It is of great concern that after having a vibrant sports culture in India, Sports law never received requisite importance by policy-makers. As a result, despite having many policies for sports regulations, we are unable to control unfair practices and issues which have been creeping in sports. There is a high need to understand and analyze why sports governing authorities are subject to allegations of unfair practices and corruption. More colors are added to this debate by the commercialization of sports. Sports bodies work autonomously, therefore having huge power over the rights and interests of athletes.[i]
This article focuses on the need to establish legal accountability of sporting bodies to control unfair practices and resolve issues plaguing sports, through strong, concrete, and substantive sports law.
Sports- Plagued By Unfair Practices
The history of sports organizations highlights their autonomous status and non-submissions to governmental control.[ii] Furthermore, the commercialization of sports has made it a commodity and hence vulnerable to exploitation. In Zee Telefilms V. Union of India,[iii] Supreme Court stated that Sporting bodies remain unaccountable to the state despite their great national importance. Unaccountability leads to arbitrariness, which in turn gives rise to malpractices, having the potential to devastate the foundation of sports.
The following unfair activities expose the dark side of sports.
· As per the recent studies, of the 2-8% minor age athletes[iv] who have been subjected to sexual abuse,[v] very few have reported the cases to the concerned authorities. This can be largely attributed to the fact that 98% of these cases involved coaches, teachers, and instructors with whom they share a fiduciary relationship.[vi] It's opprobrium that the women athletes who bring national glory and prestige by winning medals, have to silently bear the pain of vile and undignified acts of the people they once trusted the most.
· Spot-fixing and betting are a curse for sports, but sporting bodies have failed to control it. Mukul Mudgal panel[vii](constituted for the investigation of spot-fixing and betting in the IPL), mentioned in its report that measures taken by BCCI to combat fraud and other malpractices are insufficient and unproductive. Establishing accountability for such sporting bodies has become imperative to keep alive the spirit of sports.
· Moreover, Sports have become a tool of exploitation. Illegal termination of contracts, exploitation in the form of poor wages, not revealing records of expenditure, and long working hours are the eye-openers.[viii]Unchecked activities of sporting bodies are largely responsible for it.
· To qualify for participation athletes falsify their birth certificate this is known as age fraud. It needs a regular check at all levels of the sports. According to P.SChandran (Former Director of Sports Authority of India), age fraud after being the criminal offense is rampant due to the complacency of sporting bodies.[ix] Such activities are lowering the standards and ethics of sports.
· Furthermore, sports have never been out of the reach of corruption. Lalit Modi IPL scam for the charges of financial irregularities, Sunanda Pushkar alleged to have received $15 million from the franchise, corruption scandal of Women’s Hockey World cup and many more incidents are the testimonies of the fact.[x]It is appalling to see such a great magnitude of corruption in the country where Sports is followed as a religion. Streamlining sports to control poor sports governance through a strong framework remains the only recourse.
Judicial Review- An Effective Resort?
The only resort for the aforesaid unfair activities is judicial review. The unfair and arbitrary act of Sporting bodies including inter-alia discrimination among players in the selection process, providing unequal opportunities, and arbitrary termination of the contract for inducting players in the team are in contravention of fundamental rights under Article 14[xi](Equality before law), 15[xii] (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 16[xiii] (Equality of opportunity in matters of public employment). However, in the case of Zee Telefilms[xiv], the apex court concluded that sports bodies such as BCCI are not “State”. It means fundamental rights cannot be imposed under Article 32[xv] against it. Although, it carried out “public function” and thereforesubjected to judicial review under Article 226.[xvi]
As Sports require speedy delivery of the decisions, the Indian judicial system failed to cater to the need of sports due to the delays it accompanies. In Kirandeep v. Chandigarh Rowing Association,[xvii] Court established the duty of selectors and sports authorities to ensure complete fairness and equality in the selection process without any sort of discrimination and to act with utmost sincerity. The court decided on a very pertinent issue of malpractices in the selection process, but it proved futile for the athlete as it was too late to receive any real relief.[xviii]Career in sports involves limited time and athletes cannot afford time for litigation. Their career will come to an end if courts will take years to decide the case. Age factor is an important determinant in the sports profession, as it majorly requires physical strength and young age.
Moreover, judges are not specialized in the field of sports law which requires a complex knowledge of rules, technicalities, and nuances in the field of various sports. This can impact the decisions they are rendering.
Are present sports law regulations sufficient?
a) Sports Law Policies
National Sports Policy 2001[xix] and National Sports Development Code 2011[xx] are the two main Sports law policies in India. National Sports Policy 2001 aims at excelling in sports at the National and Global level by collaborating with the State Government and other sports agencies. The National Sports Development Code 2011 is the amalgamation of various Government orders/circulars. It aims to improve the standards of sports.
b) National Sports Organizations
The Sports Authority of India (apex national sports body) is responsiblefor the broad basing and promotion of sports and games.[xxi] It coordinates sporting activities in India. It promotes supportive measures such as Scholarship schemes, Academic programs, etc. The Sports Law and Welfare Association of India[xxii] is a national non-profit and professional organization that brings sports and legal persons together.[xxiii] It carries consultancy work with different organizations.
It can be deduced that there is no single, strong, and concrete sports law regulation that can govern the whole of India. Despite having sports law policies, we are yet to see its proper execution and aimed future results. These regulations pose a crucial question as to why the sporting world is still plagued by unfair activities. These policies failed to regulate and check the activities of sporting bodies.
Attaining Gender Equality through Title ix of the US, 1972 Act[xxiv]
Title IX of the US, 1972 Act needs special mention, under which US Sporting bodies are obliged to prohibit gender discrimination among athletes, under the sports laws obligations together with ensuring equal representation of both the gender to achieve gender equality.
Federally funded schools are obliged to give equal access to facilities and resources to women. Courts check whether the school accommodates the interest of underrepresented sex. If not, the court will charge the school guilty of the violation of the provision of Title IX.[xxv]
As a result, the US achieved tremendous success in elevating the number of females in sports, such a huge that the female US Olympians surpassed male US Olympians along with remarkably earning more medals in women's sports than men.[xxvi] It is an acute need in India that the court should intervene and ensure women's participation. This can help India to attain gender equality in sports which still is a distant dream. Moreover, it will increase the participation of women in sports and give impetus to women’s sports which generally face little attention and differential media coverage.
Need to Change Constitutional Framework of Sports
Sports is listed in the State list under entry 33 of the 7th schedule of the Constitution of India.[xxvii] Constitution provides limited scope for Central Government to boost sports policies, by leaving the responsibility on states. Many states were unable to afford resources for sports development resulting in poor infrastructure, uneven growth of sports across India, and a lack of essential facilities.[xxviii]
In the Zee Telefilms case[xxix],the apex court stated that Sports is considered to be a part of education.
"The quality and character of a sport larger recognized as a measure of education and National building cannot be confused with an event that may be a form of entertainment."[xxx]
Surprisingly when "Education" is in the Concurrent list (where both Central and state government contribute), why Sports which is considered to be a part of education not included in the same list?