Sports Law

The Case of “Amateur” Baseball Federation of India: Analysis Through Competition Lens

[By Pranav Tomar & Umang Chaturvedi]  The authors are students at the Rajiv Gandhi National University of Law, Patiala.  Introduction The commercialization of sports has strongly affected the landscape of sports federations in India. Now, these associations/federations act not only as regulators of domestic sports or facilitators to sportspersons but also add value to business houses. Recent trends prove that these Government-recognized federations are frequently found in conflict while fulfilling their duties due to the unparalleled power that they possess as entities. Hence, a check on such powers is of utmost importance, which can only be ensured through the law of the land. In consideration of such checks and balances, provisions of the Competition Act, 2002 (‘Act’) prove to be helpful in India. Recently, the Competition Commission of India (‘Commission’) in an information filed by the Confederation of Professional Baseball Softball Clubs (‘CPBSC’) held the Amateur Baseball Federation of India (‘ABFI’) in contravention of Section 4 of the Act (abuse of dominant position). In this piece, the authors analyse the acts of ABFI through the lens of precedents and the Indian competition law regime and will attempt to provide solutions to sports-related competition law violations. Facts of the Amateur Baseball Federation’s case CPBSC was a not-for-profit organization that worked for the development of baseball and softball privately, whereas ABFI was a National Sports Federation affiliated to the Sports Ministry that acted as the national regulator of baseball. ABFI was also affiliated with international baseball regulators and was officially entrusted with the duty of promoting the sport through various means. The matter stems from the act of CPBSC where it intended to organize an intra-club national Championship in February 2021 to provide a platform to young players. However, ABFI through its regulatory powers issued a letter dated 7th January 2021 that prohibited State affiliates from acknowledging private bodies and further threatened the interested players with disciplinary action if they participate in any unrecognized league. In fright, the registered clubs revoked their participation from the Championship which caused losses to organizers, i.e. CPBSC. Simultaneously, ABFI scheduled its flagship National Championship amidst the second wave of pandemic in late March 2021 and notified through a communication dated 1st March 2021. Eventually, the aforementioned communication turned out to be malafide considering that it was released after CPBSC finalized the dates of its private Championship and ABFI deliberately scheduled it on similar dates only to cause hindrance to CPBSC. ABFIs Championship was an event of utmost importance to all players as it gave them a chance to be considered for representing India in future. Hence, such acts caused chaos amongst the players and state bodies which forced them to choose ABFIs league only by not participating in another opportunity which was offered by CPBSC. ABFI case vis-à-vis precedents To tackle abuse of dominant position information, the foremost question the Commission faces is whether the organization is an enterprise? The commercial role of sports organizations forces them to comply with the definition of “enterprise” as provided under Section 2(h) of the Act. It was noted in Surinder Singh Barmi v. BCCI (‘Barmi’) that the definition of an enterprise is “wide enough to include any economic activity by an entity”. However, in ABFI’s case, the Commission went a step ahead and noted that even a non-commercial economic activity shall be subjected to the scrutiny of the Act. To do so, it used the “functional approach”, which has been relied upon in various Indian cases but primarily finds its mention in MOTOE v. Elliniko Dimosio. The approach suggests that every function shall be assessed separately as a federation may act as an enterprise when it is carrying one activity and not when carrying any other. In MOTOE, the Grand Chamber of the European Court of Justice stated that the economic activity having any connection with a sports-related act i.e. essential function does not restrict such entity from being scrutinized as an enterprise that in Indian parlance is defined under Section 2(h) of the Act. Further, the procedural set-up of the Act suggests that when the Commission adjudicates upon abuse of dominant position, a three-fold process is followed – Delineation of the relevant market in which enterprise exists Section 2(s) of the Act defines the “relevant market” for appropriate adjudication and determining the scope of the investigation. The relevant geographic market from Barmi to ABFI has always remained the same, in essence, India. It is the delineation of the product market that was presented through different approaches – (i) Consumer & multitude relationship approach (which states that federations have multiple functions to discharge with regards to other enterprises and consumers) in Dhanraj Pillay & Others v. M/s Hockey India (‘Pillay’); and (ii) the principle of substitutability (of sport & of services provided by one governing body) in Ministry of Youth Affairs and Sports v. Athletics Federation of India (‘AFI’). Based on the above-mentioned principles, the relevant market in ABFIs case was delineated as “market for organization of baseball leagues/events/ tournaments in India” because (i) no other sport can replace baseball; and (ii) no other regulatory body provides the necessary services. Establishing the dominance of enterprise within its relevant market The term “pyramid structure” finds utmost importance when determining the dominance of a sports organization. It refers to the organizational structure of sports entities which is modelled to fulfil governance loopholes. For instance, the Basketball Federation of India is the regulator and facilitator of basketball in India and has been recognized by another bigger regulator at the international level i.e. Fédération Internationale de Basketball. The same stands true with BCCI and ICC in the context of cricket. The pyramid structure has been noted in various cases in India like Barmi and Pillay. Although the pyramid is a monopolistic structure in itself, it ensures uniformity of sports globally. However, such structure makes these organizations the de facto authority coupled with factors like unilateral decisions, malafide bans on respective athletes, disapproval to local leagues, etc. further establishing their dominance before the

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Board of Control for Cricket in India [BCCI] to Athletic Federation of India [AFI]: An Evolving Jurisprudence on Sports-Competition Law

[Pradyumna Yadav] The author is a 2nd year student of UPES, Dehradun. Introduction Sporting Regulatory Authorities or SRAs are established in India with a primary objective of controlling, promoting, regulating and selecting teams for their specific sports. Amongst all SRAs, the most prominent one is Board of Control for Cricket in India or BCCI, a society registered under Tamil Nadu Society Registration Act, 1975 and established for the purpose of administering the game of cricket in India. Surinder Singh Barmi v. Board of Control for Cricket in India[i]was the first Indian case wherein the Competition Commission of India or CCI was posed with question of interpreting the provisions of our anti-trust law with that to our sports industry, the chronology of cases[ii]brought forth to CCI post-Barmi adjudication developed a jurisprudence in parlance with global trends, especially to that of European Union [EU]. The question which was very important for the commission to answer in Barmi and succeeding case was with regard to applicability of Competition Act, 2002 to such authorities. If competition act is applicable to such bodies then what is the mechanism for determining relevant market of such regulatory bodies? It is imperative to state that Competition Act, 2002 aims to promote healthy competition in the economy rather than curbing monopolies, a legislative intent of it’s preceding legislation. The reason why SRAs are in dominance in India is because usually the International Sports Affiliation recognises one domestic SRA. So, dominance per se cannot be form of anti-competitive allegation, it is only through abuse of dominance an SRA can be brought under the net of our anti-trust law. Lastly if there is abuse of dominance by SRAs, it has to be carefully examined and construed in such cases whether such abuse of dominance was carried out while performing regulatory function or ‘economical’ function as interpreted under the Competition Act.  Guiding Principles Post-Surinder Singh Barmi, the law on the subject of sports and competition law has diversified, in order to evaluate the position of BCCI or any other SRAs in near future with current standpoint of law, the general principles can be summarised as follows: SRAs would fall within the ambit of ‘enterprises’ only if it exercises its function of facilitating its concerned sport. Facilitation for this purpose means organising, promoting and educating about the concerned sport through sporting tournaments or events. Profit or not-for-profit motive in conducting events holds no relevance. [This principle is derived from all Indian Cases in this context and MOTOE v. Elliniko Dimosio, [2008] C-49/07, (European Court of Justice, Grand Chamber)] While determining the relevant market of SRA, emphasises should be laid upon demand substitutability and ascertaining who is the relevant consumer, through the analysis of multitude relationship that regulator shares, for example, while granting of media rights by SRA to broadcasters, the broadcasters in this case forms the relevant consumer in media right market. [Barmi case just restricted itself to demand substitutability, whereas subsequently Dhanraj Pillay case propounded determination of relevant consumers through ‘principle of multitude relationships’] Dominance should be derived from the governing powers and objectives of the SRA, governing power is implied from its memorandum, bye-laws, rules and regulation, also laws from its affiliated international governing body. If the governing power is vested in such a way so as to cater SRA’s dominance in the relevant market, then SRA would have dominance in that relevant market. Abuse of dominance in relevant market would not amount to abuse when the restrictive condition (alleged anti-competitive conduct) is in consonance with the objectives of SRA and the effect arising from such condition is proportionate to the legitimate sporting interest, then condition so imposed by SRA cannot be termed as anti-competitive. If restrain is a necessary requirement for development of sports or preserving its integrity, then the same cannot be also classified as anti-competitive. International Affiliation Body would be also liable for any abuse of dominance on the part of SRAs if it has full knowledge and supported such abuse. [ Principle derived from Hockey India Federation and Chess Federation Case, due delay in propounding this principle ICC scouted free from its liability in Barmi’s case] Conclusion Apart from EU’s Competition Law, Competition Act, 2002 has borrowed it’s essence from U.S. Anti-Trust Law, interpretation of competition law and sporting industry in America initiated from the case of Federal Baseball Club of Baltimore, Inc v. National League of Professional Baseball Clubs,259 U.S. 200 (1922, Court of Appeals, Columbia), wherein court held that sports and anti-trust law are different, both of them cannot be construed together, thereby holding a sports exception in which competition regulator cannot scrutinise the activities in sporting industry. Efforts and diligence of commission needs to applauded for recognising the difference in Indian sports environment to that of America’s, this is the reason why CCI did not adopt the exception because regulatory and organising role is carried out one entity in India whereas in U.S., it is in the hands of private individuals or bodies. Ever since 1991, India has seen a surge in globalisation and commercialisation of every industry, it is only a matter of time that such surge is going change whole of dynamics of Indian sports industry as well the economy at large, there would challenging and new anti-trust issues in sports- competition law but given the way commission has evolved its take on these issues and developed a jurisprudence, it’s only a matter of time when India will surpass EU’s Sports-Competition Law. [i]Case No. 61 of 2010, (Competition Commission of India, 8/2/ 2013). [ii]Dhanraj Pillay & Others v. M/s Hockey India, Case No. 73 of 2011, (Competition Commission of India, 31/05/2013). Hemant Sharma & Others v. All India Chess Federation (AICF), Case No. 79 of 2011 (Competition Commission of India, 21/02/2018). Ministry of Youth Affairs and Sports v. Athletics Federation of India, Reference Case No. 01 of 2015 (Competition Commission of India).

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Match Fixing: Need for a Better Legislation

Match Fixing: Need for a Better Legislation. [Saumya Agarwal] The author is a 3rd year B.A.LLB (Hons.) student of NLIU, Bhopal Introduction Match fixing has become a part and parcel to almost every existing sport in the world and has flexed its arms to tarnish the basic ethnicity of the term Sports. Oxford dictionary defines sports as: “an activity involving physical exertion and skill in which an individual or team competes against another or others for entertainment.” Entertainment, if we focus on this sole term of the definition provided we will realise that ample number of formats and championships have been introduced to provide entertainment to that audience that spends chunks of money. Indian Premier League is one of the best existing examples wherein players from across the world are auctioned upon and celebrities, business tycoons are seen spending their fortune. The Council of Europe Convention on the Manipulation of Sports Competitions which was concluded in Macolin on 18 September 2014 (Macolin Convention) is a multilateral treaty that aims to prevent, detect, and punish match fixing in sport. “Manipulation of sport competitions means an intentional arrangement, act or omission aimed at an improper alteration of the result or the course of a sport competition in order to remove all or part of the unpredictable nature of the aforementioned sport competition with a view to obtaining an undue advantage for oneself or for others.”[1] The above definition of “match-fixing” covers a wide range of situations: -The deliberate loss of a match or a phase of a match; -The deliberate underperformance by a competitor or improper withdrawal before the conclusion of a match (tanking); -The fixing of specific elements of a sporting event (spot-fixing); -The deliberate misapplication of the rules of a sport by the referee and/or other match -officials; -Interference with the play, playing surfaces or equipment. It is surprising to note that nowhere in the Indian Laws the term Match-fixing is defined. It was only until CBI Report on Match Fixing allegations which came in 2000 wherein the term was defined as[2]: (i) instances where an individual player or group of players received money individually/collectively to underperform; (ii) instances where a player placed bets in matches in which he played that would naturally undermine his performance; (iii) instances where players passed on information to a betting syndicate about team composition, probable result, pitch condition, weather, etc., (iv) instances where groundsmen were given money to prepare a pitch in a way which suited the betting syndicate; and (v) instances of current and ex-players being used by bookies to gain access to Indian and foreign players to influence their performance for a monetary consideration. The phenomenon of match fixing can be dated back to infamous incident of Black Sox scandal 1919 where eleven members of the Chicago White Sox team threw the world series. The phenomenon is carried out in two ways: tanking and spot fixing. Tanking is when the player intentionally throws away the game at his hand by deliberately losing or not competing at all and spot-fixing involves fixing small events within a match which can be gambled upon, but which are unlikely to prove decisive in determining the final result of the game. The widespread of match-fixing is immense and can be seen in almost every sport, cricket, baseball, tennis, horse-racing, snooker, sumo-wrestling to name a few. However, a high concentration can be seen in cricket. The world has witnessed many infamous cases of match-fixing and a recent sting operation documentary of Al-Jazeera discusses the match-fixing incidents covering almost all the formats of cricket. Indian Laws The laws in India under which match-fixing can be dealt with are as under: Indian Penal Code,1860 (IPC): Section 415 of IPC which deals with the offence of cheating includes deceiving’ a person’. Cheating must be committed against a specific person. The section does not include the term ‘persons’. Match-fixing is an offence against public at large which is not included here as it deals with a person in specific. The section also warrants transfer of property which is not clearly involved in match-fixing. Section 120-A of IPC deals with conspiracy which uses the term illegal acts. Since none of the laws in India illegitimates match fixing therefore it cannot be covered under this section. Moreover, for it to be a criminal offence, dishonest intention (i.e. presence of mens rea) is to be proved with wrongful loss/gain. Since the wrongful loss caused to the spectators is consequential and not something caused intentionally it cannot be covered under IPC. Prevention of Corruption Act, 1988(PCA)[3]: According to section 13 (1) (d) (ii) of PCA ‘a public servant is said to commit the offence of criminal misconduct, if he by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.’ To bring the act of match fixing one has to bring ‘cricketers’ under ‘public servants’. S. 2 (c) (viii) defines public servant as a person who holds an office by virtue of which he is authorized or required to perform any public duty. But do cricketers really do any public duty. Cricketers are mere professionals governed by independent contracts whose job is to entertain people by playing cricket. They do nothing sort of public duty. Thus cricketers do not come under Prevention of Corruption Act, 1988 also. The Public Gambling Act, 1867 (PGA): The Public Gambling Act is the only law bringing match-fixing directly in its ambit as gambling is its direct cause. However, Section 12 of the act provides with an exception that it would not apply to game of mere skill and nowhere defines the phrase. Horse racing and rummy are seen as game of mere skill. The power lies with the states to determine the status of betting and gambling as they are state subjects under the Seventh Schedule of the Constitution. Goa and Sikkim have legalised many forms of betting and gambling. Thus, there lies a grey area when it

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Sandpapergate: ICC’s Failure to Save the Spirit of the Game from Orchestrated Cheating

Sandpapergate: ICC’s Failure to Save the Spirit of the Game from Orchestrated Cheating. [Ayushi Singh] The author is a third-year student at National Law University, Jodhpur. She may be reached at The South Africa-Australia Test Series saga has not stopped unravelling since the ball-tampering scandal was captured on live telecast during the third test match. Whether or not South Africa manages to clinch a Test Series win against Australia at home-a feat last achieved in 1970- is yet to be seen; however, it is not wrong to say that this series will be remembered for the hullaballoo caused when Cameron Bancroft was caught red-handed with sandpaper and tape – foreign substances being used to scuff up the ball on live television, with Australian captain Steve Smith confessing to being the ring-leader behind the offence. The public reception to this collusive act of cheating has been scathing and acute. During the third test match, Australian supporters removed their flag and stuck naked flags instead. Cricket legends have come forward in collective disdain for the acts of the Australian captain including past captains like Michael Clarke; even the Australian Prime Minister Malcolm Turnbull called for swift action against the disgraceful act of cheating. Personal opinions aside, as far as tangible backlash is concerned, Steve Smith and David Warner have been demoted from their posts of Captain and Vice-Captain respectively. Even coach Darren Lehmann is liable to be removed from his post with reports stating thathe knew about the plan as he had tried to warn Bancroft about being caught on camera. Steve Smith has also been removed from captaincy of the Indian Premier League team Rajasthan Royals. Cricket Australia is still carrying out investigations on Johannesburg and is yet to reply to reports of whether the players involved would be facing a year-long ban from the team. Despite the bitter fallout faced by the players, mainly Smith and Bancroft, the punishment meted out by the International Cricket Council has been surprisingly lukewarm. Steve Smith was charged under Article 2.2.1 of the Code of Conduct i.e. act of serious nature that is contrary to the spirit of the game – a Level 2 offence which brought forth a fine of 100% of his match fee and one Test Match ban. Cameron Bancroft was charged under the Level 2 offence of Article 2.2.9 of the Code i.e. changing the condition of the ball in breach of clause 41.3 of the ICC Standard Test Match, ODI and T20I Playing Conditions, receiving a fine of 75% of his match fee and three demerit points. With glorious expectations that hoped for the ICC to take strict action against this premeditated act of cheating and set a strong precedent for the future, this punishment was met with less than warm reviews. ICC Demerit Point System for Offences The demerit points system of the ICC was introduced in December 2016 as a tool to crackdown on repeat offenders of the ICC Code of Conduct. The mechanism in place simply notes the presence of demerit points in the record of the player in correspondence with the Level of Offence committed by him/her. These points remain in the record of the player for 24 months and the accumulated demerit points may translate into corresponding punishments of suspension in ICC International matches. Even after a ban or suspension has been meted out, the demerit points remain in the record for 24 months so as to hold the player accountable and deter recidivism. This does bring in questions of double jeopardy, however, the intention is to increase the gravity of the punishment with every repeated offence. The number of offences defined by the ICC Code are divided into to four Levels: Level 1 constitutes minor offences; Level 2 constitutes serious offences; Level 3 covers very serious offences, while Level 4 constitutes overwhelmingly serious offences.[1] According to Article 6 of the Code, which defines the standard of proof for the offences, the Match Referee or the Judicial Commissioner must be satisfied as to the commission of the offence.[2] This “comfortable satisfaction” is subject to the sliding standard of proof wherein minor offences have to be proved on the basis of balance of probabilities while overwhelmingly serious offences have to be proved beyond a reasonable doubt. The nature of evidence must of the kind that can be proved by reliable means: i.e. as in this case, the presence of live television footage and the players’ admission. It must also be noted that, the level of offence is also dependent on the context of the occurrence. It is on the foundation of context that the action taken by the ICC seems to fall short. On his very own admission, Steve Smith brings to light a premeditated, concerted effort to indulge in the act of cheating during the Test Series. Bancroft admits complying with the instructions of the captain and “a bunch of senior players” to use the foreign objects to tamper with the ball. This shows that an intention to cheat and influence the course of the game was present from the very beginning. If past instances of ball tampering are referred to for perspective, these acts seem to have been resorted to in the spur of the moments. For example, Faf du Plessis, who has been charged for this offence twice, used the zip of his trousers and later saliva from a mint to tamper with the ball. Shahid Afridi bit the ball, Vernon Philander scratched the ball with fingers and more recently, Dasun Shanaka picked the seam of the ball to tamper with it. This is not to say that these acts are not incidents worthy of action, but they can be distinguished with the present offence. The introduction of a foreign object onto the field from the very beginning displays a premeditated mala fide intention to be dishonest rather than an act of desperation during the game. It is also unfortunate to note that a new player in Bancroft was used as a vessel by the Captain and the “bunch of senior players” to indulge in dishonest acts. It is on the basis

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