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Taming of the megalomaniac institution: perspectives on regulating the unbridled powers of the BCCI

Abstract

The boisterous emotion associated with the game of Inches, i.e., Cricket has given this ‘mere’ sport, the dimension of worship, faith, religion and a status of idolism of players. The negatives or the positives of worshipping a sport or escalating it to a status comparable to that of immortal gods, is a continual argument that shall always remain on the brink of the line of abstruseness. Yet, politicising the sport to earn commercial and economic benefits by exploiting the emotions associated with the sport falls on which side of the line remains ambiguous The infamous case of Surinder Singh Barmi, where severe accusations were levelled against BCCI, showed the roller-coaster ride of manipulation of emotions. The author in the paper will focus on the structure of Cricket in India and the uncontested power derived by BCCI. The author will further expound on the revenue generation of BCCI which has made BCCI invincible. The author will also illustrate the power of BCCI by reflecting on the competition law concerns it modelled over the years, making it unassailable. The author contends that, despite the ostensible and anti-competitive nature of its powers, the competition law remedy against the BCCI falls short in checking the varied variety of rights associated with the Game of Cricket in India. BCCI needs to be subjected to a more comprehensive power checking mechanism. The paper shall argue that BCCI should be considered a State under the Indian Constitution and should fall under the domain of Right to information to bring in more transparency in its functioning.

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Fig. 1

Source: Data www.cricinfo.org

Notes

  1. Khondker (2014).

  2. Brightman (2009).

  3. Guha (2007).

  4. Mukharji (2005).

  5. Guha (2002a).

  6. Brightman (2009).

  7. Ibid.

  8. Guha (2002b).

  9. Appadurai (1996).

  10. http://www.ipcs.org/pdf_file/issue/560458831IPCS-ResearchPaper9-EmilyCrick.pdf

  11. Bateman (2012).

  12. Lin (2006).

  13. Crick (2006).

  14. Ibid, 14

  15. Dr. M. Suresh Benjamin and Sanu Rani Paul, ‘Legal Status Of Bcci As Instrumentality Of State Under Article 12 Of The Indian Constitution’ (2013) NALSAR Law Review. http://www.commonlii.org/in/journals/NALSARLawRw/2013/6.pdf

  16. “An authority necessarily need not be a creature of the statute. The powers enjoyed and duties attached to the Board need not directly flow from a statute. The Board may not be subjected to a statutory control or enjoy any statutory power but the source of power exercised by them may be traced to the legislative entries and if the rules and regulations evolved by it are akin thereto, its actions would be State actions. For the said purpose, what is necessary is to find out as to whether by reason of its nature of activities, the functions of the Board are public functions.” Zee Telefilms Ltd. and another Vs. UOI (2005) 4 SCC 649, per S.B. Sinha, J., dissenting);

    The Union of India has tried to make out a case that the Board discharges these functions because of the de facto recognition granted by it to the Board under the guidelines framed by it, but the Board has denied the same. In this regard we must hold that the Union of India has failed to prove that there is any recognition by the Union of India under the guidelines framed by it, and that the Board is discharging these functions on its own as an autonomous body. < Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649: 2005 SCC OnLine SC 213, 680>

  17. Dhanuraj and Kumar (2015)

  18. Ibid at 12.

  19. BCCI Annual Report 2015-2016 http://relaunch-live.s3.amazonaws.com/cms/documents/57e2b1eeee9dd-BCCI%20Annual%20Report%202015-16_FOR%20BCCI%20WEBSITE_FINAL.pdf

  20. Devendra Pandey and Malyaban Ghosh BCCI profit soars a whopping 928% to Rs 1,714 cr; all you want to know (Financial Express, 2016). http://www.financialexpress.com/sports/bcci-profit-soars-a-whopping-928-to-rs-1714-cr-all-you-want-to-know/381498//

  21. Zee Telefilms Ltd. and another Vs. UOI (2005) 4 SCC 649

  22. Ibid; “The Parliament and the State Legislatures chose not to enact a legislation to govern the sport of cricket reflecting tacit recognition on the issue afforded to BCCI. Recently, the Apex Court reaffirmed that BCCI is the “approved” national level body holding virtually monopoly rights to organize cricketing events in the country. https://lawcommissionofindia.nic.in/reports/Report275.pdf

  23. BCCI website. www.bcci.tv

  24. Shri Om Prakash Kashiram V PIO M/o Ministry of youth affairs and sportsv, BCCI in File No. qC/LS/A/2071/001382: the questions raised were whether the BCCI had an authority in selecting a team to represent India in cricket. It is neither recognised by Ministry of Youth Affairs and Sports nor is a public authority under RTI

  25. Lodha committee was formed to reform the BCCI following charges of large-scale maladministration in the cash-rich cricket body. : the power of SC to appoint Lodha Committee was derived from the fact that functions performed by BCCI had the element of public function attached and the act of BCCI had implications on various actors in the society making it accountable to the public.

  26. BCCI Rules and Regulations https://www.bcci.tv/about/rules-and-regulationss Bylaw Number 5: VOTE, ANNUAL SUBSCRIPTION, ACCOUNTS OF TOURNAMENTS

  27. Report Of The SC Committee On Reforms In Cricket (2015) https://gujaratcricketassociation.com/wp-content/uploads/2020/01/Lodha_Committee_Report.pdf Page 19.

  28. Chander Mohan Khanna v. National Council of Educational Research and Training, 1992 AIR 76, 154; Som Prakash Rekhi v. Union of India 1981 AIR 212, 155 the Court stated: 1. The Board is not created by a statute 2. No part of share capital of the Board is held by the Government. 3. Practically no financial assistance is given by the Government to meet the whole or entire expenditure of the Board. 4. The Board does enjoy a monopoly status in the field of cricket but such status is not State-conferred or State-protected. 5. There is no existence of a deep and pervasive State control. All functions of the Board are not public functions nor are they closely related to governmental functions. 6. The Board is not created by the transfer of a government-owned corporation. It is an autonomous body; Practically no financial assistance is given by the Government to meet the whole or entire expenditure of the Board. < Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649 : 2005 SCC OnLine SC 213, para 23

  29. Bateman (2012).

  30. Ibid at 49.

  31. Gupta (2009).

  32. The Great Indian Willow Trick: Cricket, Nationalism and India’s TV News Revolution, 1998–2005’ (September 2007) International journal of the History of Sport Vol. 24, No. 2005 Nalin Mehta, 1187–1199.

  33. Ibid at 51.

  34. Ibid at 50.

  35. The escalating value of television rights for Indian cricket (home matches of the national team). Years Broadcaster Value (US$ million) 1995–1999 ESPN-STAR Sports 30 1999–2005a Prasar Bharati 54 2006–2010 Nimbus Communications 612 2010–2014b Nimbus Communications 436 2012–2018 STAR India (STAR Sports) 750. Haigh (2011), Sharma (2011) and Emmett (2012). a The original deal was scheduled to last until 2004, but was extended by 1year due to an ongoing legal dispute between Zee TV, STAR and the BCCI over the award of the next rights package. This deal was terminated by the BCCI in December 2011 following alleged non-payment by Nimbus Communications. (Smith 71 Sinha, 2012).

  36. It increased the reach of cricket and eventually the viewership and hence greater money in terms of TRP.

  37. Article 246, Seventh Schedule, State List; List II https://www.mea.gov.in/Images/pdf1/S7.pdf.

  38. Om Prakash Kashiram V PIO M/o Ministry of youth affairs and sports

  39. Lord Woolf and PricewaterhouseCoopers LLP, ‘An independent governance review of the International Cricket Council’(2012) International Cricket Council: “Full Members receive financial distributions as a result of ICC events. Of the surplus revenue, 75% is distributed to Full Members equally (7.5% each). In the past ICC events were not so well commercially promoted. However, over the course of recent World Cup history, the income has exponentially risen. This funding plays a pivotal role in creating what is in practice a ‘closed shop’ as to who is entitled to Full Membership. It may be no coincidence that since the significant increase in revenues from commercial rights relating to the ICC events, no new Full Member has been admitted.” Page 26. However, this model was discontinued due to the resistance of BCCI, since BCCI gets 75% of the revenue for the parent body and therefore they demanded a greater share of revenue vis a vis other full time members. https://www.firstpost.com/sports/bcci-seeks-greater-share-of-icc-revenues-1262433.html.

  40. Kohli (2011).

  41. https://www.thehindubusinessline.com/news/sports/bcci-to-get-405-million-from-icc/article9733351.ece; 'BCCI highest earner from ICC’s new revenue share model despite snub’, 28th Apr, 2017 https://www.hindustantimes.com/cricket/bcci-highest-earner-from-icc-s-new-revenue-share-model-despite-snub/story-XjL0RCp5eboTlbEK0kWR2M.html.

  42. “There are unsubstantiated estimates that India generates between 60 and 80% of revenues flowing into global cricket. India also has a significant impact on the ICC’s Commercial Revenue, as almost all of the ICC’s major commercial partners have significant links with India”. Ibid at 41.

  43. Id.

  44. “Cricket matches featuring the Indian national team fetched the highest broadcast revenues in the world. Although it was not clear what audiences the IPL might obtain, Modi knew that ODIs in India fetched the BCCI approximately $7.5 million per game”. http://www.columbia.edu/~rk35/IPL.pdf.

  45. http://p.imgci.com/db/DOWNLOAD/0000/0093/woolfe_report.pdf Ibid.

  46. id. There are differences between the financial strength of Member Boards brought about by the respective value of commercial rights in countries such as India, England and, to a lesser extent, Australia and South Africa; There is insufficient information currently available to the ICC over the respective financial strength of the individual Full Members and there are no specific obligations on Full Members to disclose such details.

  47. Smith (2016).

  48. Hutton (2008).

  49. The ICC Future Tours Programme (FTP) is a schedule of international cricket tours which structure the programme of cricket for ICC’s full members with teams playing bilateral cricket home and away and organised by the host. https://www.icc-cricket.com/news/299451.

  50. Ibid.

  51. Ibid, 6.

  52. Ibid, 8.

  53. Ibid.

  54. Ibid.

  55. Tyrast (1998).

  56. Ibid at 40.

  57. ibid.

  58. ibid.

  59. ibid.

  60. Viswanath (2017).

  61. Malvania (2018).

  62. Kadapa (2013).

  63. Munchandi (2009).

  64. ibid.

  65. 'Brand IPL comes under a cloud' 21st Jan, 2013 https://www.business-standard.com/article/management/brand-ipl-comes-under-a-cloud-112060100537_1.html; 'IPL brand value falls for first time in 6 years: Report' 10th Mar, 2021 https://timesofindia.indiatimes.com/sports/cricket/ipl/top-stories/ipl-brand-value-falls-for-first-time-in-6-years-report/articleshow/81432650.cms.

  66. Ibid.

  67. Ibid at 41.

  68. The Indian Cricket League, ‘Everything you want to know about the ICL,’ Cricinfo, http://www.espncricinfo.com/icl/content/story/310677.html.

  69. ‘Kapil to lead executive board of IPL’ Hindustan Times (28 May, 2017).

  70. Rahul Rishi & Kumar Raj, ‘The IPL-ICL Spat: Time to revisit through the Lenses of Anti-trust Law’, (2008)20(2) Sri Lanka JIL 81 https://heinonline.org/HOL/LandingPage?handle=hein.journals/sljinl20&div=19&id=&page=.

  71. Before The Disciplinary Committee Of The Bcci, ‘WITNESS STATEMENT OF MR. LALIT KUMAR MODI’1, 160-169 http://www.lalitmodi.com/tiny_mce/images/south_africa/Enclosure_2_Lalit_Modi_-Statement.Pdf.

  72. Ashish Agarwal, Should the SC dissolve BCCI? Livemint (3 https://www.livemint.com/Consumer/YhgitTPXO7BYwMiOCrwixK/Should-the-Supreme-Court-dissolve-BCCI.html; https://www.livemint.com/Consumer/YhgitTPXO7BYwMiOCrwixK/Should-the-Supreme-Court-dissolve-BCCI.html; See “, 2015; CENTRAL INFORMATION COMMISSION File No. CIC/LS/C/2012/000714 Right to Information Act 2005- Section 18“ Hence, there is an umbilical cord between the BCCI and its Member State Associations like the Respondent DDCA as all the stadia across the length and breadth of India including Ferozshah Kotla Ground in Delhi is leased out to the various Member State Associations of BCCI such as to the Respondent DDCA for Delhi. No revenue whatsoever would be earned by either the BCCI or the DDCA, etc in the absence of these cricket grounds situated in prime localities made available to them by various local State Governments and that too at a pittance of a lease amount instead of the prevailing market rate.” Mr Subhash Chandra Agrawal v. Ministry Of Youth Affairs & Sports 2012] CIC/LS/C/000714.

  73. ‘Life https://www.news18.com/cricketnext/news/life-ban -for -players -joining ICL: BCCI’ News18 (3 Augus2007)-icl-bcci-541104.html.

  74. See BCCI was the sole regulator and a de facto monopoly for organizing Cricket in India and hence was the only body present in the upstream market of managing Cricket in India. Surinder Singh Barmi vs BCCI [2013] CCI Case No. 61 of 2010.

  75. BCCI was also present in the downstream market as it organized various leagues and trophies Ibid.

  76. Ibid.

  77. Ibid.

  78. Ibid.

  79. Ibid, 21.

  80. See For these purposes, “Member” means any member board recognized as such by the ICC from time to time. Ibid at 74.…. http://www.cci.gov.in/sites/default/files/61%20of%202010.pdf.

  81. Section 32.3 In determining whether or not to grant approval for a match under section 32.1, Members shall act in accordance with their obligations as custodians of the sport, and shall comply with all applicable laws relating to the proper exercise of regulatory powers by a sport’s governing body. The ICC Executive Board shall do the same in determining whether or not to issue a Disapproval Notice under section 32.2.

  82. Explanatory note to section 32.3: Subject to applicable laws, the following (non-exhaustive) list of factors can be considered relevant to a Member’s determination of whether or not to approve a match: c. The extent to which the match/event will have any meaningful role in the promotion and development of the sport, or any other charitable or benevolent purpose.

  83. 32.4 A Member shall, to the greatest extent permitted by applicable law (as determined in the reasonable opinion of the Member): 32.4.1 not participate in any way in any form of Disapproved Cricket; 32.4.2 not release or permit any players, match officials, coaching or management staff contracted to the Member to participate in any way in any form of Disapproved Cricket; 32.4.3 prohibit the participation by organisations and individuals under its jurisdiction in any form of Disapproved Cricket; http://icc-live.s3.amazonaws.com/cms/media/about_docs/518a6c6bd8c6eRegulations%20for%20Approved_Disapproved%20Cricket%20and%20Domestic%20Cricket%20Events.pdf.

  84. No member or a Club affiliated to a member or any other organization shall conduct or organize any tournament or any matches in which players from region outside their jurisdiction are participating or are likely to participate without the previous permission of the Board.

    Permission for conducting or organizing any matches will be accorded only to the members of the Board and will be in accordance with the rules framed by the Board. http://icc-live.s3.amazonaws.com/cms/media/about_docs/518a6c6bd8c6e-Regulations%20for%20Approved_Disapproved%20Cricket%20and%20Domestic%20Cricket%20Events.pdf

  85. Private Organizations shall not be allowed to organize an International match in which foreign players are participating. If at all such a match is to be staged, then it should be exclusively by the affiliated member which recommends the proposal and within whose jurisdiction the matches will be staged.

    BCCI, Memorandum of Association (15 September 2012) 1, 47.

    https://relaunchlive.s3.amazonaws.com/cms/documents/BCCI%20Rules%20and%20Regulations.pdf

  86. In Radiant burners case, the denial of seal of approval which was controlled solely by AGA and was necessary to compete in the downstream market was considered as an essential input and hence was in violation of competition law, Radiant Burners V. Peoples Gas Co. 364 U.S. 656 (1961). Analogously, BCCI was the sole regulator of cricket in India in the upstream market and therefore had the sole authority to authorize ICL to organize cricket in the downstream market. the lack of approval by BCCI to ICL which was an essential input to ICL in the downstream market was denied and therefore should be considered in violation of competition law.

  87. Section 4(2)(c) ICA, 2002; Section 4. (1) No enterprise or group shall abuse its dominant position.](2) There shall be an abuse of dominant position 4 [under sub-section (1), if an enterprise or a group].—-…(c) indulges in practice or practices resulting in denial of market access 5 [in any manner];

  88. No Member, Associate Member or Affiliate Member shall participate or extend help of any kind to an unapproved Tournament. No player (Junior & Senior) registered with the BCCI or its Member, Associate Member or Affiliate Member shall participate in any unapproved tournament. No Umpire, Scorer on the BCCI Panel shall associate with an unapproved tournament. Any individual deriving financial or any other benefit shall not associate himself with an unapproved tournament. The Working Committee would take appropriate action including suspension and stoppage of financial benefits and any other action against individuals/members contravening these rules. Ibid at 65, at 48. https://relaunch-live.s3.amazonaws.com/cms/documents/BCCI%20Rules%20and%20Regulations.pdf.

  89. With regards to the regulatory power of sanctioning sports, the CCI referred to the European case of Meca-Medina and observed that any such regulations are to be appreciated by gauging proportionality. In the said case, the European Court of Justice clarified the impact of EU competition rules on the sports sector by stating that restrictive effects on competition by regulatory bodies, do not infringe competition law if they are proportionate to the legitimate sporting interest pursued. In assessment of proportionality the CCI noted that the restrictions were placed to enhance the commercial interest of BCCI and the board has failed to establish how the restriction preserves the legitimate interest of cricket in the country and the consumers in the relevant market. Moreover, the CCI noted that the restriction only distorts competition but also impedes the evolution of the game. < Surinder Singh barmi v BCCI>.

  90. Ibid at 74, 5 http://www.cci.gov.in/sites/default/files/61%20of%202010.pdf.

  91. http://www.oecd.org/competition/abuse/1920021.pdf.

  92. MCI Communications Corp. v. AT&T Co., 708 F.2d 1081 (7th Cir. 1983).

  93. Arshiya Rail Infrastructure Limited (ARIL) v. Ministry of Railways, (2013) 122 CLA 297.

  94. Ibid, 50.

  95. Ibid at 73, 6. www.columbia.edu/~rk35/IPL.pdf.

  96. Hetch v. Pro Football Inc [1978] U.S. SC, [1978], 436 US 956; Also see Ferguson v. Greater Pocatello Chamber of Commerce, Inc. [1988] 9th cir. [1988]., 848 F.2d 976 See(9th Cir. 1988). Football stadium was held to be an essential facility.

  97. Sherman Act 189, 15 U.S. Code § 2.

  98. Case 7/97, Oscar Bronner GmbH & Co. KG v Mediaprint [1998] ECR I-7791; Case 418/01, IMS Health v NDC Health, [2004] ECR I-5039; Case T-201/04, Microsoft Corp. v Commission, [2007] ECR II-3601.

  99. S 4(2)(c), Indian Competition Act, 2002: The conduct of BCCI was at the root of violation of Section 4(2)(c) which states that if any enterprise “indulges in practice or practices resulting in denial of market access in any manner”, it shall be liable under abuse of dominant position.

  100. Grieg v. Insole [1978] 1 WLR 302. The court held an unreasonable restraint of trade the rules of the TCCB bannign any player who wanted to compete under its auspices from taking part in competitions organized by any competing organization, in that case Kerry Packer’s cricket world series.

  101. Ibid at 100.

  102. Ibid at 100.

  103. News Ltd & Ors v Australian Rugby Football League Ltd & Ors [1996] FCA 870.

  104. Ibid.

  105. Ibid at 103.

  106. Ibid at 103. http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.608.7564&rep=rep1&type=pdf; http://www.sci.brooklyn.cuny.edu/~schopra/GreigInsole.pdf; http://www.auscricket.com.au/media/639359/icc-regulations-disaproved-.pdf.

  107. Ibid at 73.

  108. Exclusivity over all rights will give them an incentive to monetize and use all the rights to its full potential. This is exacerbated by the fact that they have exclusivity over the use of the rights for a duration long enough as well as exclusive in its scope, to be able to reap all the benefits attached to the right.

  109. Torben Toft, ‘Broadcasting and EC Competition Law’, (2005) Comp/C.2/TT/hvds D.

  110. Ibid.

  111. Urvi Malvania and Surujeet Das Gupta, ‘Media Rights Auction:Star India Ends Sony’s IPL Innings’ Business standard ( 5 September 2017).

  112. Stefan Wilbert, ‘Joint selling of Bundesliga media rights’ Regulation 1/2003. http://ec.europa.eu/competition/publications/cpn/2005_2_44.pdf.

  113. Ibid.

  114. All agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market.

  115. 3. (1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.

  116. Vyoma Jha, ‘Sports And Competition Law In India A Critical Study With Special Reference To Cricket’, Final Report (11 July 2008). http://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=FC738390B5848DB9F398F8CC5EA8E24F?doi=10.1.1.608.7564&rep=rep1&type=pdf.

  117. Reducing transaction costs and the branding of product leads to better production and distribution services.

  118. Ibid at 112, 11

  119. Ibid at 112, 11–12.

  120. KNVB/Sport 7, OJ 1996 C 228, Case No IV/36.033.

  121. TV Rights to the Union of European Commission background note: The Football Associations (UEFA) Champions League, Brussels 24 July 2003, MEMO/03/156 (2002).

  122. Ibid at 74.

  123. Ibid at 87.

  124. Ibid at 74 http://www.cci.gov.in/sites/default/files/612010_0.pdf.

  125. https://lawcommissionofindia.nic.in/reports/Report275.pdf.

  126. ‘Star India wins five-year BCCI media rights contract for Rs6,138.1 crore’ Livemint (19 May 2018).

  127. Ibid.

  128. The Football Association Premier League Limited v British Sky Broadcasting Limited and Others [2013] EWHC 2058 (Ch).

  129. Isha Bhalla, ‘Sports and Competition law’ (Internship Report)(August 213). http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.398.6648&rep=rep1&type=pdf.

  130. OECD, ‘Comeptition and Sports’ DAF/COMP(2010)38. http://www.oecd.org/daf/competition/competition-and-sports-2010.pdf. page 199.

  131. Ibid, 152.

  132. Ibid at 74.

  133. Ibid at 74.

  134. An illicit payment made to someone in return for facilitating a transaction or appointment.

  135. Section 3(3) Indian Competition Act, 2002; “Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which……….. (d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition:

    Explanation.—For the purposes of this sub-section, “bid rigging” means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding”.

  136. Ibid at 74.

  137. Ibid.

  138. Ibid.

  139. Ibid.

  140. Ibid, 9.

  141. Ibid at 74.

  142. Id.

  143. Id.

  144. 2018 SCC Online CCI 43.

  145. Id.

  146. [1993] 1 WLR 909, Court of Appeal (Civil Division).

  147. R v Panel on Takeovers and Mergersex p Datafin [1987] 1 All ER 564.

  148. Ibid.

  149. Bradley v Jockey Club [2004] EWHC 2164.

  150. R v Football Association, ex parte Football League (1991).

  151. Ibid.

  152. [2003] EWCA Civ 1056.

  153. Ben Cisnero, Challenging the call: Should Sports Governing Bodies be subject to judicial review”, The International Sports Law Journal 20, 18-35(2020) “This is a test frequently used to determine amenability but was answered in the negative in Aga Khan, endorsing the view of Rose J in R v FA, ex p Football League: “I find no sign of underpinning directly or indirectly by any organ or agency of the State or any potential government interest…nor is there any evidence to suggest that if the FA did not exist the State would intervene to create a public body to perform its functions.Footnote 87 With respect, it is suggested that such views are out of date and merit reconsideration. The government today has a clear, direct interest in sport and there is plenty to suggest that, in the absence of SGBs, they would intervene”. https://link.springer.com/article/10.1007/s40318-020-00165-9

  154. Ibid “More recently, in 2014, the government published the UK Anti-Corruption Plan, which set out a cross-governmental approach to tackle corruption, including specific measures addressing corruption in sport. Principal among these was the Sport and Sports Betting Integrity Action Plan, launched by the Gambling Commission in 2015, which delineates the responsibilities of, inter alia, SGBs and government in combatting corruption. Such an initiative is yet another example of how the government’s interest and involvement in sport has grown since the early 1990s”.

  155. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982).

  156. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n (Brentwood 1), 531 U.S. 288, 296 (2001).

  157. 492 F. Supp. 1181 (D.D.C. 1980).

  158. As a sanction to Soviet Union for invading Afghanistan.

  159. Dionne L. Koller, ‘Frozen in Time: The State Action Doctrine' s Application to Amateur Sports’, St. John's Law Review, Vol. 82:183.

  160. Ibid at 19.

  161. Mohinder Amarnath & Ors. v. BCCI, 148, Ajay Jadeja v. Union of India & Ors.,149, and Rahul Mehra & Anr. v. Union of India,150.

  162. Ibid at 21.

  163. Ajay Hasia vs. Khalid Mujib, AIR 1981 SC 487.

  164. Id, 9.

  165. Ibid at 21.

  166. ICC Membership Criteria 2.1 (a)(i).

  167. Memorandum of Association, Board of Control for Cricket in India, arts. 2(a), (b), (e), (g) [hereinafter, BCCI MOA].

  168. BCCI MOA,, art. 2(d), (g).

  169. Ibid at 151.

  170. BCCI vs. Netaji Cricket Club (2005) 4 SCC 741.

  171. PTI, SC upholds HC verdict on cricket broadcasting rights in India, The Times of India (Aug. 22, 2017) [hereinafter BCCI broadcasting rights].

  172. Ajay Hasia vs. Khalid Mujeeb Sehravardi and ors., AIR 1981 SC 487.

  173. R.D. Shetty vs. International Airport Authority, AIR 1979 SC 1628.

  174. Gajendra Kumar Sharma vs General Manager, The Bajpur, (1999) 3 UPLBEC 2452 para 9.

  175. 1936 – This year’s Olympics were held in an extremely tense and politically charged environment. The Nazi rule had come to power in Germany a few years back and since Germany was conducting this edition of the Olympics, it stirred up a huge debate on an international level to boycott the games, owing to Germany’s racist policies. Foreseeing a mass boycott, the International Olympics Committee (IOC) convinced Germany to include qualified Jewish athletes in the German team. However, German authorities failed to deliver on their promises and included only one Jewish athlete in the team. The games were used as a platform by the Nazi regime to propagate their racist policies and to assert their racial superiority.

    1972 – This edition of the Olympics was the largest edition of the Olympics. However, it is most known for the terrorist attack by 8 Palestinian terrorists who broke into the Olympic village, killing 2 Israelis and taking 9 others hostage. The terrorists demanded the release of 200 Palestinian prisoners from Israel. The entire event resulted in the death of all the 9 hostages, the terrorists as well as a policeman. Regardless of these events, Avery Arundage, the then president of the IOC decided to continue the game after a 34 hour suspension.

    1976 – Around 30 African countries boycotted the Montreal Olympics of 1976 as the IOC allowed New Zealand to participate in the games. New Zealand had recently played a game of rugby in the racially segregated South Africa which was banned from the Olympics since 1964. Moreover, Taiwan also back out from the games after China pressurized the host country to deny Taiwan the right to compete.

    1980 – America led a boycott against the Moscow games of 1980, owing to the USSR’s invasion of Afghanistan. Over 60 nations boycotted the games alongside America, reducing the number of participating teams to a mere 81, the lowest number since 1956.

    1984 – Subsequent to the boycott of the Moscow games, 14 socialist states led by the USSR boycotted the Los Angeles games of 1984, claiming that the Los Angeles Olympic Committee was violation the spirit of the games by using the platform to earn commercial profits. https://www.theguardian.com/politics/politicspast/page/0,9067,892902,00.html. [hereinafter, Olympics].

  176. Id.

  177. BCCI, where BJP plays family politics, Deccan Herald (Oct. 16, 2019).

  178. Id.

  179. Kevin McCullah, India refuses to play in Pakistan for Asia cup, SportBusiness (Jan. 30, 2020).

  180. Press Trust of India, Asia Cup to be held in Dubai, both India and Pakistan will play: BCCI president Sourav Ganguly, India Today (Feb. 28, 2020).

  181. Ibid at 21.

  182. R.D. Shetty vs. International Airport Authority, AIR 1979 SC 1628.

  183. Marsh vs. Alabama, 326 U.S. 501 (1946) .

  184. Bagehot, Why Indians love cricket, THE ECONOMIST (Feb. 4, 2014), https://www.economist.com/the-economist-explains/2014/02/04/why-indians-love-cricket.

  185. BCCI vs. Netaji Cricket Club (2005) 4 SCC 741.

  186. BCCI vs. Cricket Association of Bihar.

  187. Ibid at 21.

  188. Press Trust of India, BCCI, 'a limb of the State', should come under RTI ambit: Law Commission, Business Standard (Apr. 18, 2018) [hereinafter Law Commission on BCCI].

  189. Subhash Chandra Agarwal vs. PIO, Department of Sports https://www.thehindu.com/sport/cricket/cic-brings-bcci-under-rti/article25098434.ece

  190. Ibid at 74

  191. Olympics, Ibid at 177.

  192. Id.

  193. Ibid at 21.

  194. BCCI broadcasting rights, Ibid at 171; Rules and Regulations, Board of Control for Cricket in India, arts. 24 (5), (9).

  195. Constitutional Protections Of The Right To Information, Good Law And Practise (Jan. 09, 2012).

  196. Id. Countries like Mexico and Paraguay have accepted the right to access information as a human right

  197. Bennett Coleman and Co. v. Union of India, AIR 1973 SC 106.

  198. “public authority” means any authority or body or institution of self-government established or constituted,—(a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any—(i) body owned, controlled or substantially financed; (ii) non-Government Organization substantially financed, directly or indirectly by funds provided by the appropriate Government.

  199. Ibid.

  200. AIR2008All92; See also Committee of Management, Azad Memorial PoorvaMadhyamikVidyalaya, Kolourav. State of Uttar Pradesh, AIR 2008 (NOC) 2641 (All); Committee of Management, Ismail Girls National Inter-College, Meerut v. State of Uttar Pradesh, AIR 2009 All 236.

  201. AIR 1995 SC 1811.

  202. National sports development code of India, 2011, ⁋ 15.1(j).

  203. There is a lack of clarity when it comes to the scope of “substantial financing”. The courts have failed to give a uniform interpretation of the term. In Hindu Urban Cooperative Bank Ltd v. State Information Commission ((2011)ILR 2 P&H 64), benefits obtained by the institution in the form of share capital contribution, subsidies, land allotment, and so on were considered as instances of substantial funding. In Indian Olympic Association v. Veeresh Malik (W.P.(C) No. 876/2007), the Court declared the Indian Olympic Association to be a public authority since the central government financed the travel expenses, along with 85% of the living expenses of the players. Similarly, in Thalapalam Service Co-operative Bank Ltd. v. Union of India (AIR 2010 Ker 6) while discussing the scope of funding under Section 2(h), the Court held that exemptions in the form of different fiscal provisions for fee, duty, tax etc. would amount to substantial financing.

  204. Subhash Chandra Agarwal vs. PIO, Department of Sports, CIC/LS/C/2012/000565.

  205. Netaji Cricket Club case, Zee Telefilms case, Cricket Association of Bihar case (the referral case), decision of CIC in Subhash Chandra Agarwal case, 2017.

  206. National sports development code of India, 2011, ⁋ 1.2.

  207. Constitution of BCCI.

  208. [2004] 1 A.C. 546.

  209. Laurence H. Tribe, American Constitutional Law, 1705 (The Foundation Press Inc., 1978).

  210. Id.

  211. Articles of Association of the ICC which define 'Cricket Authority' to mean "a body (whether incorporated or not) which is recognised by the Council as the governing body responsible for the administration, management and development of cricket in a cricket-playing country.

  212. Aditya Sondhi, The Legal Status of BCCI: Unwarranted Ad-Hocism, Constitutional Hurdles and the Pressing Need for a Cricket-Legislation, National Law School of India Review.

  213. RTI, Section 2(h).< “any institution, organization or body, established by the Constitution of India, any other law made by the Parliament or State Legislature, or any notification issued by the appropriate government. The definition also brings under its purview the bodies and non-governmental organizations owned, controlled or substantially financed by the appropriate governments.”

  214. Ibid.

  215. Subhash Chandra Agarwal vs. PIO, Department of Sports, CIC/LS/C/2012/000565.

  216. 144CIC/SH/A/2014/000684. Decided On: 04-12-2017.

  217. Available at: http://164.100.47.194/Loksabha/Questions/QResult15.aspx?qref=117915&lsno=15 (last visited on 15-02-2018); Subhash Chandra Agrawal v. PIO, Department of Sports, Central Information Commission (June 16, 2017).

  218. Ministry of Youth Affairs and Sports, Department of Sports’ letter number F.No.36-2/2010-SP-II, dated March 30, 2010 ‘Declaring National Sports Federations as Public Authority’; Annexure III.

  219. Ibid.

  220. Law Commission on BCCI, Ibid at 188.

  221. Bagehot, Why Indians love cricket , THE ECONOMIST (Feb. 4, 2014), https://www.economist.com/the-economist-explains/2014/02/04/why-indians-love-cricket.

  222. IPL 2012: BCCI suspends five players accused in spot-fixing, Cricketcountry.com (May 15, 2012); PTI, Sreesanth, Chandila, Chavan discharged in IPL spot-fixing case, The Hindu (July 25, 2015).

  223. Sumit Chakraborty, BCCI vs Lodha Panel: All you need to know about the case, Financial Express (Oct. 06, 2016).

  224. LODHA COMMITTEE, REPORT OF THE SUPREME COURT COMMITTEE ON REFORMS IN CRICKET (2015).

  225. Id.

  226. Supreme Court accepts Lodha Committee recommendations, gives go-ahead for structural reforms in BCCI, Firstpost (July 18, 2016).

  227. Subir Ghosh, Of Cricket, Power and Politics, 51 ECONOMIC AND POLITICAL WEEKLY (2016), https://ezproxy.nujs.ac.in:2096/journal/2016/31/comment/cricket-power-and-politics.html.

  228. Is the ‘Game’ in Cricket Still the Centre of the Sport?, EPW ENGAGE, https://ezproxy.nujs.ac.in:2096/engage/article/game-cricket-still-centre-sport.

  229. Ians, Cricket draws 93% of sports viewers in India: BARC, BUSINESS STANDARD (June 4, 2019), https://www.business-standard.com/article/news-ians/cricket-draws-93-of-sports-viewers-in-india-barc-119060400786_1.html.

  230. IPL betting dossier with OneIndia: Bookies put in Rs 7,000 crore last year, MYKHEL (Aug. 8, 2017 11:42 A.M.), https://www.mykhel.com/cricket/oneindia-exclusive-ipl-betting-dossier-bookies-put-in-rs-7000-crore-in-2014-019255.html.

  231. Ians, Ibid at 229.

  232. Sec. 2(h), RIGHT TO INFORMATION ACT (2005).

  233. Akansha Jain, BCCI a Public Authority under RTI Act: CIC directs the Board to put in place the mechanism to receive RTI please in 30 days, LIVE LAW (Oct. 4, 2018 05:32 p.m.), https://www.livelaw.in/bcci-a-public-authority-under-rti-act-cic-directs-the-board-to-put-in-place-the-mechanism-to-receive-rti-pleas-in-30-days-read-order/.

  234. id.

  235. Subhash Chandra Agarwal vs. PIO, Department of Sports, CIC/LS/C/2012/000565.

  236. See Media Release, International Cricket Council, India seal semi-final spot with comfortable win over Ireland (Nov. 15, 2018), https://www.icc-cricket.com/media-releases/912881.

  237. Nicolette (2004).

  238. supra note 2, at 28, 31.

  239. id.

  240. Sandipan, How does the BCCI make money, FINMINT (July 15, 2018), https://finmint.com/2018/07/how-bcci-makes-money.html.

  241. Sharleen Dsouza, Why advertising rates have hit a record this cricket world cup, BLOOMBERG QUINT (May 29, 2019 04:17 p.m.), https://www.bloombergquint.com/business/why-advertising-rates-have-hit-a-record-this-cricket-world-cup.

  242. Ibid at 224, 56.

  243. id.

  244. id, 30, 31.

  245. id.

  246. Owen gibson, Sepp Qatar hits back at allegations of bribery over 2022 World Cup, THE GUARDIAN (June 15, 2014), https://www.theguardian.com/football/2014/jun/15/qatar-world-cup-bid-2022.

  247. Ibid at 224.

  248. BCCI vs. Bihar Cricket Association, (2015) 3 SCC 251 (Ind.)

  249. Cricket is a religion in India, THE ECONOMIC TIMES (June 3, 2010 01:25 A.M.), https://economictimes.indiatimes.com/cricket-is-a-religion-in-india/articleshow/6005321.cms?from=mdr.

  250. Sachin Tendulkar to get Bharat Ratna; first sportsperson to bag it, THE ECONOMIC TIMES (Nov. 17 04:32 A.M.), https://economictimes.indiatimes.com/sachin-tendulkar-to-get-bharat-ratna-first-sportsperson-to-bag-it/articleshow/25888084.cms?from=mdr.

  251. Ibid at 21.

  252. Ibid.

  253. Sondhi (2010).

  254. Article 226 Indian Constitution.

  255. Article 32 Indian Constitution.

  256. Article 14 Indian Constitution.

  257. These sections only apply to state and instrumentalities of state as mentioned under Article 12 of Indian Constitution.

  258. Ibid at 253.

  259. CCI imposed a civil penalty to the tune of 52.24 crore…. on BCCI for abuse of dominance. Priyanka Mittal, CCI imposes Rs 52.24 crore penalty on BCCI’ Live mint (30 Nov 2017).

  260. For the longest time Indian Competition Law has been fraught with the lack of deterrent effect of civil penalties. If the amount of profit by indulging in anti-competitive behaviour exceeds the penalty imposed which is 10per cent on the turnover for preceding three years, the person will be induced to act in anticompetitive manner.

  261. Ibid at 114.

  262. To ensure the 'rule of law' in all governmental activities, the judicial review of governmental actions called the writ jurisdiction exists.

  263. Article 12 of Indian Constitution.

  264. Sukhdev Singh v. Bhagath Ram AIR 1975 SC 1331.

  265. test to determine entity falls under Article 12- (a) Financial support by state and degree of control over management(b) discharging of important public function (c) a corporation is instrumentality of the government for carrying on a business for the benefit of public. Ibid (70, 77) .

  266. Ibid at 123.

  267. (2002) 5 SCC 111 at 40.

  268. Ibid.

  269. The Court in Secretary, and Others v. Cricket Association of Bengal and Others (1995) 2 SCC 161.

  270. Article 19: Freedom of Speech and Expression; Ibid at 117.

  271. Constitution of India, 1950, Entry 33, List II, Schedule 7.

  272. The International Cricket Council, Code of Conduct for Players and Player Support Personnel (28 September 2017)

  273. Ajay Jadeja ‘v Union of India 95 (2002) DLT 14, 2002 (61) DRJ 639

  274. Ibid at 267.

  275. BCCI v Netaji Cricket Club and Ors (2005) 4 SCC 741[Netaji‘s Case.

  276. Ibid at.

  277. Article 249 of Indian Constitution.

  278. Article 249(2) of Indian Constitution.

  279. Ibid at 253.

  280. Ministry of youth affairs and sports, ‘Comprehensive Sports Policy’ (2007) https://yas.nic.in/sites/default/files/File371.pdf.

  281. Ibid,140.

  282. RTI is an Act of the Parliament of India to provide for setting out the practical regime of right to information for citizens.

  283. It is clear that the BCCI was enjoying tax exemptions upto 1000 crores. https://taxguru.in/corporate-law/bcci-public-authority-bound-disclose-information-rti-act-cic-read-order.html.

  284. “The Lodha Committee said: Having regard to the emphasis laid by SC that BCCI discharges public functions and also the Court’s reference to indirect approval of the Central and State Governments in activities which has created a monopoly in the hands of the BCCI over cricket, the Committee feels that the people of the country have a right to know the details about the BCCI’s functions and activities. It is therefore recommended by apex court that the legislature must seriously consider bringing BCCI within the purview of the RTI Act”; Ibid at 224

  285. Manas & Anisha, ‘LODHA COMMITTEE RECOMMENDATIONS: CAN IT FORMULATE INDIAN CRICKET?’ (2018)3 Jamia L.J. http://docs.manupatra.in/newsline/articles/Upload/8074220B-6F04-4DF2-8F2F-9926A6F4EE9C.%20Lodha%20Recommendation_misc.pdf. Lodha Committee report

  286. In July 2016, SC Had Asked The Commission To Recommend Whether whether CricketBoard Can Be Brought Under RTI.

  287. Law Commission Of India, ‘Legal Framework: BCCI Vis-À-Vis Right To Information Act 2005’, (April, 2018) http://Lawcommissionofindia.Nic.In/Reports/Report275.Pdf; https://www.firstpost.com/firstcricket/sports-news/law-commissions-game-changing-suggestion-to-bring-bcci-under-rti-act-needs-political-will-to-become-reality-4437559.html. http://lawcommissionofindia.nic.in/reports/Report275.pdf

  288. Rai (2017).

  289. Ibid; Ibid at 224.

  290. There have been instances where independent bodies such as BCI has rejected the Law Commission recommendations when it tried to regulate the legal profession. G. RajaRaman, ‘Law Commission's game-changing suggestion to bring BCCI under RTI Act needs political will to become reality’ Firstpost (19 April 2018) https://www.firstpost.com/firstcricket/sports-news/law-commissions-game-changing-suggestion-to-bring-bcci-under-rti-act-needs-political-will-to-become-reality-4437559.html.

Abbreviations

BCCI:

Board of Cricket Control in India

RTI:

Right to Information

NGB:

National Governing Board

NSF:

National Sports federation

UOI:

Union of India

IPL:

Indian Premier League

ICL:

Indian Cricket League

FTP:

Future Tour Program

CCI:

Competition Commission of India

CIC:

Central Information Commission

COMPAT:

Competition Appellate Tribunal

SC:

Supreme Court of India

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Shah, N., Tomar, A.S. Taming of the megalomaniac institution: perspectives on regulating the unbridled powers of the BCCI. Int Sports Law J (2022). https://doi.org/10.1007/s40318-022-00215-4

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Keywords

  • BCCI
  • Cricket
  • Indian Competition Act
  • State
  • Right to Information
  • Article 12 of Indian Constitution