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15 Sep 2015

Possibility of new legislation to curb fraud and illegalities in Indian sport

Background :- This millennium has seen Indian sportspersons steadily improve their performances at the global level. Young Indian talent has started to look beyond cricket. Thanks to greater financial commitment both by governments as well as corporates, the future of sports in our country looks brighter than ever before. However, the image of Indian sport has been tarnished by numerous issues such as doping, harassment of athletes, conflicts of interest leading to suspension of the Indian Amateur Boxing Federation, the controversial ban on Sarita Devi, the spot fixing and illegal betting in IPL etc. Governing Bodies for Sports in India have also been beset by various issues including consistent allegations of nepotism and poor administration which have adversely impacted selection and training regimes and consequently, the performance of Indian athletes.

 ‘Governing Law’ against corruption in sport lacking despite several false starts

To date, India does not have any specific legislation that deals with corruption related issues and dishonesty in the world of sports.  The “Prevention of Sporting Fraud Bill 2013” was tabled as a consequence of the spot-fixing and betting scandals that have rocked the highly popular IPL over the course of the past few years. But it was not enacted into law. It is expected that the current government intends to take forward the process of enacting the Prevention of Sporting Fraud Bill (the “Bill”) in the days ahead.

The Mudgal Committee: Architects of the Bill

In 2013, the Indian Supreme Court directed that a committee be set up to independently examine the charges levelled against the chief of BCCI (the apex body that administers Indian cricket), owners of certain IPL franchises and other individuals accused of wrongdoing. The 3-member committee set up comprised Justice Mukul Mudgal, a former judge of the Punjab & Haryana High Court, India’s then Additional Solicitor General and a former cricket umpire. In 2014, Saurav Ganguly, former captain of India’s national cricket team, was inducted into the committee.

The Mudgal Committee’s report to the Supreme Court identified several lacunae in the IPL model. It also highlighted ineffectiveness and non-transparency in the functioning of the BCCI and the IPL Board. Against this backdrop, it underscored the need for a stringent law to specifically prevent corruption in Indian sports.

Key elements of the proposed Bill

The Prevention of Sporting Fraud Bill 2013” is thus a direct outcome of the Mudgal Committee recommendations. It specifically makes disclosure of inside information related to team composition, strategies, player roles, strategies, plans, tactics etc. an “offence”. It also makes non-disclosure of knowledge of attempts at sporting fraud an offence. The Bill specifies the quantum of punishment for any wrongdoing.

The Bill is applicable to all National Sports Federations and their members- including those of the BCCI. The Bill makes abetment of sporting fraud a punishable offence. And because sports is increasingly becoming a business (with many companies owning sports teams, sponsoring sporting events etc.), if any company is proved to be associated with sporting fraud the Bill proposes to hold accountable senior executives of such company.

Prevention of Sporting Fraud Bill- Salient Features *

  • A person is said to commit the offence of sporting fraud if he/she, directly or indirectly does any of the following:
  • manipulates or tries to manipulate results of the sport, irrespective of whether the outcome is actually altered or not;
  • deliberately misapplies the rules of the sport;
  • removes or reduces all or part of the uncertainty normally associated with the results of a sporting event;
  • wilfully fails to perform to his/her true potential, unless such under performance can be attributed to strategic or tactical reason deployed in the interest of that sport or team;
  • discloses insider information;
  • fails to disclose knowledge of or attempts at sporting fraud.
  • The maximum punishment proposed is imprisonment for five years together with a fine of Rupees one million or five times the economic benefits derived by the person from sporting fraud, whichever is greater.
  • Whoever attempts or causes to commit the offence of sporting fraud shall be punishable with the same punishment as provided for the offence.
  • A person who abets the commission of sporting fraud shall be punishable with the same punishment as provided for the offence.
  • Where any offence has been committed by a company, every person who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall to be proceeded against and punished accordingly.
  • No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the first class shall try any offence punishable under this Act.
  • Every National Sports Association (NSF) in India, including the Board of Control for Cricket in India is to come under the ambit of this proposed law.

* Source: http://yas.nic.in/sites/default/files/File1211%20sport.pdf

Critical analysis and interpretation of some of the main provisions of the Bill

The proposed bill prima facie intends to curb the malaise of illegal “betting” on outcomes, “fixing” of matches or “spot fixing” by making it more difficult for people associated with the sport to disclose “insider information” or not to disclose knowledge of any attempts at sporting fraud.  

At another level, the bill is also an expression of the “loud thinking” of the drafting committee. Some aspects of the bill will court controversy. For instance, it categorizes even the act of disclosing weather conditions and field conditions as “offences”. In cricket, which is the most popular sport in the country, projections based on assumptions are quite common. Indeed, it is common practice for sports commentators to comment on the weather and offer prognostications for its impact on the outcome of the game. As such, such information is in the public domain. And if a sport is played indoors, the weather hardly matters!

The provision dealing with ‘offences by Companies’ does stand to make the officers in charge liable for offences committed by associates. Equally, however, it creates inadequacy because in cases where the accused is able to offer evidence that the offence was committed without his/her   knowledge or that she/he had exercised all due diligence and taken all reasonable steps to prevent the commission of such offence, she/he will be discharged from her/his liability. This thus, leaves enough potential scope for misinterpretation and offers a strong line of defence to the accused.

Such gaps could open the door for protracted litigation, thus delaying the delivery of justice. As such, there are still factors that could potentially impede implementation of the spirit of a law which is primarily meant to safeguard the legitimate interests of sportspersons, sports lovers, the paying public and indeed, the nation.

Conclusion

So far, there has been no legislation in India to deter or prevent dishonesty in Indian sport, irrespective of whether the perpetrators were individual athletes, team player, support staff (e.g. trainers, therapists etc.) or indeed, administrative bodies responsible for the sport. As corporates are to be brought under its ambit, the Bill reduces the risk of corporates abetting sporting fraud.

In the land of the blind, the one-eyed is king. So, yes, the bill is assuredly a good start! Nevertheless, the draft bill requires to be tweaked to make it more pragmatic and hence effective in bringing to book those involved with various acts of sporting fraud in India. The current provisions of the bill may make it difficult to prove that an offence has indeed been committed. It is to be noted that such areas of potential vagueness need to be sorted out sooner rather than later.

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