Introduction to Sports Law
-By Deepak Sati
Cultural and Political significance
American philosopher Jan Boxill in her book 1 argues that Sport serves a moral function for a society. It is a unalinieted activity which is required for self‑expression and self‑respect.
Advocate Suhrith Parthasarathy writing in The Hindu 2 argued that“in India where cricket plays a pervasive role, the sport cricket would have to necessarily be seen as a primary cultural good, borrowing from John Rawls he further says, which is critical to the fulfilment of a person’s conception of a good life. In that sense, then access to cricket has to be considered as an end in and of itself, and as not in any manner sub‑servient to some other veiled purpose, especially entertainment or business”.
Relationship between Sport and Politics
Within both the national and internationally community, the relationship between sport and formal politics is complex. It is often argued that in terms of cultural values sport is apolitical in the sense of being neutral and value‑free. But is sport really separate from formal politics?
There are many examples where sport became part of political arena and has been used for political ends. In 1980, Thatcher and Carter administration boycotted Moscow Olympics to cause damage to the then soviet government. Another example is black power salute‑a political demonstration by two African‑American athletes Tommie Smith and John Carlos during their medal ceremony at 1968, Mexico summer Olympics. After reaching the podium both the atheletes raised a black‑gloved fist and kept them raised until the anthem had finished. Later, Smith in his autobiography stated that the gesture was not a ‘Black power’ salute but a ‘human rights’ salute.
In India, most of the sports bodies are controlled by sitting lawmakers if not any politician, thinking of them as their fiefdom.
So largely due to sport’s immense cultural significance, politicians are prone to see sport as a powerful political tool. Of course this does not always have negative connotation. For instance, Sport boycott of South Africa during the apartheid era played an important role in boycott.
Whether there is such field in Law as Sports law? In his celebrated paper titled What is Sports law? 3Timothy Davis explored the debate from three views namely:
1. Traditional view
‘Sports law’ is nothing but the application of substantive areas of law such as contract law, Administrative law, Employment law, Competition law etc. Study of ‘Sports Law’ does not relate to any unique or special provisions which can separate it from traditional legal concepts.
2. Moderate view
‘Sports law’ may develop into a field of law. Moderates cite the existence of legislations relating to sports in different countries, sports agents (in US) and suggest that a “growing sports’ only corpus of law” is emerging.4 Another argument they present that there is unique application of legal principles to the sport situation and factual uniqueness of sports problems which call for specialised analysis.
3. Third view
This view holds ‘Sports law’ as separate field of law.
It cites the growing body of judicial and legislative law specially focussed on sports. Examples are CAS (Court for Arbitration in Sport) and tribunals, WADA, national courts, legislative bodies and other tribunals within domestic jurisdictions.
To the argument of not being a substantive area of law third view pose an interesting reply that there are very few substantive areas of law today which can boast of being separate categories independent of other substantive area of law. If that would not have been the case then what one might say about fields like environment, health or internet?
Academic significance and opportunities
There is growing academic significance of sport. There are dedicated research centre for the academic legal study of sport at NLS Bangalore, India and NLU Gandhinagar, India. The Bangalore research centre assisted Supreme Court appointed Lodha Committee which had proposed reforms in BCCI. On account of interdisciplinary character of sport, Sports law involves subjects like sports representation and legal ethics, sports and corporate structure, sports and disability, sports and gender and international issues.
Case of Dutee Chand‑The case involved an appeal at CAS.The appeal was a challenge to the validity of Hyperandrogenism Regulations of IAAF which governs the eligibility of female athletes with Hyperandrogenism to compete in competitions. The chief basis of challenge was unlawful discrimination against female athletes possessing a particular natural physical characteristic.
The appeal raised complex scientific, legal and ethical questions. In women’s sports competition gender testing and sex verification by genetic testing to catch sex imposter males is a common practice. On the other hand, these practices incite scrutiny, suspicion and fear of particular body types and particular mode of gender presentation against women. In such circumstances irreparable injury to privacy, identity as women and self esteem are certain to occur.
BCCI CASE‑Supreme Court of India through a judgement delivered on January 22, 2015 brought the BCCI under the rigour of public law by making it amenable to the writ jurisdiction of Constitution of India under Article 226.Now BCCI as the regulator of cricket as sport in India is duty bound to behave in a fair, transparent and reasonable manner.
Sources: Sports Ethics: An Anthology (2002), Finding a boundary, August 13, 2016, Suhrith Parthasarathy, The paper can be accessed at http://scholarship.law.marquette.edu/sportslaw/vol11/iss2/7/, Kenneth L Shropshire, Introduction: Sports Law?, 35 Am.Bus.L.J.181,182,(1998)
-BY Pranav Pathak
Now, we will be venturing into the gambling aspects related to Sports as an industry but first, I would like to give an overview as to what constitutes betting and how it all started.
As for centuries, Gambling has been considered a taboo in the society not to be mistaken by the fact that people enjoy it at the same time as their favorite pastime.
The relevance can be iterated from the position taken by two historical figures namely Manu via Manusmriti and Kautiya via Arthshastra where the former condemned gambling as a sin and having no place in the society with the latter arguing state control over the same which other historical figures have also argued in their texts. It will be pertinent to note that, during the time of Chandrgupta Maurya under the tutelage of Kautilya the state imposed a tax of 5% on all gambling related winnings. So it can be argued that, the legitimacy of the business of gambling is and was upheld right from prehistoric times.
The same facts were reiterated in the case Reeja v/s State of Kerala 2004 (3) KLT 599.
Constitutional Position of Gambling and statutes
Gambling under the constitution can be found in the seventh schedule, State List Entry 34 and in the Union list Entry 40 read with Article 246 of the constitution.
In consonance to this the statute Public Gambling act, 1867 which is treated as a central legislation exercises its jurisdiction on the entire country but it is also at the discretion of the state whether to employ the same statute or legislating a new one on the same subject. Over all there are 17 in total state gambling related legislations and other states have accepted the Public Gambling act, 1867.
This also tells us that the Public Gambling Act , 1872 is obsolete and also doesn’t answers many current issues like Jurisdictional, the act. For eg, British Website such as bet365.com and Defabet.com which are registered in the UK are operating in India without a license with their 40% of the revenue generated by Indian subscribers with no accountability in India. The government is trying to combat these issues via Information technology act, Sections 67 and FEMA Rules, 2000 Rule3 to combat Gambling. But I would like to argue that instead of combating the same, it should be regulated in order to generate tax revenue.
Also to be noted that, there are two states in India. Goa and Sikkim, where amendments were in 2009 and online betting was given approval. However, it can be stipulated that the said amendment is in contravention to the Information technology act, 2002.
There are a few concepts that I would like to clear before moving on to the relevance of sports betting.
Game of Skill v/s Game of Chance
The ever-evolving jurisprudence of sports betting revolves around whether a said activity is a game of skill or a game of chance.
I would like to shed some light on the contents of Game of Skill and Game of chance: -
Game of skill: - In the said activity, the bet is placed on a certain event happening in the future, which requires certain set of skills determining the result. Such as expertise in the said subject, analytical skills with implication to logic, statistics, mathematics etc. And the amalgamation of the said attributes will contribute to a future event happening and the bet is placed on. Where it is upto the party to make certain assessments and the outcome can be determined as a preconceived notion. The much outcome of the facts can be controlled by a party. The person with the superior set of skills will lead his way.
Game of Chance: - In terms of the same, the future perspective of an event occurring by chance and it is outside the control of a party. Where there are no implications and applicability of human resources and skills and the outcome is totally outside the control of a party, which intends on a graver ground of loosing. So can be taken as a side with a high probability of a loss to be incurred.
The mentioned case laws in the slides have differentiate between the concepts of Game of Skill v/s Game of Chance and there has been a list of sporting activities which do not constitute to illegal sports gambling and are regarded as game of skills. As summarized on the basis of these cases on the screen
Rex vs Fortier: - The case is a landmark judgment, which differentiated game of skill vs game of chance. Similarly in, In the case State vs Gupton: - It was held that any athletic game or sport is not a game of chance.
Dr. KR Lakshmanan v/s State of Tamil Nadu: - In this case it was held that Horse Foot racing, Football, Baseball are Game of skills and differentiated between game of skill and Game of Chance.
In the case State of Bombay v/s RMD Chamarbuagwala and State of AP v/s K Statyanarayan: - The Supreme Court held that, (i) In Competitions where the success depends upon a substantial degree of skill are not gambling. (ii) Despite there being an element of chance, if a game is preponderantly a game of skill it would nevertheless be a game of ‘mere skill’.
Concept of Wagering
Under contract act, betting is referred as wagering
Wagering: - Something especially a sum of money laid down and hazarded of the issue on an uncertain event or a stake. The initial position of what constitutes betting and wagering and how valid is the said activity, the essence of the same can be found in the Indian contract act of, 1872 section 30 says wagering agreements are void because they are not enforceable in the court of law. This means Indian contract act does not allow betting but scope of section 30 was explained in the case of Subhas kumar Manwani v/s State of Madhya Pradesh, scope and objective behind section 30 was explained, which held that law wanted to discourage people to participate in a game of chance. But as we have discussed earlier sports constitute more of game of skill rather than Game of chance. Therefore, betting agreement when done or wagering dealing with sports maybe be upheld under the contract act.
Whether Sports betting should be legalized or not? Most of the sports betting activities are outside the ambit with people indulged having no accountability.
According to stats given by federation of Indian Chambers and Commerce Industry illegal sports betting accounts for 63 billion Dollars, which will increase.
By legalizing the Sports betting Industry, the state will be receiving taxes, which will help them in fighting various revenue related problems and will increase the quotient of development. This will help in raising levels employments because as the activities are deemed illegal, it operates as a parallel or a dark economy, which has no implications in the development of the country. This will also impose accountability of service providers and the consumers indulged in betting related activities.
The same has been addressed in Justice Mudgals Report and also it argues a Sports betting Commission, which will oversee Sports betting related activities.
So we can finally conclude that, there is a legitimate case however arguable for legalizing Sports betting in the country.
Sources: Law and Sports in India by Justice Mukul Mudgal, FICCI Blog, Contract Law by Avtar Singh.
-By Md Faraz Anees
Those who have attended IPR class of Alka Mam might recall that she asked one very peculiar question at the beginning of the session. She asked “ Why IPR has been made compulsory subject in CLC?”. Many of us gave answer by telling her the importance of the subject from the academic point of view. But her answer was quite precise and accurate i.e “Money.” Though many of us might find that debatable but carried weightage.
Same thing goes with Sports industry. Amount of money involve in here is huge !!! In India, Sony entertainment bought broadcasting rights of IPL for 1.6 billion rupees in 2009. This is the lower limit , as in India Sports Industry is still developing. Now, to have an idea of the upper limit we can look at Sports Industry of United states. There, According to Forbes Magazine, Sports industry will cross the benchmark of $70 billion in year 2019. Now, look at the number of zeros in here. And try and convert that into rupees…………I think that would be enough to give you an idea of its Economic might.
This standing of sports industry today is because of “Broadcasting”. It is Broadcasting, which has converted a mere recreational activity into a money churning machine.
Now the Question arises How broadcasting of sports is different from other products in market such as movies, television shows etc ? Because sports broadcast can be considered “hot news” i.e. it has more relevance when shown in real time and live. more over this product can be differentiated into several sub products which is not possible for any other product in the market for instance mobile rights , scores you get on your cell phones, and highlights. i don’t think so any one would be able to understand any movie or song if only important excerpts are shown and not the whole stuff.
Now, lets focus on “Broadcasting” for a while. And see where it stands when looked from the prism of Constitution. To do so, we will discuss the case of Secretary Information & Broadcasting, Govt. of India v. Cricket association of Bengal.
In this case, Supreme Court Of India held,“Broadcasting” is a public property and no Government has Monopoly over it. It arrived at such conclusion because according to court “Broadcasting” forms the part of “Freedom of Speech & Expression” under Article 19(1)a of the Constitution. Now, what this Judgement has done that ……. it has raised the Broadcasting to the pedestal of Fundamental Rights.
After looking at Economic standing and Constitutional importance of Broadcasting, particularly in context of sports, we will now discuss the loopholes and lacunas in this field by highlighting few of the legal issues:-
Sports Broadcasting Signals (Mandatory sharing with Prasad Bharti) Act 2007
This Act to provide access to the largest number of listeners and viewers, on a free to air basis, of sporting events of national importance through mandatory sharing of sports broadcasting signals with Prasar Bharati by any official broadcaster.
Now, first question is what is sporting event of national importance ? Section 5 of the Act empowers Central Government to formulate guidelines to classify events of national importance. But none has been laid down yet. Which means currently this is a prerogative of Govt. to decide this important question. And they can do so depending upon their whims and fancies. Which means in future even IPL can brought under this legislation. Though this might sounds like exaggeration.
Another question that this legislation raises is that Whether Prasar Bharti holds theCopyright? As Prasad bharti have applied its labour and skills through commentary, entertainment and other ancillary inputs associated with broadcasting of sporting events. ( also give a references of international practice)
Meerkat and periscope
These are apps which can be used to live stream any event. Though apparently it raises the issue of right to privacy but it also hurts the broadcasting rights of the broadcaster particularly of any sports event. Because sports is a hot commodity only when its reporting is live.
Sony entertainment channel vs. BCCI
Sony entertainment bagged the IPL broadcasting contract in year 2008. And in 2009 the right to first refusal was added to their contract. Which means that they should be given chance to match up to the bid by other competitor. After this Supreme Court judgement made BCCI to follow the transparency guidelines. And accordingly they came up with the bidding process, putting aside Sony’s right to first refusal. Moreover, they put up the clause that any broadcaster going against the BCCI in any court for what so ever reason would be black listed from the contenders’s list.
Now the question arises whether BCCI have abused its position of power and have erred by not performing the terms of contract and putting conditions on sony’s right to challenge the same in the court of law. Or BCCI has done the right thing by upholding the mandate of the Supreme Court. Or whether there is any other option or way to solve the conflict in any amicable way.
All these questions are open for conjectures and arguments. But one thing is clear that Sports Broadcasting or in broader terms whole sports industry have unprecedented economic worth. But it is also ridden with many lacunas and loop holes. And when viewed in the context of constitutional importance, it can be said in conclusion that Sports Law is the upcoming field and is nothing short of hot dessert for lawyers.