A synopsis of sports law in India

Shabbir S Wakhariya

Wakhariya & Wakhariya, New York

officeadmin@wakhariya.com

Rukaiya J Unwala[1]

Wakhariya & Wakhariya, Mumbai

officeadmin@wakhariya.com

Sports in India is predominantly synonymous with cricket. It is often said that in India, cricket is not a sport, but is a religion; and, since the advent of the Indian Premier League in 2007, besides cricket, other sports in India have also animated all conversations with passion, not simply for the love of sports, but because of the impressive revenue that sports generates.

In 2013, the Indian sports sector marked an impressive 11 per cent growth, reaching approximately USD $1.9bn from approximately USD $546m in 2008[2]; and the industry’s future objective is aiming for 14.18 per cent annual growth by 2027.[3]

The rich tapestry of sports in India finds its roots in the books of scholars, archaeological evidence and other preserved literature, dating back to the 4th century CE. However, given that the British ruled India for close to 200 years, it is no surprise to find that like many of India’s modern development roots being planted by the British, sports too received its first push from India’s colonial rulers. While cricket and polo were introduced in the Indian sub-continent for the enjoyment of the English and the princely class, the Indian Olympic Association (IOA) was formed in 1927 and was recognised the same year by the International Olympic Committee as the Indian National Olympic body.

From those humble beginnings, over the centuries, the importance of sports has only grown in India.

Under the Constitution of India, which came into effect in 1950, sports was categorised under the broad umbrella of entertainment and listed as a subject or matter for States to promote or develop.[4]

It took the Government of India at least 30 more years to realise the need for a unified federal agency for the promotion of sports in India. Hence, in 1982, the Government of India founded the Ministry of Youth Affairs and Sports (MYAS) to administer and develop sports in India and was principally charged with approving National Sports Federations (NSFs) for various sports. Today, there are 57 NSFs in India for promoting various sports.

In 1984, the National Sports Policy was formulated to raise the standard of sports in the country. This policy was reformulated in 2001. In 2007, another update was proposed – the Draft National Sports Policy 2007 – which is still a work in progress as it aims to build on previous sports policies to accomplish the unfinished agenda and to address the emerging challenges of India in the 21st century.

Meanwhile, in 2011, the National Sports Development Code of India 2011 (the ‘Sports Code’) was published. However, the Indian Olympic Association and the NSFs have yet to fully adopt or implement the basic principles of the Sports Code. In fact, as often happens in India, the legality of the Sports Code was challenged in the Delhi High Court.[5] Despite the challenge, the Delhi High Court ruled that the Sports Code would apply in its entirety to the NSFs and the IOA.

Defining sports law is a nuanced task because India does not have specific legislation addressing sporting issues. Various legal frameworks have varied interpretations. Traditional areas of law such as contract law, employment law, intellectual property law and taxation are used to address sports law issues and disputes. Therefore, sports law in India is shaped by the interplay of diverse rules and regulations as judicially interpreted from time to time, rather than by a single statute.

For example, in 2012, MYAS derecognised the Archery Association of India as an NFS for its failure to conduct elections under the NSDCI. Recognition was restored in 2020 on certain terms and conditions.[6]

The monetisation of sports events primarily revolves around sponsorship, broadcasting rights, advertising rights and merchandising, of which the most economically rewarding avenue is broadcasting. The significance of this was initially highlighted in 1995 in the monumental case of the Cricket Association of West Bengal.[7]

The facts of this case were that, during its diamond jubilee celebrations, the Cricket Association of Bengal (CAB) invited bidders for television broadcasting rights. Doordarshan, the Indian broadcasting company that had the necessary resources to broadcast live sports, initiated proceedings against CAB for providing the telecasting rights to a private organisation. However, the court ruled in favour of CAB, holding that the airwaves were public property, thus opening the floodgates for additional private broadcasters to enter India.

The CAB decision led to the emergence of specialised sports networks, bolstered by a significant fan base and is a precursor to the emergence of the very lucrative sporting leagues.

In 2002, in Ajay Jadeja v Union of India,[8] the Delhi High Court addressed the issue of whether the High Court could entertain writ petitions against Board of Control for Cricket in India (BCCI) under Article 226 of the Indian Constitution. The Court held that because certain functions of BCCI are deemed public and there is evidence of public wrong or harm, it is within the purview of the court’s writ jurisdiction to intervene to correct these wrongs.

In 2005, in a landmark case referred to as the ‘Magna Carta’ of Indian sports law,[9] the petitioner challenged the termination of his contract. The issue was whether the BCCI falls within the definition of a ‘State’ under Article 12 of the Constitution of India. The majority view of the Supreme Court of India in this decision held that BCCI does not qualify as a ‘State’ under Article 12 of the Indian Constitution. Although the BCCI performs vital quasi-governmental or public functions, it is not obligated to adhere to the same standards of responsibilities as ‘State bodies’. However, the Supreme Court of India took the view that although BCCI could not come under the purview of Article 12 it still performs public functions that are of public interest and thus falls under the ambit of the Court’s writ jurisdiction under Article 226 of the Constitution of India.

The rise of sports as a major industry has sparked the need for sports legislation. What was once deemed as mere competitive activities and entertainment has now evolved into one of the largest revenue-generating industries in the world. Therefore, sports cannot be viewed in isolation, as it is deeply intertwined with commercial interests; and the government continues to intervene for the ‘greater good’.

In 2007, the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act 2007 was passed. This requires broadcasters to share live broadcasting of sporting events of ‘national importance’ with the public broadcaster, Prasar Bharti. However, there is a lack of clarity on which events are of ‘national importance’. This has made an otherwise healthy sports broadcasting system unstable.

Adding to this muddle is another 2012 decision,[10] where the court held that broadcasting footage of key moments in matches does not fall under ‘news reporting’ but ‘news analysis’. Therefore, effectively barring broadcasters from exploiting sports footage under the guise of reporting. Consequently, even the economic aspect of sports in India is clouded by doubts over what the law protects and requires.

Sports arbitration in India is still a niche. Disputes are typically resolved internally by NSFs before turning to traditional legal proceedings, which frequently lack sports-related experience and present procedural challenges, leading to a prolonged resolution period.

To address these issues, in 2012, the Sports Arbitration Centre of India (SACI) was formed by the Ministry of Law and Justice. The SACI aims to operate as an independent authority for the swift and efficient resolution of sporting disputes, with the support of the Ministry of Law and Justice, which increases its accountability. But arbitration in general is a ‘blackhole’ in India with judicial flip flops over the years. Therefore, the efficacy of SACI is yet to be established.

Allegations of sexual harassment, use of performance enhancing drugs by athletes and other forms of cheating in sports all require quick decisions by a strong and clearly impartial authority. Whether this is the SACI, only time will tell.

Conclusion

As the sports sector continues to flourish in India, both on and off the field, the legal landscape surrounding this dynamic industry has embarked on a journey to evolve in tandem. Case law has revealed that India lacks adequate legal provisions to encompass the growing competitive field of sports legislation, preventing what is an otherwise fruitful area from realising its full potential.

The reluctance to initiate such legislation can be witnessed in the failed effort made by the central government in 2017 to move sports to a ‘concurrent list’ so that both the union and state legislatures can formulate laws relating to sports. The need to balance commercial interests with fundamental public rights must be addressed to ensure that the sports sector accurately reflects the nation’s collective passion and commitment to sporting excellence.

India has aspirations to host the 2036 Olympics. Therefore, it has about a decade to bring about a much needed revolution in the field of sports law in India.