Friday, May 27, 2016

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What We Can Learn from the Orders Passed by the BCCI Ombudsman to Date

Conflict of interest has always been a fact that Indian cricket has lived with, with selectors running coaching academies and being associated with IPL franchises. In particular, there was considerable uneasiness with Mr. N Srinivasan’s simultaneously being President of the BCCI and the CEO of India Cements, which owned Chennai Super Kings. However, there were no official move to remedy this situation (in fact, an amendment to the BCCI Regulations, which had a clause to prevent conflict of interest, was passed clandestinely to exclude the IPL and Champions League T20 in order to protect Mr. Srinivasan)1 until it emerged in the IPL betting scandal that Mr. Srinivasan’s son-in-law, Mr. Gurunath Meiyappan, had placed bets on the outcomes of games and passed match sensitive information to bookies.

In November 2015, there were major reforms in the BCCI, and two events of relevance to this article took place. The first was that new conflict of interest norms were introduced, which among several things prevents administrators and their near relatives from being associated with companies that have entered into commercial agreements with the BCCI or its Affiliates, prevents coaches of the Indian national team and national selectors from being associated with private coaching academies, and prevents current players from having business interests in companies managing players.2 The second was that Justice A P Shah was appointed the BCCI Ombudsman in November 2015. In the past seven months, he has been quite busy, and has passed orders in 30 matters to date. I have given these names so as to easily distinguish them.

The ombudsman’s jurisdiction extends to hearing complaints of acts of indiscipline or misconduct or violation of BCCI rules and regulations by administrators, as well as complaints of conflict of interest by administrators, current and retired cricketers, and BCCI staff. This is a fairly narrow jurisdiction. Nevertheless, a wide variety of complaints have been made to the ombudsman that fall outside his jurisdiction,3 which suggests a certain regard for his powers (or the complainants are spurred on by the Supreme Court’s overstepping its bounds in the case of Board of Control for Cricket in India v Cricket Association of Bihar to dictate terms to the BCCI)4.

As a contract, the BCCI regulations ought to be interpreted as any other contract, applying general principles of contract law whilst keeping in mind the subject matter of the contract as an indicator to the intention of the parties. However, when the words of a text fail to provide a resolution to a dispute, it is not unheard of that the deciding authority create jurisprudential norms to fill the textual gap.5

The ombudsman has by and large not been troubled by such problems. The BCCI Regulations can generally be interpreted literally without fuss. The ombudsman has refused to allow retrospective application of the rules when the Rules have not provided for such, and a conflict of interest that may have existed earlier but was no longer subsisting prior to the date of application was not held as such.6 He has also interpreted the locus standi rules strictly. Rule 3(C) of the BCCI Conflict of Interest Rules states, “Current Cricketers shall not have any conflict arising with the BCCI sponsors including the apparel sponsor.” This was interpreted strictly to mean that any dispute relating to a current cricketer’s conflict of interest vis a vis a BCCI sponsor can only be brought by the BCCI or an official sponsor.7 The Rules forbid conflicts of interest, but do not provide for any penalty in case a conflict is found. Accordingly, when a person has been found to be in violation of the Rules, the person concerned has merely been ordered to step down from one or the other post.8

However, while the Rules do not provide for any further action to be taken, the ombudsman has in cases passed further orders for their proper enforcement. For instance, in re Amay Khurasiya and Madhya Pradesh Cricket Association,9 Mr. Amay Khurasia, whilst being chief coach for the MPCA, was also a ‘mentor’ for a coaching academy named after himself. While not found to be in violation of the Rules, he was asked to provide an undertaking that he would not associate with any cricket academy and post on Facebook that he was not associated with the academy.10 Similarly, the ombudsman has made recommendations in some orders, such as that persons bound by the Conflict of Interest Rules make be required to make standard disclosures of their affiliations with academies, sports management companies, apparel manufacturers, etc,11 or that the BCCI direct its affiliates to enact measures to promote transparency.12 In several cases, he has forwarded matters to the BCCI President which are not within his jurisdiction but which may nevertheless be of concern to the BCCI, such as allegations of misuse of development funds,13 questions relating to DRS and the WADA Code,14 suspension of State associations.15

At other times, however, the ombudsman has refrained from making any norms and has instead sought guidance and clarification on the Rules from the BCCI itself. In re Rahul Sanghvi,16 Mr. Sanghvi was Team Manager for the Mumbai Indians when he was asked to a part of the DDCA selection panel for the Ranji Trophy and under-23 teams. The Rules, whilst providing for a number of scenarios in which a conflict of interest would arise, did not specify whether a retired cricketer who is a part of the management of an IPL team could be a coach or selector for a unit affiliated to the BCCI. The BCCI clarified that a person could not simultaneously have a long term or annual contract with an affiliated unit and a position with an IPL team, but if the appointment was only for a season and he was not contracted with the BCCI or affiliated unit and the IPL team at the same time (I think this means that if the two periods in which he was expected to perform his duties did not clash), it would be permitted. This meant that Rahul Sanghvi was in violation of the Rules; however, as his contract was due to expire that very month, he was permitted to complete it. This rule was later applied in re Sanjay Bangar,17 when Sanjay Bangar was permitted to be India batting coach as well as head coach of Kings XI Punjab as his BCCI contract was due to expire and the IPL to begin thereafter. However, in none of the above cases was a BCCI administrator the impugned party, and such a policy of seeking guidance from the BCCI may be compromised by the vested interest of the officials of the BCCI in the matter.

In the small pond of Indian sports law, the decisions of the BCCI ombudsman will go a long way to regulating how the BCCI handles conflicts of interest and other issues. They will also help develop a body of Indian sports law that has repercussions outside the BCCI and which may influence the working of the Sports Appellate Tribunal sought to be created under the Sports Development Bill. They are therefore worth following.



1See Board of Control for Cricket in India v Cricket Association of Bihar (2015) 3 SCC 251
3Justice Shah describes some of the more ludicrous ones that didn’t merit the passing of orders here: Neeru Bhatia, ‘Reverse sweep’ The Week (28 February 2016) <http://www.theweek.in/theweek/sports/bcci-ombudsman-ap-shah-already-has-his-hands-full.html>
4See Satchit Bhogle, ‘Amenability of Indian Domestic Sports Governing Bodies to Judicial Review’ (2017) Marquette Sports Law Review (forthcoming)
5Allan Erbsen, ‘The Substance and Illusion of Lex Sportiva’ in Ian S Blackshaw and others (eds), The Court of Arbitration for Sport: 1984-2004 (TMC Asser Press 2006) 442 (pointing out that CAS panels have inferred the power to create norms to fill textual gaps)
6In re Sharad Pawar and IS Bindra, App 2/2016, order of 16.01.2016; In re Nishant Arora, App 4/2016, order of 29.02.2016
7In re MS Dhoni, App 30/2016, order of 17.04.2016
8In re KS Viswanathan, App 15/2016, order of 29.02.2016; In re RP Shah, App 6/2016, order of 31.03.2016
9App 21/2016, order of 15.05.2016
10A similar distinction was made between mentoring and coaching in re Vijay Dahiya, App 7/2015, order of 12.03.2016
11In re Harbhajan Singh, App 3/2016, order of 17.02.2016
12In re National Cricket Club, Kolkata, App 1/2015, order of 17.03.2016
13In re Office Bearers of Uttar Pradesh Cricket Association, App 8/2016, order of 23.01.2016
14In re Questions in Public Interest, App 9/2016, order of 23.01.2016
15In re Rajasthan Cricket Association, App 22/2016, order of 18.02.2016
16App 8/2015, order of 12.03.2016
17App 24/2016, order of 22.03.2016

Sunday, May 22, 2016

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Everything you need to know about Sushil Kumar's Rio Olympics bid

(this post first appeared in a modified form on the Ringside View)

The 66kg weight category for freestyle wrestling, which was present in both the 2008 Beijing Olympics and the 2012 London Olympics, has been removed for the upcoming 2016 Rio Olympics. This has made life difficult for Sushil Kumar, who has competed for most of his career in the 66kg category, winning Olympic medals in both Beijing and London as well the world title in 2010 and gold at the 2010 and 2014 Commonwealth Games. If he competes, it will have to be in the 74kg category as he declined to compete in the 65kg category to make way for fellow Olympic and Commonwealth medallist, Yogeshwar Dutt, who has traditionally competed in the 60kg category (also removed for Rio).

What stands in his way is Narsingh Yadav, Wrestling World Championship medallist in the 74kg category.

India has secured a quota of eight places for wrestling for the Rio Olympics (six for men’s wrestling), of which the 74kg men’s freestyle berth was thanks to Narsingh’s bronze medal at the 2015 World Championships. However, the Olympic quota is awarded to the country and not to the wrestler who secured it, and Sushil Kumar has asked for a trial to determine who will represent India in the weight category. On the other hand, the Wrestling Federation of India (WFI) has traditionally not held trials and the winner of the quota has always gone on to compete in the Olympics (an exception was in 1996, when trials were conducted for the 48kg men’s Greco-Roman category, though in that case Kaka Pawar secured the quota but Pappu Yadav was the federation’s initial selection).

Sushil Kumar has argued that trials are necessary to judge whether an athlete is in form going into a major tournament, and has cited the fact that reigning Olympic and world champion, Jordan Burroughs of the United States, had to undergo trials to represent the US in Rio. The WFI is worried that if they accept Sushil’s demand, other athletes may come forward to contest the WFI’s picks for other categories.

A similar question has gone to court before. In 2014, a number of wrestlers including Amit Dhankhar and Rahul Aware moved the Delhi High Court for the conducting of trials for the Commonwealth Games.1 The WFI in turn argued that it was not necessary to hold trials before every event. The Court found that according to guidelines incorporated in the National Sports Code formulated by the Ministry of Youth Affairs and Sports (binding on all National Sports Federations), it was in fact necessary to hold selection trials before major international events like the Olympics, Commonwealth Games, etc. It was only because the final list of names had already been sent to the Commonwealth Games Committee and a training camp in preparation for the Games was already in session that the holding of trials was not ordered.

Sushil Kumar has now moved the Delhi HC. It was initially reported that the WFI had sent the IOA a list of probables which did not feature Sushil Kumar’s name. Subsequently, however, the WFI has stated that it did not send any list and that Sushil Kumar is not out of the running. WFI president Brij Bhushan Sharan Singh has stated that it is the federation’s parampara to send the wrestler who has secured the berth, and has expressed reluctance to conduct trials. Nevertheless, Sushil Kumar has a good chance of getting his chance in a trial if the court decides his case quickly.


 
1Amit Kumar Dhankhar v Union of India WP (C) 3914/2014, Delhi HC, decided 3 July 2014