Tuesday, 19 July 2016

What next for the BCCI?

Sharda Ugra in Cricinfo

There is no knowing whether anyone in the BCCI is a fan of either Charles Darwin, Benjamin Franklin or Albert Einstein. Supreme Court judges definitely are, going by the opening paragraphs of the 143-page judgement issued by the two-man bench of Chief Justice TS Thakur and Justice FMI Kalifullah. The three mighty minds were quoted when discussing humankind's resistance to change, with the bench recognising that the BCCI's strident objections to the Lodha committee recommendations were meant to protect a "continuance of the status quo".

The Supreme Court's final order directly addresses and proceeds to upturn the BCCI's objections to the Lodha recommendations, which detailed organisational reform within India's richest sporting body and cricket's strongest board. The court accepted both the Lodha report and its recommendations with a handful of minor "modifications and clarifications". This marks the end of three years of miscalculations by individual office-bearers, and collective decision-making by the BCCI that began with the arrest of three cricketers in May 2013.

What happens next? In real terms, the day-to-day operations of Indian cricket will keep running. Like the Lodha report, the Supreme Court order once again separates governance from operations. The operational BCCI continues on its way, now armed with a CEO, an ombudsman, an ethics officer, and a full-time professional auditor. What has been rigorously shaken, with nuts and bolts now left rattling, is the existing frame of the BCCI, which is less stainless steel and more rusted metal.

The order lays down a fairly watertight list of strictures for aspiring cricket officials, focusing on what posts they can hold in cricket administration, particularly at the highest level, and for how long. The much-advertised "love for cricket" of many seasoned, or indeed newly appointed, cricket officials will now be put to the test. The court has ordered that the recommendations be implemented within six months - by the time Justice TS Thakur serves his full term and hands charge for the BCCI's restructuring to the very individuals who held up a mirror to the board: Team Lodha.

The Supreme Court's order was fairly considerate when hammering home a few disputed recommendations. Fussed about how to fund a players' association? the court asked. The funding is your prerogative, but there has got to be an association. Angry about a "cooling-off period" between two terms in top BCCI posts? Arrive at a conclusion on how to handle this, but the cooling-off period stays. IPL franchises on the all-powerful IPL governing council? Let's ask the Lodha committee to work out if this is not a conflict of interest and then see what they say.

The court divorced itself from issuing unyielding orders on matters that were not strictly within the Lodha panel's reformative and recommendatory ambit. Like controlling the amount and nature of advertising on cricket broadcasts on television by reworking existing deals (this recommendation was dead on arrival on the grounds of common sense alone), or knotty legislative issues like legalising betting or placing the BCCI under the ambit of the Right to Information Act.

Weighty, monumental (and cataclysmic for the BCCI), the Lodha report order carries much significance. If the BCCI, a financially self-sufficient, self-sustaining and globally significant sports body - and therefore an anomaly among Indian sports bodies - can be made answerable to writ jurisdictions, its functioning taken apart in court, so can any other Indian national sports federation. These bodies that run India's Olympic sports, largely supported by public money, have previously been considered untouchable, backed as they are by political bigwigs and legal luminaries.

The Thakur-Kalifullah bench has cited the government's National Sports Development Code 2011 - which applies to all nationally recognised sports bodies - in setting an age limit of 70 for the BCCI's office-bearers. What applies to other sports bodies must work for the BCCI. So too, what has been ordered upon the BCCI, could be wrought upon any other Indian sports body.

An example has been made of the BCCI, until now considered well above these shambolically run associations, both financially and organisationally. No matter how much financial strength and global clout a sports body can acquire, it must work alongside with, rather than supplant, good governance, transparency and accountability.

The BCCI's response in this affair from the outset - despite the presence of many weighty shining legal lights on its roster and on its side - was heavy-handed. Both in court and in the public. The board's first response was to let out a few high-volume sound bites: that the recommendations were not binding, that the BCCI was a private body and so it could not be approached as if it were a public enterprise. It was this line of argument that occupied far too much of the court's time, and must have set the judges' teeth on edge.

One of the more revealing parts of the order says: "Neither BCCI nor anyone else has assailed the findings recorded by the Committee insofar as the deep rooted malaise that pervades in the working of the BCCI is concerned… either in the affidavits filed or in the course of arguments at the bar." Which in layman's language means that neither the BCCI nor anyone else has strongly criticised the Lodha committee's findings with reference to the flaws in the BCCI's functioning, neither in written affadavits filed or verbal arguments made before the bench. The BCCI was not righteously claiming to having been unfairly criticised with reference to its functioning. What it was saying to the highest court of the country - and the highest judge in that court - was that you do not have the right to tick us off.

The better option could have been to respond strategically to the Lodha committee report from the very beginning, by picking out early the recommendations they thought were the least amenable to implementation, or inconvenient, and work with that, approaching the court with humility rather than habitual hubris. They had a better chance of arguing the age limit and tenure continuity at length than they did about private vs public and the freedom of association as pertaining to the state associations. That too in a climate surrounding the BCCI's laissez faire attitude to the Goa Cricket Association's multiple scandals until the last month or so and theshenanigans of DDCA, also exposed in court.

The BCCI's legal eagles should also have been able to sense two moods - that the BCCI's public image was far from the best to start with, particularly in terms of its engagement with the judiciary. Secondly, in the past few years, India's courts have been particularly forceful in handing out judgements pertaining to governance or administration, a trend that has been referred to as "judicial activism" (or, in the words of policy academic Pratap Bhanu Mehta, "judicial exasperation"). For the BCCI it was certainly not the right time to show what would be called "attitude". But show it they did.

What might the BCCI's options now be? To start with, they could consider hiring a new legal team. A short-term response would be to disband the board and resume operations under a new name. Or dash off a letter to the ICC saying the Supreme Court has ordered them to accept government interference - in the form of the nominee from the Comptroller and Auditor General's Office - at both national or state levels. Or attempt some off-court filibustering in front of Lodha to try and stall any action, till Justice Thakur retires in January and they can begin the legal roundabout all over again.

But each of these counters has its counter-arguments. Besides, Monday's order says clearly that "should any impediments arise" the Supreme Court can be approached once again by a status report being filed.

Many within the BCCI - and there are several who are well-intentioned and committed - may find their positions now rendered non-existent and their powers severely curtailed, and may well ask, "How did we get here?" The answer to that is simple - one mistake at a time.

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