BCCI argues Zee writ not maintainable

NEW DELHI: Arguments relating to the Indian cricket rights issue opened today in the Supreme Court. The Indian cricket board and ESPN-Star Sports were the first to present their point of view and both questioned the maintainability of the writ petition filed by Zee Telefilms challenging cancellation of exclusive telecast rights purported to have been granted to it earlier.

Senior counsel KK Venugopal, appearing for the Board of Control for Cricket in India (BCCI), raised objection against the maintainability of the Zee petition at the very outset of the hearing today before a five-judge constitutional Bench.

Venugopal argued that since the BCCI was neither a state nor an instrumentality of the state within the meaning of Article 12 of the Constitution, the Zee petition was not maintainable and it should be dismissed.

The five-judge bench comprises Justices N Santosh Hegde, SN Variava, BP Singh, HK Sema and SB Sinha.

Reiterating that Zee's petition is not maintainable, Venugopal argued that the BCCI cannot be termed to be under any government control as it is an autonomous body and does not receive any funds from the Central or the state governments and does not have any government representative on its board.

"So far as cricket is concerned, it's not part of the government. It's a sport, an entertainment," Venugopal argued, trying to suggest that the government does not have any direct or indirect control over the BCCI, which is free to conduct the affairs of sports as it chooses.

What Venugopal did admit in the court today, where the hearing began around 10:30 am to a near-packed house and continued non-stop till the lunch break, was that like any other apex body of sports in the country, the BCCI is the apex sports body for cricket in India, "recognised by the government (of India)."

According to Venugopal, BCCI's funding is not regulated by the government and the only way that government diktat can seem to be running over the cricket board relates to the Societies Registration Act, under which BCCI is registered as a non-profit organisation.

To a question from one of the judges as to who exercises the rights on telecast rights, BCCI counsel submitted that the cricket board has the "right to choose who should get the telecast rights."

It was also pointed out that BCCI is one of the member bodies of the International Cricket Council (ICC). But at this point one of the judges did observe that BCCI is member of the ICC as the country's cricket representative because the government of India recognises it and the cricket board is dependant for its status on the government.

While concluding his lengthy arguments, which had references to the Council of Scientific and Industrial Research (CSIR), Venugopal said since the BCCI, amongst other things, conducts its own business, "no part of its functioning can be treated governmental."

The arguments for ESPN-Star Sports were presented by former advocate-general Soli Sorabjee and was on similar lines to the petition it filed in the Bombay High Court challenging the "initial" award of the cricket rights to Zee.

ESPN-Star Sports has contended, amongst other things, the following in its counter-affidavit in the Supreme Court today:

* There is no concluded contract between Zee Telefilms and the BCCI

* Zee had failed to disclose the fact to Bombay High Court that a careful reading of the draft letter of intent (from the BCCI) highlighted that that the LoI was not a conclusive understanding between BCCI and Zee on the telecasting and broadcasting rights.

* Though there's an arbitration clause (in the cricket tender document), Zee has dragged the matter to the court.

* The invitation to tender required the broadcasters to have at least two years of experience and that Zee gets disqualified under clause 2 of the tender document, read with clause 3.2 b.

* Zee's counsel had admitted in the Bombay High Court that Zee does not have the necessary experience required.

* Valuation by PriceWaterhouse Cooper (PwC), the audit firm that vetted the various bids, was an essential criterion of the tender process. The failure to involve PwC for the purpose of a full and proper evaluation has resulted in the entire process being liable to be set aside.

The apex court had yesterday issued notices to BCCI, ESPN-Star Sports, PwC and the government of India on a petition filed by Zee challenging the cancellation of the award of cricket match telecast rights to it.

Zee's counsel Harish Salve could not conclude his arguments today.

In its petition, Zee has said the cricket board had entered in a malafide manner to cancel the award of telecast rights to it and alleged that the entire drama before the Bombay High Court was enacted to benefit one foreign sports channel.

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