*Written by Om Singhania
In this era of globalization, a great extent of authority is being delegated to the private organizations which fall within the ambit of the Constitution. These private organizations have progressively become so powerful as a result of globalization that their actions often influence the national policy of a country. Even the sports industry isn’t immune to the ramifications of globalization. Sports has transformed into a business for the corporate world, and the consumers can be perceived as the global audiences. Globalization has had a devastating effect on sports, as a result of which the governance of the legal regulation of sports lies in the control of independent sports federations instead of the government. This aspect of globalization is particularly dangerous since it grants these private autonomous organizations the freedom to design their own laws and constitutions. This would enable them to most likely enhance their own convenience since they are not subject to government control. They formulate decisions that have a significant impact on players' careers and the economy, which ultimately results in the emergence of a "throw away culture." In essence, the throwaway culture implies that everyone and everyone is replaceable, and that if a person does not adopt certain business practices, they can also be replaced. The Board of Control for Cricket in India (BCCI), which administers the game of cricket in India, is an example of such an autonomous organization that is outside the purview of government supervision.
For any sport to establish its presence before the eyes of the people of the country, there should be a national governing body which regulates the functioning and activities of the particular sport. In a country like India, where cricket is worshipped by people and upholds the emotions of billions of people, there is an immense need for a full-time body which can govern the rules and regulations of the game and also have a check on the players. The ‘Board of Control for Cricket in India’(BCCI) was formed on 4th December in the year 1928 by a group of players at Roshanara Club of Delhi to end the British monopoly in India. It is a private autonomous body which is registered under Tamil Nadu Societies Registration Act, 1975. Unlike many other cricket boards around the world, the BCCI is not a government-controlled body. BCCI operated as an "unregistered association" at first, but later applied for registration and got recognized as a private club consortium, whose headquarters is situated in Mumbai, Maharashtra. Since it was founded in December 1928, BCCI has made significant advancements. The BCCI has developed into a monopoly over the years by controlling all aspects of cricket in India, including "grass-roots, national, international, or even private cricket" (for instance, the Indian Premier League). India's passion for cricket and its large population has transformed it into a cricketing powerhouse and it can also be referred to as a ‘cricketing superpower’, both on and off the field. The BCCI has long held a position of prominence in the world of cricket. It is not only the richest and most influential cricket board in the world but also plays a pivotal role in shaping the global cricket landscape. The visions of the Board include the advancement and control of cricket in India; arranging and controlling domestic, foreign and other cricket matches; provide hospitality and make arrangements for the teams visiting India; to settle disputes between Associations affiliated to the Board and appeal referred to it by any Association; to adopt all rules and regulations passed by the Marylebone Cricket Club (MCC). The BCCI deals with problems that may emerge with regard to the selection and disqualification of players, player contracts, security and discipline, as well as criminal cases involving betting and match-fixing in sports. The Working Committee is in charge of the everyday operations of the BCCI. The President, who formally heads the Board, is frequently questioned about how it operates. As the only signatory on the bank accounts, the Secretary assists with their operation and, in the event of a dispute, his name is used when the Board sues or is sued by a third party.
The BCCI's effectiveness as a governing organization has been called into question by charges of match-fixing and betting that have hung a shadow over Indian cricket over the years. The BCCI has received criticism from both Indian public and its own members. An anonymous senior board official referred to the BCCI as a regulatory entity that represents control over cricket rather than cricket itself and that exists for itself rather than for cricket or the players. He further added by stating, "It is an edifice built on power, arrogance, money, and the insecurity that comes with the fear of losing all of those things."
ROLE OF JUDICIARY IN DETERMINING THE LEGAL STATUS OF BCCI
The legal status of the BCCI has been a subject of intense scrutiny and legal battles. The judiciary in India has played a pivotal role in determining the legal status of the BCCI, which has far-reaching implications for the administration and governance of cricket in the country.
The primary question which is in contention pertaining to the issue of legal status of BCCI is whether the BCCI should be considered as a State as per the provisions of Article 12 of the Indian Constitution. The BCCI and the Government of India has had contrasting and differential opinions as far as this issue is concerned. It is important to note the judgements pronounced by the judges in the landmark cases of Board of Control for Cricket in India vs Bihar Cricket Board Association or the Cricket’s case and the Zee Telefilms Ltd & Another vs Union of India & Others in order to gain a through understanding on this issue in contention.
Article 12 of the Indian Constitution says, “The State includes the Government and Parliament of India and the Government and the Legislature of each state and all local or other authorities within the India or under the control of India.”
The BCCI's position is determined by a variety of factors, all of which are classified under other authorities. In the case of Zee Telefilms Ltd & Another vs Union of India & Others, the petitions in the case pleaded that the BCCI is accountable to the Government and the public at large. The Board performs public functions and has a monopoly because of the de facto recognition of the Government, and it selects the players and decides whether or not they will represent the nation. Any actions it takes, from spending crores of rupees on the construction of stadiums to generating income by selling broadcasting rights, it does so with the government's tacit approval. It was further argued that because players choose to play professionally, the Board has control over the fundamental rights under Article 19(1)(g). In addition, it was claimed that the Board is not permitted to send and invite teams to India at its discretion but rather is subject to prior approval of the Government. This entire argumentation demonstrates the Government of India exercise extensive control over the Board's operations and it falls under the category of “other authorities”.
According to the respondent, "other authorities is wide enough to include within it every authority created by a Statute on which powers are conferred to carry out governmental or quasi-governmental functions within the jurisdiction of the government of India or on Indian territory." Applying this theory, it can be said that the Board is not created by any statute.
By a majority of 3:2, the Supreme Court of India ruled that BCCI is private, autonomous, and non-statutory, and that there is no deep government control over BCCI. It generates its own revenues from which it conducts cricket tournaments at various national and international levels. The Board is not a State because it is not controlled financially, operationally, or administratively by the government, and no statute has given it the monopolistic status it does. Although the court acknowledged that the mere fulfillment of a specific public function without any authorization does not constitute an instrumentality of the State as defined by Article 12.
In the case of Bihar Cricket Board Association or the Cricket’s case,the Supreme Court determined that BCCI is not a State but does execute public operations, which are evident via its actions, and is therefore subject to Article 226. The initial question in this case was whether or not BCCI can be considered as a State under Article 12. The bench of Justice Thakur and Justice Kalifulla concluded that the tasks carried out by the Board are unquestionably public functions with regard to the maintainability of the writ petition under Article 226 and the public function of the board. It cannot be said that these functions are not public functions or that the body performing them is not accountable to anyone and is not subject to the application of judicial review of State action if the government allows any private body or autonomous body to carry out those functions that the government can regulate or take over, and not only permits but also provides its assistance to such autonomous or non-government bodies to discharge such functions. The Supreme Court established the "Lodha Committee" to bring reforms to the BCCI because the Board's immense power required administrational transparency and accountability, as well as the need to guarantee justice and good faith in its operations.
The issue of whether the Board is subject to Article 226 jurisdiction arose in the case of Rahul Mehra v. Union of India. It was decided that while the Board is a self-regulatory body and will remain so, it would be subject to judicial review under Article 226 because it performs public functions and duties while continuing to be a private body in the eyes of the court.
ABUSE OF DOMINANT POSITION BY BCCI
The BCCI, one of the most powerful cricket governing bodies in the world, has faced persistent allegations and criticism regarding its abuse of dominant position within the cricketing sphere. This issue has broad repercussions for both, the sport in consideration and the overall system of sports governance. In the case of Shri Surinder Singh Barmi vs Board of Control for Cricket in India (BCCI), the Competition Commission of India (CCI) realized that the BCCI had breached section 4 (2) of the Competition Act, 2002 by abusing its dominant market position. The CCI investigated whether the BCCI had violated section 4 of the Act by abusing its dominant position and by engaging in irregularities in the distribution of franchise rights for team ownership as well as in the distribution of media rights, sponsorship rights, and other local contracts pertaining to the administration of the Indian Premier League (IPL). The Office of the Director General had been tasked by the CCI to look into the accusations made against the BCCI and submit a report on its findings. The utmost question which was posed by the Director General through its findings was whether the BCCI falls under the realm of an ‘enterprise’ or not. According to Section 4 of the Competition Act, 2002, any enterprise or group is restricted to imposing or abusing its dominant position. This section lays down the principle of dominant position and how the enterprise can be charged for abusing its power. The Act defines an enterprise as "a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defense and space."
However, the CCI cited the matter of Hemant Sharma & Ors v. Union of India and Ors in which the Delhi High Court had held that the All India Chess Federation (AICF), a similar entity which was a regulator and organizer of a sport in the country, was to be considered as an ‘enterprise’ within the meaning of the Act. Due to the fact that it organized sporting events, granted media rights, and sold tickets, it was regarded as an enterprise. The CCI came to the conclusion that BCCI had to be regarded as a business for the purposes of the Act since it is involved in revenue-generating activities including selecting the Indian team, setting up training camps, and organizing events.
Once it was established by the CCI that the BCCI was an enterprise for the purpose of the Act, the next question before it was whether the BCCI was abusing its dominant position in its relevant market. When ICL, a new competitor, threatened BCCI's market position, its dominant status was called into question. BCCI is accused of using unethical practices to uphold its position, preventing players from participating in ICL and refusing them access to venues. The Organization of Private Professional Cricket Leagues/Events in India was determined to be the relevant market by the CCI after taking into account a number of variables. In addition, given that the BCCI oversees and organizes cricket in India and that, in accordance with ICC rules, the BCCI must first approve any private professional league. The CCI came to the conclusion that the BCCI held a dominant position in the relevant market for sabotaging the ICL tournament and a hefty fine of Rs 52.24 crores was imposed on it for this action.
WHY INDIAN PLAYERS ARE NOT ALLOWED TO PLAY IN FOREIGN LEAGUES?
Dr. Harry Harinath, a former director of Cricket Australia (CA), urged the BCCI officials to release Indian players for the Big Bash League (BBL) which was being organized in the year 2010. Every BBL franchise was supposed to include at least one Indian cricketer, according to CA's strategy. The planning was made at such a great extent that Rohit Sharma was about to get approached to join the Sydney Thunders team. The BCCI anticipated the imminent reality and saw the potential consequences of allowing Indian players to compete in the BBL or any other foreign competition. It was believed that the Indian’s participation in international leagues would increase media rights value and draw greater attention to India. It would be an act of self-subversion. The founders of the IPL then suggested that the BCCI pass a resolution stating that no Indian player would be allowed in the overseas leagues and the IPL franchises would not be permitted to play among themselves friendly overseas games, a demand from the teams at that time. Instead, the BCCI proposed that it could allow the teams to play against the Associate nations. The no-other-league policy of the BCCI was founded on this premise. The general perception is that the dominance of the IPL, which pays out significant sums of money to players from both India as well as overseas, could be diminished if Indian players are mixed in with foreign players from other leagues. This is especially true now that IPL franchises are purchasing teams in other competitions, as the idea is that Indian players in SA20 or ILT20, particularly in the former, will resemble IPL players in a smaller-scale manner. To emphasize the point even more, Indian cricket stars have the ability to entice sponsors who might not otherwise support the game of cricket. Additionally, the BCCI sought to safeguard the Indian players from injury and excessive exposure. The administrators also wanted to safeguard the interest of the country's domestic cricket which is the feeder line for international cricket.
It has been observed in various instances earlier that the BCCI does not issue No Objection Certificate (NOC) to the Indian players which is required to participate in the foreign leagues. One such example is when the inaugural season of the Sri Lankan Premier League had to be postponed from 2011 to 2012 because the BCCI refused to send its players to the tournament, fearing it was secretly funded by Lalit Modi. The IPL contract was meticulously crafted in order to maintain its position as the most sought-after in international cricket. By preventing Indians from playing T20 anywhere, it is merely defending its home field. Although it is not against the law to deny Indians the right to play anywhere, doing so in this situation is simply immoral. The BCCI does more than only limit Indian cricketer’s opportunities. It restricts the variety of cricket experience that may be gained from playing in various conditions, across multiple surfaces, and against different opponents.
PRIVATE LEGAL STATUS - A BOON FOR BCCI?
One of the primary arguments in favor of the BCCI's legal status as a private entity is the autonomy it provides. The BCCI is not subject to the same level of government intervention and bureaucracy that government-controlled sports organizations frequently experience because it is a private society. The BCCI's independence has allowed it to move quickly and decisively in the best interests of Indian cricket.
1) Financial Independence: Through the sale of tickets, sponsorships, and broadcasting rights, the BCCI generates enormous profits. Due to its financial stability, it has been able to carry out significant investments in the infrastructure of cricket, talent scouting initiatives, and player welfare. The BCCI's T20 franchise-based tournament, the Indian Premier League (IPL), has evolved to become one of the world's most lucrative cricket leagues, further enhancing its financial stability.
2) Efficient Decision-Making: Private organizations often have more streamlined decision-making processes compared to government bodies. The BCCI's capacity for swift decision-making has been essential in adjusting to the constantly changing international cricket landscape. The Board has been able to efficiently plan tournaments, negotiate for broadcast rights, and make executive decisions because of it.
3) Global Influence: The BCCI has a major significance in international cricket owing to its financial clout. It has been a key factor in influencing the International Cricket Council's (ICC) policy and a major factor in the globalization of cricket. The BCCI's ability to utilize its financial resources effectively has been a huge boost for Indian cricket.
PRIVATE LEGAL STATUS OF BCCI – A BANE OF CONTROVERSIES?: -
While the autonomy granted by its legal status has been a boon in many ways, it has also been the source of numerous controversies and challenges for the BCCI.
1. Lack of Accountability: The BCCI has primarily been criticized for lacking accountability and transparency. It is not subject to the same amount of inspection and regulation as governmental entities because it is a private entity. As a result, the Board has been accused of corruption and poor administration.
2. Conflict of Interest: Conflicts of interest involving important BCCI stakeholders have also come up frequently. Numerous individuals associated with the Board, such as IPL team owners, hold various positions that may conflict with one another. Concerns about fair play and moral behavior have been raised as a result.
3. Legal Battles: Numerous court cases involving the BCCI have been filed both domestically and abroad. These legal conflicts have included anything from claims of financial irregularities to problems with broadcasting rights. The Board's cricketing accomplishments have frequently been overshadowed by the legal battles.
4. Government Intervention: Despite being a private organization, the BCCI has occasionally had to deal with government interference, particularly when it comes to issues like organizing international tournaments or providing visas to players from other nations. The Board's ability to make independent decisions has occasionally been hindered by this intervention.
The legal status of the BCCI, as a private entity, has been both a boon and a bane for Indian cricket. However, it still remains a subject of ongoing debate, discussion, and evolution. It is an issue that captures the complex relation between independence and responsibility, financial stability and transparency, as well as the wider ramifications for the administration of cricket in India and its impact on the global stage. The BCCI, which was established as a private organization, has achieved great success in terms of financial strength, organizational effectiveness, and the scope of Indian cricket internationally. The board has been able to rapidly change the cricket world because to its autonomy. The creation of the Indian Premier League (IPL) is evident that the BCCI was able to use its financial resources wisely to produce a cricket spectacle that appealed to spectators all around the world. This autonomy, meanwhile, has also come under scrutiny as questions about accountability, transparency, and potential conflicts of interest within the organization have been raised. The lack of defined rules and oversight procedures has occasionally made it possible for scandals and legal disputes to overshadow the board's cricketing accomplishments. The Supreme Court of India in particular has played a significant influence in determining the legal standing and governance of the BCCI. A turning point in the history of the BCCI was the appointment of the Lodha Committee and the Supreme Court's subsequent execution of its recommendations. These changes sought to increase transparency, improve governance, and adhere to good governance principles in order to strike a balance between autonomy and accountability. The challenges which arouse in the journey of achieving legal status should be seen as part of a larger process aimed at ensuring that cricket administration in India is aligned with best practices and ethical standards. The BCCI is still on its way to becoming a more transparent and accountable organization. It serves as a reminder that sports organizations, regardless of their power or wealth, must be subject to checks and balances in order to preserve the integrity and dignity of the sport.
To ensure the continued growth and success of Indian cricket, the BCCI and the Indian government should take initiatives to work together to ensure that cricketing decisions are not hindered by unnecessary bureaucratic hurdles. It should also ensure that the board adheres to ethical and legal standards. The BCCI should continue its efforts to prioritize player welfare, ensuring that cricketers are well-compensated and provided with the necessary support systems. This will not only benefit Indian cricket but also enhance the board's reputation.
*The author is a legal scholar from India
(The image used here is for representative purposes only)
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