Introduction
An opportunity to represent the country at international sporting events is a highpoint in every athlete’s career. Athletes commit to training persistently for years in pursuance of this objective. In India, the Indian Olympic Association (“IOA”) performs the crucial function of finalizing athletes to represent India at the Olympics and other international sporting events such as the Commonwealth Games, Asian Games etc. However, it is aided in this task by the National Sporting Federations (“NSFs”) established to administer various sports. The recent controversies with respect to selection of athletes to represent India in tennis and swimming at the London 2012 Olympics have shown that there may be instances where athletes may be aggrieved by the selection processes followed or adopted by the federations and this article aims at analysing the remedies that may be available to the athletes to resolve such disputes.
Selection of athletes
The athletes or teams selected for national representation are a reflection of the nation’s potential and competence. Hence, the sporting federations have an imperative responsibility of not only fielding the best sportspersons but also ensuring that they observe unbiased and fair methods of selection. The National Sports Development Code of India, 2011 covenants NSF’s to adopt and implement impartial and conspicuous procedures for selection of athletes for various tournaments, in order to be eligible for government support and recognition, financial and otherwise. Though, these organisations usually follow an objective criterion, which is largely based on merits, sometimes ancillary aspects such as the format of the tournament, playing conditions, nature of opponents etc. play a significant part in the selection process. Controversies with respect to selection may arise on account of an arbitrary decision by the sports federation or on account of non-application of mind to the selection processes prescribed.
Remedies
Internal
NSF’s in India enjoy an autonomous status and are allowed to prescribe their own internal mechanism for resolving disputes between various parties affiliated to them, including players, clubs, coaches, etc. The Courts have endorsed this practice, as it provides the parties, at the first instance, an informal atmosphere devoid of legal conventions and technicalities, to address their grievances. For instance, the Memorandum of Association of the All India Football Federation (AIFF) specifically provides that its members, including clubs, players, etc., submit any and all disputes arising between them to arbitration before seeking redressal in the courts. Accordingly, the AIFF has created a three tier internal instrumentality to determine such disputes. The ‘Disciplinary Committee’ of the AIFF which can pronounce decisions on any sanctions described in the statute and the AIFF disciplinary code. Most decisions of the Disciplinary Committee are appealable to an ‘Appeals Committee’, unless it is has been stipulated otherwise. Accordingly, the Appeals Committee may hear all disputes regarding decisions of the Disciplinary Committee and the ‘Players Status Committee’ regarding the eligibility of players for various competitions. The AIFF has also created an arbitration tribunal for the resolution of disputes between its members, clubs or players. However, the tribunal’s jurisdiction is limited to only those matters which do not fall under the purview of the Disciplinary Committee or the Appeals Committee. The tribunal follows special procedural regulations created for this purpose. However, it is bound by the disciplinary regulations of the AIFF and FIFA and also the applicable laws in force in India.
Legal
Erstwhile, athletes could not enforce their rights against national sports organisations as they were considered to be private bodies which did not fall within the ambit of ‘State’ under Article 12 of the Constitution of India and were thus not amenable to the writ jurisdiction of Courts. However, it was later realised that such organisations performed various significant public functions and hence their acts and decisions pursuant to such functions should be subject to judicial review.
When the question as to whether the BCCI falls under the ambit of ‘State’ was raised before the apex court in Zee Telefilms v. Union of India, (2005) 4 SCC 649, the court held in the negative. The reasoning provided by the Court was that while the BCCI did enjoy a monopoly over cricket in India, it was not a statutory creation and did not financially depend on the government. In addition, the government played no role in its conduct of daily affairs. It therefore dismissed the petition filed against BCCI under Article 32. However, in Rahul Mehra v. Union of India, it was held that not all actions of the BCCI would be subject to judicial review, but only those actions that fall within the ambit of public law would call for any direction, order or writ. In reaching this conclusion, the court observed that where a “public function” is involved, writ jurisdiction is attracted.
In Narinder Batra v. Union of India, W.P.(C) 7868/2005 the High Court of Delhi held that as long as the selection of the team had been lawfully conducted the courts would not evaluate whether such a selection was right or wrong. Thus it can be seen, that in disputes with respect to selection, courts would usually not deliberate into the merits of the procedure itself and would only strike down a selection if it finds that the procedure established by such an organisation was not followed.
In addition, it has generally been observed that courts usually shy away from intervening in matters of disputes between sporting organisations and their members and advocate that the same be resolved through alternative means. The same is evident from the case of All India Women’s Hockey Association v. Indian Olympic Association, 1994 (2) ARBLR 243 Delhi where it was held that the court was not the appropriate forum for hearing matters concerning the NSFs and its members. The Court held that it may interfere if the organisation or the members have conducted themselves in an illegal manner or in a way which was not sanctioned by the constitution governing them. It also held that if there is an alternative platform for determining the disputes the court would refer the parties to such forum before venturing into adjudicating the issue itself.
The Indian Court of Arbitration for Sport
In 2011, the Indian Olympic Association on the recommendation of the International Olympic Committee established the Indian Court of Arbitration for Sports (ICAS) to provide for arbitration and mediation procedures for disputes and controversies relating to the sports under the purview of the IOA. The IOA Constitution specifically provides that all NSFs should incorporate a provision in their constitution that all disputes between them and their members should be submitted to the ICAS. It also requires the NSF’s and its members to waive the right of approaching the court for such disputes. The ICAS, which is located in the capital of the country, consists of an Ordinary Arbitration Division and an Appeals Arbitration Division. The constitution of the IOA provides that a further appeal against the order of the ICAS lies to the International Court of Arbitration for Sport (CAS) at Lausanne, Switzerland. The procedural rules adopted by CAS apply to such appeals. All appeals in the CAS are heard by its “Appeals Arbitration Division”. Specific “panels” are created under the CAS to resolve such disputes. Section 12 (b) of the CAS Code states that the Appeals Arbitration Division is empowered to settle disputes concerning the decisions of federations or sport-related bodies. Therefore, an athlete could appeal to the Appeals Arbitration Division of the ICAS in case of any selection dispute.
However, it is pertinent to note here, that the CAS is a voluntary forum which may be resorted to only when the parties agree to its jurisdiction. In the absence of such agreement the CAS can be of no help. Since most of the NSF’s are associated with the IOA which allows the athletes to refer an appeal to CAS, athletes who may be affiliated with other sporting organisations may need their express consent before they can approach the CAS.
Conclusion
Apart from the above stated remedies, the National Sports Development Bill 2011 also provides for a redressal mechanism. It aims at redressing grievances of NSFs, athletes and National Olympic Committees by establishing the Sports Dispute Settlement and Appellate Tribunal. However, this bill is currently under consideration and it will be interesting to see if the system proposed under the Bill will clash with the recently established court of arbitration by the IOA. In any event, it can be seen from the face of it, that sufficient remedies are available to athletes in India to address issues related to non-selection in sporting competitions and tournaments. However, on careful perusal it is seen that most of the forums available to the athletes are internal or are presided by experts appointed by the governing or regulating bodies of the sport which may create a sense of apprehension and suspicion in the minds of the athletes who may begin to doubt its credibility and integrity.
The Preliminary Exposure Draft of the Draft National Sports (Development) Bill, 2011 circulated by the Ministry of Youth Affairs and Sports in February, 2011 required all NSFs to make public their selection criteria and policies as well as qualification norms. While the selection of athletes to represent India was to form part of each NSFs core responsibilities, the Ministry and the Sports Authority of India would have no direct involvement in the selection process, except to ensure fairness and transparency. Additional checks and balances, in the form of detailed reports by the national coach, and proceedings of the selection committee spelling out in detail, the selection criteria, the past performance of the players, and their performance in the selection trials would go a long way in boosting the objectivity of the selection process. Further, NSFs would be required to have in place proper appeal mechanism to ensure timely redressal of grievances.
Unfortunately, the revised National Sports (Development) Bill, 2011 released in October, 2011, perhaps took a step in the wrong direction with respect to the exclusions and exemptions carved out in favour of NSFs in relation to the application of the Right to Information Act, 2005. Tellingly, these include information pertaining to selection, appointment or exclusion of athlete/s, coach, trainer or physiotherapist. Keeping in mind such experiences, an RTI application would prove invaluable in gaining an insight into the reasons that formed the basis for such decisions.
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