Introduction
The Board of Control for Cricket in India (BCCI) is one of the most potent private monopolies in Indian economic life—one that the CCI has, as yet, refrained from treating as such. The Surinder Singh Barmi litigation resulted in a penalty which was swallowed by the BCCI without structural effect. The foreclosure of the Indian Cricket League (ICL) was carried out using a textbook foreclosure mechanism and met with a weak, ineffectual response. Professional contracts have prevented player movement in the professional cricket labour market, and no one has yet bothered to challenge them. This is not a tale of the Competition Act’s inadequacy; the relevant statutory instruments exist and are more than capable. This is a tale of the inadequacy of institutional intent. The enactment of the Competition (Amendment) Act, 2023, which provides the CCI with a more robust set of enforcement tools, has brought the need to address the BCCI issue into sharper focus than ever.
More Than Just a Sports Body
Cricket in India is much more than a game. It is a multi-billion-dollar industry; it is a cultural monument and, increasingly, a target of antitrust law in countries across the globe. BCCI controls the most commercially successful Twenty20 League in the world, the Indian Premier League (IPL). In 2022, the BCCI sold the IPL media rights for the 2023-27 cycle for an astounding Rs 48,390 crore (US $6.2bn)—a nearly three-fold increase over one rights cycle. It is among the most lucrative sports broadcasting properties in the world. Domestically, BCCI has complete regulatory control of player selection, venue access, broadcasting rights and all terms on which any commercial activity related to the game may be pursued in India.
Under the Competition Act, 2002, Section 4 prohibits an enterprise from abusing its ‘dominant position’ in a relevant market. The threshold question is whether BCCI even qualifies as an “enterprise” under the Act. BCCI has consistently argued that it is a regulatory authority, not a commercial entity, and therefore falls outside the ambit of the CCI. This position, however, has not withstood scrutiny.
In BCCI v. Cricket Association of Bihar[i], while dealing with writ jurisdiction under Article 226 of the Constitution, the Supreme Court observed that, though BCCI is not “State” within the meaning of Article 12, it certainly performed public functions like player selection, representation of the country in cricket internationals, regulating the sport to the exclusion of all other bodies, etc. It held that BCCI has “a complete sway over the game of cricket in the country”. Such widespread powers attracted judicial review and accountability. The argument is equally relevant in the competition law context, a body that earns billions from broadcasting rights, franchise fees, sponsorships, hires professionals, and manages IPL as a full-scale commercial operation, cannot claim to be free from antitrust scrutiny for its commercial operations if it wields monolithic power over the sport as a whole.
The Surinder Singh Barmi Case: A Promising Start, An Inconclusive End
The direct engagement of CCI with BCCI occurred in Surinder Singh Barmi v. BCCI[ii], which was filed in November 2010 by a cricket enthusiast from New Delhi. The informant alleged that BCCI, in organising the IPL, abused its dominant position on account of non-transparent exclusive media rights arrangements, one-sided franchise agreements, and the leveraging of its regulatory power to exclude competitors’ leagues.
The CCI found BCCI guilty of abuse of dominant position under section 4(2)(c) of the Competition Act 2002 and imposed a penalty of around Rs. 52.24 crore. It identified the relevant market as “organisation of private professional cricket leagues/events in India” and held that BCCI enjoys a dominant position on account of its power derived from the ICC to sanction matches, possession of stadiums, availability of players, and extremely high entry barriers that may be presented to any competitors.
Later, this matter was also considered by the Competition Appellate Tribunal (COMPAT) in its judgment of February 2015 and was set aside for violation of the principles of natural justice. On directions from CCI, a supplementary investigation was conducted, and a fresh CCI order was passed in November 2017, whereby BCCI was again found guilty of dominance and of abusing its position in the market by denying market access and imposing discriminatory terms. This still resulted in limited impact: The BCCI paid the fine and made some minor modifications in the contracts.
The conclusion drawn from Barmi is that competition law can indeed touch upon BCCI. However, a monetary penalty, without strong behavioural orders, structural changes, and the separation of BCCI’s regulatory and commercial functions, will hardly yield any tangible results against an organisation of BCCI’s capacity and financial power. A fine of Rs. 52 crore in response to BCCI selling media rights for Rs. 48,390 crore cannot be a punishment. It is negligible in context.
Player Contracts and the Restraint of Trade Question
The participation agreements, such as those entered into by and with the cricketers, seem to contain conditions that limit the cricketers’ participation in leagues that compete with the IPL (sometimes for longer periods, extending beyond the IPL window). Such agreements undoubtedly raise substantial concerns under Section 3 of the Act, which prohibits agreements that cause an “appreciable adverse effect on competition” (AAEC).
The Indian courts have previously addressed restrictions on trade in sports by applying the principles laid down in Section 27 of the Indian Contract Act, 1872. The judgment in Percept D’Mark (India) Pvt. Ltd. v. Zaheer Khan & Anr[iii] is crucial here; The SC said in this case that post-contractual right of first refusal in favour of the promoter, which curtailed the player’s freedom to enter into fresh endorsement deals after the contract expired, was void as being in restraint of trade. As there is a restriction even after the contract term is over, it inherently restrains a person’s freedom to deal with anyone of their choice. It is evident that, in the case of a ban on the player’s participation in any rival league for a period of time, even beyond a single IPL season, the said principle will clearly hold good.
The AAEC test under section 19(3) of the Act requires the CCI to take into account factors such as the establishment of barriers to entry, the foreclosure of the market to competitors, and the foreclosure of competition through impediments to independent action by market participants. Overarching restrictions on players’ participation in rival leagues may well be held to constitute AAEC, given the composite nature of BCCI’s regulatory and contractual power to impose them. The said restriction would not merely be a restriction on individual players but would effectively ensure that the rival league does not attract the talent it needs to build a competitive product. Under Section 3(1) it is stated that even agreements which do not fall strictly in horizontal or vertical agreement categories as given under sub-sections (3) and (4) may be restricted by reason of causing AAEC. Such an argument may be raised, and may not yet have been.
The “Sports Exemption” Problem
A recurrent challenge in the application of competition law in sport, in India and elsewhere, has been the implicit assumption of a ‘sports exemption’: the notion that governing bodies require a certain exclusivity and coordination to produce a coherent sports product. This is partially true. No cricket league could operate without uniform rules, a scheduling authority and some degree of control over player availability; legitimate ancillary restraints with justifiable sporting purposes will not be anti-competitive agreements. But there are boundaries to such logic—boundaries clarified in no uncertain terms by recent comparative law. On 21 December 2023, the Grand Chamber of the Court of Justice of the European Union passed a significant judgment in the European Super League Company SL v. FIFA and UEFA Case, which ruled that the FIFA and UEFA rules that prevent the formation of a new rival European Super League violate Articles 101 and 102 of the Treaty on the Functioning of the European Union. The CJEU made it clear that sport governing bodies are not exempt from competition law; regulatory powers must be exercised within a framework that is transparent, proportionate and non-discriminatory; and that power to approve or veto rival events, if exercised without objective justification, constitutes an abuse of dominant position. The disqualification of players from events, according to the court, is disproportionate to be justifiable on the basis of sporting governance. India has no such sports exemption to statutory law. The CCI is thus positioned—and even compelled—to rigidly apply the framework of AAEC and Section 4, instead of just relying on the self-description by the BCCI as a regulator. In such a scenario, the CJEU’s reasoning offers persuasive authority on where to draw the line between acceptable and unlawful restrictions on sporting activity. The similarities between the conduct condemned in that case and the BCCI’s handling of the Indian Cricket League (ICL) were surely not coincidental.
The 2023 Amendment: A Stronger Toolkit, Awaiting Deployment
By introducing some very significant strengthening provisions in the enforcement framework of the CCI, The Competition (Amendment) Act, 2023 makes this an opportune moment to review afresh: The extension of the cartel provisions to cover hub-and-spoke arrangements (highly pertinent for situations where BCCI’s regulatory powers enable coordinated exclusion of competitors); wider penalty computation powers; a settlement and commitment mechanism which can enable negotiation of structural changes, avoiding long legal battles; and more crucially, a deal value threshold which marks Parliament’s intention to extend closer scrutiny to large value commercial arrangements, especially those emerging from the new-economy. These were simply not available in the present form when the Barmi case was litigated. The settlement mechanism is a sensible way forward: instead of spending years in litigation, which would result in penalties that BCCI could absorb, the CCI can enter into binding commitments that set out clear sanctioning criteria for rival leagues, mandatory venue-access conditions, or limits on post-contractual restrictions on player movement. The enforcement through commitments is often more durable than through penalties.
Cricket regulation in India currently finds itself at the complex intersection of public interest, private economic power, and regulatory accountability. The BCCI is not beyond the bounds of law; it is well within the ambit of the Competition Act, which, if used appropriately, as it should have been, could have easily reached it; there has been a dearth of not law, but structural vision.
Conclusion
The basic premise is very straightforward: the CCI seems to be treating the BCCI as a compliance problem to be managed by issuing fines from time to time, whereas what is needed is to treat the BCCI as a structural monopoly problem requiring structural remedies. While both approaches have profound and significant implications for the market structure and efficiency of the market for cricket-related entertainment, fines, once paid, are often forgotten and may well prove inadequate for a market of increasing stature, as the IPL grows into an entity worth tens of thousands of crores and global T20 cricket turns more competitive; it is only when enforcement continues to suffer from structural timidity that players, rivals, viewers, and the sports ecosystem have to pay the price.
The CCI has bowled some very good deliveries. The time has come to do better than dot balls and claim the wicket.
[i] BCCI v. Cricket Association of Bihar, (2015) 3 SCC 251
[ii] Sh. Surinder Singh Barmi v. Board for Control of Cricket in India (BCCI), Case No. 61/2010, 2013 CompLR 297 (CCI)
[iii] Percept D’Mark (India) Pvt. Ltd. v. Zaheer Khan & Anr., (2006) 4 SCC 227
Author
Abhijeet Gaurav Jha is a Doctoral Research scholar at O.P. Jindal Global University, where his work sits at the intersection of Competition Law and Public Policy.