to consider making a change to certain provisions like:

• Removing the ban on politicians as it is simply not practical in India. Alternatively, a minimum limit for the number of politicians who are board members can be considered as well.
• Relaxing the age limit might also help build consensus. That is, it might be wise to consider the IOAs suggestion of increasing the age limit to 75. Also, in certain situations where there are not enough capable members, it would make sense for there to be exceptions.
• Also there is a need to review the checks and balances on national sport promotion organisations and also the money and funding given to sports NGOs.
• Furthermore, there is a need to review the role played by government nominees in sports federations as mentioned in the draft.
• Another point that needs to be considered is the provision dictating that no less than 25 percent of the board shall constitute eminent athletes of repute.  Many experts have expressed questions regarding the readiness of the country’s athletes to hold governance positions, with the failings of the Sushil Kumar led school game federation of India being cited as proof.

Conclusion

Irrespective of the clashing opinions on the draft bill, it is undeniable that it is a brave and progressive attempt to reform sports governance in India. The provision to formulate a gender ratio in the athlete’s commission is one example of this, another would be the novel concept of cooling-off periods. We must however take care to ensure that the bill is actually practical and acceptable to all the major stakeholders. We have to acknowledge that this is not an ideal world and that certain compromises might be necessary to push through what is overall positive legislation.

Also, effort must be taken to instil a consultative approach in not just the drafting an updated version of the 2017 draft but also all future bills. This need not necessarily be limited to the sports sector even, with states like Kerala having already implemented what is called a pre consultative legislative policy. Also, emulating the governance practices of Sports Australia could work in India’s favour. Our country is large and diverse, having an inflexible centralised set of provisions might not be in our best interests. It might be better to instead let the federations take the lead and let the sports ministry and other governing authorities simply act as facilitators and advisors to the various federations and sports organisations in our country.

References

• https://www.sportaus.gov.au/
• https://www.sportaus.gov.au/__data/assets/pdf_file/0006/912705/Sport-Governance-Framework.pdf
• https://www.lawinsport.com/topics/item/in-pursuit-of-good-governance-analysing-the-main-points-of-conflict-in-india-s-draft-sports-code
• https://yas.nic.in/sites/default/files/Draft%20National%20Code%20for%20Good%20Governance%20in%20Sports.pdf
• https://youtu.be/yu0V6QPafNQ

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