Sports Law reforms – lessons for the present and for the future

By Nuwan Peiris

Constitutions of National Sports Associations of all nations are the last bastions of aristocracy – and it is time to move on!

Proposes an Independent Sports Investigation and Inquiry Commission in line with Australian law

Proposes the power to issue directives by the DG of the Department of Sports to all National Sports Association

Apply the Right to Information Act to all Sports Associations

In Sri Lanka, sports, at many levels are becoming thriving commercial investments. And for those who have dedicated their lives tor various sports want them to be developed as a viable commercial industry. But do we have a proper regulatory system for that in Sri Lanka? Is the existing Sports Law – promulgated way back in 1973, amended in 1993, 1998 and 2005 – sufficient to develop sports as a commercial industry and support those who engage in sports as a profession?

This write-up examines the implications of continuous corruption, abuse of power and mismanagement by national associations of sports in Sri Lanka, and what needs to be done to overcome this. For example, irregularities in foreign tours, questionable spending and lack of accountability, favouritism and many other issues have become rampant notwithstanding the recent regulations passed by the Sports Minister.

At the end of this article the writer proposes urgent legal reforms that should be introduced to arrest this situation of serious mismanagement. He proposes the following; (1) an Independent Sports Investigation and Inquiry Commission, (2) the power to issue directives by the Director General to all national sports associations to surrender documents and disclose all decisions made by such bodies, (3) to make applicable the Right to Information Act, mutatis mutandis, to all sports associations notwithstanding such bodies being non-public bodies.

There is a caveat in these proposals. These proposals reflect the irreducible minimum that Parliament can legislate until such time a parliamentary select committee is appointed to formulate much more comprehensive Sports Regulatory Act, where the powers are similar to those in Australia – if not better.

The Sri Lanka Cricket Board Controversy

The National Audit Service Commission (NASC) initiated investigations under the leadership of a retired High Court Judge on irregularities involving the Sri Lanka Cricket Board. The news surrounding the reports/draft reports caused much consternation among the public. It is commendable to note the initiative taken by the Auditor General to appoint a committee headed by a retired High Court Judge to investigate such anomalies and mismanagement of the cricket board. The question now is the next legal steps that would be taken by the powers that be. However, the members of the public needs to have access to the full report. It is best that the Auditor General presents his report to Parliament, or an MP calls for its presentation.

It needs to be observed that while the Cricket Board has got much attention in the context of the popularity of the game, it is also important that similar interest is shown where other sports are concerned. The livelihoods of so many sportsmen, coaches and other support staff depend on the proper functioning of the various sports bodies.

Why we need a Sports Investigation and Inquiry Commission?

The important point here is that an independent sports body or commission is available to aggrieved parties to lodge complaints so that malpractices of national sports associations can be investigated. It is in this context, that the writer proposes a Sports Investigation and Inquiry Commission (SIIC) to investigate and inquire into corruption and malpractices of the national sports associations.

The jurisdiction of such a SIIC can be broad. It will include, but not be limited to;

(1) review of terms of player contracts, which includes contracts for coaches and other support staff

(2) investigate and inquire into corruption and malpractices of sports associations etc.,

Parallel to such reforms, more power should be given to the DG of Sports as the regulator to intervene on such matters like malpractices. Such directives should be wide enough to summon documents, resolutions etc, and upon finding any irregularities that come within the jurisdiction, the DG, if he so wishes, can submit such matters to the SIIC for further investigations and orders.

Another important aspect is to make applicable the Right to Information Act, mutatis mutandis, to all sports associations notwithstanding such bodies being non-public bodies.

The Regulatory Dilemma in Sports Law

Some governing bodies of national sports associations are one of the last bastions of the aristocracy. Some aristocrats – and self-proclaimed aristocrats – use their sports association positions to climb the social ladder, a phenomenon that is common in many countries. They converge into such places, like an irremovable barnacle attached to a ship’s hull, for their own social glory. They do not act in the best interests of the sports associations they represent nor their commercial success and continue in office even at a ripe old age. This is a common feature in many countries.

This dilemma is reflected in the legislation governing sports bodies in many countries. The governing bodies of these national sports associations are elected from those who manage the sports clubs – and all those sports associations’ constitutions bear evidence of this fact. The sports associations thereafter act as the regulator of the sport, thus controlling the entire fate of the sport in line with the wishes of their returning bodies, namely the sports clubs. Anyone who crosses the path of the politics and social norms of such ‘sports clubs’ will certainly earn the wrath of the governing sports bodies and are dealt with swiftly, effectively and ferociously.

This is a curious proposition to a legal mind. Because according to the legal theory – or more precisely, administrative law and public law principles – a regulatory body must have a considerable degree of independence from the industry which it seeks to police/supervise. For example, in order to regulate the banking industry, banks do not elect the regulator. The central bank here or the federal reserve (in the US) are independent bodies unconnected to the commercial banks they regulate. Central bank regulatory appointments are generally, statutorily vetted by an independent process. Similarly, the Director General of Merchant Shipping who acts as the regulator of the merchant shipping sector is not elected by the shipping community. The appointment is a separate process. But the sports governing bodies are different.

Take the following provision – section 29 – from Sports Law No. 25 of 1973, as amended;

Registration of National Associations of Sports

29. When a sport or group of sports is named by an Order under section 28-

(a) any National Association of such sport or group of sports, which is in existence at the time such Order is made, shall, within three months of the publication of such Order in the Gazette, apply for registration in accordance with the succeeding provisions of this Law; and

The relevant national association, notwithstanding its national status being granted, is still in the hands of private persons when it come to managing the sports.

The survival of the archaic law

All this had been fine long years ago when sports was the past time of the social elite. When sports came down to the middle and lower social classes and transformed as a professional and commercial endeavour, there arose a necessity to regulate the sports. Many countries promulgated sports legislation, but did not disturb the grassroots structures of such sports administration where the governing members of the sports bodies are still elected from sports clubs – and clubs which, at times, represents sports as well as the social norms of that class/region.

To modestly counter balance such broad based politics of sports associations, sports legislation around the world did not therefore substitute sports associations controlling power with a government appointed independent regulator. This would have been suicidal for any political party in any country.

However, this was not the case in other fields like the banking, shipping, telecommunication etc. Many historic and economic events led to the creation of independent regulators in these fields. But sports legislation did not follow suit.

The government appointed sports regulator in Sri Lanka is the Director General of Sports; and he, quite often takes a back stage when come to managing sports associations. His policing powers are significantly less compared to the powers of the central bank regulator or the merchant shipping regulator. The question here is whether the government appointed regulator for sports is no better than the Registrar of Companies under the Companies Act or the land registry?

In order to counter balance the overwhelming power of the national sports associations and its far-reaching effects on sports and perople’s lives, countries like Australia introduced a Sports Commission. The Australian Sports Commission (ASC) is the Australian Government agency responsible for supporting and investing in sport at all levels. The ASC was established in 1985 under the Australian Sports Commission Act 1989 and functions in accordance with the Public Governance, Performance and Accountability Act 2013.

But the drawback is that such independent commissions are reactive and comes into the picture after an appeal or a complaint; and, most definitely, do not get involved in the day to day administration of the sports bodies as a regulator – but nevertheless, as an immediate measure, the writer propose this system as a compromise until we find a permanent solution.

Some thoughts for the future

Finally, it is the time to revamp the old sports law and start to think afresh – and a good starting point will be to consider the Australian Sports Commission Act 1989. We must have the courage to formulate laws to establish independently appointed regulators through an independent statutory vetting body to replace the existing sports associations to govern each sport, rather than allowing the sports sector run by those elected by their own clubs to ‘so- called’ national sports associations – based on the constitutions written by, in some occasions, cloistered groups for their self-serving interests.

(The writer is an Attorney, Chartered Shipbroker (UK) and UN-ITLOS Nippon Fellow 2012/2013. He holds M.Sc. Logistics (BCU-UK), LL.M (International Maritime Law) (IMO-IMLI), LL. M (International Trade Law) (Wales), LL.B (O.U.S.L). For comments, please write to nuwanpeiris.lawyer@gmail.com )