Fighting sports corruption in India: A review of the National Sports Ethics Commission Bill 2016

Published 01 July 2016 | Authored by: Nandan Kamath

In early 2016, a new Bill known as the “National Sports Ethics Commission Bill 2016” was introduced to the Indian Parliament. The 2016 Bill’s stated aim is to bring about legislative reform to help improve the integrity of sports in India, which has in recent times suffered a series of scandals and corrupt practices. This article analyses the Bill’s proposals and explains the sporting, legislative and political landscape that surrounds it.

 

Background: More money, greater expectations

The Indian sports environment has been abuzz with activity in recent years. A new private sports league announced practically every quarter.1 Sports sponsorship in India grew 12.3% to Rs.5,185.4 crore (~US$ 800 million) in 2015 from Rs.4,616.5 crore (~US$ 700 million) in the previous year.2 The broadcast rights for the IPL are already valued at over Rs. 900 crore (~US$ 130 million) a year, a figure that is expected to double when the existing broadcast rights deal expires.3 The brand value of the IPL was estimated to be US$3.5 billion in 2015 by American Appraisal, a Division of Duff & Phelps.4 According to the BCCI, the 2015 IPL season contributed Rs.1,150 crore (~US$ 170 million) to the gross domestic product of the Indian economy.5

The increase in private investment in sport, combined with the resulting appreciation of the importance of public trust in authenticity of results, has brought the issue of participant-integrity to the forefront of legal discourse. Indian sport is no stranger to challenges of integrity. Match fixing, event manipulation and illegal betting have shaken the country’s primary sport, cricket,6 more than once in the last two decades. Combine the issue of fixing with age fraud,7 doping8 and sexual harassment9 and we have a quartet of familiar faces that are making their presence felt not only nationally but also internationally. For example, 58 Indian weightlifters were found doping10 in 2015 alone and the country’s athletes regularly rank in the top 3 in the World Anti-Doping Agency’s annual doping report. The age fraud issue is so rampant in cricket that the Board of Control for Cricket in India (“BCCI”) has had to take the extraordinary step of prohibiting11 its own players from playing more than one edition of the Under-19 World Cup. Multiple age-related cases12 and disputes13 have come up in badminton,14 another sport gaining in popularity.

That said, in India, it is the issue of fixing that has been the most prominent integrity issue. The credibility of the Indian Premier League (“IPL”) has not only been called into question15 by fixing allegations, but various related events16 in the league have had a domino effect, with the outcrop being the Supreme Court-appointed Lodha Committee’s Report and the actions that the Supreme Court might soon recommend based thereon. These legal developments are expected to alter the way cricket and, for that matter, all other sports in India will be governed.

It is in this context that the National Sports Ethics Commission Bill, 2016 (2016 Bill) must be seen. The Bill was introduced earlier this year by Mr. Anurag Singh Thakur, M.P. a member of the BJP, the ruling party at the Centre. Mr. Thakur was then Secretary of the BCCI and has since taken the reigns as its President. The frustration of the, thus far, unsuccessful attempts at prosecuting alleged IPL ‘fixers’ under the Indian criminal law’s provisions for ‘dishonesty’ and ‘cheating’ are listed in the Bill’s Statement of Objects and Reasons as key motivators for the proposed legislation.

In practice, the existing general criminal laws in India have significant limitations in their application to matters of sports integrity. For example, offences in the nature of ‘cheating’17 requires a victim of the alleged act to be ‘deceived’ such that such person ‘deliver[s] any proper­ty to any person’ and this causes such person ‘damage or harm’ ‘in body, mind, reputation or property’. For an alleged offence of match fixing, the prosecution has found it difficult, if not impossible, to prove these constituent elements of such an offence, finding it particularly challenging to identify a victim and the damage or harm caused to him or her. It is to be remembered that this is in a context where betting is illegal and punters cannot be the putative victims, a legal route used in other jurisdictions. This has led to those accused of ‘match fixing’ being tried under laws relating to organized crime (such as the Maharashtra Control of Organised Crime Act, 1999), on the basis that they have conspired with the underworld. But this is more out of compulsion rather than by choice. With the substantive framework being ambiguous at best, this also creates significant limitations in criminal procedure, of investigation, evidence gathering and prosecution of offences. Administrative bodies that police sport within the federations do not have legal powers of search and investigation and those state bodies that do have these powers are unable to exercise them effectively.

It is in this legal context that the Bill states that it sets out to achieve “the purpose of fair play, conducive environment for sports and justice to those wronged by others” by creating a set of new criminal offences and penalties relating to participant-integrity in sports and establishing a formal mechanism for adjudication of sports disputes through creation of a national commission.

 

What does the Bill propose?

In its own words, upon enactment, the Bill aims:

to provide for the constitution of a National Sports Ethics Commission to ensure ethical practices and fair play in sports including elimination of doping practices, match fixing, fraud of age and sexual harassment of women in sports and for matters connected therewith or incidental thereto.” (Introduction)

Principally, it aims to achieve these goals as follows:

Sections 6-10 – Constitution and Functioning of the National Sports Ethics Commission.

Requiring the Central Government to constitute a National Sports Ethics Commission to oversee and enforce the various Codes of Ethics that sports federations are mandated to frame. The Commission is to be constituted of six members appointed by the Central Government, of whom at least four members shall have been Judges of the Supreme Court or a High Court and who shall be appointed in consultation with the Chief Justice of India or his nominee. Specific terms have been included to provide for independence of tenure and functioning, including prohibition on a Member of the Commission from seeking any position in or taking benefit from a sports federation after completion of service. Hiring of permanent staff and a Secretariat are contemplated and the National Commission is also empowered to engage experts in the field of sports on a contract basis. A budget of Rs. 20 crore (~US$ 3m) as a one-time expenditure and Rs. 50 crore per year (~US$ 7.5m) as recurring expenditure is proposed for establishment and operation of the National Commission.

Sections 3-5 – Ethics Committee and Codes of Ethics for Sports Federations, Annual Reporting Obligations to National Commission.

Requiring each sports federation to constitute an internal Ethics Committee, with members having terms of a maximum of four years and not being eligible for re-election. Each sports federation is required to frame a Code of Ethics (in accordance with guidelines established by the National Commission) relating to the prevention, monitoring and detection of unethical practices in sports and offences provided for in the proposed Act. Reports of malpractice and offences are to be submitted, along with evidence, to the National Commission in a timely manner and annual reports are to be submitted to the National Commission on the Committee’s functioning and activities.

Section 10 – Powers of the National Commission.

Empowering the National Commission to:

  • Order reports from a sports federation against a sportsperson regarding commission of an offence under the proposed Act;
  • Frame guidelines for annual reports to be submitted by sports federations;
  • Order a sports federation to amend its Code of Ethics to the extent it is not in consonance with the law and principles contained in the proposed Act;
  • Hear and adjudicate cases relating to any civil matters where a sports federation is impleaded as a party, while exercising the powers and being bound by the procedures of a civil court under civil procedure and evidence laws.

Section 11 – Civil Jurisdiction of National Commission.

Requiring that ‘all civil cases in which sports federations have been impleaded as party and pending adjudication before any court of authority other than a High Court or the Supreme Court’ shall stand transferred to the National Commission.  Similarly, other than matters subject to writ jurisdiction, any case pending adjudication before a High Court ‘in which a sports federation is a party’ may be transferred to the National Commission with the leave of the court. The Bill also bars the jurisdiction of civil courts and other authorities for matters over which the National Commission is given powers, and further bars the grant of injunctions by a civil court or authority relating to any action taken or to be taken pursuant to the proposed Act. Appeals from the National Commission are to lie with the High Court or the Supreme Court, as applicable. Orders of the National Commission are to be executable as decrees of a civil court.

Section 15-20 – Creation of new offences of ‘Sports Fraud’, Penalties.

Delineating offences, supplementary to those under existing laws, and criminal and administrative penalties for:

(i) sexual harassment, including by a member of any sports federation, a coach or a sportsperson; (Sections 15, 16)

(ii) ‘match fixing’, including receipt of money for any underperformance, placing of bets on event in which they participate and thereafter undermine their performance, passing of inside information to betting syndicates, preparation of pitches by groundsmen upon payment from a betting syndicate, and providing and enabling access to Indian and foreign players to influence their performance for money consideration; (Section 17)

(iii) age or gender fraud, defined to include withholding of information and facilitation of participation by a sportsperson, guardian, coach or member of a sports federation, the permits an ineligible athlete to take part in a competition that is not suitable for the athlete’s age or gender; (Section 18)

(iv) doping and substance abuse, in the manner described in the sports federation’s Code of Ethics; (Section 19) and

(v) failure to comply with directions of National Commission. (Section 20)

While the offences described in (i) – (iv) above all have the potential for permanent debarment from participation in any events or activities of the sports federation, there are also criminal penalties envisaged from not less than one year for the offence of age or gender fraud to not less than ten years for the offence of match fixing along with a range of fines for all of the aforesaid offences (including a fine of five times the amount involved in any match fixing). The National Commission can also impose penalties in cases of applications that are deemed frivolous or mala fide (“in bad faith”) and may also award costs of litigation to a party.

 

Why are the 2016 Bill’s proposals seen as necessary? The present legislative framework and background

The Bill is not the first attempt at tackling a majority of these aforesaid issues.

The National Sports Development Code of India, 2011 required national sports federations to

  1. institute mechanisms to comply with anti-sexual harassment laws,
  2. to administer anti-doping procedures and testing in compliance with nominated guidelines (including right to representation, procedures maintaining integrity of samples during collection, transportation and testing and principles of maintaining dignity of the athlete), and
  3. to put in place measures to check age-fraud (including identity card creation, record keeping and physical, dental and radiological examinations, and bans for 2 and 5 years, respectively for first and second offences).

These conditions were required to be satisfied in order to receive government funding and recognition and none of the alleged offences had either legislative status or punishments at law.

The Draft National Sports Development Bill, 2013 (“National Sports Development Bill 2013”) attempted to bring certain governance structures to all national sports federations, including the issue of sports ethics. Besides providing for age and tenure limitations for office bearers and requiring transparency in the functioning of sports federations, it provided that:

  1. every national sports federation would have to put in place and enforce a Code of Ethics for its sport;
  2. the National Anti Doping Agency (“NADA”) would be the apex body to tackle doping issues in India,
  3. the Central Government could make rules relating to age fraud and each sports federation would have to take measures to prevent age fraud,
  4. the Central Government could make rules to define sexual harassment in sports and provide for appropriate penalties; sports federations would have the responsibility to prevent sexual harassment in their sport and establish and operate complaint and redressal procedures to handle allegation of such harassment, and
  5. there would be established an Ethics Commission to enforce the Codes of Ethics, a Sports Election Commission and an Appellate Sports Tribunal with distinct roles and powers of oversight and adjudication.

However, the National Sports Development Bill 2013 did not progress as the Government was unable to find consensus,18 even within its own Cabinet.19 This was not surprising, with the Cabinet constituted of functionaries of various sports federations, including the BCCI, who would not only be personally affected but with their federations potentially being bound by various prudential norms were this to become law. As a result, the National Sports Development Bill 2013 was scuttled in its entirety. It was later abandoned20 for good by the present government, which had pushed for its passage while it was previously in the opposition.

The missing teeth of the National Sports Development Code 2011, the political challenges of passing the National Sports Development Bill 2013 and the limitations of the general laws of the land with respect to sports fraud were sought to be addressed in part by a precursor to the 2016 Bill in question. The Draft Prevention of Sporting Fraud Bill, 2013 (“2013 Draft Bill”) was a rehash of the decade-old Prevention of Dishonesty in Sports Bill, 2001 and was itself the Ministry of Youth Affairs and Sports’ response to the Law Ministry’s draft of a Dishonest Practice in Sporting Event (Prevention) Bill, 2013 produced after the IPL 2013 spot fixing incident. The 2013 Draft Bill proposed to create “sporting fraud” as a special category of offence, including:

  1. manipulation of sports results to obtain economic advantage so as to reduce the uncertainty normally associated with sports results,
  2. willful failure to perform to true potential other than for strategic or tactical reasons,
  3. disclosure of inside information, and
  4. failure to report an offence after being in possession of information relating thereto.

Imprisonment from between three and five years was envisaged for the different offences as was fines ranging from three to five times the economic benefit derived from the fraud. It also provided for corporate criminal liability where a company was deemed to be the perpetrator of sports fraud, extending liability to persons responsible for and in charge of the company. This Bill also proposed the creation of an “appropriate authority” to oversee these matters. It further proposed that a criminal court would take cognizance of an offence only upon a complaint made by (a) the appropriate authority, (b) the ethics officer of a national sports federation or (c) any other person only after 60 days of such person having notified the appropriate authority of the alleged offence. The 2013 Draft Bill went through certain modifications after comments from the Law Ministry21 and went to the Cabinet22 for consideration in 2015 but has not made further progress in Parliament.

Both the 2013 Draft Bill and the 2016 Bill are borne from the frustration of the very tangible limitations of the Indian Penal Code and other criminal statutes in dealing with the trial of three players (and associated persons) accused of match fixing during the 2013 season of the IPL. While all the three players in question have since received life bans23 from the BCCI after proceedings of its Disciplinary Committee, the criminal trial against them ran into rough weather and spluttered.24 The prosecution was unable to make a convincing case that the alleged acts of spot/match fixing constituted an offence under any applicable statute. The trial judge discharged all 36 accused stating that the offence ‘pertains to betting and match-fixing, which does not fit in any penal statute’.25 The Delhi Police has appealed the verdict,26 but whether or not any headway is made on appeal does not in the author’s opinion eviscerate the significant challenges of applying general criminal laws to sports fraud, as described above.

The 2016 Bill has similar objectives as the 2013 Draft Bill when it comes to creating offences relating to participant-integrity and designating an appropriate authority. However, it seeks to take a much larger bite out of the integrity pie by including sexual harassment, age and gender fraud and doping within its remit as it attempts to establish a clear culture of deterrent punishment.

The 2016 Bill also appears to borrow significantly from the National Sports Development Bill 2013 and envisages a greater role for the National Commission than merely oversight of codes of ethics or adjudication of offences. As we shall examine in the next section, it is in this overt attempt at extreme deterrence and the broad sweep of the National Commission’s jurisdiction that some of the substantive and procedural limitations in the Bill’s drafting and structure begin to show.

 

Analysis of the 2016 Bill: The need for further clarity and balance

There is no question that the Bill is an ambitious attempt to bring a new culture of participant-integrity into Indian sport. The ‘conducive environment’ for sport that the Bill itself espouses will depend significantly on balance and fairness in not only the interpretation and implementation of the ensuing law but also in the overall legislative framework that is envisaged.

Lawmakers will be well served re-evaluating, debating and clarifying the following aspects of the Bill:

  • Jurisdiction – It is unclear from the Bill’s drafting how jurisdiction attaches to matters that are to be brought before the National Commission and for the acts that constitute the various offences contemplated in the Bill. Is jurisdiction based on a sports event being held in India? Or will it also include sports competitions anywhere in the world in which an Indian athlete participates? The definition of ‘athletic competition’ which contextualizes some of the offences includes ‘local, national or international level’ sports competitions in which a sportsperson competes.
  • It does not clarify where these are held. The definition of ‘sportsperson’ is simply stated as ‘a person who participates in sports’. Presumably, the Bill is targeted at formal and organised sports and it, therefore, rightly relies heavily on the role of sports federations in the investigation of inquiries into and calling out of violations. While this could potentially have been an indicator of jurisdiction and scope, the definition of ‘Sports Federation’ is also very wide so as to include every federation recognised by the International Olympic Committee (IOC) in respect of an Olympic sport, any federation that regulates the sport at an international level if respect of non-Olympic sports or any other federation which regulates any other sport internationally or any other sports federation recognised by the Central Government. The reference to international federations rather than national and state federations is confusing and does not help the cause of clarifying jurisdiction. Further work will be required to achieve clarity and certainty on the jurisdictional aspects of the proposed Act and the applicability of the various terms of the Bill. An overbroad approach may not stand up to scrutiny, especially with respect to criminal offences.

    Perhaps, in the first instance, the Bill’s jurisdictional sweep, at least for the criminal offences, can be specifically limited to international, national and state-level events held in India under the auspices of recognized national sports federations (regardless of the citizenship of participants), as well as events and occurrences that transpire within the territory of India (with respect to integrity issues that are not restricted to in-match conduct). Once a culture of compliance has been created at this level, due consideration may be given to extending the coverage to more local events such as inter-district, inter-school and inter-collegiate competitions. The potential for criminal liability for acts committed outside India but while representing India would also need distinct consideration.

  • Scope of dispute resolution – Although on the face of it the National Commission is established to oversee matters of ethics, the Bill makes it the quasi-judicial adjudicatory body (of first instance) for all civil disputes in which a sports federation is impleaded. The intended scope of dispute resolution here is far broader than ‘ethics’ matters, with sports federations having to deal with, among other things, matters of membership, election, recognition, eligibility, selections and event vendor and payment disputes that are far removed from ethics and are more issues of internal governance.
  • If the intention of the legislature is to create a body to adjudicate all civil disputes (and not just ethics disputes) where sports federations are a party that is a wide mandate and must be recognised and debated as such. Perhaps the scope of the National Commission’s reach can be limited in the initial phase to issues relating to and arising out of the Codes of Ethics framed by the various national sports federations. Once it succeeds in this already significant role, the mandate could be expanded to include the adjudication of all civil disputes where a national sports federation is a party. It would be advisable to continue to leave the adjudication of criminal offences outside its remit.

  • Adjudication of offences – The Bill creates a number of new criminal offences, with penalties including life bans, fines and even incarceration. The 2013 Draft Bill outlined a procedure for a court to take cognizance of an offence of ‘sports fraud’ and required that the criminal court trying the offence in the first instance must be at least that of a Metropolitan Magistrate or First Class Judicial Magistrate.
  • The Bill, on the other hand, neither has these safeguards nor explicitly gives any powers of a criminal court to the National Commission. It is unclear where these offences will be tried and whether it was ever intended that the National Commission would play some role with respect to adjudication of these offences. Would the offences still be tried by criminal courts? Would a sports federation remain responsible for issuing the punishment of life bans? Will the sports federation and the National Commission’s findings be dependent and conditional on a finding by a criminal court or will standards of proof be different for the criminal offences and administrative remedies? These are some issues on which further clarity will be required to understand how the scheme proposed by the Bill will work in practice. The approach taken in the 2013 Draft Bill for taking cognizance of and trying sports integrity offences in appropriate criminal courts could be adopted, with the investigation and determination of administrative penalties remaining within the independent remit of national sports federations’ Ethics Committees with the oversight of and based on the guidelines framed by the National Commission.

  • Substance of offences; penalties – First, one must ask whether all of the proposed offences are appropriate for criminalization. While ‘fixing’, as defined, could arguably be a leading candidate from the set, with age fraud and doping there are currently serious limitations of science in testing and determination. Gender fraud (which has, rather inelegantly, been coupled with age fraud in the Bill), as we have seen in numerous instances, on its edges is unambiguously far more complicated than the black or white that criminal law jurisprudence demands. This is an issue best left out of the Bill. The absence of available defences is also concerning as is the penal structure which provides for minimum periods of incarceration that in some cases (such as fixing) are greater than those for offences such as rape and kidnapping. Further, life bans from sport as the sole (and, in fact, mandated) administrative remedy for the entire set of offences is likely to be disproportionate in a number of instances, whether or not there might be mitigating factors. The role of sentencing discretion and the importance of proportionality must be debated after lawmakers have determined that any or all of these matters are appropriate, capable and ripe for criminalization. Science, ethics and jurisprudence will each have a role to play in that determination and are likely to suggest appropriate defences for each of the listed violations as also a sliding scale for sentencing and punishment that is in line with international standards.

In summary, the Bill is an ambitious and politically astute foray that attempts to balance the independence of sports federations with oversight, adjudication and standard-setting by an overarching quasi-judicial government body. It does so while also attempting to create a penal environment, clearly underpinned by theories of deterrence, to preempt actions that erode trust in the integrity of sports performances. It does so by borrowing, somewhat inelegantly, from both the National Sports Development Bill and the 2013 Draft Bill. Given the recent events that have shaken Indian sport and the prevailing standards of ethics and governance, the Bill cannot be faulted for its ambitious nature. That said, more thought and work are needed before it is ready for enactment in a form and structure that will achieve its stated objective of creating an environment of fairplay and justice on and off the field.

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About the Author

Nandan Kamath

Nandan Kamath

Nandan is Principal Lawyer at LawNK, based in Bangalore, India. His practice specialises in sports, technology and media laws, with clients ranging from international and national sports federations, to leagues, teams, sponsors and athletes.
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