2018 (6) TMI 1786 - Commission - Indian Laws

Contravention of provisions of Section 4 of Competition Act, 2002 - Informant has proposed the relevant market to be the market for 'organization of private professional league cricket in India' - HELD THAT - Undoubtedly, the sports federations engaged in organization of tournaments/ leagues are put to advantage if they also possess the authority to grant approval for organization of similar events by others and set conditions for such organization. This is so in the present case. Thus, in view of the facts of the present case, the Commission is convinced that BCCI prima facie enjoys a dominant position in the relevant market for organization of professional domestic cricket leagues/events in India. As per the information, after the initial denial in April, 2009 by BCCI, the Informant approached ICC seeking revision of its decision regarding ICL. However, ICC gave evasive reply. It neither granted the approval sought for nor did it place any sanctions on BCCI in relation to its anti-competitive conduct. Thus, the Commission observes that though the exclusionary actions of BCCI started prior to May 2009, i.e. prior to the enforcement of Section 4 of the Act, such conduct seem to have continued thereafter - the Commission notes that the evidence on record shows that BCCI blacklisted the Informant from participating in the bids for allocation of broadcast rights for IPL. The Minutes of ICC Board Meeting held in January, 2013, which have been relied upon by the Informant, has a categorical noting that the President of BCCI viz. Shri N. Srinivasan had specifically raised a concern regarding award of broadcast rights to companies within Essel Group which had remained in litigation with BCCI, ICC and ECB. The Commission is of the view that apart from restraining the organisation of a competitive league (i.e. ICL) by the Informant, the BCCI appears to have excluded the Informant in the downstream market by disallowing it to bid for the media rights for IPL. Such denial prima facie appears to be in contravention of the provisions of Section 4(2)(c) of the Act. As stated earlier, the sports federations engaged in organization of tournaments/ leagues are put to advantage if they also possess the authority to grant approval for organization of similar events by others and set conditions for such organization. BCCI seems to have taken advantage of such a situation. The Commission finds that a prima facie case of abuse of dominant position within the meaning of Section 4(2)(c) has been made out against the Opposite Party. This case needs to be sent for investigation to the Director General (the 'DG') under the provisions of Section 26(1) of the Act. The DG is directed to carry out a detailed investigation into the matter and submit a report to the Commission, within 60 days - Application disposed off.

Summary

Issues Involved:
1. Abuse of Dominant Position by BCCI.
2. Denial of Market Access to ICL.
3. Blacklisting of Informant from Bidding for Media Rights.
4. BCCI's Influence on ICC Regulations.
5. Jurisdiction and Continuation of Abusive Conduct Post-May 2009.

Issue-wise Detailed Analysis:

1. Abuse of Dominant Position by BCCI:
The Informant alleged that BCCI has abused its dominant position in the market for organizing professional domestic cricket leagues/events in India. The Commission noted that BCCI, as the de facto regulator of cricket in India, holds a monopoly status due to its historical evolution and endorsement by ICC. This dominant position allows BCCI to create entry barriers for other cricket leagues by requiring approval for organizing events. The Commission observed that BCCI's conduct, including blacklisting the Informant from bidding for media rights, constitutes an abuse of its dominant position.

2. Denial of Market Access to ICL:
The Informant, a promoter of the Indian Cricket League (ICL), claimed that BCCI denied market access to ICL by not recognizing it and using its regulatory power to thwart its operations. The Commission noted that BCCI's exclusionary actions started before May 2009 but continued thereafter. The denial of permission to host ICL matches and the influence exerted on ICC to reject ICL's recognition were seen as efforts to prevent the Informant from entering the market, which prima facie violates Section 4(2)(c) of the Act.

3. Blacklisting of Informant from Bidding for Media Rights:
The Informant alleged that BCCI systematically excluded it from participating in the bidding process for media rights of IPL. The Commission found evidence supporting this claim, including minutes from an ICC Board Meeting where BCCI's President raised concerns about awarding broadcast rights to companies within the Informant's group. The tender conditions formulated by BCCI in 2010, which disqualified bidders involved in litigation with BCCI, were seen as targeted restrictions to exclude the Informant. This exclusion from the downstream market was viewed as an abuse of dominant position.

4. BCCI's Influence on ICC Regulations:
The Informant contended that BCCI influenced ICC to amend its regulations to grant BCCI complete discretion in approving unofficial cricket events. The Commission noted that such regulatory changes allowed BCCI to maintain its monopoly and prevent the emergence of rival leagues like ICL. This conduct was seen as leveraging regulatory power to protect commercial interests, potentially contravening Section 4(2)(e) of the Act.

5. Jurisdiction and Continuation of Abusive Conduct Post-May 2009:
The Commission considered whether it had jurisdiction to investigate the matter, given that some exclusionary conduct began before May 2009. The Informant argued that the abusive conduct continued post-May 2009 through various actions by BCCI. The Commission agreed, noting that the continuation of such conduct falls within its jurisdiction. The Commission also distinguished the present case from the Surinder Singh Barmi case, emphasizing that the current allegations pertain to denial of market access and leveraging, rather than irregularities in granting media rights.

Conclusion:
The Commission found a prima facie case of abuse of dominant position by BCCI, particularly under Section 4(2)(c) of the Act, and directed the Director General to conduct a detailed investigation within 60 days. The investigation will determine whether BCCI's actions, including denial of market access to ICL and exclusion of the Informant from bidding for media rights, constitute a violation of the Competition Act.