On January 15, 2011, this Blog had carried a post which sought to predict some of the challenges that the Nimbus-IHF-backed World Series Hockey league would be confronted with. I had mentioned the following “Unless this issue is first resolved conclusively, the WSH could well be a non-starter, or can run into rough weather post commencement a la the Indian Cricket League (ICL). For potential investors, who are looking to buy a WSH franchise, the regulatory uncertainty would be the single biggest risk factor that they will need to contend with. This regulatory uncertainty can affect the participation of not just marquee Indian players, but also of players of other countries. Since the FIH has refused to recognize the IHF, it is very likely that the FIH will advise member countries to prevent their players from participating in a tournament that is not officially sanctioned by it. If the availability of marquee Indian and foreign players is impacted by such advise by the FIH, it could rob WSH of the much needed quality, glamour and eyeballs, thereby making it a significantly less feasible commercial proposition.“
Barely two weeks later, the FIH has acted more or less on the lines that this Blog had anticipated. The Times of India reports that FIH has written a letter to all the national associations (NAs) affiliated to it, stating that it does not recognize the WSH and “players and NAs will be rendered ineligible to participate in the Olympic qualifying tournaments and the Games if they become part of WSH.” Furthermore, the Times of India report cites the letter as stating that “FIH has received reports from some national associations that some of their players have been approached by agencies supposing to represent franchises that will participate in the new league. FIH states that it does not recognize the WSH. FIH notes that matches in the WSH may conflict with FIH major events, which may compromise an athlete’s participation in their national team program.” “No player and no NSF should accept any involvement in the WSH without first consulting the CEO of FIH, Kelly Fairweather. Any player and any NA that participates in the WSH may render that player and NA ineligible to participate in any FIH tournament, including Olympic qualifying tournaments and the Olympic games,” the letter said.
Predictably, the IHF has responded to the above statement of FIH with a statement from its Secretary General Ashok Mathur stating that the IHF was consulting its lawyers on the future course of action.
These developments seem to have triggered off the age-old debate on the applicability of the restraint of trade doctrine to the sports industry. The landmark decision in this sphere still remains that of Justice Slade’s in the case of Greig v. Insole, wherein Justice Slade held that the the ICC and TCCB (as the English Cricket Board was known then) resolutions banning English cricketer, Tony Greig and his co-plaintiffs from test cricket were void and ultra vires, and constituted an unreasonable restraint of trade.
The brief facts of Greig v. Insole were as follows: In May 1977, World Series Cricket, a company promoted by Australian media magnate, Kerry Packer announced that it had signed up 34 of the world’s foremost cricketers to play in a series of ‘test matches’ in Australia. In July 1977, ICC altered its rules so that players taking part or making themselves available to play in a match previously disapproved by the ICC, after October 01, 1977 would be disqualified from taking part in test cricket. At the same time, ICC issued a resolution specifically disapproving of any match organized by WSC. ICC argued that it was acting reasonably in aiming to prevent players from taking part in a competition which could threaten the existence of official “Test Cricket”.
Justice Slade recognized that WSC posed a short term threat to ICC’s interests, but this threat was held not be not significant, as the profile of cricket could be raised by the ICC. As regards the long term threat, Justice Slade held that it could be countered by the imposition of a prospective ban on players playing in unsanctioned games. On the other hand, Justice Slade held that a retrospective ban, such as the ban on Greig and his co-plaintiffs constituted an unjust and unreasonable restraint of trade, as it would deprive a professional cricketer of an opportunity to earn his livelihood.
The facts scenario in WSH’s case appear to be remarkably similar to those in WSC’s case. According to the Times of India, 70 Indian players have signed contracts to participate in the WSH. On a review of the FIH website, I do not find any rules to have been framed which deal with classification of what is “official” and what is “unofficial” hockey, akin to the rules framed by the ICC in the aftermath of the ICL experience. Therefore, the decision of FIH to sanction the WSH as being “unauthorized” seems to be a retrospective sanction.
Several interesting questions arise in this scenario. Can FIH and HI advance sufficient justifications for banning players from participating in the WSH? Will the Players (supported by IHF or Nimbus) take on the might of FIH in a court of law? If confronted with a challenge against the decision of the FIH (and presumably Hockey India would also implement the directive of FIH), will Indian courts provide a conclusive answer on whether the aforementioned letter from FIH, is in effect a “retrospective ban”, and constitutes an “unreasonable restraint on trade”?
While a lot of noise was made in the media around the bans surrounding ICL players, the bans were ultimately never considered by a court of law in India. It would be interesting to keep a tab on how this dispute pans out in the days ahead.
About the Author:
Amrut Joshi is the Founder of Gamechanger Sports Ventures (www.gamechangerindia.com). He can be contacted at amrut@gamechangerindia.com.
Posted by Amrut Joshi 
