12NUALSLJ21
12NUALSLJ21
12NUALSLJ21
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Sports Law in India- An Evolving Discourse or a Need for
Paradigm Shift?
-Mani Yadav, Abhinav Singh Chandel*
"Given the specificities of sport, the law must be applied with sufficient
flexibility to take account of the unique features inherent in sports that
distinguish it from other sectors."
Abstract
Additionally, the authors have made an attempt to briefly discuss some of the
contemporary issues that have arisen in Indian courts of law, with the advent
of modern day commercial sport(s) leagues.
I. Introduction
There are essentially two stances that dictate the extent of government
presence in the field of sports and the law related to it. The first is
interventionism, which literally is an adjective connoting a favoring
intervention, especially by a government in its domestic economy. Thus, in
the interventionist approach, the conduct of sports and related activities is
considered a public function and the state has a right and more importantly,
the responsibility to deliver. It is achieved by implementing specific
legislation on the structure and mandate of a significant part of the nation's
sports movement. 3 Many southern and eastern European countries like Italy,
Hungary, Latvia etc. favor this stance. 4 The social perception of sports as
public good makes it the liability of the state to conduct and regulate them
responsibly. Most substantially, it tends to do so by intervening in the chief
economic function of sport - revenue collection, by designating a structure
of taxation for various sports, sports-persons,and sporting entities by passing
adequate legislation(s). Further, it must be noted that there are legislations
governing specific sports such as boxing in some jurisdictions, whereas some
have discrete regulations for specific activities like drug use, fund allocation
etc. This is essentially, how the field is regulated. In case of want of
legislation, the courts are considered responsible and free to interpret or form
appropriate laws by passing judgements. For instance, in the landmark
English case of Regina v. Coney5 , the court held unregulated prizefights to be
inimical to public interest in maintenance of good order.
3 Adam Lewis & Jonathan Taylor, Sport: Law and Practice, 76 (2008).
4 Ibid.
5 Regina v. Coney 8 CCR 534 (1882, Queens Bench DivisionUnited Kingdom).
2018 SPORTS LAW IN INDIA
It is significant to note that this does not mean the approach shifts to a non-
interventionist one in such cases, but rather that the dominant approach
remains the same, except for that specific activity. This in turn paves the path
for further legislation. Once the court passes a ruling, the government may
6
pass a legislation to that effect or against it, based on its own ideals.
Thus, the role in its essence, remains the same and merely limits itself to
specifically shielding indurate or callous behavior in pertinent sphere(s)
which causes it to lose its pervasiveness. It is therefore essential to note that
such instances occur in interventionism because the law often becomes
handy to guard and uphold one of the primary functions of the state -
prevention of breaches of peace. For instance, wagering and betting statutes
affect all types of sports with which gambling is associated. Therefore, a
contrast in practice can be seen in various parts of the world. For instance, in
Canada, it is illegal to own a common betting house without the
government's permit but nothing makes it explicit that betting as an
individual on a sport is illegal (there being no reference to online betting). In
the UK however, various forms of gambling are legalized, including online
sports betting. 7 Thus, it is submitted that even though the stance of the state
in some nations may not strictly adhere to it, interventionism is highly
efficient in the short term, and mediocrely so in the medium term in
regulating the sports sector, chiefly because the sector keeps evolving. It
would be highly idealistic to presume that a state could actually foresee
issues, needs and potential challenges in the long term in such a rapid
6 For instance, in Australia The Boxing and Wrestling Control Act of New South Wales
1986, was passed after the courts highlighted the want of such regulation posing hindrance
to social justice.
7 Governed by The Gambling [Licensing and Advertising] Act 2014 (United Kingdom).
NUALS LAW JOURNAL V61.12
On the other hand, there are certain countries which have taken a distinct
stance than interventionism because it often poses to be an unstable policy as
it leads to the creation of new hindrances that force further interventions,
creating a cycle which certainly does not help in problem-solving. Each time
the state intervenes, majorly the action in itself causes a number of
constraints requiring additional attention. For instance, the creation of laws
restraining doping in competitive sports would require the creation of
additional regulations for proper accessibility of healthcare units, doctors etc.
for conducting tests without any discrepancies. In non-interventionist
countries such as Germany and the Netherlands, sports regulations have not
been regarded as a public service responsibility of the government. This is
due to a number of reasons, discussing all of which would require a more
detailed analysis. Primarily it has been done so because of policy reasons
depending on the approach of the ruling political party, which is often
decided by social needs. Thus, no general 'law of sport' has been enacted to
regulate activity in this sector. Rather, legislation or other intervention is
generally countenanced only as a measure of last resort, in response to a
pressing public interest requirement. The current structure in India follows
an approach that falls on similar lines. Although largely non-interventionist,
there have been some instances of courts favoring intervention.
2018 SPORTS LAW IN INDIA
These are also generally responsible for deciding the eligibility criteria,
playing rules, penalties etc. and organizing championships at the
world/international level. Under the International Federations (IFs) fall the
National Federations of Sports. Their number varies with each country and
sport. These are strictly bound by the IFs and their direction. The National
Sporting Federations (NSFs) govern the sports at the national level and are
responsible for organizing events, deciding fines, promotion, and
development of the sport domestically. This gives them a fair share of power
and independence. Moreover, it is important to note that as the number of
these all over the world is quite high, the IFs find it hard to verify if their
guidelines are being followed unless there is an explicit breach. NSFs
normally also undertake advertising, domestic management and revenue
collection. Under these, come the State Federations (SFs) responsible for
managing, regulating, governing and promoting sports in the State Level,
followed by District/Local Federations (DSFs) affiliated to them, which are
responsible for ensuring efficiency and efficacy of these policies. It is
submitted that in India, the promotion of sports is the most important
function of SFs as they are in the position of best understanding the needs of
the people in their state. These also negotiate and request small funds for the
same and manage them.
question that if they do have such autonomy, why are they not governed like
body corporates are?
One of the major issues that have emerged with this model is of the
accountability of these federations. They have been considered private in
nature and therefore have often escaped liability and have operated in an
arbitrary manner without facing any consequences. There is no system of
checks and balances available and therefore, problems of unfairness and
inequality often arise. The question as to whether or not these bodies are
subordinate to any law or authority is again a matter of discourse, which also
leads to the problem(s) of jurisdiction and transparency of procedure.
Matters pertaining to assurance of jurisdiction have not been new in the
International scenario either, with a number of cases being filed up all over.
arbitrary action in the European Court of Justice, it was held that the scope of
his rights was limited to his fundamental and contractual rights, and nothing
more than that. It was further held that the Federation (UEFA) was not liable
for the acts it did in pursuance of its organizational duty.
13 United States v. Webbs, 15-CR-252 (2015, United States District Court, Eastern District
of New York).
2018 SPORTS LAW IN INDIA
In Finniganv. New Zealand Rugby Football Union Inc. 14, it was held that a
decision by the Rugby Union affected the entirety of New Zealand, and as it
affected the public, although being a private body, it lay in an intersection
between public and private law. It was held to be accountable to the public,
unlike a club, as its decision would not be binding on the public in general.
On the national level, the instance has been similar. In Mehra v. Union of
India15, it was held that held that the actions of Board of Control for Cricket
in India (BCCI)in the area of public law would be subject to judicial review.
This overruled the previous decision of the Supreme Court in Zee Telefilms
v. Union of India (2005)17, where the BCCI was not held to be a part of the
state. Therefore, now the BCCI can be held liable for its actions.
National Sports Policy 2 1 was originally laid down in 1984 for the promotion
of sports and later revised in 2001 to further accommodate provisions of
standardization and increasing the quality of sports in India. It aimed to
define the areas of responsibility of various agencies of sports as well as to
deal with the Sports federations in two ways - by providing an eligibility
criterion for grants and funds, and to identify the NSFs formally that would
be guided by such policy. National Sports Development Bill was laid down
in the Parliament in 2013 to further accommodate and establish institutions
and agencies for better and more diverse governance and regulation of
sports; however, it is yet to be passed.22
Sports Authority of India, which was supposed to be the apex body in sports
has also been established by the govt. to regulate the sector, however, it is
not a part of the government and does not have any system that ensures
checks and balances in arbitrary use of power by the NSFs. The body has
time and again been accused of corruption, mismanagement, scams, scandals
23
and even harassment.
Some other non-governmental bodies have also been working in this sector
like the Sports Law and Welfare Association of India (SLWAI), a non-profit
organization that works to ensure ethics, better governance and welfare in
sports. However, it is submitted it hasn't been able to play a vital role in the
system.
The courts of law are therefore burdened with the responsibility to come-up
with decisions and relief.
24
In R v. Appeal Board of the Jockey Club , the High Court decided that
decisions made by the Appeal Board of the Jockey Club were not amenable
to judicial review. This made it clear that the Court's approach was that the
'rules of the game' were contractual matters between clubs and their
members and not issues with which the Courts should interfere, thus
providing immense autonomy to sports agencies and federations.In
Kirandeep2-5, this approach, however, has been rejected.
26
In Indian FootballAssociation v. Mohan Bagan Athletic Club. , the Calcutta
High Court went on to interpret and even over-write rules made by the
Indian football Association marking that although the current approach
promotes freedom, it does not promote arbitrary autonomy without any
repercussions. This approach has been followed by other courts as well.
However, a lot of incidents don't go to court as there is a lack of awareness
and thus, this is where a set of rules and regulations would prove to be
beneficial.
24 R v. Appeal Board of Jockey Club, 2 EWHC 2197 (2005, High Court of Justice, Wales).
25 AIR 2004 PH 278.
26 AIR 1988 Cal 217.
2018 SPORTS LAW IN INDIA
Another area of law in which issues often arise is torts i.e. civil wrongs
whereby one person is liable for his acts violating the legal rights of the other
in some or the other way and is supposed to compensate the aggrieved
party. 27Such claims have been on a steady rise in the western and
southeasterncountries,unlike India. Majorly, three aspects of the law are
addressed in the context of sports-based injuries: Negligence, Intentional
Torts(Assault) and Recklessness. A negligent tort can be summed up as an
individual's failure to reasonably exercise logical or caring actions. But a
mere lapse of judgment can't be regarded as negligence.28 Condon v.
Basi29,however, is a landmark case where it was concluded that players are
under a duty to take all reasonable care taking account of the circumstances
in which they are placed. In Woodbridge v. Sumner3, the Court of Appeal
held that sportsmen would only be liable to spectators if they showed
"reckless disregard" for their safety. No such landmark case has been dealt in
India.
27
Ratanlal&&Dhirajlal'sLaw of Torts (Justice G.P.Singh, 2 6 th ed., 2010).
2'2 EWCA Civ 1054 (2001, England & Wales Court of Appeals, UK).
29 2 All ER 253 (1985, Court of Appeals, UK).
'o 2 QB 1, 43 (1963, Queen's Bench Division).
NUALS LAW JOURNAL Vol.12
As far as crimes are considered, there have been legislations passed that
ensure that specific sports related crimes are not committed. Doping is one
such instance where a clearly defined set of provision has proved to be
helpful in administering justice.
A need for such regulation was observed by the court in Rampal Sharma vs
37
Raj Cricket Association.
From the succinct analysis so far of the distinct issues arising in sports and
related segments, it can very well be commented that anti-trust and
competition law has a very big role in all of them. This can be seen in
various cases that the Competition Commission of India (CCI) has dealt
with, as well as, by referring to cases not only in the common law but also in
the American jurisprudence. 39
The act further has provisions for restraint of dominant position in order to
prevent monopolies. A dominant position is said to be acquired when an
enterprise is able to operate independent of competitive forces and affect its
42
competitors or consumers in its favor.
Abuse can occur in various forms and can be related to prices which includes
predatory pricing, limiting and restricting production or even making the
conclusion of contracts subject to supplementary obligations or uses its
dominant position in one market to enter into another market.
The competition since its inception has had an active role in adjudicating
such cases and has dealt with various issues arising as can be seen in
Surinder Singh Barmi v. BCC14 3, in which the commission regulated and
brought down the immense power that the Board of Cricket Control held. It
noted that "BCC's economic power is enormous as a regulator that enables
it to pick winners. BCCI has gained tremendously from IPL format of the
The commission in the Hockey India case has also dealt with antitrust
practices and their prevention by regulating the Hockey India League's
authority. Although it dismissed the appeal it opined that "it would be
appropriate if it were to put in place an effective internal control system to its
own satisfaction, in good faith, and after due diligence, to ensure that its
regulatory powers are not used in any way in the process of considering and
deciding on any matters relating to its commercial activities."
Thus, it can be safely concluded that the cases before the Commission have
most definitely brought the issue of monopolistic positions exercised by the
sports federation and need for fairness in their dealings to a progress.
However, as long as there is a want of regulations, much like a judicial
review, the commission also is just an instrument of justice and not an
enforcer of it. Therefore, regulations and laws are much needed.
Issues pertaining to abuse of power have also occurred since the advent of
sporting leagues in India. They are practically unregulated as there is a lack
of national sports code, making the possibility of malpractices higher. For
instance, in Lalit Kumar Modi v. BCC145 the petitioner who happened to be
the chairman of Indian Premiere League was accused of accepting a multi-
million dollar kickback while giving away the telecasting rights for matches;
attempting to rig the bids for the two new IPL teams-that were auctioned;
having proxy stakes in IPL teams; entering into transactions with rank
strangers against the mandate of the Governing Council of the IPL and
helping family members in benefiting from the IPL contracts.
Image of IPL was also tarnished when FIR No.20.2013 was registered by the
Special Cell, Delhi Police in 2013 which stated that there were reports of
match fixing and involvement of underworld which aimed to make some
windfall gains with the help of bookies based in Delhi.47
BCCI also undermined the authority of RBI during IPL when it appointed a
consultancy firm named International Management group (UK) Ltd. and had
payments of Rs. 30 crores. Since, consultancy services were procured from
outside India, it required prior approval of the RBI under section 5 of the Act
read with rule 5 of the Foreign Exchange Management (Current Account
45 SLP No. 27157 of 2010 (Supreme Court, 26/09/2011).
46 World Sport Group (India) Private Limited v. BCCI, Appeal No. 30 of 2011 in
Arbitration Petition No. 978 of 2010.
47 Cricket Association of Bihar v. BCCI, PIL NO.55 of 2013 (Bombay High Court,
30/07/2013).
NUALS LAW JOURNAL Vol.12
Transactions) Rules, 2000. However, BCCI had not made any application to
the RBI in relation to procuring the consultancy services from IMG.4"
As the sporting league industry grows, which it is, the legal issues would
also grow to be more complex and would involve greater economic and
social stakes, the regulation of which should start as soon as possible. It is
therefore suggested that the integration of such leagues must also be kept in
mind while policymaking.
V. Conclusion
41 Son of Mr.K.K. Modi v. Special Director, WP No. 1703 of 2013 (Bombay High Court,
06/02/2014).
49 Appeal No. 14896 of 2007 (Delhi High Court, 18/01/2008).
50 Writ Petition (Civil) No. 8422 of 2011 (Delhi High Court, 13/02/2012).
2018 SPORTS LAW IN INDIA
From the above analysis, it can be observed that the present model of sports
policy, governance, and regulation in India is not only insufficient but also
fails at execution.
Regards must be given that such a model provides a structure that provides a
transparent process of redressal, an accountable body and is subject to public
scrutiny. Apart from this, in the meantime, although judicial review has been
a very important tool to solve such issues, it is imperative that arbitration
tribunals be setup for a fast and effective disposal of cases.
Extreme importance must be given to the fact that the sporting industry is
evolving and as it does so, the mediums related to it are too. This means that
the legal complexities that so far have occurred are going to multiply as well
- in multiple ways. Not only would a need for an umbrella legislation be felt,
but a number of distinct provisions for specific activities would be felt too.
NUALS LAW JOURNAL V61.12
For instance, as the competitive gaming industry creates a niche for itself in
India, the regulations pertaining to it must be drafted in a way that covers
Information Technology, International Law, Privacy Law, IP law among
others, apart from sports laws.
Apart from these changes, there is also a need to acknowledge social changes
like gender discrimination in sports which in itself form a major
predicament, that must be solved imminently. On the policy side, apart from
laws to counter competition and criminal issues, attention must be given
towards promoting it in the society as a moral and ethical principle, much
like in China and Australia.
Thus, it can safely be concluded that sports law in India although is wanting
in a multitude of ways currently, has a lot of scope to accommodate changes,
which must be seen as an opportunity of bringing justice and change for not
only the current but also the future generations. A policy must now be
drafted that takes inspiration from successful sports codes all over, and
lessons from failed ones too. The policy must accommodate the possibility
of future changes, as the need be and must also acknowledge social issues
that have emerged as well as transitional issues that will emerge in the
reasonable future, as sports evolve.