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Peter Della Penna
April 14, 2012
The USA Cricket Association's general elections will be held today as scheduled after the association scored a win on Friday in its legal battle with USACA presidential candidate Ram Varadarajan and the California Cricket Academy (CCA). A request for a preliminary injunction against the elections sought by Varadarajan and CCA, the two plaintiffs, was dismissed by California District Court Judge Lucy Koh, who cited procedural faults in the case.
The preliminary injunction would have prevented USACA from holding general elections unless 32 of its 47 member leagues had their voting rights reinstated. The USACA board of directors had barred them in February from participating in regional and national elections. Instead, elections will now proceed today at an annual general meeting in Fort Lauderdale, Florida.
However, a declaration made by the judge that could count against USACA in any further potential legal action was that the right to vote at elections should not be decided by the USACA board but by an independently appointed auditor, a licensed Certified Public Accountant (CPA) according to the USACA constitution. USACA's lawyers contended that the auditor's role should be "ministerial" and limited to just tabulating votes, an assertion which the judge rejected. The judge stated that the leagues have yet to exhaust this remedial action under the USACA constitution.
The USACA welcomed the verdict. "USACA is very gratified that the federal court denied the plaintiffs' efforts to prevent its election from going forward tomorrow," Leslie Werlin, attorney from McGuireWoods LLP representing USACA, said in a statement. "The board and the members of USACA have worked very hard in the past year to abide by the strict requirements of the organization's constitution and be eligible to vote. This decision validates those efforts and helps usher in a new era for cricket in the US."
"While we disagree with the court's procedural ruling, the court did not condone or vindicate USACA's decision to disenfranchise two-thirds of its members," David Marroso, attorney at O'Melveny & Myers LLP representing Varadarajan and CCA, said in a statement. "We will continue to pursue justice."
In the ruling, the judge cited key procedural faults in the plaintiffs' case. The judge sided with USACA's contention that Varadarajan was not an injured party in the disenfranchisement of the leagues as he is not a member of USACA. According to the USACA constitution, membership is limited to leagues.
USACA's lawyers argued that CCA was seeking judgment on behalf of 32 disenfranchised leagues, 31 of which were not a party to the suit. The judge agreed the CCA could only argue to defend itself and not on behalf of 31 other leagues which were deemed to be third parties to the case.
The judge also said that Dr. Asif Ahmad, president of the Greater Los Angeles Cricket Association, had provided a declaration to the court in support of USACA's disenfranchisement of his own league as well as 31 others. Ahmad is also on the board of Cricket Holdings America, the joint entity between USACA and New Zealand Cricket. If the elections were stalled, it could affect USACA's business relationship with NZC.
The judge also criticised the fact that CCA was one of only five leagues to file an appeal with USACA against their disenfranchisement. Crucially, the judge also stated that despite claims that the USACA board violated its own constitution by overstaying its tenure by more than a year and failing to hold elections by March 29, 2011 or by November 30, 2011, an appeal was not filed within 14 days of each alleged grievance. The only appeals that were filed within 14 days of any grievance were in relation to the final compliance audit report issued by Robert Chance in February and only five leagues did so.
Court documents filed on Friday include emails from Minnesota Cricket Association president Masaood Yunus and Northwest Cricket League president Faizan Janjua blasting the USACA appeals process. Both men were part of the USACA's five-member appeals committee, but Janjua called the hearing of the appeals a "sham."
"Three of this five-member committee - Milton Taylor, Milford Lewis and Sheldon Mollineau - are close cronies of Mr. [Gladstone] Dainty [the USACA president]," Janjua said in one of the emails. "Mr. Dainty knew that he had his 'buddies' in the committee and no matter what he would get his desired decisions."
The judge's statement indicates that Varadarajan and CCA might still be able to pursue further legal action. USACA is registered as a non-profit organization in New York and according to New York State non-profit law, elections cannot be challenged prior to taking place, another reason the judge sided with USACA in dismissing the request for a preliminary injunction. However, New York State law allows leagues to bring about a suit against USACA after the election takes place if they feel aggrieved by disenfranchisement.
Something that also stood out in court papers filed on Friday is the revelation that Avinash Varma, president of the Washington Metropolitan Cricket Board, claimed that he has not received his league's ballot to vote in the election. WMCB is one of 15 leagues the USACA board determined eligible to vote. However, Varma claimed that Keith Gill signed a notary public falsely claiming to be the WMCB president in order to receive the league's ballot. Gill was recently elected to serve on the USACA board as the Atlantic Region representative and is an ally of Dainty.
"Please realize that no matter what procedural chicanery USACA engages in to deny the WMCB members their rightful voice, the fact remains that Mr. Keith Gill does NOT represent WMCB or its members in ANY SHAPE, WAY OR FORM," Varma said in an email written Thursday, April 12, to USACA general manager Manaf Mohamed. "Please direct the audit firm of Keefe, McCullough LLC [sic LLP] and Mr. Tim Connolly to act accordingly and send ballots to me. In absence of that action, the WMCB vote at USACA elections should be considered invalid."
While USACA has not officially announced any overseer for the elections, sources have indicated that Connolly is the independent auditor appointed by the association. If that is indeed the case, it would appear to be another violation of the USACA constitution. According to records maintained by the Florida Department of Business & Professional Regulation, Connolly has yet to take his CPA exam and is not a fully-licensed CPA.
Dainty is widely expected to win re-election. His challengers for president are Varadarajan, Mahammad Qureshi and Kenwyn Williams. Other board incumbents including Michael Gale, Rafey Syed and John Thickett are also expected to retain their positions while Williams is expected to defeat John Aaron in the contest for executive secretary. Aaron was controversially suspended by Dainty in September. His suspension was upheld by the USACA board in October before he resigned his post at the end of November.
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