Anti-corruption law for sports

Anti-corruption law for sports[1]

Introduction

Sports law is one of those fields of law that is applied law in the field of sports, physical education and its related field. It is a pure law as opposed to theoretical law and is concerned with how law in general interacts with the activity known as sports.

The growing interaction between sports and law has created a new need for a greater understanding of how the law relates to the sporting world. The center based at LNIPE Gwalior is the first of its kind started in 1996 to offer expertise law consultations to the need of sports in the legal regulation of sport in a modern reality and as an amalgam of such diverse legal disciplines as sports law and policy, contract, tort, taxation, labor, competition, TV rights, match fixing and related criminal laws.

Sports law is based on how the law in general interacts with the sports activity. Different from theoretical laws, it is a pure law. Sports law is not only an applied law in the field of sports, physical education and its related field(s); but also a blend of laws in a number of jurisdictions.

Jurisdictions

Some jurisdictions have passed separate legislation relating to sports. For example, in India sports information is in the Concurrent list of the Seventh Schedule (entry 33)[2] of the Constitution on which both the union and state legislatures are proficient to put together laws. There are 3 States[3]; Rajasthan, Himachal Pradesh and Uttar Pradesh, which have enacted laws on regulating sports activity including registration, regulation and recognition of Sports Associations (Uttar Pradesh has since repealed the Act)[4].

History

From a mere source of entertainment and personal recreation, Sports has grown into a highly competitive industry with global pervasiveness. It is one of the largest revenue generating industries in the world comprising 3% of the world trade. It has also metamorphosed into an important and inevitable political and social activity. The Beijing Olympics did more for the Chinese soft power in three months, what diplomacy could not do in three decades. The successful bidding to host an international sporting event is a unique opportunity for developing countries to showcase their progress, development and their world standing through their soft power. India will host The Commonwealth Games this October, a sporting fiesta with 5000 competitors from 85 countries, more than 1.2 million spectators and an estimated 26000 crore rupees invested to make Delhi the cynosure of the sporting world. Such an event of mind boggling proportions entails problems unique and complex related to infrastructure, licensing, sponsorship, media rights and ethical sporting practices. It is an appropriate moment to analyse the need for lucid legal provisions pertaining to sports in India.

Human beings are drawn in sports activities since times immemorial. From the initial days of human civilization till date, sports have evolved from a source of personal entertainment to a global industry encompassing more than 3% of world trade. In the UK, sports provide employment to more than 420,000[5] people. It is one of the main revenue generating industries of the world and with the propagation of the Internet and other forms of media, the sports industry is growing at a faster tempo. An industry of billions of dollars with an all-encompassing worldwide presence is bound to raise its own disputes. This has resulted in the growth and development of sports law as a separate regulation in its own right.

SPORTS LAW IN INDIA

The Sporting World has been plagued by scandals and controversies in the past few decades. The Olympic Games Bidding Scandal, the recent IPL scam and allegations of sexual harassment by the Indian Women’s Hockey Team have shocked the nation. From six gold medals in a row from 1928 to 1956, the Indian Hockey team hit an all time low failing to qualify for the 2008 Olympics. This incident exposed the maladministration and insularity of a defective system that drained our resources. Even the Gentleman’s Game Cricket has been marred by match fixing and payment from bookies.

The mechanism of the economics of the sporting world was taken up by Simon Rottenburg in his seminal work on professional sports. He analysed professional sports with the paradigms applicable to any other economic activity and came to some brilliant conclusions. He defined the sporting competition as a joint product and a collective effort of a number of factors. He said that no single sporting team or player could offer an interesting and independent product of value in sports. Thus a sporting spectacle required a Competitive Balance and the ordinary rules applicable to a pure market had to be modified here. Even though competition was the core value that promoted sports, one needed Competitive Balance or Equality of competitors to some degree for the success of the event. Revenue was generated by the excitement offered by teams more or less evenly matched. Thus the principle that public interest is best served by the unrestrained free markets did not apply here. The second pillar on which the sporting world thrived was the unpredictability of outcome. These two factors defined the mechanism on which sporting industry worked.

The major problems that the sporting world faces can be broadly categorised as follows.

1.Labour Issues: Players and owners have to negotiate mandatory issues relating to hours, wages and working conditions. The agents entrusted to conduct business on player’s behalf have to be loyal and ethical serving the best interests of the game. The problem of performance enhancing drugs is an integral aspect of drug policies. Drug testing, list of banned drugs, penalties, privacy issues and right to appeal must be clearly stated by the nodal agency concerned.

2.Tort laws: Tort Laws were once not a part of the landscape of sports laws. But intentional tort pointing to a criminal act of assault needs to be penalised. Similarly right to publicity has to deal with the defamation of a person’s character and reputation.

3.Laws on accountability: There is a need to check corruption and ensure accountability in conduct and monetary deals of the government bodies and other agencies entitled to supervise the portfolio. Tenure caps of office bearers of federations and age restrictions of the office bearers are long overdue. Agreements that are exclusionary and therefore contrary to the Trade Practices Act should not be encouraged. Denial of essential facilities indispensable for the rivals to compete in an event must be severely dealt with. This is especially applicable to our country where the organisation of administration is pyramidal with a dominating agency at   the helm of  affairs.

4.Broadcasting Rights: India’s Competition Act 2002, holds void any agreement that is likely to cause an appreciable adverse impact on competitiveness. Yet the BCCI has been selling broadcasting rights to exclusive partners for a long time. The principle sustaining the interest of the general public to watch sports has been the fact that sports is an ephemeral product. The element of unpredictability of outcome and that a live event cannot be substituted. Concentration of rights in a few agents will seriously hamper the prospects of fair play in  media rights.

The magnitude of the problem and its nuances makes it clear that a sports law will no longer be an applied law or an amalgamation of laws under some jurisdiction, but a law in its own right. Entry 33 in the seventh schedule of our Constitution has provided a provision for the State as well as the centre to make and enact laws on regulation, registration and recognition of associations involved in sports. Rajasthan and Himachal Pradesh are two of the states where there is a functional sports law at present. In India, the provincial sports bodies work under non profit making organisations under the Company Law Jurisdiction. Rules and regulations like statutory orders act only as secondary legislations supplementing laws. The Competition Law (2002) promotes Competition advocacy, forbids abuse of dominance and anti-competitive agreements. But a comprehensive law on Sports must aim at a broader ideal and vision. The law makers should provide and disseminate the idea and information on various issues related to sports and encourage the exchange of a variety of perspectives through conferences before embarking on the mission.

Recently

The front pages of newspapers are generally reminders of human idiocy - dishonesty, corruption, rape, kill, illicit sex and drug abuse. Therefore, many sidestep the front news and move on to the sports section to explore something more exciting. However, recently sports have had an unusual sprint on the front page owing to its own flawing. Chronicles of the Peter Korda drug doping affairs, the Olympic Games bidding disgrace, Cricket series of falls over mach fixing, payments from bookies and Ranatunga muddle, reveals the cynicism of sports.

We have revealed that you wi­tnessed the India-Sri La­nka 1996 World Cup semifinal after cancelling various appointments. At that time, did you suspect any wrong-doing, as has been alleged by Vinod Kambli?[6]

At that time, as a loyal cricket fan, I could never imagine foul play.

Why do you think the BCCI has refused to order a probe into the matter despite a serious charge being levelled by a player who was part of that match?

It is for the BCCI to answer. But it will be in its own interest and in the interest of the game if the BCCI probes the statement made by Kambli and makes the findings public.

With Kambli’s claim having been rejected by then skipper Mohammad Azharuddin and coach Ajit Wadekar, apart from another player who featured in that match (Sanjay Manjrekar), are there strong grounds to investigate something that happened 15 years ago?

As the charges are surfacing after 15 years, it raises doubts. But nevertheless the charges are serious. So it should be looked into when a senior team member has levelled these charges.

Have you considered an anti-corruption law for sports to help the government order inquiries independent of national sports federations?

We are considering an anti-corruption law for sports.

The sports ministry conducting an inquiry of its own, as you have suggested, could be seen to be an infringement of the autonomy of the BCCI. Do you agree?

Yes, it may seem so. That is why we have asked the BCCI to conduct its own inquiry first.

Would the BCCI have been in a position to say no to a probe if it was under the ambit of the RTI Act?

Coming under RTI will give a general transparency in the function of BCCI and also improve its credibility. Specific instances like this still would be needed to be investigated into separately.

The Olympic Charter and the International Cricket Council[7] have provisions for disqualification of members of national boards whose affairs are affected by governmental interference. How will the National Sports Development Bill guard against violating that stipulation?

The Sports Development Bill in no way interferes with the fu­­n­­ctioning of the IOA and Natio­nal Sports Federations. The world over, there are many countries which have legislated more st­r­ingent provisions without any objection from the Internatio­n­al Olympic Council or other in­t­ernational sports federations. As an example, in Pakistan, the President of the country is the President of the cricket board[8]. In Sri Lanka, the government nominates its representative to the Sri Lanka cricket board. We are not asking our National Sports Fe­de­rations to emulate these co­u­ntr­i­es. We are confident it will meet the guidelines of international federations and be in consonance with the Olympic Charter.

Functioning of Sports

The international sports body for each sport, made up of national bodies of different countries is at the top of the hierarchy. The national sports bodies comprise the provincial or state bodies of different countries. The provincial state bodies comprise the different districts or clubs.

In many countries, such as India, national as well as provincial sports bodies, clubs, associations or societies are more often than not is set up under the law of societies. These are autonomous non-profit making private bodies. Additionally, many of these are also established as non-profit associations under the company law jurisdiction in the UK and commonwealth countries including India. These associations cannot dole out their surplus or make payment of dividends to members. Their surplus, if any, has to be exclusively and wholly applied for furtherance of organizational objectives.

In many states, such as India, these national sports bodies field the national team on behalf of the country for participation in international competitions where first-rate performance is a matter of pride for the whole country. They mull over the players for participation and selection. These bodies also grant telecasting and broadcasting rights to the successful bidder for heavy sums and also receive revenues from advertisement in sports events. They also take punitive action against the erring players including debarring them from the game. These bodies control even domestic matches or games within the country.

Despite the fact that these are private bodies, up till now in realism they are performing significant public functions in the field of sports where national or public interest is at bet, similar to public or governmental authorities as regulators and facilitators of the game in the field of sports. In view of that, in the said countries including India for enforcement of their public duties and obligations right Constitutional Writs of High Courts lie against these private bodies like any public or Government Authority.

In India, the budding "Sports Law" is newly-fangled. There are some pressing issues that need awareness:

1) Indian Sports Policy with reference to the Competition Law: Indian Sports Act must ensure proper structure and liabilities of the sports bodies; and key policies for sports bodies including code of conducts, policies for discipline, selection, harassment, conflict of interests, recruitment and awards, etc.

2) Sports Injuries with regard to the Issues of Liability: This comprises potential liabilities; claim and compensation; and risk assessment insurance provisions.

3) Employment Issues In Sports:Employee contract agreements must ensure that all contractual agreement accrues matters of intellectual property between employee and employer.

4) Harassment in Sports:This includes review of the laws and policies for the harassment of fair sex in sports; means and methods for equality rights for fair sex, girl child and female participants of sports; internal investigations and inquiries on the harassment in sports; and humanitarian and constitutional law for prevention of racial and gender harassment.

5) Organizational Matter:The Alternate Dispute Resolution (ADR) may administer amateur sports in India as well as all appeals and adjudication under the Indian law on penalties for doping in sports and sports related disputes like match fixing, corruption, breach of contract, violence, etc.

6) Research:Research must be undertaken to promote, encourage and support the law fraternity. The research topics may include: drafting Sports Act of India; contribution of Indian legislative body for support of Indian sports; standing of the sports administrator in India; regulation of violence between players in contact sports; development of risk management programmes for safety in sports; concerns of racial discrimination and national identity in sport; changes in contractual dynamics in professional football; regulation of the sports coach/child athlete relationship; legal support for women's participation in sport; judicial pronouncement of Indian in addition to International Courts; and relationship of coordinative abilities to performance in certain games.

Call to Action:The Aim of Sports Law should be to provide: educational opportunities and disseminate data and information regarding specific areas of sports law; and create a forum for lawyers representing athletes, teams, leagues, conferences, civic recreational programs, educational institutions and other organizations involved in professional, collegiate, Olympic, physical education and amateur sports. The Government must encourage discussions of legal problems affecting sports and promote the exchange of a variety of perspectives and positions of sports law. Establishing rules of ethics for sports persons and practicing professional of law involved in sports law will support the sports industry.

Additionally, sports law should endeavor to: produce high quality research in the field of sport and the law; provide up to date information on current sports law issues including a resource of sports law material; provide consultancy to sportsmen and sports bodies concerning sports law issues; promote undergraduate and postgraduate study, research and continuing education in sports law; promote ethical solutions to legal issues in sport and notions of "Fair-Play"; and positively address all issues of discrimination in sport.

Conclusion:-

Vision of a Comprehensive Sports Law in India

1. The Law should establish and promote rules of ethics and spirit of sportsmanship among competitors and the bodies involved in decision making. Ethical solution to legal issues in sports is the core idea behind the vision. This will enhance the morale of the players by improving contractual dynamics among them and the administrative bodies. Contracts must clarify expectations and commitment from the players and agents.

2. Consultancy services must be provided to the sports bodies and players. Co-ordination of the legal fraternity and the sporting community is a pre-requisite for such a healthy interaction.

3. National identity and the spirit of representing India must supersede political decisions. It would be highly advisable to include a former player of a game at the helm of affairs rather than a mere administrator or politician with vested interests.

4. To check corruption, tenure caps and age restriction on office bearers of federation must be brought in. Denial of essential facilities and exclusionary policies that are intentional at a player or a rival organisation should result in the termination of the services of the administrator concerned. Misuse of authority must be severely dealt with.

5. Salary caps on players and teams should be brought in. Practices that create a barrier for new entrants, draw out the existing players and lead to the foreclosure of a competition must not be     tolerated.

6. Research of excellent quality must be encouraged in the area of sports through continuing education.

7. The area of sports law is relatively new and at the nascent stage of conception in our country. Nevertheless, it is an area of study that is worthy of definition and in depth academic inquiry and practice. A well planned exhaustive competition compliance programme can be of great benefit to all enterprises. A fresh perspective, an independent authority and a comprehensive law is the need of the hour.

[1]Nishant Kumar:-B.A LL.B IIIrd Year ,Law College Dehradun,Uttrakhand.

[2]Constitution of India

[3]ibid

[4] Current provision of indian constitution.

[5]Article in Newpaper

[6]Article in indian express

[7]ibid

[8]Sri lanka cricket Board

 

nishant kumar 
on 28 January 2012
Published in Students
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