Legally speaking...

Justice R. M. Lodha, Chairman of the Supreme Court-appointed Justice Lodha Committee, announces the verdict on the Indian Premier League.-PTI

The dominant message that the Lodha Committee verdicts give is that cricket is more than a passion for millions of Indians, and a “great unifying force” in the country. That the game is bigger than the individuals or their money, the franchisees and the players who play it, writes Krishnanda Rajagopal.

Before getting into the legal recourse open before the BCCI and the affected IPL franchisees, India Cements Ltd and Jaipur IPL, it is important to understand the tenor and spirit of the Supreme Court judgment on the IPL betting and match-fixing controversy that hit the Indian cricketing world and the subsequent 59-page order of the three-member Justice R. M. Lodha Committee imposing sanctions on the wrong-doers.

The dominant message the verdicts give is that cricket is more than a passion for millions of Indians, and a “great unifying force” in the country. That the game is bigger than the individuals or their money, the franchisees and the players who play it.

“Individuals are birds of passage while institutions are forever,” said the Supreme Court in its January 22 judgment.

Both the Supreme Court judgment and the Justice Lodha Committee agree that a “zero tolerance approach towards any wrong doing alone can satisfy the cry for cleansing”.

Former BCCI President N. Srinivasan’s arguments against imposing sanctions in the Supreme Court on the ground that IPL is only a “commercial venture” meant as a platform for Indian and international cricketers to make a living from the sport, fell flat. The BCCI had warned the court that sanctions would lead to huge financial losses to not only the franchisees, but also players, coaches and professionals involved in the League.

The court countered this by asking whether the BCCI can afford to see the game lose its credibility in the eyes of those who watch it. Justice Thakur wrote that the Board should swallow its pride, even suffer financially for the long-term benefit of the game.

“Can the BCCI live with the idea of the game being seen only as a means to cheat the unsuspecting and gullible spectators... BCCI’s commercial plans for its own benefit and the benefit of the players are bound to blow up in smoke, if the people who watch and support the game were to lose interest or be indifferent...” the Supreme Court observed.

The Supreme Court and the Committee say very little about the legal options left to the BCCI and the two franchisees against the sanctions.

For one, the apex court observes that it had to intervene in the first place because the BCCI did not act to punish misconduct. Having said this, the Supreme Court stops short of imposing sanctions on the ground that it did not want to be seen as “clutching” at the jurisdiction of the Board. At the same time, the court did not trust the BCCI to use its powers to impose a suitable punishment.

So, it set up the Justice Lodha Committee as an independent body to “exercise that power for and on the behalf of the BCCI”. This means that the Lodha Committee is the BCCI, an alter ego in its pristine form. Hence, the question is how can the BCCI move for legal redress against itself? The Lodha Committee only did as per law what the BCCI had to do in the first place.

The Supreme Court further checkmates by making the Lodha Committee’s order “final and binding” on the BCCI and the affected parties. The judgment is deliberately vague about the affected parties’ legal options. It only says that aggrieved persons can “seek redress in appropriate judicial proceedings in accordance with law”.

The Justice Lodha Committee has only walked the line the apex court drew for it. Its July 14 order is limited to pronouncing the quantum of punishment for betting.

For an answer to whether the BCCI, team officials and the franchisees can appeal the courts against the suspensions, one has to go back to the Supreme Court judgment.

The judgment spells out in great detail the provisions in the IPL Operational Rules, the BCCI Anti-Corruption Code and even the franchise agreement governing conduct, and the sanctions which would visit anyone, be it franchisee, official or player, found guilty of misconduct or corruption.

The Supreme Court says there is no dearth of rules against corruption, the only chink in the armour was the lack of will on the part of the BCCI to execute the rules against the erring party to “maintain public confidence in the game”.

“BCCI claims to have adopted the Anti-Corruption Code for achieving what it describes as certain fundamental sporting imperatives. The BCCI, by standards set by it, is duty bound to ensure that the game of cricket is played in accordance with those sporting imperatives not only because the game itself is described as a gentleman’s game but also because adherence to sporting imperatives alone can maintain the public confidence in its purity,” the court held.

As for the franchisees, the court said, when they signed on the IPL, they did so voluntarily with their eyes fully open, agreeing to be governed by the code of conduct and suffer consequences if found guilty of breaching it.

For example, Clause 11.3 of the common BCCI-franchisee agreement says BCCI-IPL may terminate the agreement with immediate effect by written notice if any of the following three situations arise.

One, if there is change in control of the franchise. Two, if the franchisee transfers any material part of its business or assets to any other person. Three, if the franchisee or owner or franchisee group company “in any way has a material adverse effect upon the reputation or standing of the League, BCCI-IPL, BCCI, the franchisee, the team (or any other team in the League) and/or the game of cricket”.

Again, subsequent measures taken by ICL to part with ownership of CSK and JIPL to remove Mr. Raj Kundra as part-owner did not help. They were still held accountable under the principle of “strict liability” for misconduct and suspended for two years.

But the apex court has been careful to restrict liability to the “commercial interests” of the franchisees and not spread the blame on the “professionally engaged” players, coaches and mentors in the IPL. For the franchisee, IPL is only a business investment. His sole interest is to buy a franchise, build a brand and sell it.

Dismissing the BCCI’s contention that suspension would affect the livelihood of coaches, mentors, players, etc, the court said cricket professionals are there in the IPL because of their professional skills. This opens the arena for players or teams to be loaned out or auctioned off as per the law.

Further, the Supreme Court makes the BCCI’s cricketing functions amenable to judicial review under Article 226 of the Constitution of India. It held that though the BCCI is a private society registered in Tamil Nadu under the Registration of Societies Act, its functions are “public in nature” and a citizen aggrieved by its cricketing decisions can move court.

“Such is the passion for this game in this country that cricketers are seen as icons by youngsters, middle-aged and the old alike. Any organisation, entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity,” the apex court said.

The Lodha Committee’s future role to overhaul the BCCI working and recommend guidelines on conflict of interest and misconduct is meant to firm up the Board against such challenges.