How do we solve disputes which arise within the Sports fraternity in India?

The simplest answer is that sportsmen and their federations have the option to move against the other and take them to Court. But this leads to a peculiar situation, ordinary litigation is fraught with delays and huge pendency.

As a time consuming option, such litigation is of no help to athletes, who have limited career spans and as such, cannot afford to be caught up in a long winded litigation process. This results in a consequent question, "Are athletes not entitled to have disputes resolved quickly and efficiently through an institution which applies specialised rules for effective and speedy resolution ?"

The answer to this question is a resounding "YES".

It should also be kept in mind that quick resolution of disputes will not completely solve the problem. Institutions are required to be set up with a working knowledge of sports laws, including particular rules and regulations of each discipline and also frame a concise and clearly distinguishable dispute resolution practice that places emphasis on "Alternate Dispute Resolution". This is not to say that "Tribunalisation" of the Judicial process is being sought. Rather, specialised forums can precisely deal with disputes and frame hard time-lines which require compulsory adherence by parties.

If sports federations are involved, such an institution will have to keep in mind the limitations that such federations operate under and thereafter engage in dispute settlement.

There is yet another facet connected with the dispute settlement process, which rears its head whenever global sporting events such as the Olympics, Asian Games and Commonwealth Games are round the corner. If certain athletes have not been selected, for whatever reasons, the immediate step is that such athletes take recourse by approaching the Courts to seek injunctions against "faulty selection trials" or "partiality and bias in team selection", resulting in unnecessary harassment and delay for such Athletes and Sports Federations.

When it is the Sports Federations which approach the Courts, the disputes usually revolve around internal elections. So this results in a bona fide query; "Is anything being done to resolve the disputes in a faster, amicable and authoritative manner?" A quick answer is that "we can always try", but the actual answer is "NO".

Therefore, it requires to be seen as to what the global sporting fraternity did when they were faced with a similar situation.

The rapid advancement of "sports law" in Europe and America has meant that disputes that arise concerning athletes on the one part and their Sports Federations, Olympic Councils and other sporting bodies on the other hand are quickly and efficiently resolved with the minimum involvement of judicial bodies, with arbitration and other forms of alternate dispute resolutions being given preference. The dynamic development of a "Sports Law" has led to the twin concepts of Lex-Sportiva (technical rules associated with Sporting Law, which regulates the public aspect and includes the "specificity of Sports" within itself) and Lex-Ludica (the "spirit of sports", of ethical sporting conduct, sportsmanship, fair play and other aspects which privately regulates sporting conduct of athletes in tournaments).

The twin concepts were developed through precedents by international institutions such as the Court of Arbitration for Sports ("CAS"). In fact, the term was coined by Matthieu Reeb, acting Secretary General of the CAS in 1986. However, prior to setting up of such institutions, and development of a specific "sports law", the interpretation of sporting disputes was left to Civil Courts who interpreted law as per their own interpretation of ordinary civil law. As such, the decisions were fraught with vague enunciations due to the non-appreciation of the "specificity of Sports." In a majority of cases, the Civil Courts usually decided in favour of the athletes, due to the nature of arguments advanced. Three decisions given in 1980's and 1990's would clearly illustrate the flawed decision making process that was employed and the manner in which Civil Courts decided when confronted with Sports decisions.

The decisions were Gasser v. Stinson¹, Harry Renolds and that of Katrin Krabbe. While each of these cases highlight a different aspect connected to the aspect of doping in Sports, the ingenuity of arguments advanced in these matters go on to show the manner in which athletes used the Judicial process to get reliefs which would otherwise not be permitted or capable of being exercised against sports federations.

In Sandra Gasser's case, the material issue was doping. Gasser's advocates argued on the legal aspect that a ban on doping amounted to restraint of trade. The Courts had no difficulty in dismissing the argument of IAAF which was centred around arguing that Gasser, as an "amateur" athlete, did not have any trade, and therefore, there could not be any restraint. The Courts held that there could not be any amateurism, rather, Gasser was a sportsperson, and as a sportsperson, any action that infringed her right to compete amounts to a restraint of trade.

In Renolds' case, in spite of the facts, the issues that arose interestingly was the absolute disregard of IAAF for the Court process, wherein IAAF had remarked that "Courts create a lot of hindrance in the anti-doping work. But the IAAF doesn't care the least for what the Courts say. The Rules of IAAF are supreme and IAAF will follow their Rules².

In Katrin Krabbe's case, the German Athletics Federation had after arriving at a finding that Katrin Krabbe had partaken in doping, imposed a one-year ban. Not satisfied with the sentence, the IAAF conducted its own in-house disciplinary procedure and after arriving at a positive decision, recommended for an additional two-year sentence to run concurrently with the one-year ban. Krabbe challenged the same as two-year ban was unlawful under the rules of IAAF. The German Courts found favour in her submissions. Simultaneously, Krabbe preferred an action for loss of earnings. After nearly eight years, the IAAF entered into private settlement and resolved the matter.

Sports Federations, concerned due to the fact that athletes were getting favourable decisions, sought refuge in alternate dispute resolution systems such as arbitration. This trend towards arbitration, therefore has been gaining prominence since the early 1980s. These, in turn, gave impetus for arbitration, and more particularly, arbitration within the Sports arena at the global stage.

Sports Arbitration as a concept did not receive international attention until the early 1980's. On 30.06.1984, due to all such and further cases, the CAS was proposed to be established with its own particular Code, which was framed in 1981.

As things stands today, Arbitration holds sway in almost all sports related disputes. Within this sphere, the CAS holds a unique place as the "Supreme Sports Resolution Authority". Various domestic arbitration tribunals have also been set up to in various local jurisdictions to deal with Sports Disputes

Various other jurisdictions have put in place specialised institutions to deal with arbitration in Sports. One of such institutions is the Asian Council for Arbitration in Sports ("ACAS") with has been established in China. The Asian Council for Arbitration in Sports has been set up in collaboration with the Olympic Council of Asia and is meant as a means to diversify the jurisdiction of CAS. The involvement of the Olympic Councils in the dispute settlement process would only mean that expert bodies and individuals having speciality in resolving "Sports Disputes" are appointed to such Panels as may be set up at the regional level, apart from CAS, and which would act as a "buffer system" and facilitate a diversified dispute resolution system.

As things stand today, the CAS is the major institution involved in dispute settlement with Centres at Lausanne, New York, Sydney and a recently opened centre at Abu Dhabi. This would only mean that there would be an immense advancement in resolution of sporting disputes which are resolved according rules and procedures of CAS.

Within the Indian sports jurisprudence, a positive step was taken in 2011 with the Indian Olympic Association being directed by the International Olympic Committee to establish an Indian Court of Arbitration for Sports ("ICAS") which was to be composed of eight Panellists to adjudicate disputes arising in the sporting arena. The Panellists were retired judges of the Supreme Court of India and various High Courts. The Panel comprises of HMJ (Retd.) Dr. A.R. Lakshmanan, who is the Chairperson of the ICAS along with Mr. M.R. Culla, Retired Justices R.S. Sodhi, B.A. Khan, Usha Mehra, Lokeshwar Prasad and S.N. Sapra.

From a bare perusal of all newspaper information and other information that is available, it is not clear whether the aforesaid panel is functional, and furthermore, there is no clarity on whether any hearings have been conducted, whether specific Rules and Regulations have been framed and whether there are any particular decisions that have been rendered by such a panel within the last 3-4 years. It is believed that since 2011, when news first circulated that such a panel was to be constituted, no effective steps have been taken, since, to establish this panel.

In fact, if such a panel was functioning, then a recent dispute involving doping of an Indian Swimmer would have been referred to such a Panel. In reality, the said dispute has been referred to the Alternative Hearing Centre ("AHC") of the CAS at Abu Dhabi, where the Sole Arbitrator has in a detailed order dated 08.04.2015 held against the Indian swimmer. It would not be out of place to state that this is the first case that has been referred to the Abu Dhabi Centre, which merely goes on to show that resolution of sports is moving towards a more specialised form.

As a concept, the ICAS was a step towards developing a niche area of law and efficiently resolving disputes at the earliest possible instance without recourse to a long winded litigation process. However, steps had to be taken to bring such institutions into fruition. As the CAS has promoted the AHC at Abu Dhabi, which has been set up in association with the Judicial Department in Abu Dhabi, similar steps are required to be taken to promote the Indian Court for Arbitration in Sports. It is believed that if proper steps had been taken to promote and further the cause of sports arbitration within India, then such a specialised Tribunal would go a long way in effectively and efficiently resolving sports disputes. In all sports disputes, it is important to realise that the career-span of most athletes is extremely limited. Achievement of sporting excellence holds primacy of place for every athlete. Getting entangled in the long winded procedural court process would not serve any useful purpose for the athletes. Therefore, time bound alternate dispute resolution is one of the key mechanisms whereby sports disputes can be effectively resolved.

Another important aspect which cannot be ignored is that the "Sports Management" in India is strangely deficient, and has no clue about the working of the CAS, the particular Rules and Regulations or what is the manner in which procedural aspects such as challenging of decisions needs to be resolved. A recent case in point which shows this aspect in stark contrast is that of Ms. Sarita Devi, where in a matter pending before the Hon'ble High Court of Delhi at New Delhi, the Counsel for Boxing India simply gave a statement that, in regard to the one-year ban that was imposed by the International Boxing Association, there is no provision of appeal before CAS.

It was later shown that CAS Rules specifically permit such an appeal within a defined time-limit.

The fact that the counsel was prompted to take such a course was occasioned due to in part, incorrect understanding of the particular Rules and a clear non-appreciation of the CAS Rules. This clearly shows that there is a trenchant lack of awareness within the sporting fraternity as the concerned sports administrators within various Federations and even within the Ministry are completely nonchalant and unconcerned about gaining knowledge of latest developments in sports.

This leaves the athletes competing under the aegis of such federations in a lurch, as they are completely dependent on such federations. This aspect was distinctly seen in the case of Ms. Sarita Devi.

Sports Arbitration is still a relatively new concept under Indian jurisprudence. A suggestion can be advanced that "Sports Arbitration" as a class can be introduced into the Arbitration and Conciliation Act, 1996 giving it a certain sense of Parliamentary legitimacy or be incorporated through the means of separate model conduct rules that federations can take recourse. If such an action cannot be given effect to, there are always other Alternate Dispute Resolution methods such as Mediation and Conciliation that could be applied from the existing legal framework to resolve such an impasse. Examples which can be culled out from existing laws include Section 89 of the Civil Procedure Code, 1908 and Part III of the Arbitration and Conciliation Act, 1996.

Having such a Tribunal such as ICAS which can efficiently deal with and resolve the issues of sportspersons would go a long way in helping genuine disputes being resolved at the earliest.

It can only be imagined that had there been an effective Alternate Dispute Resolution process in place, BCCI and IPL related issues, which have occupied national attention could have been resolved at the earliest without causing undue sensationalism and scandal.

A hope can only be expressed that ICAS commences to exercise its jurisdiction in respect of sports disputes and to function in an efficient manner. India is a country where sports law is severely lagging and steps are required to be taken in respect of such disputes so that both athletes as well as Sports Federations and other ancillary bodies attached with sports in India can move forward towards realising their sports related goals rather than ponder over how to settle scores against or with each other.

Footnotes: 

1^ (unreported Q.B.D. June, 15, 1988)

2^ David McArdle ‘Reflections on the Harry Renolds Litigation’ published Entertainment Law, Vol 2, No 2, Summer 2003“The real interest of the Harry Reynolds saga, 20 years after the event, rests in what it reveals about governing bodies’ beliefs in the sanctity of their own decision-making processes and their powers to run their fiefdoms in whatever way they saw fit, regardless of the broader legal principles with which their activities appeared to be in conflict.”