Government Regulation of Sport
By Roshan Gopalakrishna
Last month, the Ministry of Youth Affairs and Sports (MYAS) released the revised National Sports (Development) Bill, 2011 (Bill). As compared to its previous form (reviewed previously “A Review of the Draft National Sports (Development) Bill, 2011“), the Bill sees 14 changes, the most significant of which are discussed later in this article. The constant line of argument in opposition to the Bill has been that the Bill amounts to an ‘interference’ in sport and therefore is in violation of the internationally accepted independence and autonomy norms for sports administration. It is equally important to look at similar steps that have been implemented in countries that consistently perform well at international sports events.
Chapter 2 Rule 16 (1.5) of the Olympic Charter (Charter) specifically prohibits and excludes government interference in the functioning of the sports bodies, principally to maintain the integrity of sport. The historical reasons for this provision can be traced to the 1936 Berlin Olympics, a platform co-opted by Adolf Hitler for political purposes. Therefore, the Charter sought to enable the members of the International Olympic Committee (IOC) to be independent of their national governments and to act as representatives of the IOC within their country, rather than representatives of their country on the IOC. Accordingly, National Olympic Committees (NOCs) are politically autonomous and financially independent. This autonomous status enjoyed by each of the NOCs and the IOC’s substantial resources allowed the IOC itself to be independent of political institutions. The Charter therefore emphasises the independence of sport and has arguably been misconstrued by the NOCs to mean that they may not be held accountable to their respective governments. In fact, insistence of autonomy without public accountability is antithetical to the fundamental principles enshrined in the Olympic Charter.
Further, the Charter imposes restrictions on age and tenure of the IOC’s office bearers. Following the Charter, the Bill provides for similar restrictions – 70 years as regards age and 12 years (with or without any break) as regards tenure in case of president and 8 years (with a cooling off period of 4 years) for any other office bearer of various National Sports Federations (‘NSFs’) including the Indian Olympic Association (IOA). Similarly, other organisations affiliated to the IOC such as the FIH and FINA follow similar norms in limiting tenure for office bearers and prescribing the age of retirement.
It is heartening to note that the Bill continues to retain provisions relating to term and tenure, accountability, and transparency. Substantially, the Bill eliminates discretion of the MYAS in relation to the recognition of NSFs and the NOC for India. The Bill provides for deemed registration and recognition to NSFs, if an application for recognition has not been decided upon within 30 days. A certificate of registration once issued would continue to be in force until the time such a registration is suspended or cancelled by the proposed Appellate Sports Tribunal. The eligibility criteria for the recognition of NSFs have been relaxed. For instance, the criteria stating that the National Sports Federation should have been in existence for three years has been deleted. This has been done in order to promote new sports – which are developing or being actively played in India – to be recognized by the Government.
One aspect in which the Bill has perhaps taken a step in the wrong direction is the exclusions and exemptions carved out in relation to the application of the RTI Act. In brief, the approach adopted under the Bill is not different from accepted norms in relation to NGOs that are considered to be ‘Public Authority’ under Clause 2 (h) of the RTI Act. As each NSF indirectly or directly benefits from the union government, it is but fair that each NSF be held accountable under the RTI Act. In Indian Olympic Association v. Veeresh Malik, the High Court of Delhi held that the IOA constituted a ‘Public Authority’ under the RTI Act. In Rahul Mehra v. Union of India, the BCCI was held amenable to writ jurisdiction where it performed “public function”. More recently, in K. Balaji Iyengar v. State of Kerala, the Supreme Court of India found the Kerala Cricket Association to be discharging public duties and its office bearers were therefore found to be ‘public servants’.
With this as background, the Bill initially provided for all actions of NSFs to come under the purview of the RTI Act. However, the revised Bill provides for exemptions in relation to the queries which may be posed to NSFs under the RTI Act, exempting certain categories of information that may be requested from the NSF under the RTI Act. Tellingly, these include information pertaining to selection, appointment or exclusion of athlete/s, coach, trainer or physiotherapist. In India, one of the major issues experienced in relation to the functioning of NSFs has been in regard to the selection of athletes and the appointment of support and coaching personnel, a process that often lacks transparency and accountability. As has often been the case, sportspersons who consistently perform well are left out of teams selected to represent India, for instance, Dhanraj Pillay’s exclusion by the IHF from the team selected to represent India at the Athens Olympics 2004 on ‘fitness’ grounds. More recently, questions have been raised on the appointment of Eastern European coaches to train Indian athletes, especially given the sudden rise in doping by athletes. Keeping in mind such experiences, an RTI application would prove invaluable in gaining an insight into the reasons that formed the basis for such decisions. The other grounds exempt include information on the quality of an athlete’s performance at events; athlete’s medical health and fitness; whereabouts of athletes; and information that is confidential under the NADA Code.
The offices of the Sports Ombudsman and the National Sports Development Council have been excluded in order to accommodate the formation of the Indian Court of Arbitration for Sports by the IOA. The other duties of these bodies have either been allocated to the concerned NSF or the proposed Appellate Sports Tribunal. The Appellate Sports Tribunal will be set up by the Central Government to adjudicate disputes, primarily in relation to NSFs. The independence of the Appellate Sports Tribunal has been sought to be ensured in totality. Therefore, the power to appoint the Chairperson and other members of the Appellate Sports Tribunal has been granted to an independent selection committee to be chaired by the Chief Justice of India or his nominee and also has representation from the IOA. The discretion to remove a member of the Appellate Sports Tribunal now vests with the Chief Justice of India who would be conducting an enquiry according to a specific procedure laid down by him.
Interestingly, the revised Bill now bars the Union Minister for Youth Affairs and Sports as well as officials of MYAS from contesting elections to the IOA or NSFs for a period of five years from the date of retirement or resignation. It also inserts a clause into the Anti doping provisions that, where the International Federation is not subject to rules/ code of the World Anti-Doping Agency (WADA) or part thereof, then the National Anti- Doping Agency shall not administer the rules/code or part thereof as the case may be of WADA, for that sport.
Countries that have consistently done well at international sporting events, such as China and the U.S have adopted, in some form, mechanisms to regulate sport and the functioning of sports governing bodies. In brief, China has in place a law that aims at promoting public health, while the U.S., brought in a legislation to grant the United States Olympic Committee with certain powers, roles and responsibilities.
a. People’s Republic of China China’s rise in the global sporting arena can, in part, be attributed to the efficient implementation of the ‘Physical Health Law of the People’s Republic of China’ (Law) that was adopted in 1995. The premise behind the Law was to enhance public health and social development. The Law contains various chapters addressing issues ranging from community sports, school sports and competitive sports. It is relevant to note that the Law relies heavily on the state control of sport in terms of centralized policy making and traditional administrative practices to aid the national government in the development of sport. However, the day-to-day administration of sport has been vested in the hands of non-governmental bodies such as sports associations. The Law provides for the establishment of these sports associations to implement the national sports policy and encourages them to develop new sources of funding and to impose non-criminal sanctions against athletes for violation of anti doping and other organizational rules. It specifically provides for the organization of competitive sports, a method of resolving disputes related to the sport and prohibits doping, corruption and gambling.
Prior to this Law, sports associations were mainly controlled by the government and this limited their funding greatly. Presently, national and state governments are required to allocate funds towards sporting activities and invest in them. In empowering the sports associations, the state plays a role as it limits this empowerment to ‘appropriate roles’. The Law provides that the state must implement a mass fitness program and a rule that all schools must hold annual games and encourage students to participate. It prohibits the use of sports infrastructure for any other purposes. It also introduced the aspect of sports sponsorship from non-governmental sources. The Law provides for a ranking system of athletes and also grants bonus amounts and remuneration to such sports persons according to their ranks.
b. United States of America – In the United States of America, the Ted Stevens Olympic and Amateur Sports Act (Act) charters and grants monopoly status to the Unites States Olympic Committee (USOC). The current revised version of the Act modified the governing framework for the USOC so that amateurism was no longer considered the cornerstone of eligibility for Olympic competition.
The USOC has monopoly control in that it has the power to represent the United States as its National Olympic committee; as well as organize, finance and control the representation of the United States in any international sports events. The USOC also has the power to recognize amateur sports organizations as National Governing Bodies for various sports under the Act. The USOC has been empowered to facilitate the resolution of any disputes between any of its members and any athlete, coach, trainer, etc., much along the lines of the proposed Appellate Sports Tribunal. It further provides the USOC with the power to designate a particular Paralympic sport to any of the recognized amateur athletics organization. The Act lists the functions that such national governing body must perform, as well as a detailed procedure regarding the disposal of complaints against any national governing body. Any person aggrieved by the determination of the USOC can seek a review by the American Arbitration Association.
Like the original sports Bill in India prior to its revision, the Ted Stevens Act provides for the creation of an ‘ombudsman’ by the Olympic Committee. This ombudsman provides advice to any athlete free of cost with regards to the Act and any dispute regarding their participation in any competition, etc. Further, the ombudsman also helps as a mediator with regard to these disputes. The ombudsman may be any person appointed by the Athletes Advisory Council and reports to the Athletes Advisory Council regularly. Representation for athletes in various national governing bodies and the USOC is one of the cornerstones of the Act.
India is in need of a comprehensive sports legislation to regulate sports and the Bill is the right step in this direction. It attempts to regulate sport by setting standards of accountability and transparency that are consistent with international standards including the mandate of the Charter, apart from safeguarding the rights of athletes.
At a very general level, the enactment of a strong law on sport would encourage greater participation of the private sector. While undoubtedly investment in sport will increase only through the introduction of high quality sports properties and a consistent excellent performance of athletes at the international level, the importance of a competent legal environment for such investments cannot be overlooked. It is imperative that a finely tuned legal system and other adequate mechanisms remain in place to protect the return of investments in sport.
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