Indian boxer Laishram Sarita Devi recently made the news when she
failed to make it past the second round of the Women’s World Boxing
Championships held in Astana, Kazakhstan in May along with Indian
boxing star M C Mary Kom, thereby failing to qualify for the Rio
Olympics.1
However, readers may remember Sarita Devi when she refused to accept
her bronze medal at the 2014 Asian Games at Incheon after being
declared the loser in her semifinal bout in a controversial decision.
She alleged bias on the part of the judges, and indeed, it appeared
that that she had been dominating throughout her bout. Indian Olympic
Association (IOA) officials failed to support her and she had to
borrow money from a journalist in order to lodge her protest against
the decision. The International Boxing Association (AIBA) banned her
for a year.
An ad hoc division of the Court of Arbitration of Sport (CAS) was in
operation at the Games, but Sarita Devi was perhaps unaware of this.
While the IOA later stated that they would support and fund her
appeal, her crucial moment to approach the ad hoc division (which
decides disputes within 24 hours) was lost.
Mr. Rajiv Dutta, a senior advocate in the Supreme Court, filed Public
Interest Litigation (PIL) in the Delhi High Court2
against the Department of Sports, the IOA, and Boxing India.3
He argued that there was no appeal for Sarita Devi from the AIBA
decision, and in general, that there were no guidelines on resolving
disputes with international sports governing bodies. He therefore
asked the court to direct the government to direct National Sports
Federations (defined in the Draft National Sports Development Bill,
2013) to incorporate a clause for appeal to CAS in their rules and
regulations.
The Court merely directed the government to give Mr. Dutta a hearing,
but the government considered the petition, and just last month, the
Ministry of Youth Affairs and Sports (MYAS), Government of India
issued an advisory to all National Sports Federations.4
The MYAS not only advised NSFs to establish an “effective,
transparent and fair grievance redressal system and mechanism”, but
also to provide for an appeal to athletes and support staff from
penalties and punishments imposed by international sports governing
bodies to CAS.
Both changes, if implemented (and they may well, as most sports
governing bodies in India are heavily dependent on government
funding), will have far reaching consequences for sports law in
India. Many sports governing bodies merely provide for their
President or a partisan committee to hear disputes raised by
athletes, and if the government intends that NSFs adopt principles of
“good governance” (which will entail several procedural
safeguards, and certainly the right to legal counsel of one’s
choosing, the prevention of personal or institutional bias, and the
requirement of reasoned decisions), such mechanisms may not prove
fair and impartial enough to pass muster.
It is also important that Indian athletes be provided an appeal to
CAS. The structure of global sports is pyramidal, and domestic
sporting bodies are bound by the decisions of the international
bodies they are affiliated to, but while athletes from the developed
world are provided the right to challenge the decisions of such
international bodies before a forum that both has the power to strike
down unfair regulations and rulings, Indian athletes are often not as
lucky. Laishram Sarita Devi’s case is a clear example of that.
However, providing a CAS appeal is meaningless unless the domestic
sporting body offers support as well. In the few cases of Indian
athletes approaching CAS, it appears that the athletes have not able
to secure adequate legal counsel or expert witnesses. For example, in
Amar Muralidharan v NADA,5
counsel for the athlete failed to convince the panel that a delay of
two years during which
the athlete remained on provisional suspension (greater than the
maximum period of suspension that he could receive upon being found
guilty of doping) was a violation of his procedural rights. It
appears that there was no reference made to human rights instruments
such as the European Convention on Human Rights (to which Switzerland
is a signatory), Article 6 of which guarantees the right to a fair
trial, or to the Swiss ordre public (public
policy), which includes procedural fairness, and which has been cited
in other CAS decisions.6
Another example would be WADA v Nirupama Devi Laishram,7
where judoka Nirupama Devi was unable to produce any expert witnesses
in her appeal against her doping ban on account of financial
constraints. Financial support from the National Sports Federation
would be imperative in such cases. Further, India does not have an
established sports law bar that have sufficient knowledge of sporting
issues and have experience before fora like the CAS. Even Dutee
Chand, who received the support of the Sports Authority of India, and
who, to the best of my knowledge, is the only Indian athlete to havewon in the Court of Arbitration for Sport,
pleaded that she was put under pressure by her sponsors to undergo
medical treatment that would be risky to her health.
In being denied an appeal (for whatever reason), has Laishram Sarita
Devi opened the door for more Indian athletes to benefit from a
fairer adjudicatory process and an appeal to the CAS? Given the
lethargy and corruption in many Indian sports governing bodies, it is
equally possible that such reforms as suggested by the government may
take years to be implemented. And even once implemented, athletes
would require institutional support for the reforms to have any
success. However, this is still a big step, and we may remain
cautiously optimistic.
*Photo
credits: Pradeep Gaur/Mint
1Sarita
Devi also failed to qualify for Rio in March 2016 when she lost her
quarter-final bout in the Asian/Oceania Olympic Qualifiers in
Qian’an, China.
2Rajiv
Dutta v Union of India WP(C)
8734/2014, Del HC, decision of 15.01.2016.
3Boxing
India was a governing body for Indian amateur boxing that was
created after the Indian Amateur Boxing Federation (IABF) was
suspended by the AIBA for failing to conduct elections. However,
Boxing India was also suspended by AIBA, and the governance of
Indian amateur boxing was taken over by an ad hoc committee
appointed by the AIBA. This committee will continue until the new
body, the Boxing Federation of India, is constituted, conducts
elections, and receives recognition from the AIBA.
4Ministry
of Youth Affairs and Sports, Government of India, ‘Safeguarding
the interests of sportspersons and provision of effective Grievance
Redressal System in the Constitution of National Sports Federations’
(Press Information Bureau,
17 June 2016),
http://pib.nic.in/newsite/PrintRelease.aspx?relid=146295.
5Amar
Muralidharan v National Anti-Doping Agency, National Dope Testing
Laboratory, Ministry of Youth Affairs & Sport CAS 2014/A/3639.
6See
World Anti-Doping Agency (WADA) v Jessica Hardy & United States
Anti-Doping Agency (USADA) CAS 2009/A/1870; UCI v Alberto Contador
Velasco & RFEC CAS 2011/A/2384; Fenerbahรงe
SK v UEFA CAS 2013/A/3139.
7World
Anti-Doping Agency (WADA) v Nirupama Devi Laishram & National
Anti-Doping Agency of India (NADA) CAS 2012/A/2979.