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Legal Overview And Policy Framework Related To Sports Law In India
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Legal Overview And Policy Framework Related To Sports Law In India
Authored By - Swastik Banerjee
Law Student
Kalinga Institute Of Industrial Technology
4th Year,
Kiit School Of Law,Prasanti Vihar, Patia,
Bhubaneshwar, Orissa 751024
Contact No. : 6290873580
Abstract:
The recent growth in the fields of technology made sports a
profitable source through the likes of sale of tickets and jerseys, claiming
rights from the channels broadcasting the live matches, revenue generating out
of advertisement, etc. not only from a global point of view but also from the
Indian subcontinent. India, being a country rich in cultures, showcases its
talent in the field of sports, with cricket being the most favourable sport
among the Indians, followed by that of football. Sports Law governs sports in
India with a mixture of various other laws such as Labour Law, Torts, Criminal
Law, Contract Law, Arbitration, and so on. But sports law has failed to live up
to the expectation of raising the sporting culture among the Indian youth. The
said article focuses on the recent incidents of IPL 2013 match-fixing, the
legal dispute o Zee Telefilms with BCCI, the Commonwealth Games debacle, and
several fiasco in other sports in India.
KEYWORDS: BBCI, IPL, Commonwealth Games.
Introduction:
For a country with a diverse population and to cope up with
the growing population, the sporting industry has now become a huge revenue
generating industry through the sources of jersey sales, broadcasting rights of
several channels, agents of sports persons, revenue from the media as well. In
the previous decade, there has been a rise of several sports leagues which
happened to boost the revenue collection, making it easier for criminal
offences such as match-fixing and all.
India is a country having a great passion for sports which
can be witnessed by the recent programs like Khelo India Youth Games[1]
in the recent years for the betterment of sports among the youth. But what
lacks is the commitment of athletes in their representation of India at the
International stages, and this incapable mentality has increased over the years
just because there is a lack of proper bodies to govern the sporting industry
in India. Competing with the likes of the United States, United Kingdom,
Australia and many more, India has a long way to go in order to reach the
standards set by the said contingents.
The talking point of India’s sporting industry is solely on
the point that after several years of independence, the primary focus still
remains on cricket, followed by football and badminton. India’s lack of sports
laws for other sporting activities has become a hurdle in the development of
such other sports.
Even though programs like Khelo India Youth Games,
initiated by the Indian Government Governments, is a step forward for other sports
getting exposure, it cannot be considered enough for athletes competing at the
international stages in sports other than cricket. Lack of development in the
field of football can be witnessed as the dream of every Indian football
passionate for spectating the Indian Football team playing at the international
competition, i.e. FIFA[2].
The case may be the same for Badminton, Kabaddi, Track and Events, Athletics,
Archery, just to name a few. The cases in the last decade, like the Manika
Batra case after the 2020 Olympics, the Commonwealth Games 2010 fiasco, the
BCCI legal dispute and the arrest of Indian wrestler Sushil Kumar
showcases the lack of proper governing authorities in the sporting industry in
India.
Policy
Framework of Sports in India:
The Constitution of India has listed sports as per entry 33
coming under the State List[3].
This indicates that the State Government has the only say in sporting matters,
while the Central Government cannot act upon the said matters.
The Ministry of Youth Affairs and Sports (MYAS)[4]
and the Indian Olympic Association (IOA) are the two major bodies overseeing
the conducting procedure and development of sports in India, with the latter
being a self-organised authority with the responsibility of selecting athletes
capable of representing India at the International stage. The Olympic Charter
further states that IOA has to be free from all sorts of administrative control
by the Government of India, and has 38 National Sports Federations (NSFs) under
its management. On the other hand, the training of athletes is conducted by the
Sports Authority of India (SAI) and various other bodies categorised under The
Ministry of Youth Affairs and Sports. However, MYAS has its way of supporting
the National and State Sports Federations through the political route.
There is a lack of proper legislation for the
regulation of governance of the sporting federations and authorities at
present. Because of the failure to legislate proper laws, India’s efforts,
which are not up to the expectations, or even worse to say very poor, to
compete with other countries in the Olympics can be seen. India's failure to
bring the central government, the IOA and the NSFs together with the state
government, for raising the standards of sports in India through the National
Sports Policy, 1984 has led to further frustration. The said policy would have
made a way for efficient and effective sports integration and would have
been a great addition in the education field with the addition of physical
education.
Sports law in India corresponds with that of
Labour Law, Contract law, Criminal Law, the Indian Constitution, Arbitration,
Intellectual Property Law, etc. The Arbitration cases relating to sports are
dealt by Sports Arbitration of India while other matters are heard by either
High Courts or the Apex Court.
Arbitration in sports in India:
As said earlier, the industry of sports and the
entertainments related to it witnessed a massive resonance in the past decade
because of the rise in the viewership of several sports leagues and investments
made from such leagues, to name a few are Pro Kabaddi League, the Premier
Badminton League. Sports matters generally come under the purview of the State
Government as per Entry 33 of the State List, whereas international matters
requiring enactment of laws fall under the jurisdiction of the Union Government
as per Entry 10 List 1 of the Indian Constitution[5].
Despite the fact that both the Central and the State Government have the
control over development of the sports industry in India, certain private
bodies take up the matters for the purpose of practice. The general concern
then shifts to any such ambiguity regarding which body will have the control
over such sports disputes– the private bodies or the ones who function
independently of the Governments?
For example, the Board for Control of Cricket in
India (BCCI) cannot be construed as ‘State’ under Article 12[6]
of the Indian Constitution, following its legal dispute with Zee Telefilms.
Thus it is necessary to have an entity created by the State to resolve the
disputes relating to sports and in order to overcome the said ambiguity, the
Sports Arbitration Centre of India was established.
There was a need for development in the field of
sports after the Asian Games of 1982[7],
which was followed by the creation of Sports Authority of India (SAI) for the
training of athletes and the enactment of National Sports Policy, both
occurring in the year 1984. The NSP was considered a step forward in the
process of sports development in the country with the sole objective of
bringing together the Central Government and the NSFs, IOA with the State
Government for further development in the Indian Sports Community. Prior to the
year 1984,the country lacked a general interest for developing and adapting
sports activities as a skill. Thus, the National Sports Policy was enacted
mainly to focus on promotion of sports infrastructure and making physical
education an integral part of education curriculum. But with this new and fresh
ideology, the country neither had proper bodies to enforce the same nor did it
focus on designing a more classified and attired environment.
However, the NSP of 1984 did not succeed as
planned, and an amendment[8]
was made. With its primary initiative failing, it still had the objective of
merging physical education with the already existing academic schedule. The
said policy laid down the responsibility of enforcement on both the Central as
well as the State Government providing suitable powers to them for instituting
necessary legislation, thereby creating a hurdle in the way of implementation
of the rules.
The connection of Sports Law with other legal statutes:
1. Labour Law: Sports Industry in India
is designed or structured in such a way where the Indian Olympic Committee
(IOC) and the National Sports Federations (NSFs) sitting atop and the State and
District organisations operating from the bottom, with Sports Authority of
India (SAI) and The Ministry of Youth Affairs and Sports (MYAS) playing a major
key factor in the industry of sports.
Now, whether sportspersons can be construed as
“employees” is the question arising out of the complexity between the
relationship of such sportspersons and the above
mentioned organisations. As we know, there are
certain Labour laws applicable in India such as the Minimum Wages Act, 1948 and
Payment of Bonus Act, 1965. To make certain codifications on the numerous
applicable labour laws in India, the Parliament passed three codes along with
the wage code on industrial relations, social security, occupational safety,
health, and working conditions.
In general, labour law provides better
protection for employees but it still raises the ambiguity of what role a
sportsperson plays – “employee” or “independent contractors”? The problem is
that relationships among sportspersons and the said organisations are governed
by contracts and such contracts generally change their directions from the
sportspersons towards the organisations and other stakeholders as they carry
more powers to bargain. The Indian Courts applied several tests in order to
determine whether a sportsperson falls under the category of “employee”. The
said proceeding was antecedent that all NSFs should be abiding as per the
applicable labour laws in India. “Mutuality of Obligations” is a variable where
every contractual party experiences the responsibility for presenting the
“employee” status to other persons.
Since the organisations exercise the betterment
of bargaining powers as compared to that of sportspersons, there is an
imbalance present in the global sphere, and to eradicate such imbalance,
“collective bargaining agreements”[9]
has been presented for sportspersons having the same bargaining powers as
exercised by their employers, i.e. the clubs and administrations. However, in
India, this issue still remains unresolved as the determination of the status
of “employee” still remains a challenge having no easy method, so an
alternative has been proposed by introducing the creation of unions[10]
as per the Indian Constitution and the Trade Unions Act, 1926[11].
The method of “collective bargaining” has proven
to be a successful process in resolving the imbalance present in the bargaining
powers between the authorities and the sportspersons, but it restricts the
organisation of unions to participate in such “collective bargaining”. And as a
result, current developments in the Indian sporting industry has indicated that
if an association of sportspersons’ can be formed, it would effect in a more
prominent way, as suggested by the Lodha Committee[12]
inside the sports industry framework. Maintaining a balance between the powers
exercised by the stakeholders present in the industry, as the junction of
labour law and sports law can be a bit complex.
2. Contract Law: In the industry of
sports, a contract is generally made between the athlete or the sportsperson,
the organisation or the club it is representing and the agents of the athlete.
In these contracts, the rights and obligations of the parties involved are
specified and that the parties involved have agreed to the terms and conditions
of the contract either by writing or verbally. Since proving the accuracy of
implied contracts can be a challenge, contracts nowadays are generally made in
the written form which the organisation and the sports persons duly sign, thus making
implied contracts hardly credible in the sports industry.
People associated with the sporting industry
cross their paths with various types of contracts such as the Endorsement
Contract, which unlike other sports contracts, is independent in nature, and
does not cater to any employer-employee relationship. With such a contract
signed by the athlete, the sponsor obtains the right to gain the athletes’
name, image, etc. for sponsor’s goods and services marketing, thereby
generating revenue from such endorsements.
Another sports contract which can be discussed
here is the Appearance Contract, which after signing, the athlete has to appear
in public events of any business, along with sports camps and competitions. The
main purpose of this contact is to specify the date and time of such a
sportsperson to appear in the aforementioned public events. Just like other
contracts, sports contracts bear certain clauses, like:
(i) Morality Clause: this clause is present in a
sports contract if a sportsperson engages himself / herself in any such
behaviour which might affect the organisation associated with the player in a
detrimental way.
(ii) Player-Agent Relationship: for any sports,
the relationship between a player and his agent is essential, because if such a
relationship is not present, the player may be a target of several scandals and
criminal offences. In order to protect the player, the agent needs to trust the
player just like the player is required to trust his agent. If such trust is
present, there exists a fiduciary agreement between the two parties, which
allows the agent to act and make decisions for the athlete that is in his / her
best interest in a legally binded manner.
(iii) Force Majeure Clause[13]:
this clause is included in a sports contract if any circumstance occurs which
is beyond the control of the parties involved making the event impossible to
organise, then with the help of this clause, the event or program can be
rescheduled. The recent incident being the nearly loss of Rs. 10,000 crores
broadcasting rights sold to Star Sports for broadcasting the IPL because of the
pandemic. As the broadcasters, Star Sports suffered this fear as the BCCI was
exempted from any financial responsibility.
3. Torts: In sports, injuries are can occur while people are
watching an opening ceremony of a tournament, or witnessing a live match in a
stadium. There have been certain incidents where people or fans of a team fell
from a row of a stadium while celebrating, ultimately leading to the death of
such person. Also on the pitch players or sports athletes can attract any kind
of injury when an object is thrown towards them out of anger by a spectator.
Even construction of a stadium have led to several deaths of the workers. In
the latter case, the plea of Volenti Non Fit Injuria[14]
can be applied where the plaintiff was well aware of the risks involved in his
work, and if this point is proven in the court of law, then the defendant can
be released of all the charges pressed against him.
Injuries that come along with sports are of
different nature as per the nature of the sports, and the treatment of such
injuries may take a lot of time for the athlete to get recovered and might be
expensive. Unlike the people present in a field, the person(s) watching them
require safety measures, and the sportsperson or the authority is liable for a
duty of care towards the audience. Liability in torts can be categorised as
follows:
A) Negligence on part of the authority leading to
injury: the law of negligence
of tort law present in sports is prima facie and somewhat identical to the
principle of Lord Atkin’s “neighbourhood test” which was the base of the
landmark judgement of Donoghue vs. Stevenson[15].
To prove that there was negligence involved, it has to be proved that the
defendant had a duty of care towards the plaintiff, and the act of the
defendant has breached such duty, and the breach of duty has led to the injury
of the plaintiff.
B) Vicarious Liability: the principle of vicarious liability is applicable to
players portraying professionalism and states that during the course of
employment, if an employee has caused any kind of harm towards another person
through their act, then the employers can be held responsible for such an act
done y the employee.
Law of torts is not a codified law in India, and
its evolution in the Indian contingent has been from that of the UK Law. Cases
in Indian Tort Law is much lower than the cases registered in the United States
and the UK in the same category of law. In the case of Union Carbide
Corporation[16],
the Supreme Court decided that Section 9 of the Civil Procedure Code, 1908 can
be used to deal with the tort cases in India.
The recent sports developments has made it a bit
difficult to identify an issue or offence as criminal or civil matter.
Furthermore, since the Indian Judiciary system has numerous laws, there are
considerable number of civil and criminal cases, but that cannot be said in the
case of tort law. The incorporation of tort law in relation to any sports
matter has become the need in the recent times for the Indian Judiciary as the
number is starting to rise in this area of law.
The Commonwealth Games 2010 debacle:
For the first time the game’s history, India
hosted the Commonwealth Games in the year 2010. The Games was held in the
capital city of New Delhi with high hopes, but it met with the news of
corruption and mismanagement. The scam of 2010 is considered to be one of the
biggest scams not only in the history of the Games, but also in the Indian
Sporting Industry. It involved an whopping amount of Rs. 70,000 and half of the
amount was used only on the Indian athletes.
Also the Indian athletes were forced by the
authorities to move out of the allocated places to shabby flats. The Central
Vigilance Commission submitted a report revealing that the Director[17]
of the Organising Committee, was involved with Swiss Timings in a contract of
Rs. 141 crore for its time-limiting equipment, which became disproportionate by
an amount of Rs. 95 crore. All the suspects involved in this scam were charged
with criminal conspiracy, theft, etc. and have been charged with some parts of
Corruption Prevention Act.
The Central Bureau of Investigation found Suresh
Kalmadi liable under the Indian Penal Code, 1860, claiming that he was the
principal person behind this scam, along with ten others namely Sheila Dikshit,
many bureaucrats like Lalit Bhanot Darbari, T.S. Darbari, Sanjay
Mahindroo, BS Lalli, M. Jayachandran, businessmen like R.S.P. Sinha, S.M. Talwar,
NK Jain, Jitendra Garg, along with two firms - Swiss Timings and AKR Constructions (based in
the city of Hyderabad).
The Commonwealth Games 2010
would be etched in the minds of many sports loving citizen for the glory[18] it brought to the Indian
sporting industry, but it will also be remembered for its wrongdoings and
mismanagement[19].
It was in the news from the starting, headlining the event in the category of
controversies which still remains unresolved.
Conclusion:
India and its sporting
culture has been one of the talking points over a long period of time, but such
positive talks have always come along with the negativity it carries. The lack
of a proper legal structure in the sporting industry has become the immediate
requirement otherwise, what would it become in the coming days will be
unthinkable for an ordinary person. Sports in India is required to be taught
from the basic level, like the initiation of the Khelo India Youth Games, and
such other programs would act as boost to the sports industry of our country.
References:
[1] The Khelo
India Youth Games was initiated by the Government of India in the year 2017 and
got inaugurated on 31st January, 2018 by Prime Minister Narendra
Modi.
[2] The
recent ranking of the Indian Football Team in FIFA is 106th, while
their lowest ranking back in the year 2015 was 173rd.
[3] Entry
33 of List II (State List), Constitution
of India: Theatres and dramatic performances; cinemas subject to the provisions
of entry 60 of List I; sports, entertainments and amusements.
[4] The
Ministry of Youth Affairs, in the year 1982, was recognized as Department of
Sports; later on 27th May, 2000 it was renamed as the current
agency.
[5] Entry 10
of List I (Union List), Constitution of India: Foreign affairs; all matters
which bring the Union into relation with any foreign country.
[7] India
hosted the Asian Games in the year 1982, where they ranked 5th with
an overall medal tally of 57 which included 13 gold medals, 19 silver medals
and 25 bronze medals. It is considered as one of the best performance of the
Indian Contingent at the Asian Games.
[9] Collective
Bargaining Agreements (CBA) is a written legal contract made between an
employer and the union who is representing the employees.
[10] Article
19(1) of the Indian Constitution expresses the fundamental right to form unions
and associations to deal with the uncertainty of status of workers.
[11] Section
2(h) of the Trade Unions Act, 1926 provides the definition of a Union as: Any
association, whether temporary or permanent, established principally for the
purpose of regulating relations between workers and employers; between workers
and workers, or between employers and employers, or to impose restrictions and
conditions on the conduct of any trade or business if any.
[13] Force
Majeure may be defined as unforeseeable circumstances preventing a person on
fulfilling his part of the contract.
[14] Volenti
Non Fit Injuria: a doctrine stating that if someone places themselves willingly
in a position where they can bring a degree of harm to themselves, then that
party is not liable to bring any claim against the other party in a tort.
[17] Suresh
Kalmadi, Indian politician and senior sports director was arrested by the
Central Bureau of Investigation (CBI) under charges of Criminal Conspiracy
(Section 120B of the Indian Penal Code, 1860) and Cheating (Section 420 of the
Indian Penal Code, 1860)
[18] Indian
Wrestler Geeta Phogat became the first Indian female to win a gold medal in the
Commonwealth Games.
[19] Suresh
Kalmadi was in prison for a period of 10 months and in the year 2019 he was
asked to pay a fee of $5,00,000 as security.
Article Information
Legal Overview And Policy Framework Related To Sports Law In India
Authors: Swastik Banerjee
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/01/19
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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