The history of modern-day sports has evolved from a mode of amusement to course of sheer competition. Having an influence upon culture, businesses and politics quite naturally Sports have had impacted the legal industry to a great extent. The recently concluded summer Olympic Games in Tokyo’s has seen the medal tally soaring to highest in history of our country.
The Sports Law and Welfare Association of India (“SLAWIN”), defines it as “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”.
It is vital to note that even though sports laws come under intra-federation jurisdiction, Entry 33 in the Seventh Schedule of the Constitution of India gives power to 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 states that have functional sports laws at present.
The National Institute of Sports (“NIS”) (Presently Netaji Subhas National Institute of Sports (“NSNIS”) was established on 7th May, 1961. And subsequently The Ministry of Youth Affairs and Sports established a national sports body, the Sports Authority of India (“SAI”) on January 25, 1984 for development of Sports in India. The first National Sports Policy, 2001 (“NSP”) was first formulated by the Ministry of Youth Affairs and Sports August, 1984. Having recognised sports as a source of national pride amongst generations, the Central Government, in conjunction with the State Government, the Olympic Association (IOA) and the National Sports Federation brought into place the NSP to chase after the twin objectives of broad-basing of sports and achieve excellence at the national and international levels. As an extension to this policy, the National Sports Federations (“NSFs”) were created as autonomous bodies to collaborate with the IOA to demonstrate achievement of goals and ensure tangible progress in this field.
Thanking it further to settle the aspect of broadcasting of matches the Sports Broadcasting Signal Act, 2007 was also enacted.
Owing to the commercialisation of sports, the economic dimension of sports has paved the way of immense growth for nations in this sector. Statistically speaking, it is a multi-billion-dollar industry with a high global worth.
Since the regulation of sports has so far been largely internal, the bodies that possess institutional structures enjoy autonomy with reference to deciding the principles of the particular sport they govern while taking care of licensing of playing facilities, employment generation and management, commercial transactions, regulation of cheating and corruption etc. Therefore, the question as to whether there must be government intervention in regulation of sports becomes extremely crucial. Having mentioned the autonomy of sports institutions like Hockey India and Board of Control for Cricket in India (BCCI), it is important to mention that such autonomy is not absolute due to its inclusion in the Seventh Schedule of the Constitution of India. Further, these bodies that are registered either as societies or associations come under the jurisdiction of different states. Therefore, it is right to say that they may be made to fall within the jurisdiction of states.
The judgment of Zee Telefilms Ltd. v. Union of India & Ors.1 is referred to as one of the most important judgments in explaining the role of law in the arena of sports laws. The judgment while dealing with the main issue of deciding whether BCCI can be said to be state under Article 12 or not lays down that while issuing guidelines, the Ministry of Youth Affairs and Sports, Government of India attaches considerable importance to development of sports in general and achieving excellence in the Olympics and other international events in particular which can be seen by the support of the Government to the NSFs in the matter of development of specific games/sports discipline.
Besides the above, the Supreme Court in K. Murugan v. Fencing Association of India Jabalpur discussed the importance of sports in India. In fact, the validity of National Sports Development Code, 2011 that governs the NSFs in India was upheld by the Delhi High Court in Indian Olympic Association v. Union of India.
There are two draft central bills pending for promulgation. Firstly, the National Sports Development Bill, 2013 that seeks to promote and develop sports and welfare measures for sportspersons, promotion of ethical practices in sports (including elimination of doping practices, fraud of age and sexual harassment of women in sports, constituting and establishing bodies to deal with Sports disputes, ethics and Athlete’s representation. And Secondly, The Prevention of Sporting Fraud Bill, 2013 which seeks to criminalise the offence of ‘sporting fraud’ for cleansing of sports in the country. if promulgated would lay down further clear laws in support of sports in India.
Furthermore, The National Sports Ethics Commission Bill 2016 had also received the President’s assent to be tabled in the parliament in order to provide for constitution of National Sports Ethics Commission to ensure ethical practices and fair play in sports including elimination of doping practices, match fixing, fraud of age and sexual harassment of women in sports. It also seeks to define offences of ‘sports fraud’ and penalties.
Sports laws encompasses a variety of legal subjects including intellectual property law, contract laws, tort laws, sex discrimination, constitutional laws, criminal and tax issues, cheating and fraud, sexual exploitation, competition law, sports medicine etc.
All professional teams participating in a sports event, both nationally and internationally promotes their trademark for brand recognition. Trademark infringement can be a tricky area of sports law as merchandising is extremely critical for a sports team. The practise of ambush marketing also poses a serious threat to intellectual property.
This involves but not limited to the sale of media rights with event managers, broadcasters and promoters in sports competitions, sponsorship rights, participation rights and obligation in major events, player agent relationship, management contracts between athletes and managers, membership rights in sporting clubs and organisations, eligibility of a sports person to compete in an event, endorsement and merchandising agreements, advertising contracts, brand product agreements, manufacturing of supplements and other products used in sports, appearance contracts in public events of organisations, agreements with hotels for accommodation and lodging.
The case of Percept D’Mark (India) Pvt. Ltd. vs. Zaheer Khan & Another is a case which broadened the scope of sports players in relation to brand and business endorsement control agreements. It also laid down emphasis on the concept of agent and principal relationship within the periphery of sports law.
Every sport brings along with it risks involved both for participants as well as spectators. This is covered under the principle of Volenti non fit injuria that is commonly referred to as the common law doctrine of volenti as the assumption of risk doctrine. The doctrine establishes the common understanding that a sportsperson as well as a spectator would know the risks of injury involved when he puts himself within the physical proximity where such sport is occurring. The doctrine is based on knowledge, comprehension, appreciation of risk and consent which can be both implied or expressed as per Lord Denning. This principle tested in light of the modern sports can give rise to tortuous liabilities.
Criminal law is certainly a factor to be considered in sports. While cheating, fraud, gender discrimination and sexual exploitation have become part and parcels of the sports industry, it is needless to state that it encompasses sports laws as much as touches upon other sectors. Bribery, influence of organised crimes in sports is have also been found to be part of the industry where the criminal laws are applicable.
Sexual exploitation and gender discrimination are crimes that violate the fundamental rights of individuals and can be categorised as heinous depending upon the gravity of the case.
It revolves around the corruption that takes place in an event of sport. Betting, gambling and match fixing are few factors contributing particularly to this corruption. So many events of sports, big or small, has been and is continued to be subject to betting and match fixing.
When betting leads to match fixing, it becomes all the more problematic. This has led to development of profit-making industries that indirectly regulate sports while defeating the main essence of having a sport. Betting, as defined by the Oxford Dictionary, means an act of gambling money in the outcome of a race, game, or other unpredictable event. However, the same dictionary defines match fixing as an act or practice of dishonestly determining the outcome of a match before it is played. Both these activities are distinguished on the basis of determination of outcome of a match. Betting being illegal is a debatable issue however, match fixing remains illegal and unethical from its very inception.
Abuse of dominant position, a legal provision laid down in Section 4 of the Competition Act, 2002 was triggered in 2017 when the Competition Commission of India imposed a fine of Rs. 52.24 crores upon the BCCI for indulging into anti-competitive practices. This case of Surinder Singh Barmi v. The Board of Control for Cricket in India2 had also defined BCCI as an ‘enterprise’ under the Act which is why the said law could govern the sports body.
In the landmark judgment of Hemant Sharma and Ors. V. Union of India and Ors.,3 All India Chess Federation was also considered to be an enterprise. This means that the interface between sports and competition laws is such that sports governing enterprises or entities are considered to be business establishments with reference to their entrepreneurial conduct as they are bodies engaged in income generating economic activities such as organising sports events involving awarding media rights and selling tickets. Therefore, these sports institutions are well within the jurisdiction of the Competition Commission of India and the competition laws govern them under all circumstances.
Sports medicine is a branch of medicine that deals with physical fitness and treatment of prevention of injuries related to sports and exercise. Sports medicine in India started developing in the 1970s with the establishment of Indian Association of Sports Medicine in 1971 at NSNIS, Patiala.
The major issue in this regard is doping by athletes being so prevalent since decades. Despite the noted and visible improvements of countless athletes, the adverse health effects these drugs have on the athletes has never gone unmentioned due to which the International Olympic Committee (“IOC”) banned doping in 1967 and led the initiative to form World Anti- Doping Agency (“WADA”). The main activities of WADA include education of health risks of doping, scientific research of doping practices, development of anti- doping capabilities and development of testing methods for doping detection.
National Anti-Doping Agency (“NADA”) was established by the Indian Government as a registered Society in 2004 under the Societies Registration Act XXI 1860 with an objective to act as a National Anti- doping Organisation for India. It deems doping as being ‘fundamentally contrary to the spirit of sports.
Nonetheless, doping still constitutes a part of the sporting industry. Consequently, and naturally, legal problems occur in sports medicine just as much as it occurs in other domains. While consent given by athletes during dire situations to indulge into activities like doping may seem invalid, it cannot render existing laws in this regard redundant. Therefore, the need of the hour is to impart proper sports medicine education and to have in place stricter norms and regulations that can fall into alignment with the best interests of athletes and sports doctors so that the expectations resulting from sports ethics can be lived upto.
With the success of alternate dispute resolution across sectors, an ADR mechanism is seen as a viable means of giving rise to a whole new niche of sports arbitration as such mechanisms are already in place in Canada, Australia and Ireland. The reasons that shift the focus on Dispute Resolution Bodies in this industry is because they are specialised enough to handle such disputes and would take the burden off Indian judiciary due to dearth of sports litigation. The ADR process gives parties due time to obtain hearing and resolve the disputes successfully.
The sports law in India is an emerging and evolving subject, while much to be achieved, still we can safely say that we are in the right track.
Tags: S. Jalan & Co.
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