The Competition Appellate Tribunal has set aside the Competition Commission of India appeal against the Board of Control for Cricket in India alleging misuse of power, saying that the Commission had relied upon “legally unsustainable” information that was downloaded from the internet for use against the Board.
Earlier the Competition Commission of India had imposed a penalty on the BCCI amounting to Rs 52.24 crores after the commission found it guilty of anti-competition malpractices during the organization of the Indian Premier League.
Accusing the BCCI of abusing its dominant position, the commission had ordered it to “cease and desist” from any activity that was detrimental to the market access of potential competitors.
This order came because of a complaint filed by an individual against the BCCI. Apart from the abuse of its dominant position, the BCCI was also accused of irregularities in the grant of franchise rights for team ownership, media rights for the coverage of IPL and sponsorship rights in the complaint. This was referred to the director general of the Competition Commission of India, which investigates irregularities on behalf of the commission.
According to media reports, in its order, the commission stated that “the abuse by BCCI was of a grave nature and the quantum of penalty that needs to be levied should be commensurate with the gravity of the violation.”
On its behalf, the BCCI had contended that it was a “not for profit” society for the promotion of cricket in India and its activities did not fall under the purview of the Competition Act. It also challenged the commission’s order before the Competition Appellate Tribunal.
The Tribunal rejected the commission’s findings, stating that “the finding recorded by the Commission on the issue of abuse of dominance is legally unsustainable and is liable to be set-aside because the information downloaded from the net and similar other material do not have any evidentiary value and, in any case, the same could not have been relied upon by the Commission without giving an effective opportunity to the appellant (BCCI) to controvert the same.”
With regards to media agreements, the Tribunal was of the opinion that argument given by the commission with regard to the media agreement was “also vitiated due to breach of principles of natural justice because the same was neither referred in the order passed by it nor the DG recorded any finding qua its validity or otherwise and on this count the appellant did not get an opportunity to defend the said clause.”
In its detailed 46-page and strongly worded order, the chairman of the Tribunal, GS Singhvi, said that “the Secretary of the Commission has virtually admitted that the Commission relied on the so called information available in public domain without disclosing the same to the appellant.”
“In my view the Commission’s failure to disclose the information/material proposed to be used by it for arriving at a finding on the issue of abuse of dominance and give an opportunity to the appellant to explain/controvert the same has not only resulted in violation of the principles of natural justice but also occasioned failure of justice.”
“Secondly the so called information available in the public domain could not have been used by the Commission because no one had appeared in the witness box to prove the same.”
“The information downloaded by the Commission from the internet and other similar sources can, at best be compared with newspaper report and it has been consistently held by the Supreme Court that such reports have no evidentiary value without further proof.”
The Competition Commission of India has now been directed by the Competition Appellate Tribunal to look into the case again “for fresh disposal”.