GOVERNANCE OF SPORTS BODIES IN INDIA – A CRITICAL LEGAL STUDY BY – ARNAV KADIAN & BHAVLEEN UPPAL
GOVERNANCE OF SPORTS BODIES IN
INDIA –
A CRITICAL LEGAL STUDY
AUTHORED BY
– ARNAV KADIAN & BHAVLEEN UPPAL
ABSTARCT
The subject
of this study is the governance of sports organizations in India, which is
critically examined from a legal standpoint. The study tries to emphasize the
significance of governance in contemporary sports and how effective governance
could contribute to the overall growth of the sports. The research primarily
focuses on the issue of governance issues in Indian sports associations. In doing
so, it raises issues such as a lack of transparency and accountability,
irregularities in the election process, improper financial management, and the
influence of political figures in these associations, as well as how these
issues have affected India's performance on the playing field.
The study
investigates the problem's resolution as well as the issue itself, which it
covers in great detail in the first four chapters. The Lodha Committee report,
which was established by the nation's Supreme Court to review the governance of
India's most powerful and wealthy sports body, the BCCI (The Board of Control
for Cricket in India), is also examined in the research.
The primary
objective was to back up the claim made in this study since the Lodha Committee
report also echoed the need for reforming BCCI's governance system and
establishing a system of accountability, legitimate and clean elections,
audits, and other key components of good governance.
I.
INTRODUCTION
1.1 WHAT IS SPORTS GOVERNANCE?
Sport governance
can be defined as the process of oversight and direction of a sport
organization. Oversight refers to ensuring an organization is run in accordance
with the relevant rules and policies (e.g., legislation, organizational constitutions,
codes of conduct, etc[1]
Direction refers to the mission, objectives, and strategies of an organization[2].
Governance is central to any sport system as it involves envisioning the future
and overseeing progress by setting the parameters for different elements of the
sport system including talent identification and development, facilities, sport
science, competition opportunities, and financial support[3].
Thus, “good governance does not in itself guarantee success but its absence
almost certainly guarantees failure.”[4]
Systemic
and organizational governance are the two main types of governance that take
place in the sport industry.
Organizational
governance focuses on how an organization governs itself and is usually focused
on the executive committee. This may include elements such as structures, group
dynamics, composition, and the roles and responsibilities of the executive
committee.
Systemic
governance describes how impacts from the broader sector can influence the
governance of an organization. These influences include pressures from
government and other stakeholders, global trends, and relationships with other
sport organizations[5]. Overall,
governance seeks to ensure that the sector, as a whole and as individual
organisations, is collaborating towards a shared outcome while monitoring and
evaluating organizational performance.
1.2 CURRENT SCENARIO
Today, as a
result of technological advancements, sports in India have achieved a new level
of success, emerging as one of the most lucrative sectors for participation and
one of the major sources of public enjoyment. Sports have historically been
used as a tool for human growth and development before they were a part of
any such enterprise. In the said scenario, the supreme court of India also
issued a notice to the Centre, state governments and Union Territories on a PIL
seeking directions to make sports a part of the Fundamental Rights as well as
promotion of sports education in the country[6].
Therefore, it is crucial to incorporate sports within a constitutional framework
for its efficient governance and management.
The
delivery and management of sports in India are handled by a variety of
organizations, including governing bodies, the government, for-profit and
nonprofit organizations, and private businesses. This increases the
sector's complexity.
The
institutions charged with regulating the governance and administration of
sports in India must uphold the highest levels of transparency, democracy, and
accountability because it often becomes the case that athletes and officials
will use unfair tactics to satisfy their competitive urges or make a profit
from such events. This competing will to succeed frequently drives people to
employ unethical tactics to alter the outcome of an event. When a situation
like this arises, it is felt that law and sports collide.
The absence
of a regulatory framework for the autonomous entities in the current sports
market is a further indication of the importance of law in the sports sector.
Articles 38 and 39 of the Indian Constitution guarantee the importance of
constitutional law in promoting social welfare, which is largely impacted by
the monopolistic practices of some corporations in the sports sector.
II.
SPORT’S GOVERNANCE FRAMEWORK: A
CHALLENGE TO MEET
Sports
governance can be defined as “the exercise of power and authority in sport
organizations, including policy making, to determine the organizational
mission, membership, eligibility, and regulatory power, within the
organization’s scope.”[7]
Today, sports are managed by international federations and sports governing
bodies, and national sporting organizations adhere to the standards and
guidelines established by these organizations to administer sports. Even though
these associations and organizations frequently receive public financing, they
are not held to a high standard of control or judicial supervision. This sets
it apart from other organizations like governmental bodies, businesses, and law
enforcement agencies, all of which are subject to a certain kind of regulation,
oversight, and investigation.
In
concurrence to this, public funds so given to the Sports Governing Bodies (SGB)
and International Federations (IF), this differs from other organizations of
state, such as governments, corporations, and police forces, which are all
regulated, monitored, and also investigated if needed.[8]
Not just that neither of these International sporting agencies and Federations
falls under the ambit of any professional associations, unlike legal councils
or medical associations[9].
This leaves a hazy region and leads to a false sense of transparency,
accountability, and integrity in these organizations and federations, which
weakens the governance structure and encourages corrupt behavior in sports.
It is an
undeniable fact that these international athletic organizations hold exclusive
private authority, and this power is significant in terms of the activities it
influences as well as the people it impacts. Therefore, it is just
a secondary issue and it should be questioned where and how the
strength of these multinational organizations comes from. As a result, the
system of governance and regulation of the individuals and entities
are within the purview of the international federations as well as the
operations of the associations as to how their framework are given particular
attention here.
In recent
years, sports have evolved into more than just a physical activity for body
development or a form of entertainment. They now include a professional
perspective and a business component with several stakeholders. Professional
sports are now more than just a game attributable to high salaries, high ticket
prices, and profits; it's a huge industry worth billions of dollars. Every type
of sport has been affected by the corruption disease. It's entertaining to
watch a sporting event, but the option of placing money on the outcome
increases the anticipation. This should be done honestly and without taking
unfair advantage of the sporting events. In addition to the basic objective of
making sports entertaining, it is crucial to eradicate corruption from sports,
particularly match-fixing and other corrupt practices.
Additionally,
the current trend in international sports offers a new perspective on the legal
interaction between the participating teams, event organizers, and the states
where the game is being played. Rules and regulations are necessary as a result
of the ongoing interactions and involvement of numerous aspects of contract,
competition, game rules, substance abuse by athletes, and biases. This made the
establishment of sports law necessary. Though not complete, sports law has
evolved along various lines of thinking. Recognizing human rights in sports has
grown to be a challenging problem. As a result of their dissatisfaction with
the private sports justice system, a lot of athletes are turning to the Court
as their last resort appeals adjudicatory authority. However, because there
aren't any proper or effective parliamentary enactments, the Courts are finding
it difficult to deliver effective justice. Due to the Parliamentarians'
careless approach to creating the Sports Law, the situation in India is
different from that of the European Union and the United States. It is
generally more challenging to safeguard the victim's rights in general where
there is no explicit legislation protecting those rights.
There is no
effective law to cater and safeguard the interest of athletes and persons
related to sports. The federations and institutions are having a rule-making
power without any accountability[10].
Many national and international governing entities have recently faced
questions about their legitimacy due to corruption scandals. The lack of proper
checks and balances on the boards' decisions as well as instances of outright
mis governance have prompted calls for better governance in the sports
industry.
III.
GOVERNANCE
MODEL OF OTHER COUNTRIES
USA: Every sport’s governing body
operates as a separate system in the USA; there is no unified paradigm of
sports governance. In the country as a whole, there is no official framework in
place to oversee sports. The majority of the institutions that
drive the growth and development of sports are not part of the government. The
sports sector is another example of its open economy and autonomous
administration. Only three federal policies make reference to sports in an
informal manner.
CHINA: Before
adopting the open-door policy by China, the sports sector was extensively
influenced and governed by the state. Along with providing funding and
sponsorship, the Chinese government also established a centralized structure
and planning for sporting events. New policy led to the change and
transformation in sports system in the country[11].
The new governance style and policies made the sports system more
self-sufficient. The State General Administration (SGAS) of sports replaced the
Sports Commission, but the government still maintains authority over all tiers
of the nation's sports system.
AUSTRALIA: Australian Sports Commission
(ASC), the federal government entity is the responsible body that looks after
sports in the country[12].
The federal minister of sports is in charge of it. It has an independent board.
After it announced its initial policy, only seven sports were required to abide
by it; however, in 2015, the number of sports required to abide by the ASC
governance model was expanded.
IV.
JUDICIAL
APPROACH
In India, national sports bodies
field the national team representing the country for participation in
international competitions where good performance is a matter of pride for the
entire nation[13]. These
bodies also give telecasting and broadcasting rights to the successful bidder
for hefty sums and also earn revenues from advertisement in sports events[14].
The case of Ajay Jadeja v. Union of
India[15]
began a new era of legal reforms in the field of sports. Lack of proper
coordinated investigation, integrity issues toward sports, procedure for
dealing with the complainant and several other controversies attached with it.
It was held in this case that as the sporting bodies perform public functions
and therefore, are subject to the writ jurisdiction of High Court. The
above-mentioned principle was upheld in the case of Zee Telefilms and Others v.
Union of India & Others[16]
by the apex court. In India, this case is known as the Magna Carta of sports
law. The issue in this lawsuit was BCCI's capricious cancellation of the
agreement over broadcasting rights. Here, Zed Telefilms, the party that felt
wronged, petitioned the Supreme Court under Article 32 of the Indian Constitution.
But only against the powers designated as "State" by Article 12 of
the Indian Constitution may a writ under Article 32 be lodged. According to the
Supreme Court, BCCI did not meet the requirements of Article 12 of the
Constitution to be considered a "State." On the other hand, Justice
Sinha (minority opinion) believed that BCCI was a "state."
Therefore a specific enactment is
required for the entire nation, though there are certain enactments such as the
National Sports Development Code, 2011 which governs the National Sports
Federation of India, but as sports is held to be a part of the State List of
Seventh Schedule of the Indian Constitution, the above-mentioned Code’s
validity was upheld in the case of Indian Olympic Association v. Union of India[17]
by the Delhi High Court. At present there are two draft Central Bills i.e. the
Prevention of Sporting Fraud Bill, 2013 and the National Sports Development
Bill, 2013, which are to be promulgated, and if did then it would give further
belief and acceptance in the existence of Sports Laws in India.
V.
INDIA'S CONSTITUTIONAL
FRAMEWORK FOR SPORTS REGULATIONS
Sports are
covered by the Indian Constitution's state list, 33 of the seventh schedule.
This implies that governmental authorities are responsible for any sports
regulation.
In the case
of Indian Olympic Association vs Union of India, the Indian Olympic Association
contested the constitutionality of the National Sports Development Code of
India, 2011, arguing that one of the codes' goals was to ensure that, both
domestically and internationally (including fulfilling treaty obligations),
sports development falls under the purview of the Union Government's residuary
powers under 10 and 13 of the Union List.
The Supreme
Court held the particular provision unconstitutional and thus, the central
government has no locus standi to legislate on sports. It can be concluded that
every state has exclusive competence over sports within their territory i.e. in
the state/province and this makes it difficult to address reforms relating to
sports law at the national level.
VI.
ALTERNATIVE
DISPUTE RESOLUTION AND
SPORTS LAWS IN INDIA
Arbitration
is a form of Alternate Dispute Resolution technique which is preferred to
resolve disputes outside the courts. This legal technique exists in
international sports through the Court of Arbitration for Sports (CAS) in order
to resolve international sports disputes as are referred to it. It is
considered as the most prominent forum which was created by the International
Olympic Committee in 1983[18].
The
efficacy of alternative dispute mechanisms in resolving international sports
conflicts is reflected in the attainment of the goal of CAS in Australia,
Canada, and Australia. However, it is important to ascertain the causes of the
unanticipated and abrupt influx towards these institutions at this time. Due to
the lack of prominent sports bodies in India, sports conflicts are settled here
by looking to international rulings.
The
main disadvantage has been the general reluctance of sports officials to address
the numerous shortcomings in sports litigation and submit the matter to the
authority of national courts.
For
example, the track star Butch Reynolds case successfully initiated a four-year
legal action that involved about fifteen levels of litigation and arbitration.
The International Amateur Athletic Federation (IAAF) ultimately declined to
participate in the proceedings, which led to Reynolds being awarded a $27
million judgement.
ADR
measure permits the parties to get convenient and timely hearing,
confidentiality, low overall costs and flexibility. Further, arbitrators have
prowess in the field. Aside from the success pace of the Sports dispute
resolution, bodies specialized in alternate dispute resolution mechanism such
as Court of Arbitration of Sports; these are some of the benefits of having
resort to Alternative Dispute Resolution (ADR)[19]
VII.
SUGGESTIONS
FOR INDIAN SYSTEM
In a nation
like India, reforms are necessary to establish excellent governance for sports.
·
Transparency:
Information on the composition of the board, the appointment of administrative
personnel, and compensation details must be available to the public in order to
preserve transparency regarding the use of funds and expenditures.
·
Women's
Representation: To preserve the diversity of the board, it is
imperative that there be a sufficient number of women in both sports and
administrative bodies. These administrative bodies also have an obligation to
guarantee that there are enough women on the board.
·
Plans: fixed
timetables that are to be implemented by sports organizations in order to
further the growth and development of sports in the future and that are to be
accomplished within a specified time frame should be made public. Players and
bodies alike would find incentive from these kinds of schedules and plans.
Future targets must be predetermined so that they may be closely watched over
and governed by the government. Future success would stem from effective
implementation.
·
Committees: to
establish specialized committees for particular sports-related tasks, such as
budgeting, organizing, and research and development. These committees would
handle the specific task, promoting transparency in the workplace and
accomplishing the shared goal.
·
Rules and
Regulations: regulatory organizations address disciplinary,
administrative, and management challenges in sports, just as they do in other
disciplines. must establish a tribunal, or common court, to handle concerning
disputes pertaining to sports.
Additionally,
to provide guidelines and policies to support the judiciary body supports
tribunals in order to ensure their smooth operation.
VIII.
CONCLUSION
Sport law
in India must flourish in order for sports and sportsmen to prosper;
legislative action is essential. India has to understand that
"sports" is more than just a group of athletes competing for the top
spot; it also involves complex legal issues and puts the athletes' entire
careers on the line. This field is giving rise to a unique legal system that
needs careful attention.
Undoubtedly,
practicing sports law is a fulfilling job. With the help of the law, an effort
should be made to enhance the sporting environment. Sport is an issue of
national pride rather than just being for entertainment. In recent times, the
growth of the Indian Premier League and Indian Cricket League has brought
important questions about competition law.
The Indian
sports sector has come a long way. Sports now have a corporate structure that
includes a variety of business interests. Sport-related issues are gradually
becoming a significant concentration due to the growing market development and
the need for clear and comprehensive legal documentation. Agreements should
ensure the competitive and brand's long-term interests and take into account
the regulatory, legal, and various risks inherent in the industry.
Additionally, agreements should have the option to explain parties'
expectations and responsibilities. The country has reached a point when sports
law management legislation is required. Promoting a consistent code for sports
is important in order to meet the growing demands of the changing circumstances
on both a national and international level.
Similar to
India, the United States and the United Kingdom lack national legislation
governing sports and their respective sports federations. Nonetheless, the
athletes' interests are protected by the creation of laws covering amateur,
professional, and international athletes in the US, according to the three
categories of sports law. The following are the main problems that Indian
sports face:
·
Errors in the management Lack of accountability for
outcomes.
·
Inadequate or improper use of finances.
·
Unethical or undemocratic election procedures in
sports organizations.
Indian
culture and our perspective on sports can serve as a hindrance to the
advancement of sports standards. It is imperative that changes be made not just
at the state or federal levels but also at the block and district levels, which
are mostly disregarded in the context of sports education. There isn't a sports
training centre or academy at the block or district level where kids or
athletes can go to receive the required instruction. This would undoubtedly
result in the development of an athletic culture in our nation, similar to
other nations where children are solely taught sports from a very young age.
Students need to receive sports education in schools in order to raise their
knowledge of sports-related activities.
To
encourage those who wish to play or advance in the future, the state must
actively participate in providing basic and minimal amenities at the block
level. Infrastructure for sports activities should be developed at the state
level for individuals who wish to continue playing sports. Enough facilities
and guidance ought to be offered to them. Coaches and other support personnel
need to be encouraging and educate athletes on maintaining a healthy diet and
abstaining from the use of any supplements or illegal drugs.
Sports
administration must also adapt; the current model system must be completely
redesigned to include adequate representation of women and retired players.
Transparency is required in the election process for higher-ranking positions
in the bodies, such as president.
creation of
numerous committees to examine particular problems and topics. Additionally, a
sports tribunal to settle sports-related disputes and deliver justice quickly.
All of these adjustments are required for India to compete internationally and
to improve the transparency of the country's sports governance system.
REFERENCES: -
WEB SOURCES:
PRIMARY SOURCES:
·
The Constitution of India, 1950
·
Sports Broadcasting Signals (Mandatory Sharing
with Prasar Bharati) Act, 2007
·
National Sports Policy, 2001
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