Vinesh Phogat awaits CAS decision after Paris Olympics disqualification: What is the Court of Arbitration for Sport?

Vinesh Phogat awaits CAS decision after Paris Olympics disqualification: What is the Court of Arbitration for Sport?

Vinesh Phogat awaits CAS decision after Paris Olympics disqualification: What is the Court of Arbitration for Sport?

The CAS was established in 1984 and is an international body for settling disputes related to sport through arbitration.

Vinesh Phogat was in imperious form as she made her way to the women’s 50kg final at the ongoing Paris Olympics 2024. But Lady Luck had other plans as Phogat narrowly missed the weight retirement by only 100 grams and she was disqualified from the final. Earlier, she had created history when she became the first Indian woman wrestler to qualify for an Olympic final.

Since then, Phogat has appealed to the Court of Arbitration for Sports (CAS) for permission to fight for gold. If it is granted, she has requested to be awarded a joint silver medal. The interim ruling by CAS is expected on Thursday.

The CAS was established in 1984 and is an international body for settling disputes related to sport through arbitration. The CAS headquarters are located in Switzerland and its courts are in New York, Sydney and Lausanne. Temporary courts are also established in current Olympic host cities.

The current CAS president is John Coates, who was appointed in 2011. A dispute can be submitted to the CAS only if an arbitration agreement between both parties specifies recourse to the CAS. Also, all Olympic games dispures can only be submitted to CAS, and all Olympic international federations have recognised the CAs jurisdiction in some disputes.

The CAS was originally conceived by IOC president Juan Antonia Samaranch, to deal with disputes during Olympics. It was created as part of the IOC in 1984. Tthrough agreement with the 2009 World Anti-Doping Code, all signatories, including Olympic international federations and national Olympic committees, have agreed to the jurisdiction o CAS for anti-doping rule violations.

Since 2016, an anti-doping division of CAS judges, who specialise in doping cases at the Olympic games, replaced the IOC disciplinary commission. Also as a Swiss arbitration organisation, decisions of the CAS can be appealed to the Federal Supreme Court of Switzerland.

This article delves into the detailed procedures followed by CAS, elucidating the mechanisms through which it provides fair, expedient, and cost-effective legal remedies.

Origins and Authority

CAS was conceived to address the growing need for a specialized legal authority in sports, recognizing the unique nature and requirements of sport-related disputes. It operates under the authority of the International Council of Arbitration for Sport (ICAS), which was created to oversee the administration and financing of CAS.

Jurisdiction and Types of Cases

CAS has jurisdiction over disputes related to sports through agreements where parties decide to submit their disputes to CAS. This generally covers matters ranging from contractual disputes, eligibility, qualification issues, doping cases, and disciplinary actions against athletes or clubs.

The CAS Procedure

The arbitration process at CAS is divided into several stages:

Filing of an Appeal:

A party seeking arbitration must file a written appeal with the CAS Court Office, outlining the facts of the case, the decision being appealed, and the names of all parties involved.

The appellant must also specify the request for relief or remedy sought, along with the legal arguments supporting their case.

Formation of the Arbitral Panel:

Depending on the case’s complexity and the rules applicable, an arbitral panel consisting of one or three arbitrators is appointed. For a sole arbitrator, the parties may agree on the arbitrator; if no agreement is reached, the president of the relevant CAS division appoints the arbitrator.

For a panel of three arbitrators, each party selects one arbitrator, and the two selected arbitrators or the CAS Division President choose the president of the panel.

Exchange of Submissions:

After the panel is formed, the parties exchange written submissions. The appellant submits a brief detailing their arguments, evidence, and any witness testimony.

The respondent then submits their counterarguments, evidence, and any rebuttal to the appellant’s claims.

Hearing:

A hearing is held where parties can present their case, examine witnesses, and make oral arguments. Hearings are typically held at the CAS headquarters, but they can also occur in other locations as agreed by the parties or determined by the CAS panel.

CAS proceedings are not public, and confidentiality is maintained throughout the process.

Award:

After the hearing, the arbitral panel deliberates and then issues a final and binding award. The panel’s decision is generally reached within a few months from the hearing.

The award includes a written explanation of the panel’s reasoning, the decision on the dispute, and orders concerning costs of the arbitration.

Enforcement:

CAS awards are recognized internationally and can be enforced in over 160 countries under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.

Mediation

Apart from arbitration, CAS also offers mediation services, a non-binding and voluntary process where a CAS mediator assists the parties in negotiating a resolution. If mediation fails, parties can still proceed to arbitration.

Reforms and Criticisms

Over the years, CAS has faced criticism concerning transparency, impartiality, and accessibility. Reforms have been proposed to address these issues, including greater transparency in decisions and processes, ensuring diversity among arbitrators, and providing financial assistance to less wealthy athletes and sporting organizations.

Conclusion

The Court of Arbitration for Sport plays a crucial role in the sports world by providing a specialized, efficient, and neutral ground for resolving sports disputes. As the global sports industry continues to evolve, the processes and procedures of CAS will undoubtedly adapt, striving to balance fairness, accessibility, and efficiency in sports justice.

 

Domestic Violence – Ground Reality Falls Short in Protecting Women

Domestic Violence – Ground Reality Falls Short in Protecting Women

Ground Reality Falls Short in Protecting Women from Domestic Violence: A Closer Look at the Challenges in Implementing the PWDVA

In a recent hearing by the Supreme Court justices B.V. Nagarathna and Nongmeikapam Kotiswar Singh, concerning the implementation of the Protection of Women from Domestic Violence Act, 2005 (PWDVA), a gap between government assertions and the actual effectiveness of these measures has been glaringly evident. Despite assurances given by the Additional Solicitor General Aishwarya Bhati that the infrastructure under ‘Mission Shakti’ was fully operational, practical experiences from the ground paint a significantly different picture.

Our team at the frontline has observed these discrepancies firsthand in three domestic violence complaints managed over the last year. Even after the court’s directives, Protection Officers failed to submit requisite reports within the three-month deadline in all cases. In one instance, a report intended for a particular court was erroneously submitted to another, highlighting systemic disorganization and the perils of overburdening officers.

This situation is exacerbated in districts where only one Protection Officer is appointed to handle the entire region. The duties of these officers are not just administrative but intensely proactive; they are required to conduct on-the-spot surveys, detailed assessments, and ensure the ongoing safety of complainants. These are not tasks that can be rushed or handled superficially without compromising the safety and justice owed to victims.

The figures are stark—about 471,684 cases were still pending as of July 1, 2022, with 21,008 appeals and revision petitions unresolved. The court’s analysis described the situation as “dismal”, observing that many states had appointed insufficient numbers of Protection Officers. Some regions had inappropriately tasked existing officers with additional responsibilities, while others had only one officer per district—a clearly inadequate arrangement given the volume of cases, with some officers overseeing more than 500 cases each.

The Supreme Court’s response has been to mandate a comprehensive reassessment of the PWDVA’s implementation framework. Directives issued on February 24, 2023, include high-level meetings led by the Secretary of the Ministry of Women and Child Development (MWCD), aimed at addressing these inadequacies. The agenda is to review the workload and distribution of Protection Officers across districts and ensure that the staffing and operational protocols of One Stop Centres are adequate.

However, for the victims of domestic violence, these measures are yet to translate into tangible improvements. The delays and administrative hurdles reflect a systemic issue that requires more than just policy adjustments—it needs a proactive, resource-backed approach to safeguard the rights and safety of women across the country.

The court observed: “The nature of responsibilities which each Protection Officer is required to discharge are intensive and not of the kind expected of judicial officers. Protection Officers are required by law to conduct on the spot surveys, inspections, assist the courts by acting as the interface between the victims, police and the judicial process. Their reports, especially for emergency orders are crucial. In these circumstances, it would be necessary that the Union of India takes an intensive look into these aspects.”

Pursuant to this, on February 24, 2023, the court passed certain directions listed below:

1. The Secretary of the Union Ministry of Women and Child Development (MWCD) to convene a meeting with the Principal Secretaries of all States and Union Territories to look into the inadequacy of Protection Officers under the PWDVA. The meeting shall be attended by the Union Finance Secretary, Secretary National Commission for Women, the nominee of the Chairperson National Human Rights Commission, Secretary Union Ministry of Home Affairs, Secretary Social Justice and Empowerment and a nominee of the Chairperson of the NALSA. 

2. The meeting shall be in regards to finding how many cases have been assigned to each Protection Officers, how many courts are required to be looked after each Protection Officers, current strength of Protection Officers in each districts and whether that is adequate to meet needs in that specific area. It sought suggest on requisite guidelines for assessing strength of Protection Officers and directed conducting an empirical study and collate information gathered from States on their experience of implementing PWDVA. 

3. The MWCD to place on record the current status of the implementation of Mission Shakti. Specify information on number of One-stop Centres proposed in each districts, number of One Stop Centre made functional, place where the One Stop will be situated, staffing pattern, requisite manpower and nature of workload, whether hospitals/police station and local bodies are required to mention contact details of One Stop Centres etc. 

4. The Union shall indicate the provisions under the PWDVA in relation to Mission Shakti and how it shall act as an umbrella scheme for the implementation of PWDVA.

As legal practitioners and advocates for gender justice, it’s imperative that we continue to monitor these developments closely and push for a system where the promises of protection and empowerment are not just theoretical but a reliable reality. This involves not only critiquing the shortcomings but also actively participating in the dialogue and implementation processes that aim to rectify these gaps. The fight against domestic violence is complex and multifaceted, and it demands a robust, responsive system that can adapt to the needs of those it intends to protect.

Olympics 2024: DSD & Gender rules in focus & Controversy

Olympics 2024: DSD & Gender rules in focus & Controversy

The presence at the Paris Olympics of two boxers who were disqualified from last year’s world champion­ships has revived the discussion over whether athletes with Differences of Sexual Development (DSD) should compete in women’s competition.

Its not the first time when such controversy took place but because it happened in Olympics stage, it got reactions not only from sports fartenity but also from Head of major Nations including Italy and France. Even USA President contender Donald Trump also entered in this debate. It has Indian connection also, when Indian sprinter Dutee Chand faced the similar row long back. Now she also shared her perspective on the controversy.

“In 2014, I challenged the IOC’s rule that a person with a higher testosterone level should not participate in the Court of Arbitration for Sport in Switzerland. It was noted that hormonal levels cannot increase athletic performance. I suffered a lot at that time. I faced a lot of controversy regarding my gender.” 

Why are they allowed to compete at the Olympics?

The IBA was stripped of its status as the global governing body for boxing by the International Olympic Committee (IOC) in June last year because of its failure to complete reforms on governance, finance and ethical issues.

The IOC is therefore running the boxing competition at the Paris Games, as it did at the Tokyo Olympics, and its rules on the inclusion of athletes with DSDs and gender diversity in the women’s competition apply.

The latest IOC guidelines issued in 2021 state that inclusion should be the default in such cases and that athletes should only be excluded from women’s competition if there are clear fairness or safety issues.

“Federations need to make the rules to make sure that there is fairness but at the same time with the ability for everyone to take part who wants to. That’s a difficult balance,” IOC spokesman Mark Adams said on Tuesday.

“In the end it’s up to the experts for each discipline. They know very well where there is an advantage, and if that is a big advantage then that is clearly not acceptable. But that decision needs to be made at that level.”

Are there any similar cases at the Paris Olympics?

Zambia women’s soccer captain Barbra Banda was ruled out of the 2022 Africa Cup of Nations after failing the Confederation of African Football (CAF) gender eligibility tests.

The 24-year-old did captain her country at last year’s Women’s World Cup and on Sunday scored a hat-trick in the first half of their 6-5 loss to Australia at the Paris Olympics.

FIFA, which organises the Olympic football competition, still uses rules first published in 2011. They state that only men are eligible to play in men’s competitions, and the same for women. FIFA is reviewing its policy but there is no timeline for completion.

What happens in other sports?

South Africa’s double Olympic 800-metres track champion Caster Semenya has unwittingly been at the centre of this issue for more than a decade. Over the past couple of years, the governing bodies of athletics, cycling, swimming and rugby union have been tightening their regulations to exclude those with the advantage of going through male puberty from some or all women’s competition.

Semenya has not been allowed to compete in any distance between 400m and the mile since 2018 unless she maintains lower testosterone levels, which requires medication. She appeared at the European Court of Human Rights (ECHR) in May to continue her challenge against World Athletics. The case is still being considered.

What does the IOC say about boxers?

The IOC has defended its decision to allow the two boxers to compete.

“I would just say that everyone competing in the women’s category is complying with the competition eligibility rules,” IOC spokesman Adams said on Tuesday. “They are women in their passports and it is stated that is the case.”

Conclusion

This ongoing debate highlights the need for sports federations to continually refine their policies to ensure fairness while promoting inclusivity. Balancing these objectives remains a complex task, requiring careful consideration and expertise across disciplines. As the conversation evolves, it is essential to foster an environment where all athletes can compete fairly and with dignity.

 

Legal Implications of Moment Marketing for Non-Sponsors at the Olympics

Legal Implications of Moment Marketing for Non-Sponsors at the Olympics

Moment marketing, which involves leveraging real-time events to promote a brand, becomes particularly potent and controversial during internationally celebrated events like the Olympics. This is especially true when non-sponsor companies attempt to connect with the global audience by associating themselves with high-profile athletes. A prime example is the case of Manu Bhaker, a 22-year-old Indian shooter who became the first Indian to win two medals in a single edition of the Olympic Games at Paris 2024. Following her success, several brands used her image in congratulatory advertisements without authorization, leading to legal actions for infringing the athlete’s personality rights. This analysis delves into the legality of such practices, which often hover between innovative marketing and potential infringement of intellectual property rights and sponsorship agreements.

Understanding Ambush Marketing

The scenario described is a classic case of “ambush marketing,” where companies that are not official sponsors of an event still try to capitalize on its visibility by creating an indirect association. This tactic allows non-sponsors to leverage the event’s extensive reach without the substantial investment required for official sponsorship. The situation involving Manu Bhaker is indicative of how brands can sometimes overstep legal boundaries in their effort to associate with Olympic glory, infringing on the athlete’s personality rights in the process.

Legal Framework and Implications

  • Intellectual Property Rights: Athletes have exclusive rights to their image and likeness. Unauthorized use of an athlete’s photograph, as seen in the Manu Bhaker case, can lead to infringement of these rights, potentially resulting in claims for damages.
  • Olympic Charter and Rules: The International Olympic Committee (IOC) has strict regulations regarding the association of brands with the Olympics, limited to official sponsors. Violations by non-sponsor entities using Olympic imagery or athlete associations, similar to the misuse of Bhaker’s image, could lead to legal actions.
  • Trademark Law: Utilizing any Olympic trademarks or logos, such as the Olympic rings or specific terms like “Olympic” or “2024 Games,” without authorization, could constitute trademark infringement.
  • Risk of False Endorsement: There is a considerable risk that the public might be misled into believing that the athlete or the IOC endorses the non-sponsor brand, which could qualify as false advertising.
  • Personality Rights: Infringing on an athlete’s personality rights by using their image or name without consent not only violates legal statutes but also raises ethical issues regarding respect for the individual’s autonomy and the unauthorized commercial exploitation of their persona.

Jurisdictional Variations

The enforcement of these rules and the legal repercussions can differ significantly across countries. For instance, the United States enforces the Ted Stevens Olympic and Amateur Sports Act, which grants the United States Olympic Committee extensive rights over Olympic-related marketing. In contrast, other nations may rely more on general intellectual property and advertising laws.

Legal Precedents and Regulatory Oversight

The IOC has actively pursued legal action against non-sponsors who breach its marketing protocols. Moreover, regulatory bodies like the Advertising Standards Council of India (ASCI) play a significant role in enforcing guidelines to prevent brands from leveraging athletes’ victories without proper authorization. The ASCI’s code specifies that advertisements must not contain references to any person, firm, or institution without explicit permission, highlighting the importance of adhering to ethical advertising standards, as demonstrated in the cases involving Manu Bhaker and PV Sindhu.

Ethical and Strategic Considerations

While navigating legal boundaries is crucial, the ethical implications of using an athlete’s success for promotional purposes without consent should also be considered. Furthermore, the potential negative publicity from perceived ambush marketing might outweigh the immediate benefits of such exposure.

Conclusion

The boundary between creative marketing and legal overreach is exceedingly narrow when non-sponsor brands congratulate Olympic athletes through advertisements. Brands must carefully balance their marketing strategies with legal and ethical considerations, and consulting with legal experts before launching such campaigns is strongly recommended to mitigate risks of infringement and avoid potential backlash. The case of Manu Bhaker at the Paris 2024 Olympics serves as a poignant example of the complexities involved in moment marketing within the context of the world’s most prestigious sporting event, particularly concerning the infringement of the athlete’s personality rights.

Tax Cut for Foreign Companies will benefit only a few!!

Tax Cut for Foreign Companies will benefit only a few!!

The Indian government’s recent budget proposal to lower the corporate tax rate for Foreign Companies from 40% to 35% aims to enhance the country’s attractiveness as an investment destination. This initiative, articulated by Finance Minister Nirmala Sitharaman on July 23, targets primarily foreign enterprises operating in sectors such as infrastructure, Engineering, Procurement, and Construction (EPC). Here, we critically examine the implications, benefits, and potential drawbacks of this significant fiscal measure.

Advantages of the Tax Cut

  1. Enhanced Foreign Investment: The tax reduction is designed to make India a more appealing destination for foreign investors by aligning its tax rates with global norms. This could particularly boost sectors critical for economic development and diversification, such as infrastructure and technology.
  2. Increased Competitiveness: By lowering tax rates, India aims to enhance the competitiveness of foreign companies within its borders. This move is expected to attract significant multinational presence, fostering technology transfer and global best practices.
  3. Economic Growth Stimulus: Foreign direct investment (FDI) is a crucial driver of economic growth. Reducing the cost of doing business for these entities can lead to increased capital inflows, which would stimulate growth and employment across various economic sectors.

Limitations of the Tax Cut

  1. Fiscal Implications: A reduction in tax rates might lead to a significant decrease in tax revenue, which could impact the government’s capacity to fund essential services and infrastructural projects unless managed with fiscal prudence.
  2. Limited Scope of Impact: According to industry experts, the tax reduction may benefit only a select few companies. Large multinational corporations with fully established subsidiary structures in India, registered as regular companies with the Ministry of Corporate Affairs (MCA), are unlikely to be affected as they are already taxed at rates comparable to domestic firms.
  3. Risk of Tax Base Erosion: There is a concern that while the policy aims to attract foreign companies, it could also lead to profit shifting and tax base erosion, particularly if multinational corporations leverage the lower tax rates without significantly contributing to the local economy.

Detailed Analysis of Budget Proposal Elements

The recent budget adjustments also include scrapping taxation for foreign-operated cruise ships and revising safe harbor rates for foreign mining companies dealing in raw diamonds. These changes are set to further boost India’s appeal as a prime investment location. Moreover, the expansion of safe harbor provisions is expected to reduce the administrative burden on audits, assessments, and disputes, thus enhancing predictability for MNCs.

Currently, foreign companies face two distinct tax scenarios—those with a Permanent Establishment (PE) are taxed at 40%, while those without are taxed at 25%. This tax disparity has historically discouraged companies from registering as a PE. The recent budget proposal aims to narrow this gap to 10%, encouraging more foreign entities to establish a PE in India. Legal experts suggest that relaxing other compliance requirements for PEs could further incentivize this shift.

Way Forward

  1. Balanced Growth and Regulatory Improvements: Policies should aim to ensure inclusive growth and benefit a broad segment of the economy. Enhancing support for SMEs and investing in workforce skills are crucial. Additionally, streamlining regulatory processes and strengthening legal frameworks will be key to protecting investments and maintaining a conducive business environment.
  2. Monitoring and Continuous Assessment: The government should implement robust mechanisms to monitor the impacts of the tax reduction on the economy, including investment patterns and job creation. Regular assessments will help tweak policies to ensure they continue to serve the national interest effectively.

Conclusion

Our Partner, Rahul Dahiya Summerise the impact: “Foreign companies operating in infrastructure and Engineering, Procurement, and Construction (EPC) space will be the principal beneficiaries. The move is unlikely to have a bearing on large multi national companies, which have full-fledged operations in India through a subsidiary structure. All the large MNCs have their Indian arm registered as with Ministry of Corporate Affairs (MCA) as regular companies and currently they are taxed on par with other domestic companies. The tax rate cut for foreign companies will directly benefit the foreign company having branch offices. Operation of business through branch offices / project office is quite a standard operating procedure for exploration companies and companies undertaking EPC contracts in India. The proposal aims to encourage more foreign companies to take up permanent establishment in India.”

The proposed reduction in the corporate tax rate for foreign companies represents a strategic shift aimed at fostering a more conducive business environment in India. While it holds substantial potential for driving economic benefits, it must be managed carefully to avoid any adverse fiscal or economic consequences. A balanced approach, coupled with strategic regulatory improvements, will be essential to ensure that this initiative achieves its intended goals without unintended consequences.

Decoding the New Labor Codes

Decoding the New Labor Codes

The introduction of four new labor codes by the Indian government marks a significant transformation in the nation’s legal framework governing labor and employment. This reform consolidates 29 existing laws into four streamlined codes, reflecting the dynamic changes of the modern workplace and designed to bolster the rapidly evolving industrial environment of India. Here’s a detailed breakdown of each labor code, aimed to assist HR managers and general counsels in understanding and navigating these extensive changes.

Introduction to the New Labor Codes

The new labor codes introduced are:

  1. The Code on Wages, 2019
  2. The Industrial Relations Code, 2020
  3. The Social Security Code, 2020
  4. The Occupational Safety, Health, and Working Conditions Code, 2020

These codes have been designed to simplify the complex regulatory maze that previously governed labor in India, creating a more coherent and streamlined legal framework. They aim to enhance labor rights and create a more equitable working environment conducive to the modern workforce’s needs.

Impact on Employee Contracts and Work Conditions

Flexibility in Hiring and Firing: The Industrial Relations Code has revised the threshold for requiring government permission for layoffs and firings, increasing it from 100 to 300 employees. This amendment aims to provide employers with greater operational flexibility and agility. However, it raises potential concerns about job security for employees, necessitating careful management by HR departments to uphold workforce morale and trust.

Contract Labor: The new codes seek to integrate informal workers, including contract workers and freelancers, more thoroughly into the formal economy. This integration involves providing legal protections and benefits that were not previously mandated, which helps in safeguarding the interests of historically unprotected workers.

Wage Structures and Fair Compensation

Minimum Wages: The Code on Wages introduces a universal minimum wage applicable across all industries, which is expected to uplift the wage standards in lower-paid and unorganized sectors. This standardization ensures that no worker is compensated below a specified minimum, promoting economic justice and helping reduce wage inequality.

Equal Pay for Equal Work: This principle is vigorously reinforced, aiming to eliminate gender-based pay disparities and ensure fair compensation based on roles and responsibilities, regardless of gender or any other unrelated factors.

Improving Working Conditions

Health and Safety Regulations: The Occupational Safety, Health, and Working Conditions Code mandates stricter safety protocols across all sectors, particularly focusing on industries like manufacturing and construction that are susceptible to higher risks and occupational hazards.

Reduced Working Hours and Enhanced Leave: Proposals to reduce working hours and enhance leave policies are also part of the new codes, aimed at improving work-life balance and ensuring employees are not overworked, thereby contributing to better overall health and productivity.

Industrial Relations and Union Activities

Collective Bargaining: Although the new codes extend the required notice period for strikes, potentially weakening the immediate impact of such actions, they simultaneously streamline the process for union recognition and collective bargaining. This is intended to facilitate smoother and more effective negotiations between employers and unions.

Dispute Resolution: New mechanisms for faster dispute resolution introduced under the new codes could lead to quicker settlements of disputes and smoother industrial relations overall.

Social Security Expansion

Inclusion of Gig and Informal Workers: A particularly progressive aspect of the Social Security Code is the inclusion of gig workers and informal sector employees, who will now have access to benefits such as health insurance, maternity benefits, and more, previously limited to traditional employment settings.

Challenges and Opportunities

Implementation Challenges: The sweeping nature of these reforms presents significant implementation challenges. Businesses must adapt their practices and systems to comply with the new regulations without incurring prohibitive costs.

Balancing Flexibility with Security: A critical challenge will be balancing the increased flexibility the codes offer employers with the need to ensure security and fair treatment for employees. It is crucial that the shift towards flexible employment does not lead to precarious work conditions.

Conclusion

The introduction of these new labor codes represents a pivotal shift towards a more flexible, fair, and modern labor market in India. The success of these reforms will hinge on their effective implementation and the ability of employers, employees, and the government to adapt to these changes. Continuous engagement and open dialogue will be essential in overcoming implementation challenges and realizing the intended benefits of these reforms.