From the perspective of the Indian cricket authority (BCCI) and its handmaidens in other countries, such as the ECB, if the upstart rival competition in the 20/20 format called ICL is to be crushed, it needs to be denied access to all marketable players. This is not an easy task from a legal perspective.

Banning ‘disloyal’ players from representing their country is an obvious place to start. However, prospective (as opposed to retrospective) denial of international representation (which was considered as potentially justifiable in the case of Greig v Insole) does not fit the bill from a commercial perspective. Players can just retire from international matches to work for a few remunerative weeks. There is absolutely nothing that can stop ICL evolving into a seniors’ or ‘legends’ tournament played in India or elsewhere, which might compete effectively with official events.

A hard-nosed commercial strategy requires other cricketing revenues to be threatened if current and younger players are to be deterred from joining ICL. However, interference with existing county cricket contracts of players who have played in the ICL in the past (which would be the best deterrent), is clearly unlawful. The ECB is apparently not going to try this tack – at least not for English players.

If another cricket governing body does object to one of its nationals playing county cricket and does not sign the relevant certificate because he has played for ICL in the past and the ECB purports to de-register the player, that player should succeed relatively easily in reversing that decision in court on the basis of Greig v Insole. Furthermore, such action on the part of the ECB might well be discriminatory if the player enjoys EU workers rights. Discrimination could also be claimed if no moves are taken to de-register players who play for the official Indian 20/20 tournament (IPL).

Any attempt to distinguish the two situations on the basis that ICL does not have proper drug testing programmes (a device being used by the world cycling governing body to try to bring a rival tournament organiser to heel) won’t work because India and Pakistan don’t have such programmes either and the ECB is continuing to play these countries.

If retrospective action is ruled out, what can be done to stem the flow in the future? Assuming that international representation can be legally denied for what this is worth (though this was only expressed tentatively in Greig v Insole) can county registrations be blocked next year on the grounds that the player accepts an invitation from ICL? If ICL is to be crushed, the answer to this question has to be an unequivocal yes. Unfortunately for the cricketing authorities, such an answer is not possible. Bearing in mind that the only place that cricket can be played professionally in the northern hemisphere is England, it must be seriously doubted that depriving a man of his livelihood because of the need to placate the commercial imperatives of a foreign governing body would past muster if challenged. In the venerable New Zealand case of Blackler v NZRL, the New Zealand courts refused to allow a governing body to use an international clearance certificate to stop a rugby league player working in Australia, even though this weakened the entire domestic New Zealand league. So legal hostility to the sort of devices being used by the ECB is pretty widespread and is likely to be replicated where the interests being protected are less important – as they undoubtedly are in this case.

To pass muster from a legal perspective, there always has to be some justification for impeding free movement of players. If players were having their registrations cancelled because they were missing county cricket to play for the official Indian tournament as well, there would be an objective basis for the ECB’s action; but now that Mascarenhas has been allowed to miss the first few weeks of the season, that is not going to happen. It follows that any action leading to de-registering a player who plays for ICL at the same time as the likes of Mascarenhas are given the all clear would be discriminatory and very difficult to stand up.

So it seems that players can retire from international cricket and county cricket and ICL can hire them with impunity; moreover, pre-existing contracts and probably future contracts as well cannot be interfered with or impeded by the action of the governing bodies. It follows that the ECB’s policy is unlikely to work if it is challenged by a player (financed, in all likelihood by the Indian television company behind ICL.) Without a legally enforceable strategy, there is the risk of a messy commercial battle developing with the spoils going to whoever has the deepest pockets.

There are other options available to the governing bodies apart from attacking the players but they are not attractive either. The ECB could cut central distributions to counties who take on ‘disloyal’ players. However, as these distributions are necessary to keep the counties afloat and as the counties are in effect the ECB, this would be a PR and organisational disaster.

Less heavy-handed approaches could be tried – such as trying to put all decent players under 12 month contracts. This idea has already been floated by the ECB. This kind of approach has been tried before. When Graham Henry was the coach of the Welsh rugby team, he was concerned that a number of senior Welsh players might leave Welsh clubs to earn even more money in England and France and forgo the opportunity to play for Wales as their employers would be less interested in the Welsh national cause and therefore not release them so frequently as Welsh clubs. Graham Henry thought this would weaken the Welsh national team. With the governing bodies agreement therefore he instituted a system of incentives to reward players incrementally on the basis of caps gained. The scheme was successful in its objective in that the players generally did not cross the Severn bridge, but it nearly bankrupted the Welsh rugby union even though it organised more and more international matches.

In cricket, putting the counties in funds to put all players of a decent standard on 12 month contracts would be immensely popular with the players – especially the journeymen. However, assuming that the Indian cricket board wouldn’t stump up, it is far from clear where the money would come from. More international matches involving England would be the prime candidate. The trouble with this response is that commercial values will eventually fall and an even greater pool of exhausted top flight players will be created who will be happy to work a few weeks for ICL or any similar body such as the Stamford organisation in the West Indies.

If the governing bodies are unable to stop upstart leagues by attacking the players, all sports could at least learn how the conditions for unofficial leagues can be avoided. It should not be forgotten that one of the reasons that ICL started was as a response to the Indian board’s failure to organise a decent domestic competition. The Indian regions, like the English counties, all survive on handouts. This in turn requires an ever-expanding international program which in its turn creates an increasing band of exhausted players who are potentially recruits for ICL or organisations like them. Of course if South Africa imposes a racial quota in its teams, even more players will find their way to ICL.

Central contracting also helps create the conditions which ICL are exploiting. Central contracts were supposed to be the solution to disputes about access to the players. However the constant unavailability of highly paid centrally contracted players diminishes the  commercial value of second tier; the international programme inevitably mushrooms and concentration on the international representative nature of the sport to the detriment of the second tier is potentially very dangerous indeed as the best players soon get exhausted and don’t want to tour. They are then dropped and become prime candidates for unofficial tournaments.

Already ICL’s action has resulted in players in Indian domestic cricket being paid more, which will raise BCCI’s costs. How will they pay for it without expanding their programmes? Could this lead to the relegation of international test cricket to sideshow status fitted around a number of entrepreneur financed 20/20 circuses? Such an outcome cannot be ruled out. All other sports should therefore take note and avoid crickets’ mistakes. The Kerry Packer episode showed just how difficult it is to stop unofficial tournaments if the players are willing to play in them. By its own actions however, the governing bodies have helped create ICL: the international ‘shop window’ should never take over the whole shop: if it does the whole edifice can come tumbling down.

If you would like to be kept up to date with legal issues arising as we head to 2012 email us at sportsgroup@davenportlyons.com.

© Davenport Lyons 2008. All rights reserved.
This document reflects the law and practice as at March 2008. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.