There is a newly appointed sheriff in town in Indian cricket administration. It is neither an administrator nor an organisation. Instead, it is the otherwise rather innocuous concept of ‘conflict of interest’. India’s erstwhile middle order of Rahul Dravid, Sachin Tendulkar, Sourav Ganguly and VVS Laxman have all recently been served up conflict of interest notices by the BCCI Ethics Officer, probably leaving the likes of Virender Sehwag wondering why they have been left out of, literally, the line-up.
There is a history to why conflict of interest has a strongly pejorative tone in Indian cricket. In fact, command and control was at the centre of the former BCCI dispensation with intertwined interests written into its core. As the public nature of BCCI’s role was judicially recognised by the Lodha Committee and the Supreme Court of India, transparency and fairness demanded that the issue had to be addressed in the reform process. This was important not only for the appearance of propriety but for propriety itself. However, the urge to address historical baggage and close all perceived ‘loopholes’ has caused a degree of overcompensation in rule-making that leaves little room to factor in context, which is an essential component to identify and address conflicts of interest.
Looking at conflict of interest devoid of context, as a set of rigid rules to be implemented technically, has the potential to exclude the best local talent from contributing on a variety of compatible fronts. This is also not in tune with modern notions of ‘work’ in a dynamic and growing industry and is likely to cause significant and long-lasting damage to Indian cricket if the status quo remains. It is incumbent on Indian cricket’s legal curators to take another look at the pitch that is being played on when it comes to conflict of interest.
Then again, what exactly is conflict of interest and why does it matter?
Conflict of interest is a governance and ethics standard that prioritises and promotes the independence of decision making in public and quasi-public posts. It is almost inevitable that those in senior positions in large organisations will have other personal interests or external allegiances that are not necessarily fully aligned to the public purpose they are also positioned to promote.
The management of conflicts of interest not only seeks to ensure that public-oriented decisions are made for the right reasons but also that the decision-making process itself (and the institution) is, at all times, respected and seen as independent and fair. For example, an admissions interview panelist at a university would be conflicted if one of her children was among the candidates. Similarly, a public company director would be conflicted if a decision is being made on vendor appointment and a company he holds a stake in is in contention. As the saying goes “Justice should not only be done but should also be seen to be done".
A conflict of interest policy is an essential and standard component of modern day corporate governance. It first tries to identify and recognise potential conflicts that may be present, by prioritising prompt and truthful disclosure of all such other interests by key participants on a disclosure register. It also sets up a mechanism to decide whether a conflict exists and then provides an interactive mechanism to help address the conflict.
This could be by giving the person an opportunity to remove the external conflict (such as by selling shares in a company), recuse himself/herself from decision making related to that conflict (such as by leaving a meeting that is discussing a related matter), or in extreme cases resign from the public position itself. The remedy chosen is entirely dependent on the type and nature of conflict found and the context. It is on this aspect that the BCCI approach, in adopting the Lodha Committee recommendations, falters by not playing a ‘percentage shot’.
In its understanding of the broad parameters of conflict, Rule 38 of the new BCCI Constitution does a reasonable job. It states that conflicts can be either ‘direct’ or ‘indirect’, could arise from compromised roles or divergent financial interests, prior relationships and positions of influence, and provides useful illustrations of such cases along the way. It also recognises that conflicts can be ‘tractable’, i.e., resolvable through disclosure, removal or recusal or ‘intractable’, i.e., incapable of resolution other than through resignation of the person from the BCCI role. It also requires every person to disclose potential conflicts of interest within 15 days of taking office in the BCCI. This is all reasonably standard. However, what it does next muddies the pitch.
In Rule 38(4), the BCCI Constitution states that:
“no individual may occupy more than one of the following posts at a single point of time except where otherwise prescribed under these Rules:
(a) Player (Current)
(b) Selector / Member of Cricket Committee
(c) Team Official
(e) Match Official
(f) Administrator / Officer Bearer
(g) Electoral Officer
(h) Ombudsman & Ethics Officer
(j) Any person who is in governance, management or employment of a Franchisee
(k) Member of a Standing Committee
(l) CEO & Managers
(m) Officer Bearer of a Member
(n) Service Provider (Legal, Financial, etc.)
(o) Contractual entity (Broadcast, Security, Contractor, etc.)
(p) Owner of a Cricket Academy"
The above rules and, in particular, the list of allegedly ‘incompatible’ contemporaneous positions are put in the hands of the Ethics Officer who can accept complaints, act on his own or take a reference from the BCCI Apex Council to evaluate an allegation/potential of conflict of interest in the BCCI set up. The Ethics Officer is given broad discretionary powers to enforce remedies, including monetary penalties and debarment for life in extreme cases. However, the Ethics Officer is given no discretion to determine whether a conflict of interest indeed exists in cases where a person does indeed hold two or more of the listed roles. This positions him like a batsman on a wet pitch – having all the strokes but unable to lay bat on ball.
In reality, the list of “incompatible" roles provides no room at all for a nuanced determination of the most basic question – whether there is in fact (as opposed to in theory) a conflict in the circumstances. Little consideration is also given to the impact of such overbroad rules on the cricket ecosystem. In particular, the inclusion of “Commentator", “Employ[ee] of a Franchisee", all nature of “Service Provider[s]" and in particular “Owner of a Cricket Academy" in the list are jarring and have, rightfully, caused much heartburn and consternation within the cricket community.
A number of the listed roles are indeed incompatible if held at the same time – after all, no one should be making IPL rules when owning an IPL team or, for that matter, selecting the national team while also operating a cricket academy. However, does it really matter whether an existing player also runs a cricket academy for kids in his home town? So what if a security contractor to the BCCI also umpires in his other job? Is doing commentary truly incompatible with being on a Cricket Committee or another administrative position?
Is it in the best interests of cricket for a consultant to a IPL franchise, who has a job for 8 weeks during the year, to be barred from participating in the cricket universe for the remaining 44 weeks? Does it make sense to apply the “One Man One Job" rule to former Indian cricketers while not extending the rules to ex-cricketers from other countries who are playing the same “incompatible" roles in other national set-ups? Ganguly and Laxman are barred from IPL coaching and commentary roles because their multiple roles are in India while a Mark Waugh or Ricky Ponting are free to participate in the IPL because their ‘other’ roles are held outside India.
The cricket ecosystem in India has always been populated by numerous freelancers and stringers who play multiple roles through the year. This is not something that can or will change overnight with the click of a switch. It requires new hiring practices and compensation structures, which evolve over time. In the meantime, the concept of ‘work’ itself has changed significantly and is not always as linear or unitary as it once was – many people make livings doing different things and using diverse skill sets.
With the rapidly increasing volume and complexity of cricket operations, every available human resource must be directed towards strengthening structures and improving the game. Local Indian talent needs to grow and develop and should not be structurally subordinated to foreign talent or poor substitutes. Former cricketers will need opportunities post-retirement that keep them not only engaged but actively contributing throughout the year.
Knowledgeable Indian voices must be heard on commentary during international and IPL matches alongside the best foreign ones. The most experienced cricketers must be able to work on talent identification and selection. The ownership of cricket academies cannot be left only to those who have no other involvement in the game - in fact, quite to the contrary, the grassroots needs players and passionate participants to give back and invest in the future of the game. A failure to provide opportunities, or to limit involvement at a time when the game is growing globally, will result in the flight of Indian human resources to other shores. Brain drain is something Indian cricket can ill afford. The silos being created by unnecessary role segmentation, instead of protecting the institution, will start eating it from the inside.
There is an urgent need for the BCCI to re-evaluate the existing code on conflict of interest and to examine its roots. This must be done before the negative impact of the current code plays out and weakens Indian cricket’s structure. No other sports code worldwide looks at conflict in the same hyper-technical way as Indian cricket currently does. At the same time, the BCCI must concurrently look at its broader approach on transparency and information sharing, including the applicability of the Right to Information Act to its work. The choice to keep the decisions of the Ethics Officer non-public and confidential must also be reconsidered in the spirit of transparency. Or else it will be holding others to far higher standards than it holds itself to.
Media reports seem to suggest that a meeting of senior players and administrators has recently taken place and a “White Paper" is being produced on this sticky issue. There is no doubt whatsoever that conflicts of interest must be raised and addressed on a regular basis as the BCCI carries out its “public functions" in its new avatar. Ethics, fairness and transparency are the principles that will have to remain at the foundation of administration. A well-conceived and implemented ethics policy will protect the reputation and goodwill of not only the organisation but the people who populate it.
The current rules on conflict of interest must be unpacked, understood better and reformulated. A fresh pitch must be put in place that will make for better cricket all around. This must happen with a sense of urgency before we have a case of the fence eating the crop.
(Nandan Kamath is Principal Lawyer at LawNK, practising sports and intellectual property law, and also acts as Managing Trustee of GoSports Foundation)