This article is by Shivani Panda, from Amity Law School, Delhi. Here she discusses India’s sports law and dispute resolution mechanism provided to the sportspersons.
Table of Contents
Introduction
The profession of sports is a short-lived one since the retirement age of a sportsperson is earlier than that of other professionals. Thus, it is extremely important that a sportsperson completely utilise those years of peak health. However, sometimes a sports person’s professional life is disrupted due to a legal dispute stretching over years. This gives rise to the importance of solving legal disputes speedily but still giving a fair chance of hearing from all the parties, and that’s how Alternative Dispute Resolution in sports came into being. In this article, the author discusses the current stand of India in this field of legal jurisprudence.
Court of Arbitration for Sport (CAS)
Alternative Dispute Resolution (ADR) refers to settling disputes between the parties outside of the courtroom, through methods other than litigation, such as negotiation, mediation, conciliation, or arbitration. In arbitration, the parties generally reach into an agreement, that if any dispute arises between them, it shall be settled in the arbitration tribunal, whose decision shall be binding upon them. The jurisdiction of the same is also discussed in the same agreement. Thus, a special court called Court of Arbitration for Sports (CAS) was established in the year 1984, in Lausanne, Switzerland, to deal with all sports-related issues in the international arena through arbitration or mediation.
The International Olympic Committee (IOC) is responsible to appoint the members at CAS and amend the statutes governing CAS. Subsequently, this led to the establishment of the International Council of Arbitration for Sports (ICAS), supreme to that of CAS, and it acts as a financial and administrative authority. It has the duty to protect the independence of CAS, by creating a transparent mechanism for it to operate with. There are around 300 arbitrators from 87 countries in CAS and its official languages are English and French. The decision of CAS is final and binding upon the parties if they fall under its jurisdiction.
Types of disputes
The Code of Court of Arbitration for sports enumerates that the CAS has jurisdiction to rule on disputes connected with sports, directly or indirectly, as long as the parties have a valid arbitration agreement. In the landmark case of Raquz v. Sullivan, wherein, CAS arbitral award was challenged in the Australian court, as the parties involved were two Australian sportsmen, the court held that it does not have any jurisdiction over the agreement as it is a ‘foreign’ arbitral agreement and that it only has jurisdiction over the ‘domestic’ arbitral agreement, and vice versa. Moreover, any sportsperson or organisation associated with sports-related activities, such as BCCI in India, can approach this court. The disputes can be broadly divided into two categories:
Commercial disputes
This category involves disputes regarding the execution of a contract, such as broadcasting and media rights, licensing and merchandising for sports events, agency relationships of a commercial nature between players, coaches, agents and clubs. Disputes of civil liability issues, such as accidents of athletes in a competition. Swiss law generally governs over such disputes, unless the parties in the agreement specified otherwise.
Disciplinary disputes
The second group of disputes primarily deal with matters such as doping, racism, violence in the field and ethical disputes. In these cases, generally, the sports authorities governing that particular sport or event take disciplinary actions against the player and CAS works as an appellate court over the organisations. However, the case is admitted only when there is a foreign arbitral agreement and that the player has exhausted all the domestic remedies available to him in his country. Under the Code of Sports-Related Arbitration and Mediation Rules, the appeal arbitration procedure is open for appeal against any federation or club and not just limited to disciplinary matters.
Working of CAS
The CAS is governed by its statutes and rules as amended and introduced by the IOC. Under those statutes, the arbitration procedure, appeal proceedings and matters related to CAS awards are laid down, which are elucidated below:
Ordinary arbitration procedure
The arbitral procedure begins when a “request for arbitration” application is written to the CAS, briefly explaining the facts and issues of the case, presenting proof of the arbitral agreement and any other relevant information. Hearings are not mandatory, thus the proceedings generally take place through written statements filed by both the parties with which they present evidence. If the prosecutor fails to file written statements, the arbitration is deemed to be withdrawn, whereas if the respondent fails to do the same, an arbitral award can be issued by the tribunal. Moreover, if hearings do take place, it shall be on camera unless agreed otherwise.
Appeal procedure
The proceedings are similar to that of an ordinary arbitration procedure, wherein, the appellant files a “statement of appeal” which should contain a copy of the decision of the lower court, a request for relief, an application for stay of execution, among other relevant documents. Further, the procedure is the same as the ordinary arbitration procedure. The appellate court may issue a new award and reverse the one given by the lower court or annul the decision and refer the case back to the previous instance panel.
Lastly, arbitral awards are final and binding upon the parties, unless the award is set aside and has the same enforceability as national court judgements.
Why is sports arbitration important
Speedy resolution of disputes
Speedy resolution of dispute is one of the key features of any arbitration proceedings. It is the reason why arbitration is opted over litigation in sports-related matters. The CAS provides a simplified and flexible procedure, which makes it easier for the parties as well as the arbitrators and judges to comply with the procedure. Further, the tribunal delivers time-bound awards, that is, it delivers the judgement within a few months from the date of reference. Since the sports-related matters are of extreme importance, during the Olympics or Commonwealth Games, it is mandatory to give arbitral awards within 24 hours of applying to the tribunal. An Ad-hoc division is set up during the sports events for the very same reason.
Special expertise
The arbitrators working in the CAS are experts in sports-related disciplines, which an ordinary civil judge might not possess. Further, once they are employed in the tribunal, they are not allowed to work on any other matter which is not related to sports. This kind of expertise is important, since the parties are not allowed to bring their arbitrators and have to be provided by one by the court as this will lead to a speedy and fair resolution.
Consistent and transparent
International Council of Arbitration for Sports, which is an authority governing the CAS, is responsible to keep the arbitration and mediation procedure as transparent as possible, as this will help to achieve a fair trial of all the matters. However, there is a lack of transparency in the financial and administrative decisions of the tribunal mainly due to political reasons. Moreover, different countries have different and diverse laws governing sports-related issues. Thus, CAS provides consistent laws for all those matters, where any country can seek remedy from another country and the dispute can be solved without any difficulty.
Confidentiality
The arbitrators and CAS staff are obligated not to disclose any information regarding the cases being held in the tribunal. The arbitration proceeding is a confidential affair, but once the arbitral award is provided it is published in a public domain unless the parties disagree to it.
India and Sports Law
India is known as the originator of games such as chess, archery and hockey. In the modern era, India follows cricket religiously, and has participated in renowned sports competitions, such as the Olympics and Commonwealth Games and has also organized such events. Earlier, sports used to be a part of the state list of the Seventh Schedule (entry 33) of the Indian Constitution. In a resolution passed in 2016, sports were transferred to the Concurrent List, which gives power to both state and Centre to work together towards the development of Sports. However, India still lacks a proper and uniform mechanism to govern sports. Moreover, the contribution of the Indian judiciary towards sports has also been negligible. Litigations regarding broadcasting and arbitrary actions of sports authorities are on the rise.
Important sports bodies in India
Ministry of Youth Affairs & Sports
The Ministry of Youth Affairs & Sports (MYAS) is responsible to create infrastructure as well as achieve excellence in the sports events organized at national and international levels. Further, it issues guidelines for the regulation of National Sports Federations (NSFs). NSFs are autonomous organisations which are responsible for control, management, development and promotion for the sports they have been recognized for by the International Federation. They shall impart these responsibilities in consonance with the charter of the Indian Olympic Association (IOA).
Sports Law and Welfare Association of India
The Sports Law and Welfare Association of India is a national not for profit organisation ‘‘SportslawIndia” founded in the year 1986 under Hon’ble Justice Arun Kumar Mishra and Senior Advocate of the Supreme Court of India, Late R.K. Jain, which works for understanding, advancement, and ethical practice of sports law in India, by bringing in legal practitioners specialised in sports law and sportspersons together. It publishes high-quality research in the field of sports and law and provides consultancy to sportsman and sports bodies on the following matters:
- Sports injuries and issues of liabilities.
- Issues regarding employment and recruitment.
- Harassment of sportspersons based on race or gender.
- Alternative Dispute Resolution for amateur sports in India.
Sports Authority of India
The Sports Authority of India (SAI) was established after the success of the IXth Asian Games held in New Delhi in 1982, as a society under Societies Registration Act, 1860, headed by the Ministry of Youth and Sports Affairs. It is responsible for maintaining the stadiums constructed or renovated for the Asian Games. Its objective is to help NSF train coaches and physical educationists as well as national teams by operating various scholarship schemes as incentives at sub-junior, junior and senior levels. It is also responsible to release funds to NSFs against proposals approved by the governments.
Important legislations governing sports in India
National Sports Policy
In August 1984 the National Sports Policy was introduced in the Houses of Parliament, whose main objective was to raise the standards of sports in India. The implementation of the policy was to be reviewed every five years to keep a tab on the progress and decide further plans of action. However, this was not enough, and the policy was reformulated several times and another comprehensive policy came into being, namely, the National Sports Policy, 2001. Under this policy, the central government, along with the state government, National Sports Federations and Indian Olympic Association work together to achieve excellence in international and national sports events. It defines the areas of responsibility of various sports agencies involved in the promotion and development of sports and identifies NSFs eligible to follow the guidelines of this policy as well as eligible for grants from the government.
The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007
The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act was passed in 2007 to provide free access to sports events to the largest number of viewers daily through mandatory broadcasting with Prasar Bharati. It further provides under Section 3 of the Act that all content by any independent or private broadcasting company shall air it live on radio or television without advertisement and without simultaneously sharing it with Prasar Bharati to enable them to do the same. In 2018 a bill was introduced, namely, Draft Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Amendment Bill, 2018, wherein this Section was amended to also broadcast it on the channels notified by the Government under Section 8 of the Cable Television Networks (Regulation) Act, 1995, that is, it shall also be compulsorily aired on Doordarshan channels. However, the bill has lapsed in Parliament.
Dispute resolution in India
In India, there is no uniform dispute resolution mechanism where the aggrieved party can approach, however, there are guidelines to construct an internal mechanism within the National Sports Federations since they are autonomous organisations. But the NSFs have failed to establish satisfactory internal mechanisms in consonance with the Court of Arbitration for Sport (CAS). Following are the steps taken concerning sports arbitration in India:
- In 2012, the Indian Olympic Association was suspended for corruption and lack of a dispute mechanism to address such sports-related issues, which led to an intervention of Indian courts or the government in such matters. Subsequently, the Secretary-General of ‘SportslawIndia’ submitted a draft of the Sports Tribunal of India Act, 2010 to IOA. It was promulgated in February 2011 during the national games at Jharkhand under IOA as Arbitration Commission of Indian Olympic Association or Indian Court of Arbitration for Sports (ICAS) under the chairmanship of former Judge of Supreme Court of India, Dr. A.R. Lakshmanan along with seven other members.
- The UPA government had also constructed a separate Sports Dispute Redressal ombudsman in the National Sports Development Code of India, 2011, which recognised the jurisdiction of CAS by stating that NSFs must comply with the principles laid down in the Olympic charter. It further mandated NSFs to lay down codified rules and provide an internal dispute mechanism, which was not followed by most of the NSFs.
- In 2015, the Dutee Chand case hit headlines regarding the hyperandogenemetic case, where she appealed to the CAS against the decision of IAAF to ban her participation. She won the case and the CAS suspended the world’s hyperandrogenematic clause for two years to give time to the IAAF to provide more evidence as to the degree of performance advantage that hyperandrogenic female athletes have over athletes with normal testosterone levels. (Dutee Chand v. Athletics Federation of India (AFI) & International Association of Athletics Federations (IAAF).
- In the year 2016, however, two high profile cases underlined the inadequate dispute resolution provided by the NSFs. They are as following:
- The senior advocate Rajiv Dutta filed a Public Interest Litigation on behalf of the female boxer Sarita Devi, challenging the decision of International Boxing Association (AIBA) (Rajiv Dutta v. Union of India). The association suspended Sarita Devi for refusing to accept the bronze medal at the Asian Games, which was challenged through PIL. It was argued that the NSF didn’t have adequate guidelines to allow Devi to approach CAS. The court directed MYAS to make sure that NSFs incorporate the CAS clause in their rules.
- In this case, the Olympic wrestler Sushil Kumar filed a writ petition against the Wrestling Federation of India (WFI) for the arbitrary selection procedure adopted by the NSF. The court held that it would not interfere with the NSF’s decision, as it is an autonomous institution unless it has arbitrarily exercised its jurisdiction. (Sushil Kumar v. Union of India)
Thus, on June 17, 2016, after the Sushil Kumar case, the MYAS issued a set of guidelines, namely “Safeguarding the Interests of Sportspersons and Provision of Effective Grievance Redressal System in the Constitution of National Sports Federations”, which reconfirmed the CAS jurisdiction and directed the NSFs to ensure that they establish a transparent and fair grievance redressal system to safeguard the interests of a sportsperson.
In the same year, the government introduced a bill, namely, National Sports Ethics Commission Bill, 2016, which aimed to improve sports regulations, by constituting a National Sports Ethics Commission to ensure ethical and fair practices. However, the bill lapsed and was introduced again in 2018 which yet again, lapsed.
Suggestions
The Union Government, along with the state government and other organisations, failed to implement the National Sports Policy of India. The Indian Court of Arbitration for Sports has also failed to speedily resolve disputes between the parties. Thus, a comprehensive and uniform national legislation shall be constituted for promotion, development and regulation for sports in India. The House of Parliament shall consider the following recommendations:
- A legislation shall be devised for the constitution of Sports Commission that will regulate sports in India and will also advise the Ministry of Sports and Youth Affairs regarding sports and oversee the implementation of sports policies and codes in India.
- The legislation shall also promote sports in both rural and urban areas through Local bodies and educational institutions. The schools and colleges shall conduct competitions at all levels, and make physical education a mandatory subject.
- The Sports Commission shall be empowered to resolve the problems regarding dispute resolution in India, as the Indian Court of Arbitration for Sports has failed to do the job and the Sports Tribunal of India Act, 2010 is still not enforced as discussed above. The Act shall, therefore, either scrap the existing act and association constructed thereof and lay down new guidelines, or enforce correctly enforce the existing system. But the Sports Commission shall:
- Impart knowledge regarding arbitration and dispute resolution.
- Fund and regulate the association constructed for dispute resolution.
- Appoint the judges, arbitrators and other staff required for the association.
- Amend and change the act in consonance with international associations.
- The Act shall also govern sports federations and associations in India, such as the NSFs and the SAI, and they shall not be autonomous anymore and register under this legislation.
Conclusion
The field of sports in India is underdeveloped when it comes to its legal aspect. It is vital for an internal examination in place for the speedy redressal of such disputes, as the career of athletes might take a backseat because of the lack of these measures. As India has started to be in the limelight of many sports events, the sportspersons representing India shall always have a safety net while facing legal disputes. It is possible only when the legislators are enthusiastic about developing laws to protect them and legally being at equal footing as that of other countries.
References
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