The article is written by Naman Sherstra from the Department of Law, University of Calcutta. The important cases that shaped the Sports Law in India have been attributed in the article.
Table of Contents
Introduction
In India, sports has an emotional attachment to the people. Sports like cricket,and football are pursued as a religion and in the present era, the dynamics of sports has been broadened as numerous games are being played nowadays. The arena of Sports law is still in the nascent stage and has been developing for a decade in India. There are various issues that have triggered the demand for sports law in India. These comprises anti-competitive practices, match-fixing issues, broadcasting issues, privacy violations, and several such issues. Sports in India finds its place in the Seventh Schedule under the state list of the Constitution of India. The commercialization of sport has introduced the evil practices in the realm of sports law in India. Indian Premier League, a cricket league has faced several allegations of teams and players being indulged in doping, and unfair competitive practices like betting and match fixings.
On the lines of IPL, several other premier leagues in different games have been started in India. Several other developed countries are having their own as compared to the global system, India lags way behind with regard to the scope of sports law. Sports particularly cricket and football lies in the soul of India. The national sport hockey, which once made India feel proud due to players like “Dhyanchand”, today, is left behind to only be a part of the general knowledge books, for memorising. Today India stays way behind in collecting medals at the Olympics. All these are results of the unfair practices indulged in the sports realm, where today people play only for the sake of either earning money or governmental jobs. The absence of adequate provisions for regulating the Sports in India like streamlining the Sports associations in India and dealing with the players indulged in the anti-competitive, in-disciplinary measures have forced the courts to interfere in the cases pertaining to such issues from time to time. Several cases that have framed the Sports law in India and took it at a level of developing stage are dealt ahead in the article.
BCCI: whether under the ambit of the “State” or not?
Zee telefilms and others vs Union of India and others
This case is considered as the Magna Carta of the Indian Sports law. The Board of Control for Cricket in India commonly known as BCCI had arbitrarily terminated the broadcasting contract agreements with the Zee telefilms. The agreements were made for the purpose of telecasting the test matches. The aggrieved party approached the Supreme Court under Article 32 of the Constitution of India, against the violation of its right. A petition filed under Article 32 can be maintainable only against the authorities who come under the ambit of “state” under Article 12 of the Constitution of India. The question of law before the apex court was whether the sports authority BCCI comes under the ambit of Article 12 or not. The majority of judges in the bench were of the opinion that BCCI does not come under the ambit of the State under Article 12 of the Constitution. The minority of judges including Justice Sinha had the opinion that the BCCI has a similar state-like function as “recruitment of players on merit basis” and so it should be included under the ambit of the “State” under Article 12.
Importance of this case
The aforementioned case has played an important role in developing sports law in India. The Judges have applied the said precedence in determining various cases. In Surinder Singh Barmi vs. The BCCI, where the BCCI was called for clarifying the allegations of anti-competitive practices slammed over it before the Competition Commission of India, the BCCI deposed that it doesn’t come under the ambit of the state, and in international sports, it represents itself as an independent sports federation, not as a representative of India. The Competition Commission of India stated that the representations are erroneous as the BCCI should also ensure that the representative players should not use the jersey and the clothes with India as a tagline and the tricolour printed on it.
In 2005, when the question of law regarding the maintainability of the petition filed under Article 226 of the Constitution of India came before the Apex court, the court said that BCCI may not be “State” under the ambit of Article 12, but since it discharges the public functions alike the state, hence, it is answerable to the general standards as applicable to the Judicial review as it was amenable under the writ jurisdiction under Article 226 of the Constitution.
So, it is pertinent to know that nevertheless the sports federations are not included under the ambit of the State, yet they discharge the public functions. Hence, in any kind of irregularities, they can be dragged in court for discharging public functions.
Governance over the commercial sport
Cricket Association of Bihar v. Board of Control for Cricket in India & Anr.
In the aforesaid case, the Cricket Association of Bihar filed an appeal before the Supreme court of India regarding the amendments made in the regulations made for “players” “umpires” “administrators” by the BCCI providing it to hold “commercial interest” in the organized t20 cricket tournament. The prima facie beneficiary in the matter was “Mr. N Srinivasan” the president of BCCI at that time. The court, in this case, maintained the petition stating its discharging of “public functions” as held by courts in previous case laws. Concerning the “monopoly” status of the BCCI in administration, the court held that it is bound to follow the “fairness” and “good faith” in all its activities and further added that the office bearers to such sports bodies shall be considered as “public servants”. While deciding on the fairness of the amendment made by the BCCI including its “commercial interest” in the administration, the court constituted a three members committee called “Lodha Committee”. The committee had to investigate the functioning of the BCCI including the role of the President “N Srinivasan” in the alleged violations in the administration.
The Supreme Court after analyzing the report of the Lodha committee said that the amendment legally violates the principle of natural justice where one cannot be a judge in his own cause. The amendment raises a conflict between the administrative duty and his own commercial interest. The court held the amendment unfair and unreasonable as it stands contrary to the principle of fairness, transparency in the discharge of public functions of BCCI and its administration.
Importance of this case
The Lodha committee report is known as a pathway of regulations and functions for all sports federations in India. It has set up norms for the functioning of BCCI, its members’ appointment, administration of the body and the fair and reasonability to be maintained by the President and higher authorities while discharging their official duties.
Sports broadcasting: vested public interest
The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal & Anr
This case has set a benchmark example directing the broadcasting of sports on the public television as the sports have a vested public interest and in that era, a large part of the public was out of the reach of private cable connections. The incident happened in the year 1993, when the “Cricket Association of Bengal” while celebrating its “diamond jubilee” organized an international ODI cricket tournament. The bidding for the telecasting rights of the said ODI was called off where Doordarshan tendered the lowest bid. The CAB rejected the bid of a national interest company, Doordarshan and provided the telecasting rights to the commercial company “Trans World International” which had tendered the highest bid.
Doordarshan filed a petition in the Supreme Court against the CAB. The Supreme Court held that the however it was the right of the CAB to enter into a contract agreement selling the broadcasting rights to private news channels, but it is pertinent to know that the airwaves and frequencies used for broadcasting are the public properties and hence they can not be monopolized by commercial companies. The Court ordered the Government of India to ensure the regulations for telecasting of such tournaments as the air frequencies lie as the vested public interest.
Importance
Till the liberalization of the economy, the sports broadcasting was airfree, and Doordarshan had the total right for broadcasting any kind of events. The government used to pay the DD for making arrangements in order for telecasting such shows. Since economic liberalization in 1991, air-waves became a market for private players like TWI and Start Network who invested a huge amount of money in sports broadcasting. The emergence of IPL, a commercial cricket sport has increased the market for the private broadcasters. Now, private broadcasting has become a market of millions of dollars getting investment from foreign market players.
National sports broadcasting: courts making a way for Doordarshan
Citizen, Consumer and Civic Action Group & Anr. v. Prasar Bharati & Ors.
In the aforementioned case, the issue was regarding the telecasting of the famous Indo-Pak series held in the year 2004. The private broadcasting network “ten sports” acquired the broadcasting rights of the said matches on its network. Concerning the broadcasting of the matches on the public broadcasting channel “Doordarshan,” the Prasar Bharti and the ten sports could not agree on the same. The matter reached the High Court of Madras where the court ordered the Ten Sports to share its broadcasting feed with the Doordarshan. However, for the said purpose the logo of Ten Sports would remain flashing on Doordarshan, and Ten Sports would be reimbursed for sharing its broadcasting feeds. The court further added that the advertisements and the rest things would remain the same as what is broadcasted by the Ten Sports in the same manner.
Importance
After the entry of private broadcasting companies in the market, Doordarshan was left helpless as most of the broadcasting rights of the games were taken by private companies.The 1999 ICC world cup was broadcasted on Star Sports and the 2003 world Cup was broadcasted on Set Max. However, the Doordarshan managed to get the broadcasting feed of such games on its channel on an ad-hoc basis within the Indian territory. This judgment changed the arena of broadcasting and in the year 2007, the government of India introduced The Sports Broadcasting Signal Act, 2007. The act provided that the private content right holder, the broadcasting channel had no right to broadcast any “sports event of national importance” until the telecasting of the same is shared with the Prasar Bharti. For the said purpose the advertising revenue shall be shared in the ratio of 75:25 for television coverage and 50:50 for the radio coverage.
Sports news: a tussle of broadcasting issue between ICC and NDTV
New Delhi Television Ltd. v. ICC Development (International) Ltd. & Anr.
In this case, the NDTV was dragged before the court regarding accusations of violating the broadcasting rules framed by the ICC for broadcasting the 2011 World Cup. The Broadcasting rules restricted the news channels from sharing the video footage of the matches and provided the manner in which the news channels can only use the match information up to ball per ball data. The ICC reached the High Court of Delhi regarding the violation of the broadcasting rules by the NDTV. The High Court of Delhi upheld the regulations of the ICC and found that the NDTV had telecasted various important footages of a wicket falling and the century under the guise of news reporting. NDTV in clarification stated that such video footage does not infringe the broadcasting regulations of the ICC as the broadcasting footage was a part of news that comes under the ambit of Section 39(1) of the Copyright Act. The court stated that there is a difference between the “news reporting” and “news analysis”. The broadcasting of the footage shall not be covered under the ambit of the “fair dealing” as the special programs fall under the ambit of the “news analysis”.
Importance
This case changed the realm of rampant exploitation of the sports footage by the news channels. Earlier to the judgment the news channels commonly used the video footage under the guise of news reporting. The “fair dealing” term was used as blanket protection by the news channels for using the broadcasting footage of the sports channels.
Sports data- not a quasi property right
STAR India Private Ltd. v. Akuate Internet Services and Or
In the above case, STAR India Private Limited had filed a case against the Cricbuzz, Idea Cellular and Onmobile in the year 2012. The BCCI in support of STAR India said that being the organizer of the matches it had the right to provide broadcasting rights of the cricket matches to any channel. The contract agreement signed between the BCCI and STAR India showed that the mobile rights and activation rights were vested in STAR India. The court gave its judgment in the favour of the defendants stating that the broadcasting of such news comes under the public domain.
The impugned order was challenged before the Single Judge Bench of the High Court of Delhi where the court granted an interim injunction to Star India Ltd. The court further observed that there is no need of taking a license if the defendants are providing ball per ball information within an interval of 15 minutes. Later, the interim injunction was set aside by the two judges bench, which stated that Star India Ltd and BCCI were asking for the creation of “quasi property rights” vested in them for the broadcasting of match events.
The parties further moved to the apex court against the order of High Court, where the court without making any kind of observation to the order of the High Court held that the defendants can continue providing the service to their customers adhering with certain conditions which would include payment of a particular amount to the Star India limited for the broadcasting rights licenses they have acquired it from the BCCI.
Importance
This case opened several questions regarding the broadcasting data whether it comes under the ambit of “quasi property rights or not”. The ambiguity in the restrictions remains as if such data restrictions apply only to the “mobile and internet” or moreover than that. If the broadcasting data is considered as the “proprietary” content then the person uploading data on their social media and other places shall also infringe the rights of the data holding companies and parties. This will increase the complications of the usage of the data by the third party users.
Gaming v. wagering
State of Bombay v. R.M.D. Chamarbaugwala
In the Chamarbaugwala case, the Bombay Lotteries and Prize Competition Control and Tax Act 1948 was challenged before the Supreme Court of India. The said act provided the State of Bombay to levy tax on the lottery tickets and the competition prizes. The apex court upholding the validity of the act said that the competitions which require the substantial skill of the participants shall not be considered as gambling.
State of Andhra Pradesh v. K. Satyanarayana & Ors
In this case, the question of law before the apex court was whether “rummy” was a game or gambling. The court applying the two-step test stated that “rummy” was a game of skill not the game of luck so it should be kept outside the ambit of gambling.
Dr. K. R. Lakshmanan v. State of Tamil Nadu & Anr.
In this case, the question involved was whether the wagering on horses is a game or gambling. The apex court said that wagering on horses required a certain amount of knowledge about the performance of the horses and the certain substantial skill of the participants as well. Hence, the game of wagering on horses shall not be considered as gambling.
Importance of the cases
These cases are an important set of precedents to differentiate between gambling and games. The apex court has considered that the games, where a certain amount of skill is involved instead of luck, shall not be considered as gambling. The Satyanarayana case was referred by the apex court while deciding the validity of “Kon Banega Crorepati”.The court held that KBC requires knowledge of the questions as a skill involved in the game, so it doesn’t come under gambling.
Issue of “ambush marketing” in sports
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ICC Development (International) Ltd. v. Arvee Enterprises & Anr
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ICC Development (International) Ltd. v. Ever Green Service Station & Anr.
In the first aforementioned case, the ICC filed a petition against the non-sponsors Avnee Enterprises and the Evergreen Service Station against the marketing of offering tickets as prizes with the tagline of ICC along with the mascot of World Cup 2003. The ICC stated that it was the organiser of the event and henceforth, the rights of the tickets selling were vested in it and the partner associated. The Delhi High Court observed that there is a limited law available for “ambush marketing” for the infringement of trademark or copyright. The court further stated that denial of infringement of the copyright shall come under the ambit of “commercial speech” that shall be protected under the right to freedom of speech and expression under Article 19 of the Constitution of India. The court further added that curbing “fair competition and right to speech” shall be a prerogative one and such action can be done on the formulation of law by the Legislature. In the second case, the Delhi High Court held that the non-living creatures are not entitled to the publicity rights and henceforth any kind of effort to take away the publicity to the organiser(non-living) from the individuals shall violate the fundamental rights provided under the Constitution of India.
Importance
The issue of “ambush marketing ”remains a threat to the organisers as India lags behind in having any kind of legislation or regulations in order to counter the issue as bidding is a part of ambush marketing. India has hosted several important international events like FIFA U-17 World Cup 2017, and Commonwealth Games 2010 without any kind of legislation to curb ambush marketing. Globally, different nations have enacted their laws to curb the ambush marketing. India needs to enact appropriate laws to counter the issue as in the future it will host several international sporting events.
Importance of sports law
K. Murugan vs Fencing Association of India
- Murugan Etc. Etc vs Fencing Assn. Of India, Jabalpur is one of the most important cases known for the importance of the Olympic games in India. Justice Ranganath Mishra in the judgment made an observation that the Olympics in India was started back in 1900. The Olympic games in India is regulated by the Olympic Association of India registered under the Societies Registration Act, 1860. The judge stated that in the memorandum of association the “Indian Olympic Association” along with the state Olympic association will promote the games providing adequate facilities to the players for training purposes. The IOC shall regulate and observe the participation of the players, organising the tournaments, and the welfare of teams in India. The association shall ensure the participation of the players in the Olympic games. The IOC shall constitute the state federation of the Olympics which shall work on the lines of the IOC for the promotion of games and organising tournaments from time to time.
Importance of this case
This judgment is known as a benchmark for strengthening the Olympic games in India. The judgment includes all the guidelines for the regulations of the Olympic association, their role, and the appointment of authorities.
Percept D’Mark v. Zaheer Khan case
In the Percept D’Mark (India) Pvt. Ltd. v/s Zaheer Khan & Another case, Percept D’ Mark was a business management company engaged in celebrity endorsement. The plaintiff had entered into a contract agreement with the defendant, Zaheer Khan. The contract contained the provision that prior to the completion of the first negotiation period the plaintiff would have the “right of first refusal” with regard to the offers of media engagement received by the plaintiff. The defendant wouldn’t be allowed to accept any kind of offer without the permission of the plaintiff’s terms and conditions but the conflict started when Zaheer Khan got engaged in an agreement without letting the plaintiff exercise the right of first refusal.
The plaintiff dragged Zaheer Khan before the Apex Court. The major issues involved in the case were whether the right of first refusal in the clause was void and could the plaintiff “Percept D’ Mark” compel Zaheer khan to extend the agreement.
The apex court examining the scope and effect of the ROFR in the light of contractual agreements observed that on the balance of convenience, both of the parties had suffered irreparable loss and the interim injunction on Zaheer Khan would negatively affect his career as a cricket player. On the other hand, one can’t be forced to be in the contract against the will of a person. The court further added that the agreement was of the natural nature where the Percept was the agent and Zaheer was the principal so compelling the principal to adhere with the ROFR by the action of the agent was beyond the nature of the contract. Hence, the apex court held that Percept was in restraint of trade and allowed Zaheer Khan to enter in any agreement post-natural termination of the agreement.
Importance of this case
This case law broadened the scope of sports players in relation to brand and business endorsement control agreements.
Conclusion
The arena of sports laws in India is still at a developing stage. The cases have revealed the issues on which our country lags behind in terms of adequate legal provisions. The ambush marketing rose in the growing competitive field of the sport’s laws are such evils which are being practiced under the blanket protection of the inadequate legal provisions. Similarly, the inadequate provisions of the protection of the trademarks for the non-living bodies like sports federations have also become a challenge before the government. However, several landmark judgments like the Zee telefilms case have brought significant changes in the area of Sports law in India. This case has not only put a curb on the arbitrary regulation of the sports federations having the post holder holding commercial interest, but also held that even if such federations don’t fall under the ambit of the state under Article 12, but it discharge the public functions as the state does, the sporting federations and the boards shall have to regulate all the provisions in a “fair and reasonable manner”. Similarly, the ten sports cases brought significant changes in the realm of broadcasting of sports on television channels.
After the liberalisation period, the private broadcasting channels captured the broadcasting rights of the sports shows and denied the public channel Doordarshan from sharing the broadcast feed. The court’s decision compelled the private channels to share its broadcast feed with Doordarshan. Later, on the line of this case, the Sports Broadcasting Signal Act, 2007 was enacted by the government where the private channels had to share the broadcast of the “sports of importance” with the Doordarshan. The K Murugan case upheld the importance of the Olympic games in India and provided guidelines to the Olympic association to form the state association for promoting Olympics in India. Such judgments have brought a significant change in the arena of sports law in India. However, due to inadequate legal provisions and anti-competitive practices, gambling issues are still rampant in sports in India.
The commercialisation of sports with the introduction of the IPL has increased the unfair practices in the sporting events. The sports federation and the players are indulged in illegal practices for the sake of earning money. Today, the Government of India needs to bring rigid laws in the arena of sports so that the prevailing unethical practices can be curbed. Since, sport in India has an emotional attachment with the people, there is an instant need for the proper legislation to be enacted, otherwise the people will start losing their faith in the emotions for sports and games.
Reference
[1] https://www.nationofsport.com/stories/sports-law.
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