Fighting sports corruption in India: A review of the National Sports Ethics Commission Bill 2016

In early 2016, a new Bill known as the “National Sports Ethics Commission Bill 2016” was introduced to the Indian Parliament. The 2016 Bill’s stated aim is to bring about legislative reform to help improve the integrity of sports in India, which has in recent times suffered a series of scandals and corrupt practices. This article analyses the Bill’s proposals and explains the sporting, legislative and political landscape that surrounds it.

Background: More money, greater expectations

The Indian sports environment has been abuzz with activity in recent years. A new private sports league announced practically every quarter.¹ Sports sponsorship in India grew 12.3% to Rs.5,185.4 crore (~US$ 800 million) in 2015 from Rs.4,616.5 crore (~US$ 700 million) in the previous year.² The broadcast rights for the IPL are already valued at over Rs. 900 crore (~US$ 130 million) a year, a figure that is expected to double when the existing broadcast rights deal expires.³ The brand value of the IPL was estimated to be US$3.5 billion in 2015 by American Appraisal, a Division of Duff & Phelps.⁴ According to the BCCI, the 2015 IPL season contributed Rs.1,150 crore (~US$ 170 million) to the gross domestic product of the Indian economy.⁵

The increase in private investment in sport, combined with the resulting appreciation of the importance of public trust in authenticity of results, has brought the issue of participant-integrity to the forefront of legal discourse. Indian sport is no stranger to challenges of integrity. Match fixing, event manipulation and illegal betting have shaken the country’s primary sport, cricket,⁶ more than once in the last two decades. Combine the issue of fixing with age fraud,⁷ doping⁸ and sexual harassment⁹ and we have a quartet of familiar faces that are making their presence felt not only nationally but also internationally. For example, 58 Indian weightlifters were found doping¹⁰ in 2015 alone and the country’s athletes regularly rank in the top 3 in the World Anti-Doping Agency’s annual doping report. The age fraud issue is so rampant in cricket that the Board of Control for Cricket in India (“BCCI”) has had to take the extraordinary step of prohibiting¹¹ its own players from playing more than one edition of the Under-19 World Cup. Multiple age-related cases¹² and disputes¹³ have come up in badminton,¹⁴ another sport gaining in popularity.

That said, in India, it is the issue of fixing that has been the most prominent integrity issue. The credibility of the Indian Premier League (“IPL”) has not only been called into question¹⁵ by fixing allegations, but various related events¹⁶ in the league have had a domino effect, with the outcrop being the Supreme Court-appointed Lodha Committee’s Report and the actions that the Supreme Court might soon recommend based thereon. These legal developments are expected to alter the way cricket and, for that matter, all other sports in India will be governed.

It is in this context that the National Sports Ethics Commission Bill, 2016 (2016 Bill) must be seen. The Bill was introduced earlier this year by Mr. Anurag Singh Thakur, M.P. a member of the BJP, the ruling party at the Centre. Mr. Thakur was then Secretary of the BCCI and has since taken the reigns as its President. The frustration of the, thus far, unsuccessful attempts at prosecuting alleged IPL ‘fixers’ under the Indian criminal law’s provisions for ‘dishonesty’ and ‘cheating’ are listed in the Bill’s Statement of Objects and Reasons as key motivators for the proposed legislation.

In practice, the existing general criminal laws in India have significant limitations in their application to matters of sports integrity. For example, offences in the nature of ‘cheating’¹⁷ requires a victim of the alleged act to be ‘deceived’ such that such person ‘deliver[s] any proper­ty to any person’ and this causes such person ‘damage or harm’ ‘in body, mind, reputation or property’. For an alleged offence of match fixing, the prosecution has found it difficult, if not impossible, to prove these constituent elements of such an offence, finding it particularly challenging to identify a victim and the damage or harm caused to him or her. It is to be remembered that this is in a context where betting is illegal and punters cannot be the putative victims, a legal route used in other jurisdictions. This has led to those accused of ‘match fixing’ being tried under laws relating to organized crime (such as the Maharashtra Control of Organised Crime Act, 1999), on the basis that they have conspired with the underworld. But this is more out of compulsion rather than by choice. With the substantive framework being ambiguous at best, this also creates significant limitations in criminal procedure, of investigation, evidence gathering and prosecution of offences. Administrative bodies that police sport within the federations do not have legal powers of search and investigation and those state bodies that do have these powers are unable to exercise them effectively.

It is in this legal context that the Bill states that it sets out to achieve “the purpose of fair play, conducive environment for sports and justice to those wronged by others” by creating a set of new criminal offences and penalties relating to participant-integrity in sports and establishing a formal mechanism for adjudication of sports disputes through creation of a national commission.

What does the Bill propose?

In its own words, upon enactment, the Bill aims:

“to provide for the constitution of a National Sports Ethics Commission to ensure ethical practices and fair play in sports including elimination of doping practices, match fixing, fraud of age and sexual harassment of women in sports and for matters connected therewith or incidental thereto.” (Introduction)

Principally, it aims to achieve these goals as follows:

Sections 6-10 – Constitution and Functioning of the National Sports Ethics Commission.

Requiring the Central Government to constitute a National Sports Ethics Commission to oversee and enforce the various Codes of Ethics that sports federations are mandated to frame. The Commission is to be constituted of six members appointed by the Central Government, of whom at least four members shall have been Judges of the Supreme Court or a High Court and who shall be appointed in consultation with the Chief Justice of India or his nominee. Specific terms have been included to provide for independence of tenure and functioning, including prohibition on a Member of the Commission from seeking any position in or taking benefit from a sports federation after completion of service. Hiring of permanent staff and a Secretariat are contemplated and the National Commission is also empowered to engage experts in the field of sports on a contract basis. A budget of Rs. 20 crore (~US$ 3m) as a one-time expenditure and Rs. 50 crore per year (~US$ 7.5m) as recurring expenditure is proposed for establishment and operation of the National Commission.