PCB losing to BCCI in DRC verdict - a direct result of myopic quid pro quo

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PCB losing to BCCI in DRC verdict - a direct result of myopic quid pro quo

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Bastab K Parida

11/25/2018

The inevitable happened, if there was any doubt regarding the result. BCCI beat PCB in the legal battle, contested in front of the ICC Dispute Resolution Committee (DRC) that was led by Michael Beloff QC and legal experts Jan Paulsson and Dr Annabelle Bennett to bring an end to the fiasco.

For beginners, here is the context. When BCCI, Cricket Australia along with England and Wales Cricket Board (ECB) brought the Big Three distribution model to the fore in 2014, it was nothing but a ploy to centralise the game. The top brass of the BCCI argued that they are the ones who generate the most money in the ICC and hence deserve to get the maximum amount too. 

While it was unlikely for them to get many supporters among the member groups, BCCI played a masterstroke of luring other boards in some other way like assurance of playing them at their home and for Pakistan, they played another key masterstroke in the form of signing an “agreement” of playing six series over eight years between 2015 and 2023 to get the archrivals under the same tent. PCB, as told by its chairman Najam Sethi then, would stand to gain estimated Rs 30 billion (around $310m) in the due eight years by playing the bilateral agreements and they had little choice in front of that hefty amount.

When India denied to play them the two series that PCB was supposed to host in November 2014 and December 2015 as per the agreement, it obviously stirred the board and it thought it was an outright betrayal and a clear-cut violation of the “Memorandum of Understanding” - a term that PCB repeatedly used while filing a compensation of USD 63 million, which eventually went to DRC panel for the final decision. 

And it was no secret that the primary reason for the Indian board’s refusal to tour is political and mostly, a result of the activities that had been happening at the border. So, it was myopic in Pakistan’s part to automatically assume that BCCI would play them, especially after many BCCI officials had made it clear that the decision to tour ultimately depended on the green light from the Indian Prime Minister's office, in light of what had happened in November 26 2008, on the eve of Lalit Modi's second part of the grand European football-style plan - Champions League - as a group of Pakistan terrorists trained by Kashmir liberationists Lashkar-e-Taiba laid bloody siege to Mumbai for 60 hours. The political clime was heated by then and in 2014, even before the general election, there were signs that it was going to be a right-wing government, and it was only stupid not to have a clear-cut insight before signing the "agreement". 

When Michael Beloff took over the responsibility to find out if the BCCI had indeed breached the agreement, they asked for the appearance of Salman Khurshid, India's foreign minister at the time the agreement was signed, and found out that it was "beyond the control" of either of the cricket boards to organise a bilateral series after the various breach of military violation at the border. Khurshid, despite being instructed not to talk publicly about the proceedings in the ICC DRC panel arbitration, went ahead to give an interview to Hindustan Times and revealed that it was the government’s decision not to allow them to play Pakistan - in any case - which got beyond the control after 2016 Uri attack, and the case started moving in the BCCI’s direction.

Another factual mistake made Pakistan a weaker link in the agreement. The general procedure while forming any bilateral ties is that the boards first give some date options, then agreeing on a mutual time frame before getting into an official binding agreement in the form of FTP. However, in this case, as BCCI maintained, it was a letter of intent signed between the authorities of two boards and not legally binding and there was never an FTP signed by them. PCB, however, maintained that it was just a “routine matter” and didn't really make a lot of difference.

The question that arises here is if Pakistan knew that it was indeed a formality, then why didn’t they do the formal job by forcing BCCI to sign the FTP? Didn’t they have a history with BCCI and in an extension, with India, earlier?  

One more thing that the DRC pointed out along with one of the past interviews of Najam Sethi made it clear that PCB had little option left in front of them than agreeing to the “Big Three Model”. It was nothing but a “quid pro quo” in PCB’s part given they would have otherwise gone into deep financial trouble, as ECB and CA had earlier made their stance clear if PCB wouldn’t sign in favour the “Big Three Governance Model”, they wouldn’t sign FTP agreements with them. 

"Decision was made after sensing an isolation. If we don't play big teams we could be bankrupt in the next two years so we have to stay in line and play our home series with India,” Sethi told a media conference back in April 2014. 

While it was written that the letter won't be valid if the resolutions were not passed at the ICC Annual Conference in 2014, there was no mention that government approval being needed for the tours to go ahead. While PCB cited this as a major point in their agreement, they “reflected not only in PCB emails but also in minutes of PCB board meetings, all of which were aggregated in BCCI's helpful schedule to its written submissions”.  

In the context of that, the panel concluded that it would not hold that the letter constituted an enforceable agreement and held that there was no question of a breach by the BCCI if deployed by a “Telescope” and not a “microscope”. All this, however, led to a point as Nagraj Gollapudi excellently puts it for ESPN Cricinfo, this has “established an important precedent for the prospect of bilateral ties between the two countries. That centers upon the BCCI wanting the approval of the Indian government when touring Pakistan, something the three-member panel recognised was not a legal requirement but an 'oral tradition'.”

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