Why the BCCI’s Committee of Administrators Should Encourage Independent Ethics Investigations In Its Draft Constitution

09 December 2017
The Lodha committee correctly identified the absence of independent decision-making as one of the structural problems with cricket governance in India, but failed to provide effective procedures for independent investigations.
Arun Sharma/Hindustan Times/Getty Images

The news about cricket administration in India appears similar to that of a family-run business being dragged, kicking and screaming, towards professional management. In 2013, the Supreme Court initiated a process of reform in Indian cricket administration, following a scandal involving spot-fixing and conflicts of interest in the management of the Indian Premier League. At the time, the governing bodies for the sport in India, such as the Cricket Association of Bihar, had almost unanimously expressed their support for the reforms. But since then, cricket administration in India has remained complex.

In 2015, the Supreme Court appointed a three-member committee, chaired by the retired Supreme Court justice RM Lodha, to propose reforms to the structure and functioning of the Board of Cricket Control in India, the only national governing body for cricket in the country. In January the following year, the committee proposed sweeping reforms to the governance of the BCCI—the committee also included a draft constitution for the cricketing body that incorporated its recommendations. That July, the court approved the reforms and directed the BCCI to adopt and enforce the Lodha committee’s recommendations and constitution. The committee correctly identified the absence of independent decision-making as one of the structural problems with cricket governance in India, but failed to provide effective procedures for independent investigations.

The circumstances in which the Supreme Court came to intervene in the affairs of the BCCI serve to illustrate the organisation’s compromised decision-making. Soon after it announced plans to launch a domestic Twenty20 competition among city-based teams, the BCCI held an auction in January 2008 to determine the team owners. The company India Cements Limited purchased the team Chennai Super Kings—N Srinivasan, the managing director and vice-chairman of the company, was also the treasurer of the BCCI at the time.

This purchase, despite the easily apparent conflict of interest, could not have transpired without the approval of other BCCI administrators. A few months later, the members of the BCCI brazenly endorsed it by introducing an amendment to exclude “IPL, Champions League and Twenty20” from the conflict-of-interest clause that forbade its administrators from having “directly or indirectly, any commercial interest in the matches or events conducted by the cricket board.” In 2011, the year that the Chennai Super Kings won the IPL for a second time, N Srinivasan became the president of the BCCI.

All of this was well known and happened before the eyes of the public but almost no one involved in cricket administration objected or even asked any serious questions. The rot was clearly of a systemic nature. Matters came to a head in 2013 when the Mumbai Police arrested Srinivasan’s son-in-law Gurunath Meiyappan for conducting illegal betting and spot fixing in IPL matches. The scandal led to an appeal in the Supreme Court, through which reforms of its governance were eventually forced upon the BCCI.

Following this, the Supreme Court constituted the three-member Lodha committee to recommend changes that would “bring transparency in practices and procedures followed by the BCCI.” The Lodha committee identified the conflicts of interest that arose in the BCCI’s decision-making process and its implementation as one of the primary problems in the organisation’s functioning.

The committee made several recommendations in its draft constitution that overhauled the organisation’s governance structure. But some members of the BCCI resisted the enforcement of these recommendations. As a result, on 30 January this year, the Supreme Court appointed a four-member committee of administrators to oversee the implementation of the Lodha committee’s recommendations. In late October, the committee of administrators submitted another draft constitution to the Supreme Court, which took into account some of the BCCI’s objections to the Lodha committee’s recommendations. The text of this draft is not yet public.

To insulate the management of the BCCI from the day-to-day management of cricket, the Lodha committee had recommended the creation of a post of a chief executive officer. The office of the CEO has a fixed tenure and deals, through a cadre of professional managers, with all the non-cricketing matters—such as finance, marketing, and human resources. The committee also recommended the constitution of several committees to advise on cricketing matters, such as selection and coaching. Significantly, it proposed that none of the members or administrators of the BCCI would be involved in making and implementing decisions on the operational aspects of running cricket in India.

The Lodha committee recommended constituting the post of an ethics officer, who would administer the rules regarding any conflicts of interest. It also proposed creating the position of an ombudsman, who would, in addition to adjudicating on disputes between the various governing bodies, investigate and punish the acts of members, administrators, and other people that were detrimental to the sport or to the BCCI.

The draft constitution contemplates several consequences for acts of bad or corrupt governance. For state cricket associations, the more serious problems, such as a failure to limit the term of office bearer to three years, could attract de-recognition for repeat offenders—but only the general body of the BCCI would be empowered to take such a decision. Less serious problems come within the jurisdiction of the ethics officer—when they are related to conflicts of interest—and the ombudsman.

Perhaps this is one area where the committee’s remedy did not go as far as its diagnosis needed it to—the ombudsman’s powers are not sufficiently independent of the members of the BCCI. For instance, in certain cases, including those relating to corruption, the ombudsman can only initiate its investigation into a case after the apex council of the BCCI refers a complaint to it.

Under Rule 41(b) of the draft constitution, which provides for the ombudsman’s jurisdiction over “detriment caused by member or administrator,” the apex council only needs to refer the matter to the ombudsman after it has issued a show cause notice calling for an explanation and is not satisfied with the response. Five of the nine members constituting the apex council are the president, vice-president, secretary, joint-secretary, and treasurer of the BCCI, and a sixth is elected from among the members of the cricketing body. As a result, the freedom of an ombudsman to conduct an investigation against the top officials of the organisation would remain questionable.

Independent investigation is crucial for enforcing a check on unethical governance. But the procedure proposed by the Lodha committee is reminiscent of India’s process for holding its higher judiciary accountable—the Constitution empowers only the parliament to initiate impeachment proceedings against a judge of the high court or Supreme Court. For less serious judicial misdemeanors, the judiciary has developed its own internal disciplinary mechanism, but accountability has not bloomed. Similarly, the apex council of the BCCI is not a body that is capable of launching or conducting independent investigations, especially against members of the BCCI.

Problems with independent decision-making and investigation are not unique to the governance of cricket in India. The story of the reforms forcedon Indian cricket administration bears similarities to what is happening elsewhere in the sporting world. In 2015, after US and Swiss authorities arrested many top officials of FIFA, the top governing body of international football, the organisation announced accelerated reforms. The following year, the International Association of Athletics Federation, the global governing body for athletics, unveiled a similar process to reform its governance structure in the wake of a severe crisis of credibility after many of its senior officials were implicated in acts of financial corruption, collusion in doping, and extortion.

Each of these is a different strand in a much larger story about sport reluctantly emerging out of the shadow of volunteer administrators. Their role of governing sport, without earning a salary for it, has traditionally attracted individuals with independent sources of income and wealth. For example, influential politicians, prominent lawyers, businessmen, and members of the royal family have all occupied the role of the president of the BCCI.

A variety of factors have led to the initiation of reforms in the administration of sport—including demands by the athletes for better governance, governments seeking greater accountability in return for their patronage, and sponsors and broadcasters who demanded efficient administration.

Sports are particularly susceptible to bad governance due to a variety of factors. A primary reason is that the governance of sport is not disciplined by market competition. Markets for sports are effectively monopolies—a single governing body enforces the rules and playing conditions. For instance, the BCCI is the only governing body for cricket at the national level in India. As a result, the BCCI is also the sole buyer in the market for the labour of cricketers, coaches, and umpires, and the sole seller of sponsorship rights and broadcast rights.

Another significant factor is that sport has consistently resisted regulation through law, mostly in the name of autonomy from political interests. Instead, sports are governed through a private network of quid pro quo. The entire governance system rests on a network of mutual recognition because bodies performing governance functions at different levels recognize the rights of each other to govern. In cricket, for instance, the BCCI is the national governing body for the sport because the international governing body for cricket—the International Cricket Council—recognises it from above, and enough state-level governing bodies around India recognise it from below. In turn, the BCCI recognises state-level governing bodies, which gives them the legitimacy to govern cricket in a state, if they are similarly recognised by district and local cricket associations within the state as well.

Each level of governance depends, for its very legitimacy, solely on the bodies governing the sport above and below them, and not on any statutory provisions empowering the organisations. The recognition from a superior governing body also empowers a body to participate in the affairs of the superior body—the BCCI, as a member of the International Cricket Committee, has a right to vote in its decisions at the international level. Similarly, the Gujarat Cricket Association is a member of the BCCI, and the cricket governing body for the district of Ahmedabad is a member of the Gujarat Cricket Association.

This network of inter-dependence is a third manner in which bad governance can creep into sport. The administrators of the state- and district-level governing bodies, who voted in the BCCI’s decisions on issues of governance, were also responsible for the implementation of those decisions. Such an environment, where decisions are made and implemented by people dependent on each other, is fertile for the development of a robust trade in favours. Corporate governance law has recognised and addressed this tendency—it is independent directors, who are required by law to be independent from the promoters and the management of a company, who represent the interests of its shareholders to the board of directors.

Many of the structures governing international sports have recognised that people who are part of this network of mutual dependence cannot be fairly investigated by others who are also part of it,and now accommodate and encourage the independent investigation of ethical violations in the administration. The ethics commission of the international governing body for cycling can investigate potential breaches on its own initiative. In the international governing body for athletics, the independent ethics commission has the power to appoint an independent investigator. In 2012, FIFA separated its independent ethics committee, which can sanction violations of its ethics code, into two chambers—investigative and adjudicatory. The former investigates potential violations of the code and prepares a report that the latter then adjudicates upon. In all three of these governance systems, the ethics body has also been given the power to impose sanctions that include banning a person from participating in the governance of the sport for life.

These experiences contain important lessons for the BCCI as it tries to enter a period of transparent and accountable governance. The committee of administrators appointed by the Supreme Court to oversee the implementation of the Lodha committee’s recommendations has complained of resistance to its efforts from several quarters. Amit Shah, the national president of the BJP, who has been the president of the Gujarat Cricket Association since 2014, has resisted the court’s orders—its implementation would require Shah to step down from the post. There have also been findings of gross financial irregularities in the functioning Delhi’s governing body for cricket. Empowering the ombudsman to launch independent investigations would also be a fair and efficient way to enforce the compliance of reluctant administrators. However, the draft constitution of the Lodha committee that is currently in force does not empower the ombudsman to take such an action.

If the revised draft that has been submitted to the Supreme Court by the committee of administrators contains proposals that encourage the ombudsman to investigate independently, it would be a milestone in the struggle of sports to emerge from the shadow of volunteer administrators.

Aju John is the head of content at myLaw.

Keywords: cricket Indian Premier League BCCI sports N Srinivasan Lodha committee
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