This article is written by Mufaddal Paperwala.
Sports law is a niche area of practice in India. There are not many lawyers and practitioners that have the requisite technical expertise and experience in sports law. There is no Central Legislation governing the area of Sports, there are only few policies by the Parliament and judgments of the Supreme Court that regulate Sports in India. Further, there is no effective dispute resolution mechanism in India that can provide speedy justice without any biasness to sportspersons. Hence, this article discusses about the current scenario of Sports law in India, the role of judiciary in sports and analyzes if International Model of Arbitration is an effective and viable mechanism for solving disputes involving sports in India. Lastly, the article concludes with an alternative solution of forming a quasi-judicial body that can solve the problems prevailing around Sports in India.
Sports in India is a very important source of entertainment for people and an important source of income for the sportsperson’s and associations involved in it. Sports contributes a substantial amount to the GDP of the country as well. In India, almost all types of Sports are played and commercialized for entertainment purposes. The Government of India as well has taken certain initiatives for the promotion and development of sports. In fact, there are sports leagues organized in India by private investors and associations, for instance Indian Premier League, Indian Super League, Pro Kabaddi, Ultimate Fighting Championship are examples of several leagues organized in India. These private leagues give boost to young talent and help increasing the income for State and Central Government.
Sports Law is a niche area of practice and involves a mixture of several laws namely – Criminal Law, Contractual law, Labour Law, Tort Law, and International Law. The rapid development of Sports laws has coined two concepts i.e. – Lex Sportiva (Technical rules and regulation of the public aspect), and Lex Ludica (related to spirit of sports i.e. – ethics, sportsmanship, fair play, and few other aspects governing sports). In India there is no specific code or legislation on Sports there are just a collection of Supreme Court judgments and policies issued by the Parliament. The National Associations and Committees acting as autonomous bodies issue rules and regulations for their respective sports that must be abided by the sportspersons. Further, the respective States have State/District clubs and the National team which represents the country on an international platform is managed by National state bodies referred to as National Sports Federation.
One of the major problems in India is that there is no centralized legislation for regulation of Sports and hence there is no proper mechanism for dispute resolution. In India there are autonomous bodies that govern sports, and they have an internal mechanism for solving disputes. Often, there are disputes regarding the selection procedure, disciplinary issues and bans imposed due to various reasons, these disputes are often resolved internally with limited or no chance to appeal. Another, option to resolve disputes in Sports is by approaching the Supreme Court or the High Court but this is not a feasible option as the rulings often do not serve justice to the parties involved in the dispute. In countries like UK, EU, and USA the effective mode of dispute resolution is Arbitration which provides speedy and effective redressal of dispute. Hence, in this article we are going to discuss in detail about the International Model of Arbitration in Sports and if it is implemented in India will it be an effective dispute resolution mechanism for sports.
Sports law in India
The Constitution under the Seventh Schedule, List -II, Entry 33, has given the respective State Governments the power to make legislations on Sports, but there are no legislations enacted by any State Government in India with respect to sports. Further, the Parliament constituted the Ministry of Youth and Sports to build an infrastructure for regulation and promotion of sports. This Ministry implements regulations and policies for better administration of Sports. Apart from the Ministry of Youth and Sports there are few bodies, regulations, and policies currently prevailing in India are as follows :
- National Sports Policy 2001 – The Parliament passed this policy which focused on improving the standards of Sports in India. The Policy aimed at issuing guidelines and notifications, under which agencies were appointed and assigned to different sports to improve performance and results by focusing more on the eligibility criteria and requirement of players. It also aimed at promoting sports in India.
- Sports Law and Welfare Association of India – This association is a National non-profit initiative with a common objective of merging legal practitioners with sports person to address different issues involved with the associations or other parties. They also aimed at promoting ethical practices for sports in India. This Association provides consultancy on various legal matters involved in sports and makes recommendations to the Central and State Governments as and when required.
- Sport Authority of India – After the success of the IXth Asian Games at Delhi, the Government wanted to emphasize on development of sports in our country and spread awareness of the benefits and scope in the field of sports in different parts of the country. Hence, to coordinate all the sport related activities with the Government this body was established.
- Sport Broadcasting Laws – In 2007, the Mandatory Sharing with Prasar Bharati Act was passed, to enable maximum viewers to watch sports of national importance which could be transmitted to them through broadcasting signals i.e., radio or television sets.
- National Sports Development Code of India, 2011 – The Ministry of Youth and Sports in 2011, notified this code which aims at regulating the functioning of the National Sports Federation (“NSF”). This code deals with all the functions from eligibility, selection, management, appointment, sponsorship, and disciplinary actions of the NSF. It also lays down conditions a body needs to comply to be appointed as an NSF. As these bodies are autonomous once they are registered as an NSF, they get benefits of recognition, approvals, and funding from the government.
- After a set of few Supreme Court judgments the Ministry of Youth and Sports in 2016 had issued a new set of guidelines titled as, “Safeguarding the Interests of Sportspersons and Provision of Effective Grievance Redressal System in the Constitution of National Sports Federations.” These guidelines were issued with an aim of having fair, effective and transparent dispute resolution mechanism within all the Sports Federation and Associations. It also included a provision to make an appeal to the Court of Arbitration for Sports (“CAS”) or International Council of Arbitration for Sports (“ICAS”) to resolve the concerned grievances.
- Lastly, to keep a check on betting and other corrupt practices in Sports, especially in cricket, the Parliament had introduced a bill called the Prevention of Sports Fraud, Bill 2013. But there were no further steps taken to implement the bill effectively.
These are the few legislations and policies in India regarding Sports Law but one of the main issues is the lack of an effective dispute settlement mechanism. Further, there is no unified code pertaining to Sports Law and this leads to making the administration of Sports complex and defective. Hence, in case of any disputes in the field of Sports in India there are two ways that a dispute can be resolved, it can be done internally by appointing a commission through the federation or approaching the Supreme/High Court.
Judiciary and sports law
The approach of Judiciary towards adjudicating over disputes in sports has proved to be futile. There have been certain cases that have been adjudicated by the Supreme/High Court, but the rulings have caused an adverse effect on both the parties involved in the dispute. Some of the major reasons for the inefficiency of the Judiciary to tackle disputes in sports are as follows:
- One of the crucial drawbacks is that litigation is very time consuming in nature and it takes years to resolve a dispute. Additionally, the provision of appeal makes it even longer than anticipated. The Athletes and players have a very limited span in their career to perform and excel. Hence, litigation is not feasible to resolve disputes in Sports.
- Secondly, Court lacks the technical expertise and knowledge to make a ruling and resolve the dispute. There are no experts that can analyze and assess the issues involved in a dispute. Hence, often the judicial rulings do not serve justice to the parties.
- Lastly, there is no privacy or confidentiality provided to the parties involved in the dispute. Often this tends to hamper the reputation of the sportspersons.
Some of the famous case laws adjudicated upon by the Supreme Court and High Courts of the country are discussed below through which we can analyze the inefficiency of the judiciary in solving disputes which involve issues around sports.
In the case of Zee Tele Films (see here), the party had a dispute with the BCCI over broadcasting rights and hence a writ was filed in the Supreme Court under Article 32 of the Constitution. The Court in the case held that BCCI did not constitute as a ‘State’ under Article 32 of the Constitution and hence a writ could not be issued against it. In the Sushil Kumar’s (see here) case, an appeal was made to the High Court regarding the arbitrary procedure conducted by the Wrestling Federation of India (“WFI”), for selecting candidates to represent India in the 2016 Olympics.
The court in the case refused to interfere with the National Sport Federation i.e., the WFI, unless there is strong evidence against their acts being unfair, arbitrary, or contrary to the core principles and practices. In another case of Rajiv Dutta (see here), there was a Public Interest Litigation filed by a Senior Advocate contesting the decision of a National Sports Federation that banned a boxer as she refused to accept a bronze medal at the Asian Games. The court acknowledged the fact that the dispute could be better resolved by making an appeal to the Court of Arbitration of Sports but as the regulation and contract of the National Sports Federation did not include such arbitration clause there could be no remedy be available against this decision.
From the above stated three cases we can observe the hesitant nature of the Courts in India to interfere in disputes involving Sports. This is mainly due to the lack of technical expertise and the procedural restrictions given under the different acts that make it difficult for the courts to adjudicate and make an effective ruling in cases. Further, as stated above the time-consuming process, the lack of expertise and no central legislation on sports makes the Judiciary inefficient in effectively resolving the disputes between the parties.
Arbitration in sports law
Many countries have adopted Arbitration as a dispute resolution mechanism in the area of Sports. The reason arbitration is preferred because it resolves disputes within a specific time frame, provides requisite technical expertise required for the area of Sports, and lastly, it is very flexible. Further, a neutral party having the technical expertise in Sports appointed with the consent of both the parties often tend to resolve the dispute between the parties. Arbitration also provides confidentiality and privacy to the parties involved in the dispute. Hence, countries like the United States of America, the United Kingdom, European Union, Australia, and many others have adopted Arbitration as dispute resolution mechanism in the area of Sports.
Disputes in India are often resolved by an internal commission appointed by the Sports federation or through litigation in the Supreme Court or the High Court. There is a strong need for a proper dispute resolution mechanism to be in place to solve disputes in Sports. In order to, solve this issue several recommendations have been made by various Law Commission reports to the government to set up a uniform law on Sports and to set up an Arbitration center specifically for sports. In 2009, the Indian government inaugurated India’s first Arbitration Center in Delhi to solve disputes but no provision specifically for Sports law was included in it. Further, in the year 2011, a governing body to set up the Indian Court of Arbitration for Sports (“ICAS”), was appointed under the chairmanship of Dr. AR. Lakshmanan.
This body comprised of seven other members namely – Justices M.R. Culla, R.S. Sodhi, B.A. Khan, Usha Mehra, J. K. Mehra, Lokeshwar Prasad, and S.N. Sapra. This was one of the first efforts made in India to set up a uniform and effective dispute redressal mechanism in India keeping in mind the complex issues involved in Sports. This Court was set up for speedy and effective redressal of disputes. Further, in the year 2016, after the Sushil Kumar case discussed above the Ministry of Youth Affairs and Sports issued a notification through which they laid down guidelines with respect to dispute resolution in the area of sports. The guidelines titled as the, “Safeguarding the Interests of Sportspersons and Provision of Effective Grievance Redressal System in the Constitution of National Sports Federations”, emphasized on two major points that are:
- Establishing a grievance redressal system that is transparent and fair and aims to safeguard the interest of persons involved in sports.
- Directing the Sports Federations to include within their Constitution and their contracts a clause to appeal to the Court of Arbitration of Sports in case they are aggrieved by any decision or ruling of the federation/association.
These are a few steps that were taken to establish an efficient dispute resolution mechanism in India. As we can observe that none of these efforts have been fruitful to resolve disputes efficiently. The Commission set up in 2011 was not very successful in setting up a Court of Arbitration for Sports and secondly, the guidelines by the ministry were not taken up seriously by any of the sport federal institutions. Hence, till date there is no effective dispute resolution mechanism for sportspersons in India. As we have discussed in this article that arbitration is preferred in many foreign countries and they have submitted to the jurisdiction of the Court of Arbitration for Sports. We can briefly analyze the functioning of the Court of Arbitration for Sports that has been set up and its advantages and further discuss whether the Court of Arbitration for Sports would be an effective dispute resolution mechanism in India.
Court of Arbitration of Sports (“CAS”) is often referred to as the “Sports Supreme Court of the World”. CAS is an international tribunal that was set up in the year 1983 in Lausanne, Switzerland by the International Olympic Committee (“IOC”). Later, in the year 1994, to ensure independence and transparency of the CAS, the International Council of Arbitration of Sports (“ICAS”) was granted administration and funding of the CAS. Further, the 1994 Code of Arbitration laid down the powers, functions, and duties of the CAS. CAS has around 300 arbitrators with expertise and technical knowledge in Sports from 87 countries. CAS mainly deals with two forms of disputes namely –
i. Commercial Disputes – Contracts, Sponsorship, sale of television/broadcasting rights, accidents, injuries, etc.
ii. Disciplinary Disputes – disciplinary actions, suspensions and bans due to unfair practices like doping, ball tampering, steroids and prohibited conduct.
CAS conducts disputes as per the laws decided by the parties and in case no law is laid down for adjudication the Swiss law is implemented. The languages preferred are either English or French. One of the foremost pre-requisites to invoke arbitration under the CAS is the inclusion of a clause under the Contract or Constitution of a body giving CAS the jurisdiction to adjudicate upon a dispute. The CAS was formed with the sole objective to provide speedy justice to the sportsperson to ensure that there is no adverse impact of the dispute on their career and reputation. The CAS has around 300 cases that are filed every year. Further, the ruling of the CAS can be appealed on limited grounds which are:
- Irregularity in the Appointing of Arbitrator/s.
- Error regarding the jurisdiction.
- Ruling is against the principle of equality, fairness and against the public policy.
- If a matter is decided beyond the power granted under the code to the CAS.
Hence, the specific and limited grounds stated above make the scope of appeal narrow and the decision of the CAS binding upon the parties that have submitted to it jurisdiction. Further, the functioning of the CAS is effective, fair, and transparent. The CAS in the case of Galatasaray FC (see here), in which the UEFA banned the club from participating for two years in the club competition due to their disregard with certain compliances mentioned in the agreement between the club and the financial body of the UEFA. There was an internal enquiry requested which upheld the decision. Thereafter, the issue was brough up before the CAS and in a span of 3 months they ruled that UEFA’s ruling was appropriate as they had not complied with the clauses in the agreements and this caused a breach to which the said ban of two years was appropriate.
In another case of Tonya Harding (see here), which involved criminal acts in sports, where one of the skaters Nancy Kerrigan was attacked before her competition due to which she could not participate in the competition. This caused her biggest rival Tonya Harding to win the Championship. There was an inquiry held there after by the CAS after the championship and the evidence proved that Tony was involved in the assault to Nancy and hence the CAS ordered to confiscate her title and impose a life ban upon her. Lastly, in the case of a Turkish Athlete Sibel Ozkan Konak (See here), she was banned from the International Olympic Committee for her use of prohibited substances. After exhausting all the internal remedies available she appealed to the CAS. CAS in few months after holding an inquiry upheld the decision of the International Olympic Committee. Through an analysis of these cases, we can observe the efficiency of the CAS in solving disputes.
The CAS has to resolve a dispute within fix time-period of 6 to 12 months. In cases of urgent matters, the ruling can be made within a very short span of time as well. Lastly, the cost of arbitration in cases of an appeal for disciplinary matters is free except for the mandatory Court fee of CHF 1000 and in cases of other disputes a nominal fee is charged as per the fixed scale of charges mentioned in the CAS Arbitration Code.
Some of the advantages of submitting to the jurisdiction of the CAS are as follows:
- The CAS awards that are passed have a wider acceptance because the awards are passed by judges with technical expertise in the field of sports. Further, Arbitrators on the panel are from 87 countries and hence there is very limited chances of any biasness that could arise during the proceeding or in the passing of an award.
- The CAS has a panel of around 300 arbitrators from 87 different countries that are trained specifically in the domain of law and have the requisite experience as well. Hence, the complex issues involved in Sports can be solved with proper analysis of evidence and materials placed on record before passing an award. Hence, the CAS provides the requisite technical expertise.
- CAS provides full privacy and confidentiality to the parties. The arbitrators are not obligated to disclose any information to the public. Hence, this protects the parties involved in a dispute from controversy and media trials.
- One of the most important feature and advantage of the CAS is that the arbitrators must pass an award within a specific time limit. The maximum time that can be taken to pass an award is 12 months. Under certain exceptional circumstances, an extension can be granted. Further, in urgent matters an award can be passed in a very short span of time.
- Lastly, the procedure adopted by the CAS for adjudication is very simple and flexible.
These are few of the features of the CAS and the advantages of submitting to its jurisdiction.
Is sports arbitration a viable option in India?
Sports Law as discussed above is a very niche area of law and not many lawyers and practitioners in India have technical expertise or experience in the same. Further, with no alternate dispute redressal mechanism in India for Sports, the sportspersons have no remedy except submitting to the decision passed by the Sports Federation Committee or approaching the Supreme Court or High Court. As we have discussed above both these options are not fruitful. But is Arbitration through CAS a feasible option for Sports in India?
In this part of the article, we will critically analyze the feasibility of the CAS to solve sports disputes in India. If the Parliament passes a law mandating the inclusion of an arbitration clause in every contract or within the Constitutions of the sports federations only then can arbitration be taken up by the CAS. Now the two major complex issues involved with resorting to CAS as a dispute resolution mechanism are – i. Not all sportspersons can afford the legal fees and other costs involved in resolving disputes through the CAS, and ii. There would still be an issue with the enforceability of the award in India due to Section 34 and 48 of the Arbitration and Conciliation Act.
In India, a lot of talent comes from small villages and towns and they often come from families that lack sufficient financial resources. They cannot afford to pay the legal and other administrative fees involved in Arbitration. Although the fees charged by the CAS is as per a fixed schedule and in disciplinary cases only administrative fees of a certain sum needs to be paid, the sportspersons will be hesitant to appeal due to the lack of resources and support. Secondly, the issue of enforceability of the award passed by the CAS. Under Section 48 of the Arbitration and Conciliation Act, 1996, the enforcement of the foreign award can be challenged in courts. Earlier the courts used to get into the facts and merits of a case to check the validity of an award and this would cause unnecessary delay in the matter and would fail the entire purpose of Arbitration.
Hence, the Legislature amended Section 48 of the Arbitration Act that limited judicial intervention in enforcement of an award only if the award is against the public policy of India. Further, the Supreme Court in a set of landmark judgments such as the Renusagar Power Co. Ltd. (see here), Ssangyong Engineering and Construction Co. (see here) and Vijay Karia (see here), have laid down that judicial intervention in enforcement of a foreign award can be made only if the award is contrary to–
- Fundamental policy of Indian law,
- Interest of India, and
- iii. Justice and morality.
Lastly, the Supreme Court has also laid down that the courts cannot get into the merits and facts of the case unless the award passed is contrary to the above-given points. Hence, the Parliament and the Supreme Court have made efforts to make India pro-arbitration and to limit judicial intervention with respect to enforcement of arbitral awards. But in the case of Sports law often there would be awards that would seem to be contrary to the public policy of India. In such cases where the judges lack technical expertise, they would want to delve deeper into the case and understand the facts and merits of the case. This process would again end up being time consuming and would also be costly. Hence, even though CAS is an option better and effective than internal inquiry commission and litigation, it has several drawbacks as well.
Even if the parties choose to resort to domestic arbitrations by including a clause in the contract to resort to domestic arbitration it would still not be an effective dispute resolution mechanism. The reason for the same are as follows –
- It would be difficult to find an expert with technical expertise and experience.
- Domestic Arbitration would be costlier.
- There would still be a delay in the cases as the parties would have an option to appeal under Section 34 of the Arbitration Act.
After a critical analysis we can see that Arbitration through CAS has its advantages and drawbacks as well, but Arbitration would provide an effective and uniform solution of having a dispute resolution mechanism in India. Hence, Arbitration through CAS would bring about some changes in the existing system and would instill a process for proper dispute resolution of Sports through Arbitration.
In this article, we have discussed in-depth about dispute resolution mechanisms available to sportspersons in India. As stated above Arbitration through CAS would be efficient but would not solve the problem completely. As with the prevailing conditions of corruption, influence of the sports federations with political parties/eminent persons and lapses in Arbitration laws, CAS would not be the perfect solution to the problem. In order to promote sports and to ensure the well-being of sports persons the Parliament needs to set up a quasi-judicial body that would carry out enquiries and would appoint experts to solve the disputes. Just as the National Human Rights Commission, National Consumer Disputes Redressal Commission, Competition Commission of India, and Income Tax Appellate Tribunal another quasi-judicial body that only focuses on Sports should be formed.
This body/commission should appoint a panel that has expertise in sports laws and should have a mix of judicial and administrative members. A national quasi-judicial body would be approachable and could solve disputes at a quicker pace as well. A quasi-judicial body that ensures fair, transparent, and effective inquiries and rulings would solve many complexities involved in Sports. Analyzing the current situation, India strongly requires such a quasi-judicial body for sports. This would promote more and more young talent to participate in sports and would also attract a lot of investment which would, in turn, be beneficial for the GDP of our country. Hence, although arbitration is a good recourse but forming a quasi-judicial body is the need of the hour in India.
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