A. INTRODUCTION:
Sports activities were invented by the man as a means to meet socially with others, to display skills and physical prowess and to entertain and has now become an integral part of human life since the time immemorial and necessary component of human development, good health, and the spirit of friendly competition.
Sport is a State function in India in terms of Entry 33 of List II and Entry 10 and 13 of the Seventh Schedule under The Constitution of India, 1950. Although there are few policies and regulatory authorities in relation to various types of sorts, which would be briefed later, there is no stringent comprehensive law enforced in India to govern and regulate sports in India.
B. REGULATORY FRAMEWORK:
1. National Sports Policy 1984/2001 (“NPS”):
The NPS, which has been approved by the Union Cabinet, puts the Central Government, in conjunction with the State Governments, the Indian Olympic Association (IOA) and the National Sports Federations to “concertedly pursue the twin objectives of broad-basing sports, and achieving excellence in sports”. Although NPS was bought in the year 1984, in 2001, it was realized that the NPS required heavy modifications to fulfil the requirements, therefore, NPS was modified to incorporate the following:
a. Procedures to be ordered down for autonomous bodies and federations for creating government aid and help obtainable.
b. Define the responsibilities of various agencies for endeavour and promoting sports.
c. Identify the sports federations with coverage eligibility under the set guidelines.
2. National Sports Development Code of India, 2011 (“NSDCI”):
The NSDCI is framed by the Ministry of Youth Affairs and Sports (“Ministry”) with the following main objectives:
a. To define the areas of responsibility of the various agencies involved in the promotion and development of sports[1];
b. To identify NSFs eligible for coverage under these guidelines, to set priorities, and to detail the procedures to be followed by the Federations, to avail of Government sponsorship and assistance[2];
c. To state the conditions for eligibility to receive government recognition and grant[3].
The NSDCI has categorised sports based on the performance of disciplines in recognized international events like Olympic/Asian and Commonwealth Games, etc. so as to motivate recognized NSFs for better preparedness. Further, the NSDCI has set guidelines[4] to recognize federations who may be eligible for government assistance.
The NSDCI further permits financial assistance to appoint coaching camps, purchase of equipment, complete costs incurred for participation in international competitions, including air cost and costs of boarding and lodging, based on the categories[5].
The NSDCI further allows financial assistance to NSFs for appointing coaches, may it be a foreign coach and meet his/her salary and other expenditure[6]. Further, the NSDCI lays down the scale of financial assistance to be provided to the NSFs for organizing sports events in India, based on the categories, for both at the national level[7] as well as an international level[8]. The NSDCI further recognizes to provide assistance to SAI/ NSFs for meeting expenses on local hospitality of foreign teams visiting India under Cultural exchange Programme on quid-pro-quo basis i.e. similar facilities being extended to Indian teams while visiting the said country[9].
The NSDCI further guides SAI and NSFs to judicious manner to select players for the team and appointment of selection committee members. It further gives the Ministry, the right to intervene and monitor the activities of such selection committee and SAI/NSFs with regard to the sports where the Government has funded by appointing an Observer[10].
The NSDCI further lays down guidelines in relation to the protection of sportspersons’ interests and their welfare, and for the quick and impartial redressal of their grievances[11], international events conducted in India are properly and professionally managed, so that India develops a credible image abroad as a reliable venue to host and hold such tournaments[12], the appointment of registered chattered accountants and submission of annual audited statement of account for all Federations receiving grants[13] plans for broadcasting the sports events[14], special training for athletes[15], upgrading officiating standards and transparency in the practices of SAI/NSFs.
3. World Anti-Doping Code, 2015 (“WAD”)
NSDCI mandates all NSFs to abide by the provisions of WAD[16]. The National Anti-Doping Agency(“NADA”), governed by the Ministry, is the national organization responsible for promoting, coordinating, and monitoring the doping control program in sports in all its forms in the country. NADA works towards a vision of ’dope free’ sport in India.
WAD harmonizes regulations regarding anti-doping in sport across all sports and all countries of the world. It provides a framework for anti-doping policies, rules, and regulations for sports organizations and public authorities so that there may be a level playing field for all athletes worldwide. WAD mandates the athletes that they shall be free from all Prohibited Substances before or during participating in sports events. Further, World Anti-Doping Agency (“WADA”) is invested with the powers to investigate the consumption of Prohibited Substance in an athlete’s body in international level, and by virtue of the same, NADA is formed for the same purpose in national level. NADA, in compliance with WADA, issues the list of Prohibited Substances[17] that the athletes are prohibited to consume. India has, ipso facto, adopted WAD and has mandated all its athletes to abide by the provisions of the same. The athletes shall personally ensure that no prohibited substance shall enter in his/her body[18] and shall be open to provide samples to WADA/NADA as the case may be. WAD further prohibits the athletes and lays down provisions in relation to the consequence of evading or tampering with the samples collected for testing and investigations by WADA/NADA, as the case may be.
4. International Standard for the Protection of Privacy and Personal Information (“ISPPI”):
ISPPI is framed to ensure that Anti-Doping Organizations (“ADO”) apply appropriate, sufficient and effective privacy protections to the Personal Information they process when conducting anti-doping programs. ISPPI lays down the procedure that all anti-doping organizations, including WADA/NADA, shall follow in relation to the handling of the personal information, complaints about possible doping, violations of the provisions of WAD[19]. When any violation of the provision of WAD is reported to the federation/management, a notice is sent to the concerned athlete against whom the report has been made[20]. Simultaneously, the management is responsible to report the complaint/issue to all ADOs, such as WADA, NADA or any other ADO as the case may be[21], with all relevant information[22], such as the name of the athlete, country, sport, date of sample collection, results, etc. These complaints/results are prohibited to be disclosed to any person beyond the ones who need to know until the ADO with results management responsibility has made Public Disclosure or has failed to make Public Disclosure[23]. Further, the ADOs are strictly prohibited to publicly comment on the specific facts of any pending case (as opposed to a general description of process and science) except in response to public comments attributed to the athlete, other person or their representatives[24].
The identity of any athlete or other Person who is asserted by an ADO to have committed an anti-doping rule violation may be publicly disclosed by the ADO with results management responsibility only after notice has been provided to the Athlete or other Person in accordance to the procedure mentioned herein-above[25]. Such ADOs are obligated to publically publish the disposition of the anti-doping matter including the sport, the anti-doping rule violated, the name of the athlete or other person committing the violation, the Prohibited Substance or Prohibited Method involved and the Consequences imposed, within a period of twenty (20) days from the date of final decision, unless the same is challenged before appropriate forum by the aggrieved party[26]. However, in the event where it is determined, after a hearing or appeal, that the athlete or other person did not commit a WAD violation, the decision may be publicly disclosed only with the consent of the athlete or other person who is the subject of the decision.
5. Sports Authority of India Service Bye-Laws and Conditions of Service Regulations, 1992 (“SAIR”):
Sports Authority of India (“SAI”) provides the necessary support to NSF for the identification, training and coaching of sportspersons, including the provision of infrastructure, equipment and such other assistance as may be agreed to under the long term development plans. Further SAI is also responsible to release funds to NSFs against proposals approved by the Government.
SAIR applies to all the employees for whom the SAI is the appointing authority except the Director-General, SAI and Secretary, SAI[27]. SAIR basically lays down the methods of recruitment and selection of sports staffs, their eligibility criteria for promotion[28], allowances[29] and termination of services[30]. SAIR has adopted the provisions of Central Civil Services (Leave) Rules, 1972[31] for laying down the rules in relation to leaves of the employees and the provisions of Central Services (Medical Attendance) Rules,1944[32] for laying down rules for providing medical facilities to them.
6. Intellectual Property Rights (“IPR”):
Apart from easing the way for protection of Intellectual property such as patents, copyrights, trademarks, designs around the world, WIPO works to ensure that the benefit of the sports industry is spread wide and deep. IPRs such as copyrights, trademarks, and designs became a source of significant value to the sporting arena. The Trade Marks Act, 1999 protects registered marks such as names, logos, brands of the event and each individual team or franchise. The Designs Act, 2000, provides protection for merchandise, equipment, footwear and apparel. The Copyright Act, 1957 provides registration for original literary, dramatic, musical and artistic works, cinematographic films and sound recordings. In addition, it provides for broadcasting and performers’ rights. Copyright also exists, with respect to sports, in recorded visual images or commentaries of sports events, and photographs of events.
a. The Broadcasting Laws:
Broadcast means communication to the public through wired or by any means of wireless diffusion. It also includes a re-broadcast[33], where performance which is in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers[34].
The broadcasting right is an independent subject-matter therefore the broadcasting authorities should obtain a license from the owners of the copyrighted content before broadcasting the work. Broadcasting without consent of the owner amounts to infringement under Section 51 of the Copyright Act, 1957.
Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act, 2007 (“SBSA”) mandates all contents rights owner to share broadcast signals of sporting events of national importance without its advertisements with the Prasar Bharti to enable them to re-transmit the same on its terrestrial networks and DTH networks. The said law was enacted in order to provide access to a large number of viewers access national importance sporting events[35]. The broadcasters of ‘sporting events of national importance’ must share the feed of the broadcast with Prasar Bharati free of all forms of digital commercial inserts such as advertisements, sponsor logos and credits[36]. The Ministry of Information & Broadcasting in consultation with the Ministry of Youth Affairs and Sports and Prasar Bharti determines and notifies a list of sporting events of national importance. As per the afore-mentioned Government’s notification, the said term also covers certain matches irrespective of the participation of the Indian team. This is not just restricted to the sport of cricket but other sports such as Tennis, Football, Olympics, Asian Games, Commonwealth Games, etc. as well[37].
The non-compliance of the aforesaid law by the content owner shall invite penalties, including suspension or revocation of license, permission or registration for such violation, however, the amount of pecuniary penalty shall not exceed one crore rupees[38].
b. Live Screening:
Section 65B of the Copyright Act, 1957 prohibits any person who knowingly distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or performance knowing that electronic rights management information has been removed or altered without authority shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.
Keeping the aforementioned provision in view, the Delhi High Court granted an injunction against websites hosting, broadcasting and transmitting infringing content, the exclusive rights of which belonged to the plaintiff[39]
7. Competition Law:
The Competition Act, 2002 (“Competition Act”) bears zero level tolerance towards activities such as-
- Obtaining an undue advantage of dominance[40]
- Secretly conspiring business activities and anti-competitive agreements[41]
- Cartelization in business practices as well as in the process of bidding[42]
Although most of the NSFs operate with the objective to foster participation and promote sports, however, if such NSFs’ activities and practices have a revenue aspect to it, the NSFs would conveniently fall within the scope of economic activities, and therefore the provisions of the Competition Act would be applicable to such NSFs[43].
In the afore-mentioned case law, the CCI further tested if the NSF enjoys a dominant position in the market. It was observed that when an NSF is a sole regulatory body of particular sports and has the power to take all decision in relation to the same, the NSF is called to be in a dominant position, however, having a dominant position in a market is not unlawful but abusing the dominant position is illegal and in contravention to the provisions of the Competition Act. Being in a dominant position, if any NSF or organization enters into any covenant/agreement which is anti-competitive in nature or misuses its power by involving itself into cartelization/price-fixing which results to the adverse effect of the competition in the market, the provisions of the Competition Act would be attracted. Taking the same view, the CCI concluded that the BCCI had used its dominant position in the market to sabotage the Indian Cricket League (‘ICL’), depriving it of infrastructure and suspending players who participated in the ICL from its activities. This according to the CCI amounted to an abuse of dominant position. The CCI ruled that the BCCI had abused its dominant position in the relevant market and slapped a fine of Rs 52.24 crores.
8. Labour Laws:
It is pertinent to observe that all NSFs, organizations, etc. hire employees to fulfil their obligations or rather operate to achieve their objectives. All such NSFs/organizations are required to abide by all the applicable labour laws enforced in India. You may visit https://samistilegal.in/labour-laws-and-its-applicability-in-india/ for a detailed article on applicable labour laws in India.
9. NSFs specific Rules:
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. They consider the players for participation and selection in line of rules and guidelines laid down by the Ministry and SAI. These bodies also give telecasting and broadcasting rights to the successful bidder for hefty sums and also earn revenues from advertisement in sports events. They also take disciplinary action against the erring players including debarring them from the game. These bodies control even domestic matches or games within the country. Some of the NSFs are:
| Sl. No. | Name of NSFs | Sport |
| 1 | Indian Hockey Federation | Hockey |
| 2 | All India Chess Federation | Chess |
| 3 | Board of Control for Cricket in India | Cricket |
| 4 | All India Tennis Association | Tennis |
| 5 | Amateur Kabaddi Federation of India | Kabaddi |
| 6 | Wrestling Federation of India | Wrestling |
Although most of the NSFs are governed by SAI, Board of Control for Cricket in India (“BCCI”) is not governed by SAI or the Ministry. BCCI is an autonomous body which is registered under the Societies Act way back in 1928 and till date does not avail any grant from the Government/Ministry. Further, it is settled in the case of Zee Telefilms Ltd. & Anr vs Union Of India & Ors.[44], that BCCI is:
- Not created by any statute;
- No part of the share capital of the Board is held by the Government;
- Practically no financial assistance is given by the Government to meet the whole or entire expenditure of the Board;
- Does enjoy a monopoly status in the field of cricket but such status is not State conferred or State protected;
- There is no existence of deep and pervasive State control. The control if any is only regulatory in nature as applicable to other similar bodies. This control is not specifically exercised under any special statute applicable to the BCCI. All functions of the BCCI are not public functions nor are they closely related to governmental functions;
- Not created by the transfer of a Government-owned corporation and it is an autonomous body.
Further, the Hon’ble Supreme Court, in the afore-mentioned case law, held that even if BCCI selects a team to represent India in international matches, makes rules that govern the activities of the cricket players, umpires and other persons involved in the activities of cricket does not in the nature of State functions for the reason that the Government has not appointed/chooses BCCI to perform the afore-mentioned duties nor it has authorised BCCI to carry out the functions under any law or contract but has chosen to leave the activities of cricket to be controlled by private bodies, therefore, concluded that when the actions of the BCCI are not actions as an authorised representative of the State, it cannot be said that BCCI is discharging State functions.
C. DISPUTE RESOLUTION:
In the international level, any dispute regarding any sport is being taken up by the Court of Arbitration for Sport (CAS) which is an international quasi-judicial body which is established at Switzerland as a headquarter and the courts at Switzerland, New York and Sydney to settle disputes related to sport through arbitration. Generally, a dispute may be submitted to the CAS only if there is an arbitration agreement between the parties which specifies recourse to the CAS. However, according to rule 61 of the Olympic Charter, all disputes in connection with the Olympic Games can only be submitted to CAS, and all Olympic International Federations (IF) have recognised the jurisdiction of CAS for at least some disputes. Through compliance with the 2009 World Anti-Doping Code, all signatories, including all Olympic International Federations and National Olympic Committees, have recognised the jurisdiction of CAS for anti-doping rule violations.
In India, most sports disputes in India are heard and settled by following the guidelines and procedures which are laid down in the rule book of the NSFs. These organizations have their own dispute resolution mechanism enshrined in their constitution, which is used to decide such disputes. There is no uniformity in this method of resolving disputes. There is a need to bring a change in this regard considering the increase of sports-related disputes over the years. Bringing about a uniform mode to resolve these disputes by way of dedicated tribunal or forum can introduce a positive change. However, post-hearing and adjudication of Rajiv Dutta vs. Union of India[45], the Ministry has released a guideline “Safeguarding the interests of sportspersons and provision of effective Grievance Redressal System in the Constitution of National Sports Federations”[46] to ensure that they establish an effective, transparent and fair “Grievance Redressal System” (i.e. dispute resolution system) to safeguard the interests of sportspersons and include within their constitution the right for aggrieved sportspersons to appeal their case to CAS.
D. CONCLUSION:
Sport is the soul of India. This soul needs to protected and let it to be pure. It’s high for the Government to make comprehensive legislation to ensure accountability and transparency of different sports federations, thereby attempting to ameliorate the sporting environment with the aid of the law.
Authors: Prashant Jain, Co-Founder & Partner; Abhishek Gupta, Associate.
Disclaimer: The content of this article is intended to provide a general guide to the subject matter. For any queries, the authors can be reached at (i) prashant@samistilegal.in (ii) abhishek@samistilegal.in.
Updated as on April 25, 2020
Image generation credits: https://www.canva.com/templates/
References:
[1] Rule 6 of NSDCI
[2] Rule 7 of the NSDCI
[3] Rule 9 of the NSDCI.
[4] Rule 8.3 of the NSDCI
[5] Rule 10.4.3 of the NSDCI
[6] Rule 10.7.1 of the NSDCI
[7] Rule 10.8 of NSDCI
[8] Rule 10.9 of NSDCI
[9] Rule 11 of the NSDCI
[10] Rule 13 of the NSDCI
[11] Rule 15.1 (a) of the NSDCI
[12] Rule 15.1 (b) of the NSDCI
[13] Rule 15.1 (e) of the NSDCI
[14] Rule 15.1 (g) of the NSDCI
[15] Rule 15.1 (h) of the NSDCi
[16] Rule 3.21 of the NSDCI
[17] https://www.nadaindia.org/upload_file/document/1576049703.pdf
[18] Article 2.1.1 of WAD
[19] Article 14 of ISPPI
[20] Article 14.1.1 of ISPPI
[21] Article 14.1.2 of ISPPI
[22] Article 14.1.3 of ISPPI
[23] Article 14.1.5 of ISPPI
[24] Article 14.3.5 of ISPPI
[25] Article 14.3 of ISPPI
[26] Article 14.3.2 of ISPPI
[27] Rule 2 of SAIR
[28] Rule 13 of SAIR
[29] Rule 29 to 34 of SAIR
[30] Rule 21 of SAIR
[31] Rule 36 of SAIR
[32] Rule 35 (b) of SAIR
[33] Section 2(d)(d) of the Copyright Act
[34] Section 2 (q) of the Copyright Act
[35] Section 3 of SBSA
[36] Star Sports India Private Limited vs. Prasar Bharati and Ors, CIVIL APPEAL NO.5252 OF 2016, Supreme Court of India
[37] https://mib.gov.in/sites/default/files/Notification_dated_27.1.2017.pdf
[38] Section 4 of SBSA
[39] Star India Pvt. Ltd. & Anr. v. Haneeth Ujwal & Ors., CS(OS) 2243/2014
[40] Section 4 of Competition Act, 2002
[41] Section 3 of Competition Act, 2002
[42] Section 3 of Competition Act, 2002
[43] Sh.Surinder Singh Barmi v. BCCI, Case No 61/2010, (Competition Commission of India, 08/02/203)
[44] 2 February, 2005; Writ Petition (civil) 541 of 2004
[45] WP(C) 8734/2014
