If the BCCI and CSA were getting all hot and bothered in the business world, the side getting bullied might have taken legal action by now. Yet it’s far more complicated than that in the world of sport. Daily Maverick spoke to a senior legal practitioner regarding CSA’s legal options which are apparently few and far between. By ANTOINETTE MULLER.
By Sunday, after the BCCI conclude their AGM, it should be clear exactly where to from here for what would have been a mouth-watering summer of cricket. Hopefully by then, the BCCI would have pulled their weight enough to decide exactly what miserly tour they want to present Cricket South Africa with.
CSA might be forced to accept whatever they are given, since declining any offer would put them at great risk of running a massive loss. That loss will trickle down to franchises and development and in the long run will be one of the most damaging and destructive losses the game has suffered since South Africa’s readmission.
The reasons why and why not the two sides are at loggerheads have been well-documented. Many have tried to make sense of the childish powerplays which have started to read like parody.
The financial impact on the game has also been reported on. That is further underscored by the profits of past summers. During the 2006/07 season, when India and Pakistan toured, CSA made a R129.7 million profit.
The following year, with hosting of the World T20 and with New Zealand and West Indies as visitors, a loss of R16.36 million was made. The next year, with Australia touring in the late summer months and the last-minute decision to host the IPL bolstering their coffers, CSA made a small profit of R5.9 million.
In 2009-10 with the Champions Trophy and England in town, they made a profit of R138.8 million. India’s return to the country in 2010-11 saw profits rise once again to R247.8 million. When both Australia and Sri Lanka came around in 2011-12, there was a R47 million loss. It’s clear that CSA needs the money that would come from an Indian tour, but the power now stays firmly in the BCCI’s hands.
In the world of business, in situations like this, the simple, although tiresome solution, would be to take legal action. Yet Cricket South Africa’s case is potentially thin, because the FTP is not binding and there is very little protection for boards from those who govern them.
“From some of the quotes which has circulated in the media, CSA does not have a strong case in my view. If CSA accordingly went about announcing the itinerary without the input and consent of the BCCI, CSA has no claim for contractual damages in the form of loss of revenue,” a senior legal practitioner, who preferred not to be named, said.
“Absent actual consent, the mere expectation that the BCCI will commit to a lengthy tour is not enough to attract liability,” he added.
In simple terms, that means that with the BCCI never having signed the FTP and it not being a binding contract, the onus would rest heavily on CSA to prove that they did indeed consult with the BCCI prior to releasing the fixtures. CSA insist they followed protocol, the BCCI say they were never consulted. The case would be massively complex in terms of proving such, unless, of course, there are emails exchanged between the two parties. There is no need for a lawyer’s contract to have a valid agreement and if the e-mails amount to an acceptance by the BCCI of three tests, seven ODIs and some T20s, CSA would have a case and a strong one at that.
Barring the problem with actual evidence, there is another problem which would cloud legal proceedings, or even the possibility of opening a case.
“Aside from the substantive law obstacles, jurisdiction is also a problem. The SA Courts may not have jurisdiction over the BCCI. Absent the attachment of a BCCI asset in SA of which I assume there are none, the SA courts won’t assert jurisdiction. If the CSA pursued the BCCI in India one wonders if they will get a sympathetic hearing,” the advocate Daily Maverick consulted said.
“Going to the Court of International Arbitration for Sport is also not an option as the ICC is not a member as far as I know,” he added.
The information relating to the additional tour to India by the West Indies was never in the FTP and it was only made public by the BCCI after CSA released their summer fixtures, but those dates clearly infringed upon them. Yet, there is no case there and there is very little which allows CSA to take steps to mitigate their loss urgently.
Besides, almost all of the top Test sides have commitments this summer such and the Ashes Down Under. There is precious little CSA can do to substitute a financial powerhouse like India.
“There is no restraint of trade here – that only arises contractually if an employer has a legitimate basis to prevent an employee from working for the opposition either due to customer connections or confidential information which the employee possessed during his employment,” the legal practitioner said.
A number of players could consider action, but again, it’s thinly veiled. If there were some players who turned down the possibility to play Australia’s Big Bash League due to believing that they would be required for the summer, they could possibly take action, but again it depends heavily on agreements.
“Insofar as players, they may have a claim if they told CSA about the Big Bash but turned it down due to promises from CSA regarding the Indian tour. Only a few players guaranteed of selection fall into this camp in my view – i.e. those who are guaranteed selection in all formats. Still and even in the case of players, its fact specific and depends what was agreed,” the advocate concluded. DM
Photo: Former chief executive of the International Cricket Council (ICC) Haroon Lorgat speaks to reporters during a news conference at the Sri Lanka Cricket board in Colombo August 29,2012. REUTERS/Dinuka Liyanawatte
"The world doesn't make sense so why should I paint pictures that do?" ~ Pablo Picasso