ICC Trying to Set Dangerous Precedent on IPR

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The controversy between the Cricket players in India and the ICC, the world Cricket administration  body on "Event Sponsoring" and "Ambush Marketing" has raised some very fundamental IPR issues. Probably there will be reverberations in the Cyber World also.

What is the Issue?

The issue centers around the individual rights of the players to participate in any advertisement or promotional activities of companies who are competitors to the "Official Sponsors" of an event.

Many of the Cricketers have already entered into personal contracts with Marketing Agencies for endorsements for a period of an year or more. Now the ICC (International Cricket Committee) has entered into a contract with a sponsor for a tournament that is taking place in September 2002, in which it has agreed to its sponsor that "No Player participating in the tournament would endorse rival  business 30 days before the start of the tournament and upto 30 days after its closure.

As a result any player who is selected to play for the tournament by his countries sporting authority has to renege on his earlier contracts or forego selection.

In another funny move, ICC has entered into a contract with the national sports bodies (such as BCCI -Board of Cricket Control in India ) stating that the "Board shall send the best team for the tournament".

As a result, if players who are generally expected to make the top team of the country are under sponsorship contracts with the rivals of the tournament sponsors and they do not renege the contract, they have to be dropped from the team and in doing so, the BCCI can be accused of "not sending the best team".

The result is that either the players have to default on their sponsorship contracts or the BCCI has to default on its commitment on sending the best team.

It is not clear how such a conflicting contract was entered into between the ICC and the BCCI. The president of the BCCI has stated that "ICC will murder BCCI" if the best team is not sent and is therefore pressurising the players that they agree to the terms imposed by ICC.

This has raised several issues implications of which go beyond the field of sports and marketing into law and fundamental rights.

Is BCCI liable if the "Best Players" are not selected for the Tournament?

 In any sporting event, particularly a team event such as Cricket, there is no authority which can state "What is the Best Team". Usually the selection made by the selection committee is always contested by the sporting public that a few players are there for reasons other than their ability. At no point of time therefore the team selected can be considered as "The Best". It is only a question of degree of how many deserving persons were left out in a team. If the so called top players of the country are not available for selection either due to injury or due to them being not eligible by virtue of being in contract with some Company, then the "Best Team" would be one which contains only the remaining members. Hence there is no ground for BCCI to be held liable for selecting a "B" team since who ever is selected would be out of the eligible members.

BCCI therefore is spreading a canard that it may suffer because of the withdrawal of some of the players from the tournament.

What is  "Ambush Marketing"?

"Ambush Marketing" is an exotic word coined by the marketing persons to prevent sale of competitor's products in a market ever which they have a better control. For example, Cadbury's may put a condition to a super market that if it wants to stock its Cadbury products, they should agree not to stock any other product. This has been tried in India by not only Cadbury but also the Blade manufacturers in the past. The practice has not however failed to get public support and has been considered both anti consumer and unfair.

Is it "Marketing"? or "Forcing the Players to Cheat?"

What ICC  plans to do is worse by several degrees compared to the above cases observed in Consumer product retailing. ICC's Contract with its sponsors means that if Sachin Tendulkar is having a contract with TVS for promotion of a Car any ads using Sachin should not be carried roughly for around 3 months around the tournament time. This amounts to "Blocking an  Existing Contract" and the advertiser who has contracted with Sachin is adversely affected if the advertisement has to be removed during a peak selling season.

In fact once an endorsement contract is signed, it would be unethical even for Sachin to prevent its use by the legitimate owner of the ad rights.

It is also possible that Sachin's contract may or may not provide for such withdrawal and the advertiser may refuse to abide by Sachin's request. In such a case, Sachin may be selected to play and the offending ad may still appear in the media making Sachin a defaulter to ICC/BCCI.

Mr Kishan Rungta, the former BCCI president in a recent TV programme suggested that there should be a "Force Majeur" Clause which should enable the players to renege on the contracts. However, "Force Majeur" applies to a condition which is beyond the control of the contracting parties. However, in this case since Sachin is well within his powers to refuse to participate in the tournament, "Force Majeur" protection may not be available to him.

Additionally, ICC contract also appears to block the players from entering into any fresh contract of similar nature. This leads to a peculiar situation where a "Right to Sponsor a Product" is being mortgaged. As an example, Rahul Dravid who today does not have a contract with Jet Airways  is prevented from entering into any contract with Jet airways by virtue of the ICC contract. In a way ICC is in such a case exercising a right on a property not existing on the day of its contract with Dravid.

ICC and BCCI seem to think that players are their property and they can enter into any contract involving the players without consulting them and even if  it infringes on their existing contracts and forces them to commit what could be termed as frauds for which the player can be charged under Section 420 of IPC.

Why All Cricketers are Not into Advertisements?

It is also a myth that a marketer recruits a Cricketer only because of his playing cricket for the country and not otherwise. How is it then that all the players do not get equal opportunity to participate in Ads?. The marketer choses a celebrity for endorsement not only because he is the most succesful player of the moment, but also for certain character that he represents, such as success, grit, determination, team spirit, honesty etc.

Nothing prevents a Batsman who collects a "King Pair" from endorsing a "Pair of Spectacles" or a "Butter fingered Fielder" endorsing "Amul butter".

It is also possible that a Cricketer may acutally be a good actor and he may be recruited for that reason. Gavaskar and Rahul Dravid belong to that category and can be models in their own right. It is therefore in-correct to say that a Cricketer is endorsing a product only because he is a cricketer. 

It is therefore wrong for any cricketing body to claim priority rights over the endorsement capabilities of the cricketers.

Further, BCCI and ICC can only give chances to players to play for the country in the first instance and back them for some time. But it is the innate ability of the players to play the game better than others that makes them "Celebrities" and being sought after by marketers. The demand for being models therefore comes from being "Successful" because of their own abilities and not because ICC or BCCI is conducting some tournament and selecting the player. Those so called "Patriots" who argue that " "Players exist because of Cricket" are ignoring this contribution of the players in developing into a celebrity.  It is therefore wrong to say that any Cricketer who refuses to play for the country committing in the process a breach of faith with his existing marketer is an "Un patriotic person".

Who Gives Monopoly Rights to BCCI / ICC?

Despite the unfairness of the demand of ICC and theattempt to infringe personal rights of players to pursue their own marketing career along with their cricketing career, the system today is heavily biased in favour of the Cricketing bodies. This is so because they are monopoly bodies who can select a player even if he is undeserving (for a short time at least)  and can reject a player even if he is deserving.

It is this "Power" that makes these bodies behave irrationally. Even though there are "Contracts"  signed by players, it must be recognized that these contracts are between tow unequal parties and should be held void ab-initio. There is "Undue Influence" and " Perceived Coercison" that makes players to sign on the dotted line and such contracts have no validity in law.

But the BCCI and ICC will continue to behave in a dictatorial manner as long as they are conferred with a monopoly status. Today if Cricket is a popular sport and companies are queing up behind the players and the cricketing bodies for sponsoring events, teams, and individual players, it is because the public are contributing to the popularity of the game. It is the public who visit the matches in the stadium and the public who watch the match broadcasts. The real owner of the "Endorsement Capability" of the players is therefore the public and not the cricketing bodies.  It is therefore necessary that the monopoly of the Cricketing bodies has to be broken and the public should have a say in the matter of Cricket administration.

If only the  BCCI is  elected not by the members of the select cricket clubs but by the Cricketing public, they would be more reasonable. Perhaps the current crisis will create a new awareness amongst the public leading to public participation in some manner in the cricket administration. This restructuring of the cricket administration should be a positive fall out of this crisis.

The Dangerous Precedent being set by ICC

Assuming that ICC is able to arm twist the players and get its way, then the sponsors in future would only go to ICC and BCCI and not the individual players.  The players can only give a conditional endorsement contract which may say that " The endorsements can be used only when there is no conflict with the sponsors of ICC/BCCI " This may grossly undermine the value of the contracts. The players in future will therefore lose heavily on their marketing income.

The claim of ICC that  its right to use a player in an advertisement is not restricted to the "Event" such as "Telecast of the Match" or "Instadia publicity etc, but to any other advertisement that may be carried within the relevant period is likely to set very dangerous precedents in the area of Intellectual Property Rights.

The trend being set by ICC can even percolate into the area of IPR on Cyber space. To highlight the possible trend that we may be moving into, ICANN and the various registrars may perhaps say that the "Websites" are their creation and hence ICANN should have the right to market the ad space on web sites.

Similarly, each ISP can say that their clients access Internet because of them and hence they have the right to block rival sites. The road to Yahoo blocking by Indian ISP s is now becoming clear because it is nothing but "Ambush Marketing". If ICC can claim such rights why not ICANN or an ISP?

Naavi

August 27, 2002

August 31 2002:  ICC Ruling and Packer Case Ruling...TOI

 

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