A critique of India’s ‘Prevention of Sporting Fraud Bill, 2013’
Published 22 January 2014 By: Desh Gaurav Sekhri
In recent years, sports in India have been beset with controversy. The fallout from the Commonwealth Games 2010 in Delhi and the allegations of corruption against the organizers has led to growing support for regulating and overhauling sports governance and administration in India.
This support has escalated with further controversies involving national sports federations and their structures including revenue and profit parameters, and more recently, the issue of match-fixing, spot-fixing, and illegal betting in the most popular sport in India- cricket. It was therefore proposed by all concerned that sports administration, governance and participation be regulated and provided a legal framework which covered all aspects of sports in India. It was with this purpose in mind that the central government proposed a legislation that covered any unethical activity in sports.
The anticipated first draft of the 'Prevention of Sporting Fraud Bill, 2013' ("Anti-fixing Bill")1 was recently placed in the public domain in India by the Ministry of Youth Affairs and Sports ("Sports ministry"). This legislation traces its origin to the spot-fixing controversy that engulfed the Indian Premier League ("IPL")- a professional cricket league that is India's most successful and profitable professional sports league in May 2013, when three Indian cricketers from the Rajasthan Royals team were said to have been involved in spot-fixing during certain league cricket matches2. The controversy took a more explosive turn when Gurunath Meiyappan, reportedly the Team Principal/owner of the Chennai Super Kings team was interrogated by the authorities regarding his role in sharing sensitive team information with individuals who were accused of either betting on the IPL matches, or of being 'bookies'. While the probe into the IPL spot-fixing controversy continues, what emerged from the controversy was that there were strict limitations within the existing legal framework to charge or prosecute alleged sporting fraud offenders in India. This is in part due to inadequate penalties through archaic laws (for example, the 'Public Gambling Act' of 1867), or the absence of any law governing fraud on the field of play. Because of this, the Sports ministry and the Law ministry, in an effort to curb unethical activities and corruption/fraud in sports, decided to draft a national legislation that would cover the grey areas/omissions within Indian law in this regard.
'Sports' is a State subject under the Constitution of India. The Sports ministry is granted a role in developing sports and improving governance and accountability parameters through another landmark legislation that is also in the draft phase - the draft National Sports Development Bill, 2013 ("Sports Bill"). Since sports is a State subject, both the Anti-fixing Bill and the Sports Bill will need to be introduced before the parliament, and will require the support of the States as well as the acknowledgment by the lawmakers that the two bills serve the national interest of India.
The Anti-fixing Bill is a complicated piece of legislation. The aim of the Anti-fixing Bill is to "prevent and combat sporting fraud affecting the integrity of sports and fair play in relation to national and international sporting events and for matters connected therewith or incidental thereto.3" The Indian sports domain is largely unorganized and unregulated, and the core principals of doping control, ethics, fair-play and associated guidelines/regulations are either nascent or non-existent. It's important therefore to point out that the intent of this legislation is good, and it is required in a sports jurisdiction like India, where there is ambiguity relating to laws and regulations within the sports domain and framework. Therefore, a law that seeks to prevent sporting fraud in India is a welcome legislation. However, there are loopholes and omissions within the Anti-fixing bill that could cause confusion if the Bill becomes an act, and could lead to misinterpretation. There are also aspects that could cause practical difficulties if the situations envisioned by the Anti-fixing Bill actually take place.
The most glaring omission is the absence of a provision that stipulates educating the relevant people including but not limited to the sportsmen, the personnel, the administrators those in a managerial capacity, and those in positions of fiduciary responsibility as to what sporting fraud entails, and how each individual is meant to react and report. In an evolving sports jurisdiction like India, this is a vital first step; without orienting the relevant people it will be difficult to practically enforce the Anti-fixing legislation. Another glaring omission is the absence of a section stipulating the process and procedure for investigating/probing any report of sporting fraud. Without providing the accused the requisite due process and a stipulated disciplinary probe, there will be the risk of inconsistency in decision-making and uncertainty in terms of guidelines being followed. A somewhat arbitrary mechanism in the absence of any process or probe panel is risky from an enforcement standpoint. There isn't any reason provided for this omission, which makes it even murkier from an interpretation standpoint.
It isn't difficult however to understand why there are seemingly unexplained omissions throughout the bill. First of all, the subject matter is such that it is difficult to encompass all possible eventualities when it comes to preventing unethical activities in sports. And given that Indian lawmakers have had limited (if any) prior experience with drafting a legislation that addresses an issue that remains a serious concern in most global sports even in sophisticated jurisdictions, some omissions could actually be accidental, while the others could be by design. And one must not forget that certain aspects may not have been directly addressed due to either logistical considerations, and also to ensure that it is a bill that would likely pass muster when introduced before the parliament. For a bill to be passed by the Indian Parliament, it needs to be introduced before both the houses- the Rajya Sabha and the Lok Sabha. Once it passes separately in both houses, it is signed into effect by the President of India. At the present moment, the Anti-fixing Bill has not been introduced before either house of the Indian Parliament.
Section 3 of the Anti-fixing Bill outlines the offence of sporting fraud where a person who "manipulates sports result, irrespective of whether the outcome is actually altered or not, or makes arrangement of an irregular alteration of the field of play or the result of a sporting event including its incidental events or deliberately misapplies the rules of the sport, in order to obtain any economic or any other advantage or benefits or promise of an advantage or benefits, for himself or for any other person so as to remove or reduce all or part of the uncertainty normally associated with the results of a sporting event."
Not only is it vague, the extremely broad scope of this sub-section would likely cover any scenario that could even deviate slightly from the normal rules of play, yet would be punishable as if it was an act of sporting fraud. For example, a captain of a cricket team sending in a part-time spinner who is a part of the squad on the basis of his batting, and who happens to be from the same state or district that the captain belongs to, during a period when both batsmen are set, and known to play spin well could be considered a breach of this Section, even if the captain's intent is merely to expose his team-mate to bowling in pressure situations, and even if the result is not actually altered due to this bowling decision. Similarly, there are numerous other situations that can be misconstrued across different sports. Perhaps the interpretation would be more lenient towards a possible offender, but that is by no means a certain outcome, since no guidelines have been published to assist in the interpretation. The punishment for an offence under Section 3 is imprisonment for a period of up to five years and a fine of up to INR 10 lakhs or five times the economic benefits derived by the person from sporting fraud, whichever is greater. In Section 4 of the bill, there is a duty to inform the requisite authority if one has any information regarding potential commission of an act of sporting fraud, and a failure to inform would lead to a punishment of imprisonment of up to three years and a fine of INR 5 lakhs or three times the economic benefits derived by the person from the sporting fraud. The latter seems rather onerous on the person whose duty it is to inform.
Section 8 of the Anti-fixing bill sets out offences by companies or association of individuals, unequivocally putting the onus of sporting fraud in the context of companies, on the entire company especially the persons in charge of and/or responsible to the company for the conduct of business of the company. Section 8(1) states: "Where any offence punishable under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall to be proceeded against and punished accordingly." If however a person "proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence", then the person will not be liable to any punishment. This section inhibits corporate involvement with sports events or leagues, given the risk component that corporations and their management must consider before involving themselves with sports properties. Section 8(2) of the bill in fact states: "where any offence punishable under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part, of any director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly." Such stipulations may deter sponsorship or investment in the long run, should the bill become an act.
Although the draft Anti-fixing Bill was expected shortly after the IPL spot-fixing controversy, it has taken nearly seven months for the draft Bill to have been shared with the general public, a lengthy period of time. And, since the draft itself is yet to be finalized, it has not been introduced before parliament in the winter session that recently concluded. The central elections in India are scheduled for April 2014, which for the Anti-fixing Bill could mean that it might be shelved until the monsoon session of parliament, possibly delaying its introduction by at least six months from now. The Anti-fixing Bill is the first national legislation that attempts to check sporting fraud in India. It is a needed legislation, but there are aspects that the author argues need to be addressed, and sections that need to be revised/ modified to factor in the practical realities in the domain. Once these are addressed, and once the Anti-fixing Bill is hopefully notified into an Act, it will serve as a vital legislation to help ensure sports are cleaner in India.
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Desh Gaurav Sekhri is one of the first Sports Attorneys in India, and he leads the Sports law practice at J. Sagar Associates (“JSA”), a premier national law firm, since he joined in February, 2009. He is also the author of “Not Out! The incredible story of the Indian Premier League”.