10
UWI TODAY
– SUNDAY 1ST MARCH, 2015
UWI
TODAY
ON CRICKET
It is possible that part
of the reason why the exploits
of the West Indies cricket team attract so much passion,
including exasperation, is the unarticulated sense of
ownership felt by many. This of course does not sit well
with the corporate form of private boards or lately,
franchises, naturally keen to cling to the most expansive
definition of proprietorial rights that they can assemble. In
ordinary discourse, this was conveyed as a formula which
suggested that theWest Indies Cricket Board owned the
players, lock, stock and barrel, and moreover that in its
decision-making it did not need to take public sentiment
into account.
Happily, in relation to the first interface, that
between the Board and the players, the position has been
moderated by the result of legal challenges recognising
the distinction between the player as an individual
possessing his or her own intellectual property rights on
the one hand, and the player as a member of the West
Indies team with certain obligations in that regard. But
even as the interface between the Board and the player
has become a little clearer, notwithstanding real or
imagined grievances about team selection, the second
one, that between the Board and the public, has become
murkier. Now, a decision of the Supreme Court of India,
establishing guidelines for the private control of a public
good, opens up some far-reaching implications in this
area.
The Indian case, which was reported on January
22, 2015, arose partly out of match-fixing and gambling
allegations, but in the course of arriving at its decision, the
Court had to decide whether it had supervisory powers
over the decisions of the Board of Control for Cricket
in India (BCCI), a private entity established under the
Registration of Societies Act. One argument to ground
those powers would have been easily established if it
could be said that the BCCI’s actions were those of the
Indian State as defined in Article 12 of the Constitution
of India.
The Court examined the activities performed by the
BCCI and for a moment seemed to be disposed to rely on
learning from American jurisprudence that suggested
that if the functions of a private corporation are of public
importanceandclosely related togovernmental functions,
it would be a relevant factor in classifying the corporation
as an instrument or agency of the government.
If thematter had been decided on this ground alone,
it would perhaps have less relevance for us, since there
is no West Indian State and hence presumably no State
to which the actions of the WICB could be attributed.
Fortunately, the Court took a different path and chose to
establish its supervisory role on other grounds, namely,
whether or not the BCCI was a State actor, it nevertheless
discharged several important public functions, and as
such was amenable to legal control under Article 226
of the Constitution of India, a provision which gives the
Indian High Courts certain wide powers.
The enunciation by the Court of the public functions
performed by the BCCI is of direct relevance to us, as it
mirrors the local situation. As the court noticed, the BCCI
has a “complete sway” over the game of cricket in India,
regulating and controlling the game to the exclusion
of all others. It formulates rules, regulations, norms and
standards over all aspects of the game. It selects the
national team and the umpires, and exercises the power
of disqualifying players, which could end the sporting
career of a person.
In addition, some of what it is able to do, such as
framing pension schemes or coaching and training
arrangements, negotiating and selling broadcast and
telecast rights, and collecting admission fees to playing
venues are undertaken with the tacit concurrence of
governmental authorities. Moreover, the State has not
opted to dilute the BCCI’s monopoly, but on the contrary
has allowed it to select the national team, and to cap it
all, the State confers the highest civilian awards to those
players who distinguish themselves in the international
arena.
The Court could have added that the playing of the
national anthem is a feature of certain cricket matches,
and that important and cherished national symbols are
displayed on the attire of the players. In any event, the
Court concluded, in words that can surely apply to us:
“any organization or entity that has suchpervasive control
over the game and its affairs as can make dreams end up
in smoke or come true cannot be said to be undertaking
any private activity. The functions of the Board are clearly
public functions which … remain in the nature of public
functions, no matter discharged by a society registered
Private Control,
Public Good
The Supreme Court of India sets guidelines
with implications for West Indies cricket
By Kusha Haraksingh
