[Advik Rijul Jha is a Third Year Law Student at Jindal Global Law School]
In this post, I aim to identify the rising importance of sports law in recent times, and analyse Indian law to determine how disputes arising in this nascent field ought to be dealt with by arbitration and not the normative court litigation process. The resolution of these disputes by arbitration is proposed to be promoted in order to save valuable time and cost.
Importance of sports law in recent times
Before delving into the intersection between arbitration and sports law, it is imperative to lay out an overview of the field in question. The rule of law in sport is essential, and the commercialization of sport presents a palpable need for regulation. Many ‘problems’ exist in sports such as drug abuse, violence, contractual disputes and match-fixing which cry for legal regulation. Such an interaction between the sports world and society redefines sports law. It encourages sports bodies to reconsider their own rules and mode of governance in the light of dominant legal norms. This process of acculturation allows a convergence between sports law (lex sportiva) and dominant legal norms.[1]
The debate is still ongoing in India as to whether sports law can be considered to be field of law in itself. However, sports law has an unusually well-developed pattern of globalized regulation and overlaps substantially with labor law, contract law, criminal law, intellectual property rights law, law of tort, media law, company law, etc. These laws have been applied to sporting contexts involving public order, drugs, safety, disciplinary measures, conduct and wider issues relating to restraint of trade, match fixing and the commercial exploitation of sports. This separate dimension of law may not have become an entity on its own yet, but its progress to attain the same is witnessing gigantic steps being taken rapidly.
Clearly, from its nascent beginnings, lex sportiva or sports law, has come of age and is here to stay. The offshoot is that lex sportiva generates sports disputes, calling for resolution through the various modes of settling them.[2] Having established the importance of the field, the methodology to resolve disputes in this regard can be put forth.
Need to use arbitration to resolve sports disputes
Arbitration has sprung out of the need to provide the parties to a dispute with an alternative to litigation as a means of settling disputes. Litigation has come to be regarded, especially by businessmen and sports bodies, as expensive, inflexible and a dilatory method of dispute settlement. In fact, because of these factors, there is litigation fatigue. Arbitration is being embraced by the commercial community as a quick and less expensive ways of settling disputes, although it too is also now regarded as suffering defects, and litigation fatigue.[3]
An Indian perspective for using arbitration in sports law disputes
Sports federations have traditionally sought to establish as close to total control as possible over such disputes. One approach long advanced in favor of a monopoly of authority might be characterized as a hagiographic one. It seeks to portray sports as something so uniquely exalted as religion, the implication being that no governing body outside the relevant federation should have any authority with respect to disciplinary actions and that any right of review by state authorities would be considered as inappropriate.[4]
This conception is puerile. For one, the state may have an overriding interest in ensuring standards of conduct in society. Contract, labor and other disputes are such which the state has an interest in looking into. For another, the interests of someone who complains about a decision of sports officials are not limited to a passing fascination for the outcome of a particular contest.[5]
Sport in our century is no longer a matter of entertainment spontaneously devised by a leisure class; it has become an organized industry. Disqualifications or suspensions may destroy professional careers, not to mention significant investments by sponsors. It is impossible to justify why sports federations should be less subject to judicial review. It is about time that these conventions are turned upside down and a professional forum of dispute resolution looks into these matters.
A court functioning as this forum however does not seem plausible, as the huge number of pending cases in the Supreme Court, High Courts, and lower courts in India, in addition to the lower number of judges in the lower judiciary, has led to delay of justice. Keeping this in mind, along with the normative standards of sports disputes, arbitration should thus be embraced by the commercial community as a quicker and less expensive ways of settling disputes.[6]
Currently, most sports disputes in India are heard and settled by following the guidelines and procedures which are laid down in the rule book of the organizations which manage these sports. These organizations have their own dispute resolution mechanism enshrined in their constitution, which is used to decide such disputes. There is no uniformity in this method of resolving disputes. There is a need to bring a change in this regard considering the increase of sports related disputes over the years. Bringing about a uniform mode to resolve these disputes by way of dedicated tribunal or forum can introduce a positive change.
Potential parties to disputes arising from sports activities, or in connection with them, not only include the athletes and the federations that legitimize structured competition, but also include promoters, sponsors, team owners, organizers, licensees and agents of all types. Governmental authorities also may become embroiled in controversy when they are called upon to protect not only individual interests but the public interest as well. Confidentiality and speedy redressal of disputes is paramount to them which can be facilitated by arbitration. The amendment brought in 2015 to the Arbitration and Conciliation Act in section 29A further plays into the hands of parties as it stipulates the period of one year to resolve disputes.
At a time when sports are becoming more professional and the stakes are becoming higher than ever, dispute resolution takes an increasingly important role. In many respects, arbitration offers the most suitable solutions with regards to the rapidity, diversity and professionalism of the final decree which is given. With regular increase in the number of sports-related disputes in the country, India requires an independent authority that specializes in sports-related problems and that is authorized to pronounce binding decisions. The disputes, when referred to courts, take a long time to come up to a final decision since the Indian courts are already piled up with a number of pending cases. There is a need to have an authority for sports that offers flexible, quick and inexpensive method of resolution of disputes. It is argued that forums providing arbitration, mediation and other services ought to be given the primary jurisdiction to hear sports law disputes. This will reduce burden on courts while providing the parties with an alternative stream lined professional procedure with stipulated time frame to resolve disputes. Continuous hearings can also take place which is not practically possible in the courts of law. These forums will also have the advantage of having professionals from the field of sports, management inter alia along with judicial minds to give decisions which are in consultation with the experts of the fields itself.
Concluding remarks
Arbitration has the ability to carve out a niche for itself in dispute resolution in specific areas which play to its strengths like sports law where time is of the essence. Tribunals which specialize in efficient dispute resolution ought to be established in India in line with tribunals like Court of Arbitration for Sport (“CAS”), Federation Internationale de Football Association (“FIFA”) and World Intellectual Property Organization (“WIPO”) at the global level in order to keep focus on efficient organization of sports. Having a separate forum and mechanism to solve disputes pertaining to the diverse and upcoming field of sport is the need of the hour. Arbitration of sports law disputes is the way forward as it is makes it plausible to be concluded in specific time frame. Following the global norm, appeals from decisions in India can lie to the CAS, which is also known as “the Supreme Court for sports disputes”.
– Advik Rijul Jha
[1] Mohd Akram Shair Mohammad, Abdul Rani Kamaruddin, Mediation as an effective tool for resolving sports disputes, International Journal of Business, Economics and Law, Vol. 7, Issue 4 (Aug.) ISSN 2289-1552.
[2] Ibid.
[3] Ibid.
[4] Jan Paulsson, Arbitration of International Sports Disputes, 11 Ent. & Sports Law. 12 , 30 (1994).
[5] Ibid.
[6] Ibid.