Public Accountability of National Sports Federations
By Vidya Narayanaswamy
The Draft National Sports (Development) Bill, 2011 brings into focus an important issue – the legal status of National Sporting Federations (NSFs) and their accountability in courts of law. In this learning module, we describe and summarise the current state of Indian law pertaining to recognition, accountability and procedures of NSFs.
Recognition of NSFs
Recognition of NSFs by the Government is critical in order to subject them to greater accountability and introduce fairness and transparency in their procedures. With this intent, the Delhi High Court, in the case of Indian Olympic Association (IOA) v. Veeresh Malik, held that the IOA constituted a ‘Public Authority’ within the meaning of the expression under the Right to Information Act, 2005 (RTI Act). It held that the pre-eminent position enjoyed by the IOA emphasizes that it is the regulator of Olympic sport in India, in respect of all international and national level sports and serves in the following capacities:
- as the regulator for affiliating national bodies in respect of all Olympic sports, it is armed with the power to impose sanctions against institutions and individuals;
- as the national representative of the country in the International Olympic Committee (IOC), it has the right to give its nod for inclusion of an affiliating body, which in turn selects and coaches sportsmen to compete at the international level;
- as the recipient of constant funding from the government on which it depends to aid and assist travel, transportation of sportsmen and sports managers.
This case also ruled on whether the Commonwealth Games Organising Committee could be compelled to disclose information under the RTI Act. The Games Committee argued that it was not a ‘public authority’ as it did not receive substantial funding, since the funding received was in the nature of a loan on commercial terms. It further contended that it was an autonomous body, not subject to the control of the Central Government or the Government of National Capital Territory. The court, however, held that even after giving a loan, the Central Government does not share any revenues from licensing, sponsorship etc. These revenues flow back to the Games Committee and the IOC. The Central Government had also allowed the use of the stadia, and other infrastructure, without any user charges. For these reasons, the court held that the Games Committee was a ‘public authority’ receiving substantial funding and could be compelled to disclose information under the RTI Act.
In Rahul Mehra v. Union of India, it was held that the Board of Control for Cricket in India (BCCI) is amenable to writ jurisdiction of the High Court. However, it was clarified that not all actions of the BCCI would be subject to judicial review, but only those actions that fall within the ambit of public law would call for any direction, order or writ. In reaching this conclusion, the court observed that where a “public function” is involved, writ jurisdiction is attracted.
In Zee Telefilms v. Union of India, the issue was of recognition of the BCCI as “State”. This case arose in the context of a tender floated by the BCCI for grant of exclusive television rights for a period of four years. The BCCI, through an order, cancelled the allotment of rights in favour of Zee Telefilms. Zee Telefilms challenged the order through a writ petition under Article 32 of the Constitution of India, on the ground that termination of the contract was arbitrary and violative of the right to equality. The BCCI raised a preliminary objection that a writ petition under Article 32 is not maintainable as it can be filed only against the “State”. The main question before the court was whether the BCCI was “State” within the meaning of Article 12 of the Constitution. The Supreme Court of India, by a 3:2 verdict ruled that BCCI is not ‘State’, being essentially an autonomous non- statutory body with no declared monopoly over the game of cricket, no public function to discharge, no significant financial assistance from the Government and not being subject to what could be described as ‘deep and pervasive control’ by the Government. Consequently, the writ petition filed under Article 32 was dismissed as ‘not maintainable’ against the BCCI.
The majority judgment relied on the case of Pradeep Kumar Biswas which held that the term “State” under Article 12 includes only those bodies that are financially, functionally and administratively dominated by or under the control of the Government, wherein such control is deep and pervasive. Where the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.”
Applying the above principle, the court observed:
1. The BCCI is not created by a statute.
2. No part of the share capital of the BCCI is held by the Government.
3. Practically no financial assistance is given by the Government to meet the whole or entire expenditure of the BCCI.
4. The BCCI does enjoy a monopoly status in the field of cricket but such status is not conferred or protected by the State.
5. There is no existence of a 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.
6. The BCCI is not created by transfer of a Government owned corporation. It is an autonomous body.
The court held that the facts established do not cumulatively show that the BCCI is financially, functionally or administratively dominated by or is under the control of the Government. Thus the little control that the Government may be said to have on the Board is not pervasive in nature. Such limited control is purely regulatory control and nothing more. Therefore, the BCCI cannot be held to fall within the definition of “State” under Article 12.
Recently, the Supreme Court took a clear position on the accountability of sports federation officials in the case of K. Balaji Iyengar v. State of Kerala. This case arose in the context of charges of corruption leveled against the Kerala Cricket Association (KCA). The complainant, Balaji Iyengar, a former Kerala junior cricketer, had filed a complaint against the Association in the Vigilance Court alleging specific instances of corruption and misappropriation under the Prevention of Corruption Act 1988 (POCA). The Special Judge ruled that the Association did not come under the meaning of the phrase public servants as defined under section 2of the of POCA and therefore the Special Court does not possess the jurisdiction to take cognizance of the offences and returned the complaint for presentation before the proper court. On appeal, the Supreme Court examined the definition of “public servant” under the POCA which prescribed the following requisites for qualification:
1. Holding of an office by virtue of which s/he is authorised or required to perform any public duty; or
2. Position as an office bearer or employee of an educational, scientific, social, cultural or other institution established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.
The judges examined the following facts to ascertain if the office bearers of the Association were performing public duty.
- The Association has not only the monopoly status as regards the regulation of the game of cricket in Kerala but can also lay down criteria for its development.
- It was recognized by the State of Kerala as the body to promote and regulate the game of cricket. Further, it selected the team to represent the State of Kerala in the Ranji Trophy (national tournament) and other allied tournaments. It also selected umpires and organized one day internationals.
- The team is not known as the team of ‘Kerala Cricket Association’ but the team representing State of Kerala. If a player is not selected to State team, he cannot aspire to play for the Indian team. Cricket is now not a mere game. The decision taken by the Association vis-à-vis any player would materially affect him and he would therefore be interested in the performance of duties by the office bearers.
On the basis of this, the Court found the Association to be discharging public duties and the office bearers of the Association were found to be under the ambit of the meaning of the phrase ‘public servants’. The Court also addressed the apparent conflict between the decision of the Supreme Court in the Zee Telefilms case and the present case. It held that “even if Kerala Cricket Association is not an ‘other authority’ and thereby not an instrumentality of the State for the purpose of Article 12 of the Constitution, if the Secretary and President of the Association, who hold those offices are authorised or required to perform any public duty by virtue of holding their offices, they would be public servants as defined under the POCA”.
Government action in this direction was initiated after the decision in the case of Narinder Batra v. Union of India where the court held that while “it may be desirable that sports federations have autonomy in areas of the actual conduct of sports, representing India as a nation at international sports meets as well as international of the, is an essential part of Government function.”
Deriving authority from this pronouncement, on 16th June 2010, the Government issued a Dossier for the International Olympic Committee on the ‘Government of India Guidelines on Good Governance in Sports Bodies’. This 81 page Dossier laid the Guidelines for all the NSF’s and in a nutshell, the sum and substance was basically laid down in two points under the Conclusion head in the Dossier:
- “implementation of the said Guidelines was necessitated on account of the total failure of the IOA/NSFs to take remedial measures despite having agreed to do so for decades;
- insistence of autonomy without public accountability is antithetical to the fundamental principles enshrined in the Olympic Charter and the Role of States in the Development of Sports and the growth of the Olympic Movement.”