06 June 2011

The Indian ‘Club vs Country’ Saga: A ‘Gambhir’ Situation?

By Vidushpat Singhania

The ‘Club versus country’ debate has been a raging one worldwide. It has recently come to the forefront in India with Gautam Gambhir’s omission from the Indian team touring the West Indies due to an injury sustained in an Indian Premier League (IPL) match for Kolkata Knight Riders (a franchisee, akin to a club).

The Board of Cricket Control of India (BCCI) decides which cricketers would feature regularly in the Indian team, and they have accordingly been allotted central contracts based on their level of performances and seniority. These players are paid a salary for the year (based upon the matches played and the category of the player contract) and are available to the IPL franchisees for limited periods, largely comprising of the duration of the IPL event. The rationale behind the central contracts is generally to have a control over the activities of the cricketers, particularly when they are also engaged in club matches, in order to secure for the players sufficient rest thereby reducing the risk of injury and to facilitate a team building exercise before the tour/tournament. In the case of rugby, a clause was present in the 2001 long form contract between the clubs (Premier Rugby) and Rugby Football Union which required the club to rest players who had appeared in a full game during an international tour. A similar clause could be considered by the BCCI in its central contracts.

As a direct result of the present controversy two issues arise - (i) should the BCCI have exercised their option of specific relief under the central contract, to secure the performance of the player and to ensure rest for the players before the West Indies tour; and (ii) can the BCCI claim any kind of compensation from the Kolkata Knight Riders. This issue could pose a further question - can the franchisees claim any kind of compensation from the BCCI or any other international cricket body, if an injury is sustained by a player while on national duty, thereby impacting on his ability to play for the franchisee?

Since the IPL takes place under the authorization of BCCI, the Board stands to gain a substantial sum of money through franchising and licensing fees from the commercial success of the IPL. This success can only be guaranteed if the leading Indian cricketers are taking part in the tournament. The franchisees also spend a substantial sum of money on the cricketers’ salaries dependent to a large extent upon the availability of cricketers, particularly the Indian cricketers, for the duration of IPL. Therefore by allowing the cricketers to play in the IPL before a tour (as the schedule for the IPL is made under the aegis of BCCI) and earning revenue from the IPL, the BCCI should not be allowed to claim a right to have the player rested before a tour or to claim compensation for injury sustained during the IPL.

But would the franchisees in the IPL be eligible to claim compensation or rest for cricketers from the BCCI? Should the country (BCCI) or the International Cricket Council (ICC) be compensating the clubs (franchisees) for a commercial loss sustained due to cricketer injury?

A review of sports worldwide would throw up a plethora of cases where players injured on national duty have been rendered incapable of performing their duties for the club due to which the club have suffered heavy losses. A prominent incident of this massive ‘club versus country’ saga came to fore when the Royal Charleroi (a Belgian football club) footballer, Abdelmajid Oulmer got injured during his stint with the Moroccan national team and thus could not play for the club. With the support of the biggest clubs of European football, the Royal Charleroi proposed an argument that since clubs were paying enormous salaries, the national team should take insurance to cover the loss of player services to the clubs besides formulating rules for the rest of players. They also asked for the separation of the commercial functions of the governing bodies from the regulatory functions in order to avoid a conflict of interest.

Clearly food for thought in the Indian context as the BCCI is also performing both the functions in India. The European Competition Commission had addressed a similar issue for the demarcation of regulatory and commercial functions in the case of Formula-1. The Commission had directed the FIA (governing body of Formula-1) to separate its commercial functions from its regulatory function in order to avoid a violation of the European competition rules. This principle of competition law is yet to be tested in the Indian scenario.

With a new wave of development of a club culture in cricket along with an existing club culture in sports like football in India, it would stand in good stead to lay down rules to address the situation of club versus country debate and consequent demarcation of commercial functions from the regulatory functions.

Though the IPL has some extent of demarcation, with its own commissioner, more could to be done in order to demarcate the dual role of BCCI. Even the All India Football Federation should contemplate this scenario before it undertakes further corporate involvement in football. The sporting structure and the monopolistic role of the governing bodies in regulating sport in a territory are conditionally protected due to the existence of this demarcation.

The Indian courts have still not been drawn in to consider these uncertainties like the aspect of competition rules pertaining to awarding of commercial contracts by governing bodies.

In summary it can be stated that the club versus country debate extends beyond mere compensation for the loss of services of the players and with the continuing commercialization of Indian sports, this could be a time bomb waiting to explode.
This article was published in www.sportzpower.com .

(The author is Senior Associate, Sport Law, Corporate Division, Lakshmi Kumaran & Sridharan, New Delhi)

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