A Review of the Draft National Sports (Development) Bill, 2011
By Roshan Gopalakrishna
‘Sport’ is matter that comes within the purview of Entry 33, List II (State List) of the Seventh Schedule of the Constitution of India. Therefore, in effect, the central government would have no legislative competence to make a central law in relation to the subject. In 2009, the central government withdrew a 20-year-old amendment bill that sought to transfer the subject of sports from the State List to the Concurrent List, which would enable the state governments and the central government to legislate on sport. The bill was withdrawn from the Rajya Sabha due to lack of political consensus.
However, case laws indicate that state governments are competent to legislate on sports related matters only within their territorial jurisdiction. Further, these judgments have also held that in light of the fact that the central government provides substantial funding, is involved in the selection of the national coach, makes available facilities developed by the Sports Authority of India (‘SAI’) and the Ministry of Youth Affairs and Sports (‘MYAS’) and renders financial assistance for acquisition of sports goods and materials, the central government has the required legislative competence to regulate sports at the national and international level.
Draft National Sports (Development) Bill, 2011
The National Sports Policy, 1984 aimed at improving the standard of sport in India. Subsequently, the National Sports Policy 2001 envisioned the central government working in conjunction with the state governments, the Indian Olympic Association (‘IOA’) and the National Sports Federations (‘NSFs’) to concertedly pursue the twin objectives of “Broad- basing” of Sports and “Achieving Excellence in Sports at the National and International levels”. The Comprehensive National Sports Policy 2007 endeavoured to put in place a framework for sports in India based on an inclusive model with the full ownership and involvement of all stakeholders. However, these policies faced stiff opposition from NSFs and the IOA and hence were not implemented.
The Draft National Sports (Development) Bill (‘Draft’) was released for comments and feedback by the MYAS in February 2011. The Draft aims to increase transparency in sports administration and to open sports administration in India to public scrutiny. Promotion of indigenous sports, sporting excellence, athletes’ welfare and organisation of sporting events form the keystones of the Draft. In this feature, we discuss the significant elements of the Draft.
a. Basic Universal Principles of Good Governance
The Draft aims to remain consistent with the core principles spelt out in the “Basic Universal Principles of Good Governance” proposed by the International Olympic Committee (“IOC’) and endorsed by the Olympic Congress in 2009. The IOC Code of Ethics state that ‘The basic universal principles of good governance of the Olympic and sports movement, in particular transparency, responsibility and accountability, must be respected by all Olympic Movement constituents.’
The reason these principles are sought to be enforced through legislation is that in 2010, the MYAS had engaged in a dialogue with the IOC and IOA to expedite the process of reform of the IOA. The IOA and the IOC had assured the MYAS that appropriate amendments would be made to the constitution of the IOA and to ensure that it remained consistent with the Olympic Charter. The subsequent changes made by the IOA, which were ratified by the IOC, however only served the purpose of diluting the reform process that was sought to be implemented.
b. National Sports Development Council
The Draft empowers the Government to take all such measures, including notification of regulations, policies, rules, procedures and guidelines, as it deems necessary or expedient, for promoting the development of sport. Further, the Government may also constitute a National Sports Development Council to advise it on matters related to sport. The Council is ideated to consist of members from the various NSFs, experts in sports law, eminent athletes, sports scientists, etc., appointed for a non-renewable term of 4 years and involves the participation of athletes in the decision making process. The Council is to be headed by an Eminent Athlete who has won and been awarded prominent national and international awards in his/her sport. More importantly, the Council would also represent active athletes with up to three active athletes to be appointed to the Council and two- third of the voting rights for all decisions to be taken by the Council are retained in favour of members who are not affiliated to affiliated to NSFs, the central government or SAI. This represents a significant step in ensuring that past and present athletes would have a say in the administration of sports in India and is a proposal that has received overwhelming support.
c. Demarcation of Responsibilities
The Draft envisages roles and responsibilities for the central government, SAI, the IOA and NSFs. The central government is primarily entrusted with the task of determining the eligibility conditions for recognition of the NSFs and the IOA; SAI with providing the necessary support to NSFs for organising preparatory camps for the selected national teams or athletes for participation in international competitions; and every NSF will be held responsible and accountable at the national level for the overall promotion and development of the sport for which it is granted recognition.
d. Regulation of the IOA
The IOA is made responsible for the timely organisation of the National Games once every two years and to recognise NSFs for each Olympic and non-Olympic sport. It is noteworthy that the IOA has been obligated to hold fair and transparent election every 4 years. Additional obligations placed upon the IOA are to maintain public accountability, resolve disputes through a proper mechanism of dispute resolution within 15 days of a dispute arising and enact bye laws in compliance with the IOC Charter and directions. Substantially, the IOA would be required to seek permission from the central government prior to bidding for any major sporting event and to submit before the Parliament its audited statements, report of activities and measures taken to promote the welfare of athletes, combat doping, expedite the process of dispute resolution, comply with the Right to Information Act, 2005 and prevent gender discrimination and harassment of women in sports.
e. Recognition of National Sports Federations
The central government may recognise no more than one NSF for each sport. Primarily, each NSF may represent or purport to represent itself as the recognized NSF for the sport and to represent India at various levels; regulate the sport in India; and select athletes to represent the country at the international level. The criteria for recognition of NSFs are also established with each NSF that wishes to be recognised mandatorily required to abide with certain norms such as financial accountability, professional management, and recognition by the IOA, status as an apex body, etc.
The Draft prescribes the conditions based on which the Government may withdraw recognition to NSFs and upon withdrawal of recognition, the concerned NSF will no longer receive assistance from the central government or exercise any rights granted to it under the Draft. It deals with major concerns such as detection and prevention of age fraud and sexual harassment in sports, along with the promotion of drug-free sport and fight against all forms of corruption in sporting activities.
f. Age and Tenure Restrictions
Most importantly, the Draft places restriction on age and tenure at the NSFs with 70 being the mandatory age of retirement and office-bearers being barred from securing more than two consecutive terms in office. Office-bearers are not eligible to contest the post of President of an NSF on completion of 12 years at the post. By way of background, the Olympic Charter prescribes a retirement age of 70 for IOC members and also states that a member may serve for a maximum two successive terms in the IOC executive board regardless of the capacity to which he has been elected. NSFs are required to ensure that 25% of the membership and voting power is held by athletes. The Draft also places restrictions on the Union Minister of Sports contesting IOC or NSF elections and on concurrent holding of positions by Office Bearers in NSFs.
g. Eligibility of Athletes to Represent India
Only Indian citizens holding Indian passport, including Non-Resident Indians, are eligible to represent India in international sports competitions. Persons of Indian Origin and Overseas Citizens of India are not treated as Indian citizens for this purpose and are expressly prohibited from representing the country. Unfortunately, this could result in the loss of significant sporting talent to the country as PIO and OCI athletes often explore the option of representing India at the international level.
h. Sports Ombudsman
Any dispute concerning athletes, or concerning an NSF and/or the IOA or any other sports related body, including management conflicts or disputes will be referred to the Sports Ombudsman i.e., a retired High Court Judge with knowledge about sports law or arbitration with general knowledge of sports. Provisions are also made to set up an Appellate Authority. All awards of the Sports Ombudsman and Appellate Authority are to be binding as Final Awards under the Arbitration and Conciliation Act 1996.
The MYAS had placed the Draft on its website since February 22, seeking comments from all stakeholders and the general public. The Ministry also formed a committee, headed by Justice Mukul Mudgal, retired Chief Justice of the High Court of Punjab and Haryana, to examine the comments and suggestions received from various quarters in relation to the Draft and make appropriate recommendations to the Draft. The Bill is expected to tabled in Parliament during the Monsoon Session.
The IOC and IOA remain steadfast in their opposition to the Draft, and to any action taken by the central government to regulate the manner of the IOA’s functioning. While the IOA maintains that the central government lacks the required authority to legislate on sport, the IOC has clearly indicated that India’s participation in the Olympic Games could be under threat if the Government failed to fulfil its commitment to respect the autonomy of the Olympic Movement in the country.
© The Sports Law & Policy Centre