IPL media rights bidding structure, Yadav investigation and DRS in Indian cricket

DRS in India - England test series

On 21 October, the Board of Control for Cricket in India (BCCI) announced that it will be using the Decision Review System (DRS) which started on 9 November in the India England test series. Implementing DRS on a trial basis, the BCCI will be evaluating the DRS over time.¹ The DRS is used to determine calls such as outs caused by Leg Before Wicket (LBW) which depends on determining the trajectory of the ball after it is bowled and its respective impact, as well as how the ball is delivered; see Law 36.1 and 36.2 of the "Laws of Cricket".²

The use of the DRS is outlined in multiple International Cricket Council (ICC) regulations. According to Law 3.1.6 of the "Standard Test Match Playing Conditions" of the ICC, when the DRS is used in Test Matches, “ICC will appoint a third umpire who shall act as the emergency umpire and officiate in regard to the DRS.”³ The specifics of how the DRS is used to reach a final decision are outlined in Appendix 1 of the "Standard Test Match Playing Conditions" of the ICC.⁴ In addition to the playing conditions, the ICC has published a document called “Third Umpire – Decision Review System”.⁵ This document is complementary to the Standard Test Match Playing Conditions and further outlines the consultancy and decision making process.

According to the Indian Express article, the DRS was last used by India in 2008 in a bilateral series against Sri Lanka. India has also used the DRS in national tournaments as well as the World Cup.⁶

Whilst the DRS was implemented in the 2015 World Cup, it is, in the author’s opinion, a positive step that the BCCI are evaluating the system again this year as having a universally agreed protocol can only be a benefit for sport.

CBI investigation into the alleged sabotage of Yadav

Readers will remember that Indian wrestler, Narsingh Yadav, was banned by CAS Ad Hoc Panel at the Rio Olympic Games from competing at the Olympics for an anti-doping violation. According to Yadav’s pleadings, presumably, a junior wrestler, Jithesh Kumar, committed an act of sabotage by mixing banned substances into his meals with the intention of making him test positive for a doping offence. The CAS decision mentions that Jithesh is part of Yadav’s rival, Sushil Kumar’s, “entourage”. In that, Jithesh may have wanted to assist Kumar succeed, and eliminating Yadav’s chances to compete would be advantageous for Sushil Kumar’s ability to compete in the Games. Yadav was initially cleared by the National Anti Doping Association, who accepted his story. However, WADA appealed the decision to CAS, who rejected Yadav’s story and administered him a four-year ban. (For more information on the background, see here.⁷)

However, the story is not yet over. In an interesting turn of events, the Wresting Federation of India have requested that India’s Central Bureau of Investigation (CBI) conduct a criminal investigation into the alleged sabotage.⁸ The CBI have now re-registered a First Information Report (FIR), which was initially registered by the Haryana Police (state police).⁹ In India, a FIR is the first step in setting “the criminal justice in motion”. It is a complaint filed by the state police upon receiving “information about the commission of a cognizable offence.”¹⁰ In this context, a cognizable offence is one that allows the police to make an arrest without a warrant. It is also an offence that the police can begin investigating on their own, without a court order.¹¹

Chapter 14¹² of the CBI’s “General Instructions Regarding Investigation & Enquiries” explains that the CBI can re-register the FIR filed by state police, but it is permitted to arrive at its own conclusion following the investigation. The state police can investigate in their own territories, while giving the Central Government authority to conduct its own investigation in that state.

Yadav’s case is registered under Section 120-B, 328, 506 of the Indian Penal Code (IPC)¹³.

Section 120-B of Chapter 5 of the IPC deals with the different types of punishments that any who is “party to a criminal conspiracy” could face.
Section 328 of Chapter 16 of the IPC explains that an act of poisoning with the intent to hurt or the intent to “commit or facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt” will face imprisonment for a period of up to ten years and also may face a fine.
Section 506 of Chapter 22 of the IPC addresses any acts that are considered “criminal intimidation” and their respective sentences.

It is worth noting that the WADA explained in section 7.17 of the CAS decision that any decision made by a criminal court in India confirming alleged sabotage could result in the ad hoc panel’s decision being reviewed.¹⁴

IPL media rights bidding structure and the Lodha Committee’s actions

The new IPL bidding structure and controversy

As of 19 October, the BCCI had reportedly “sold 18 tender documents for the Indian Premier League (IPL) media rights” during the purchase window from 19 September to 18 October. The original tender documents noted that three separate types of bids would be made for: television broadcast rights for India, Indian digital rights, and lastly international media rights.¹⁵

However, according to the Times of India, as of 17 October, the BCCI has allowed for “consolidated bids”, allowing one company to bid for all three type of bids mentioned above. This sort of bid is also described as a “bundled bid” by the Times of India, as a consolidated bid is one overarching bid comprised of all three of the separate bid types above. Strong consolidated bids can come from companies such as Star or Sony. Separate bids could come from media leaders such as Amazon or Twitter as well as Sky Sports for international media rights.¹⁶ Possibly due to the new format on the tender documents, the Times of India and Economic Times articles explain that this tender process seems to be in favor of larger broadcasters, who are able to provide the services required in all three categories of the consolidated bids.¹⁷

Sources mentioned in the Economic Times have explained that the BCCI have the right to choose between the consolidated bids or the separate bids. The overall total sum of the separate bids does not need to equal or beat that of the consolidated bid. However, even with that, Times of India noted that it is implied from the new bidding structure that if a single bid is higher than the sum three separate bids, then the consolidated bid would win all the rights.¹⁸

With this, the BCCI has to choose between 18 bidders. The deals will be for the following “The Indian sub-continent television rights on offer are for 10 IPL seasons (2018 – 2027), while India digital rights and rest of the world are for 5 IPL seasons each, between 2018 and 2022.”¹⁹

The Lodha Committee’s intervention

The deadline for offers was 25 October.²⁰ However the BCCI has postponed the bidding process due to the latest judgment issued on 21 October 2016 by the Supreme Court of India regarding BCCI v. Cricket Association of Bihar & Ors. ²¹

In its 21 October judgment, the Supreme Court appointed Lodha Committee, with its on going reform of the BCCI, introduced a change to the BCCI’s future contracts. The Supreme Court requested that “a threshold value to be fixed by the Committee; (c) The award of contracts by BCCI above the threshold fixed by the Committee shall be subject to the prior approval of the Committee.” The Supreme Court additionally recommended that the Lodha Committee appoint an independent auditor to “verify the BCCI’s accounts.”²² Thus, without the Committee’s approval the BCCI was not able to continue with the bidding process as planned on 25 October. The Committee has told the BCCI that it needs further clarifications, which the BCCI have now provided. Without the Committee’s decision or recommendations on this matter, the IPL bidding process have to be paused until further notice.²³

Familiar territory for the BCCI:
Surinder Singh Barmi Informant v. IPL & Anr.

Allegations of anti-competitive behavior in the IPL bidding process is not new for the BCCI. In 2013, the Competition Commission of India gave its order in the case of Surinder Singh Barmi Informant v. IPL & Anr. ²⁴ As a brief overview, Shri Surinder Singh Barmi filed the case against the BCCI, under Section 19(1)(a) of the Act, alleging that the BCCI’s bidding process for the IPL violated the Competition Act 2002. Among other matters, lack of transparency and issuing exclusive media rights for longer periods, were a few of Barmi’s top concerns.²⁵ After the Commission determined that there was a prima facie case, it referred the case to the Director General (DG) for further investigation. Based on the Director General’s report, the Commission’s majority opinion concluded that “BCCI has abused its dominant position in contravention of Section 4(2)(c) of the Act.”²⁶

The Competition Act, 2002 and how it applies to the IPL bidding structure

Section 4 of the Competition Act, 2002²⁷ pertains to the 'Abuse of dominant position'. According to the above mentioned order, Part 2c of Section 4 of Chapter 2 of the Competition Act, 2002, with amendments from Section 3 of the Competition (Amendment) Act 2007²⁸, specifically states an act will be considered an abuse of dominant position if the enterprise or group “indulges in practice or practices resulting in denial of market access [in any manner];”.²⁹

It is important to note that a potential abuse of dominant position in the current bidding process is only based on allegations. A case has not been filed against the BCCI for the current bidding structure. Regardless of a case being filed, Section 19 of Chapter IV of the Competition Act 2002, allows the Competition Commission of India to inquire into cases on “its own motion” for matters pertaining to dominant position.³⁰ The Competition Commission has not yet issued a statement on whether it will inquire into the BCCI’s new bidding structure.