Pakistan eyes legal action over ICC rule change
The PCB and ICC could be on a collision course again in a high-stakes case that potentially involves Pakistan's suspension from cricket's governing body. The Pakistan board has sent a legal notice to the ICC raising questions - and threatening legal action - about a proposed amendment to the ICC's constitution, which would allow the governing body to suspend a member in case of government interference in the running of a national cricket board.
Ironically the amendment - which also requires that a member board's executive body include elected officials - is said by some accounts to have been proposed at an ICC executive board meeting in February by the PCB chairman Ijaz Butt himself. What is clear is that he didn't object to the matter at the time.
The PCB is one of the boards directly affected by the amendment. Its constitution states that the President of the country - invariably but not always a political figure - is the Patron of the board and the sole authority in hiring or firing the chairman. Nor are elections of any kind held. A number of members of the governing board - the executive body - are appointed by the chairman and all must be approved by the President. This, the PCB argues in its legal notice, could result in its suspension, even permanent expulsion, for the changes are tantamount to asking the board to throw the Patron out of the constitution.
It's not the PCB alone that could be affected by the amendment. Sri Lanka Cricket (SLC) is an interim body whose major decisions go through the ministry, which also has the power to disband the board entirely. In Bangladesh, interference isn't as clear and distinct, though all board presidents are government-appointed. Thus any given BCB administration reflects the prevailing political winds of the day. The current president Mustafa Kamal, for example, is a sitting member of parliament. The BCCI would also come on the radar. Though its officials are elected, there is a clear and strong presence of senior Indian politicians at its highest levels.
The proposed changes have been on the ICC's agenda since the February meeting. At its subsequent board meeting in Mumbai, immediately after the World Cup final, the ICC board decided the changes would be officially proposed at the annual conference in July in Hong Kong, and be made applicable by July 2012.
The press release of that meeting stated the changes will be "designed to prevent undue interference by governments in the administration of cricket in Member countries, including but not limited to interference in operational matters, the selection and management of teams, the appointment of coaches or support personnel or the activities of a Member."
Despite the quite vast implications for governance of the game around the world from such a proposal, the release drew little comment. But in a series of articles for the Pakistan daily Daily Times at the start of May, eminent columnist Zakir Hussain Syed - also a former administrator - first revealed the PCB's reaction and contents of the legal notice, sent after the April 4 meeting, and confirmed by ESPNcricinfo to be accurate.
The legal notice was prepared by Mark Gay, a sports law specialist with DLA Piper who has worked with the PCB on several matters in the past, and refers to the legal framework of the country where the ICC is registered: the British Virgin Islands (B VI).
"The insertion of these provisions at this time, into the ICC constitution, in the circumstances, in which the PCB operates," the notice reads, "would constitute unfair prejudice for the purpose of section 184(1) of the B VI of the Business Companies Act 2004 (the B VI Act). As such unless the ICC agree to drop its proposal to pass such amendments to the Articles of Associations at its Annual General Meeting in July, our client will have no alternative but to commence legal proceedings against it to restrain this conduct, which we consider unfairly prejudicial to our client in its capacity as shareholder of the ICC."
The relevant law refers to members of a company being able to apply to the court for an order if they consider certain actions of the company have been, or are likely to be, discriminatory or prejudicial. The PCB argues the amendment is prejudicial because it affects only some members, "i.e. those member boards that are currently elected will not be affected," the notice says. Also, the PCB says it has "nothing whatsoever to do with the objects of the company, which are promotion of…cricket. It is a nakedly political measure."
In the April 4 meeting, PCB officials also pointed out that upon giving membership to Pakistan, the ICC was aware of the nature of the board and the relationship with the government of the day. A far more complex and awkward line of argument was also raised when officials asked how 'government interference' was to be defined. Would it include, an official asked as an example, a government deciding whether or not a team tours a country, as has happened recently with Zimbabwe and Pakistan? It has also been pointed out that holding even domestic tournaments in Pakistan often requires assistance from the provincial or federal government to provide security. The ICC says that there will be strict definitions of interference, to do with appointments in the board and its administration only.
The situation is further complicated by Butt's role in placing the issue on the agenda. It is believed that the topic was not officially on the agenda in February and was only included at the last minute, the night before the meeting when notes were passed into the hotel rooms of board members.
The matter has been informally on the cards for nearly a year as the ICC is keen to bring cricket in line with other prominent sports bodies such as FIFA and the IOC, though it was first broached officially only in that February meeting. The next day, as is protocol, a board director had to volunteer to put the amendment on the table and it was alleged later that Butt proposed it, obviously raising no objection at the time.
However, in between that and the next meeting, Pakistan belatedly realised the implications of the amendments and lobbied Sri Lanka and Bangladesh to rustle up support. They even sent them a copy of the legal notice and were, according to observers familiar with the developments, assured of support. Yet at the April 4 meeting, both boards withdrew support and voted for the amendments, leaving the PCB as the sole objector from among the Full Members.
It was at the April meeting that other board members are said to have told PCB representatives that they were objecting to a proposal officially put forth by their own (PCB) chairman. Pakistan have asked ICC officials to check the minutes of the meeting to see if this is indeed the case, but have not yet been given a response. Pakistan had taken along their legal advisor Taffazul Rizvi to the meeting to explain to the board the difficulties involved in making the proposed changes in Pakistan. He was not allowed to speak, however, by the ICC board.
Since then, there has been what one involved official said were "fruitful discussions" between the PCB and ICC on the matter. The ICC is said to be aware of the difficulties involved in the PCB asking the President to end his own involvement in cricket, and there have been discussions about extending the window of time during which they expect the changes, as the ICC understands it to be a long-term process. The ICC is said even to be willing to come to Pakistan to discuss the matter with the relevant authorities. Contrary to the ICC's optimism that it won't come to it, ESPNcricinfo understands that the PCB's reluctance will compel it still to pursue legal action if needed, even if that will be what the official said would be "contrary to the spirit of discussions."
The developments are likely to raise questions once again not only about how equipped Butt is to handle such matters at board meetings, but also the growing isolation of Pakistan. The board believes they are being victimised, alluding to as much in the legal notice, believing the amendments to be "provoked by a desire to damage the PCB or out of a desire for revenge."
This is the fall-out, the PCB says, from John Howard's non-appointment in June 2010. At the time Pakistan was one of the members supporting Howard's nomination but eventually they reversed. "We are instructed that the Australian Cricket Board put forward as their nominee of the ICC ... John Howard. It is the view of many in Pakistan that he has promoted racial policies," the legal notice says. "As such, the PCB among others, expressed its concern about his status as presidential candidate. When his candidature was withdrawn, in the view of PCB, this measure was born. If this is true, and full disclosure should reveal this, it is the product not of a desire to advance the objects of ICC, or to promote cricket, but out of the desire to disadvantage the PCB."
Over the course of this administration, since October 2008, the PCB has steadily lost allies in the ICC. Relations with the BCCI remain enmeshed in political developments. The rest of the Asian bloc is not the guarantee of support it once was, as the withdrawal of support from Sri Lanka and Bangladesh on this issue also made clear. The ECB, at best, remains cool after the fracas last summer when Butt clumsily accused the England team of match-fixing, only to apologise subsequently. Cricket Australia were not happy after the Howard rebuff and now, after the thinly veiled accusations of the legal notice, their attitude is not likely to soften.
Osman Samiuddin is Pakistan editor of ESPNcricinfo