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
0 comments:
Post a Comment