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Where Does India Stand In Sports Dispute Resolution

Sports is a rapid growing industry in India as well as in the world becoming one of the largest industries globally. In India the sports have always been dominated by one sport which is cricket, but in the recent times we can see the changes as the people are showing interest in other sports as well. As the growth is happening in the sports industry, the dispute between the players and the spectators are also increasing.

These disputes need to be solved, but at present India is not known to be the country where sports law is known by every person. The most effective method to solve the sports dispute used in other countries are arbitration, but in India this is not much used. To solve the sports dispute in India is not quite clear, there are several bodies made by the government to govern the sports law and make rules and regulations.

Some of those bodies are namely:

  • Sports law and welfare Association of India
  • Sports Authority of India
  • Youth Affairs and sports department.
  • National sports policy, 2001
These above stated authorities are what India have with regard to sports law. They make rules and regulations and acts as an authoritative body. But despite their presence, solving of the sports dispute has not made cleared or easy.

Sports Dispute Resolution (SDR):

One of the methods that can be used to ease the solving of the sports dispute are through sports arbitration. Sports arbitration is a form of sports dispute resolution (SDR) which only deals with the matter related to sports for the purpose of arbitration. Countries like UK, Canada etc. are already using the SDR to solve the dispute, like in UK the SDR panel was formed in 1997, and they stated their work from 1999.

They deal with the issue of doping, suspension of the player, commercial contracts, etc. the use of the SDR has turned out to be very efficient to the countries who are following it, as it helps the matter to be resolved in less time.

In India, the use of sports arbitration will be very useful as, in India the matter goes to the court and the court takes time to solve the dispute, during that time the sports person may suffer from mental pressure and it will affect its performance. Also, the court proceeding is a lengthy and expensive method to solve the dispute.

We all know that in India, except few sports like cricket, the sports person is not paid enough, so it would be difficult for them to go through the expenses of the court proceeding. SDR is a perfect method to opt to solve these all problems that India faces in the sports dispute.

Why Is Sports Arbitration Important?

Court of arbitration for sports (CAS) is an institute of any sports organization which aims to provide the services to resolve the sports related matter through arbitration. CAS was created in 1984 under International Council of arbitration for sports (ICAS). This organization mainly focuses on resolving dispute through arbitration. Above I stated that sports dispute resolution is a perfect method to solve the sports related dispute and India should go for it. But the why is arbitration for sports so much important and why the world is using CAS?

The following points answers this question:

  1. Speedy Resolution of Dispute:
    This is the most obvious and the most basic thing that the CAS offers. The urgency of the sports related matter is very important as it will affect the performance of the sports person and ultimately to the whole team in which he/she is playing in. Also, we need to keep in mind that the sports person does not have time for a lengthy litigation process as they need to focus on their game. The Ad Hoc Division of CAS comes into mind when we talk about the speed of arbitration.

    This is an arbitral body that is active only during the major sporting events like FIFA or commonwealth games. According to the Ad Hoc Rules, the Olympic and Commonwealth Games, arbitral awards should be issued within 24 hours of the lodging of the application for arbitration.
     
  2. Special Expertise:
    The CAS has a policy where they hire the arbitrators and those arbitrators work for them only. In other words, those arbitrators only deals with the matter related to the sports dispute. The parties are not allowed to bring their own arbitrator in the CAS. The CAS gives the arbitrator to the parties, and it has also been seconded by the swiss supreme court in the case of Lazutina, that this method ensures that the arbitrator are specialised and will ultimately be able to issue a fast and correct decision.
     
  3. Consistent and Transparent:
    As we have discussed, different countries have different laws for dealing with sports dispute. So, there need to be a consistent authority where laws be the same for all the countries and dispute can be resolved without any difficulty. The CAS decision and laws are consistent for all the countries and the decision are based on that laws. Also, the CAS is very transparent when it comes to cost of the dispute resolution.

    There are some of the feature that help the athletes to go into the arbitration:
    • Moderate Filing Fee Of 1,000 Swiss Francs
    • The System Of Contribution Towards Legal Costs
    • The Arbitration Costs Regime Which Applies In Disciplinary Cases Of An International Nature.
       
  4. Confidentiality:
    In a normal court proceeding the issue if confidentiality always comes into picture, as the court proceeding are not confidential, they are open to public and happens in a court room. The CAS has a confidentiality clause in it like any other arbitration proceeding. The clauses states that the parties, arbitrators and CAS staff are not obliged to publish any decision unless the parties has agreed to it. The CAS proceeding remains confidential but once the matter has been decided, the decision is published on a public domain unless the parties disagree to it.

A Developing Event

Now, if we talk about the current scenario of India with regard to the sports dispute resolution or CAS, we can say that India is still in its early stages or we can say at a developing stage. As of today, no dispute resolution body for sports have been established in India. So, the question arises that where does India stand and what efforts India is taking for the sports arbitration? To answer these questions, we need to look into the Sports law and welfare Association of India, we also call it as Indian Sports law.

The sports law was founded by a senior Supreme court advocate R.K. Jain and Arun Kumar Mishra Supreme court judge in the year 1986. It provides as an organization which works on various matters related to the regulation of the sports governing bodies, intellectual property issue in sports, general sports and law issue , etc. it also acts as a platform which provides the lawyers of the athletes a forum to discuss and exchange their views on the issues relating to the current sports law.

The issue that the India sports law faces is the intervention of the courts in Indian sports regulatory organization. Let's try to understand this with the help of an example, As happened that because of the courts intervention International Olympic Committee had imposed a ban on the Indian Olympic Association stating that they have not taken any of the international mechanism for the redressal of the sports related disputes among Indian Olympic Association and National Sports Organization.

The point here is that, since the complaint has happened with in the National sports federation, then the intervention of the court and the government should not happen. It is neither feasible nor necessary that the government or the court should get dragged in the matters of National Sports federation. The National sports federation was made for the purpose for redressing sports related disputes. To overcome this problem a sport dispute resolution system should be made involving arbitration, mediation and conciliation.

In 2010, the secretary general of the sports law and welfare Association of India, submitted a draft "Sports Tribunal of India Act, 2010" to the Indian Olympic Association which stated about the Indian court of Arbitration for Sports. The Indian Olympic association accepted the draft in 2011 and the same was used during the National Games held at Jharkhand. The same act has not been made active till date, one of the reasonsgiven by the UPA government in 2012 was that because of the lack of knowledge in the sports law by the members of Indian court of Arbitration for sports, this act was not made active.

Has India Ever Used CAS?

India rarely uses Court of Arbitration for Sports (CAS). But in 2011, four athletes, Ashwini A.C, Priyanka Panwar, Sini Jose and Tiana Mary, these athletes were representing India at the commonwealth games, they were suspended by the National Anti-Doping Disciplinary Panel (NAADP) for takin steroids. During the appeal before NAADP, World Anti-Doping Agency (WADA) made several references of the CAS rulings. Therefore, we can come to a conclusion with this that the CAS have established themselves as a global dispute resolution body and their rulings are being cited in the cases of other countries.

Role Of National Sports Federation And CAS

As we have discussed above, that the sports dispute resolution in India is not well settled, there is no definitive form of it. To make this confusion less, National Sports Federation (NSF) has made some efforts by making some kind of internal dispute resolution procedure. But this step by the NSF did not came out to be very handy. The NSF did not have that kind of knowledge to solve the matter related to the sports, and ultimately the sports person had to go to the courts in order to get any proper decision.

If according to the sports person the decision of the NSF was not satisfactory, then they will have to the court and the purpose of making a dispute resolution procedure by NSF fails. Therefore, the Delhi High court in the Sushil Kumar case, stated that the court will not interfere in the decision of the NSF until and unless they think that the decision is arbitrary, capricious or perverse manner.

But again, for the NSF to make any decision, they need to have a proper set of written rules through which they will refer to in making decisions. So, the National Sports Development Code, 2011 made it mandatory for the NSF to have written rules, but till date not all the NSF's are able to draft the written rules.

The court also in the case of Rajiv Dutta v. Union of India, stated that the National Sports code of 2011 has a provision of appeal to the CAS against any decision of the Sports federation of India. The court in this case also gave guidelines to the NSF to include CAS clause in their constitution within 3 months, but because of lack of punitive measures and punishment of non-compliance, these steps were never taken by all the NSF's.

In the new guidelines issued by the government in 2016, the government has mandated it to all the NSF make their written draft and also to add about the jurisdiction and the use of CAS in their respective constitution.

The government has also made a National Sports Ethics commission bill 2016, where they have also stated about the national commissions to be made quasi-judicial adjudicatory body in which NSF's are impleaded. There would be another notification released with regard to this late to make further clarification.

Conclusion
We can get to know from the above discussion that the field of dispute resolution is sports in India is still in progress. The current scenario is very confusing and not suitable for any sport person or athlete. Sports dispute needs to be handled with regard to a well-structured sports law, at the same time it should be speedy and inexpensive.

A few of the steps what I suggest that India should take are:
A new act should be made with regard to sports law, where sports dispute resolution mechanism should be mentioned. Also, this mechanism should be made independent of Indian Olympic Association, National sports federation and government of India. A separate body should be made to deal with the issues related to sports by the way of arbitration. The situation regarding CAS should also be made clear.

As stated above, the Sports tribunal of India Act 2010 is still not enforced only because there is lack of knowledge and awareness with regard to sports law in India. This kind of should not happen again and for that the government should focus on education of sports law to the sports person, authorities, Members of Indian Court of Arbitration and other concerned persons. To be aware of the current sports law and the technicalities that the world is following is very important for Indian sports.

To solve a sports dispute, the authority should have a certainty and fairness in their decision like CAS. The CAS is accepted by a lot of countries now a days but with India is still not clear with regard to that. The CAS has turned out to be a great and remarkable authority when it comes to the sports arbitration. As sport is an international event, there needs to be a uniformity in the rules and the decision. CAS is providing that uniformity to the players of all the country.

At last I would like to conclude by saying that India is behind in sports law as compare to the whole world, but it still not too late. India, as stated in the parliament on 2016 by our Sports minister, is going to bring a new act related to sports and that act should act as a proper set of consistent and written rules with regard to sports resolution and arbitration that India is lacking at this point.

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