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Governance practices in administrative bodies form the base of a sporting eco-system. On one hand, governance that is accountable to all stakeholders has a positive impact on the way sport is organized and empowers athletes with the ideal environment to maximize their potential. On the other hand, malpractices have a negative impact on the public image of the sport and destabilize an athlete’s sincere pursuit of success.

The bell has been tolling for reform in governance of Indian sports bodies for a while. During major international events like the Olympics and Commonwealth Games, one is more likely to encounter reports of official inefficiencies rather than that of sporting excellence. Federations and associations have been often found exercising monopoly in spurious ways by remaining unaccountable to athletes, fans and the public while hiding beneath the veil of their supposed autonomy.

Lack of healthy governance promotes uncertainty, ad hocism and an environment of unfairness. This translates to a lack of clarity for the athlete on future possibilities which further leads to several, often over-looked, issues:

Please note that the  quotes in italics mentioned below are from conversations the author has had with elite athletes as a part of a research study. Names have been withheld in the best interests of the athletes involved.  

Long-term Planning

“Because we do not have a proper system in place, it becomes very difficult to set long term goals in the sport. For example, at times, we are not aware of what competitions we are going for, the teams are announced last minute and there is no clarity on whether there will be a camp or not.”

The highest level of international competitions warrant a great deal of planning to achieve the best possible performance. With the advancement of sports science, concepts like periodization help athletes plan their training routines in great detail such that they peak physically and mentally at the biggest events. This is not possible if sport bodies cannot be held accountable. When arbitrary decisions are taken, especially with regard to selection and participation in competitions, it offers little clarity about the future, thus preventing athletes from planning long term. Even elite athletes end up having to take it one competition at a time as opposed to athletes from developed countries who mostly develop their training routines based on the “Olympic cycle”.

Competition Anxiety

“When I went to the Paralympics, I spoke to a lot of the international players and they told me how they have at least 6 months of national camps for them to train and I had 1 month of camp of which 17 days were wasted because they (federation) were not okay with my coach assisting me to the camp. I was very nervous during my event because I felt that my preparation was not upto the mark. ….like I mentioned, the one weakness I have is that if I miss or mess up one shot, in the beginning, I hold on to that mistake throughout my game.”

Ideally, elite athletes need to be clear about their post-competition routines and plans before they participate in major competitions. But if one is compelled to plan short-term and if one’s identity or future participation in sport depends solely on the current performance, it makes one vulnerable to unexplained anxiety. Furthermore, this often puts one at risk of an injury since body movements become less fluid as a result of the high muscular tension prevalent in an anxious state. While claims of mental weakness are made rather recklessly by the public and the media, it is important to acknowledge that the reasons for failure could boil down to erratic decisions taken by sports bodies in the lead up to the event.

Match-day routine

“During national level competitions, so many times, no proper accommodation arrangements are made for us para athletes. We have to either make our own or go through significant difficulty. When the place of stay is far from the competition venue, we end up having to skip meals before competition. ”

Most successful elite athletes follow a specific match-day routine during competitions that enables them to maximize their potential on the day of the event. However, if domestic competitions at the state or the national level are organized in a haphazard manner, athletes are unable to develop such a routine. Rather than focusing on aspects such as diet, sleep cycle and self-talk, athletes end up having to navigate through a series of unforeseen or unexpected circumstances. Over a period of time, this prevents athletes from developing any fixed routine which has a small yet significant effect on their prospects in international competitions.

Financial challenges

“Money has been my biggest challenge from the beginning. The source of funding is always erratic and ad-hoc and I haven’t been able to manage much because of that. During my earlier years, despite being selected to play for the country, I was told that I had to keep a deposit of 2 lakh rupees to bear the expenses of travel!”

A sporting career is dependent on the availability and management of financial resources. Even though the avenues to raise money are available, systemic disorganization can leave athletes confused about the optimum use of resources at a particular time due to lack of clarity on future participation. Moreover, there is a disparity in the monetary compensation offered by state governments for international performance which skews the perspective that athletes have about sporting success. On one hand, it encourages malpractices as athletes look to win at all costs considering the high stakes involved. On the other hand, there is a feeling of unfairness since the same amount of effort and achievement is variably compensated.

Travel related hurdles

“I remember that in 2013, when we went to the World Para-Badminton Championship, we received the Visa in the absolute last minute. Because of this, we only got a hotel that was almost 150 km away from the venue. And we use to reach exhausted to the venue on the day of the competition. See, all these little things matter.”

Timely procurement of visas and smooth travel arrangements are critical for participation in international competitions. While the procedures to procure may not be in the hands of the sports bodies like federations, it is a period when they can provide crucial support by lobbying in the interest of the athlete. However, if the onus of seeking visas and completing paperwork formalities is completely on the athlete, it causes stress during a period of time which has to be ideally spent on planning the details of performance. Often, one is at the mercy of the intervention by the government. Furthermore, uncoordinated last-minute travel arrangements increase the chances of jet lag and reduces the scope for acclimatization, which eventually has an impact on performance.

Dealing with Ethical issues

“I haven’t been officially told what the best way out is (to deal with ethical issues). There hasn’t really been any educational program in this regard. …we need more awareness regarding topics like harassment…  I also wonder what I would do if something were to happen to me. Not everything is done openly and there is always manipulation that we can never understand.”

An environment that is respectful, equitable and free from discrimination is necessary for healthy participation in sport. This depends on the protocols put in place by sporting bodies to address ethical issues in a systematic and timely manner. But lack of such mechanisms puts athletes at risk of a range of issues such as age fraud, doping, competition manipulation, unjust selection policies and harassment. When affected, they are likely to be found unaware and unprepared to deal with them, often having to bear significant costs to knock the doors of the courts.  Moreover, such a situation encourages opportunities for established athletes to use their influence to maneuver circumstances in their favor resulting in the prevalence of an unfair environment.

Career Progression

“I believe that athletes need to learn to stand up for themselves, otherwise internal politics will consume them. I know of so many national level athletes with tremendous talent who are roaming around in the fields and wasting their life because internal politics ruined their careers.”

Sports bodies like federations are responsible for the overall welfare of the athletes and have to provide a pathway, not only for their sporting aspirations but also for them to transition to alternate careers. But inefficient governance minimizes the prospect of a sustainable professional career. Some just give up their pursuit due to the lack of a clear road-map. Some get exhausted by expending mindless efforts to navigate administrative hurdles and the “politics” involved. Some are wrongfully excluded or are subject to some form of discrimination which they find hard to address. Moreover, even athletes with a reasonable amount of success in the international level struggle to build a life beyond sport.

Acknowledging these issues can be important for several reasons. Firstly, it puts the sporting success of athletes into context – while “succeeding despite the system” has become a popular cliché, it enables us to become more aware of the actual struggles faced. Secondly, athlete perspectives can bring a new dimension and a sense of urgency to the campaign for reform. Moreover, it can prompt the eco-system to create platforms where athletes can meaningfully contribute to policy making and the development of a professional environment for future generations to thrive in.

To be fair, the persistent media coverage and certain high-profile judgements from the honourable courts have ensured a push towards the better. Awareness has been generated regarding the need for reform and the general public is more willing to acknowledge its importance. Many federations have made sincere efforts to professionalize and the governments have been making pro-active efforts to create better opportunities. Athletes are not submissive as before and are able to garner public support for their issues through social media. Recognizing the athlete narratives can, therefore, play a key role in accelerating the process for change.

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Governance practices in administrative bodies form the base of a sporting eco-system. On one hand, governance that is accountable to all stakeholders has a positive impact on the way sport is organized and empowers athletes with the ideal environment to maximize their potential. On the other hand, malpractices have a negative impact on the public image of the sport and destabilize an athlete’s sincere pursuit of success.

The bell has been tolling for reform in governance of Indian sports bodies for a while. During major international events like the Olympics and Commonwealth Games, one is more likely to encounter reports of official inefficiencies rather than that of sporting excellence. Federations and associations have been often found exercising monopoly in spurious ways by remaining unaccountable to athletes, fans and the public while hiding beneath the veil of their supposed autonomy.

Lack of healthy governance promotes uncertainty, ad hocism and an environment of unfairness. This translates to a lack of clarity for the athlete on future possibilities which further leads to several, often over-looked, issues:

Long-term Planning

The highest level of international competitions warrant a great deal of planning to achieve the best possible performance. With the advancement of sports science, concepts like periodization help athletes plan their training routines in great detail such that they peak physically and mentally at the biggest events. This is not possible if sport bodies cannot be held accountable. When arbitrary decisions are taken, especially with regard to selection and participation in competitions, it offers little clarity about the future, thus preventing athletes from planning long term. Even elite athletes end up having to take it one competition at a time as opposed to athletes from developed countries who mostly develop their training routines based on the “Olympic cycle”.

Competition Anxiety

Ideally, elite athletes need to be clear about their post-competition routines and plans before they participate in major competitions. But if one is compelled to plan short-term and if one’s identity or future participation in sport depends solely on the current performance, it makes one vulnerable to unexplained anxiety. Furthermore, this often puts one at risk of an injury since body movements become less fluid as a result of the high muscular tension prevalent in an anxious state. While claims of mental weakness are made rather recklessly by the public and the media, it is important to acknowledge that the reasons for failure could boil down to erratic decisions taken by sports bodies in the lead up to the event.

Match-day routine

Most successful elite athletes follow a specific match-day routine during competitions that enables them to maximize their potential on the day of the event. However, if domestic competitions at the state or the national level are organized in a haphazard manner, athletes are unable to develop such a routine. Rather than focusing on aspects such as diet, sleep cycle and self-talk, athletes end up having to navigate through a series of unforeseen or unexpected circumstances. Over a period of time, this prevents athletes from developing any fixed routine which has a small yet significant effect on their prospects in international competitions.

Financial challenges

A sporting career is dependent on the availability and management of financial resources. Even though the avenues to raise money are available, systemic disorganization can leave athletes confused about the optimum use of resources at a particular time due to lack of clarity on future participation. Moreover, there is a disparity in the monetary compensation offered by state governments for international performance which skews the perspective that athletes have about sporting success. On one hand, it encourages malpractices as athletes look to win at all costs considering the high stakes involved. On the other hand, there is a feeling of unfairness since the same amount of effort and achievement is variably compensated.

Travel related hurdles

Timely procurement of visas and smooth travel arrangements are critical for participation in international competitions. While the procedures to procure may not be in the hands of the sports bodies like federations, it is a period when they can provide crucial support by lobbying in the interest of the athlete. However, if the onus of seeking visas and completing paperwork formalities is completely on the athlete, it causes stress during a period of time which has to be ideally spent on planning the details of performance. Often, one is at the mercy of the intervention by the government. Furthermore, uncoordinated last-minute travel arrangements increase the chances of jet lag and reduces the scope for acclimatization, which eventually has an impact on performance.

Dealing with Ethical issues

An environment that is respectful, equitable and free from discrimination is necessary for healthy participation in sport. This depends on the protocols put in place by sporting bodies to address ethical issues in a systematic and timely manner. But lack of such mechanisms puts athletes at risk of a range of issues such as age fraud, doping, competition manipulation, unjust selection policies and harassment. When affected, they are likely to be found unaware and unprepared to deal with them, often having to bear significant costs to knock the doors of the courts.  Moreover, such a situation encourages opportunities for established athletes to use their influence to maneuver circumstances in their favor resulting in the prevalence of an unfair environment.

Career Progression

Sports bodies like federations are responsible for the overall welfare of the athletes and have to provide a pathway, not only for their sporting aspirations but also for them to transition to alternate careers. But inefficient governance minimizes the prospect of a sustainable professional career. Some just give up their pursuit due to the lack of a clear road-map. Some get exhausted by expending mindless efforts to navigate administrative hurdles and the “politics” involved. Some are wrongfully excluded or are subject to some form of discrimination which they find hard to address. Moreover, even athletes with a reasonable amount of success in the international level struggle to build a life beyond sport.

Acknowledging these issues can be important for several reasons. Firstly, it puts the sporting success of athletes into context – while “succeeding despite the system” has become a popular cliché, it enables us to become more aware of the actual struggles faced. Secondly, athlete perspectives can bring a new dimension and a sense of urgency to the campaign for reform. Moreover, it can prompt the eco-system to create platforms where athletes can meaningfully contribute to policy making and the development of a professional environment for future generations to thrive in.

To be fair, the persistent media coverage and certain high-profile judgements from the honourable courts have ensured a push towards the better. Awareness has been generated regarding the need for reform and the general public is more willing to acknowledge its importance. Many federations have made sincere efforts to professionalize and the governments have been making pro-active efforts to create better opportunities. Athletes are not submissive as before and are able to garner public support for their issues through social media. Recognizing the athlete narratives can, therefore, play a key role in accelerating the process for change.

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The Sports Law & Policy Centre by Kruthika N. S. - 3M ago

Caster Semenya is fast. Some even say she’s too fast. And in a few days, she’ll get to hear if her speed will be the undoing of what she does best: run. The Court of Arbitration for Sport (“CAS“) is days away from its verdict on her challenge to the validity of the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (“DSD Regulations“) issued by the International Association of Athletics Federations (IAAF), and the outcome could be anybody’s guess. The DSD Regulations offer Semenya, and so many others like her, a new kind of obstacle to women’s sport, as if there aren’t enough already. Reasoning that testosterone levels have a significant impact on one’s physical ability, they indicate that women like Semenya produce so much more testosterone – a hormone generally associated with men – than “normal” women, that certain track competitions between the two would be unfair.

A CAS decision in favour of upholding the DSD Regulations would mean that if Semenya chooses to compete in these women’s events, she will have to reduce her natural testosterone levels using external means, frequently get tested to prove that the hormone is within a “normal range”, and finally, run in a body she’s not used to. If changing her biology to her own detriment sounds a tad bit preposterous, there happens to be another option: she could compete without changing herself one bit, only she would have to compete with men. And if that sounds even worse, she could simply call it quits.

Needless to state, the DSD Regulations have been met with considerable critique. For starters, they apply only to women or intersex athletes, but not men. No man is ever asked to compete with women if he has low testosterone levels, and no man is asked to reduce these levels if he produces too much of it. It is almost as if men’s victories come unconditionally, while those of women are constantly met with suspicion. Further, in attempting to implement a clear-cut, “scientific” rule, the IAAF comes off as almost myopic as far as their social ramifications are concerned. If pushed to a male event, would a woman be considered ‘woman enough’? Would her gender identity be of any consequence? How would it impact her social life outside of sport? With these shortcomings, it is unsurprising that even the United Nations Human Rights Council has called the DSD Regulations “unnecessary, humiliating and harmful”.

Agreed, men and women largely produce differing levels of testosterone, and some women tend to produce more of the hormone than others. However, whether this provides adequate reason to exclude their unaltered bodies from women’s competition remains contentious. In fact, some sports science experts have criticised the DSD Regulations for failing to demonstrate convincingly that high testosterone levels offer a performance advantage vastly greater than that offered by longer legs or better lung capacity.

These questions are similar to those already raised at CAS in 2015 by Indian sprinter, Dutee Chand, who had challenged the Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (“Hyperandrogenism Regulations“). These rules preceded the DSD Regulations, mandated testosterone tests for all track events, and were finally struck down for the IAAF’s failure to provide adequate evidence necessitating such tests. As a result, the IAAF came up with the current DSD Regulations, whose only improvement over the earlier rules is that they apply only to those events between 400 metres and a mile, as opposed to all track events. The IAAF presented new evidence to substantiate the new DSD Regulations, and Chand did not pursue the challenge further, as she didn’t compete in these events. Yet, many argue that the rationale behind both sets of rules remains the same. So much so, it can perhaps be claimed that the DSD Regulations are merely Hyperandrogenism Regulations-lite. And many women, like Semenya, are bound to be affected.

Despite the criticism, the IAAF has not budged once on its stance, that an unregulated female sporting space can end up disastrous for “normal” women who are not blessed with high testosterone levels. The dystopian end of women’s sport that the IAAF envisions is filled with women who produce abnormally high testosterone, effectively excluding all “normal” women from sport. One can’t help but draw a parallel to the sporting world back in the ’50s, when intrusive gender tests were conducted on merely female participants, just to make sure no man was disguised as a woman to hit the medal jackpot.

With their challenges, Semenya and Chand have revealed to us what’s been wrong with sport all along: its incessant need to draw a fine line between male and female categories, where no such line can be conclusively established. If sport is socialized using rigid gender binaries, but regulated using rigid sex binaries, the result is nothing but messy. Especially in a world that is still coming to terms with sex and gender being a whole lot messier. In the immediate case however, a few things are clear: Semenya was born a woman, raised as a woman, and identifies as a woman. All she asks now, is that she can run as one.

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Introduction

2017 was perhaps the most significant year[1] in recent Indian football history. The FIFA U-17 World Cup was generally considered to be a success, the Indian national team qualified for the 2019 Asian Football Confederation (“AFC”) Asian Cup for the first time since 2011 and the fourth edition of the Hero Indian Super League (“ISL”) was for the first time recognised as a league by the AFC, therefore concluding its longest and arguably most successful season yet.

However, 2017 also saw the All India Football Federation (“AIFF”) attempting to restructure the affairs of Indian club football – given that the two leagues, the Hero I-League (“I-League”) and ISL operated separately resulting in a rather disjointed and unharmonised system.

It is against this backdrop, that the AFC commissioned an inquiry into the state of affairs of Indian club football culminating in a 17-page report[2] issued in April 2018; recommending action to be taken by the AIFF to achieve its objective of developing the sport.

While the report has not been made available in the public domain, it is considered to be the definitive roadmap that the AIFF ought to follow to ensure the progress and continuity of Indian football. This piece seeks to discuss the current state of Indian football and particularly, the way forward, in light of the AFC report.

Current state of affairs: a parallel universe

Pre-2017/18 season:

Historically, the premier league or first division in India has operated as what is now called the I-League (and the erstwhile National Football League). The I-League operates on a system of promotion and relegation with the I-League 2nd Division (“2nd Division”), a step below the I-League in the Indian football hierarchy.

This ‘open’ model, generally adopted by most domestic football leagues globally, operates in accordance with Article 9.1 of the Regulations Governing the Application of the FIFA Statutes (“FIFA Statutes Regulations”) which addresses the principle of promotion and relegation. It states that:

“A club’s entitlement to take part in a domestic league championship shall depend principally on sporting merit. A club shall qualify for a domestic league championship by remaining in a certain division or by being promoted or relegated to another at the end of a season”.[3]

The Asian Football Confederation has adopted an identical provision through Article 7.1 of its statutes.[4]

2014 witnessed the inaugural season of the ISL, a league which was operated as a joint venture between IMG-Reliance (“IMGR”) and Star India Private Limited (“Star”).

The ISL adopted an alternative approach, operating on a franchise model with celebrities and industrialists investing in 8 (now 10) franchise teams based in different cities across the country. Indeed, this ‘closed’ model means that the same teams compete against each other every season, regardless of their performance during the previous season, or as FIFA terms it, “sporting merit”. However, the FIFA Statutes Regulations also provide that “a club’s participation in a domestic league championship may be subject to other criteria within the scope of the licensing procedure, whereby the emphasis is on sporting, infrastructural, administrative, legal and financial considerations”[5].

This closed system was further secured by a 10-year “non-relegation clause” negotiated between franchise teams and the ISL, meaning that the only way in which a club could be added to the ISL roster was through an open tender.

Therefore, for the first time in Indian football, and as opposed to domestic football structures globally, the ISL and I-League effectively operated separately, each as India’s ‘premier league’.

While the ISL stole the spotlight in terms of investment, commercialisation, television coverage and attracting foreign talent, FIFA was quick to stress the primacy of the I-League, when former general secretary Jerome Valcke refused to recognise ISL as a league, stating that for FIFA, the only league was the I-League.[6] This sentiment was echoed by the AIFF President Praful Patel who regarded the ISL as a “short-term booster”. This meant that teams from the ISL could not compete at Asian club competitions such as the AFC Champions League or AFC Cup.

2017/18 season and beyond:

In 2016, representatives from the ISL, I-League and AIFF discussed the potential re-structuring of Indian football, with the ISL becoming the first division, and the I-League and 2nd division operating as the new 2nd and 3rd divisions of Indian football respectively.

However, during a meeting in 2017, this time with the AFC, the AFC was “against a privately managed tournament undermining the top division league”.[7] Following this, the AIFF proposed that the two leagues run simultaneously with the I-League eligible to participate in the AFC Champions League qualifiers with the ISL winners eligible for an AFC Cup qualifying slot.

Although considered to be a short-term measure, the current arrangement effectively places the I-League above the ISL as the AFC Champions League is considered to be the more prestigious competition.

Proposed change – AFC Report: key takeaways

As part of their mandate of improving the standard of domestic football across all AFC jurisdictions, a committee steered by Alex Phillips (Head of Asia-Europe Affairs, AFC, seconded to AFC from UEFA) and Nic Coward (Professional Football Consultant, FIFA) published a report titled, “The Sustainable Development of Top Level Indian Club Football – A Road Map” (“Report”). As the title suggests, the Report comprises a set of recommendations the AIFF ought to adopt in order to streamline and develop Indian club football.

Parts of the report were reportedly leaked to the public and competently summarised by ‘The Fan Garage’,[8] a Indian sports website. Key takeaways of the report have been summarised as follows:

1. Open, three-tier structure:

Indian football would migrate towards a three-tier open structure with promotion and relegation between each tier. The ISL would be the top league and the I-League and 2nd Division would form the new 2nd and 3rd divisions respectively.

To achieve this, the Report suggests a two-step plan.

Step 1: ISL to expand from 10 to 16 teams starting from 2019-20, by adding two teams each season. This may be achieved through two routes:

  • (a) One team added through the ‘sporting pathway’ i.e. promotion from the I-League and another through financial investment, i.e. through an open tender process as is the case with the current crop of ISL teams; or
  • (b) Two teams promoted to the ISL from the I-League – i.e. based on sporting merit.

Step 2: Once the ISL is complete with 16 teams in total, a system of promotion from and relegation to the I-League would commence (at the end of the 2021-22 season). This would be a “two up/two down” approach, meaning the top two from the I-League would achieve promotion and the bottom two ISL teams each season would be relegated to the I-League.

However, this arrangement throws up three potential issues.

First, the I-League clubs who were earlier considered to be ‘first-division’, will collectively form the de facto second division of Indian football. Moreover, they will not have the opportunity to play in the ISL until 2022; when the promotion-relegation system is likely to be implemented.

Secondly, implementing an open system of promotion and relegation from the 2022-23 season onwards would result in a breach of the “10-year-no-relegation clause” which the current ISL teams stand to benefit from.

Third, it is part of the IMG-Reliance (“IMGR”) business model to charge teams participating in the ISL a premium ‘franchise fee’. However, when I-League clubs are promoted to the ISL it is unlikely that they will be in a position to afford such fees themselves. In fact, the report suggests that “there should be a different fee for promoted clubs from the I-League/Tier 2 as opposed to any entering through an open tender”.

It remains to be seen how IMG-R would address this issue, cognisant of the best interests of football across all three leagues.

2. League transition commission:

The Report rightly addresses the need for the transition towards a unified league to be supervised by an independent ‘League Transition Commission’, led by representatives from FIFA and AFC in order to ensure compliance with their respective statutes and regulations.

3. ISL primacy and inconsistent AIFF stance:

The drafters of the Report contend that it was always the intention of the AIFF to grant primacy to the ISL, to the detriment of the I-League. This was substantiated through the 2010 Master Rights Agreement (“MRA”) originally between the AIFF and IMGR, wherein it was stated that the ISL was to be the “the most senior and prestigious football league in India”, as a result of which, the I-League may “be reconstituted, replaced and/or discontinued (temporarily or permanently)”.

However, the terms of the MRA are in clear contradiction with the AIFF’s publicly-adopted position – where (as stated above) it endorsed the primacy of the I-League and saw the benefits of the ISL as merely short term.

4. Streamlining player registration:

Without expressly making a reference to it, the Report probably had the case of the player Abinash Ruidas in                  mind when it suggested that the AIFF ought to establish a uniform player registration and transfer system across the board.

As explained in this excellent article by Nation of Sport[9], the fascinating case of Ruidas involved a contractual dispute between a young player and his club, Kingfisher East Bengal (“KEB”), who allegedly forged his signature to assert the player’s contractual obligations towards the club. In addition, KEB relied on an archaic ‘token system’ to prove that they rightfully held the registration of the player.

Pursuant to the statutes of the West Bengal football association (a state association, subordinate to the AIFF), a physical token is considered to conclusive proof of a player’s registration with a club. So long as the club is in possession of the token, the player is contractually bound to play for that club. And while the AIFF, in Ruidas’ case declared the token system to be “outdated and of no value”, the Report seems to have identified this bizarre discrepancy between the systems, which ought to be streamlined.

Among other issues, the Report also applauded the role played by IMGR in developing Indian football, addressed the need for a more robust player’s association and encouraged the revival of the state football associations.

Conclusion

It remains to be seen how the AIFF will act to set the AFC’s recommendations into motion. However, with the threat of sanctions in the form of an Asia-wide ban on Indian clubs, the Report is perhaps the wake-up call Indian football needs.

If one thing is clear, it is that a vast majority of stakeholders in Indian football are in favour of a unified league. This was specifically emphasised in the Report:

“We were impressed by the level of commonly held views amongst those we met.  There was near-unanimity on the central issue of there having to be one national league system, with promotion and relegation links, as opposed to the concurrent leagues which exist today.”

Indeed, the unification of domestic football is now more a question of “when” rather than “if”.

****************

[1] Shukla, K., ‘Year in review: Indian football changed perceptions in 2017, but 2018 must see more tangible growth’, FirstPost, published 30 December 2017, viewed 2 July 2018 (https://goo.gl/TxLo4n)
[2] Sarkar, D., ‘Indian clubs face ban if single football league not started from 2019-20: Fifa-backed report’, Hindustan Times, published 5 April 2018, viewed 1 July 2018 (https://goo.gl/7BdTYD)
[3] Regulations Governing the Application of the FIFA Statutes, 2016; Chapter IV – Sporting Integrity, Article 9.1 – Principle of Promotion and Relegation; page 73.
[4] Regulations Governing the Application of the AFC Statutes, 2017; Article 7.1 – Principle of Promotion and Relegation; page 53.
[5] Regulations Governing the Application of the FIFA Statutes, 2016; Chapter IV – Sporting Integrity, Article 9.2 – Principle of Promotion and Relegation; page 73.
[6] PTI, “I-League gets priority over ISL from FIFA, AIFF”, The Times of India, published on 15 October 2014, viewed on 3 July 2018 (https://goo.gl/1MdaZV).
[7] PTI, “Still no consensus on ISL, I-League merger despite high-profile meet”, The Times of India, published on 7 June 2017, viewed on 5 July 2018 (https://goo.gl/qSdLXz).
[8] Ojha, C., “REVEALED – 10 suggestions and assertions in AFC-FIFA’s I-League/ISL merger roadmap report that every Indian football fan should know”, The Fan Garage, published on 16 May 2018, viewed on 4 July 2018 (https://goo.gl/sNpNFE).
[9] Dhar, P., ‘The Curious Case of Abinash Ruidas and the Identical Signatures’, Nation of Sport, published 3 October 2017, accessed 5 October 2017 (https://goo.gl/HA6STS)

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Introduction    

The Board of Control for Cricket in India (“BCCI”) has recently been confronted by the resurgence of an issue involving the National Anti-Doping Agency (“NADA”) and whether, like other Indian sports federations, it should submit itself to the jurisdiction of NADA – by way of compliance with anti-doping rules and testing procedures, which effectively mirror those laid out by the World Anti-Doping Agency (“WADA”).

As things stand, the BCCI is not NADA-compliant, as it self-administers what it believes to be a perfectly transparent and efficient doping control program.

Additionally, the BCCI argues that because it is not classified as a ‘National Sports Federation’ by the Government of India (reasons discussed below), it need not fall within the reach of NADA’s jurisdiction.

Moreover, the whereabouts rule, requiring athletes to submit information about their whereabouts on a daily basis (and discussed in further detail below), has always been a bone of contention for the BCCI, citing privacy concerns. As such, acceding to NADA’s jurisdiction would mean, among other things, a tacit acceptance of the WADA/NADA whereabouts principle.

This piece seeks to analyse the merits behind the BCCI’s claim for jurisdictional immunity, specifically by examining the following issues:

  1. Should the BCCI fall outside NADA’s jurisdiction purely because it is not (technically) classified as a ‘National Sports Federation’ (“NSF”) by the Government of India (hereinafter referred to as the “Government” or “GOI”)?
  2. Is the ‘whereabouts’ rule invasive and a violation of the ‘right to privacy’?

National Sports Federation: a mere technicality?

According to the National Sports Development Code of India, 2011 (“NSDC”), an NSF in India is “responsible for the overall management, direction, control, regulation, promotion, development and sponsorship of the discipline for which they are recognised by the concerned International Federation”.[1]

Once recognised by the Ministry of Youth Affairs and Sports (“MYAS”), constituted under the Government, NSFs are eligible to receive financial assistance and sponsorship from the Government.

In addition, an NSF would also have the ability to (among others):

  1. Select national teams who represent India;
  2. Use the word India in its name;
  3. Regulate and control the sport in India; and
  4. Avail of certain customs duty, income tax and foreign exchange exemptions under applicable laws.[2]

Interestingly, in the case of Board of Control for Cricket in India & Anr. v. Netaji Cricket Club & Ors.[3], the Supreme Court of India (“SC”) observed that the BCCI “enjoyed a monopoly status as regards the regulation of the sport of cricket…enjoys benefits by way of tax exemption and right to use stadia at nominal annual rent. It earns a huge revenue not only by selling tickets to the viewers but also by selling the right to exhibit films live on TV…As a member of the ICC, it represents the country in international fora. It exercises enormous public functions. It has the authority to select players, umpires and officials to represent the country in international fora. Its control over the sport of competitive cricket is deep, pervasive and complete…”

Therefore, as a fairly logical corollary, one could be forgiven for assuming that the BCCI qualifies as an NSF for the purposes of the NSDC. However, peculiarly, the BCCI does not feature among the list of India’s 53 recognised NSFs on the MYAS website (as updated from time to time)[4].

One of the reasons for this, as stated by the erstwhile Minister of State for Youth Affairs and Sports, Mr. Vijay Goel in parliament, is because the BCCI has never applied for GOI funding and neither has it benefited from any grants from the GOI[5].

A similar stance was previously adopted by the SC in the case of Zee Telefilms Limited v. Union of India[6] in determining whether the BCCI constituted a ‘State’ (i.e. a body performing a public function) for the purposes of the Constitution of India. It was held that the BCCI is not “cumulatively…financially, functionally or administratively dominated by or is under the control of the Government. Thus, the little control that the Government may be said to have on the Board is not pervasive in nature. Such control is purely regulatory and nothing more.”

Additionally, the SC in Zee Telefilms also noted that:

  1. No part of the BCCI’s share capital is held by the Government; and
  2. The Government gives practically no financial assistance to meet the whole or entire expenditure of the BCCI.

Therefore, since a recognised NSF qualifies as a ‘State’ for the purposes of the Indian Constitution, the BCCI, not being a State need not be classified as an NSF, despite the nature of its operations, as previously noted by the SC in the Netaji Cricket Club case.

However, if substance were to prevail over form, it is inconceivable that the BCCI ought not to be classified as an NSF, given the functions the BCCI performs in the current legal and political environment.

In fact, in 2012, the then Minister for Youth Affairs and Sports, Mr. Ajay Maken admitted in Parliament that, “so far as the BCCI is concerned, the Government of India has been treating it as an NSF and has been approving its proposals for holding events in India and participating in international events abroad.”

Most recently, even the Law Commission of India noted that the BCCI:

“being allowed by the State to represent the country at the international stage…became an archetypal body for Indian cricket… By virtue of being the organisers of competitive cricket between one association and another or representing different States or different organisations having the status of State, making bye-laws for the same, BCCI is de facto legislating on ‘sport’ related activities.[7]

Therefore, given the relative ambiguity surrounding the legal status of the BCCI as a body, it continues to justify its refusal to fall under NADA’s scrutiny based on a mere a technicality.

However, a plain reading of the definition of a National Sports Federation in the 2015 NADA Code (“NADA Code”) points towards a fallacy in the BCCI’s argument.

As far as NADA is concerned, an NSF is defined as “a national or regional entity which is a member of or is recognised by an International Federation as the entity governing the International Federation’s sport in that nation or region.”[8]

As such, by dissecting the definition, it can be demonstrated that the BCCI does in fact, classify as an NSF:

  1. National entity – (i) as a registered society under the Tamil Nadu Societies Registration Act, 1975, the BCCI is an ‘entity’; and (ii) since its constitutional documents lay down policies that seek to regulate cricket in India and the selection of national teams to represent India at the international level, it is a ‘national entity’.
  2. Recognition by the International Cricket Council (“ICC”) as the governing body of cricket in India – the ICC, being the International Federation for cricket, recognises India as one of its 12 full members.

Additionally, (i) the Indian cricket team represents the country in national colours, with their helmets even displaying the national emblem, the ‘Ashok Chakra’; and (ii) the BCCI nominates cricketers for national awards such as the Bharat Ratna, Padma awards and Arjuna Awards.

However, one of the pre-requisites for an organisation to classify as an NSF is that it must comply with all conditions laid down in the NADA Code (paragraph 3.21)[9]. Indeed, the BCCI’s refusal to do so is evidence of their taking advantage of the benefits associated with being an NSF while at the same time shirking the responsibilities and obligations associated with maintaining that status.

Whereabouts in Indian cricket in a nutshell

The ‘whereabouts’ rule, enforced by WADA, has been in existence for nearly 15 years now. Essentially, an athlete is required to provide their national anti-doping organisation with details of where they can be reached (during a one-hour period every day) for surprised testing during out of competition periods. The element of surprise involved with such drug testing is intended to operate not only as a doping deterrent for athletes but also as a means of increasing the likelihood of anti-doping authorities catching cheats.

Given the logistically impossible task of managing the whereabouts of every athlete, world-over, the whereabouts rule applies only to ‘elite athletes’, or in other words, those who form part of what is termed a ‘Registered Testing Pool’ (“RTP”). These athletes are identified by international federations and national anti-doping bodies.

Athletes who miss 3 drug tests within a period of 12 months are then deemed to have committed an ‘anti-doping rule violation’, which means they will be liable for sanctions, subject to mitigating factors and fault-related deductions.

In India, NADA is responsible for identifying the RTP and accepting and monitoring whereabouts filings made by each athlete in the RTP (Article 5.6 of the NADA Code).

However, with Indian Cricket, the BCCI has adopted its own anti-doping code (“BCCI Code”), which provides for a testing regime with a ‘soft’ whereabouts regime. To complicate matters further, the ICC also has its own anti-doping code, which mirrors that of WADA’s (including the whereabouts provisions).

Article 5.3.2.1(a) of the BCCI Code recognises the ICC’s ability to establish an RTP through which Indian cricketers would be required to furnish their whereabouts. Therefore, on the face of it, Indian cricketers who are part of the ICC RTP are essentially subject to the ICC jurisdiction, who, just as any other athlete, would be subject to WADA jurisdiction.

However, Article 5.3.2.3 of the BCCI Code provides that where a cricketer is part of both, the ICC and BCCI’s RTPs, the BCCI would be competent to receive such whereabouts filings from cricketers, to prevent duplication. This effectively means that if the ICC notifies an Indian cricketer to be part of its RTP, the BCCI by following suit, could gain control over the cricketer’s whereabouts filings – something that should ideally be NADA’s responsibility – therefore compromising the transparency and independence of the anti-doping testing regime in Indian cricket.

Thus, while the whereabouts rule exists under the BCCI Code, it is submitted that it operates in name only, as there is no saying how, if at all, the BCCI monitors the whereabouts of Indian cricketers. This is further supported by the fact that the BCCI has publicly opposed[10] the whereabouts regime on numerous occasions, citing privacy infringement concerns.

Whereabouts: the right to privacy vs. public interest

An interesting angle to the whereabouts debate in the Indian context can be highlighted from recent jurisprudence of the SC in its assessment of what constitutes the ‘right to privacy’. In essence, would the control given to anti-doping authorities in enforcing the whereabouts rule curb an athlete’s freedom and consequently impinge upon his/ her right to privacy? Or are means, such as the whereabouts rule, adopted in the fight against doping sufficiently justifiable in the public interest?

In Gobind v State of Madhya Pradesh[11],  while the SC did not conclusively adjudicate on the existence of a right to privacy under the Constitution, it found that “If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right”.

However, most recently, the SC in the seminal 2017 judgment of Justice KS Puttaswamy v. Union of India[12] recognised the existence of a constitutional right to privacy and concluded that “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone…”. However, the bench went further to clarify that “like other rights which form part of the fundamental freedoms…privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights.”

Applying the current position of law, the whereabouts principle ought to be justified on grounds of public interest, given that (a) the object of the rule – solely to prevent doping prevent doping – is not unlawful and to that end is (b) proportionate – particularly since the ‘3 strikes in 12 months’ rule takes into account the fact that an athlete could make a genuine mistake when filling out whereabouts information; and (c) it is in the public interest to ensure that Indian athletes protect the integrity of competition, while competing both within and outside the country.

In fact, as recently as January 2018, the whereabouts principle withstood a legal challenge[13] before the European Court of Human Rights (“ECtHR”). The case involved a challenge of Article 8 (right to respect for private and family life) of the European Convention on Human Rights (“ECHR”) by a syndicate of French national sporting federations together with certain individual athletes.

The ECtHR held that the whereabouts principle was in the public interest and that the reduction or removal of athlete obligations would lead to increased doping which would be at odds with the consensus on the need for unannounced testing as part of doping control.[14]

Conclusion

Notwithstanding any hint of merit in the BCCI’s reluctance to submit to NADA jurisdiction, the issues analysed above attempt to shed light on the fallacies in the BCCI’s reasoning. Despite this, the BCCI continues to push back on the issue, begging the question: is this a mere excuse for the BCCI to maintain control over its affairs, even those it ought to distance itself from, namely doping regulation?

The WADA Code, similarly adopted by NADA enshrines the principle of independence of doping control process at the national level, and specifically prohibits interference from all public and sports movement bodies. However, the BCCI’s self-administered anti-doping program squarely contradicts this principle – recently evidenced by the selection of Abhishek Gupta in the ‘India Red’ squad [15], despite the fact that he would be serving a doping ban throughout the duration of the tournament he was selected for.

Therefore, in the interests of transparency and adding credibility towards India’s stance against doping, the BCCI, as India’s most prominent sports governing body, ought to relent and submit itself to NADA’s authority, so as to be treated with other national sports federations on a ‘level playing field’.

****

[1] Ministry of Youth Affairs and Sports, Government of India, National Sports Development Code of India, 2011, paragraph 6.1(b) at page 10. Available at: https://yas.nic.in/sports/national-sports-development-code-india-2011
[2] Ibid, paragraph 3.6 at page 5 and 6.
[3] AIR 2005 SC 592: (2005) 4 SCC 741. Paras 80-82.
[4] Ministry of Youth Affairs and Sports, Government of India, ‘List of Recognised National Sports Federations for the Year 2018’. Available at: https://goo.gl/H2nJ2m.
[5] Government of India, Questions answered by the Sports Minister in the Lok Sabha, unstarred question number 1651 answered on 27 July 2016.
[6] AIR 2005 SC 2677: (2005) 4 SCC 649.
[7] Law Commission of India, Legal Framework: BCCI vis-à-vis Right to Information Act, 2005, Report No. 275, published 18 April 2018, at paragraphs 6.14 and 6.15, page 95.
[8] National Anti-Doping Agency Anti-Doping Rules, 2015, Appendix 1: Definitions, at page 84.
[9] Ministry of Youth Affairs and Sports, Government of India, National Sports Development Code of India, 2011, paragraph 3.21 at page 37. Available at: https://yas.nic.in/sports/national-sports-development-code-india-2011
[10] Bhose, B., (2017), “BCCI CoA Happy with Existing Anti-Doping Measure, Feels Players Don’t Need to Sign Whereabouts Clause”, CrickNext, available online [https://bit.ly/2NaQdEF], accessed 10 August 2018.
[11] (1975) 2 SCC 148, at page 155, paragraph 22.
[12] WRIT PETITION (CIVIL) NO 494 OF 2012
[13] European Court of Human Rights, Press Release, “Doping control: whereabouts requirement does not breach Convention”, released on 18 January 2018, accessed 20 August 2018 [https://bit.ly/2wp62ka].
[14] World Anti-Doping Agency, “WADA Welcomes ECHR decision to back whereabouts rule”, Media Release, 18 January 2018, accessed 20 August 2018 [https://bit.ly/2BjlHSe].
[15] ‘BCCI’s Blooper: Punjab’s Abhishek Gupta selected for Duleep Trophy despite doping ban’, published on 23 July 2018, accessed on 1 August 2018 [https://bit.ly/2NaQozT].

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2017 was perhaps the most significant year[1] in recent Indian football history. The FIFA U-17 World Cup was generally considered to be a success, the Indian national team qualified for the 2019 Asian Football Confederation (“AFC”) Asian Cup for the first time since 2011 and the fourth edition of the Hero Indian Super League (“ISL”) was for the first time recognised as a league by the AFC, therefore concluding its longest and arguably most successful season yet.

However, 2017 also saw the All India Football Federation (“AIFF”) attempting to restructure the affairs of Indian club football – given that the two leagues, the Hero I-League (“I-League”) and ISL operated separately resulting in a rather disjointed and unharmonised system.

It is against this backdrop, that the AFC commissioned an inquiry into the state of affairs of Indian club football culminating in a 17-page report[2] issued in April 2018; recommending action to be taken by the AIFF to achieve its objective of developing the sport.

While the report has not been made available in the public domain, it is considered to be the definitive roadmap that the AIFF ought to follow to ensure the progress and continuity of Indian football. This piece seeks to discuss the current state of Indian football and particularly, the way forward, in light of the AFC report.

Current state of affairs: a parallel universe

Pre-2017/18 season:

Historically, the premier league or first division in India has operated as what is now called the I-League (and the erstwhile National Football League). The I-League operates on a system of promotion and relegation with the I-League 2nd Division (“2nd Division”), a step below the I-League in the Indian football hierarchy.

This ‘open’ model, generally adopted by most domestic football leagues globally, operates in accordance with Article 9.1 of the Regulations Governing the Application of the FIFA Statutes (“FIFA Statutes Regulations”) which addresses the principle of promotion and relegation. It states that:

“A club’s entitlement to take part in a domestic league championship shall depend principally on sporting merit. A club shall qualify for a domestic league championship by remaining in a certain division or by being promoted or relegated to another at the end of a season”.[3]

The Asian Football Confederation has adopted an identical provision through Article 7.1 of its statutes.[4]

2014 witnessed the inaugural season of the ISL, a league which was operated as a joint venture between IMG-Reliance (“IMGR”) and Star India Private Limited (“Star”).

The ISL adopted an alternative approach, operating on a franchise model with celebrities and industrialists investing in 8 (now 10) franchise teams based in different cities across the country. Indeed, this ‘closed’ model means that the same teams compete against each other every season, regardless of their performance during the previous season, or as FIFA terms it, “sporting merit”. However, the FIFA Statutes Regulations also provide that “a club’s participation in a domestic league championship may be subject to other criteria within the scope of the licensing procedure, whereby the emphasis is on sporting, infrastructural, administrative, legal and financial considerations”[5].

This closed system was further secured by a 10-year “non-relegation clause” negotiated between franchise teams and the ISL, meaning that the only way in which a club could be added to the ISL roster was through an open tender.

Therefore, for the first time in Indian football, and as opposed to domestic football structures globally, the ISL and I-League effectively operated separately, each as India’s ‘premier league’.

While the ISL stole the spotlight in terms of investment, commercialisation, television coverage and attracting foreign talent, FIFA was quick to stress the primacy of the I-League, when former general secretary Jerome Valcke refused to recognise ISL as a league, stating that for FIFA, the only league was the I-League.[6] This sentiment was echoed by the AIFF President Praful Patel who regarded the ISL as a “short-term booster”. This meant that teams from the ISL could not compete at Asian club competitions such as the AFC Champions League or AFC Cup.

2017/18 season and beyond:

In 2016, representatives from the ISL, I-League and AIFF discussed the potential re-structuring of Indian football, with the ISL becoming the first division, and the I-League and 2nd division operating as the new 2nd and 3rd divisions of Indian football respectively.

However, during a meeting in 2017, this time with the AFC, the AFC was “against a privately managed tournament undermining the top division league”.[7] Following this, the AIFF proposed that the two leagues run simultaneously with the I-League eligible to participate in the AFC Champions League qualifiers with the ISL winners eligible for an AFC Cup qualifying slot.

Although considered to be a short-term measure, the current arrangement effectively places the I-League above the ISL as the AFC Champions League is considered to be the more prestigious competition.

Proposed change – AFC Report: key takeaways

As part of their mandate of improving the standard of domestic football across all AFC jurisdictions, a committee steered by Alex Phillips (Head of Asia-Europe Affairs, AFC, seconded to AFC from UEFA) and Nic Coward (Professional Football Consultant, FIFA) published a report titled, “The Sustainable Development of Top Level Indian Club Football – A Road Map” (“Report”). As the title suggests, the Report comprises a set of recommendations the AIFF ought to adopt in order to streamline and develop Indian club football.

Parts of the report were reportedly leaked to the public and competently summarised by ‘The Fan Garage’,[8] a Indian sports website. Key takeaways of the report have been summarised as follows:

  1. Open, three-tier structure:

Indian football would migrate towards a three-tier open structure with promotion and relegation between each tier. The ISL would be the top league and the I-League and 2nd Division would form the new 2nd and 3rd divisions respectively.

To achieve this, the Report suggests a two-step plan.

Step 1: ISL to expand from 10 to 16 teams starting from 2019-20, by adding two teams each season. This may be achieved through two routes:

  • (a) One team added through the ‘sporting pathway’ i.e. promotion from the I-League and another through financial investment, i.e. through an open tender process as is the case with the current crop of ISL teams; or
  • (b) Two teams promoted to the ISL from the I-League – i.e. based on sporting merit.

Step 2: Once the ISL is complete with 16 teams in total, a system of promotion from and relegation to the I-League would commence (at the end of the 2021-22 season). This would be a “two up/two down” approach, meaning the top two from the I-League would achieve promotion and the bottom two ISL teams each season would be relegated to the I-League.

However, this arrangement throws up three potential issues.

First, the I-League clubs who were earlier considered to be ‘first-division’, will collectively form the de facto second division of Indian football. Moreover, they will not have the opportunity to play in the ISL until 2022; when the promotion-relegation system is likely to be implemented.

Secondly, implementing an open system of promotion and relegation from the 2022-23 season onwards would result in a breach of the “10-year-no-relegation clause” which the current ISL teams stand to benefit from.

Third, it is part of the IMG-Reliance (“IMGR”) business model to charge teams participating in the ISL a premium ‘franchise fee’. However, when I-League clubs are promoted to the ISL it is unlikely that they will be in a position to afford such fees themselves. In fact, the report suggests that “there should be a different fee for promoted clubs from the I-League/Tier 2 as opposed to any entering through an open tender”.

It remains to be seen how IMG-R would address this issue, cognisant of the best interests of football across all three leagues.

  1. League transition commission:

The Report rightly addresses the need for the transition towards a unified league to be supervised by an independent ‘League Transition Commission’, led by representatives from FIFA and AFC in order to ensure compliance with their respective statutes and regulations.

  1. ISL primacy and inconsistent AIFF stance:

The drafters of the Report contend that it was always the intention of the AIFF to grant primacy to the ISL, to the detriment of the I-League. This was substantiated through the 2010 Master Rights Agreement (“MRA”) originally between the AIFF and IMGR, wherein it was stated that the ISL was to be the “the most senior and prestigious football league in India”, as a result of which, the I-League may “be reconstituted, replaced and/or discontinued (temporarily or permanently)”.

However, the terms of the MRA are in clear contradiction with the AIFF’s publicly-adopted position – where (as stated above) it endorsed the primacy of the I-League and saw the benefits of the ISL as merely short term.

Streamlining player registration:

 Without expressly making a reference to it, the Report probably had the case of the player Abinash Ruidas in mind when it suggested that the AIFF ought to establish a uniform player registration and transfer system across the board.

As explained in this excellent article by Nation of Sport[9], the fascinating case of Ruidas involved a contractual dispute between a young player and his club, Kingfisher East Bengal (“KEB”), who allegedly forged his signature to assert the player’s contractual obligations towards the club. In addition, KEB relied on an archaic ‘token system’ to prove that they rightfully held the registration of the player.

Pursuant to the statutes of the West Bengal football association (a state association, subordinate to the AIFF), a physical token is considered to conclusive proof of a player’s registration with a club. So long as the club is in possession of the token, the player is contractually bound to play for that club. And while the AIFF, in Ruidas’ case declared the token system to be “outdated and of no value”, the Report seems to have identified this bizarre discrepancy between the systems, which ought to be streamlined.

Among other issues, the Report also applauded the role played by IMGR in developing Indian football, addressed the need for a more robust player’s association and encouraged the revival of the state football associations.

Conclusion

It remains to be seen how the AIFF will act to set the AFC’s recommendations into motion. However, with the threat of sanctions in the form of an Asia-wide ban on Indian clubs, the Report is perhaps the wake-up call Indian football needs.

If one thing is clear, it is that a vast majority of stakeholders in Indian football are in favour of a unified league. This was specifically emphasised in the Report:

“We were impressed by the level of commonly held views amongst those we met.  There was near-unanimity on the central issue of there having to be one national league system, with promotion and relegation links, as opposed to the concurrent leagues which exist today.”

Indeed, the unification of domestic football is now more a question of “when” rather than “if”.

****************

[1] Shukla, K., ‘Year in review: Indian football changed perceptions in 2017, but 2018 must see more tangible growth’, FirstPost, published 30 December 2017, viewed 2 July 2018 (https://goo.gl/TxLo4n)
[2] Sarkar, D., ‘Indian clubs face ban if single football league not started from 2019-20: Fifa-backed report’, Hindustan Times, published 5 April 2018, viewed 1 July 2018 (https://goo.gl/7BdTYD)
[3] Regulations Governing the Application of the FIFA Statutes, 2016; Chapter IV – Sporting Integrity, Article 9.1 – Principle of Promotion and Relegation; page 73.
[4] Regulations Governing the Application of the AFC Statutes, 2017; Article 7.1 – Principle of Promotion and Relegation; page 53.
[5] Regulations Governing the Application of the FIFA Statutes, 2016; Chapter IV – Sporting Integrity, Article 9.2 – Principle of Promotion and Relegation; page 73.
[6] PTI, “I-League gets priority over ISL from FIFA, AIFF”, The Times of India, published on 15 October 2014, viewed on 3 July 2018 (https://goo.gl/1MdaZV).
[7] PTI, “Still no consensus on ISL, I-League merger despite high-profile meet”, The Times of India, published on 7 June 2017, viewed on 5 July 2018 (https://goo.gl/qSdLXz).
[8] Ojha, C., “REVEALED – 10 suggestions and assertions in AFC-FIFA’s I-League/ISL merger roadmap report that every Indian football fan should know”, The Fan Garage, published on 16 May 2018, viewed on 4 July 2018 (https://goo.gl/sNpNFE).
[9] Dhar, P., ‘The Curious Case of Abinash Ruidas and the Identical Signatures’, Nation of Sport, published 3 October 2017, accessed 5 October 2017 (https://goo.gl/HA6STS)

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Introduction    

The Board of Control for Cricket in India (“BCCI”) has recently been confronted by the resurgence of an issue involving the National Anti-Doping Agency (“NADA”) and whether, like other Indian sports federations, it should submit itself to the jurisdiction of NADA – by way of compliance with anti-doping rules and testing procedures, which effectively mirror those laid out by the World Anti-Doping Agency (“WADA”).

As things stand, the BCCI is not NADA-compliant, as it self-administers what it believes to be a perfectly transparent and efficient doping control program.

Additionally, the BCCI argues that because it is not classified as a ‘National Sports Federation’ by the Government of India (reasons discussed below), it need not fall within the reach of NADA’s jurisdiction.

Moreover, the whereabouts rule, requiring athletes to submit information about their whereabouts on a daily basis (and discussed in further detail below), has always been a bone of contention for the BCCI, citing privacy concerns. As such, acceding to NADA’s jurisdiction would mean, among other things, a tacit acceptance of the WADA/NADA whereabouts principle.

This piece seeks to analyse the merits behind the BCCI’s claim for jurisdictional immunity, specifically by examining the following issues:

  1. Should the BCCI fall outside NADA’s jurisdiction purely because it is not (technically) classified as a ‘National Sports Federation’ (“NSF”) by the Government of India (hereinafter referred to as the “Government” or “GOI”)?
  2. Is the ‘whereabouts’ rule invasive and a violation of the ‘right to privacy’?

National Sports Federation: a mere technicality?

According to the National Sports Development Code of India, 2011 (“NSDC”), an NSF in India is “responsible for the overall management, direction, control, regulation, promotion, development and sponsorship of the discipline for which they are recognised by the concerned International Federation”.[1]

Once recognised by the Ministry of Youth Affairs and Sports (“MYAS”), constituted under the Government, NSFs are eligible to receive financial assistance and sponsorship from the Government.

In addition, an NSF would also have the ability to (among others):

  1. Select national teams who represent India;
  2. Use the word India in its name;
  3. Regulate and control the sport in India; and
  4. Avail of certain customs duty, income tax and foreign exchange exemptions under applicable laws.[2]

Interestingly, in the case of Board of Control for Cricket in India & Anr. v. Netaji Cricket Club & Ors.[3], the Supreme Court of India (“SC”) observed that the BCCI “enjoyed a monopoly status as regards the regulation of the sport of cricket…enjoys benefits by way of tax exemption and right to use stadia at nominal annual rent. It earns a huge revenue not only by selling tickets to the viewers but also by selling the right to exhibit films live on TV…As a member of the ICC, it represents the country in international fora. It exercises enormous public functions. It has the authority to select players, umpires and officials to represent the country in international fora. Its control over the sport of competitive cricket is deep, pervasive and complete…”

Therefore, as a fairly logical corollary, one could be forgiven for assuming that the BCCI qualifies as an NSF for the purposes of the NSDC. However, peculiarly, the BCCI does not feature among the list of India’s 53 recognised NSFs on the MYAS website (as updated from time to time)[4].

One of the reasons for this, as stated by the erstwhile Minister of State for Youth Affairs and Sports, Mr. Vijay Goel in parliament, is because the BCCI has never applied for GOI funding and neither has it benefited from any grants from the GOI[5].

A similar stance was previously adopted by the SC in the case of Zee Telefilms Limited v. Union of India[6] in determining whether the BCCI constituted a ‘State’ (i.e. a body performing a public function) for the purposes of the Constitution of India. It was held that the BCCI is not “cumulatively…financially, functionally or administratively dominated by or is under the control of the Government. Thus, the little control that the Government may be said to have on the Board is not pervasive in nature. Such control is purely regulatory and nothing more.”

Additionally, the SC in Zee Telefilms also noted that:

  1. No part of the BCCI’s share capital is held by the Government; and
  2. The Government gives practically no financial assistance to meet the whole or entire expenditure of the BCCI.

Therefore, since a recognised NSF qualifies as a ‘State’ for the purposes of the Indian Constitution, the BCCI, not being a State need not be classified as an NSF, despite the nature of its operations, as previously noted by the SC in the Netaji Cricket Club case.

However, if substance were to prevail over form, it is inconceivable that it ought not to be classified as an NSF, given the functions the BCCI performs in the current legal and political environment.

In fact, in 2012, the then Minister for Youth Affairs and Sports, Mr. Ajay Maken admitted in Parliament that, “so far as the BCCI is concerned, the Government of India has been treating it as an NSF and has been approving its proposals for holding events in India and participating in international events abroad.”

Most recently, even the Law Commission of India noted that the BCCI:

“being allowed by the State to represent the country at the international stage…became an archetypal body for Indian cricket… By virtue of being the organisers of competitive cricket between one association and another or representing different States or different organisations having the status of State, making bye-laws for the same, BCCI is de facto legislating on ‘sport’ related activities.[7]

Therefore, given the relative ambiguity surrounding the legal status of the BCCI as a body, it continues to justify its refusal to fall under NADA’s scrutiny based on a mere a technicality.

However, a plain reading of the definition of a National Sports Federation in the 2015 NADA Code (“NADA Code”) points towards a fallacy in the BCCI’s argument.

As far as NADA is concerned, an NSF is defined as “a national or regional entity which is a member of or is recognised by an International Federation as the entity governing the International Federation’s sport in that nation or region.”[8]

As such, by dissecting the definition, it can be demonstrated that the BCCI does in fact, classify as an NSF:

  1. National entity – (i) as a registered society under the Tamil Nadu Societies Registration Act, 1975, the BCCI is an ‘entity’; and (ii) since its constitutional documents lay down policies that seek to regulate cricket in India and the selection of national teams to represent India at the international level, it is a ‘national entity’.
  2. Recognition by the International Cricket Council (“ICC”) as the governing body of cricket in India – the ICC, being the International Federation for cricket, recognises India as one of its 12 full members.

Additionally, (i) the Indian cricket team represents the country in national colours, with their helmets even displaying the national emblem, the ‘Ashok Chakra’; and (ii) the BCCI nominates cricketers for national awards such as the Bharat Ratna, Padma awards and Arjuna Awards.

However, one of the pre-requisites for an organisation to classify as an NSF is that it must comply with all conditions laid down in the NADA Code (paragraph 3.21)[9]. Indeed, the BCCI’s refusal to do so is evidence of their taking advantage of the benefits associated with being an NSF while at the same time shirking the responsibilities and obligations associated with maintaining that status.

Whereabouts in Indian cricket in a nutshell

The ‘whereabouts’ rule, enforced by WADA, has been in existence for nearly 15 years now. Essentially, an athlete is required to provide their national anti-doping organisation with details of where they can be reached (during a one-hour period every day) for surprised testing during out of competition periods. The element of surprise behind such drug testing is intended to operate not only as a doping deterrent for athletes but also as a means maximising the potential for catching cheats by the anti-doping authorities.

Given the logistically impossible task of managing the whereabouts of every athlete, world-over, the whereabouts rule applies only to ‘elite athletes’, or in other words, those who form part of what is termed a ‘Registered Testing Pool’ (“RTP”). These athletes are identified by international federations and national anti-doping bodies.

Athletes who miss 3 drug tests within a period of 12 months are then deemed to have committed an ‘anti-doping rule violation’, which means they will be liable for sanctions, subject to mitigating factors and fault-related deductions.

In India, NADA is responsible for identifying the RTP and accepting and monitoring whereabouts filings made by each athlete in the RTP (Article 5.6 of the NADA Code).

However, with Indian Cricket, the BCCI has adopted its own anti-doping code (“BCCI Code”), which provides for a testing regime with a ‘soft’ whereabouts regime. To complicate matters further, the ICC also has its own anti-doping code, which mirrors that of WADA’s (including the whereabouts provisions).

Article 5.3.2.1(a) of the BCCI Code recognises the ICC’s ability to establish an RTP through which Indian cricketers would be required to furnish their whereabouts. Therefore, on the face of it, Indian crickets who are part of the ICC RTP are essentially subject to the ICC jurisdiction, just as any other athlete subject to WADA jurisdiction.

However, Article 5.3.2.3 of the BCCI Code provides that where a cricketer is part of both, the ICC and BCCI’s RTPs, the BCCI would be competent to receive such whereabouts filings from cricketers, to prevent duplication. This effectively means that if the ICC notifies an Indian cricketer to be part of its RTP, the BCCI by following suit, could gain control over the cricketer’s whereabouts filings – something that should ideally be NADA’s responsibility – therefore compromising the transparency and independence of the anti-doping testing regime in Indian cricket.

Thus, while the whereabouts rule exists under the BCCI Code, it is submitted that it operates in name only, as there is no saying how, if at all, the BCCI monitors the whereabouts of Indian cricketers. This is further supported by the fact that the BCCI has publicly opposed[10] the whereabouts regime on numerous occasions, citing privacy infringement concerns.

Whereabouts: the right to privacy vs. public interest

An interesting angle to the whereabouts debate in the Indian context can be highlighted from recent jurisprudence of the SC in its assessment of what constitutes the ‘right to privacy’. In essence, would the control given to anti-doping authorities in enforcing the whereabouts rule curb an athlete’s freedom and consequently impinge upon his/ her right to privacy? Or are means, such as the whereabouts rule, adopted in the fight against doping sufficiently justifiable in the public interest?

In Gobind v State of Madhya Pradesh[11],  while the SC did not conclusively adjudicate on the existence of a right to privacy under the Constitution, it found that “If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right”.

However, most recently, the SC in the seminal 2017 judgment of Justice KS Puttaswamy v. Union of India[12] recognised the existence of a constitutional right to privacy and concluded that “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone…”. However, the bench went further to clarify that “like other rights which form part of the fundamental freedoms…privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights.”

Applying the current position of law, the whereabouts principle ought to be justified on grounds of public interest, given that (a) the object of the rule – solely to prevent doping prevent doping – is not unlawful and to that end is (b) proportionate – particularly since the ‘3 strikes in 12 months’ rule takes into account the fact that an athlete could make a genuine mistake when filling out whereabouts information; and (c) it is in the public interest to ensure that Indian athletes protect the integrity of competition, while competing both within and outside the country.

In fact, as recently as January 2018, the whereabouts principle withstood a legal challenge[13] before the European Court of Human Rights (“ECtHR”). The case involved a challenge of Article 8 (right to respect for private and family life) of the European Convention on Human Rights (“ECHR”) by a syndicate of French national sporting federations together with certain individual athletes.

The ECtHR held that the whereabouts principle was in the public interest and that the reduction or removal of athlete obligations would lead to increased doping which would be at odds with the consensus on the need for unannounced testing as part of doping control.[14]

Conclusion

Notwithstanding any hint of merit in the BCCI’s reluctance to submit to NADA jurisdiction, the issues analysed above attempt to shed light on the fallacies in the BCCI’s reasoning. Despite this, the BCCI continues to push back on the issue, begging the question: is this a mere excuse for the BCCI to maintain control over its affairs, even those it ought to distance itself from, namely doping regulation?

The WADA Code, similarly adopted by NADA enshrines the principle of independence of doping control process at the national level, and specifically prohibits interference from all public and sports movement bodies. However, the BCCI’s self-administered anti-doping program squarely contradicts this principle – recently evidenced by the selection of Abhishek Gupta in the ‘India Red’ squad [15], despite the fact that he would be serving a doping ban throughout the duration of the tournament he was selected for.

Therefore, in the interests of transparency and adding credibility towards India’s stance against doping, the BCCI, as India’s most prominent sports governing body, ought to relent and submit itself to NADA’s authority, so as to be treated with other national sports federations on a ‘level playing field’.

****

[1] Ministry of Youth Affairs and Sports, Government of India, National Sports Development Code of India, 2011, paragraph 6.1(b) at page 10. Available at: https://yas.nic.in/sports/national-sports-development-code-india-2011
[2] Ibid, paragraph 3.6 at page 5 and 6.
[3] AIR 2005 SC 592: (2005) 4 SCC 741. Paras 80-82.
[4] Ministry of Youth Affairs and Sports, Government of India, ‘List of Recognised National Sports Federations for the Year 2018’. Available at: https://goo.gl/H2nJ2m.
[5] Government of India, Questions answered by the Sports Minister in the Lok Sabha, unstarred question number 1651 answered on 27 July 2016.
[6] AIR 2005 SC 2677: (2005) 4 SCC 649.
[7] Law Commission of India, Legal Framework: BCCI vis-à-vis Right to Information Act, 2005, Report No. 275, published 18 April 2018, at paragraphs 6.14 and 6.15, page 95.
[8] National Anti-Doping Agency Anti-Doping Rules, 2015, Appendix 1: Definitions, at page 84.
[9] Ministry of Youth Affairs and Sports, Government of India, National Sports Development Code of India, 2011, paragraph 3.21 at page 37. Available at: https://yas.nic.in/sports/national-sports-development-code-india-2011
[10] Bhose, B., (2017), “BCCI CoA Happy with Existing Anti-Doping Measure, Feels Players Don’t Need to Sign Whereabouts Clause”, CrickNext, available online [https://bit.ly/2NaQdEF], accessed 10 August 2018.
[11] (1975) 2 SCC 148, at page 155, paragraph 22.
[12] WRIT PETITION (CIVIL) NO 494 OF 2012
[13] European Court of Human Rights, Press Release, “Doping control: whereabouts requirement does not breach Convention”, released on 18 January 2018, accessed 20 August 2018 [https://bit.ly/2wp62ka].
[14] World Anti-Doping Agency, “WADA Welcomes ECHR decision to back whereabouts rule”, Media Release, 18 January 2018, accessed 20 August 2018 [https://bit.ly/2BjlHSe].
[15] ‘BCCI’s Blooper: Punjab’s Abhishek Gupta selected for Duleep Trophy despite doping ban’, published on 23 July 2018, accessed on 1 August 2018 [https://bit.ly/2NaQozT].

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