The need for better dispute resolution systems in Indian sport and the Government’s new Guidelines

Published 21 November 2016 | Authored by: Aahna Mehrotra, Purvasha Mansharamani

One significant problem in Indian sports today relates to dispute resolution, and specifically dispute resolution within National Sports Federation (NSFs). The types of dispute referred to in particular, are disputes and grievances arising out of selection procedure of athletes for representation at various national and international forums, disciplinary issues against the athletes, bans imposed due to age fraud, gender inequality, maintenance and submission of medical records, and issues regarding financial support.

The concept of sport being “legally autonomous” dictates that disputes are, so far as possible, resolved “internally”. Ideally this means that the dispute should be resolved within a suitable forum established by the relevant National Sports Federation (NSF). However, in India the NSFs have, by and large failed to establish satisfactory internal mechanisms and forums to address this issue. This problem is further compounded by their additional failure to incorporate an arbitration clause within their regulations entitling athletes final recourse to the Court of Arbitration for Sport (CAS). As a result, athletes are often left in an unenviable position (for reasons described below) of having to approach the national Courts should they wish to resolve their grievances.

The general failure of NSFs to provide adequate internal dispute resolution mechanisms was brought to the forefront and received national attention by two recent high-profile cases. The first concerned the female boxer Sarita Devi, which led Rajiv Dutta, a senior advocate, to file a Public Interest Litigation (PIL)1 (Rajiv Dutta vs. Union of India2). The PIL challenged the decision of International Boxing Association ("AIBA") which suspended Devi for refusing to accept a bronze medal at the Asian Games. Dutta argued that these federations should take note of the rules and regulations of CAS. The second case concerned former Olympic wrestler, Sushil Kumar3, who filed a writ petition against the arbitrary selection procedure adopted by the Wrestling Federation of India (“WFI”) for India’s representation at the 2016 Olympics, and made Ministry of Youth Affairs and Sports ("MYAS") a party to the dispute. Both cases are discussed below.  

On June 17 2016, as a response to the case filed by Sushil Kumar, the MYAS issued a new set of guidelines titled: “Safeguarding the Interests of Sportspersons and Provision of Effective Grievance Redressal System in the Constitution of National Sports Federations” (Guidelines)4. The rather brief Guidelines direct all NSFs to ensure that they:

  1. Establish an effective, transparent and fair “Grievance Redressal System” (i.e. dispute resolution system) to safeguard the interests of sportspersons; and

  2. Include within their constitution the right for aggrieved sportspersons to appeal their case to CAS.

This article scrutinizes the Guidelines within the context of examining why it is so important for the NSFs to establish a robust internal dispute resolution mechanism. Specifically, it looks at:

  • The current problems with dispute resolution faced by the Indian athletes;
  • The inability of athletes to take their grievances to the CAS;
  • Analysis of the new Guidelines and the wider push to improve dispute resolution;
  • Conclusion and author’s thoughts.

 

THE CURRENT PROBLEMS WITH DISPUTE RESOLUTION FACED BY THE INDIAN ATHLETES 

Prior to the publication of the Guidelines, the remedies available to sportspersons against most NSFs have been twofold:

  1. informally plead to their respective NSF to reconsider any decision; and/or 
  2. file a suit in the Indian Courts to override such decision pronounced by the NSF.

In the author’s experience, both remedies have proven to be for all practical purposes, futile. NSFs usually decline to reconsider their decisions. And the courts have either taken too long to settle the dispute (e.g. in Amit Kumar Dhankar v. Union of India5, where the action became infructuous (fruitless) as the event in contention was already over), or refused to interfere with decisions of the NSF (e.g. in Sushil Kumar’s6 case)

The Delhi High Court (DHC) in Sushil Kumar observed: 

41. Keeping in view the aforesaid, this Court is of the view that a writ Court will not interfere in the exercise of discretion of the National Sports Federation and substitute its own judgment except where the discretion is shown to have been exercised in an arbitrary or capricious or perverse manner or contrary to settled principles or practices.7

In other words, the Court contended that it would not interfere with the NSF’s decision unless the NSF has acted in “an arbitrary or capricious or perverse manner” while exercising its jurisdiction (similar to the position in the UK, see here8). Despite being mandated by the National Sports Development Code, 2011 (NSDC) most of India’s NSFs still do not have written rules, which makes it harder for the courts to determine what may or may not be termed as arbitrary, capricious or perverse. For example, WFI’s Olympic selection procedure, which was at the center of Sushil Kumar’s case, operates largely by tradition or precedents9. By not codifying their rules and regulations, it can be argued that NSFs can take advantage of the Court’s handicap in such cases.

The Guidelines clearly establish that it is the responsibility of the NSFs to incorporate into their constitution or bye-laws appropriate and coherent internal mechanisms to resolve all grievances. The Guidelines mandate all NSFs to create rules to address this. The author will analyse this direction after examining the second element addressed by the Guidelines: the requirement for NSFs to provide athletes with recourse to the CAS.

 

THE INABILITY OF ATHLETES TO TAKE THEIR GRIEVANCES TO THE CAS 

As CAS is an independent arbitral body whose jurisdiction is based upon contractual consent, a prerequisite for a matter to be heard by CAS is a relevant contractual provision included within the NSFs regulations or bye-laws10. India’s NSDC 2011 (at Section 6.1 (b)11) implicitly recognizes the jurisdiction of CAS by stating that NSFs must comply with the principles laid down in the Olympic Charter12. Section 15.1 of the NSDC, 2011 further provides for a grievance redressal mechanism.13 

Unfortunately, however, many NSFs in India still have not included such a provision, leaving their athletes stranded without having a recourse to appeal to CAS. 

This fact was sadly underlined in the case of Rajiv Dutta v. Union of India.

To briefly recap the facts, Devi was banned by the AIBA for breaching the AIBA Disciplinary Code by refusing to accept the bronze medal at the Asian Games.14 However, she was unable to file an appeal against the ban with CAS as the relevant NSF, being Boxing India, failed to provide for such a right within its regulations. The Court in its judgment stated: 

It is apparent from the material placed on record that no remedy is available as of today to appeal to CAS against the decision of the International Sports Bodies like AIBA. The fact that CAS is the final authority for settlement of disputes arising out of the decisions of International Sports Bodies has not been disputed by the Respondent No.1 [MYAS]. It also appears that the National Sports Code of 2011 contains a provision of appeal to CAS against any decision of Sports Federations in India.15

It is important to note that while the courts have refused on several occasions to interfere with the internal functioning of the NSFs, the court in this case acknowledged the importance of the right for athletes to appeal to CAS:

…It also appears that the National Sports Code of 2011 contains a provision of appeal to CAS against any decision of Sports Federations in India...

… we deem it appropriate to direct the Respondent No. 1 to consider the contents of this petition as a representation and take an appropriate decision in accordance with law after giving an opportunity of personal hearing to Shri Rajiv Dutta, Senior Advocate/ petitioner herein to substantiate his plea that it is essential to ensure incorporation of a specific provision for dispute settlement with International sports bodies.16

Prior to the publication of the Guidelines, the court in Devi’s case directed the MYAS to ensure that all NSFs incorporate the CAS clause within three months from the date of the judgment i.e. January 16th, 2016. As there was no punitive measure attached for non-compliance the MYAS did not adhere to this deadline, and it took the latter case of Sushil Kumar17 for them to finally capture the direction in clause (ii) of the Guidelines.18.

 

ANALYSIS OF THE NEW GUIDELINES AND THE WIDER PUSH TO IMPROVE DISPUTE RESOLUTION

It is apparent from the Guidelines that the NSFs must establish appropriate internal mechanisms to resolve disputes in a coherent manner based on the written guidelines in their constitution. The guidelines mandate all NSFs to create rules addressing the said issue. 

Furthermore, they have brought to the fore pertinent issues in the current operations of NSFs and the contrasting nature in which they function. On the one hand we have NSFs such as the AIFF, which has detailed rules and regulations in place and a structured dispute resolution mechanism in the form of a forum of first instance and a forum for appeal. On the other we have NSFs like the WFI, which has no written rules or dispute resolution panel whatsoever. The underlying theme of these issues is the opacity of the functioning of most NSFs. Therefore, procedures must be put in place to ensure fairness and transparency. 

While, the Guidelines have reaffirmed the jurisdiction of CAS and the MYAS has advised all NSFs to add it in their respective constitutions / bye – laws, it unfortunately does not specify a time-period within which NSFs must incorporate the Guidelines. In the author’s view, the lack of a deadline to focus minds may mean that NSFs are slow to implement the necessary changes. More than 120 days have passed since the Guidelines have been issued and to date, to the author’s knowledge, no step in furtherance of implementing the same has been taken by the NSFs that lack such mechanisms.

As a final point, it is important to note that the Guidelines are not the Government’s only effort to improve sports regulation and fight injustice. The National Sports Ethics Commission Bill 2016, In which aims to improve the integrity of sports in India, was tabled in Parliament earlier this year. The Bill aims to provide for the or 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. A critical analysis of the Bill can be accessed here.19 The Bill further proposes that the National Commission which is established to oversee the matters of ethics, be made a quasi-judicial adjudicatory body for all the disputes in which the NSFs are impleaded. However further clarity would be needed to understand its implementation.

 

CONCLUSION 

The author contends that the non-compliant NSFs must learn from AIFF, a NSF that has a robust dispute resolution procedure in place. In case a NSF fails to abide by the Guidelines and the MYAS considers such defiance as a grave offense, Section 3.6 of the NSDC, 2011 entitles the MYAS to suspend or de-recognize such NSFs. The consequences of de-recognition entail that the NSF will cease to exercise its functions as the NSF of the sport in question. It will also give up the right to regulate and control the sport as well as forego the right to select the national team for all future competitions. It shall also not receive any funding or any sort of financial benefit and tax concession that it is entitled to receive20.

Although, it is unlikely that the MYAS will take a step as harsh as that mentioned above, yet the Guidelines are a step in the right direction to rectify the prevalent issues. 

After evaluating the situation at hand, it is in the author’s view clear that it is vital to have an internal mechanism in place for redressal of such disputes. The field of sports is such that time is a crucial factor. The career of the athletes might suffer a huge loss if the matter is not decided by the courts on an urgent basis which can never be guaranteed. It is not even guaranteed that the judges will be able to understand the nitty-gritties that sports law encompasses. Therefore inclusion of experts becomes extremely important in such panels/bodies and even the National Sports Ethics Commission Bill 2016 has addressed the same. It also lends to athletes the power to provide better representation and fair trial. 

Once these guidelines are implemented it would be interesting to see how transparently are these bodies elected, how much independence are they given in their decision making powers and the willingness of the government to render financial and legal assistance to approach CAS.

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About the Author

Aahna Mehrotra

Aahna Mehrotra

Ms. Aahna Mehrotra is the principal lawyer at "AM Sports Law and Management Co.", which has offices in Mumbai and New Delhi. She was called to the Bar in May 2011 and has gained considerable exposure through her experiences at different institutions worldwide.

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Purvasha Mansharamani

Purvasha Mansharamani

Purvasha Mansharamani is an Associate at the Sports Law department at TMT Law Practice. 

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