72. It is common ground that the validity of the impugned
amendment to Rule 6.2.4 shall have to be tested on a threshold basis viz. (i)
whether the amendment is made by the authority competent to do so; (ii) whether
the authority competent to bring about an amendment ha followed the procedure
prescribed for the same; and (iii) whether the amendment falls foul of any
statute or principle of law, violation whereof cannot be countenanced.

(para 72;  BCCI and Ors v Cricket
Association of Bihar and Ors.
SLP(C) No. 34228 of 2014, decided on 22.01.2015)

Let’s begin with clarifications – this “amendment” is not
strictly an amendment in the legal parlance; rule 6.2.4 is not a “law” and the
“authority” is not either “state” or “other authority” under Article 12 of the
Constitution of India as held by the Supreme Court in Zee Telefilms Ltd and Anr. Vs. Union of India (WP(c) 541 of 2004, decided on 2.02.2005) and then in the abovementioned case BCCI and Ors. V Cricket Association of Bihar and Ors. Yet this
three-point test would sound familiar to constitutional experts. Although the
contention and conclusions around jurisdiction of high courts over BCCI may not
be undisputed, I skip that part for now and instead focus on question (iii)
raised by the Supreme Court as quoted above. Before that, here is the context.

Rule 6.2.4 before the amendment was: No Administrators shall have, directly, or indirectly, any commercial
interest in the matches or events conducted by the Board. The amendment added:
excluding events like IPL or Champions
League Twenty 20.

It was contended by the appellants that the underlying
intention behind this amendment was to protect the grant of Chennai Super Kings
(CSK) to Mr. Srinivasan’s Indian Cements Ltd which otherwise would have been a
clear breach of the rule 6.4.2 since Mr. Srinivasan was the President of BCCI
as well as the Vice-Chairman and Managing Director of Indian Cements Limited.

The Court noted that the amendment had not been questioned
for violation of the Tamilnadu Registration of Societies Act or for that
matter, any other Act and goes on to find violation of principle of natural
justice and public policy. Again, I reserve my comments on this part and I
argue that the appellants could have contended violation of competition law in
addition. Or the Court could have suo
moto referred this matter to the Competition Commission under section 21(1)
of the Competition Act, 2002 (‘Act’).

The obvious objection would be: BCCI is a private
non-statutory regulator and the rule in question is not about the business
activity, but about regulating conduct of its staff. For example, the rule is
not about broadcasting rights, ticket prices or contracts with equipment
vendors. The rule is at best a prevention-of-conflict-of-interest rule. Sports
associations have been subject matters of the Competition regulators in other
jurisdictions as well, especially in cases of broadcasting rights and access to
tickets (Budzinski, Oliver.
“The institutional framework for doing
sports business: Principles of EU competition policy in sports
markets.” International Journal of Sport Management and Marketing 2 11.1-2 (2012): 44-72.).  But here, the
question is of ethics and integrity.

Well, the question is indeed of competition law if this impugned
amendment to rule 6.4.2 causes or likely
to cause an appreciable adverse effect on competition within India as per
section 3 read with section 19(3) of the Act. Simply, a safeguard preventing
conflict of interest is being diluted vide this amendment. The consequence that
any administrator involved in the functioning of BCCI can then have stake in
IPL franchisees would obviously lead to collusive bidding, bid rigging [section
(3(3)(d)] as well as limiting or controlling “production, supply, markets,
technical development, investment or provision of services” [section (3(3)(b)].
Who would like to invest in cricket in India if the administrators collude with
Team franchisees? Further, an umpire cannot be a player in the same match
because if allowed to play, the umpire would have an incentive to decide in his
favour to the detriment of other players. This kind of conflict of interest
would be antithetical to competition since the regulator will have
discriminatory treatment towards some franchisee over others. It would encourage
financial, ethical and legal misconduct and impropriety. And it did. Mr.
Gurunath Meiyappan – the son-in-law of Mr. N. Srinivasan and a team official of
Chennai Super Kings (owned by India Cements Limited) was held guilty of spot
fixing/ betting. There were further allegations against Mr. N. Srinivasan that
he hastily set up a probe committee which was not strictly as per the BCCI, in
order to give clean chit to his son-in-law. Also, Mr. Srinivasan gave a false
deposition before the probe committee that Mr. Gurunath had nothing to do with
the cricketing affairs of CSK but the probe committee found out that he was a
team official having access to sensitive team information not available to a
mere cricketing enthusiast. Interestingly, the amendment was moved in the same
General Body Meeting on 27.09.2008 when Mr. N. Srinivasan was elected as the
Secretary of the BCCI. It is on the record that the amendment was moved in an
improper manner – without any notice, recommendation and agenda item. The
judgment dated 22.01.2015 also briefly mentions another contention that the
amendment was passed to neutralise another challenge in for of a suit filed by
one Mr. Muthiah over the question of conflict of interest. These facts indeed
deserved a CCI inquiry.

Similarly cases involving broadcasting rights can now be dealt under section 4 of the Act. Courts do not have to set up special committees for investigation and reforms, particularly when the legislature has provided for this Act. The Act has provisions for investigation as well as adjudication. Although the Act provides for suo moto inquiry as well but since these matters mostly land up in the constitutional courts first, CCI may hesitate in interfering with ongoing litigation. Therefore courts should pro-actively defer these matters to CCI instead of passing extensive directions.

(The author is an Advocate with the Centre for Civil Society, Delhi)