Editor's note: Deeksha Malik is a final-year student at
National Law Institute University, India. Her main interest areas are corporate
law, arbitration, and sports law. She can be reached at dkshmalik726@gmail.com.
In 2015, while interrogating
cricketer Sreesanth and others accused in the IPL match-fixing case, Justice
Neena Bansal, sitting as Additional Sessions Judge, made the following observations as regards betting on cricket matches.
“Cricket
as a game of skill requires hand-eye-coordination for throwing, catching and
hitting. It requires microscopic levels of precision and mental alertness for
batsmen to find gaps or for bowlers to produce variety of styles of deliveries’
(medium pace, fast, inswing, outswing, offspin, legspin, googly). The sport
requires strategic masterminds that can select the most efficient fielding
positions for piling pressure on the batsmen. Based on above description,
cricket cannot be described anything, but as a game of skill.”
The debate on the
issue of betting in sports has since resurfaced and gained the attention of
sportspersons, media, sports bodies, policymakers, and the general public. In
April 2017, the Supreme Court bench comprising of Justices Dipak Misra and AM
Khanwilkar agreed to hear a public interest litigation (PIL) seeking an order
directing the government to come up with an appropriate framework for
regulating betting in sports. The arguments put forth in the PIL present
various dimensions. One of these pertains to economic considerations, a
submission that regulated betting would be able to generate annual revenue of Rs. 12,000 crores by bringing the earnings therefrom within the tax
net. As for policy considerations, it was submitted that a proper regulation in
this area would enable the government to distinguish harmless betting from
activities that impair the integrity of the game such as match-fixing. Further,
betting on cricket matches largely depends on the skill of the concerned
players, thereby distinguishing it from pure chance-based activities.
The issue of
sports betting witnesses a divided opinion till this day. This is understandable, for both sides to the issue have equally pressing
arguments. Aside from its regulation being a daunting task for authorities,
sports betting is susceptible to corruption and other unscrupulous activities.
At the same time, it is argued that it would be better for both the game and
the economy if the same is legalised.
THE MAGNITUDE OF CONSIDERATIONS
It is feared by
some that the consequences of recognition and legalisation of betting could be
negative, considering what happened in Australia. Australia legalised online
betting in 2001, and by 2009, it found itself in a situation where betting took
over the sporting landscape in a big way. The impact was clearly visible;
betting was marketed extensively in public places, attracting many young
potential punters. Some found the trend disturbing, for sports fans were more concerned about their
personal gains than about the sport itself. It is estimated that around 500,000
Australians are on the verge of becoming “problem gamblers.”
There has been an
increasing support for the other side of the debate that argues for recognition
of betting as a legal activity. It is argued that criminalising betting does
not prevent its happening; it merely drives the activity underground where it
continues to thrive. Add to it the substantial revenues that government would
be able to obtain therefrom. In fact, the Report of the Supreme Court Committee
on Reforms in Cricket, also called the Lodha Committee Report, submitted that given the worldwide legal
sports betting market which is worth over $400 billion, it will be in the best
interest of the economy if betting is given legal recognition.
POSITION IN THE USA AND THE UK: GROWING ACCEPTANCE OF THE UK-BASED MODEL
In the USA,
federal law has taken a tough stand against betting and gambling. The 1992 Professional
and Amateur Sports Protection Act (PASPA) makes it unlawful for a person
to sponsor, operate, advertise, or promote betting, gambling, or wagering
scheme based, directly or indirectly, on one or more competitive games in which
amateur or professional athletes participate. The provision prima facie makes no distinction between
betting and gambling, and it is, therefore, irrelevant for the purpose of
establishing an offence under this provision whether the activity in question
involves skill or not.
On the other hand,
one may refer to the position in the UK, where there has been a well-developed
betting market with appropriate measures to ensure that the system is not
abused. The governing organisation in this regard is the UK Gambling
Commission, initially set up under the 1960 Betting and Gaming Act which works
in partnership with all the sporting bodies which, in turn, frame their own
bye-laws to regulate betting.[1] Apart
from licensing requirements, the framework provides for an information-sharing
system, whereby bookies are required to report any suspicious betting activity within their knowledge to the Gambling
Commission.[2] The example of the UK
shows how through appropriate safeguards and implementation policy that
involves various stakeholders such as the sports bodies and the booking
companies, sports betting could be effectively regulated, bringing, at the same
time, significant economic advantage. It does not come as a surprise that a majority
of Americans have advocated
for a UK-based model.
Recently, the Supreme Court of the
United States began dealing with the issue in the case of Christie
v. National Collegiate Athletic Association. The State of New Jersey seeks to
get the PASPA annulled, which, in turn, would facilitate state-sponsored sports
betting. It is being submitted that the federal government through the
aforesaid statute is violating the anti-commandeering
principle of the Tenth Amendment, according to which states cannot be mandated to
carry federal acts into effect. The outcome of the case would certainly have an
impact on the debate, one way or the other.
POSITION IN INDIA: THE ‘GAME OF SKILL’ DEBATE
In India, the
power to legislate on betting and gambling is conferred on states, since these
subjects are enlisted in the State List. Nevertheless, the pre-independence
legislation, namely the 1867 Public Gambling Act (Act), is still valid
today, though some states have enacted their own laws pertaining to betting and
gambling. Section 12 of this Act provides that it does not apply to a ‘game of
skill.’ The legislation, therefore, makes a distinction between a ‘game of
chance’ and a ‘game of skill.’ The term ‘game of chance’ has been explained in
the case of Rex v. Fortier[3] as a
game “determined entirely or in part by lot or mere luck, and in which
judgment, practice, skill or adroitness has honestly no office at all or is
thwarted by chance.” It has further been held in the case of State v.
Gupton that any athletic game or
sport is not a game of chance and instead depends on a number of factors such
as skill, ability, form and practice of the participants.
At this juncture,
reference must be made to the case of KR Lakshmanan
v. State of Tamil Nadu, wherein
it was held by the Supreme Court of India that horse racing, foot racing, boat
racing, football and baseball are all games of skill. Betting on, say, a horse
race entails use of evaluative skills in order to assess several factors such
as speed and stamina of the horse, performance of the jockey, and the like.
Similarly, the Supreme Court in State of
Andhra Pradesh v. K Satyanarayana
observed that rummy is not like a three-card game which is based substantially
on chance. There is considerable amount of skill involved in memorising the
cards, or in holding and discharging them, in a rummy game. The uncertainty
involved in shuffling and distribution of the cards does not alter the
character of the game to one based on chance.
Based on these
judgments, it is reasonable to infer that betting in cricket, too, is an
activity involving sufficient skill and is not based merely on chance. A person
who studies the form and performance of a player, the conditions of play and
the like could predict the outcome of a game with a reasonable accuracy. The
mere uncertainty of the outcome should not come in the way of understanding
sports betting as an activity based on skill. Considering this important
factor, the government should proceed to develop an appropriate framework to
regulate betting.
A PRACTICAL POLICY FRAMEWORK
The International
Cricket Council, too, has suggested that India should come up with a suitable
policy framework to regulate betting.[4] Such a
framework would keep a check on individuals and further help detect and prevent
corrupt activities. The above-mentioned Lodha Committee Report has strongly recommended
legalising cricket betting in India. The suggestion is based on the premise
that while match-fixing interferes with the integrity of the game itself and is
unacceptable, betting is a “general malaise” indulged by different sections of
the society and is capable of being regulated. Therefore, betting should not be
equated with unscrupulous activities such as match-fixing.
Having been so
distinguished, a regulation along the lines of the UK model could be put in
place to establish regulatory watchdogs tasked with monitoring betting houses
and persons entering into betting transactions. Those placing bets could be
brought within a licensing system wherein their identification and other
details are recorded. This could be supplemented by an information-sharing
mechanism whereby a database of undesirable entities such as bookies and fixers
would be shared with players so that they do not remain in the dark with
respect to suspicious activities. Importantly, players, match officials and
administrators should be kept out of such regulated betting, and they should
continue to be bound by the Board of Control for Cricket in India (BCCI)
and IPL rules. It is important to note here that the BCCI Anti-Corruption Code prohibits participants from soliciting, authorising,
placing, accepting, laying, or otherwise entering into any bet with any person
in relation to the result, progress, conduct or any other aspect of any match
or event. The Code further makes it an offence to ensure “the occurrence of a
particular incident in a match or event, which occurrence is to the
participant’s knowledge the subject of a bet and for which he/she expects to
receive or has received any reward.” As can be seen from the provisions, the
liability is imposed specifically on the participant. This is in line with the
opinion of the Lodha Committee, which has recommended that if betting were to
be legalised, the players should nevertheless be barred from indulging in the
activity so as to prevent any apprehension concerning their integrity. It is
submitted that bringing these reforms in the current uncertain and highly
ambiguous regime would address several surrounding issues, provided all the
stakeholders work in tandem.
Lesson could be
learnt from the state of Nagaland, which recently enacted a law, namely the 2016 Nagaland Prohibition of Gambling and Promotion
and Regulation of Online Games of Skill Act. The said legislation defines “games of skill” as including “all such
games where there is a preponderance of skill over chance, including where the skill relates to
strategising the manner of placing wagers or placing bets, or where the skill
lies in team selection or selection of virtual stocks based on analyses, or
where the skill relates to the manner in which the moves are made, whether
through deployment of physical or mental skill and acumen.” Besides providing
such an inclusive definition, the Act sets out a schedule enlisting certain
activities that shall be regarded as games of skill, such as poker, rummy and
virtual games of cricket and football. All such games shall be regulated by way
of issuance of a license to persons or entities based in India. Upon receiving
the license, such a person or entity is eligible to earn revenue from games of
skill, whether by way of advertising, obtaining a share of winnings or charging
a fee for membership.
Some stakeholders
are advocating for a uniform legislation on betting that would ensure that the
legal position on betting remains the same across all the states. In July 2017,
the All India Gaming Federation along with an advisory panel presented a white paper
to Law Commissioner BS Chauhan, recommending a central legislation regulating
online skill gaming, and that sports betting in general and cricket betting in
particular be recognised as a game of skill. Such a legislation could introduce
a system of checks and balances along the lines of that existing in the UK, for
instance. A proposal has also been moved from the Central Information
Commission in the case of Subhash
Chandra Agrawal v. PIO,
recommending the Government of India to consider moving the subject of sports
from the State List in the Constitution of India to the Concurrent List so as
to ensure a uniform policy regulating sports bodies and national sports
federations such as the BCCI.
CONCLUSION
The international discourse on the issue of
sports betting shows just how inadequate the Indian legal regime is to cater to
the same. Suggestions have been pouring in from all quarters as to how, upon
being legalized, cricket betting could be regulated. These suggestions, along
with international best practices concerning ethics and betting, should be
taken into account by the legislature and the executive to bring in an
appropriate framework to address cricket betting. This, of course, requires the
active participation of all the stakeholders, with the BCCI leading the
way.