The Sports Law & Policy Centre | SHOULD DISCIPLINARY BANS IN SPORTS BE EXTENDED BY THE DURATION OF THE CORONAVIRUS LOCKDOWN?: THE COUNTER VIEW
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SHOULD DISCIPLINARY BANS IN SPORTS BE EXTENDED BY THE DURATION OF THE CORONAVIRUS LOCKDOWN?: THE COUNTER VIEW

Read Gaurav Bhawnani’s piece in favour of an extension of sporting bans here.

The premise of Bhawnani’s argument is that athletes serving term bans are unfairly benefitting from the current situation, that it is an effective reduction in their sentence as they are not worse off than any other player who is also not able to play due to suspension of sporting activities. I argue that this is based on a flawed understanding of sports. Athletes serving bans are not unfairly benefitting from the current situation, let alone receiving any benefit at all. They continue to be banned for the period for which they were banned and they are still in a worse off position as compared to other players.

Let me start with how bans are enforced as matter of positive law. All athletes participating in a particular competition or sport agree to abide by the applicable regulations, thus receiving the opportunity to participate. As part of these regulations, almost all sports and sporting organisations have provisions for term bans to censure unlawful conduct of playersgroups of players, or even entire countries. These bans could result from different conduct including match fixing, doping, cheating, violence or aggression, conduct unbecoming of an athlete or any other violation of the governing regulations. If an athlete received a ban as per the applicable regulations, they will serve it according to the conditions attached to the ban. Any extension of the ban due to a pandemic will be entirely beyond the provision of law. It will be an unfair interference with the right of an athlete to participate when they have complied with all the regulations.

Moving beyond positive law, I believe that an extension of term bans for interferences such as these should not find any place in sports even normatively. Bhawnani acknowledges that basic theories of punishment and sentencing include denunciation, deterrence, reformation, and retribution. He also concedes that a term ban is intended to fulfil these objectives of punishment. However, I do not agree with him that the current situation is an effective reduction in the period of the term ban. 

While I agree that term bans assume that sporting activities will take place during the period, I believe that there are at least two reasons from why this is not sufficient to claim that the ban should be extended. First, term bans do not always assume that the player would have otherwise been available for and participated in those matches. The athlete may suffer from an injury which may keep them out of action anyway for the duration of the term ban. They may fall out of form due to which they might not even have been selected to play in the team. They may take a break from sports due to personal reasons and may not have played. Second, term bans do not (and cannot) assume that all sporting activity would take place during the ban period. It is fairly common for sports events to be cancelled or rescheduled due to unforeseen events such as weather disturbancesterrorist attacks or wars or players unable to participate due to political reasons. Sporting activities face interference all the time, a pandemic is just another addition to this list. In any such interference, we do not extend the ban because we recognise that they are already suffering for their conduct and an unforeseen event shouldn’t magnify that punishment. Merely because the pandemic’s impact is more drastic and widespread, should not mean that we change this policy.

We need to recognise that a term ban is much more than a mere ban on participation in matches or access to training facilities. A ban also has a major impact on an athlete’s reputation, credibility and fan following. They lose their ranking points, source of income for the ban period and in many cases, their sponsorship deals, all of which have lasting effects. It is also important to be mindful of the fact that success in sports is as much about mental toughness as it is about skill and physical abilities. A term ban can have a really drastic impact on the mental health of an athlete and it can be very difficult for them to make a comeback or perform at the same level as before, due to the stigma as well as the long duration. Indeed, it may be argued that all athletes are unable to participate or train as they would due to the current pandemic. However, only the athletes serving a term ban are undergoing the other effects of the ban and all of these effects continue to impact them notwithstanding the pandemic. Thus, it cannot be said that banned athletes are receiving an unfair advantage or any advantage at all.

Even more fundamentally, I believe that there is a distinction in the non-participation of athletes due to a term ban on one hand and non-participation due to suspension of sporting activities. When an athlete is banned, you condemn them and take away the right to participate from them. However, the pandemic induced suspension of sports is very different. It is not taking away the right to play or participate, it is a mere inability to participate due to external factors. While at a superficial level, it may seem that the impact in both cases is similar, it is actually not. The nature of deprivation is very different, and rightly so, in case of a term ban.  

Lastly, we must not lose sight of the nature and purpose of sports. Sports is about showcasing your skills, participating and competing with others. Almost all sports have a provision for it to be played in the spirit of the game. Term bans in sports are only a means to an end, the primary purpose is not to punish the athlete by banning them, but to give out the message that their conduct was against the rules and spirit of the game. If the term ban and consequently punishment is increased due an unforeseen and unrelated event, it will be the sport itself that will be going against its spirit.