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Tuesday, Mar 22, 2005

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CRICKET TELECAST: Court lashes out at Dalmiya

By A. Subramani

DALMIYA'S DEFENCE: The senior advocate, Siddartha Shankar Ray, (second from left), comes out after appearing for the former president of the Board of Control for Cricket in India, Jagmohan Dalmiya, in the Madras High Court on Monday. — Photo: S. Thanthoni

CHENNAI, MARCH 21. The Madras High Court today declared as "unjust and illegal" the cancellation of the tender process for the award of cricket telecast rights by the Board of Control for Cricket in India, but said it could not order any positive relief to the "victim," Zee Telefilms Limited (ZTL).

Coming down heavily on the former BCCI president, Jagmohan Dalmiya, for the telecast-related imbroglio, the 140-page order delivered by Justice K.P. Sivasubramaniam said: "The conduct of the president of such a big institution should be above board, and he cannot act in a clandestine or unethical manner. The manner in which Mr. Dalmiya had operated does not inspire confidence or reflect sufficient transparency or ethics."

Expressing his inability to grant any relief to ZTL, Mr. Justice Sivasubramaniam said: "The ZTL is a victim of unfair action of the Board, and it is a matter of regret that no positive relief can be provided," in view of the fact that the BCCI had not issued any letter of intent in favour of the ZTL and the court could not order issue of contract on its own wisdom. He said the cricket series involving Australia and South Africa were already over and added that the one with Pakistan was nearing completion. In this background, there could be no effective enforcement of the September 5 contract in its original shape.

Fresh tender process

Mr. Justice Sivasubramaniam said ZTL was entitled to claim damages from the BCCI by initiating a civil suit against it. He held that a fresh tender process be started for all cricket series scheduled after the ongoing one between India and Pakistan. Both ZTL and ESPN-Star Sports are eligible to participate in the fresh tender process.

Disposing of ZTL's writ petition seeking to quash the Board decision to cancel the tender process and to direct it to enforce its September 5 resolution to award the exclusive telecast rights of all matches to be played in India between 2004 and 2008 to ZTL, Mr. Justice Sivasubramaniam said he was unable to sustain any of the objections relating to the maintainability or the petition and the alleged suppression of certain material facts.

Baffling questions

He then held that there was some substance in the ZTL contention that Mr. Dalmiya was adversely disposed towards it and that the entire process was vitiated by unfairness and malice. "The entire episode of [the international auditing firm] Price Waterhouse Cooper gives rise to some baffling questions lending credence to the ZTL version," the Judge said.

As regards Mr. Dalmiya's defence that it was due to his efforts that ZTL revised its bid figures from $260 million to $308 million, Mr. Justice Sivasubramaniam said: "It is no more than a desperate excuse invented to buttress the glaring unfair attitude adopted against the Zee by Mr. Dalmiya. If the Marketing Committee members had blindly sailed with him, it would have been a bad example of allowing the second highest bidder to walk over the highest bidder in a clandestine manner."

The Board demand that ZTL pay $20 million upfront within 48 hours also came under fire from the Bench.

The Judge said: "This condition was without jurisdiction and is nothing but a sadistic stipulation with the fond hope that the ZTL will not be able to comply with it."

Holding that there was absolutely no need to annul the tender process after it had reached a final stage, Mr. Justice Sivasubramaniam said "the manner in which Mr. Dalmiya presented issues before the Working Committee is a sad example of how a highly placed personality, on the strength of sheer trust reposed on him, deliberately misled a group of equally highly placed and well informed persons...thereby successfully prejudiced the committee against the ZTL and wrested from it a blank cheque to do whatever he liked."

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