An over in which 13 runs were scored in IPL 2013 was unlucky for some.
It was alleged that the bowler of that over, Indian pacer and 2011 World Cup winner, S Sreesanth, had received 10 lakh rupees from a bookie to concede 14 or more runs in that over. If that was his quest, he was unsuccessful by the smallest of margins.
Perhaps even more significantly, the police investigation into the incidents surrounding these six deliveries set in motion a series of events at the BCCI that is still ongoing six years later.
The governance restructure of the BCCI, first with the Mudgal Committee and then the Lodha Committee being constituted by the Supreme Court of India, has involved an extensive judicial review of systemic failures and structural limitations within the cricket board.
This process was triggered by allegations of match fixing and ethics violations by players and officials in the IPL. Much has happened at the BCCI since and much remains work in progress. That one over was the first domino.
The lives and times of Sreesanth and the BCCI have not been the same since.
A towel tucked into Sreesanth’s pants was allegedly his sign to his handlers that the “fix was on”. This resulted in a life ban imposed by the BCCI after its Disciplinary Committee found him guilty of corruption, involvement in betting, bringing the game into disrepute and failure to disclose approaches/invitations made to indulge in corruption, each an offence under the BCCI Anti-Corruption Code.
This BCCI action was different and distinct from the police’s criminal case against him, being limited to his relationship with the BCCI and affecting his ability to participate in official cricket activities. Faced with these findings, Sreesanth was apparently in no mood to throw in the towel, so to speak.
In 2015, he was discharged by the trial court in a criminal case in Delhi, which order of discharge has since been appealed by the state and is pending before the Delhi High Court. Once discharged, Sreesanth challenged the BCCI’s ban in the Kerala High Court.
A single judge held in Sreesanth’s favour but the BCCI successfully challenged this decision before a division bench of the Kerala High Court. Aggrieved with this finding, Sreesanth approached the Supreme Court, seeking relief against the findings of guilt under the BCCI Anti-Corruption Code and the life-ban.
To draw a cricketing parallel, the BCCI had made a decision dismissing him, and Sreesanth sent it up for consideration by the judiciary – the real world Decision Review System.
Grounds of Appeal
Sreesanth’s appeal before the Supreme Court of India was based on the claim that the BCCI’s Disciplinary Committee violated the principles of natural justice in its procedures, that there was no evidentiary basis to hold him guilty of offences of corruption and that the Disciplinary Committee had wrongly placed the burden of proof on him to prove his innocence.
Interestingly, he also claimed that the constitution of the Disciplinary Committee was vitiated by the inclusion of N. Srinivasan who had stepped back from his BCCI President post a few weeks prior. Finally, he claimed that the Disciplinary Committee, while imposing the maximum sanction of a life-ban, had failed to consider the mitigating factors provided for in the Anti-Corruption Code.
After carefully evaluating the merits of these claims on factual and legal grounds, the Supreme Court rejected all but the last of them. It deferred to and found no adequate reason to interfere with the BCCI’s Disciplinary Committee’s determination of Sreesanth’s guilt under the Anti-Corruption Code.
However, it requested the BCCI to actively re-apply its mind in respect of the quantum of sanction, while taking into consideration the various aggravating and mitigating factors specifically contained in the Anti-Corruption Code.
Little to Celebrate
The Supreme Court’s decision has been widely reported as ‘lifting the life-ban’ on Sreesanth. That is, in fact, not an entirely accurate representation of the implications before the Court’s holding. The Court found that the Disciplinary Committee had not adequately considered the potential mitigating factors that could be grounds for reducing the quantum of the sentence.
Specifically, the BCCI has been requested to reconsider this matter within the next 3 months, after giving Sreesanth a hearing. There is no legal impediment to the BCCI determining that there are aggravating factors and no real mitigating factors and, thereby, sticking to its stance that a life-ban is appropriate sanction in the circumstances.
File Image. (IPL)
The factors the BCCI will need to consider include whether there was any admission of guilt by the player (including the timing thereof), the previous disciplinary record, the age and experience of the player, the extent of cooperation extended during the investigation, the damage caused by the offence to the commercial value and/or the public interest of the match/event, whether the offence affected the result of the match, whether the player has already suffered penalties under other laws and/or regulations for the same offence and/or any other aggravating/mitigating factors deemed relevant and appropriate.
On the face of it, there appears to be little basis among these factors to favour Sreesanth or mitigate his sanction. There might, however, be some support from international precedent and practice on proportionality of sanctions for similar offences. For example, Pakistani cricketers Mohammed Amir, Mohammad Asif and Salman Butt received 5, 7 and 10 year ICC bans, respectively, after their criminal convictions for spot-fixing.
A Matter of Procedure
In reaching its finding, the Supreme Court made a few important observations. It held that the BCCI ban was a civil matter, with the standard of proof being the “preponderance of probabilities” rather than “beyond reasonable doubt”. It also clarified that its findings in this matter were to have no bearing on any criminal proceeding in respect of the incident.
The Supreme Court also held that judicial review of a disciplinary proceeding did not involve re-appreciation of evidence or correction of facts, but that its interference would only have been appropriate if the conclusions of the Disciplinary Committee were perverse or based on no evidence. In that respect, it found that the BCCI had followed fair procedures and natural justice principles in conducting the proceedings and while considering the materials and evidence before it.
It found that the only flaw in the procedure was its failure to consider mitigating factors, if any, while imposing the quantum of sanction. It is noteworthy that this finding regarding the BCCI’s conduct of proceedings is a far cry from the Andhra Pradesh High Court’s observations while overturning the Mohammad Azharuddin ban.
In that case, the High Court had lambasted the BCCI for not following proper procedures in its disciplinary proceeding and had, on this basis alone, struck down the BCCI ban on the former Indian captain. The BCCI has clearly taken lessons from that case since.
A Case of Judicial Restraint
During a phase of judicial activism in Indian sports administration, the Supreme Court’s decision in the Sreesanth case is an example of healthy judicial restraint. In respecting the BCCI’s internal procedures and protocols, it has not sat in judgment on evidence and materials or attempted to usurp powers of the Disciplinary Committee. It has provided the BCCI an opportunity to reconsider the sole issue of the quantum of sanction in accordance with its own Anti-Corruption Code.
In essence, the Supreme Court has said to the BCCI: “Umpire’s call, you may stick with your decision”. Should the BCCI indeed do so and determine that a life-ban is appropriate, after due consideration of all aggravating and mitigating factors and a fair hearing afforded to Sreesanth, it is unlikely that the Supreme Court will interfere or strike down such a considered decision.
That said, the BCCI’s approach and decision will be watched closely, both for what it means to the present case and player as well as the signal it aims to send on its approach to corruption in the sport.
(Nandan Kamath is Principal Lawyer at LawNK, practising sports and intellectual property law, and also acts as Managing Trustee of GoSports Foundation.)