by Tanvi Agarwal

 Introduction

The growth and commercialisation of sports has been a complex journey in India. In the dynamic realm of sports, a multitude of individuals contribute to the industry’s vibrancy. These include a wide array of stakeholders with varying interests: from a club owner, sporting bodies to the individual interests of these sportspersons.  This diverse array of roles has engendered a complex hierarchy within the sports domain, influencing decision-making processes and the bargaining power of individuals. So, while the sportsperson garners the spotlight in the game, there exists a prominent wage disparity amongst the different genders, further sub-categorising them in hierarchy.[1] This can be illustrated by analysing the payment structure of cricketers where while they are categorised into different grades as per their performance levels, the lowest-graded male cricketer continues to earn twice what the topmost-graded female cricketer earns.[2] This is marked by a lack of any central legislation to fill in the wage disparity and ensure accountability. The Code on Wages, 2019 (‘Code’) in this regard becomes pertinent to our discussion as it rests at the centre of all the legislations dealing with wages in India. With the recent conclusion of the International Cricket Council’s Men World Cup that witnessed mega publicity and multi-dollar investments into advertising and promotions being rendered, it raised a question in one’s mind: whether women’s cricket could also ever see a tournament of this scale being organised for them and if they could garner the same support, wages and benefits at par with their male colleagues.

Part II of this blog delves into the question of whether a  sportsperson can be regulated under the Code by being categorised as an ‘employee’. Part III with the aim of understanding the wage disparity, analyses the provisions which ensure equal pay for equal work in light of how it has evolved from the previous definition under the Equal Remuneration Act, 1976 (‘ERA’). It critiques the Code and points out the loopholes in the same.

Sportspersons As Employees?

§2(k) of the Code defines ‘employee’, which has been given a broader scope to include managerial and administrative functions under its ambit.[3] To assess the applicability of the Code to sportspersons, it has to be determined if they fall within the ambit of being an ‘employee’. This has to be done by analysing how the term ‘employee’ has been interpreted in labour law to establish the employer-employee relationship between different entities. Further, this application of labour law in sports can help eradicating the power imbalance between the various stakeholders and ensure better protection of the rights of the sportspersons. In furtherance of this, it is essential to understand the complex relationship of the sportsperson with different stakeholders and these organizations from a labour law perspective

To determine whether a person can be categorized as an ‘employee’ and the contract is of service, the courts have adopted several tests like the ‘direction and control test’[4], ‘integrality test’[5] and the ‘economic reality test’.[6] In the landmark case of Sushilaben Indravadan Gandhi v. The New India Assurance Company Limited, the Supreme Court (‘SC’) held that there was no universal test to be applied to determine the employer-employee relationship.[7] Rather, to construe whether the contract was of service, a conglomeration of all the tests had to be applied to the given fact situation to yield the result.[8] The court had to undertake a balancing act weighing all the relevant factors[9] and this balance would slightly bend towards a broader interpretation of the definition in case of a beneficial legislation.[10]

Analysing the law in light of the contracts of cricketers reflects that the Board of Control for Cricket in India (‘BCCI’), the national governing body for cricket, exercises control and supervision over the player’s training, performance and schedule while the cricketers are paid a fixed salary or match fees for their services. Furthermore, the Code being a beneficial legislation mandates a broader interpretation of the term ‘employee’, thereby including sportspersons within its ambit.

The Code of Wages, 2019

The Code was one of the four labour codes to be adopted by India. It replaced different laws like the Payment of Wages Act, 1936, Minimum Wages Act, 1948, Payment of Bonus Act, 1965 and ERA to allow for a unified legislation.[11] It covers equal pay for equal work for all genders without any discrimination.[12] This equal pay is given for “same work or work of similar nature”, which is defined in a similar manner to the definition under §2(h) of the ERA.[13] The following sub-sections discuss whether the Code missed out on an opportunity of rectifying the flaws inherent in the definition under the ERA and whether any changes made to definition opens a pandora’s box for sportspersons.

A.    Revamping the Equal Remuneration Act: A Missed Opportunity?

One significant progress made by the Code is that it broke the binary of restricting equal pay between men and women in the ERA to all genders.[14] This has extended the protection offered under the Code to other oppressed genders including transgender sportspersons.

While this is a welcomed change, the Code has roughly replicated the flaws of the ERA by not amending the provision requiring equal wages for performing “same work or work of similar nature.”[15] The courts have relentlessly narrowly interpreted this provision to provide equal wages only when there is extreme proximity in similarity between the type of work.[16] For example, a successful claim that stemmed under this provision was in M/s Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa where the SC granted equal pay on the premise that the female stenographers were discharging the same duties as the male stenographers.[17] Arguably, here, equal pay was granted as the work performed was the same.[18] However, this may not extend to situations where different work is performed even when the value is the same. To allow this would require a more radical comparative approach by the court where it would be required to: first, understand that certain positions are naturally more male or female dominated due to the expectations and role attribution to the different genders in a patriarchal society and second, both the work might end up requiring same amount of skill, effort and responsibility.

In the world of sports, certain sports like netball or gymnastics are prominently dominated by women, whereas cricket or football have been traditionally associated with men.[19] There exists a huge disparity between the wages earned by the topmost women gymnast and the best performing male cricketer,[20] even when it can be reasonably argued that the skill sets acquired by both are on similar lines.

B.    Experience As A Criteria In Determining Equal Pay

Another significant change in the Code is that it has added ‘experience’ as a component in determining the scope of “same work or work of similar nature.”[21] The Standing Committee’s rationale for the inclusion of such a component was to acknowledge the productivity of the workers and ensure an incremental increase in the wages on lines of their experience apart from earning a fixed entry-level wage.[22] However, what constitutes ‘experience’ and how to evaluate it has not been defined in the Code or the Draft Rules. This makes it a matter of subjective assessment by the judiciary, raising a plethora of questions.

Firstly, it becomes important to examine the possibility of whether ‘experience’ could open a gateway for the judiciary to categorise it as a factor other than sex to deny payment of equal wages. It becomes prominent in the sporting arena where it can be argued that the experiences of women and men can differ significantly on account of their respective leagues attracting differential brand endorsements, sponsorships or audience. However, this argument fails as §16 of the ERA which allowed unequal payment of wages on a factor other than sex has not been incorporated in the Code.[23] Moreover, cases like Air India v. Nergesh Meerza where equal pay was denied on grounds of classification between different classes of employees has been held as bad law as it discriminated on arbitrary grounds.[24] Therefore, it is not viable for the judiciary to proceed on the path of denying equal pay on arbitrary grounds of ‘experience’.

Secondly, another major argument put forth against equal pay is that women’s team in sports may end up playing less than their male counterparts.[25] This directly links to their lessened ‘experience’ or exposure to the game making them susceptible to a lower wage. However, this must be analyzed in the broader context of how less exposure is a reflection of under-representation and under-funding of women’s game.[26] To overcome this in the broader historical context of the patriarchal society, it is essential to incorporate principles of equity and provide all genders with equal wages.

Conclusion

In the intricate tapestry of India’s sports industry, the glaring wage disparity among genders, vividly illustrated in the payment structure of sportspersons, has remained a stark challenge. The inclusion of sportsperson under the Code could be the first step in regulating their rights by placing them under the ambit of a central legislation. However, the narrow interpretation of “same work or work of similar nature” provision perpetuates inequality.[27] This raises the question of whether there should be remodelling of the provision on lines of it ensuring equal pay for work of equal value.

Moreover, while the Code extends equal pay protections to all genders, the lack of clarity on factors like ‘experience’ opens room for subjective assessments, potentially perpetuating biases. In sports, where female athletes often face unequal exposure and funding, considering ‘experience’ as a basis for unequal pay further entrenches discriminatory practices.

To bridge this gap, there’s a need for broader societal changes, more progressive legal interpretations, and proactive steps from sports-governing bodies. Implementing inclusive policies, advocating for equal funding and exposure for women’s sports, and redefining the criteria for evaluating ‘experience’ are crucial steps toward achieving true wage equality in the vibrant yet unequal world of Indian sports.

The author, Tanvi Agarwal, is an undergraduate student at the West Bengal University of Juridical Sciences (WBNUJS), Kolkata.

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[1] H. Hamzah, Equal Pay for Equal Work: Labour, Sports and Constitutional Perspective, 1, (July 10, 2020), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3629148 (Last visited October 9, 2023).

[2] The sports law and policy centre, An equal hue: The way forward for women in blue, 61, (July 27, 2020), available at https://drive.google.com/file/d/12zl82boyotBUK-_MvzSP3icpNtvWvjKx/view (Last visited October 9, 2023).

[3] The Wages Code, 2019, §2(k).

[4] Shivnandan Sharma v. Punjab National Bank, 1955 AIR 404.

[5] Dharangadhara Chemical Works v. Management, AIR 1958 SC 264

[6] Hussain Bhai v. Alath Factory Employees Union, 1978 4 SCC 257.

[7] Sushilaben Indravadan Gandhi v. The New India Assurance Company Limited, AIR 2020 SC 1977, ¶69.

[8] Id.

[9] Id.,¶24.

[10] Id.,¶25.

[11] Nivedita Jayaram, Protection of Workers’ Wages in India: An Analysis of the Labour Code on Wages, 2019, 54(49) EPW 2 (2019).

[12] Manisha Marandi, Equal pay for equal work in India: An analysis of gender pay parity from constitutional perspective (July 15, 2021) (unpublished LLM dissertation, Alliance University).

[13] Standing Committee on Labour, Textiles and Skill Development, Sixteenth Lok Sabha, Report on the Code on Wages Bill, 2017, Forty-third report (December 18, 2018).

[14] The Wages Code, 2019, §3.

[15] The Wages Code, 2019, §2(v).

[16] Randhir Singh v. Union of India, AIR 1982 SC 879; Rishika Sahgal, Equal pay for equal work? Flaws in the Indian Law, December 8, 2019, available at https://ohrh.law.ox.ac.uk/equal-pay-for-equal-work-flaws-in-the-indian-law/ (Last visited on October 9, 2023).

[17] M/s Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa, AIR 1987 SC 1261.

[18] Tarun Jain, Equal Pay for Equal Work, 6(4) ICFAI University Journal of Employment Law 10 (2008).

[19] M.A Ávalos-Ramos & L. Vega-Ramírez, Gender Differences in the Level of Achievement of Gymnastic and Acrobatic Skills, 17(19) Int J Environ Res Public Health 7216.

[20] Board of Control for Cricket in India, https://www.bcci.tv/ (Last visited on November 24, 2023); Gymnastics Federation of Inida, https://gymfedindia.com/ (Last visited on November 24, 2023).

[21] The Wages Code, 2019, §2(v).

[22] See supra note 12.

[23] Anoushka Anand, Equal remuneration for equal value of work: A step towards economic equality?, November 12, 2021, available at https://jindalforinteconlaws.in/2021/11/12/equal-remuneration-for-equal-value-economic-equality-anoushka-anand/ (Last visited October 9, 2023).

[24] Air India v. Nergesh Meerza, 1981 (4) SCC 335; Vishnu Narayan, Case Comment: Air India v. Nergesh Meerza, 2(2) JLRJS 101 (2018).

[25] See supra note 1.

[26] Main LC et al., Women in sport: Challenges and solutions in India, 2(1) IJSEHR 81-82 (2018).

[27] The Wages Code, 2019, §2(v).