Lockerdome is a new social media platform which allows its user to do exactly that. It allows users to become part of interest specific communities where they can find content related to their favourite sports teams and interact with other fans who have similar interests. It is one of the largest growing social media platforms out there. We bring for your reading pleasure, an interview conducted by Forbes magazine with Gabe Lozano, founder of Lockerdome, where he discusses his social media baby, as well as where he thinks social media is headed and how CMO’s can ensure that their companies can benefit from taking full advantage of the opportunities provided by social media.

http://www.forbes.com/sites/aaronperlut/2013/06/05/what-cmos-can-learn-from-the-nexus-of-sports-and-social-media/ 

Even as the cricketing world comes to terms with the most recent spot-fixing scandal to hit the Indian Premier League, it seems that the dust is far from settled on the true extent of the scandal, with many believing that in the coming weeks many more skeletons are going to tumble out of the closet (including those of the Board of Control for Cricket in India (“BCCI”) representatives, players, franchise owners, etc.). It would be myopic to blame the current scandal on a single reason, like conflict of interest, access to players, poor administration, lacunae in law, greed of players, etc. In truth, each of these is a contributing factor, and ought to be assessed and suitably addressed (proper due diligence, tighter norms, stricter penalties, mentoring and monitoring, effective policing, etc.) by the regulators. It may also be worthwhile for the International Cricket Council (“ICC”) and the BCCI to re-look at the plague of spot-fixing and how to deal with it proactively, rather than merely being reactive. This post seeks to examine some of the measures that the regulators could utilize to tackle this menace.

Mohammad Ashraful, ex-captain of Bangladesh recently confessed to fixing BPL gamres

As the debate continues on whether legalization of sports betting will impact the incidence of ‘fixing’ in sports, one thing is amply clear – in today’s commercial and glamorous world of cricket, it is very easy for perpetrators to conceive and execute plans of spot-fixing by taking advantage of the illegal betting syndicates that have mushroomed around the world. There has been an increase in the number of incidents of spot-fixing which have come to light in the last decade. At the international level, in 2010, the cricketing world was rocked by the news of three Pakistan players involved in spot-fixing, wherein three no-balls were bowled by two Pakistan players under the ‘instructions’ of their captain during the 4^th test match played against England at the Lord’s Cricket Ground (“Pak Spot-Fixing Scandal”).

The infamous Pakistani Spot Fixing trio

It would not be outlandish to speculate that a far greater number of cases have not been detected / reported as spot-fixing is very tough to detect and curb, and even harder to prove by investigating authorities before adjudicating bodies. An example of the difficulty faced in proving facts such as deliberate no-balls was evidenced in the Pak Spot Fixing Scandal. The Pakistani duo of Md. Asif and Md. Amir raised the defence that the ‘no-balls’ were within the purview of margin of error. In order to counter these defences, the Court of Arbitration for Sport (“CAS”) had to rely on statistics provided by an expert statistician on the chance of occurrence of the events that transpired during the Lord’s test.

What is spot-fixing?

The term spot-fixing has not been defined by any of the cricket’s governing bodies, and is generally used in the media to refer to the illegal practice of ensuring the occurrence of a particular event or set of events on the field of play at a particular time. In certain instances, the players on the field can collude with a person off the field, and enter into arrangements for the benefit of such players. Even in the absence of such collusion, the practice of spot-fixing is deemed illegal and prohibited by the ICC. The BCCI does not use the term spot-fixing in its Code of Conduct for Players and Team Officials or its Anti-Corruption Policy, but seeks to address the issue by inclusion of fixing and betting related offences under its Anti-Corruption Policy.

In the Pak Spot-Fixing Scandal, the CAS in its award dated April 17, 2013, made certain note-worthy points regarding the scheme of ICC’s Anti-Corruption Code (“ICC Code”) in the context of spot-fixing. While noting that the ICC Code did not clearly define its intent, the CAS also observed that offences can have different degrees of gravity. This principle is also enshrined in the BCCI’s Anti-Corruption Code, wherein offences are categorized under 4 (four) levels.

Cartoon by Nicholson from “The Australian” newspaper
www.nicholsoncartoons.com.au

On a separate but related note, the CAS also discussed the meaning of the phrase ‘beyond reasonable doubt’, which was the applicable standard in the Pak Spot-Fixing Scandal. It is pertinent to note that the standard of proof required under BCCI’s Anti-Corruption Code is not static, but is determined on a sliding scale from, at a minimum, a mere balance of probability (for the least serious offences) up to proof beyond a reasonable doubt (for the most serious offences). The evidence in the Pak Spot-Fixing Scandal was damning to the players (the efforts of the newspaper ‘News of the World’ (NOTW) were praised at several instances in the CAS’s arbitral award), and it would be very optimistic to hope that such clear cut evidence would be available in all cases of spot-fixing.

Lessons for the Regulators

While the introduction of a well-structured and drafted definition regarding spot-fixing may not eradicate the problem, it will certainly allow the adjudicating bodies to punish the perpetrators and that in turn will act as a deterrent. In light of the above observation, it may be worthwhile for the ICC and BCCI to consider the following measures:

• Introduction of a broad definition of spot-fixing, after examining the reasons, causes and modus operandi of executing spot-fixing;

• Introduction of provisions whereby ‘control’ and non-disclosure of ‘conflict of interest’ are deemed to imply control akin to the concept of ring-master as discussed in the CAS award on the Pak Spot-Fixing Scandal;

• Re-categorization of the offence of spot-fixing under different levels, depending on whether such fixing impacts the result of the match;

• Reduction of the standard of proof for proving an offence of spot-fixing, especially where such fixing does not impact the result of the match; and

• Rationalization of the quantum of punishment (grave offences leading to more stringent punishment) based on the re-categorization above.

• Installing an elaborate and detailed player education and sensitization program for mentoring young players;

• Taking steps to ensure that the Anti-Corruption and Security Unit has complete access to players, coaches, agents, etc., and taking steps to ensure that the minimum standards to the players’ and match officials’ area (PMOA Minimum Standards are available here) are not undermined in any manner;

• Organizing regular programs at the National Cricket Academy where the basic do’s and don’ts are highlighted and explained to the players, coaches, agents, etc.; and

• Introducing a new system for monitoring interactions between players, their agents and support personnel, including a robust and rigorous player agent accreditation system.

In this post Jeh explores the reasons why cricket is susceptible to fixing. He reasons that soccer, tennis and cricket make good targets for spot/match-fixing due to the existence of too many games. He believes that the large number of high level games each of these sports provides makes them susceptible to subversion. He goes on to write about the importance of creating a sporting culture which fosters the right ideals in young athletes, and how without such a cultural intervention no amount of effort, whether by law enforcement or sports bodies, will be able to prevent the scourge of corruption in sport. An extremely enlightening and thoughtful read on the various issues that the powers-that-be must consider if they are to tackle the menace which may ruin the game of ‘glorious uncertainties’.

The ongoing spot-fixing and betting saga that has engulfed the Indian Premier League (“IPL”) has opened a proverbial can of worms for cricket in India. A multitude of issues are now on the table for debate and reform such as (i) the governance systems (or lack of it in the IPL) encompassing both the Board of Control for Cricket in India (“BCCI”) and the various IPL Franchisees; (ii) the sufficiency of existing criminal laws (or lack of it) to counter the threats of illegal betting, spot fixing and match fixing; and (iii) the influence of external actors (such as player agents and bookies) on player behaviour. Coinciding with the launch of our re-designed content platform, we at Gamechanger are committed to utilising the varied skillsets of our team members as also our extended network in the sporting and legal fraternities to present our views on each of these burning issues and identify sustainable solutions that can preserve the integrity of “the game of glorious uncertainties”. In the first post of our special series titled “Fight against Fixing”, we examine how player agents have been subject to regulation elsewhere in the cricketing world and compare it with the fuzzy approach that has been outlined by BCCI.

Understanding the attributes of a good Player Agent

In November 2011, we interviewed Mr. Vinod Naidu, Vice-President at World Sport Group, and more famously, the man behind “Brand Tendulkar”. Vinod has now represented the interests of Sachin Tendulkar for 15 (fifteen) years, and the relationship continues to endure, making it a worthy case study of a successful Player-Agent relationship. When asked about the attributes of a good player agent, Vinod said “A good Player Representative is one who takes a long-term view of a player’s association with a brand and can help build an association that allows both parties to grow. He/she must be able to constantly generate ideas and make sure that the Player is emotionally engaged with the Brand. A good Player Representative will make sure that even after a deal has been done, a strong relationship is maintained between the Player and the Brand so that newer platforms can be built, which can provide a maximum return on investment to all parties concerned i.e. the Player, the Brand and the Agent!”

Sadly, the Vinod-Sachin relationship has remained the exception, rather than becoming the norm, in the cricket player management ecosystem. Players across the world, and especially those from the Indian sub-continent, are increasingly exposed to seedy elements/bookies from betting/underworld syndicates who lure players into their net, on the pretext of obtaining lucrative brand endorsement/commercial deals. Manager and agents in Indian sport, and more specifically Indian cricket, are un-accredited. They are not required to have any minimum qualification, skillsets or knowledge. Their proximity to the sportsperson determines whether they can be a manager or player agent. These persons, who pose as managers or agents, are not required to register with any sport’s governing body and are accountable to no-one but the player themselves. One such “shady” relationship was that of Sreesanth and Jiju Janardhan. In the backdrop of the role played by Jiju Janardhan in the spot-fixing saga, BCCI has suddenly woken up to the dangers posed by unaccredited player agents, and has ostensibly moved in to propose a regulatory framework for player agents. But the measures outlined by BCCI, if one goes by media reports, seem to be totally inadequate. All that BCCI seems to have thought of is to ask centrally contracted players to submit the names of their agents for the accreditation process. What happens to players who are not “centrally-contracted”? Can unaccredited agents have a free run as regards non-contracted players? Also, a host of other well-understood principles of agent accreditation, which have been adopted by other cricketing bodies or sporting bodies globally, do not appear to have been considered by the BCCI.

The Global Experience of Player Agent Accreditation in Cricket

Cricket boards such as the England & Wales Cricket Board (“ECB”) and Cricket Australia (“CA”) have attempted to put in place checks and balances on people whom they approve to act as Player Agents. The ECB has formulated the Player Agent Registration Regulations (“ECB Player Agent Regulations”). These Regulations define an ‘Agent’ to mean any person, whether based in the UK or overseas, who carries out or seeks to carry out “Agency Activity”. “Agency Activity” is defined to mean “acting in any way and at any time in the capacity of an agent, representative or adviser to a First Class County or Player, either directly or indirectly, in any aspect of the negotiation, arrangement or execution of any kind of employment transaction (including without limitation, any player contract, transfer, loan or registration matters).”

Further, there are many criteria which a person would have to meet to be able to register him or herself as a Player Agent with the ECB, such as being of good character and reputation, not being convicted for any offence involving dishonesty or deception, not being an undischarged bankrupt, not being disqualified from being a Director in a company under the provisions of the relevant law in England etc. Once a person satisfies this basic threshold, he/she is required to pass a multiple choice examination set by the ECB and the Professional Cricketers Association, which would cover the various ECB Rules and Regulations which a Player Agent must have knowledge of.  Importantly, the ECB Player Agent Regulations also require every Agent to obtain and keep valid at all times, professional indemnity insurance, so as to protect the Player in the event of an Agent committing a negligent/unlawful act.

Similarly CA has put in place in Australia the ACA Player Agent Accreditation Scheme Regulations (“ACA Player Agent Regulations”). The ACA Player Agent Regulations are similar to their English counterpart and put in place large number of checks and balances as to who can become a Player Agent and how they can go about becoming one. There are similar minimum requirements in the ACA Player Agent Regulations with respect to the applicant being off good character and reputation, not being an undischarged bankrupt, not having been convicted for an offence involving dishonesty or deception etc. The ACA Player Agent Regulations also require the applicant to undergo a written examination testing his or her knowledge of relevant rules and regulations, and to obtain professional indemnity insurance cover.

One of the biggest differences between the English and Australian models of Player Agent Accreditation is with respect to the definition of “Player Agent”. The ECB Player Agent Regulations define “Agency Activity” in a narrow manner and restrict the types of activity for which a Player would need an Accredited Player Agent i.e. only with respect to employment contracts. Therefore commercial endorsement contracts would be outside the scope of ‘Agency Activity’ and a Player in England could technically hire a non-accredited agent for endorsement contracts and other non-employment based transactions. The ACA Player Agent Regulations in Australia make no such distinction and do not restrict the type of activity for which an Accredited Agent can represent a Player, and therefore a Player in Australia would require an Accredited Agent for all his commercial and employment activities.

Even the Pakistan Cricket Board (“PCB”) post the spot-fixing scandal of 2010 involving Salman Butt, Mohammad Asif and Mohammad Amir, have put in place the PCB Registration of Agents Regulations, 2010 (“PCB Player Agent Regulations”). These Regulations though not as well drafted and rigorous as the ECB and CA counterparts, have put in place, at least theoretically, restrictions on Pakistani cricketers dealing with un-accredited player agents. The PCB Player Agent Regulations make it clear that no cricketer will be allowed to associate himself with an unregistered agent.

Lessons for the BCCI

The BCCI’s stated plan of collecting names of agents of centrally-contracted players hardly serves any purpose other than to create a perception that something is being done. Worse, it appears to be an extremely myopic and short-sighted way to deal with such a crucial issue.  The BCCI needs to put in place, a robust regulatory framework on the lines of those adopted in England and Australia. Only then will there be any hope of ensnaring the likes of Jiju Janardhan, and weeding them out of the player’s ecosystem. Player Agents must be carefully accredited, ensuring that persons of questionable repute are not permitted to represent a cricketer’s interests. Further, the names of registered and authorized player agents must be published so that the people know when they are dealing with a genuine agent speaking on behalf of the cricketer. Also, registration and publication of a list of agents will remove undue suspicion on everyone who hangs around a cricketer at practice or in the team hotel, and anti-corruption personnel will be able to distinguish between a registered and authorized player agent, and someone who is an unauthorized or unknown person hanging around a cricket team.

Furthermore, a written examination that tests an applicant’s knowledge various rules and regulations of the ICC and BCCI, including those pertaining to anti-corruption and anti-doping specifically, must be a mandatory pre-requisite as it can create a well-reasoned “educational entry-barrier” to those who are seeking to take up Player Agency as a career. Furthermore, we see no rationale for limiting the “accreditation system” to players who are “centrally contracted”. The Sreesanth-Ankeet Chavan-Ajit Chandila cases have ruthlessly exposed the dangers that young cricketers are susceptible to. It is the young and inexperienced cricketers who would benefit more from a well-defined agency accreditation system.

One cannot legislate for criminal intent or for the greedy cricketer who will seek out opportunities to make money in an illegal manner, but one can legislate and provide protection for those cricketers who may get involved due to circumstances outside of their knowledge or control. An environment must be created where every cricketer, and not just the superstars, are given access to legitimate and professional player agents who can manage a player professionally rather than leaving them susceptible to the wiles of the Jiju Janardhans of Indian cricket.

Comparative Analysis of Player Agent Registration Frameworks 

** None of these parameters have been explicitly outlined by the BCCI in the recent weeks, at least not in the public domain, and hence we have assumed that there no such plans afoot. If the BCCI does clarify through official channels or notifies written regulations to the contrary, we would be happy to update our post accordingly!

Aditya Shamlal is the Managing Editor of www.gamechangerindia.com. He can be contacted at aditya@gamechangerindia.com

Amrut Joshi is the Founder Partner of Gamechanger Sports Ventures. He can be contacted at amrut@gamechangerindia.com.

The fact of the matter is NADA is an independent sporting tribunal, formed under the provisions of the International Convention against Doping in Sport.It is not in any way connected or part of the ‘Government’ in a traditional sense. NADA’s sole purpose is to keep sport in India free from performance enhancing drugs, in consonance with the principles formulated by the World Anti-Doping Agency (“WADA”). Further to that, under the Prohibited List 2013, ‘heroin’ as a drug is not even a prohibited substance ‘out of competition’, i.e. an athlete would not be committing an anti-doping violation if heroin is found in his specimen while he is not currently taking part in a competition.

NADA has been under immense pressure from the Sports Ministry and other fronts to test Vijender Singh for heroin and NADA has been repeating its stance of not being an enforcement tool of the local government, especially on a matter where it would not have the jurisdiction to punish the athlete even if the result of the tests came out positive for heroin, as Vijender would not have had committed a violation under the World Anti-Doping Code.

What is even more puzzling, is that under the Narcotics, Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”), Vijender Singh could be charged with not just consumption, but possession and being involved in the trading of a ‘commercial quantity’ of heroin. For consumption he could be jailed for 6 months to a year, but for dealing in a commercial quantity, Vijender Singh could go away for 10-20 years. Furthermore, his conviction for consumption may be difficult to secure purely on the basis of a statement made by a third party.

The issue therefore should not be whether he has taken drugs; the issue should be whether Vijender is using his influence  to illegally trade in narcotic substances? The second scenario is sinister and disturbing and therefore must be the first priority for the policing agencies to either confirm or eliminate. The State has sufficient machinery to investigate this case, and should focus its efforts and resources on investigating a possible drug ring rather than forcing an independent sporting tribunal to do its dirty work.

As things stand today, the Indian women’s team just got knocked out of the World Cup being held in India, and there are complaints from many quarters that the women’s game is being given step-fatherly treatment as compared to the men’s game. It goes without saying that the women’s game is not the bread-winner for the BCCI. The problem lies in the fact that the current administration views women’s cricket not even as an obligation but a liability. One of the biggest complaints is that the women cricketers get paid the least for an international game. The selectors, umpires and match referees make more money per international game than the cricketers playing the game. 

Another sign that the BCCI doesn’t really care for the women’s game is the fact that during the on-going women’s world cup in India, all the group matches were shifted from the Wankhede Stadium in Mumbai to make the venue available for the Ranji Trophy Finals which Mumbai were participating in, and for the Irani Trophy in case Mumbai won the Ranji Trophy. Such a situation should not have occurred, especially in Mumbai which has three fantastic international venues.

Domestic development of women’s cricket

There are many problems that plague the development of the women’s game in India. Under the current domestic structure there exists one ODI tournament and one T20 tournament. There is no long-form cricket comprising of 4 day or 5 day cricket. The English and the Australian women’s team take part in an Ashes style test series every two years, while the Indian team hardly has any test commitments internationally.

This situation must be remedied if the long form game for women is to be preserved. The BCCI must take rapid action and formulate a domestic first class league for women. It need not be as wide and expansive as the Ranji Trophy, a truncated version would suffice as a starting point. A pool of 60-70 players need to be identified and then split into 5 zonal teams i.e. North, South, East, West and Central. Have state associations manage the teams and the BCCI can delegate the task of organizing and managing the league to a sub-committee. Given the resources at the disposal of the BCCI, the administrative side of this exercise should not be a problem; the real challenge would lie in identifying 60-70 talented cricketers to populate these sides.

Mithali Raj should be a household name in India

Another way in which this issue can be addressed is to identify a group of 20-25 Indian women cricketers who have within them the talent to play high level cricket, and reward them with central retainer contracts, as has been done by Cricket Australia (“CA”). Paul Marsh in a conversation with Gamechanger, informed us that CA offers retainers to up to 20 players annually. The retainer is offered in a three tiered system with the lowest grade receiving AUD 5,150 and the highest grade receiving AUD 15,450, in addition to tour allowances and other payments. A retainer system handled centrally by the BCCI coupled with a robust, albeit truncated domestic league will go a long way in encouraging young women to pick cricket as a sport in which they could have a satisfying and fruitful career.

Role of schools and private organizations in the development of women’s cricket

It would be unfair on our part to put all the blame on the BCCI for the state of women’s cricket in India. Many institutions, organizations and people must share the blame in this regard. One of the biggest problems faced in India is that there is hardly any school level cricket for girls. Go anywhere in this country and you will find that there will be a bunch of boys with a bat and ball playing a pick-up game of cricket. In schools you will find most of the boys lean towards sports like cricket and football, while girls, who get into sport, are more likely to take up tennis or badminton. One of the factors could be that while boys have their idols like Sachin, Dravid and Kumble to look up to and to aspire to emulate, there are no such examples of women cricketers in India, who have won global tournaments and international acclaim. There are a few examples in other sports like Saina Nehwal in badminton, and to a limited extent Sania Mirza in tennis, and it is their example which prompts young girls to pick up badminton and tennis rather than cricket.

Therefore it is imperative that schools get involved at a grass root level. Schools must be directed to encourage young girls to play cricket, and that too organized cricket. At a young age, the gap in physical strength between girls and boys is not as pronounced, as it is at a senior level, therefore girls must be encouraged to play on the same team as the boys. Inter-school tournaments are also a must to be able to identify talented cricketers amongst the girls, in order to take them to the next level, be it Under 14 or Under 16 cricket.

Private organizations also have a role to play in development of cricket in a country. Take for example the initiative in Australia called Cricket Without Borders (“CWOB”), spearheaded by Clare Cannon, a former chair of the Women of Melbourne Cricket Club along with Ken Jacobs, a former CEO of Cricket Victoria and Sarah Elliot an experienced international cricketer. CWOB organizes a cricket team of young girls from Cricket Victoria’s development program and takes them on foreign tours to play cricket and experience foreign cultures. A similar organization in India, managed by well-meaning experienced administrators and cricketers, could do wonders for the women’s game, as it would boost morale, and encourage more women, and especially young women to take up the game.

Another possible initiative could be through corporates who deal in products exclusively for women. These companies could be possible sponsorship partners for women’s cricket events once the administration gets its house in order. It could be a wonderful opportunity for a brand to associate itself with an event or a league based tournament catering exclusively to women and a woman-centric audience. The opportunities if considered carefully are endless, what is required is foresight, imaginative branding and the ability to execute and manage such leagues or tournaments professionally. Such a partnership could provide great visibility for these brands while at the same time providing our women cricketers the best platform to showcase their skills and talents to a cricket loving audience.

Development through T20 cricket

Another way, in which women can be encouraged to take up the game, is through the route of T20 cricket. T20 cricket is the format which has attracted more women into watching the game. Currently the T20 domestic competition is played on a zonal basis, with the teams being run by the state associations. A possible way forward would be to give over the running of the domestic T20 teams to existing Indian Premier League (“IPL“) franchises and make it an obligation for them to put up a women’s team for the BCCI run domestic competition. In time, if the IPL franchises put in the requisite effort, the quality of the game is bound to improve, and may become a viable commercial property with a paltry running cost and investment in comparison to the men’s game.

Most of the IPL franchises have the man-power, funds and infrastructure to be able to run a women’s team side by side to a men’s team without it being overly financially onerous on them. Not only would it encourage more women to take up the game of cricket, it would be positive branding for the IPL franchises and could garner significant good-will with the women who play and watch the game in India. Another happy side effect of handing over the T20 competition to the private sector so to speak is that it will free up funds and resources of the state associations to be able to formulate and manage a 4 day, first class league, to encourage test cricket among women as well.

We have a long way to go to improve the women’s game in India. There is an undeniable love and passion for the game in this country, and this love and passion is not the exclusive domain of men but includes women who love the game with as much passion and fervour as any man. This passion can be harnessed and a world class team can be produced if only the BCCI stops viewing the women’s game as a child which must be humoured. Improvement at the grass-root level is a must, larger budgets must be allocated and ex-players who have represented India at the highest level must be given a larger say in running the women’s game.

Seeing Hero’s title sponsorship of the Hockey India League, and now the renewal of its association with FIH, Hero seems to be going “all-in” on Hockey, and becoming one of its major sponsors, while at the same time they seem to be withdrawing from their existing cricket investments. In 2011 Hero Honda had entered into a 3 year 15 million USD deal with the Mumbai Indians franchise for team sponsorship of the Mumbai Indians. This was the largest team sponsorship deal in the short history of the Indian Premier League (“IPL”). However since Hero Group’s acquisition of Honda’s stake in Hero Honda, and the subsequent rebranding as Hero MotorCorp., Hero has gone in for aggressive sporting investments in sporting arenas outside of cricket, with increased investment in hockey and golf.

The Hero Group has been associated with Indian cricket and cricket in general for the past two decades. However the cancellation of the team sponsorship of the Mumbai Indians coupled with non-renewal of central sponsorship in the IPL as well as non-renewal of their deal with the International Cricket Council (“ICC”) betrays the fact that Hero is no longer bullish on the appreciating value of cricket sponsorship. Reports suggest that the various non-renewals and cancellations by Hero in their cricket sponsorship leave the world game poorer to a tune of Rs. 1,200 crore per year.

The pull-out of one of the long-time supporters of Indian and international cricket should send warning signals to both the ICC and the Board of Control for Cricket in India (“BCCI”), that while cricket still remains an attractive sporting investment, the sponsorship market has become increasingly crowded and cluttered. Hero may have viewed a crowded sponsorship market in cricket, with limited recall value to be an unviable investment at current valuations.

Hockey on the other hand gives Hero a blank slate. The visibility that Hero will derive from Hockey sponsorships is immense. With no other major sponsors, the first name that viewers associate with Hockey in India for the next few years will be Hero. This we believe ties in with Hero’s desire to aggressively rebrand itself and separate itself from Hero Honda, which was the brand under which Hero maintained its cricket sponsorships over the past two decades. The shift from cricket to other emerging sports like Hockey and Golf could be a master stroke by Hero in attaining maximum visibility for its brand while having already derived all the mileage it could have from cricket in the past.

Mahesh Bhupati

Somdev Devvarman

Indian tennis has been in the news recently for all the wrong reasons, with a substantial number of players boycotting a Davis Cup tie with South Korea (which India eventually lost 4-1) on the grounds of alleged mal-administration by the All India Tennis Association (“AITA”) and demands for better playing conditions. The players who had boycotted the Davis Cup tie had presented the AITA with a charter of demands, which had not been agreed to in writing by the AITA in time for the tie with South Korea.

The rebelling players have made themselves available for the next Davis Cup tie with Indonesia on the back of the AITA agreeing in writing to most of their demands which included, a higher share in the prize money from Davis Cup matches, business class air travel for Davis cup ties, player involvement in venue and surface selection, consultation with players for appointment of team physiotherapist etc. The negotiations are however not over, as the AITA has not agreed to the player’s demand of removing the current non-playing captain Shiv Misra and coach Zeeshan Ali.

The ITPA states that its membership is open to all current and former national and international tennis players. The ITPA aims to model itself on the functioning of the Association of Tennis Professionals (“ATP”) which was formed in 1972 to protect the interests of male professional tennis players. The women’s professional game is managed internationally in a similar manner by the Women’s Tennis Association (“WTA”).

The functioning of the ATP is controlled by the ATP Board of Directors, consisting of 7 persons comprised of player and tournament representatives. The ATP Board of Directors are advised by a twelve person Players Council consisting of four Top 50 ranked singles players, two Rank 51-100 players, two top 100 ranked doubles players, two members at-large, a coach representative and an alumni representative.

The ITPA was an eventuality given the feelings of discontent felt by tennis professionals in India currently. Player demands are not a new phenomenon in tennis or any sport for that matter. However in India, player associations in sport are non-existent with the Board of Control for Cricket in India leading the way and refusing to recognize any association of cricketers national or international. The AITA has recently made a statement that it is yet to recognize the ITPA and shall await the ITPA formulating its rules and regulations before it considers recognizing the association. Hopefully the AITA recognizes the ITPA, and decides the sit across the table and sort out the issues bothering the tennis players. The other route is something Indian tennis cannot afford, it would include costly and acrimonious litigation, and would go down the sink-hole that hockey in India has been navigating through for the past few years.

The ITPA now have a unique opportunity, to influence the administration of Indian tennis and its development. The nature of tennis, which is extremely individual driven, gives a players association the opportunity to finally flex their muscle and force slumbering administrators to wake up and take prompt action. An organization such as the ITPA would also give an opportunity to Indian tennis players to collectively determine their best interests, and not just the best interests of certain individuals.

The ITPA now have the responsibility to continue raising important issues plaguing Indian tennis, which not only concern them financially, but affect the development of the game as a whole. Issues pertaining to grass roots development in tennis, expenditure on infrastructure, coaching, equipment purchases etc. must become top priorities for the ITPA. The ITPA should not limit itself to being a mere collective bargaining body, bargaining for perks for a certain few while the sport itself remains mired in mediocrity.

Standards and Burdens of Proof

As per Article 3.1 of the Code, the Anti-Doping Organization which is prosecuting a case shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof which the Anti-Doping Organization is required to meet is that the Anti-Doping Organization has to establish to the ‘comfortable satisfaction’ of the hearing panel that an anti-doping rule violation has occurred, bearing in mind the seriousness of the allegation made. This requirement of ‘comfortable satisfaction’ is higher than a mere ‘balance of probabilities’ (which is by and large the standard of proof required in civil cases in most jurisdictions) but less than proof beyond a reasonable doubt (which is the standard of proof required in criminal cases). Therefore, the burden of proof which an Anti-Doping Organization seeking to establish an anti-doping violation has to meet is mid-way between the burdens of proof required in civil and criminal cases.

Further, as per Article 3.1 of the Code, where the Code places the burden of proof upon the athlete or any other person such as support staff etc. alleged to have committed an anti-doping rule violation, to rebut a presumption or establish specified facts or circumstances, the standard of proof is a balance of probabilities, except as provided in Article 10.4 and 10.6 of the Code dealing with reduction of penalty with proof of no-significant fault or liability and enhancement of penalty respectively. This standard of proof of balance of probabilities for rebuttal of presumptions or establishing specified facts or circumstances by an athlete is lower than the standard of proof required of the Anti-Doping Organization alleging the occurrence of an anti-doping rule violation.

The concepts contained in Article 3.1 of the Code, were formulated in certain arbitration decisions which predate the formulation of the Code. One such decision was N.J.Y.W. v. Federation Internationale de Natation (FINA) (CAS 98/208), where the tribunal held that in a doping case, the burden of proof lay upon FINA to establish that an offence had been committed. The tribunal went on to state that the standard of proof required of FINA is high; less than the criminal standard, but more than the ordinary civil standard.

In the case at hand the tribunal applied the concepts of burden of proof and that of strict liability and held finally that, on the basis of the language contained in the doping control provisions, and the fact of presence of a prohibited substance in a competitors bodily fluid,  FINA had discharged its burden of proof, and had established to the comfortable satisfaction of the panel that an anti-doping violation had occurred. Thereafter they shifted the burden to the athletes, requiring them to prove why the maximum sanction should not be imposed, and stated that under the FINA rules (similar to the Code) it is only at the level of imposition of sanction and not determination of guilt, where the issue of shifting of burden becomes relevant. Eventually the tribunal decided the case in favour of FINA holding that the athletes had not discharged their burden of proof, and applied the maximum period of ineligibility on the athletes under the relevant rules.

Establishing facts and presumptions under the Code

Article 3.2 of the Code states that facts related to an anti-doping rule violation may be established by any reliable means including admissions. For example, an Anti-Doping Organization attempting to establish an anti-doping rule violation in relation to ‘use or attempted use of a prohibited substance’ under Article 2.2 of the Code, may do so based on the athlete’s admissions, credible third party testimony, reliable documentary evidence, reliable analytical data derived from the athlete’s specimen samples etc.

This principle was tested in the case of United States Anti-Doping Agency v. M. & International Association of Athletics Federation (CAS 2004/O/645), where the tribunal held that even in the absence of an adverse analytical finding in the sample of the athlete, credible, reliable and uncontroverted evidence given by a third party would be sufficient evidence to establish that the athlete has admitted to having used prohibited substances in violation of anti-doping rules. In this case the tribunal held that on the basis of credible and uncontroverted evidence given by a third party, the panel can and does hold the athlete guilty of a doping offence. The panel went on to clarify that since the decision is made on the basis of the evidence given by the third party, it would not be necessary to go into the mass of ‘other’ evidence against the said athlete.

Article 3.2.1 provides for a presumption in favour of laboratories with accreditation by the World Anti-Doping Agency (“WADA”). The presumption is that a WADA accredited laboratory would have conducted sample analysis of an athlete in accordance with the International Standard for laboratories. This presumption is however rebuttable. An athlete or other person alleged to have committed an anti-doping violation may rebut this presumption by establishing that a departure from the International Standard for laboratories occurred which could have reasonably have the causes the adverse analytical finding against the athlete.

Furthermore, reading Article 3.1 with Article 3.2.1 of the Code, the presumption mentioned above can be rebutted by the athlete by discharging a burden of proof based on ‘balance of probabilities’. Article 3.2.1  further provides that if an athlete or other person rebuts the presumption by establishing that the departure from International Standards could have caused the adverse analytical finding, the burden thereafter switches to the Anti-Doping Organization, which must establish that such departure did not cause the adverse analytical finding in question. The Anti-Doping organization in establishing that such departure did not cause the adverse analytical finding in question, must do so by proving to the ‘comfortable satisfaction’ of the panel that the departure from International Standards did not cause the adverse analytical finding, as provided for in Article 3.1 of the Code.

Article 3.2.2 provides that departures from any ‘other’ International Standard (i.e. other than International Standards for Laboratories) or other anti-doping rule or policy which did not cause an adverse analytical finding or other anti-doping rule violation shall not invalidate results. If the Athlete or other Person establishes (by satisfying the standard of balance of probabilities) that a departure from such other International Standard or other anti-doping rule or policy which could reasonably have caused the adverse analytical finding or other anti-doping rule violation, then the burden once again shifts to the Anti-Doping Organization which shall have to establish (to the comfortable satisfaction of the panel) that such departure did not cause the adverse analytical finding or form the factual basis for the anti-doping rule violation.

Article 3.2.3 of the Code provides that the facts established by a decision of a court or a professional disciplinary tribunal of competent jurisdiction which is not the subject of a pending appeal shall be ‘irrebuttable evidence’ against the athlete or other person to whom the said decision pertained as regards the facts contained in the said decision. Though this presumption is irrebuttable, the decision may be disregarded if the athlete or person establishes (by satisfying the standard of balance of probabilities) that the said decision violated principles of natural justice.

Article 3.2.4 of the Code provides that a panel hearing an anti-doping rule violation related case may draw an inference adverse to an athlete or other person who is alleged to have committed an anti-doping rule violation, based on the athlete’s or other person’s refusal, after being given reasonable time in advance, to appear at the hearing (either in person or telephonically) and to answer questions from the hearing panel or the Anti-Doping Organization alleging the anti-doping rule violation.