Monday, September 26, 2011

Sport’ is matter that comes within the purview of Entry 33, List II (State List) of the Seventh Schedule of the Constitution of India. Therefore, in effect, the central government would have no legislative competence to make a central law in relation to the subject. In 2009, the central government withdrew a 20-year-old amendment bill that sought to transfer the subject of sports from the State List to the Concurrent List, which would enable the state governments and the central government to legislate on sport. The bill was withdrawn from the Rajya Sabha due to lack of political consensus.

However, case laws indicate that state governments are competent to legislate on sports related matters only within their territorial jurisdiction. Further, these judgments have also held that in light of the fact that the central government provides substantial funding, is involved in the selection of the national coach, makes available facilities developed by the Sports Authority of India (‘SAI’) and the Ministry of Youth Affairs and Sports (‘MYAS’) and renders financial assistance for acquisition of sports goods and materials, the central government has the required legislative competence to regulate sports at the national and international level.

Draft National Sports (Development) Bill, 2011

The National Sports Policy, 1984 aimed at improving the standard of sport in India. Subsequently, the National Sports Policy 2001 envisioned the central government working in conjunction with the state governments, the Indian Olympic Association (‘IOA’) and the National Sports Federations ('NSFs’) to concertedly pursue the twin objectives of "Broad- basing" of Sports and "Achieving Excellence in Sports at the National and International levels". The
Comprehensive National Sports Policy 2007 endeavoured to put in place a framework for sports in India based on an inclusive model with the full ownership and involvement of all stakeholders. However, these policies faced stiff opposition from NSFs and the IOA and hence were not implemented.

The Draft National Sports (Development) Bill (‘Draft’) was released for comments and feedback by the MYAS in February 2011. The Draft aims to increase transparency in sports administration and to open sports administration in India to public scrutiny. Promotion of indigenous sports, sporting excellence, athletes' welfare and organisation of sporting events form the keystones of the Draft. In this feature, we discuss the significant elements of the Draft.

a. Basic Universal Principles of Good Governance

The Draft aims to remain consistent with the core principles spelt out in the "Basic Universal Principles of Good Governance" proposed by the International Olympic Committee (“IOC’) and endorsed by the Olympic Congress in 2009. The IOC Code of Ethics state that ‘The basic universal principles of good governance of the Olympic and sports movement, in particular transparency, responsibility and accountability, must be respected by all Olympic Movement constituents.’

The reason these principles are sought to be enforced through legislation is that in 2010, the MYAS had engaged in a dialogue with the IOC and IOA to expedite the process of reform of the IOA. The IOA and the IOC had assured the MYAS that appropriate amendments would be made to the constitution of the IOA and to ensure that it remained consistent with the Olympic Charter. The subsequent changes made by the IOA, which were ratified by the IOC, however only served the purpose of diluting the reform process that was sought to be implemented.

b. National Sports Development Council

The Draft empowers the Government to take all such measures, including notification of regulations, policies, rules, procedures and guidelines, as it deems necessary or expedient, for promoting the development of sport. Further, the Government may also constitute a National Sports Development Council to advise it on matters related to sport. The Council is ideated to consist of members from the various NSFs, experts in sports law, eminent athletes, sports scientists, etc., appointed for a non-renewable term of 4 years and involves the participation of athletes in the decision making process. The Council is to be headed by an Eminent Athlete who has won and been awarded prominent national and international awards in his/her sport. More importantly, the Council would also represent active athletes with up to three active athletes to be appointed to the Council and two- third of the voting rights for all decisions to be taken by the Council are retained in favour of members who are not affiliated to affiliated to NSFs, the central government or SAI. This represents a significant step in ensuring that past and present athletes would have a say in the administration of sports in India and is a proposal that has received overwhelming support.

c. Demarcation of Responsibilities

The Draft envisages roles and responsibilities for the central government, SAI, the IOA and NSFs. The central government is primarily entrusted with the task of determining the eligibility conditions for recognition of the NSFs and the IOA; SAI with providing the necessary support to NSFs for organising preparatory camps for the selected national teams or athletes for participation in international competitions; and every NSF will be held responsible and accountable at the national level for the overall promotion and development of the sport for which it is granted recognition.

d. Regulation of the IOA

The IOA is made responsible for the timely organisation of the National Games once every two years and to recognise NSFs for each Olympic and non-Olympic sport. It is noteworthy that the IOA has been obligated to hold fair and transparent election every 4 years. Additional obligations placed upon the IOA are to maintain public accountability, resolve disputes through a proper mechanism of dispute resolution within 15 days of a dispute arising and enact bye laws in compliance with the IOC Charter and directions. Substantially, the IOA would be required to seek permission from the central government prior to bidding for any major sporting event and to submit before the Parliament its audited statements, report of activities and measures taken to promote the welfare of athletes, combat doping, expedite the process of dispute resolution, comply with the Right to Information Act, 2005 and prevent gender discrimination and harassment of women in sports.

e. Recognition of National Sports Federations

The central government may recognise no more than one NSF for each sport. Primarily, each NSF may represent or purport to represent itself as the recognized NSF for the sport and to represent India at various levels; regulate the sport in India; and select athletes to represent the country at the international level. The criteria for recognition of NSFs are also established with each NSF that wishes to be recognised mandatorily required to abide with certain norms such as financial accountability, professional management, and recognition by the IOA, status as an apex body, etc.

The Draft prescribes the conditions based on which the Government may withdraw recognition to NSFs and upon withdrawal of recognition, the concerned NSF will no longer receive assistance from the central government or exercise any rights granted to it under the Draft. It deals with major concerns such as detection and prevention of age fraud and sexual harassment in sports, along with the promotion of drug-free sport and fight against all forms of corruption in sporting activities.

f. Age and Tenure Restrictions

Most importantly, the Draft places restriction on age and tenure at the NSFs with 70 being the mandatory age of retirement and office-bearers being barred from securing more than two consecutive terms in office. Office-bearers are not eligible to contest the post of President of an NSF on completion of 12 years at the post. By way of background, the Olympic Charter prescribes a retirement age of 70 for IOC members and also states that a member may serve for a maximum two successive terms in the IOC executive board regardless of the capacity to which he has been elected. NSFs are required to ensure that 25% of the membership and voting power is held by athletes. The Draft also places restrictions on the Union Minister of Sports contesting IOC or NSF elections and on concurrent holding of positions by Office Bearers in NSFs

g. Eligibility of Athletes to Represent India

Only Indian citizens holding Indian passport, including Non-Resident Indians, are eligible to represent India in international sports competitions. Persons of Indian Origin and Overseas Citizens of India are not treated as Indian citizens for this purpose and are expressly prohibited from representing the country. Unfortunately, this could result in the loss of significant sporting talent to the country as PIO and OCI athletes often explore the option of representing India at the international level.

h. Sports Ombudsman

Any dispute concerning athletes, or concerning an NSF and/or the IOA or any other sports related body, including management conflicts or disputes will be referred to the Sports Ombudsman i.e., a retired High Court Judge with knowledge about sports law or arbitration with general knowledge of sports. Provisions are also made to set up an Appellate Authority. All awards of the Sports Ombudsman and Appellate Authority are to be binding as Final Awards under the Arbitration and Conciliation Act 1996.

An opportunity lost to eventually do away with the Sports Ministry at the Centre.

The Draft Sports Bill presented to the Cabinet by the Sports Minister, Ajay Maken has created its fair share of controversy. The Union Cabinet has returned it to the sports ministry for reconsideration and the accompanying public spat between ministers of the UPA government has been rather ugly.

Before getting into the debate proper, let us get a few facts out of the way. While all the media attention has been on cricket, the Bill also deals with 65 other sports in India. While the Board for Control of Cricket in India (BCCI) — as do other sports bodies — gets benefits from the government via tax-exemption, subsidised land allocation and use of other subsidised public services, the government has provided Rs 490.84 crore from its budget to these sports bodies in the last three years.

In that sense, these sports bodies are no different from the NGOs who take government money and are thus considered as Public Authority under the Clause 2 (h) of RTI, 2005. The opposing argument is that the government should simply stop funding these bodies and leave them to the mechanisms of the free-market. Sports which aren’t commercially viable should be allowed to wither away. Although this sounds good in theory, it is practically infeasible to do so because most of the sports that will die in this process will be Olympic sports. India’s performance at the Olympics has never been something to write home about and has caused much outrage and heartburn among the new generation of proud and impatient Indians. No government can afford to be accused of plotting India’s poor performance at the Olympics.

As an aside, there is a High Court ruling which clearly states that BCCI officials are in fact public servants. This would negate the BCCI’s argument for evading the provisions of the RTI Act.

Is the maximum age limit of 70 years, and a tenure limit of 12 years for officials of sports federations arbitrary and without precedent? No. As per the International Olympic Committee Charter, the duration of term of office of the President is eight years, renewable once for a four year term. In other words, the IOC President can serve for a maximum period of 12 years. The IOC Charter also prescribes a retirement age for all IOC members, which is 70 years.

Furthermore, the World Badminton Federation does not permit more than two consecutive terms for its President and other office bearers; the International Hockey Federation (FIH) allows its President, Hony. Secretary General and Hony. Treasurer to hold a maximum of three tenures of four years each; and the International Governing Body of Swimming (FINA) prescribes a maximum of two terms in the same post for the President and the Hony. Secretary and the Hony. Treasurer. The rule in the draft bill is thus in accordance with standard international practices.

But all this doesn’t answer the real question in the Indian context. Why should ministers, bureaucrats and other people on the roll of the government be allowed to run sports bodies? This raises uncomfortable questions about the ‘conflict of interest’ and ‘office of profit’ which need to be tackled politically by the government and the parliament.

Do other countries have similar legislations? Yes. In the US, the Ted Stevens Olympic Amateur Act of 1978 requires the US Olympic Committee (USOC) to establish and maintain several provisions with regard to governance such as: (i) reserve 20% of membership and voting rights in favour of amateur athletes who are actively engaged in amateur athletic competition or who have represented the United States in the preceding 10 years; (ii) before carrying out any amendment to its constitution and bylaws, USOC has to issue a public notification inviting objections; shall not engage in business for profit or issue stock; shall engage an ombudsman for providing independent advice to athletes at no cost; shall establish an Athletes Advisory Council; and shall submit detailed report of its operations and accounts to the President and Congress. In short, the USOC is expected to act as a responsible public body and maintain the highest standards of good governance. The USOC follows a normal 4 year term for its elected officials a with possible 2 year extension.

In France, sports associations are incorporated under the provisions of the Associations Law of 1 July 1901. The new French Sports Law of 2000, which modifies the law of 16 July 1984, establishes the framework for the “public service of sport”. It reaffirms the principle of close collaboration between the state and sports movement. France has an interventionist sports legislation model, and the sports movement of the country operates on a regulatory basis that is determined by statute. The French law differentiates between two types of sports organisations. There are those that are simply recognised and, others that are, in addition, given state-delegated powers to manage certain sports disciplines. The organisations with delegated powers hold a direct mandate from the state in executing a public service. They benefit from relative autonomy in issues directly relating to their sport but must also comply with a series of regulations. They are also under the control of the state and their delegated powers are reviewed every four years. The Act also provides for the establishment of Sports Council, which is responsible for stakeholder consultation for all legislation and state regulation in sports; and to evaluate state policies in sport and submit its report to the parliament. The France Code of Sports enforces democratic functioning of sports associations, transparency of its management and equal access of women and men in its bodies.

UK does not have any sports legislation, but the governments have prescribed elaborate governance guidelines under a recent modernisation programme for sports organisations. Under this scheme of corporate governance, sports organisations are categorised in terms of their abilities to meet a set of self-governance standards. This programme is based on values, which include professionalism, equity, autonomy and inclusion. Accountability is also one of the cornerstones of this government-initiated governance model for the sports movement.

However, in discussing all these issues, the crux of the debate has been lost. The purpose of this bill is to make sports bodies accountable. This accountability is to be ensured by bringing transparency in the functioning of these bodies. Measures like asking the federations to mandatorily place various reports, including their audited accounts, in public domain through their web-sites are designed to ensure that accountability.

But there is an even bigger issue which has been overlooked in the whole debate. Sports in India continues to remain under the State List (Entry 33 of the List II of the Seventh Schedule of the Constitution) after the proposal to bring it under the Concurrent List was dropped a few years ago. This means that there is no rationale for the existence of a Sports Ministry at the Centre. Now, this draft Bill was actually an enabling provision which would have made National Sports Federations more autonomous without any interference by the government in their functioning. If the government did actually end up doing away with its controls as envisaged, the logical consequence would have been the disbandment of the Sports Ministry in this country.

That, in fact, should be the endeavour of all well-meaning Indians.

By allowing this Bill to snowball into a political controversy, the UPA government has lost a great opportunity to discerp one of the unwanted ministries at the Centre. The Status Quo shall thus prevail. And Status Quo, to quote Reagan, you know, that is Latin for “the mess we’re in”.


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