De-Constructing Civil & Tort Liability u/Prevention of Sporting Fraud Part I

 Arjun J.Chaudhuri

Union Ministry of Sports & Youth Affairs is preparing Prevention of Sporting Fraud  Bill from 2013 onwards. The draft bill is being organized into written proposal for new law that ideally after being discussed and voted upon by Members of Parliament, will prevent sporting fraud, and enforce civil compensation and criminal imprisonment & penalty from defendant and/or accused of committing fraud in sporting activity, either individually or in conspiracy with group. This is notwithstanding civil & criminal liability provided for in enactments of law already in force, which enactments despite in force, do not quite have force of law when it comes to appreciating evidence collected by enforcement authority such as information from wire-taps and Search & Seizure, and ruling and/or convicting defendant and/or accused for committing fraud in sporting activity. Let us try & understand this by amplifying what sporting fraud is in conduct of sanctioned sporting activity.

Question is whether this is due to lacunae in present law or lack of decision making by public authorities concerned whether Executive and/or Judiciary.

The proposal is attempting to prevent deception and misleading of any authority, organization, private person or member of public by any organization or person that breaks rules of game, examination or contest, in attempt to gain unfair advantage. That unfair advantage is gained by committing act of cheating which is crime of obtaining money or some other benefit such as case of Canadian sprinter Ben Johnson winning Gold Medal at Seoul Olympics in 1988, and being stripped-off medal, and banned for 2-Years [1988-90] from participating in events sponsored by IAAF in joint action of IOC-IAAF action prior to forming of WADA in 1999. Life-time ban also followed after Ben Johnson was caught for second time using Anabolic Steroids in 1993. The unfair advantage of using Anabolic Steroids was through deception on part of Ben Johnson who failed two successive drug tests conducted by IAAF. Whether deception was deliberate or unintentional is question of fact, and become issue in dispute during executive and/or court proceedings when charging with Civil and/or Criminal Liability is subject of decision, and which or both laws are to be applied. There is always pull towards proceeding in Civil Court because liability is relatively less serious, and it prevents distributor & supplier in connivance with officials of sporting federation from being charged, and accused athlete is able to escape Jail imprisonment & monetary penalty combined. Apart from strict criminal punishment for intake of Banned substances of narcotic & psychotropic nature, which is not enforced in most cases of Substance Abuse by Competent Authorities concerned, there is also lack of Tort Law which makes compensation payable punitive, and beyond payment of actual damages, and serves as monetary deterrent to wrongdoer accused, and any future action of civil wrongdoing. Case of Canadian Sprinter Ben Johnson is argued before competent authority of IAAF-IOC or before WADA formed in 1999 by claiming that there was no intention to intake of Anabolic Steroids, and that it was mixed into diet by known or unknown third party. This argument is defeated by ‘constructive’ provisions of interpreting cheating committed under definition of fraud, wherein ‘No dishonest intention needs to be adduced’, which simply means, that if concerned athlete fails drug test conducted by competent authority, then athlete is strictly liable for civil punishment under law.

While this Part of Article attempts to demarcate liability in Civil, Tortious & Criminal Proceedings u/ Prevention of  Sporting  Fraud, and effective enforcement of Law once it become law, using case study approach, the next part of article will explore criminal liability in committing fraud in conduct of sanctioned sporting activity.