Sports have today increasingly become more and more a part of everyday life, for millions of people all over the World, be it in terms of participation, performance, sponsorships or viewer ship. Staging of major, international and national events has taken sports governing bodies into the realm of big business and financial management leading to the large scale commercialization of sport and its ultimate transformation from an essentially recreational activity into an activity which is capable of providing livelihood and a means of income to those involved, at various stages. Therefore, if there has to be order and decorum in the sports world, there is an urgent and emerging need to foster a greater understanding amongst all concerned, of the requirements and constraints of the law, relating to sport.
The extent to which the law can and should come to the aid of sports in general and sports persons, organizers and even spectators, in an increasingly complex world of commercial as well as recreational sports is an emerging issue. The world of sports can no longer exist in vaccum, sustained by its own rules and administrative regulations.
Sports belongs to the real world and its rapid development in recent years has made the ignorance of law amongst those at the realm of the decision making processes unacceptable and largely untenable.
While the curtain comes down on the 20th century, organized sports today has now become a part of the larger world culture, dominated by the International Sports Federations.
Sports have traditionally and historically been regarded as a recreational and very private affair between participants and the administration, in the regulation of which the state has had little or no specific role to play. However, it is an activity which has been used in the ancient past as a means of testing strength amongst ancient civilized societies and as a means of entertaining the masses. Though by and large the States, have normally played a very non-interventionist approach to the sports sector and limited their interference. But lately sports have emerged as a potent instrument of public policy and a tool of international diplomacy.
Sports have been an organized activity for a very long time. Olympic games are ancient in their origin. They commenced some 3500 years ago and were named after Olympia in Greece. Played once in every 4 years, but were abolished in 393 A.D. by an ancient Roman Emperor ‘Theodosius’. They were, however revived in the Year 1896 and have been held thereafter, on a regular basis, except during the First and Second World War. It is the biggest International event in which every States athletes and spectators are involved and provides great opportunities, entertainment and added opportunities for amateur sports persons. The Indian participation in the Olympic games dates back to the Year 1900, when a single representative joined the Olympic games at Paris.
The Ministry of Youth Affairs & Sports of the Union Government looks after the development of Sports within the country. The Management, preparation and dynamics of Olympic participation have been entrusted to Indian Olympic Association (IOA). All activities relating to sports are managed and administered by the respective Federation, entrusted with the charge of that particular sport, which has its independent set of rules and operates through selecting committees which are comprised of its members.
The Supreme Court of India in the case of Secretary, Ministry of I &B Vs. Cricket Association of Bengal (1995) 2 SCC 161, while dealing with the issues of telecasting rights of a broadcaster concluded that game of cricket like any other sports events, provides entertainment and providing entertainment is implied in the Freedom of Speech and Expression as guaranteed by Article 19 (1) (a) of the Indian Constitution.
Air Waves constitutes public property and they must be utilized for advancing public good. Their use has to be controlled and regulated by public authorities in the interest of public. The Court finally, held that the Indian Telegraph Act was totally inadequate to govern an important medium like Radio and Television i.e. Broadcasting Media. It is therefore imperative that Parliament makes a law placing the broadcasting media in hands of a Public/ Statutory Corporation following which the Indian Parliament enacted Sports Broadcasting Signals (mandatory Sharing with Prasar Bharati) Act, 2007.
In another leading case, the Constitution Bench of the Supreme Court of India, in another case Zee Telefilms Pvt. Ltd. Vs. Union of India (2005) 4 SCC 649 by a majority of 3:2 came to the conclusion that mere regulatory control whether under a statute or otherwise would not serve to make a sports body like the BCCI ‘State’ within the meaning of Article 12 of the Constitution. As according to the majority view the control over the body in question must be pervasive. However, the minority view held by two Hon’ble Judges was of the view that tests evolved by courts must expand from time to time and development of law had never been a easy task and probably would never be. The minority view also differed from the view held by the courts in England that sports clubs could not be subjected to judicial review. It is interesting hereto refer to the critique of English decisions which were noted by the two learned judges who held the minority view and they refer to it as follows:-
“115. Michael J. Beloff in his article “Pitch, Pool, Rink, Court? Judicial Review in the Sporting World” reported in 1989 Public Law 95 while citing several instances as to when no relief was granted in case of arbitrary action on the part of such strong and essential sports bodies advocated for a judicial review stating:
“… As for the argument that the sports bodies know best, experience may perpetuate, not eliminate error; and Wilberforce, J. indicated in Eastham that the rules of sporting bodies cannot be treated as the Mosaic or Medan law.
It is, I suspect, the floodgates argument that is the unspoken premise of the Vice-Chancellorial observations, the fear that limited court time will be absorbed by a new and elastic category of case with much scope for abusive or captious litigation. It is an argument which intellectually has little to commend it, and pragmatically is usually shown to be ill-founded. For it is often the case that, once the courts have shown the willingness to intervene, the standards of the bodies at risk of their intervention tend to improve. The threat of litigation averts its actuality.
There is therefore no reason why the field of sport cannot define law’s new, or at any rate next, frontier; and if Britain can no longer head the world in sport itself, perhaps it can do so in sporting litigation. Members of the Bar, on your marks!”
Thus sporting bodies in India are not treated at par with ‘State’ and can only operate as private bodies, which are subject to regulations and laws in the same manner as any other private body. It is now important and extremely relevant to refer to the manner in which ,in the international arena, the sports bodies are dealing with the legal and allied issues which arise very often and need a quick dispensation of disputes, where such issues arise out of or in relation to International events and also between sporting nations and which are, today by and large being successfully resolved by Arbitration and ADR mechanisms, either external or within the sporting bodies themselves.
Any bilateral dispute arising between participants in a sport or between a sports party and its commercial partner can be resolved by arbitration before a specialist Institutional Arbitration forum such as the court of arbitration for sports (CAS) or a dispute resolution panel.
CAS was created in 1983 under the auspices of the Olympic movement. Its principal aim being to ‘secure’ the settlement of Sports related disputes. In 1994 the executive and judicial functions of the CAS were separated by the creation of the International Council of Arbitration for Sports (ICAS) which assumed the administrative and financing roles, leaving the CAS to concentrate on its judicial function as a semi- autonomous body. CAS is based in Lausanne, Switzerland having its administrative office in Sydney, North America in New York.
There have been a series of high profile disputes resolved in this manner including various doping decisions made by Ad Hoc Divisions of CAS.
CAS also has a Ad-hoc division which is now a fixture at the Olympic games and certain other major events, providing speedy, onsite- resolution of disputes. The Ad hoc division of CAS sat at the summer Olympics in Atlanta and Sydney, the winter Olympics at Nagano and Salt Lake City, the last commonwealth games in Kuala Lampur and Manchester and the European football championships in Belgium and Netherlands.
Mediation is yet another ADR method, often adopted for settlement of disputes. Key features of Mediation are that it is non- binding, the mediator does not adjudicate the dispute, it is for the parties to adopt a mutually proposed solution and enter into a binding settlement.
It is also interesting to note that the current draft of the world ‘Anti Doping Code’ has replaced IOC code in 2004.
All of the above clearly indicates that sports have changed and with it there is a need to bring about a radical change in the thinking of all those concerned with the conduct and management of sports. A few years ago those who were involved with sports would perhaps be of the view that least interaction between sports and the law would be better. Because the nature of sports, per se and its place in the society and public perception, by and large has undergone a drastic change.
While there are still areas of sporting activity which can be organized by themselves without the help of lawyers or legal institutions, by and large and now virtually in every sporting activity some amount of regulation and legal order has come about and sports are no longer regarded as being an amateur activity. Although amateurs may be participating in them. These are professional or highly commercial operations. The Media also plays a very large role in further magnifying these activities and bringing them to the forefront.
It is on account of such developments and strides made by sports at every level of social and public life that the development and the involvement of law has become an inevitable reality. Although General Principals of Law have remained the same in the field of sport as in the case of any other activity, which gives rise to similar problems, issues and concern areas. But it’s the application of that very law to sports which is slightly peculiar because of the nature of the sporting activities.
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