Sports Law in India

Chapter 1 Introduction-

1. Historical Background-

Sports have been the most popular form of recreation for people since time

immemorial. To trace down the conclusive history of sports in a precise manner is a

difficult task. For gaining true insight, one needs to dig historically to reach every

nook, corner and township in different parts of the globe. The scope and vastness of

sports and its history make it impossible to point to a date that marks D-day in the

world of sports.

Although it is impossible to know for sure, it is usually considered that wrestling and

boxing were the first sports every played. Competitions using the simple mode of

human transport, running, would also have been among the first sports played.

Competitions involving hitting, kicking, throwing a ball like object, as well as sports

related to hunting and throwing would also be expected to have be played in early

times.

Sports have always captivated the human heart n it can be affirmatively stated that

mankind has indulge in sporting activities from earliest days. Evidence can be found

in pre-historic cave painting in many parts of the world. The popular sports as they

exist today like cricket, hockey, football etc did not develop suddenly. Origin of these

sports can be traced to basic activities and rudimentary games. Such as throwing,

catching, jumping and fighting1. The traces of competitive sports were first traced

from the relics of settle communities of Egypt, wall paintings at Beni Hassan and in

tomb of Egyptian child, where are set of skittles had been found similar to ten- pin

bowling2.

1 Law & Sports in India (Development, Issues , Challenges), by Mukul Mugdal, Chief Justice of Punjab & Haryana High Court. Published by Lexis Nexis Butterworths.2 Egyptian sports: from 2000 B.C’ http://www.historyworld.net/wrldhis/PlainTextHistories.asp?historyid=ac02

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History of sports can also be traced back to the ancient Greeks. During those days

admiration for the healthy human body is shown in their sculpture and makes almost a

religion of competitive athletics. It was their custom on solemn occasions, including

even funerals, to engage in races. This passion leads to the world's first athletic fixture

- the games at Olympia, established according to tradition in the year 776 BC and held

every four years. At the beginning this was a one-day athletic meeting with a single

competitive event. The entire day is taken up with heats for a running race - a sprint

the length of the stadium, the equivalent of about 200 meters. In later years more

events are added. In the sports history, the important events that are included in the

Olympic Games are discus throw, javelin throw, long jump, boxing, wrestling,

chariots, horse racing and a challenge to test all-round ability - the pentathlon. The

pentathlon actually starts with contest in four criteria - running, jumping, throwing the

discus and the javelin. The winners from these encounters have to meet in a fifth and

exclusive contest, wrestling. However, the winner receives a simple token of their

victory, a garland of fresh olive to wear on the head. This is essentially a religious

festival, in honor of the greatest of the Greek gods, Zeus whose sanctuary is at

Olympia3.

Sports Culture in India

In early India, games and sports were very much concerned about the development of

physique and for the art of offence and defence. Also games were considered as a

kind of recreation and played a vital role in development of man’s personality. From

Vedic literature, The Ramanyana and The Mahabharata and the literary works of

Kautilya, Kalidas, Panini and Dandin as well as Buddhist and Jain Literatures it can

3 History of sports, http://www.icnsportsweb.com/a-brief-description.html.

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be well said that India had a rich heritage of activities concerning to sports. History

of sports in India can be traced from various civilisations:

i) Indus Valley Civilisation (3250 B.C to 2750 B.C) -

From the remains found in Mohenjadora such as statuette and “Grate Bath” produce

the strong evidence for sports like swimming. Marbles balls and dice used for games

and dicing was the important game as is evident from lots of dices unearthed. Beside

these different types of board games similar to chess and ludo were also prevalent.

ii) Vedic Period (2500BC to 600BC)-

Vedic women received a fair share of masculine attention in physical culture and

military training. The Rigveda tell us that many women joined army and played

many sports in those days. People were fond of swimming and playing courtyard

games such as “Hide and Seek” and “Catch and Run”. From Rigveda, it appears that

Vedic Aryan knew the art of boxing.4

iii) Early Hindu Period (600 BC to 320BC)-

From the literature of The Ramanyana, we can conclude that in this period people

started taking more interest in sports. Games played in this period were horse-riding

and chariot-riding. Hunting was considered as a royal game. Gambling with dices

was also played by many people. Chess was also developed during this period and

India is proud to be called the homeland of this great sport.

From the literature of The Mahabharata they have mentioned games like arm-fighting,

wrestling and hide and seek. As we all know Lord Krishna played ball games with

his friends at the bank of Yamuna. “Gulidanda” was also one of the game played and

4 “History of sports”, http://www.indianmirror.com/games/gam1.html

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it involves one long and one short stick. Kauravas and Pandavas were very fond of

playing gulidanda among themselves.5

The Mughal rulers of 16th and 17th centuries India were also known to have an

inherent taste for outdoor exercises and sports. Babar was known for swimming

across the river. Humayun was also known for climbing insurmountable heights6.

The Mughal emperors were keen hunter of wild games. They also played games like

polo, wrestling and pigeon climb.

In 17th century when East India Company came to India, British also brought their

traditional sports to India. British brought cricket to India in late 18 th century. The

Parsees were the first to embrace the game, but the credit of popularising cricket can

be given to Indian princes, who promoted this game. In modern India, like different

religions and races, traditional and popular sports exist side by side and are thus

flourishing. Beside the popular sport like cricket, hockey, lawn-tennis, football etc,

there are various other traditional sports like dhopkhel, kang shanata, gella-chutt, etc,

that are also played.

2) Definition of “Sports”

There is no single universally accepted definition of terms ‘sports’. Defining the term

has proved to be very difficult in explaining the term ‘sports’. The term ‘sport’

derived its origin from a French determined Middle English verb ‘sporten’, literally

5 “Sports in Ancient India”, http://sports.indianpress.org/ancient_indian_games.php6 Stephen Meredyth Edwardes, Herbert Leonard Offley Garret, Mughal Rule India, Atlantic Publishers and distributors, New Delhi, 1995, pp 279-285.

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meaning ‘to divert’7 and also Latin term ‘desport’, which means ‘to carry away’8. In

order to define paradigm of sports law, the first step to be undertaken is to carve out

an explicit definition of sports. Several attempts have been made to define sports

covering all its aspects. The British Sports Council has made useful contribution to

identifying certain prerequisites which might give a comprehensive definition of

‘sport’. The council has listed various prerequisites such as physical skill, physical

efforts, accessibility, strategy and tactics, essential purpose, risk, etc.9

Webster’s Dictionary defines sports as: 10

1. Any activity or experience that gives enjoyment or recreation; pastime; divertion.

2. Such activity requiring more or less vigorous bodily exertion and carried on according

to some traditional form or set of rules, whether outdoors, as football, hunting, golf

etc and indoor as basketball, bowling and chess.

The Kerala Sports Act 2000 under section 2(14), sport is defined as:

“Sports” shall include such activities organized as out-door games, athletics, games

conducted in open place or country sports, indoor games and aquatic sports and

popular games such as equestrian, show jumping, cycling ,motor racing,

mountaineering, boat racing, rifle shooting ,kalaripayattu, fencing, yoga and such

other outdoor and indoor sports and games, chess, gymnastics, wrestling,

weightlifting, cyclepolo and other olympic disciplines and include other physical

7 Webster’s New Collegiate Dictionary, New York, Webster’s, 1995.8 S Gardiner et al, Sports law, Second Edition, Cavendish, London, 2001.9 Guidelines for recognition of a sporting activity.10 Webster’s New World Dictionary of American Language, College Edition, 1968.

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activities which the State Government may, by notification in the gazette specify as

sports or games on the recommendation of the State Sports Council.11

Australian Sports Commission, ASC defines sports as:

“A Human activity capable of achieving a result requiring physical exertion and/or

physical skill, which, by its nature and organization, is competitive and is generally

accepted as being a sport.”12

The precise definition of what separates a sport from other leisure activities varies

between sources. The closest to an international agreement on a definition is provided

by SportAccord, which is the association for all the largest international sports

federations (including association football, athletics, cycling, tennis, equestrian sports

and more), and is therefore the de facto representative of international sport.

SportAccord uses the following criteria, determining that a sport should13:

have an element of competition

be in no way harmful to any living creature

not rely on equipment provided by a single supplier (excluding proprietary

games such as arena football)

not rely on any "luck" element specifically designed into the sport

They also recognise that sport can be primarily physical (such as rugby or athletics),

primarily mind (such as chess or go), predominantly motorised (such as Formula 1 or

11 http://www.dsya.kerala.gov.in/index.php?option=com_content&view=article&id=60&Itemid=63

12 http://www.ausport.gov.au/supporting/nso/asc_recognition

13 “Definition of sport”- http://www.sportaccord.com/about/membership/definition-of-sport.php

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powerboating), primarily co-ordination (such as billiard sports), or primarily animal-

supported (such as equestrian sport).

The inclusion of mind sports within sport definitions has not been universally

accepted, leading to legal challenges from governing bodies in regards to being denied

funding available to sports. Whilst SportAccord recognises a small number of mind

sports, it is not open to admitting any further mind sports.

In the Indian context, ‘sports’ as a field or genre has not been clearly defined. The

term has been classified in the State List of the Seventh Schedule of the Indian

Constitution under the wide genre of ‘Entertainment’, besides being mentioned in

Indian Income Tax Act as well as Arms Act. However, these acts do not define the

term precisely. The Arms Act refer to the term ‘sports’ for the purpose of licensing,

while in the Income Tax Act it is referred to for ascertaining income which does not

form part of total income. The Kerala Sports Act, 2000, specifies different kinds of

sports which are to be included within the ambit of the term ‘sports’. However, this

act also failed to give any precise definition of term ‘sports’.

3. Sports Law: Meaning & Need:

The term ‘Sports law’ can be said to be a misnomer. There is no specific sports law

as such, and it would be more meaningful to adopt the rubric of the ‘sports and the

law’ for describing the various laws that govern different aspects of sports. Thus, it

can be stated that the term ‘Sports law can mean to be one of those fields of laws

which constitute applied law as opposed to pure or theoretical law.

Sports law basically deals with issues that arise during the preparation for or

execution of sports event. Sports law also deals with issues connected to relationship

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between and activities of individual and institutions for sports. It transgresses into the

already established body of labour law, contract laws, competition laws, and the law

of torts. Related concerns pertaining to defamation and privacy rights also form an

integral aspect of spots law. However, in the present times, law relating to sports is

now established and is considered a separate and important entity that coincides with

the popularity of sports and players participation, and enhanced by increased media

scrutiny.

Sports Law can be roughly divided into the areas of amateur, professional, and

international sports. The distinction between a professional and amateur athlete is

somewhat tenuous. So-called "amateur" student/athletes at universities often receive

scholarships and other forms of compensation. Also, keep in mind that even though an

athlete may be defined as an amateur by one organization, he or she may not be an

amateur according to another. Of course, this leads to even more confusion. A

simplistic, yet useful definition is that amateur athletes participate in sports as an

avocation while professional athletes are involved in sports as a vocation.14

Amateur Sports law

Amateur sports are generally not regulated by the state or any other institution

and generally played on streets, parks or backyard example street football, gali

cricket etc. Players or person participating in these sports are not considered as

professional athletes or players and they are also not paid for participating in

it. In European countries, there is culture of playing sports by local people

amongst their friends on Sunday for recreation and enjoyment. Events like

Sunday league in England are considered as amateur sports and people

14 Sports Law: https://www.law.cornell.edu/wex/sports_law

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participating in it are not paid. These kinds of sports are generally regulated by

people playing themselves only. Amateur sports events are generally held at

schools or university level.

Professional Sports Law

In professional sports, person participating in these sports are well trained and

paid for playing sports by their owners. Perhaps the most important

relationship in the area of professional sports is that between the individual

player and the team owner. This contractual relationship is governed by basic

contract principles. Most sports leagues now have adopted Standard Player's

Contract which serves as a model employment contract between players and

owners. The model contract can be modified to accommodate the special

needs and talents of individual players. With the increase in salaries in

professional sports, most players are now represented by agents.

International Sports Law

An international sports event involves athletes representing different countries.

In these event athletes feel proud in representing their country at international

level. All major international sports competition like Olympics and the various

World Cups tournaments regulate the conduct of players, teams, and the

spectators through formulated rules and regulations.

From a mere source of entertainment and personal recreation, sport has grown into a

highly competitive industry with global pervasiveness. It is one of the largest revenue

generating industries in the world comprising 3% of the world trade. It has also

metamorphosed into an important and inevitable political and social activity.15

15 “Need for Sports law in India” by Francis Kuriakose & Deepa Kylasam Iyer, http://www.iasscore.in/latest-news-61.html

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Sports law, as formulated around the world, has evolved over a period of time. Its

evolution has taken place in the light of peculiar and complex situation arising in

sports. Despite the fact that there is no uniform law which governs sports and related

activities in India. Various decisions have been given in context of sports that fall

within the ambit of sports law. These decisions involve issues in relation to restraint

of trade, sports broadcasting rights, regulation of sport governing body, environmental

laws, torts and matter relating to constitutional aspects like the right of fair hearing in

disciplinary and doping incidents etc.

In recent time, it has been realised that there is an urgent need for enacting law related

to sports. In earlier days, sports were played just for participation and natural

corollary was that sports were to be played in the spirit of the game. The player and

the athletes had certain codes which regulated their conducts in all sporting events.

With the professionalization and commercialization of sports in India, and subsequent

increase in the financial stakes in the sports events, a number of disputes pertaining to

sports have suffered judicial intervention. One of the several issues that demand

judicial treatment relates to gender discrimination and sexual exploitation especially

of women in sports. Another significant issue relates to exploitation of players and

the predominant gap between players and the governing bodies of various sports.

Relationships in sports are different from any other commercial relationship although

commercialisation of sports involves the influx of huge amounts of money.

The sporting world has been plagued by scandals and controversies in the past few

decades. The Olympic Games Bidding Scandal, the recent IPL scam and allegations

of sexual harassment by the Indian Women’s Hockey Team have rocked the nation.

From six gold medals in a row from 1928 to 1956, the Indian Hockey team hit an all

time low failing to qualify for the 2008 Olympics. This incident exposed the

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maladministration and insularity of a defective system that drained our resources.

Even the gentleman’s game cricket has been marred by match fixing and payment by

bookies. All these incidents expose the dark side of a highly competitive world.16

The international sports body for each sport, made up of national bodies of different

countries is at the top of the hierarchy. The national sports bodies comprise the

provincial or state bodies of different countries. The provincial state bodies comprise

the different districts or clubs. In many countries, such as India, national as well as

provincial sports bodies, clubs, associations or societies are more often than not is set

up under the law of societies. These are autonomous non-profit making private

bodies. Additionally, many of these are also established as non-profit associations

under the company law jurisdiction in the UK and commonwealth countries including

India. These associations cannot dole out their surplus or make payment of dividends

to members. Their surplus, if any, has to be exclusively and wholly applied for

furtherance of organizational objectives.

In many states, such as India, these national sports bodies field the national team on

behalf of the country for participation in international competitions where first-rate

performance is a matter of pride for the whole country. They mull over the players for

participation and selection. These bodies also grant telecasting and broadcasting rights

to the successful bidder for heavy sums and also receive revenues from advertisement

in sports events. They also take punitive action against the erring players including

debarring them from the game. These bodies control even domestic matches or games

within the country.

16 “Need for Sports law in India” by Francis Kuriakose & Deepa Kylasam Iyer, http://www.iasscore.in/latest-news-61.html

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Despite the fact that these are private bodies, up till now in realism they are

performing significant public functions in the field of sports where national or public

interest is at best, similar to public or governmental authorities as regulators and

facilitators of the game in the field of sports. In view of that, in the said countries

including India for enforcement of their public duties and obligations right

Constitutional Writs of High Courts lie against these private bodies like any public or

Government Authority.17

There is no national or state legislation for regulation of sports in India. The Ministry

of Youth Affairs & Sports was set up by the Govt. of India to create the infrastructure

and promote capacity building for broad-basing sports as well as for achieving

excellence in various competitive events at the national and international levels.

Sports promotion is primarily the responsibility of the various National Sports

Federations (NSFs) which are autonomous in nature. The Ministry of Sports and

Youth Affairs issues notifications and guidelines from time to time for the purpose of

regulation of NSFs.

The Sports Law in India is governed and regulated by

1. National Sports Policy

2. Sports Law and Welfare Association of India

3. Sports Authority of India

4. The Sports Broadcasting Law in India.

17 Emerging Sports Law in India, By Vidhi Agarwal, Partner, Law Quest Internation. http://lawquestinternational.com/emerging-sports-law-india

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Chapter 2: Role of State

1. Need for State Intervention in sports

Sports build character, team spirit, loyalty, sense of fair play and the capacity to take a

loss in one's stride.18 Sports incorporate society's existing values and reinforce these

values on the playing field, through its rules and established institutions. The most

crucial aspect of sports is that it has the potential to transmit its principles and the

lessons learned from participation of athletes in various events, and its governance to

society in general.

Sports have also played a key role in nation-building and fostering unity and

friendship between warring nations and hostile communities. For instance, during the

1955 India-Pakistan Test cricket series, an estimated 20,000 Indians were given

permission to attend the Third Test in Lahore creating what one newspaper described

as 'the biggest mass migration across the frontier since Partition'. It has also been used

to eradicate ethnic strife.

Significant educational and physical benefits have been identified as arising from

athletic participation at competitive and recreational levels. Participation in

competitive sporting events is analogous to participation by many students in any

educational class in school, training for memorisation and basic analytical skills.

The judiciary all over the world has acknowledged the positive values associated with

sports. One such example is the case of Lilley v Elk Grove Unified School District19,

in which California Appellate Court ascertained the values associated with sports and

emphasised:

18Anneliese Nelson, “When, where and why does the State intervene in Sport : a contemporary perspective” ,Sports law ejournal, faculty of law, Bond University. http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1000&context=slej19 (1998) 68 Cal App 4, 939.

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“For many, sports are part of the school learning experience, among other things

teaching students how to deal properly with both success and failure, and instilling in

them an understanding of the importance good sportsmanship, discipline, and respect

for coaches, team-mates and opposing players. Another important part of the

experience is that students and their parents learn about accepting responsibility for

the consequences of one's choices and actions. By choosing to participate in a sport

that poses the obvious possibility of injury, the student athlete must learn to accept an

adverse result of the risks inherent in the sport. In other words, application of the

doctrine of primary assumption of the risk in the extracurricular school sports setting

is consistent with, rather than inimical to, the goals and responsibilities of elementary

and secondary schools.”

In the case of Krishan Lal Gera v. State of Haryana20Delhi High Court said that-

“Sports promote health, spirit of competition, and social integration. The

sports facilities in the Stadium are meant to be used by residents and

sports persons of the city/town and surrounding areas. The country

requires world class infrastructure to train potential athletes and

sportspersons. It is not sufficient if infrastructure is created, but such

infrastructure and facilities should be properly maintained and optimum

utilization of the infrastructure should be ensured.”

The Parliamentary Standing Committee on Human Resources Development21 has

noted:

"Under-utilisation of infrastructure Optimum utilisation of our existing sports

infrastructure has also been one of areas of concern before the Committee. We have

erected huge stadia and other sports infrastructure in the metros and cities, which are

20 AIR 2011 SC 2970; (2011) 10 SCC 529.21 185th Report on Promotion of Sports in India (laid on the Table of Lok Sabha on 30.11.2006)

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used only when national or international tournaments take place. For the rest of the

period, stadia remain unutilized or are rented out for cultural programmes and other

non-sporting events. The public at large generally does not have access to such huge

stadia. A lot of money is being spent on their maintenance including security. Sports

Federations and other bodies having offices there, do not pay the rent also. Besides,

excellent infrastructure is created in different States by way of organizing National

Games there. The Committee came to know that these generally remain idle most part

of the year and States found it difficult to maintain. The Committee finds it ironical

that on the one hand, we suffer from massive lack of infrastructure and on the other

hand, our infrastructure remains un- utilized or under-utilized. This is an unfortunate

situation that needs to be corrected. The Committee strongly recommends to have a

plan prepared for this purpose in consultation with all the State governments,

Federations, Sports Authority of India, etc. for putting our infrastructure to maximum

use".

The Supreme Court of India in the case of Zee Telefilms Ltd and Anr v Union of India

(UOI) and Ors22 observed that, ‘Sport is considered to be a part of Education. Sport

has been included in the Human Resource Development as a larger part of education'.

In Secretary, Ministry of Information & Broadcasting, Government of India and Ors v

Cricket Association of Bengal and Ors23, the Supreme Court held that sports are a

form of expressive conduct, forming a part of the fundamental right to freedom of

speech and expression under Article 19(1)(a) of the Constitution, and stated:

“It may be true that what is protected by Article 19(1)(a) is an expression of thought

and feeling and not of the physical or intellectual prowess or skill. It is also true that a

22 AIR 2005 SC 2677, (2005) 4 SCC 649.23 AIR 1995 SC 1236.

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person desiring to telecast sports events when he is not himself a participant in the

game, does not seek to exercise his right of self-expression. However, the right to

freedom of speech and expression also includes the right to educate, to inform, and to

entertain and also the right to be educated, informed, and entertained. The former is

the right of the telecaster and the latter that of the viewers. The right to telecast

sporting event will therefore also include the right to educate and inform the present

and the prospective sportsmen interested in the particular game and also to inform and

entertain the lovers of the game: Hence, when a telecaster desires to telecast a

sporting event it is incorrect to say that free-speech element is absent from his right.”

Sports have also been identified as a unifying mechanism that provides a sense of

community among increasingly diverse constituents of larger bodies such as a region

or nation. This important function of sports is aptly described by Professor Rodney K

Smith in the following excerpt of his article24.

“In our diverse culture, characterized by a wide variety of ethnic, religious, socio-

economic, and other groups, there may well be no other force quite like sport, in terms

of bringing people of diverse backgrounds together in pursuit of a common purpose.

People from all walks of life are able to sense some unity of purpose as they gather to

participate in or watch competitive athletics. With growing divisiveness on the basis

of ethnic, religious, and cultural differences, the capacity of sport to unity may be of

increasing significance, particularly if teams are not divided on the basis of race,

religion, or culture. Deep friendships that transcend such difference are often forged

in the crucible of athletic competition. The need for such a sense of connection or

community is significant, although the capacity of sport to contribute to

24 R Smith, ‘When Ignorance is Not Bliss: In search of racial & gender equity in Intercollegiate Athletics’, Missouri Law Review, 61(2), 1996, p 329.

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connectedness may be discounted by those who refuse to embrace sport as anything

more than mere fun and games.”

This kind of an effect of sports, especially of a sport like cricket in India, is such that

when the Indian cricket team plays a match, all social, cultural, religious, and caste

differences are forgotten and people get together to watch the match and identify with

each other, whatever the fate of the team be.

In contrast to the optimistic vision of sports discussed above there are a few aspects,

which also mirror negative social attributes, such as selfishness, undue aggression and

inability to reconcile to a defeat. Sports, therefore, reproduce the tension between

values which favour unrestricted personal autonomy and those that favour external

regulation as a means of establishing community norms in the realm of sports. This

tension leads to a concern about how sports should be regulation a conflict between

sports and values, what should be given precedence? What is different about sports as

an object of regulation?

Though it is preferred that sports should remain outside the control of the State, State

intervention in a country like India is essential as most sports barring cricket, golf and

tennis are not lucrative enough and do need infrastructural support from the State 25.

Primarily, the state needs to ensure that all sports adhere to the societal values and

principles. Therefore, the state has to intervene in order to uphold the values of the

society by promoting sports and treating it as education. Sports have also been used in

society to instil regional and national feelings. For example, Adolf Hitler used the

Olympics in Germany to promote his agenda of racial supremacy. Similarly, during

the cold war, the American Olympic team boycotted the Moscow Olympics due to

political differences between the two nations, which was reciprocated by Soviet

25 Anneliese Nelson, “When, where and why does the State intervene in Sport : a contemporary perspective” ,Sports law ejournal, faculty of law, Bond University. http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1000&context=slej

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Russia in the Los Angeles Olympics. Indian cricket team's boycott of the cricket

series in Pakistan over political agendas of war and terrorism also clearly indicate that

there is certain control maintained on sports by the state, particularly when it comes to

national sentiments. Various sports bodies exercise control over Sports by—

Ensuring that the laws of the land are not violated;

Enforcing the rules of the game during the course of play; and

Evolving the process of reviewing decisions through bodies like National

Anti-Doping Authority and adhering to the rules and regulations of the

worldwide governing bodies like the International Olympic Association and

the Court of Arbitration for Sports.

The State as a sovereign entity plays a decisive role in the organisation and promotion

of physical activities and sports, as it oversees the approved sporting federations. It

promotes the sports federations along with their devolved organs like leagues and

committees, by providing them with financial assistance and human resources and

infrastructure, which supports their activities at both local and national level and

bestows autonomous status to the sporting federations for conducting various sporting

events.

Till now state intervention in regulating in sport, athletes and their conduct is very

limited. It is very difficult for any state draw line between conduct of any sport person

or any normal person. Fight between two sportsperson and fight between two normal

people is regulated differently. If a player punches an opponent repeatedly during a

rugby match resulting in a broken nose, the player may be sent off the field. At worst,

they may be suspended from play for a period of time by a disciplinary board. If this

same act was to occur on the street, the perpetrator would be arrested for assault

occasioning bodily harm or even grievous bodily harm.

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There are five main ways the State regulates sport. Firstly, the taxation of sports

people and sporting entities is firmly legislated. Second, some jurisdictions have

legislation governing particular sports such as boxing. Many have strong regulation

on drug use in sport. Third, wagering and betting statutes affect all types of sports

with which gambling is associated. Fourth, the State encourages sport through

funding, various fitness regimes and public health initiatives usually put forward by

Health Departments. Lastly, there are some circumstances where the criminal law is

invoked. This is largely to make a spectacle of particularly dangerous or callous

behaviour on the sporting field and is by no means consistently applied. Furthermore,

the criminal law is used in the sporting context to protect and uphold one of the main

functions of government: prevention of breaches of the peace.

Events like Hillsborough disaster and Heysel Stadium disaster forced the regulating

institution to regulate the conduct of teams, sportsperson and spectators. The

Hillsborough disaster resulted in the deaths of 96 people and injuries to 766 others, at

a match between Liverpool and Nottingham Forest at Hillsborough Stadium,

Sheffield, England on 15 April 1989. The disaster has since been blamed primarily on

the police for letting too many people enter the stadium. It remains the worst stadium-

related disaster in English sports history, and one of the world's worst football

disasters.26

The Heysel Stadium disaster occurred on 29 May 1985 when escaping fans were

pressed against a collapsing wall in the Heysel Stadium in Brussels, Belgium, before

the start of the 1985 European Cup Final between Juventus of Italy and Liverpool of

26 Eason, Kevin (13 April 2009). "Hillsborough: the disaster that changed football". The Times (UK). Retrieved 1 October 2009.

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England. 39 people mostly Italians and Juventus fans were killed and 600 were

injured in the confrontation.27

These two events shocked the world and let the world to realise the need for

regulating the sports to avoid these kinds of events. Regulatory imposed harsh

penalties and criminal penalties on the criminals.

2. The Ministry of Youth Affairs & Sports

The Ministry of Youth Affairs and Sports was set up in 1982 as the Department of

Sports and became an independent Ministry in 2000. The Ministry has been

functioning as the Department of faith Affairs and Department of Sports under two

separate Secretaries since 2008. The specific subjects of the two departments originate

from the Order of the Government of India (Allocation of Business) Rules, 1961.

The priority objectives of the Ministry of Youth Affairs and Sports are:

Maintaining and improving India's position in the world ranking of sporting

events through significant participation in world-class competitions.

Supporting federation policies to increase participation in competitive sports.

Creating the infrastructure and promoting capacity building for broad-basing

sports as well as for achieving excellence in various competitive events at the

national and international levels.

The National Sports Federations are responsible for organising, developing, and

coordinating high-level sports. They identify players to represent India, and coaches

to supervise the Indian squads. They entrusted with the responsibility to optimise the

resources allocated to different sports by initiating preparatory training for players and

by assisting various teams to take part in several international competitions. The

27Heysel: Liverpool and Juventus remember disaster that claimed 39 lives, http://www.mirror.co.uk/sport/football/news/heysel-football-stadium-anniversary-of-disaster-852138

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Federation also have the task of taking up initiatives for further discovery of talent

and promotion of the sports activities, with emphasis on the social and educational

role of sports. However, although these federations are required to play an important

role in the quantitative and qualitative improvement of sports activities, particularly

for people with disabilities, school children, women and the elderly etc, as well as in

the development and fitness of every individual, they usually do not.

3. The Indian Olympic Association (IOA)

India even before attaining independence participated in the Olympics. Participation

as a separate entity fostered the spirit of India's independent existence28.

Foundation of IOA-

Sir Dorabji Tata pioneered in 1920 the Olympic movement in India and in 1927 along

with Dr. A.G. Noehren founded the Indian Olympic Association (I0A). The domestic

talent without the infrastructure, training and resources gradually started flourishing29.

A small contingent of six members, four athletes and two wrestlers participated in the

Antwerp Olympic Games in 1920. Sir Dorabji Tata was elected member of the

International Olympic Committee (IOC) during these games30. A nine-member

contingent was selected for the Paris Games of 1924. The Indian athletes performed

better with two of them, TK Pitt in the 400 metres, and Dalip Singh in the broad jump,

performing exceptionally well. The Indian participation in the Olympics invoked a

national feeling and a sense of pride as Indian sportsmen participated on equal terms

with the other nation.

28 Majumdar.B and Mehta.N, 'Games of self respect: A colony at the Olympics'; 'Social and cultural diversity in the sporting world'; Emerald Group Publishing, edition 2008.29 B Majumdar and N Mehta, '100 yards round a bend: To Antwerp Peasants on Athletics track', 'Olympics: The India Story'. http://www.outlookindia.com/article.aspx?237954.30 B Majumdar and N Mehta, India and the Olympics, Taylor and Francis, 2009.

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Soon after taking charge as President of the Indian Olympic Association, Maharaja

Bhupinder Singh of Patiala faced the difficult task of sending a team to the

Amsterdam Games of 1928. It was as a result of his labour and influence that India

managed to send seven athletes and fifteen hockey players to Amsterdam31.

Role of the IOA-

The onus for the preparation of athletes and their participation in the Olympic Games

as well as in events like Commonwealth and Asian Games is with the Indian Olympic

Association. At the national level each sport has a separate federation which selects

sportspersons based on their performances. The national federations are assisted by

the Netaji Subhas National Institute of Sports, Patiala, and Sports Authority of India

which provide facilities not only to train sportsmen but also coaches and support staff

associated with the particular sports. Olympic Associations at the state levels also

strive to achieve the same objectives.

4. The Responsibility of the State

In India, the encouragement of games and sports is the responsibility of the states in

terms of Entry 33 of List II of the Seventh Schedule of the Constitution of India,

which reads, 'theatres and dramatic performances; cinemas subject to the provisions

of Entry 60 of List 1; sports, entertainments and amusements'.

The Union of India, in exercise of its executive functions in terms of the allocation of

business rules framed under Article 77 of the Constitution of India, has created a

separate Ministry of Youth Affairs and Sports. One of the objects of the Ministry is to

work in close coordination with national federations that regulate sports32.

31 Majumdar.B and Mehta.N, 'Games of self respect: A colony at the Olympics'; 'Social and cultural diversity in the sporting world'; Emerald Group Publishing, edition 200832 As observed in the case of Zee Telefilms Ltd & Anr v Union of India & Ors AIR 2005 SC 2677, (2005) 4 SCC 649.

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It is recognised that the management, development and encouragement of sports is

currently on the State List and only the State Governments are empowered to make

laws and take crucial decisions relating to it. To provide for the registration,

recognition, and regulation of sports associations, various states have formulated

individual Acts like the Himachal Pradesh Sports Act, 2005; Uttar Pradesh Sports

Act, 2005; Kerala Sports Act, 2000; and the Rajasthan Sports Act, 2005. However,

keeping in view the varied role of sports in our country and its importance in the

international arena, the Government and other concerned agencies, and the federations

or associations need to work together harmoniously and in a coordinated manner to

fulfil the objectives of achieving excellence in sports.

In view of the above peculiarity, Justice Sp Sinha in the case of Zee Telefilms Ltd and

Anr v Union of India (U01) and Ors33, in his separate dissenting judgment observed:

“The Union of India is required to promote sports throughout India, it, as of necessity

is required to coordinate between the activities of different states and furthermore

having regard to the International arena, it is only the Union of India which can

exercise such a power in terms of Entry 10, List I of the Seventh Schedule of the

Constitution of India and it may also be held to have requisite legislative competence

in terms of Entry 97, List I of the Seventh Schedule of the Constitution of India.”

The National Sports Policy, 2001, also observed that, the 'question of inclusion of

sports in the Concurrent List of the Constitution of India and introduction of

appropriate legislation for guiding all matters involving national and inter-state

jurisdiction will be pursued'. The debate as to who is empowered to legislate in

matters relating to sports in India has been given a new dimension by the Delhi High

33 AIR 2005 SC 2677

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Court in M/s Narinder Batra v Union of India34 decided on 2 March 2009. By

applying the principle of harmonious construction, it has been held that the arena of

sports with all its hues and colours is one such subject which, for different purposes

would be covered under different entries in different Lists in the Seventh Schedule to

the Constitution of India. The crux of the findings through which the power of

Parliament is traced to legislate on the said subject is as follows:

The management, development, and encouragement of sports, along with the

promulgation of sports law in India falls within the ambit of the state function

in terms of Entry 33 of List II of the Seventh Schedule of the Constitution of

India.

Sports have been traditionally considered an integral and inseparable part of

education. Measures in respect thereof fall within the jurisdiction of the

Department of Education under the Ministry of Education and Social Welfare

of the Government of India under the Allocation of Business Rules framed by

the Legislature in exercise of powers under the Constitution of India.

From as far deeply back as 1975, the Government deeply concerned with

Press and the growing criticism in Parliament, press and otherwise of the low

standards of sports and games had stated this in the circular no. F.11-4/74-SPI

I dated the 20 September 1975. It was held and ma primary responsibility for

the development especially of sports and games in the country y as the

necessary base for competence in competitions overseas rests with the Indian

Olympic Association, the National Sports Federations, Sports Federations, or

Associations.

As the efforts of these fallen organisations had short of the country's

expectations, leading to widespread public concern, issues of necessary

34 W.P.(C) 7868/2005

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remedial action were raised. The Government was concerned with the inability

to raise standards to international levels. It was also aware that the various

national organisations dealing with sports and games had autonomous

functioning. In this circular, the Government had clearly indicated that it had

no desire to interfere either with the internal working or with the autonomy of

these organisations.

However, consistent with its obligations, it was felt that the Government had

to lay down certain norms with reference to which the Government's

assistance and its instrumentality should, on occasions, be made available to

the Indian Olympic Association, the National Sports Federations or the

National Sports Associations.

In this background, the Government of India had considered the matter

carefully in consultation with the All India Council of Sports and therefore

decided that in the interest of promotion of sports and games, the

Government's financial and other assistance shall be extended only to those

national organisations dealing with sports and games which fulfilled certain

conditions laid down in its guidelines titled 'Improvement of Standard of

Sports and Games in the country—Conditions For Financial and Other

Assistance to National Sports Federation/Associations etc'.35

National Sports Federations as recognised by the Government may be

established as private bodies However, in order to become representative

bodies a; national federations representing the country, it is essential that they

be so recognised by the Government. They would have no authority to enforce

any degree of regulation or control over the various state bodies but for the

35 Guidelines for assistance to National Sports Federations.' http://www.ispsquash.com/guidelines%20for%20assistance% 20to%2Onational%20sports%20federations.htm

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authority which is vested on them only by virtue of the recognition granted by

the Government.

It may be desirable that sports federations have autonomy in areas of the

actual conduct of sports, However when a sportsperson represents India at the

international fora, it is an essential function of the Government not only to

oversee the scrutiny procedure for selection for a sporting event but also the

forum in which such selection procedure takes place. The sources of the

legislative competence of the Government to do so are Entries 10 and 13 of

List 136.

There can be no argument that international sporting events have been

considered an essential part of diplomatic relations of the nations. Nuances of

hostility in political relations, issues of defence, security concerns of players,

objections on account of policies of discrimination, apartheid, and perceived

human right violations have guided nations in decisions to participate in

sporting events in different countries. Political and diplomatic clearance is

required by the Indian teams before participation in the international

tournaments and forums. No State Government would have the competence or

the jurisdiction to undertake such exercise. This is clearly the province of the

Union Government.

The above observations and various judicial pronouncements clearly recognise that

the management, development, and encouragement of sports and the promulgation

of sports law in India specifically falls within the ambit of the states in terms of

Entry 33 of List II of Seventh Schedule of the Constitution of India. However,

Keeping in view the varied role of sports in our country and its importance in the

36 Entries 10 and 13 of List I of the Constitution of India read: 10. Foreign affairs, all matters which bring the Union into relation with any foreign country.

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international arena, the central and the state governments and other concerned

agencies and the federations or associations need to work together harmoniously and

in coordinated manner to fulfil the objectives of achieving excellence in sports.

5. Judicial Review

In several countries, sporting bodies exercising monopoly status are increasingly

coming under judicial scrutiny. The fact that the sporting associations are performing

some public functions and affecting vital public interest cannot be denied. Judicial

opinion in Scotland, New Zealand, and Canada is already in favour of judicial

supervision of sporting bodies, while in England, change is being advocated37. The

extension of the scope of judicial review in recent years to bodies that are not

necessarily thought of as public bodies has been the most interesting and promising

development in the field of public law. And the growing acceptance of the philosophy

that all those who wield power should be accountable and should be subject to general

principles of good administration indicates possibilities for developing the role of the

court in controlling the power of private corporations and self-regulatory bodies. In

India, a public law remedy in writ jurisdiction can, in given cases, be swift. Fourteen

cricketers of India including the then captain were penalised for their unauthorised

cricketing trip to the USA, by being banned from international cricket. This penalty

was challenged in the Supreme Court in Vineet Kumar v BCCI. In about a span of six

weeks, by two hearings in the Supreme Court, the ban was revoked and the cricketers

reinstated. Since the ban on the cricketers was revoked and the dispute resolved

amicably, the Supreme Court did not have the occasion to go into the issue of the

maintainability of the writ petition. The Writ Courts' supervisory jurisdiction helped

to ensure that public bodies do not abuse their power and do not act arbitrarily,

37 R v Jockey Club exp. Massingberd-Mundy (1993) 2 All ER 207, following Law v National Greyhound Racing Club Ltd 119831 1 WLR 1302

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capriciously, unreasonably, or unfairly. Whatever other regulatory controls they may

be subjected to, it is becoming increasingly desirable that private bodies wielding

controlling supervision. Litigation and the possibility of litigation can play a useful

regulatory role.

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