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TMI Blog2018 (6) TMI 1786X X X X Extracts X X X X X X X X Extracts X X X X ..... CCI 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 tournamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of the Act, vide Order dated 16th January, 2014. 3. Aggrieved by the order of the Commission dated 16th January, 2014, the Informant filed an appeal before the erstwhile COMPAT (Appeal No. 31/2014). In the meantime, the COMPAT, vide its order dated 23rd February, 2015, set aside the Commission's order under Section 27 of the Act passed in Surinder Singh Barmi case and remanded back the case to the Commission for further necessary action. Subsequently, the COMPAT, vide another order dated 30th March, 2015, allowed the appeal filed by the Informant in the present case and directed the Commission to consider the matter afresh to see whether there is a prima facie case warranting investigation by the Director General. The operative portion of the order is as under: In view of the findings recorded and observations made in order dated 23.02.2015 passed in Appeal No. 17/2013, which shall be read as part of this order, this appeal is allowed, the impugned order is set aside and the matter is remitted to the commission to consider afresh, whether or not, the information filed by the appellant discloses prima facie case warranting an investigation by the Director General. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.1. Air India sent a letter dated 22nd August, 2007 to Mr. Dinesh Jadhav stating that whilst he has been recruited in Air India on supernumerary basis under sports quota to play for Air India in tournaments affiliated to MCA and BCCI. However, on joining ICL you will be banned by BCCI as a result of which you will not be able to represent Air India in any corporate tournaments which is not acceptable to Air India as per Sports Policy. and; 8.2. A letter dated 11th August, 2007 to Mr. Pranab Roy from the Cricket Association of Bengal stating that any present or former members of BCCI shall stand to lose their privileges and benefits should they associate with any tournament or match without the approval of BCCI. 9. The Informant filed a suit before the Hon'ble Delhi High Court ('ICL Suit') (CS (OS) No. 1566 of 2007), inter alia, contesting the said conduct of BCCI against ICL. When the aforesaid conduct was being pointed out to the Hon'ble Delhi High Court in the ICL Suit, the Ld. Single Judge was convinced to restrain Government of India and PSUs, through an interim order dated 27th August, 2007, from terminating the services or taking disciplinary action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf-serving documents in the case of Mr. Kapil Dev and Mr. Kiran More, to inculpate its illegal and anti-competitive conduct. However, as stated, the Hon'ble Delhi High Court vide an Order dated 26th August, 2013, dismissed the application of BCCI seeking interrogatories from the Informant on the above two purported Letters dated 24th July, 2012 and 07th July, 2012. 14. Placing reliance on the aforesaid background facts, the Informant has alleged that BCCI has abused its dominant position and is continuing to do so through its conduct. Relying upon the Surinder Singh Barmi case, the Informant has contended that BCCI holds a dominant position in the relevant market of 'organization of private professional league cricket in India' and has abused its dominant position by indulging in conduct that has led to denial of market access to the Informant. In the said Order, the Commission held that [t]hus, owing to regulatory role, monopoly status, control over infrastructure, control over players, ability to control entry of other leagues, historical evidences, BCCI is concluded to be in a dominant position in the market for organizing private professional league cricket even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide appropriate response/resolution by ICC in the year 2013 has to be seen in the context of the express denial in the year 2009. Based on this, it has been alleged that the decision of BCCI to boycott ICL and its refusal to accord permission for hosting the matches of ICL is in gross violation of Section 4(2)(c) of the Act, as it denies market access to the Informant. 18. The Informant has also contended that BCCI has abused its regulatory power to protect its interests in the commercial sphere, where it organises IPL. This, as per the Informant, amounts to contravention of Section 4(2)(e) of the Act. In fact, BCCI prevailed upon the ICC to change the import of Regulations 32 and 33 of the ICC Regulations with a view to thwart ICL and emergence of any rival cricket league. Rule 32, which explains the concept of 'unofficial cricket event', was amended and a section on 'Disapproved Cricket' was inserted. Because of this amendment/modification, any cricket match not approved by the member in whose territory it is being played will be deemed as 'disapproved cricket'. Citing reference to Section 28 of the Act; the Commission's decisions in Case No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case pertain to limiting market access to organization of private professional cricket league and leveraging. It was further argued that the Commission has already held BCCI dominant in the Surinder Singh Barmi case and since the facts and allegations of present case are different from those alleged in Surinder Singh Barmi case, a fresh investigation is warranted. The Informant has argued that the issue of blacklisting by BCCI continues till date. BCCI introduced the said restriction in the year 2010 and even the latest tender of 2018 contains the same clause. Incorporation of such restriction by a dominant player amounts to abuse of dominant position. Based on these facts, the learned counsel prayed that an investigation be directed into the matter under Section 26(1) of the Act. 23. The allegations in the present case pertain to abuse of dominant position under Section 4 of the Act. Thus, delineation of the relevant market is of significance as it sets out the boundaries for competition analysis and identifies, in a systematic manner, the competitive constraints faced by the enterprise under scrutiny. 24. In the instant case, the Informant has proposed the relevant market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. 29. With regard to abuse, it has been argued that BCCI has systematically excluded the Informant from participating in the relevant market by not recognizing ICL. 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. 30. Further, 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 Minut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regoing discussion, 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. 34. In view of the foregoing discussion, 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. 35. It is, however, made clear that nothi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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