|
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.
|
