Statutory Form, Executive Substance

**Belinda Augustine

Abstract

The National Sports Governance Act, 2025 represents India’s first attempt to replace an executive code with a legally enforceable statutory framework for sports governance. This marks a shift from executive-dominant, ordinance-based regulation via the National Sports Development Code, 2011 to a legislative form. This widens the of scope of judicial review, activating constitutional checks and balances. This paper analyses this act, with specific focus on the institutional architecture it provides for, arguing that though a legislation is a step in the right direction, the act may have failed to restructure power, and has rather enshrined executive dominance in legislative form. The first part of the paper analyses the National Sports Board and its regulatory powers, and the second part of the paper addresses the dispute resolution mechanism provision of the National Sports Tribunal.

Introduction

The exercise of executive power in India has never been a neutral administrative act. When the state is excessively empowered to take decisions “in its own judgement”, it can often lead to the conscription of inequality or unreasonableness, not adhering to the rule of Law. The same applied in the case of the National Sports Development Code (“NSDC”), 2011, which was merely an instrument of executive governance, which was largely non-binding in form, administrative in provenance, and wholly dependent on judicial enforcement for the authority it commanded.

1. National Sports Board

The NSB is vested with sweeping authority: recognition and derecognition of federations, financial oversight, compliance monitoring, and regulatory supervision. The breadth of this power is not in itself objectionable, as an effective governance requires a regulator with teeth. However, the issue is structural, as the NSB is heavily composed of government appointees. A regulator derives its constitutional legitimacy from its independence from the executive that empowers it; and without structural insulation from the executive, the NSB is transformed from an independent regulator to merely an administrative extension of the state.

• Structural Bias

The foundational principle that a decision-making body must be free from actual and apparent bias, crystallised in A.K. Kraipak v. Union of India,  applies with full force to the NSB. Kraipak broke decisively with the earlier distinction between “judicial” and “merely administrative” acts, extending natural justice to all bodies exercising significant power over individuals. The NSB’s composition, heavily dominated by government appointees, creates institutionalised bias that arises when the regulator and the regulated are functionally the same entity.

The NSB’s power to grant or revoke recognition to any sports organisation, is a decision that determines whether a National Sports Federation (“NSF”) can legally operate, receive funding, or field athletes at international event, which self-evidently affects such rights. The bias is not restricted to the level of an errant individual official; it is what Matthew Groves terms ‘institutional bias’- the systematic tendency toward a particular outcome embedded in the architecture of the decision-making body itself. The NSB, composed heavily of government appointees, and accountable to the Central Government that funds and directs it, cannot offer the structural impartiality demanded of it.

Paul Craig’s treatment of variable intensity of review is relevant here: courts ordinarily accord deference to specialised regulatory bodies on the grounds that they possess technical expertise.  Whereas here, the NSB’s composition gives government officials effective control, the premise dissolves. A body that does not independently develop expertise in sports governance cannot claim the advantage that justifies judicial restraint, and courts would be entitled, even required, to apply heightened scrutiny to its decisions.

• Autonomy Conflict and the Article 12 Question

The Act’s preamble, invokes the Olympic Charter’s international best practices and established legal standards to “provide for the resolution of sports grievances and sports disputes in a unified, equitable and effective manner, and for matters connected therewith or incidental thereto”. It is interesting to note that, Rule 27(6) of the Olympic Charter, mandates that National Olympic Committees and affiliated federations “must preserve their autonomy and resist all pressures of any kind, including but not limited to political, legal, religious or economic pressures.” The obligations imposed by the NSGA are in direct tension with the International Olympic Committee’s (“IOC”) mandate. 

Though the act invokes IOC’s rules, the Indian Olympic Association’s (“IOA”) own enforcement record reveals that this invocation is performative. In the past, the IOC has suspended IOA, following governmental interference that resulted in the election of tainted officials – placing Indian Olympians’ participation under the national flag in jeopardy. Countries like Kuwait and Pakistan have also faced comparable consequences for analogous government intrusions. The Act, by placing federations under NSB supervision, with government-appointed overseers, replicates precisely the conditions that triggered that suspension.

It may be argued that IOC Charter is not justiciable in Indian courts. However, international legal exposure of this magnitude is a governance risk that administrative law theory has always recognised and contemplated. It has been argued previously, that the Olympic Charter and such allied global sports law constitute a transnational normative order that domestic regulators engage with, with knowledge, at their peril.

2. The National Sports Tribunal

Section 17 of the Act, creates a National Sports Tribunal, with exclusive jurisdiction over sports disputes in India, with the intended objective of “speedy, effective, and cost-efficient disposal.” The analysis is three-fold: firstly, the overarching framework of the tribunal itself is assessed; secondly, the composition of tribunal is inspected critically and thirdly, the tribunal’s ousting of arbitral jurisdiction is discussed.

• Framework of the Act

Section 17(9) empowers the NST to formulate its own timelines, without mandating a maximum resolution period. The matters that come for adjudication before the tribunal are usually matters of urgency. Policy must have been well-informed by events such as Amar Muralidharan v. NADA where it is proven that for athletes, delay is not merely procedural inconvenience, but rather career-ending. The NST also mandates exhaustion of domestic remedies through potentially biased internal NSF committees before the athlete even reaches the Tribunal: if those internal committees lack procedural fairness, the entire administrative ladder collapses. 

Better policy structures can be found in a comparative analysis. This includes the framework for timelines prescribed for the Sports Tribunal of New Zealand.  Though there is no strict, enforceable timeline, the code clearly mentions that the time taken must be “reasonable” and that decisions must be “well-reasoned, speedy and timely” based on assessment of each case. 

Urgent cases like team selection appeals are prioritised and oral decisions are also made possible at hearings or mediation offered for non-doping matters. For anti-doping violations, proceedings are to be normally completed within three months. The tribunal also has a history of having resolved cases within just twenty-four hours. Another example is of Canada’s Sport Dispute Resolution centre, which also commits to timely resolutions and has deadlines for certain dispute types such as eligibility or safe sport appeals.

• Executive Capture in Composition

The NST is constituted of three members, a chairperson who is or has been a judge of the Supreme Court or a Chief Justice of the High Court, and two members who would be persons of eminence in sports, administration and law. The appointment of the members is made based on the recommendations of a Search-cum-Selection Committee, which is in turn is composed of a retired Judge as chair, the Secretary of the Ministry of Law and Justice, and the Secretary of the Department of Sports – with the Central Government appointing members on their recommendations.

The adversarial model of the static bench composition further exacerbates delays: unlike Court of Arbitration for Sport, which empanel arbitrators with sport-specific experience on an ad hoc basis, the NST’s three permanent members hear disputes across all sports, risking lack of specialisation and stakeholder confidence. Response, in the form of removal would also fall inadequate as independence is most vulnerable at the appointment stage, not the removal stage. a member who owes their position to the executive may feel the pull of reciprocity throughout their tenure, long before any removal question arises. 

As Madras Bar Association confirmed, where a tribunal is intended to serve an area requiring specialised knowledge, technical members must possess genuine expertise in the relevant field. The Sports secretary is merely a generalist bureaucratic administrator and not a subject matter specialist. The institutional function they perform in the Department of Sports, of formulating and implementing policy toward the very federations whose disputes the NST will adjudicate, creates a conflict of interest that no procedural mechanism internal to the NST can neutralise, giving rise to policy bias. Policy bias arises not from any improper motive on the part of a particular official, but from the institutional position that the decision-maker occupies.

Internationally, every comparable model rejects this design. Australia’s ANST uses an independent, expertise-matched ad hoc roster. Canada’s SDRCC mandates a statutory floor of athlete and coach representation on its Board. UK Sport Resolutions appoints through an independent Panel Appointments and Review Committee with published criteria and a right of objection.  New Zealand requires ministerial consultation with Sport NZ before any appointment is made. In none of these jurisdictions does a government official sit on the adjudicating body.

• Jurisdictional Incoherence in Non-Arbitrability

Section 20 excludes from NST jurisdiction matters falling within the exclusive jurisdiction of internal NSF dispute committees, international federations, or the CAS. The result is that every major aspect of sport, whether it is doping or any kind of matter which is under CAS, under the tribunals of the international federations, are excluded. This raises the central concern of what meaningful contribution the NST can truly make, as the jurisdictional residue left to the NST is structurally thin. This drafting creates three distinct legal problems that compound each other.

First, the Act classifies domestic sports governance disputes as non-arbitrable by vesting exclusive statutory jurisdiction in the NST. This position is entirely valid and defensible: in Vidya Drolia v. Durga Trading Corporation^, the Supreme Court held that disputes involving special statutory rights requiring public law adjudication are non-arbitrable, and governance and election disputes under the Act engage exactly that category. However, the Act simultaneously permits appeals from NST orders to CAS, which is an arbitral institution. A dispute that is non-arbitrable at first instance is thereby rendered reviewable by arbitration on appeal, leading to a logical inversion that undermines the very classification on which the NST’s exclusive jurisdiction rests.

Second, the in rem and in personam distinction drawn in Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd creates a further layer of ambiguity: selection and eligibility disputes directly affect athletes’ personal contractual rights and are plausibly classified as in personam, making them arbitrable on a different doctrinal basis. The Act makes no attempt to resolve this tension.

Third, and most consequentially, CAS awards that arise from or touch upon matters involving Indian sports bodies will face enforcement difficulties in India. Once the NSGA classifies domestic sports governance disputes as non-arbitrable, CAS awards in such disputes are exposed to both grounds of refusal. CAS jurisprudence has also noted there is a need for harmonisation between global norms and domestic adjudication. The consequence is that India risks becoming a jurisdiction where CAS awards are selectively unenforceable – a result that would invite precisely the kind of IOC and international federation response that suspended the IOA in 2012.

Athlete Welfare

The Act’s institutional focus leaves a near-total vacuum in athlete welfare. Concerns regarding sexual harassment, mental health, and contractual exploitation are unaddressed by any provision. Consumer Education and Research Centre v. Union of India derived a right to health and safe working conditions from Article 21 and athletes in high-performance systems have an equivalent interest. The Larry Nassar scandal in US gymnastics led to sweeping congressional reforms. For instance, the US Supreme Court’s intervention in NCAA v. Alston on athlete compensation also illustrates how courts redefine athlete rights when legislatures fail to act. 

Conclusion

The shift from the executive Code to a legally enforceable statute is the right direction: it widens judicial review, subjects the governance framework to rights-based challenge, and fills a legislative vacuum. But the Act’s internal architecture fails to honour the constitutional promise its legislative form creates. The international consensus converges on a different model: ad hoc, expertise-matched arbitration; institutional independence secured through statutory composition requirements rather than ministerial discretion; and explicit athlete welfare frameworks. 

The Act’s proponents might argue that the structural deficiencies identified here are curable through subordinate legislation, notification, and institutional practice. That argument proves too much: if the Act’s constitutional defects are to be remedied by executive action, the executive dominance that this paper has identified as the Act’s central failure will simply reassert itself at a different level. Constitutional reform requires constitutional means. 

**Belinda Augustine is an undergraduate student at the NALSAR University of Law, Hyderabad. She is most passionate about constitutional law, interested in technology law, and has a growing interest in arbitration.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.