Background
Hockey India (“HI”) recently cracked the whip by slapping a two-year ban on star players Sandeep Singh and Sardara Singh – a ban that has reportedly since been revoked. The ban was purportedly a result of the players attending a function organised by World Series Hockey (WSH), without permission, in the middle of a training camp organised by HI before the Asian Champions Trophy. The ban meant that the two players could not participate in HI and International Hockey Federation (“FIH”) events during the ban period.
The eight-team WSH is a joint venture of the Indian Hockey Federation (IHF) and Nimbus Sport.
Player bans such as these once again raise important questions of the treatment of rival, unauthorised leagues and the legal status of player bans relating to participation in such leagues. This is an area that will have to be carefully negotiated by all parties concerned.
World Series of Hockey
It is a well-known fact that the IHF and HI, the two competing hockey bodies in India, are locked in a tussle to run the game in the country. While there was no direct action from the FIH (which recognises HI but not the IHF) upon the announcement of the launch of WSH, it sent a communication to all of its affiliated National Associations (“NAs”) stating that it does not recognise the WSH, and that:
“FIH has received reports from some national associations that some of their players have been approached by agencies supposing to represent franchises that will participate in the new league. FIH states that it does not recognize the WSH. FIH notes that matches in the WSH may conflict with FIH major events, which may compromise an athlete’s participation in their national team program …. Any player and any NA that participates in the WSH may render that player and NA ineligible to participate in any FIH tournament, including Olympic qualifying tournaments and the Olympic Games.”
Additionally, the letter stated that,
“players and NAs will be rendered ineligible to participate in the Olympic qualifying tournaments and the Games if they become part of WSH.”
The FIH guidelines on “Unsanctioned Events” state that NAs are required:
- not to participate in Unsanctioned Events;
- to prohibit participation by Athletes and other organisations and individuals under its jurisdiction in Unsanctioned Events ; and
- not to permit an Athlete from another National Association to participate in an Event that it organises or sanctions unless he has first obtained a No-Objection Certificate from his Home National Association confirming that it has no objection to his participation in such Event.
The guidelines also mention that any player who has signed with unsanctioned events such as the WSH, after March 31, 2011, would not be allowed to play in a sanctioned tournament for 12 months. With the Olympics in London in 2012 around the corner, top internationals are unlikely to sign up for the new league. However, those players who signed with the WSH before March 31, 2011 have been cleared to take part in the WSH as well as sanctioned events, following meetings between the league's organisers and the FIH.
HI has categorically stated that players involved in the WSH will not be considered for national camps or tournaments conducted by HI or FIH. HI's contention is that since it is the recognised governing body for hockey in the country, it is the sole authorised body having the right to conduct any such league, to select players representing the country and establish criteria therefor.
Hockey India
In 2008, the Indian Olympic Association and the Ministry of Sports and Youth Affairs derecognised the IHF as the governing body for hockey in India and set up HI, after the then Secretary General of the IHF was shown to have accepted bribes to select players for the national team. The FIH subsequently granted HI international recognition. However, a 2009 judgment by the Delhi High Court complicated matters when it ruled the de-recognition of IHF invalid as rules of natural justice had not been followed and the procedure envisaged for de-recognition of a national sports federation, as contained in the National Sports Policy 2001, had not been followed. In 2011, IHF and HI reached an apparent settlement to form a joint body to govern hockey in India.
The FIH has practically rejected the ‘settlement', being particularly unhappy that the arrangement did not comply with the Olympic Charter and the FIH Statutes.
Since Hockey India is the recognised body to run the sport in India, both by the government and the FIH, it has the apparent authority to discipline players for any misdemeanours or actions which could hurt the sport. Hockey India also reserves the right to decide cases of indiscipline/misconduct/protest/breach of regulation by the affiliated member or any individual and impose suitable penalty subject to his right to appeal to the General Council. It is under this provision that Sardara Singh and Sandeep Singh were banned for two years, subject to appeal.
Prohibiting players from participating in WSH and banning them if they do so gives rise to questions relating to whether these acts are “in restraint of trade” and therefore bad in law.
Restraint of Trade
The Indian position with regard to restraint of trade is governed by section 27 of Indian Contract Act, 1872. It voids ‘every agreement by which anyone is restrained from exercising a lawful profession, trade or business of any kind’. Only agreements which serve to bar the carrying out of a lawful business agreement are termed ‘restraints’. Mere restrictions on the freedom in carrying out an activity do not qualify as restraints. Also, there may be certain restrictions which do not constrain business activity, but serve to promote it. Thus, restrictions incorporated in a contract would not amount to restraints on trade: (a) if they are restrictions on freedom in carrying out the activity, and not a bar to carrying it out; and (b) if they serve to promote trade rather than restrain it.
Indian Courts have also consistently held that section 27 does not apply to restraints that may be imposed on employees during the term of the contract, unless the restraint is unreasonable. So, Courts determine the validity of the restraint at two levels: (a) when it acts; and (b) its reasonableness. If it acts beyond the term of the contract, it is void, and no consideration of its reasonableness is needed. If it acts only during the term of the contract, its reasonableness will be examined, and upheld if reasonable. If it acts both during and after the contract, and is reasonable, that part of it acting during the contract will be valid.
The landmark decision with regards to “restraint of trade” in the sports realm is the case of Tony Greig v. Insole, wherein it was held that the relevant cricket board’s decision to ban the English cricketer Tony Greig and other cricketers from official Test cricket as punishment for participating in the World Series of Cricket were void and ultra vires, and that a retrospective ban constituted an unjust and unreasonable restraint of trade, as it would deprive a professional sportsman of an opportunity to earn his livelihood.
In the event that restrictions continue to be imposed on player participation in the WSH (especially player bans) the applicability of the restraint of trade to professional sportspersons is likely to be evaluated by Indian courts. Similarly, the extent of the jusitifiable ‘monopoly’ rights of a sports governing body such as HI, especially when it comes to limiting opportunities of the players its governs, will likely be brought into question. While these are matters that are unlikely to be resolved without much heartache, they involve important legal questions on which greater certainty is desirable.
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