Ten reforms for transformation of Indian sports

SLPC

The report “Ten Reforms Indian Sports Administrators Need” is compiled by the Sports Law and Policy Centre, Bengaluru, in association with GoSports Foundation.

Abhinav Bidra, India’s lone Individual Olympic gold medallist, in his forward note has said that “this document would be a valuable resource for the Sports Ministry and the government, who are the best placed to take these reforms forward, these are issues sports administrators, lawyers, journalists and even former athletes like me have grappled with and would like to see addressed.

“The SLPC Team and I believe that the immediate implementation of the 10 reforms recommended in this document will ensure that sport in India is more professionally organised. I hope this document will spark discussion and, more importantly, action.”

The study – bracketing the proposed reforms in five segments, namely Structural, Integrity, Representation, Federation’s Powers and Funding – points out the factors ailing Indian sports and needs to transform India’s sporting scenario.

InsideSport brings to its readers a brief note on the 59-page report.

1. Include Sports As A Subject in Concurrent List

The report rightly points out that ‘the Sports in India have historically been clubbed with entertainment and amusement. It has traditionally been viewed as a recreational activity rather than a profession.

The study while referring to the Draft Comprehensive Sports Policy, 2007, an State List of Seventh Schedule of the Constitution, that how sports in India is traditionally viewed as a recreational activity rather than a profession. It also refers to various recommendations to transfer sport to the concurrent list since 1988.

The report points out that various rules are used to recognise participation by India in international sporting events but these cannot be used for implementing widespread reforms in sporting structures. The failure of the Centre to reach a consensus with the States is attributed as the main reason for not achieving the desired results.

To produce Olympic champions, host quality international sporting events and run professional sporting leagues, it is critical to organise, fund and regulate sporting structures in a coordinated and unified manner while factoring geographic diversity.

The report recommends that “it is imperative that, as a first step towards major sports law and policy reform in India, we include ‘sport’ as a subject under the concurrent list allowing both the centre and the state to have the power to legislate on sport.”

The report also recommends steps to include Sports in the Concurrent list.

2. Constitute An Independent Regulator For Sport

There is no clear demarcation between a federation’s regulatory and commercial powers, report observes

The study also takes a dig at sports federations’ powers sans responsibility. “In India, sports federations have historically enjoyed more or less unbridled powers. They function autonomously and operate as effective monopolies with few checks and balances on the exercise of their power. There is also no clear demarcation between a federation’s regulatory and commercial powers. As a result, most federations in India suffer from one or more serious integrity issues such as conflict of interest, lack of transparency, financial mismanagement, lack of accountability, lack of standard processes for election and appointment of members, lack of governance standards etc.

The establishment of a Sports Regulatory Authority was first mentioned in the Draft Comprehensive Sports Policy, 2007. One of the reasons it was mooted was to improve coordination and cooperation between the Sports Ministry, NSFs, Indian Olympic Association and the Sports Authority of India.However, the Policy was later shelved.

India is currently lagging behind other countries such as the UK, Australia and Italy all of which have some form of regulatory mechanism in place, study observes.

The report recommends an “independent sports regulator, instituted under legislation, along the lines of the Securities Exchange Board of India (“SEBI”) or the Telecom Regulatory Authority of India (“TRAI”) must be established. This could be known as the Sports Regulatory Authority of India. This will ensure that federations remain independent in their functioning subject to supervision by an independent regulator who is not affiliated to the government which remains the primary funder of these organisations.”

3. Create a Sports Election Commission

In India, most sports federations are registered as societies with little or no oversight by the Registrar of Societies. There is an urgent need to streamline the process for appointment of members and office bearers to sports federations, observes the report while recommending the need to have an election-commission like independent body for NSFs.

“Unlike India, sports federations in countries such as Australia and UK are incorporated as body corporates and are required to adhere to strict corporate governance standards. In India, most sports federations are registered as societies with little to no oversight by the Registrar of Societies. Therefore, disclosure requirements in relation to a federation’s constitutional documents, composition of its office bearers, appointment of a nomination committee, appointment of an audit committee, disclosure of financial statements, submissions of an annual report are not de rigueur.

“As a result, sports federations in India function with little accountability. One of the key areas this impacts is composition of members.”

It strongly recommends setting up a Sports Election Commission, which may be headed by one of the former election commissioners of India.

4. Constitute a Sports Tribunal to Resolve Sports Related Disputes

In most cases, the only recourse available to an athlete or sports federation is to directly approach the courts to resolve their dispute or grievance. However, approaching the courts directly is not always an effective or speedy remedy.

The report refers to the ban on Sarita Devi in 2014 by the International Boxing Association for refusing her bronze medal at the Asian Games podium as a sign of protest against the decision of the judges as a case study.
The second case study in the report refers to wrestler Sushil Kumar’s submission in the court that “all I am asking is a (selection) trial for the Rio Games.” He had approached the Delhi High Court to direct the Wrestling Federation of India to hold a selection trial.

In most cases, the only recourse available to an athlete or sports federation is to directly approach the courts to resolve their dispute or grievance. This is mainly due to lack of effective internal mechanisms within the NSFs to resolve such disputes at the first level and second, lack of a specialist dispute resolution mechanism to address sports related disputes. However, approaching the courts directly is not always an effective or speedy remedy, the report observes.

The report recommends that “as the sports industry matures in India, the need for an effective and independent first level of dispute resolution mechanism in India cannot be emphasized enough. This could be implemented by setting up an independent tribunal under the Sports Regulatory Authority of India as proposed earlier”

INTEGRITY

5. Institute Uniform Guidelines to Tackle Age-Fraud in Sport

The CBI’s Sports Integrity Unit setup to curb sport fraud found that age-fraud was rampant in sports in India. It also found specific instances of over-age athletes. However, since sport is a State subject, the SIU was not empowered to charge any of the offenders.

The document states that “in India, bone age density tests are generally used to determine the true age of an athlete, FIFA has been using MRI to combat age fraud in Africa and baseball has used finger printing in the past. However, all these tests have shortcomings. Over emphasis on medical tests may lead to unintended and undesired consequences. Before we impose punishments, we need to first take a step back and evaluate the yardstick by which we assess age fraud.”

It recommends “implementation of uniform carding for all athletes. Athletes should be registered and provided an identity card which is registered on a central database by state associations from the moment an athlete begins playing tournaments at a junior level or from the moment he / she registers at recognised training centres.”

6. Pass Anti-Doping Legislation with Mandated Protocols

When an Indian athlete fails a doping test, it is not only the athlete but also the sporting system of the country that has failed.

The study refers to World Anti-Doping Agency (“WADA”) reports that India consistently has the 3rd highest number of athletes caught for doping offences. These numbers alone prove that India has its work cut out for it if it is serious about curbing doping and promoting clean sport.

Prima facie, intent, fault, negligence or knowing use is irrelevant to establish an anti-doping violation under the WADA Code. While there are mitigating factors such as the presence of contaminated products, sabotage of samples, etc., which may aid in reducing the penalty imposed, the occurrence of an anti-doping rule violation still remains. Since the margin for error is low, an athlete requires a strong support system to ensure that he/she is not caught unawares.

This is the stark reality of Indian sport! No support or ineffective support is provided to athletes.

If India is serious about avoiding sporting shame in the international arena, the need to tackle doping head on is now stronger than ever before. One of the ways forward, report recommends, is for India to adopt an effective and specialist anti-doping legislation. Recently, WADA has also insisted that India proceed along these lines.

The report recommends that “India requires an effective anti-doping legislation to curb the menace of doping. While drafting an anti-doping law we could take cue from the very detailed and comprehensive Australian Sports Anti-Doping Authority Act, 2006, the report suggests.

7. Criminalise Match Manuplation

Match manipulation involves influencing the result of a sporting event in order to obtain an advantage to one self and to remove all or part of the uncertainty normally associated with sport.

The athletes only front-end the crime which is linked with other criminal activities such as corruption, bribery, money laundering, tax fraud and organised crime.

The report refers to two crucial judicial observations:

“Non-proving of the allegations does not amount to whether guilty or not guilty of the charges… it only amounts to non-proving of the charges.”
– Justice Krishna Mohan Reddy in Mohammed Azharuddin v BCCI, November 8, 2012

“This Court finds itself limited in framing charges against the players on the allegations of match fixing and betting for want of appropriate law. No prima facie case is disclosed…. the offence in relation to which the Maharashtra Control of Organised Crime Act, 1999, is sought to be invoked, pertains to betting and match fixing, which as discussed above does not fit in any penal statute.”
– Justice Neena Bansal Krishna in State v Ashwani Aggarwal & Ors., July 25, 2015

In the absence of a specific legislation in India the only recourse is to turn to provisions in existing legislations. However, these have proved to be inadequate, the report observes.

Sports governing bodies such as the BCCI have limited powers while dealing with match-fixing. They lack jurisdiction over organised criminals such as bookies and facilitators and have inadequate powers to gather evidence.

The report among various steps to curve and eliminate this menace recommends that “a specialist legislation should define the offence of ‘match manipulation’. As mentioned above, match manipulation should be defined to include deliberate under performance, fixing the outcome of certain stages or aspects of a game, manipulating team strategy, interference with playing surfaces, deliberate misapplication of rules and sharing information about team composition, injuries of players or playing conditions with bookies.

REPRESENTATION

8. Institutionalise Athlete and Gender Representation Across Federations

Most NSFs do not have former or present players on their governing bodies. Of the NSFs that do have women on their governing board, women constituted only 2%-8% of the total strength of the governing body.

An InGovern report on the Governance of Sports in India published post the Rio Olympic and Paralympic Games last year revealed that only one NSF has a former national level sportsperson as its president; most NSFs do not have former or present players on their governing bodies; certain NSFs in India including the All India Sporting Federation, Indian Weightlifting Federation, Basketbal Federation of India, Indian Amateur Boxing Federation, Swimming Federation etc., do not have any women representation on their governing bodies; of the NSFs that do have women on their governing board, women constituted only 2%-8% of the total strength and Hockey India has the highest women representation at 34%. These numbers are stark especially when we put them in the context of last year’s Olympic Games where India’s only 2 medalists were women!
In its recently released Olympic Agenda 2020, the IOC at Recommendation 11 states that the IOC will work with international sports federations to achieve 50% female participation in the Olympic Games and to stimulate women’s participation and involvement in sport.

As we look towards achieving gender parity in participation in sport, it is also essential that we promote representation of women in governing position in NSFs. As a start, each sports federation in India to ensure that at least 20% of their governing body comprises of women. This percentage should be increased to 30% in 4 years with the ultimate goal pegged at 50% representation over a period of 8 years. Each sports federation in India to ensure that at least 25% of their governing body comprises of athletes, the report recommends and adds that sports federations that do not comply with the required percentage should suffer funding cuts from the central and state governments.

FEDERATIONS POWERS

9. Rationalise the Sanctioning Power of Sports Federations For Professional Leagues

The surge in professional leagues and increased revenues from sport has resulted in a substantial increase in filings with competition agencies against the governing bodies of sport. Lack of clear cut legislation and rules may pose a stumbling block for potential investors looking at investing heavily in the sports sector. Lack of clear rules and uncertainty may hamper the professionalisation of sport in India.

An emerging area of jurisprudence is the interplay between Sports and Competition Law. The cases in India have generally dealt with the inherent conflict of sports governing bodies as a result of the dual role played by most of them as regulators and organisers of sport. The overlap generally results in potential competition law concerns, the report observes while citing various instances.

It further observes that an over dominant sporting federation has the potential to become a hindrance to growth. Therefore, it is essential to review the existing powers offered to federations.

The report strongly recommends separation of a sports federation’s governance and management functions is imperative.

The recommendations, among other factors include restructuring of each NSF to separate its governance, commercial and regulatory functions; non-discriminatory sanctions for conduct of amateur events by third parties along the lines of the Ted Stevens Olympic and Amateur Sports Act, 1998; and Commercial functions including professional leagues to be hived off and run as a separate legal entity with distinct governance structure. The primary focus of the NSFs should be to promote and develop sports both at the elite and grass roots level.

FUNDING
10. Incensitivise Sports Funding and Participation

Companies are naturally predisposed to ask for results. They worry about justifying the significant spends when the rewards if any may take years to reap. Out of the total CSR spend of approximately Rs. 8,300 crore in 2016, sportreceived only about Rs. 78 crores or less than 1%, the report observes.

Apart from CSR funding, the recently introduced Goods and Service Tax (“GST”) has further added new challenges to the promotion of sport in India especially grassroot sport. Under the new GST regime training and coaching services at the community and amateur level have been brought within the indirect tax net. They were earlier exempt from service tax altogether. Sports equipment rto tickets have all become dearer.

The report recommends to enhance the ambit of Schedule VII of the Companies Act, 2013, to incentivise sports funding; while also suggesting the rationalization of taxes on sports. Salaries paid to athletes could be offset against the 2% CSR funding requirement. Former athletes could also be deputed as coaches to sports federations. Their salaries too could be of set against the 2% CSR requirement.

The Sports Law & Policy Centre, Bengaluru is an independent think-tank focused on interdisciplinary research, scholarship, education and institutional support for public and private enterprises in areas relating to the legal, policy and ethical issues affecting amateur and professional sports in India.

The Centre aims to provide thought leadership, to encourage public debate and to bring knowledge-backed decision making into the national sports ecosystem by creating a forum for study, analysis and sharing of expertise.


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