Image Via (Source Link)
By- Ishwar Singh Poonia (3rd Year Law Student, National Law School of India University)
Email id – email@example.com
At the core of every sporting event is one element that is the most crucial, that is competition. It is this element of uncertainty of outcome which is due to different skillset of the contesting team/individual that makes sport such an important part of our day-to day life. From the humble beginnings where sport was only seen as a part time hobby to the present time where it is seen as highly prestigious professional career, a lot has happened in between. However, the biggest impact has been in the author’s opinion is that of commercialization.
Today, Indian sports industry has been growing at an astonishing rate of 5% Compound Annual Growth Rate (CAGR), (in comparison with 3.4% growth predicted worldwide) with the potential reaching of more than $2 billion in coming times. These stats are sure not to be neglected by the entertainment industry and it is sure that sports is already seen as an area where profits can be generated easily. This can be seen currently with the coming up of franchise based leagues associated with sports such as badminton, wrestling and even the home-grown humble game of kabaddi. Keeping this in mind, what one should also be concerned about is that parallel to commercialization and growth of the overall industry, is the existence of the gambling industry.
In a modern capitalist state where a portion of population has acquired excess wealth, gambling takes the form of leisure activity on which considerable stakes are placed. This is the exact reason why manipulation of sporting events (which also includes the popular term known as ‘match fixing’) is so lucrative and sporting history is replete with such instances.
In recent times, we have seen allegations of under-performance by individuals/team in various sports and this again puts the focus again on the manipulation and distortion of the element of competition in sports. . It is in fact even more dangerous than doping or cheating for that may involve an individual or even a team but match manipulation strikes at the root of the structure itself, dismantling the entire framework up till the top tiers as a recent documentary has showcased. Hence, it is the need of the hour of our legislature and sports administrators to address this issue. This piece focuses on characterization of match manipulation explaining it through an Indian case study. The aim is to highlight the inadequacy of Indian Penal Laws and suggest a draft legislation for the regulation of match manipulation for the Indian scenario.
Competition is the key element that gets disrupted in match manipulation and the usual uncertainty regarding results is undermined. It also negates the social and educational benefits of the sport. In India, it usually brings to mind match fixing or fixing the final result of a match, particularly in relation to cricket. However it is a much broader term and includes instances such as reproduced below from a report–
“1) Deliberate under performance by only one or more players. e.g., one player from the team deliberately refrains from scoring runs or scoring goals. The actions of one such player may not necessarily affect the outcome of the match as a whole;
2) Fixing the outcome of certain stages of a match e.g., spot fixing or fixing the result of a match;
3) Manipulating team strategy to gain an advantage during the course of a championship e.g., during the London 2012 Olympic Games, 8 athletes from China, South Korean and Indonesia were disqualified by the Badminton World Federation for deliberately losing certain matches in a bid to manipulate their draws for the upcoming matches;
4) Deliberate misapplication of rules by sports officials or referees to alter the course of a match;
5) Interference with playing surfaces; or
6) Sharing information about team composition or playing conditions with bookies.”
While these are just some of the instances it must be noted that match manipulation must not be looked in isolation. As Kevin Carpenter, one of the leading experts in matters of sporting integrity states “only recently started to come to terms with the full scale of the problem. It has now become apparent that match fixing is a pandemic that is truly transnational in scope, being driven by advances in technology and sports betting, and attracts the attention of high-level sophisticated organised global crime networks that affect not just sport but society at large”. The cross-cutting nexus of this activity with various other activities such as gambling (presuming that gambling is still to be considered illegal as per public policy), doping, tax heavens, international crime syndicates and others is a proven fact and thereby the importance of regulating and controlling this aspect can’t be neglected. It further requires specialised legislation, better resources and training for law enforcement. This demonstrates that there is a sizeable opportunity at present for those who seek to exploit it and corrupt its integrity for their own selfish financial gain, especially in lieu of the fact that we lack a specialized legislation and a sub-standard law enforcement force.
In a press release by the Ministry of Youth Affairs & Sports, it was stated that “there are certain provisions in the Indian Penal Code, 1860 (IPC) to deal with match fixing and spot fixing in sports.” However it is to be noted that the press release also mentioned the need to have a standalone legislation so as to deal with the issue of match-fixing. The very first attempt by the parliament was made in the form of Prevention of Dishonesty in Sports Bill in 2001 and since then it has been redrafted with minor modifications in recent times, the most recent being The Prevention of Sports Fraud Bill of 2013 and The National Sports Ethics Commission Bill of 2016. This reveals the hesitation and the political difficulty with regards to a consensus on criminalizing match-fixing in the legislature.
It is the primary duty of the state to ensure law and order in a society and includes ensuring proper framework for law enforcement. With regards to match manipulation, we can easily see that the state has failed to do so and its claim that existing laws are sufficient to prevent the problem can easily be neglected by the case of State v Ashwani Aggarwal, where the state tried to evoke every penal statute available to convict the accused and failed miserably. While not going deeply into the facts and strictly dealing with substantive provisions, the author would showcase the inadequacy of the current framework.
To put it very briefly, this case dealt with the 2012 Indian Premier League (IPL) Scandal and various people including players, celebrities as well as businessmen were being prosecuted. Coming first to the Indian Penal Code, 1860 (IPC), the state tried to prosecute largely on two aspects, that is cheating under Section 420 and criminal conspiracy under Section 120A. While on the first charge, (to see the constitutive elements of this criminal offense, refer to this case law) the state failed to get a conviction because of the fact that this involves deceiving ‘a person’. Therefore, it must be against a specific person, whereas match manipulation involves the deception of the public. Further an additional requirement of transfer of property form the alleged perpetrator to the victim is also not fulfilled and hence the offense of cheating is not made out. On the second charge of criminal conspiracy the state failed as match-fixing is not per se illegal act as there is nothing in IPC which makes it an offence and thereby no conviction was awarded.
Other penal statues were also evoked but they also failed to ensure the conviction of the accused because of various reasons. Anti-gambling law couldn’t be applied as cricket is a ‘game of skill’, thus making the law inapplicable. Prevention of Corruption Act, 1988 (POCA) was also not applicable as it was supposed to tackle the problem of corruption among civil service, not sporting events and thereby would exclude the players and any individual who has not been mandated by public law to manage sports. Even organized crime statutes such as Maharashtra Control of Organized Crime Act, 1999 (MCOCA) was evoked but again the state failed as the element of ‘continuous unlawful activity’ under Section 2(e) can’t be fulfilled. In this regard the only sanction that these elements pay is the disciplinary action by governance bodies which works in non-transparent manner, adjudicating as a private body on matters crucial to public interest. It is in this context that it is pertinent that the state evolves a new legislation to tackle this challenge of law and order.
Making a Model Draft Law
While it must be noted that the Indian state has tried to tackle the problem of match manipulation in the form of which to an extent incorporates the definition given in Macolin Convention. The definition used in the convention is “an intentional arrangement, act or omission aimed at an improper alteration of the result or the course of a sports competition with a view to obtaining an undue advantage for oneself or for others”. Its salient features include that in incorporates-
- Both active and passive manipulation
- Manipulation for both material/non-material gain
- Manipulation for both overall result and even partial event
However there must be some additional features of the convention that needs to be highlighted and added to the Bill in order to be more suitable to Indian context. Firstly, we should finally acknowledge that betting industry is a flourishing industry in India and include them in the framework, monitor irregular betting patterns. However to do so requires legalization of betting by the legislature. Secondly, the act should apply to competitions sports or competitions irrespective of commercialization (second or third-league matches, friendly matches, sports that are less popular in certain countries, etc.) across all tiers as it has been noted that lower rung leagues are susceptible to corruption. Finally, the act should be applicable to every individual for the IPL experience has made us aware of the complexities of the network that are responsible for match manipulation and it’s not just the players or management that should be held liable.
In addition to the convention itself, protection must be afforded to whistle blowers and as a policy measure the quantum of punishment for sportspersons should be changed as their careers are short-lived, instead they should be levied additional financial fine in tune to the reduced incarceration period. Finally, match manipulation should also be separated from the offense of bet fixing as it ensures better enforcement.
The above stated recommendations serve as the guiding principles for any nation to frame criminal law provisions for match manipulation. With regards to Indian context, the threat of match manipulation is even greater as sufficient legal framework doesn’t exist, especially with regards to gambling which has been recommended by the law commission to be legalized and regulated by the state. This coupled with the fact that sport has been growing at an exponential rate portrays that the huge economic incentives are available to participants willing to manipulate a sporting event. The future of sport’s integrity lies in the hands of the present day government. The ball is in our backyard and it is up to us as to how would we play it now.
Tags: 1988, 1999 (MCOCA), Anti-gambling law, betting, gambling, Indian Penal Code, Indian Premier League, indian sports, indian sports industry, kabaddi, kevin carpenter, Macolin Convention, Maharashtra Control of Organized Crime Act, match fixing, Ministry of Youth Affairs and Sports, POCA, Prevention of Corruption Act, Prevention of Sports Fraud Bill of 2013, Section 120A, Section 420, tate v Ashwani Aggarwal, The National Sports Ethics Commission Bill of 2016, under-performance