THE ALL INDIA Tennis Association (AITA) has recently imposed a ban of 2 years on Mahesh Bhupathi and Rohan Bopanna due to the stand taken by them prior to the Olympic Games. However without commenting on their conduct, a question arises, is the two year ban imposed by AITA justified?
The parent body of AITA, the ITF in its regulation covering the 2012 Olympic Tennis Event clearly states that in all disputes pertaining to the participation in the Olympic Games would be under the ambit of the National Olympic Committee. Hence the question, can a ban be imposed by AITA violating its parent body’s regulation and without express written consent by the Indian Olympic Association.
Even if AITA has not received such consent from the IOA, has AITA adhered to the principles of natural justice and a fair hearing. The Court of Arbitration for Sports (CAS) has clearly laid down that all sporting institutions including the international federations must abide by the general principles of law and no exemption can be sought from the applicability of these general principles, by reducing its applicability by a sport bodies’ statutes and regulations. The AITA has stated that such a ban was imposed by a decision of its Ethics Committee. Thus comes a question how was this Ethics Committee constituted? The principles of natural justice require that a decision imposing body should comprise of independent, impartial and competent people. Further a show cause notice should have been issued to Bhupathi and Bopanna, clearly laying down the charge against them, the provision of the code of conduct pursuant to which action is sought to be taken against them, the date and time of the hearing whilst also giving them a chance to submit their defense and then giving a reasoned award. These principles of natural justice assume even more importance in the case of sports disputes because the sports bodies act as the prosecutor as well as the judge.
The courts of the country would generally refrain from exercising their discretionary writ jurisdiction under Article 226 or Article 32, if an alternate and efficacious remedy is available to the petitioner. However, if the sports bodies like the AITA fail to adhere to the principles of natural justice, the court would likely deem that an alternate and efficacious remedy was not available to the petitioner and interfere in the order of the sports body. But even if the AITA had not obeyed the principles of natural justice, is there an alternate remedy available? The answer to this would be in affirmative. A decision of the AITA imposing a ban is challengeable before the ITF or the CAS. Therefore the courts in India whilst exercising their jurisdiction would have to determine, whether the appeal to the ITF or the CAS is an alternative and efficacious remedy.
The jurisdiction of the AITA to impose a ban arises due to a contract between the AITA and the players. By signing the participation forms, the players have consented to obey the rules and regulations of ITF/AITA for playing in the Olympic Games. The AITA on players signing the participation form has sent the players entry which has allowed them to participate in the Olympic Games. It would be the legitimate expectation of the players that AITA acts in good faith and respects its rules and regulations and those of the ITF. In the event these rules and regulations are not adhered to by the AITA, it would be treated as a party in breach of its contract with the players. When the players are agreeing to adhere to the rules and regulations of the AITA/ITF they have a legitimate expectation that the AITA will act fairly when imposing its rules and regulation and impose a punishment which is proportional to the offence.
If the punishment is not proportionate to the offence, it could be treated as a sanction violating the players’ fundamental right to freedom to practice his profession. The question now arises, what is a proportionate punishment in this case? In order for a punishment to be proportionate, it must not exceed that which is reasonably required in the search of the justifiable aim. The punishment for a first time doping offence is a two years ban. Before the implementation of the WADA Code 2009, some of the sport bodies sought to impose a punishment of three years for a first time offence. This punishment of three years was challenged before a court in Munich as being disproportionate. The court held that a two year suspension imposed on an athlete for a first offence represents the highest threshold admissible under the fundamental rights and democratic principles and such a punishment for a first sports offence is inappropriate and disproportionate.
A contrary view can be taken from other offences of misconduct in sport like match fixing. The International Cricket Council has imposed life bans on players who have been caught for match fixing even if this was a first time offence. Whereas for other disciplinary offences for unsporting behavior or for violating the principles of fair play punishments range from a mere reprimand to a ban for a few matches.
The refusal of the players to break up their team despite pressure from AITA, may be a graver offence than a minor disciplinary offence but it should not be equated to the same gravity as a doping offence or an offence in the nature of match fixing. If this decision is appealed in the courts in India, it would be interesting to see whether the court exercises its discretionary jurisdiction and admits the petition, if it does whether it upholds the punishment or reduces it or completely annuls it in light of the consideration of principle of natural justice and proportionality.
