Khaitan & Co
New Delhi, Jul 23 (ILNS) With a huge backlog of cases in all the courts of India, and severe shortage of judicial members, two big challenges are being faced by athletes in terms of grievance redressal, that is of speedy remedy and a specialised understanding of the issues faced by them.
It has been estimated that on an average, a high court in India takes four years to dispose a case. Besides this there is also the issue of changing roasters which doesn’t allow judges to have specialised determinations.
Take the case of Indian boxer Sarita Devi, who represented India at the 17th Asian Games, who was suspended by the Amateur International Boxing Association (AIBA) for a period of one year from all competitions conducted by AIBA. A Public Interest Litigation was filed by one Rajiv Dutta before Delhi High Court against the Union of India, (Department of Sports), the Indian Olympic Association and Boxing India to challenge the said decision of AIBA. By the time, decision was rendered by Delhi High Court, the period of suspension of Sarita Devi had already elapsed and the matter for all purposes had become infructuous so far as Sarita Devi was concerned.
When Cricketer Ajay Jadeja, who was banned by BCCI for a term of five years, for alleged corruption and match fixing, challenged the said decision of BCCI before Delhi High Court, decision was ultimately rendered in his favor after a period of three years. Those three years could well be equivalent to three decades, if not more, in the career of a sporting athlete. Ajay Jadeja as we all know, never really managed to make a comeback to the Indian team, despite having huge potential when the scandal and suspension shrouded his career. The verdict is still out on whether, this was a result of the scandal or whether, those three years away from the game effectively ended his chances of coming back.
The history of sports / games is as steeped in antiquity as the dawn of civilizations, so much so that a simple search online would reveal that its history can be traced to ancient times, where it had its lineage in military rituals and combats. Even the modern-day Olympics, the most organised prestigious sporting event of our times, has its history shrouded in legends and myths, with some claiming that it was started by the Greek god Zeus and his son Heracles.
With such an enviable past and where athlete’s world over are revered as no less than gods themselves, it is surprising that codified laws to protect athletes have not yet been enacted by most of the countries. How is it then that rights and protection of these athletes are so overlooked and not given precedence in our legal systems?
Some sportsmen have glitzy careers while others may not be so lucky, however, the one thing that runs common for them all, is that they have short lived sporting careers. Therefore, each missed opportunity is a huge loss, and time is of the essence, which if stuck in protracted litigation could more often than not, end budding careers. It is, therefore, imperative that every attempt be made to ensure that these sportsmen receive faster and effective legal remedy, given the nature of their vocation and the law of our times, need to be suitably sensitized to this issue.
While the Central Government has time and again come out with guidelines in 1975, 1988, 2001 and 2011 to regulate sports in India, however, none of them have effectively dealt with the issue of grievance redressal for athletes. The last formal guidelines to be issued by the Ministry of Youth Affairs and Sports was the National Sports Development Code, 2011 (Code, 2011), which shifted the entire onus of redressal on the National Sports Federations (NSF), requiring them to constitute an internal machinery for the same.
A committee was further set up by the government under the Chairmanship of Justice (Retd) Mukul Mudgal which also constituted eminent sports personality such as Abhinav Bindra, for revising an earlier draft bill for bringing about transparency and good governance in NSF’s. The committee submitted the draft National Sports Development Bill, 2013 (Bill, 2013), wherein for the first time one finds a recommendation for setting up an Appellate Sports Tribunal. While the draft bill made provision for the Central Government to prescribe the jurisdiction to be exercised by the Appellate Sports Tribunal, it however, explicitly provided what the Tribunal could not adjudicate on, i.e. doping related cases for which the National Anti-Doping Agency has exclusive jurisdiction and on matters concerning International Federations for which appeal lies directly to Court of Arbitration for Sports established in Lausanne, Switzerland. A bare reading of the Bill, 2013 however, would show that NSF’s are required to provide for an in-house mechanism for redressal of grievances of athletes, support personnel, and other entities associated with that sport. Thus, the Appellate Sports Tribunal would be the second limb of grievance redressal after having exhausted the remedy of in-house redressal.
What is surprising to note amidst all this, is that the Bill, 2013 is still lying in its draft form and is yet to see light of day. Instead of trying to implement the already existing recommendations, the government went on a committee setting up spree, which saw a nine-member committee set-up in 2017, which came up with the draft National Code for Good Governance in Sports, 2017 (Code, 2017). This was further replaced by a thirteen-member committee in 2019, to review the draft Code, 2017 and give its recommendations. One of the concerns it seems was that the draft Code, 2017 had proposed barring ministers, members of Parliament and legislative assemblies from holding office in the NSF. The committee is still deliberating on the Code and is yet to give its recommendations.
While draft legislations exist and are being discussed, it should be borne in mind that, presently there is no codified legislation governing sports related administration or dispute in India. This vacuum was observed by the Delhi High Court in Sarita Devi case, though in that case, it was more to do with lack of regulations in relation to disputes with international sporting bodies. This led the Ministry of Youth Affairs and Sports to come out with a directive on 17 June 2016 called “Safeguarding the interests of sports persons and provision of effective Grievance Redressal System in the Constitution of National Sports Federations”, wherein, they directed all NSF’s to form an in-house machinery to settle domestic dispute of athletes.
It is thus, evident that the government and/ or the recommendations received till now on the issue of dispute resolution of athletes, has favored setting-up of an internal mechanism by the NSF’s for tackling grievances of athletes. One can only assume that the thinking behind this has been to grant autonomy to NSF in handling their own matters and/ or speedy remedy/ specialised understanding of issues. All these reasons, however, underlies a basic concern; that of the same body deciding the fate of its own decision. No matter how much cry is raised that the internal mechanism would be transparent and fair, it belies the entire principle of true justice. Can one expect independence and fair trial from a dispute resolution body which is closely associated with or dependent upon one of the interested parties? An analogy here can be made to the history of Court of Arbitration for Sports (CAS), which was created by the International Olympic Committee (IOC) in 1983 to resolve sports related issues. The independence of CAS for the longest time remained a concern for most, given its close association with IOC. Hence, in 1993, IOC undertook some internal restructuring whereby, International Council of Arbitration for Sport (ICAS) was formed, which now oversees the administration and financing of CAS, thereby, doing away with the control and sway of IOC over CAS. This has led to a perception of greater autonomy and independence of CAS as a governing sports regulator and a legitimate center for sports redressal.
It may be further, noted that while the government came out with a Sports Code in 2011 and followed it up with another guideline in 2016, there is scant evidence that the NSF has actually constituted an in-house grievance resolution body. In the case of the Indian wrestler, Sushil Kumar, it was observed that the NSF does not even have a written policy for its selection process. The Code, 2011 is a guideline and in the absence of a compulsory directive, it remains to be seen how effectively the same is actually implemented. Even the guideline in 2016 opened with the words that the NSF ‘consider’ implementing the same.
It was in the Indian Olympic Association case, where the Division Bench of Delhi High Court made the following scathing comments on NSF’s when it said that “Sports administration appears to be mired in power play, where money, influence and chicanery play a dominant part and those who had participated in competitive sports at some stage are given token representation at best, or mostly marginalised.” One cannot thus, also lose sight of the fact that NSF requires accreditation from the government and are mostly dependent upon the Central and State Governments for financial help. Further, the role and representation of the bureaucrats (not essentially having domain expertise for administering functions in respect of sports and athletes) in the governance of NSF’s is no secret. Can one then, actually expect an impartial and an expert understanding of issues of athletes by the NSF’s?
The Code, 2011 put sports at par with public education and public health and deemed sport development a public function, yet little has been done to regulate or understand the concerns of these athletes, which at times may even take the shape of national importance. Cases of Dutee Chand and Sarita Devi are glaring examples in this regard. India in recent times has seen a spurt of interest in various sporting activities besides cricket, and so the number of issues faced by these athletes are also set to rise. One can only hope that the government wakes up to these concerns and no longer remains a silent spectator leaving all these athletes in a lurch and at the mercy of the National Sports Federations./ILNS/SNG
Nikhil Jhunjhunwala, Khaitan & Co