If he seriously thought that he could get this money out of BCCI and that too on the basis of a LoI (which probably wasn't even printed on a BCCI letterhead) then I'm afraid Pak fans have been taken in for a ride and not for the first time though.
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Contact the PP Team
PCB vs BCCI MoU case: BCCI seeks 15 cr ($2m) legal fee from PCB [Post #375]
- Thread starter Abdullah719
- Start date
the_outsider
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Either Sethi was wrong. Or Mani was/is wrong. Both cannot be right because those two have said totally opposite things in regards to the case.
And given how the case panned out, I am persuased to believe that Mani was right.
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the_outsider
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People like Sethi and Savak must understand that money, especially of that magnitude isn't just handed over to you just like that. Just because one fine day, you decide that ok lets sue BCCI (an entity having such deep pockets so that it cam summon world's best legal minds) and get some cash out of them on grounds as flimsy as the ones cited in this suit.
For any business partnership to prosper you gotta have sound working relationship with the other entity. After this episode (and countless others in the past like IPL '09 blackmail, trying to move WC'11 out of India etc), I doubt BCCI will ever try to get into a working relationship with PCB in future, at least in a hurry.
the_outsider
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If PCB had not created this MoU mess and if a new Indian government is elected next year, then PCB had a real shot at resuming bilaterals.
Sethi totally screwed PCB and Pakistani fans by jumping the gun. Now they have made an enemy out of BCCI after this MoU case. I agree, after this even I don't see bilaterals resuming in the next 5 years at least.
Savak
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This talk of a sound working relationship is gibberish, the pcb had a sound working relationship with the BCCI before the MOU case which got them no where and only resulted in the BCCI only playing Pak in ICC events and in a home series hosted by India with all the revenue and profits going to the BCCI.
In some ways, i am actually glad if the BCCI tells the PCB to **** off for good. Will really force the PCB to look at alternative options desperately and the episode will remind them that nothing coming from the BCCI can ever be trusted again. These lessons like terrible humiliating experiences with out of your league girls can be very degrading and confidence losing in the immediate and short term but very beneficial in the long run
On Najam Sethi, I used to think he was very pro India at least in his journalism days. That was the impression I got from my interactions with my Pak mates as well. However that was incorrect by the current look of things.
Did he try to play to the galleries by filling this lawsuit against BCCI? Only he can answer that! Whatever his motives were, I agree BCCI may not be ready to have any truck with PCB after this fiasco, at least in near future. PCB seems to have burnt their bridges with BCCI in this saga which is always a bad thing to do in business.
Savak
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Lol but I thought the BCCI was only following dictats from the Indian govt. If the new Indian govt is in favor of good ties with Pakistan then why would the BCCI create hurdles?
the_outsider
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You think too much from your heart, my friend! And looks like there is no dearth of people like you in PCB as well!
the_outsider
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So far, yes BCCI was. But PCB did the mistake of targetting BCCI instead of GOI.
Because of the MoU incident, PCB has now ****** off BCCI by unnecessarily wasting their time and resources.
Obviously there will be repercussions to that now.
Savak
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Decisions in life must have an equal balance of heart, emotions, logic and facts
I know you (and lot of Pak fans) are quite peeved at this but trust me, filing lawsuits aagainst your business partners isn't a way to go especially when that entity is as powerful as BCCI is.
Did you see how SA played 3rd test (even if it was deemed unofficial) against India after Mike Denness episode in '01?
Did you see how CA handled the situation after monkeygate episode in '07-08 to salvage India tour?
Replace UCBSA and CA with PCB, you'll get the gist what we all are trying to state here.
Savak
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On another more serious note. I think this talk of BCCI pursuing a war path of looking to severely punish the PCB on every front is being overblown.
Apart from the legal fees of $4 million, which i am sure both boards are going to negotiate over along with the ICC, my gut feeling is that Ehsan Mani will hold a few meetings with the BCCI officials and the whole matter will be put behind, another lol MoU signed and promises will be made to play in bilateral series subject to govt approval ofcourse
Agree with that except that heart and emotions should have equal standing in taking a business decision. Being practical in my opinion, takes precedence over everything else in business and accept it that PCB were not practical in this episode.
Yeah, Ehsan Mani sounds much more diplomatic than his predecessor which is a good thing for us Ind-Pak cricket fans!
the_outsider
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If that can happen then it will be very good news.
But even you have to admit that this incident has only harmed PCB's relationship with BCCI. It will take time to undo the damage this incident has caused.
In the case of PCB I would replace logic and facts with a certain unmentionable anatomy
Think about it - vast majority of lay persons on PP most with no real legal background posted here on PP that PCB was not going to win immediately after their main piece of evidence was made public. Thats a damning indictment of how incompetent PCB is.
Savak
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On another more serious note, let's say hypothetically speaking if the BCCI decides to compromise and a gesture of goodwill states that it has decided not to claim reimbursement of its legal fees from the PCB. Would the Indian posters be peeved?
The PCB forgoed it's right to PCB'S 1996 WC revenues which the PCB was owed from the BCCI under Nasim Ashraf.
The PCB forgoed it's right to PCB'S 1996 WC revenues which the PCB was owed from the BCCI under Nasim Ashraf.
Savak
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In the case of PCB I would replace logic and facts with a certain unmentionable anatomy
Think about it - vast majority of lay persons on PP most with no real legal background posted here on PP that PCB was not going to win immediately after their main piece of evidence was made public. Thats a damning indictment of how incompetent PCB is.
I would actually raise question marks over the pcbs legal team and the international law firms they hired for this case. What were their honest legal opinions? Did they truly tell the truth to the pcb that they were not going to win or did they tell term based on their analysis that they were going to win? Was it that the law firms and lawyers only told the pcb what they wanted to hear?
Will be funny if the pcb tells the BCCI, don't countersue or seek reimbursement from us, go after our lawyers instead
BlackShadow
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Looking forward to the BCCI recovering legal costs. 
At least, I won't be.
My take is that this was all a sham to milk some easy money out of PCB ... thats the only logical explanation.
Bhai these things dont work like that in real life. The first thing the law firm would have done is to get legal protection for themselves from any losses before signing them on. otherwise every other law firm would be bankrupt
Savak
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Bhai these things dont work like that in real life. The first thing the law firm would have done is to get legal protection for themselves from any losses before signing them on. otherwise every other law firm would be bankrupt
Lawyers and Accountants get sued by their clients for mistakes, fraudulent misrepresentation etc
Please do that for PCB lawyers.
the_outsider
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Not at all. I've already grown extremely tired of this long-running MoU incident. I would be glad if this issue ends as early as possible.
Nikhil_cric
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I echo the same sentiments. Just want this over with now. Lol
Garuda
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I am not very sure that no one in PCB were aware about their very low chance of wining this case. Few millions on a legal case (with emotional backing from public) is a good opportunity for making money by some in the process.
I won't be surprised if money were made in the middle.
Garuda
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I won't and I won't be surprised if that happens actually.
But the question is what will PCB compromised against that compromise from BCCI ?
Mamoon
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It is convenient to dump all of this on Sethi's head, but we need to realise that this is an ideological issue and the PCB would have proceeded with this stupid case regardless of who the Chairman was. Shahryar Khan started this whole "honour the MOU" business and our saviour Mani spent years making nonsense comments against BCCI, before conveniently changing his tune after the inevitable verdict.
I agree that Sethi deserves some part of the blame because he is a very intelligent man with a lot of vision, but this is not entirely his fault. Anyway, this is a much needed reality check for PCB. They need to know their place in world cricket and who better than BCCI to put them where they belong?
I agree that Sethi deserves some part of the blame because he is a very intelligent man with a lot of vision, but this is not entirely his fault. Anyway, this is a much needed reality check for PCB. They need to know their place in world cricket and who better than BCCI to put them where they belong?
But BCCI is not their client - PCB is. If PCB want to sue them thats another court case and I can guarantee you that nothing will come out of it because these law firms are not that dumb to indulge in blatant cheating and lying.
Darkrai
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Ok. That's that. Now we can move on to more important things.
cricketjoshila
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[MENTION=2501]Savak[/MENTION]
Are you suggesting that PCB sue Clifford Chance?
Are you suggesting that PCB sue Clifford Chance?
cricket_cfa
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At the end of the day what have pcb achieved by going in favour of big 3 idea?
Exactly, Ulta Nuksan he howa hein onko
Savak
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Absolutely. For lying to them about their chances in the case
It will do more harm than any good. Think about it. It will show that PCB did not do proper due diligence and think thru it before hiring that Law firm.
He might have a point. Based on available documentation, even a rank amateur can tell that it was very far from a legally binding agreement.
In legal circles lot of it based on precedence. The question is
a) did the lawyers convince PCB that they had a case? if so, they have the burden to show that it is valid case using precedence. If they can't show precedence they are culpable IMO.
b) did PCB convince the lawyers that they had case and they can put one over BCCI using circumstances. this can't be ruled out as looked Manohar was hell bent on destroying BCCI with help of Indian supreme court.
What would clarify this is the communication between PCB and its lawyers. can those records be obtained using FOIA?
Would be one hell of a scoop for PP!
wouldnt that be protected by the Attorney-Client confidentiality clauses ?
Savak
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Shahryar Khan had commented in public even when he was PCB Chairman and then when he left the PCB that the PCB had a weak case. If the PCB was told by their lawyers that their case was weak and that they were going to lose, then they are entirely at fault.
If their lawyers misled them and fleeced them then the BCCI and PCB should sue the lawyers.
IANAL. In US, Attorney client privilege protects the clients communication with the attorney from being used against the client.
When it comes to a national organization like PCB, the disclosure rules could be very different about the actual contract and how they arrived at the contract. In particular if PCB was going to spend $1-1.5M of "public" money.
based on my research
1) Legal advice privilege may apply to the confidential communications (written and oral) between the lawyer and the client that come into existence for the purpose of giving or receiving legaladvice, in respect of the client’s legal rights and obligation. ‘Client’ is narrowly defined for thepurposes of the application of legal advice privilege. This means that communications betweena lawyer and the corporation’s employees are not covered by the privilege. Documentsproduced by employees who are not considered the ‘client’ will not be covered by the privilege
2) Privilege can be waived expressly or impliedly, so it is important that confidentiality is preserved and privileged information is only disclosed on the express basis that privilege is notwaived
Given this, a motivated organization can gather information from PCB, providing there is FOIA and PCB has integrity.
ICC will deduct 4 million from the ICC handout given to PCB
Rana
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oh bhai ICC jo marzi kare, these guys are not transferring a penny to your account
Clifford Chance will counter-sue Pakistan and bankrupt the whole country if It’s not already. It’s brains and net income is more than all Pakistanis combined! India and BCCI may forgive, Lawyers won’t! Why is Pakistani so trigger happy wanting to sue everyone, bent upon making lawyers rich!
I hope PCB pays 4mn dollar to BCCI event even before the latter files a suit and the matter is closed in a friendly manner. That’s the best way for PCB to save some shreds of self-respect and hope to leach millions of dollars from Indians fans in near future.
It’s funny that till the verdict you were hell bent upon BCCI paying 60-70 min to PCB and now are meekly begging BCCI to forgive and forget. If you want to sue BCCI, ICC, even your own lawyers (lol), why beg BCCI to not sue PCB.
I hope PCB pays 4mn dollar to BCCI event even before the latter files a suit and the matter is closed in a friendly manner. That’s the best way for PCB to save some shreds of self-respect and hope to leach millions of dollars from Indians fans in near future.
It’s funny that till the verdict you were hell bent upon BCCI paying 60-70 min to PCB and now are meekly begging BCCI to forgive and forget. If you want to sue BCCI, ICC, even your own lawyers (lol), why beg BCCI to not sue PCB.
Rana
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Ive heard it all now!
cricketjoshila
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Have you googled Clifford Chance?
Also did clifford chance say that PCB will definately win the case?
BreadPakoda
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Then Pakistan will counter-counter sue Clifford Chance. Lol. Is this some joke going on?
Cpt. Rishwat
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None better, as cricket being a fairly minor world sport is beholden to Indian cricket in general. As a result, if BCCI says the moon rises in the morning and the sun come up at night, the rest of the boards will basically step in line. I agree with you that the PCB has taken far too long to understand their place in the game as a result, but given their track record of blunders you can hardly expect much different.
Well I didn't said this
Some people chest thumping before verdict that if PCB won and BCCI refused to pay 60-70 million to PCB then ICC will deduct 70 million USD from the annual Handout BCCI receive from ICC and credit that to PCB account...So I use the same logic here....
You completely missed the point man.
The enforceability of "MoUs" - How the ICC panel decided Pakistan and India's bilateral tour dispute
On 20 November 2018, the Dispute Resolution Committee constituted by the International Cricket Council (ICC DRC) issued its Award1 in a protracted legal battle between two of international cricket’s most fierce rivals – Pakistan and India; litigated by their respective national boards, the Pakistan Cricket Board (PCB) and the Board of Control for Cricket in India (BCCI).
In essence, the dispute related to a claim for breach of contract and substantial damages brought by the PCB against the BCCI arising out of an alleged agreement between the BCCI and PCB to play seven bilateral series between them over the period 2014-2023. The alleged agreement arose further to certain resolutions tabled at the ICC Executive Board Meeting on 8 February 2014 relating to a new financial model and governance structure for the ICC (February Resolutions). This culminated in the parties signing a letter dated 9 April 2014 (April Letter), which forms the fulcrum on which the issue in the present dispute rests. A more detailed background to the dispute may be accessed through this LawInSport article2.
The issue was referred to a three-member panel comprising The Hon. Michael Beloff QC (Chairman), Dr. Annabelle Bennet AO SC and Mr. Jan Paulsson (hereinafter, the Panel). Much of the analysis in the Award was centred around the Panel’s assessment of whether the April Letter had the effect of a binding contract, and whether India (with BCCI the contracting party) had breached a legally binding contract to tour Pakistan (PCB being the counterparty) in respect of two proposed tours in 2014 and 2015, respectively.
This article examines:
the Panel’s approach in arriving at its decision;
the salient legal principles considered; and
how those principles were applied to the facts of the case in light of the evidence presented to the Panel.
APPROACH OF THE PANEL
In exercise of its powers under Article 9.10 of the Terms of Reference of the ICC Disputes Resolution Committee, the Panel determined the dispute to be governed in accordance with English law, being the governing law set out in the April Letter3.
In proceeding with its analysis, the Panel identified five core issues that arose out of the pleadings4 of which, (i) the “Legal Status and Breach Issue”; and (ii) the “FTP Issue”; and (iii) the “Government Approval Issue” were fundamental to the Panel’s eventual determination. As such, these issues will be focused on, for the purposes of this article.
The Panel’s analysis of the Legal Status and Breach Issue involved determining whether the April Letter constituted a legal binding agreement between the parties, and that if in the affirmative, whether the BCCI was in breach thereof.
Moreover, in light of the February Resolutions which sought to streamline the process by which future bilateral series between member states of the ICC were scheduled, the FTP Issue required the Panel to determine whether the April Letter, if contractual, was subject to a condition subsequent, namely that the parties execute a long form FTP Agreement. The FTP Agreement essentially refers to a mutually agreed and binding agreement to be executed between Full Members5 in relation to bilateral tours, subject to (1) force majeure events; (2) no material breach by the other party; and (3) an agreement being reached by the parties on any changes to the applicable ICC playing conditions made after the date of the FTP Agreement.6
The Government Approval Issue centred around whether the inability of the BCCI to obtain prior approval of the Indian Government to play against Pakistan would be a force majeure event and could be read in to the April Letter, were it accepted as a binding agreement. However, as will be seen below, the Government Approval Issue proved to be less significant in the Panel’s final determination.
The BCCI argues that the April Letter represented only the first step of a three-step process (and one which was not in itself legally binding).
The PCB, on the other hand, argues that the April Letter was sufficient to legally bind the parties. Thus, it argued that any subsequent FTP Agreement (i.e., the alleged third-step, as detailed below) was “a routine matter”, and no more than a mere "formality", as required by the February Resolutions7.
The three-step process as sought to be established by the February Resolutions necessarily involved:
Step 1: Members proposing periods when they might undertake a tour series against each other;
Step 2: Multilateral discussions between Members through an ICC-facilitated process to arrive at an agreed FTP Schedule for all Members for the period 2015-2023; and
Step 3: Members entering into bilateral FTP Agreements in accordance with the FTP Schedule agreed upon in Step 2 above, based on the agreements reached in Steps 1 and 28.
In the Award, the Panel expressed that the FTP Agreements (Step 3) could not be finalized and committed to by Members unless and until a Master FTP Schedule had been agreed to (Step 2)9, before which any Member could change its position in respect of dates agreed earlier discussions.
LEGAL PRINCIPLES APPLIED BY THE PANEL: HOW TO DETERMINE THE ENFORCEABILITY OF A LETTER
With the April Letter in place, the Panel focused its analysis on enforceability by recounting salient principles of English contract law, which, for the purposes of this article have been categorised as follows:
Objective interpretation: At the outset, the Panel determined that an objective view of the April Letter (i.e., the alleged contract in question) was paramount. Therefore, to be considered was “what a reasonable person with the background knowledge available to the parties would have understood it to mean” (emphasis added).10 Thus, objectivity, it was noted, was required not only to interpret the terms of the contract, but also the facts of the case.
To this end, the panel highlighted the “golden rule” of objective enquiry, as laid out in a previous case, BCCI v Ali11 which states that “the words of a contract should be interpreted in their grammatical and ordinary sense in context, except to the extent that some modification is necessary in order to avoid absurdity, inconsistency or repugnancy”. In other words, a contract must be read “as is”, unless of course, such reading would give rise to an unreasonable or incompatible view.
Interpreting ambiguous terms: The Panel invoked the principle of “contra proferentem” according to which, a document, if ambiguous, ought to be interpreted against the party which tenders it (in this case, the PCB). Additionally, according to English Common Law, a commercial contract, if ambiguous, is required to be construed based on “business common sense”. How the Panel applied this principle will be touched upon in the following section.
Conduct as an aid to interpretation: The Panel observes that on one hand, once a contract is signed, any subsequent (presumably contrarian) conduct of the parties cannot be used as an aid to interpret the contract. With that being said, if both parties perform their respective parts of the contract, it would be “difficult to submit that the contract is void for vagueness or uncertainty”.12
Contractual intention: Next in contention was the more subjective element of intent, or the English law principle of “intention to create legal relations”. It was noted that generally speaking, an agreement to negotiate is not enforceable. However, when it is unclear as to when negotiations between parties have concluded, the courts would “look at the entire course of negotiations to decide whether an apparently unqualified acceptance did in fact conclude the agreement”.13 This, of course, would be a factual assessment.
Additionally, the setting in which the parties enter into an agreement is important. For example, an agreement which is concluded in a “commercial setting”, which for all practical purposes satisfies the conditions of contract formation, gives rise to the presumption that the parties intended to create legal relations. Thus, the onus of proving that there was no intent would be on the party who asserts no legal effect of the document. This onus was described as “a heavy one”.
It follows that to establish enforceability, the following two considerations are key:
How important is the agreement to the parties? and
Did any party act in reliance on the agreement?
However, neither feature compels the establishment of intent, with the Panel at pains to stress the importance of a case by case, factual assessment.
APPLICATION TO FACTS AND KEY TAKEAWAYS
LEGAL STATUS AND BREACH ISSUE AND FTP ISSUE
Notwithstanding the principles enumerated above, the Panel noted that “the question of contractual intention is in the last resort a question of fact […]”14. Thus, the Panel’s next task was to make a factual assessment to determine whether the April Letter amounted to a binding contract at all.15
At the outset, the Panel conceded that the April Letter “bore all emblems of a contract”16. This was evidenced by (for example)17:
Use of words like “agreed”; that teams “will” play each other with the word "will" recurring throughout the text of the letter;
A “best efforts” obligation in respect of a tour in 2014, which was used to assert the unqualified, binding obligations in respect of later tours;
Reference to criteria for sale of media rights;
Parties having considered certain circumstances which would render the letter to have no effect, implying that otherwise it would be of effect;
Having no affinity towards being a mere "MOU" or letter of intent;
Previous drafts which had undergone significant changes; and
Having been signed by senior officials representing both camps.
However, the Panel stopped short of holding the April Letter as a legally binding document, laying heavy emphasis and relying on what it termed as "countervailing factors" it must take into account to determine whether the April Letter intended to create legal relations between the parties.18 These factors trail back to:
The Panel’s determination of the intent and effect of the February Resolutions. Thus, for Members to enter into legally binding FTP Agreements, it was necessary for Members to negotiate inter se their desired tour programmes and inform the ICC. This according to the Panel was a key objective of the February Resolutions.
Moreover, Appendix C of the February Resolutions (which was binding on both parties, and all Members) unambiguously envisaged that only a signed FTP Agreement would be legally binding upon the signatories. Thus, the April Letter, which was not in the form prescribed for an FTP Agreement could not be binding upon the parties.
The fact that the April Letter fit neatly as "step 1" of the three-step process for finalizing future bilateral tours between Member States. Thus, being a necessary precursor to the second and third steps, the April Letter could not itself be binding.
No FTP Agreement could be finalised and committed to by Members until and unless a Master FTP Schedule had been agreed. Thus, Members could "change their positions" on bilateral arrangements (for e.g., as documented in a letter such as the April Letter) prior to a Master FTP Schedule being formalized – being step 2 of the three-step process.
Relying upon evidence presented by a PCB board member to the Panel, the Award recalls that as on the date of the April Letter, the PCB’s own schedule accounted for no less than six clashes with the dates for which a bilateral series could have been scheduled with the BCCI. Thus, as on the date of the April Letter, it was unrealistic for the PCB to have assumed that each of the six clashes with other Member boards could be resolved to accommodate an India tour. Such predicament of the PCB adds further clout to the notion that the April Letter was merely an arrangement between the boards, and not in the nature of a legally binding contract.
Relying upon a liberal construction of contracts,19 the Panel observed that the April Letter did not form a legally, binding contract between the parties. However, as stipulated for in the April Letter, the execution of an FTP Agreement (being in the form prescribed in Appendix C of the February Resolutions, and containing a force majeure clause, among other elements) was deemed crucial to the formation of a legally binding contract and could not be passed off as a mere formalisation of an agreement already reached.
The Panel’s determination was further buttressed by a subsequent letter dated 26 June 2014 by the PCB to the BCCI containing a draft long-form FTP Agreement which included a force majeure provision stating that formal written rejection of government approval could justify non-compliance with an otherwise agreed tour.20 However, no FTP Agreement was signed between the PCB and BCCI, despite continuing dialogue between the Boards.
The Panel was also persuaded by the evidence of BCCI witnesses, and it considered inconceivable that the BCCI would have ever agreed to a contract without a force majeure clause referring to the absence of government approval, stating that if such clause was not among the terms of the letter the arrangement could not be the final one between the parties.
GOVERNMENT APPROVAL
Once it was determined by the Panel that the April Letter did not constitute a legal, binding agreement between the parties, the issue regarding government approval was rendered moot. However, in light of a recent dispute between the parties before the ICC Technical Committee in 2017 on India’s failure to play Pakistan in Round 6 of the ICC Women’s Championship of 2014-2016, the Panel noted that the evidence before it in the present case was far more extensive than in the previous instance.
Governed by Article 9.5 of the ICC DRC Terms of Reference, strict rules of evidence in judicial or other proceedings do not apply to proceedings before the Panel, and the Panel was entitled to consider any evidence submitted or provided and give such weight to it as it reasonably thinks fit.
Thus, as a quasi-judicial dispute resolution body, the Panel was equipped and aided by an array of substantive evidence in making its determination. As conceded in the Award, the Panel admitted to being ultimately persuaded by the evidence of BCCI witnesses Professor Shetty and Mr Khurshid, former Foreign Minister of India on the “oral tradition” of Government Approval being sought before any bilateral series between India and Pakistan.21
RULING
The Panel acknowledges that the given the fact sensitive nature of the dispute, the application of the relevant legal principles to the facts was fundamental to determining whether the April Letter amounted to a binding letter at all.22 Applying the legal principles set out above to the facts of the present case, the Panel concluded that if scrutinized through the lens of a microscope, the April Letter could be read as a contractually binding document between the parties. However, deploying a telescope to view things in a broader perspective, and in light of the circumstances out of which the letter arose (i.e., the February Resolutions), the April Letter could be viewed as no more than a declaration of intent creating a “moral obligation” but not a legal one.
By adopting a broad, telescopic view to the facts in the present case, the Panel’s determination qua the nature of the April Letter effectively dismissed the claims of the PCB relating to a breach by the BCCI. As the Panel had bifurcated issues of liability and quantum at the forefront of the proceedings, such determination by the Panel on liability effectively deemed PCB’s claims for damages illusory. Notably, the Panel’s detailed consideration to and analysis of the arguments submitted by each party to the dispute23 is telling of the fine margins along which this legal battle was contested. Indeed, with certain BCCI arguments rejected and deemed “difficult to sustain” the result could have gone either way. Eventually, by deploying a holistic approach and the “telescope-microscope” analogy, the Panel justified its application of English contract law to the facts of the case, ruling in favour of the BCCI.
CONCLUSION
While the Award presents an astute legal analysis of principles of English contract law and enforceability, noteworthy is the Panel’s observation that in reality the issue at hand is one that goes far beyond the enforceability of any letter of intent, MOU, or other document of similar form and substance, by whatever name called. Indeed, the Award “does no more than to establish legal rights and obligations in the case before it in light of the law, the rules governing the administration of the sport and the specific evidence adduced by parties”.24
Disputes between Members in relation to bilateral tour agreements are infrequent, but when arise, typically revolve around political and / or security reasons.25 Given the generally frosty political relations between the two nations, the Award provides significant and relevant insight to the application and interpretation of principles of English law to arrangements between ICC Members. Whilst the Award acknowledges that as a common practice, Members have been arranging (and successfully completing) bilateral tours without executing an FTP Agreement, this practice could soon change. The Award goes on to provide sound guidance as to the intent of the February Resolutions and establishes that a long-form FTP Agreement is critical to forming a legal, binding contract between Members.
If the conduct of the parties to the dispute could warrant a special mention from the Panel, it is hoped that the BCCI and PCB could garner this positive momentum back to the negotiating table and restore bilateral relations between “two proud cricketing nations”26 beyond participation at ICC Events.27
https://www.lawinsport.com/topics/a...d-pakistan-and-india-s-bilateral-tour-dispute
On 20 November 2018, the Dispute Resolution Committee constituted by the International Cricket Council (ICC DRC) issued its Award1 in a protracted legal battle between two of international cricket’s most fierce rivals – Pakistan and India; litigated by their respective national boards, the Pakistan Cricket Board (PCB) and the Board of Control for Cricket in India (BCCI).
In essence, the dispute related to a claim for breach of contract and substantial damages brought by the PCB against the BCCI arising out of an alleged agreement between the BCCI and PCB to play seven bilateral series between them over the period 2014-2023. The alleged agreement arose further to certain resolutions tabled at the ICC Executive Board Meeting on 8 February 2014 relating to a new financial model and governance structure for the ICC (February Resolutions). This culminated in the parties signing a letter dated 9 April 2014 (April Letter), which forms the fulcrum on which the issue in the present dispute rests. A more detailed background to the dispute may be accessed through this LawInSport article2.
The issue was referred to a three-member panel comprising The Hon. Michael Beloff QC (Chairman), Dr. Annabelle Bennet AO SC and Mr. Jan Paulsson (hereinafter, the Panel). Much of the analysis in the Award was centred around the Panel’s assessment of whether the April Letter had the effect of a binding contract, and whether India (with BCCI the contracting party) had breached a legally binding contract to tour Pakistan (PCB being the counterparty) in respect of two proposed tours in 2014 and 2015, respectively.
This article examines:
the Panel’s approach in arriving at its decision;
the salient legal principles considered; and
how those principles were applied to the facts of the case in light of the evidence presented to the Panel.
APPROACH OF THE PANEL
In exercise of its powers under Article 9.10 of the Terms of Reference of the ICC Disputes Resolution Committee, the Panel determined the dispute to be governed in accordance with English law, being the governing law set out in the April Letter3.
In proceeding with its analysis, the Panel identified five core issues that arose out of the pleadings4 of which, (i) the “Legal Status and Breach Issue”; and (ii) the “FTP Issue”; and (iii) the “Government Approval Issue” were fundamental to the Panel’s eventual determination. As such, these issues will be focused on, for the purposes of this article.
The Panel’s analysis of the Legal Status and Breach Issue involved determining whether the April Letter constituted a legal binding agreement between the parties, and that if in the affirmative, whether the BCCI was in breach thereof.
Moreover, in light of the February Resolutions which sought to streamline the process by which future bilateral series between member states of the ICC were scheduled, the FTP Issue required the Panel to determine whether the April Letter, if contractual, was subject to a condition subsequent, namely that the parties execute a long form FTP Agreement. The FTP Agreement essentially refers to a mutually agreed and binding agreement to be executed between Full Members5 in relation to bilateral tours, subject to (1) force majeure events; (2) no material breach by the other party; and (3) an agreement being reached by the parties on any changes to the applicable ICC playing conditions made after the date of the FTP Agreement.6
The Government Approval Issue centred around whether the inability of the BCCI to obtain prior approval of the Indian Government to play against Pakistan would be a force majeure event and could be read in to the April Letter, were it accepted as a binding agreement. However, as will be seen below, the Government Approval Issue proved to be less significant in the Panel’s final determination.
The BCCI argues that the April Letter represented only the first step of a three-step process (and one which was not in itself legally binding).
The PCB, on the other hand, argues that the April Letter was sufficient to legally bind the parties. Thus, it argued that any subsequent FTP Agreement (i.e., the alleged third-step, as detailed below) was “a routine matter”, and no more than a mere "formality", as required by the February Resolutions7.
The three-step process as sought to be established by the February Resolutions necessarily involved:
Step 1: Members proposing periods when they might undertake a tour series against each other;
Step 2: Multilateral discussions between Members through an ICC-facilitated process to arrive at an agreed FTP Schedule for all Members for the period 2015-2023; and
Step 3: Members entering into bilateral FTP Agreements in accordance with the FTP Schedule agreed upon in Step 2 above, based on the agreements reached in Steps 1 and 28.
In the Award, the Panel expressed that the FTP Agreements (Step 3) could not be finalized and committed to by Members unless and until a Master FTP Schedule had been agreed to (Step 2)9, before which any Member could change its position in respect of dates agreed earlier discussions.
LEGAL PRINCIPLES APPLIED BY THE PANEL: HOW TO DETERMINE THE ENFORCEABILITY OF A LETTER
With the April Letter in place, the Panel focused its analysis on enforceability by recounting salient principles of English contract law, which, for the purposes of this article have been categorised as follows:
Objective interpretation: At the outset, the Panel determined that an objective view of the April Letter (i.e., the alleged contract in question) was paramount. Therefore, to be considered was “what a reasonable person with the background knowledge available to the parties would have understood it to mean” (emphasis added).10 Thus, objectivity, it was noted, was required not only to interpret the terms of the contract, but also the facts of the case.
To this end, the panel highlighted the “golden rule” of objective enquiry, as laid out in a previous case, BCCI v Ali11 which states that “the words of a contract should be interpreted in their grammatical and ordinary sense in context, except to the extent that some modification is necessary in order to avoid absurdity, inconsistency or repugnancy”. In other words, a contract must be read “as is”, unless of course, such reading would give rise to an unreasonable or incompatible view.
Interpreting ambiguous terms: The Panel invoked the principle of “contra proferentem” according to which, a document, if ambiguous, ought to be interpreted against the party which tenders it (in this case, the PCB). Additionally, according to English Common Law, a commercial contract, if ambiguous, is required to be construed based on “business common sense”. How the Panel applied this principle will be touched upon in the following section.
Conduct as an aid to interpretation: The Panel observes that on one hand, once a contract is signed, any subsequent (presumably contrarian) conduct of the parties cannot be used as an aid to interpret the contract. With that being said, if both parties perform their respective parts of the contract, it would be “difficult to submit that the contract is void for vagueness or uncertainty”.12
Contractual intention: Next in contention was the more subjective element of intent, or the English law principle of “intention to create legal relations”. It was noted that generally speaking, an agreement to negotiate is not enforceable. However, when it is unclear as to when negotiations between parties have concluded, the courts would “look at the entire course of negotiations to decide whether an apparently unqualified acceptance did in fact conclude the agreement”.13 This, of course, would be a factual assessment.
Additionally, the setting in which the parties enter into an agreement is important. For example, an agreement which is concluded in a “commercial setting”, which for all practical purposes satisfies the conditions of contract formation, gives rise to the presumption that the parties intended to create legal relations. Thus, the onus of proving that there was no intent would be on the party who asserts no legal effect of the document. This onus was described as “a heavy one”.
It follows that to establish enforceability, the following two considerations are key:
How important is the agreement to the parties? and
Did any party act in reliance on the agreement?
However, neither feature compels the establishment of intent, with the Panel at pains to stress the importance of a case by case, factual assessment.
APPLICATION TO FACTS AND KEY TAKEAWAYS
LEGAL STATUS AND BREACH ISSUE AND FTP ISSUE
Notwithstanding the principles enumerated above, the Panel noted that “the question of contractual intention is in the last resort a question of fact […]”14. Thus, the Panel’s next task was to make a factual assessment to determine whether the April Letter amounted to a binding contract at all.15
At the outset, the Panel conceded that the April Letter “bore all emblems of a contract”16. This was evidenced by (for example)17:
Use of words like “agreed”; that teams “will” play each other with the word "will" recurring throughout the text of the letter;
A “best efforts” obligation in respect of a tour in 2014, which was used to assert the unqualified, binding obligations in respect of later tours;
Reference to criteria for sale of media rights;
Parties having considered certain circumstances which would render the letter to have no effect, implying that otherwise it would be of effect;
Having no affinity towards being a mere "MOU" or letter of intent;
Previous drafts which had undergone significant changes; and
Having been signed by senior officials representing both camps.
However, the Panel stopped short of holding the April Letter as a legally binding document, laying heavy emphasis and relying on what it termed as "countervailing factors" it must take into account to determine whether the April Letter intended to create legal relations between the parties.18 These factors trail back to:
The Panel’s determination of the intent and effect of the February Resolutions. Thus, for Members to enter into legally binding FTP Agreements, it was necessary for Members to negotiate inter se their desired tour programmes and inform the ICC. This according to the Panel was a key objective of the February Resolutions.
Moreover, Appendix C of the February Resolutions (which was binding on both parties, and all Members) unambiguously envisaged that only a signed FTP Agreement would be legally binding upon the signatories. Thus, the April Letter, which was not in the form prescribed for an FTP Agreement could not be binding upon the parties.
The fact that the April Letter fit neatly as "step 1" of the three-step process for finalizing future bilateral tours between Member States. Thus, being a necessary precursor to the second and third steps, the April Letter could not itself be binding.
No FTP Agreement could be finalised and committed to by Members until and unless a Master FTP Schedule had been agreed. Thus, Members could "change their positions" on bilateral arrangements (for e.g., as documented in a letter such as the April Letter) prior to a Master FTP Schedule being formalized – being step 2 of the three-step process.
Relying upon evidence presented by a PCB board member to the Panel, the Award recalls that as on the date of the April Letter, the PCB’s own schedule accounted for no less than six clashes with the dates for which a bilateral series could have been scheduled with the BCCI. Thus, as on the date of the April Letter, it was unrealistic for the PCB to have assumed that each of the six clashes with other Member boards could be resolved to accommodate an India tour. Such predicament of the PCB adds further clout to the notion that the April Letter was merely an arrangement between the boards, and not in the nature of a legally binding contract.
Relying upon a liberal construction of contracts,19 the Panel observed that the April Letter did not form a legally, binding contract between the parties. However, as stipulated for in the April Letter, the execution of an FTP Agreement (being in the form prescribed in Appendix C of the February Resolutions, and containing a force majeure clause, among other elements) was deemed crucial to the formation of a legally binding contract and could not be passed off as a mere formalisation of an agreement already reached.
The Panel’s determination was further buttressed by a subsequent letter dated 26 June 2014 by the PCB to the BCCI containing a draft long-form FTP Agreement which included a force majeure provision stating that formal written rejection of government approval could justify non-compliance with an otherwise agreed tour.20 However, no FTP Agreement was signed between the PCB and BCCI, despite continuing dialogue between the Boards.
The Panel was also persuaded by the evidence of BCCI witnesses, and it considered inconceivable that the BCCI would have ever agreed to a contract without a force majeure clause referring to the absence of government approval, stating that if such clause was not among the terms of the letter the arrangement could not be the final one between the parties.
GOVERNMENT APPROVAL
Once it was determined by the Panel that the April Letter did not constitute a legal, binding agreement between the parties, the issue regarding government approval was rendered moot. However, in light of a recent dispute between the parties before the ICC Technical Committee in 2017 on India’s failure to play Pakistan in Round 6 of the ICC Women’s Championship of 2014-2016, the Panel noted that the evidence before it in the present case was far more extensive than in the previous instance.
Governed by Article 9.5 of the ICC DRC Terms of Reference, strict rules of evidence in judicial or other proceedings do not apply to proceedings before the Panel, and the Panel was entitled to consider any evidence submitted or provided and give such weight to it as it reasonably thinks fit.
Thus, as a quasi-judicial dispute resolution body, the Panel was equipped and aided by an array of substantive evidence in making its determination. As conceded in the Award, the Panel admitted to being ultimately persuaded by the evidence of BCCI witnesses Professor Shetty and Mr Khurshid, former Foreign Minister of India on the “oral tradition” of Government Approval being sought before any bilateral series between India and Pakistan.21
RULING
The Panel acknowledges that the given the fact sensitive nature of the dispute, the application of the relevant legal principles to the facts was fundamental to determining whether the April Letter amounted to a binding letter at all.22 Applying the legal principles set out above to the facts of the present case, the Panel concluded that if scrutinized through the lens of a microscope, the April Letter could be read as a contractually binding document between the parties. However, deploying a telescope to view things in a broader perspective, and in light of the circumstances out of which the letter arose (i.e., the February Resolutions), the April Letter could be viewed as no more than a declaration of intent creating a “moral obligation” but not a legal one.
By adopting a broad, telescopic view to the facts in the present case, the Panel’s determination qua the nature of the April Letter effectively dismissed the claims of the PCB relating to a breach by the BCCI. As the Panel had bifurcated issues of liability and quantum at the forefront of the proceedings, such determination by the Panel on liability effectively deemed PCB’s claims for damages illusory. Notably, the Panel’s detailed consideration to and analysis of the arguments submitted by each party to the dispute23 is telling of the fine margins along which this legal battle was contested. Indeed, with certain BCCI arguments rejected and deemed “difficult to sustain” the result could have gone either way. Eventually, by deploying a holistic approach and the “telescope-microscope” analogy, the Panel justified its application of English contract law to the facts of the case, ruling in favour of the BCCI.
CONCLUSION
While the Award presents an astute legal analysis of principles of English contract law and enforceability, noteworthy is the Panel’s observation that in reality the issue at hand is one that goes far beyond the enforceability of any letter of intent, MOU, or other document of similar form and substance, by whatever name called. Indeed, the Award “does no more than to establish legal rights and obligations in the case before it in light of the law, the rules governing the administration of the sport and the specific evidence adduced by parties”.24
Disputes between Members in relation to bilateral tour agreements are infrequent, but when arise, typically revolve around political and / or security reasons.25 Given the generally frosty political relations between the two nations, the Award provides significant and relevant insight to the application and interpretation of principles of English law to arrangements between ICC Members. Whilst the Award acknowledges that as a common practice, Members have been arranging (and successfully completing) bilateral tours without executing an FTP Agreement, this practice could soon change. The Award goes on to provide sound guidance as to the intent of the February Resolutions and establishes that a long-form FTP Agreement is critical to forming a legal, binding contract between Members.
If the conduct of the parties to the dispute could warrant a special mention from the Panel, it is hoped that the BCCI and PCB could garner this positive momentum back to the negotiating table and restore bilateral relations between “two proud cricketing nations”26 beyond participation at ICC Events.27
https://www.lawinsport.com/topics/a...d-pakistan-and-india-s-bilateral-tour-dispute
[MENTION=65416]Ironcat[/MENTION] what is your take on this article?
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As if insult was not enough, there is humiliation in store for the Pakistan Cricket Board (PCB). The Board of
Control for Cricket in India (BCCI) has dashed off a letter seeking legal expenses of the compensation case the
PCB lost to the BCCI last month.
Mirror has learnt that the BCCI has written recently to the Dispute Resolution Committee (DRC) of the
International Cricket Council (ICC) asking for its legal expenses of about Rs 15 crore be paid by the PCB. The
DRC was headed by English barrister Michael J Beloff QC, and had Dr Annabelle Bennett and Jan Paulsson as
members.
In its judgment on November 18, the three-member Beloff panel quashed the PCB claim of Rs 447 crore
compensation from the BCCI for not honouring an MoU which had mandated bilateral series between the
countries. India and Pakistan have only been engaged in multilateral tournaments and have not played a bilateral
match since January 2013.
As per the terms and reference of ICC’s dispute resolution, a party can seek legal expenses in a case and the
DRC can determine on that. The BCCI had engaged a Dubai-based law firm Herbert Smith Freehills and also
called a British Lawyer Ian Mills QC to fight its case. BCCI’s own legal firm, Cyril Amarchand Mangaldas, was
also active in the case. It had also called former union minister Salman Khurshid, former BCCI employees
Ratnakar Shetty and Sundar Raman, and former BCCI secretary Sanjay Patel as its witnesses. The hearing had
taken place in the first week of October in Dubai.
BCCI sources have confirmed that the letter has been dispatched to the DRC. Meanwhile, the matter is likely to
also come up at an Asian Cricket Council meeting in Dhaka on December 13.
https://mumbaimirror.indiatimes.com...r-legal-fee-from-pcb/articleshow/67049315.cms
Control for Cricket in India (BCCI) has dashed off a letter seeking legal expenses of the compensation case the
PCB lost to the BCCI last month.
Mirror has learnt that the BCCI has written recently to the Dispute Resolution Committee (DRC) of the
International Cricket Council (ICC) asking for its legal expenses of about Rs 15 crore be paid by the PCB. The
DRC was headed by English barrister Michael J Beloff QC, and had Dr Annabelle Bennett and Jan Paulsson as
members.
In its judgment on November 18, the three-member Beloff panel quashed the PCB claim of Rs 447 crore
compensation from the BCCI for not honouring an MoU which had mandated bilateral series between the
countries. India and Pakistan have only been engaged in multilateral tournaments and have not played a bilateral
match since January 2013.
As per the terms and reference of ICC’s dispute resolution, a party can seek legal expenses in a case and the
DRC can determine on that. The BCCI had engaged a Dubai-based law firm Herbert Smith Freehills and also
called a British Lawyer Ian Mills QC to fight its case. BCCI’s own legal firm, Cyril Amarchand Mangaldas, was
also active in the case. It had also called former union minister Salman Khurshid, former BCCI employees
Ratnakar Shetty and Sundar Raman, and former BCCI secretary Sanjay Patel as its witnesses. The hearing had
taken place in the first week of October in Dubai.
BCCI sources have confirmed that the letter has been dispatched to the DRC. Meanwhile, the matter is likely to
also come up at an Asian Cricket Council meeting in Dhaka on December 13.
https://mumbaimirror.indiatimes.com...r-legal-fee-from-pcb/articleshow/67049315.cms
Savak
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Lol, is there anything right going on in Pakistan Cricket right now?
It seems like a case of a curse or black magic has been imposed
It seems like a case of a curse or black magic has been imposed
cricketindiafan
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So BCCI has decided to continue the battle. I wish this was not done and matter allowed to die down but now that BCCI realise they have an upper hand, they will try to respond to all those public taunts from Sethi saahab when this trial was going on.
It's not a matter of enjoying upper hand. BCCI is a bureaucratic organization with rules of business in place to deal with such cases. The functionaries in BCCI cannot take unilateral decision to bypass such rules because it'd not go down well with the members who are already politically at each others' necks.
Hitman
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BCCI needs that $2 million to remain solvent.
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That would be PSL revenues for PSL4 I think!
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To the victors the spoils of war and a token gesture to show who's boss.
Itachi
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When you fight head on with some one, then you should be prepared for the consequences.
JattMaula
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ICC handouts not enough to survive?
cricketindiafan
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I see it more as a "mooch ki ladai' a proper ego battle more than anything else. This organisation is paying tens of millions to lawyers appearing for it regularly in Supreme Court, a couple of millions more will not make any difference to it's coffers.
Could also be a case of Shashan Manohar doing backseat driving through the CoA and taking revenge on PCB. Something has happened in last 12 months that has turned him against PCB.
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This isnt a religious war so keep your silly comments off this thread. No one is arrogant but protecting their business interests
Isn't it standard fare for losing parties to pay for the attorney fees of the winning party? First of all, it was an unwise decision to file a law suit against BCCI. It was just an MOU and not a binding contract. I believe PCB knew they would lose and tried to hit BCCI when they were down with the Big 3 falling apart.
The MOU was signed as a favor for PCB's support of Big 3. When PCB opposed it later, they lost their claim to that MOU. For some reason PCB went ahead with the ill advised lawsuit and this was an opportunity for BCCI to show how they are always the big dog in world cricket.
There will be repurcussions to this. 2 million is not the end of it. BCCI will not play a series in the near future. There will be no support from the Asian Bloc for the restoration of cricket in Pakistan. Afg, SL and BD are BCCI's allies and PCB has alienated itself.
The MOU was signed as a favor for PCB's support of Big 3. When PCB opposed it later, they lost their claim to that MOU. For some reason PCB went ahead with the ill advised lawsuit and this was an opportunity for BCCI to show how they are always the big dog in world cricket.
There will be repurcussions to this. 2 million is not the end of it. BCCI will not play a series in the near future. There will be no support from the Asian Bloc for the restoration of cricket in Pakistan. Afg, SL and BD are BCCI's allies and PCB has alienated itself.
Savak
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Hopefully the PCB in this entire saga realizes that it should always do what is in their best interests first and not be slow in comparison to the other ICC members.
Second any agreements or understandings with the BCCI, verbal or written should be taken with a pinch of salt.
Thirdly, not be naive to expect the ICC to side with it against the Big 3 member states.
Fourth, to do more due diligence and not blindly rely on its team of lawyers.
Five, find alternative sources of generating revenue ie listing the PSL as a stock exchange etc
Second any agreements or understandings with the BCCI, verbal or written should be taken with a pinch of salt.
Thirdly, not be naive to expect the ICC to side with it against the Big 3 member states.
Fourth, to do more due diligence and not blindly rely on its team of lawyers.
Five, find alternative sources of generating revenue ie listing the PSL as a stock exchange etc
Savak
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Other than the $2 million, the PCB hasn't really lost anything else, the BCCI and the Indian govt was not interested in playing Pakistan before, they aren't now so no change on that front.
The Asian bloc was always going to be in BCCI's pockets before so no change there either.
The only silver lining is that the PCB can now finally see for real what the reality is and how hopefully try to find other out of the box ways to keep things going.
ARK Rafay
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Bad days are ahead of Pakistan Cricket (Like I said)
cricketindiafan
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Never say never. All it will need is a signal from the Govt of the day and BCCI will scamper to arrange a series - even willing to play in Pakistan like we did in 2004 which was just 30 months after a diplomatic deadlock during Agra Summit.
If you look at our FTP there are plenty of series planned with BD/Zim/WI, all those will get shortened/rescheduled/cancelled the day GOI decides it was time for cricket ties to resume.
cricketindiafan
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Remember that the Pakistan National Hockey Team is participating in the World Cup Hockey at Bhubaneswar right now. Would not have been possible without GOI's nod. That gives me a lot of hope of a bilateral series at some stage soon (next 15-18 months)
Religious war? Where did it come from? Stop making silly assumptions.
PCB felt it was entitled to BCCI's money, and that arrogance is the reason they have lost this case.
Hitman
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That $ 2 million was spent from the handouts the BCCI receives from the ICC.
iRfaN_LA
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Big difference between a tournament like worldcup and bilateral series. If India would not allow Pakistan to come to worldcup, they won’t be able to hold international events.
saeed5646
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This is total failure and disaster from our so called best pcb chairman ever mr sethi and subhan ahmed .i hope there is some rule to file case against these two legend made them accountable by wasting so much money on the weak case and now another us 2 billion
cricketindiafan
T20I Debutant
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It is a big deal that an international Pakistani sports team is playing in India in a high profile tournament. Yes it is a World Cup but the Govt could have refused visa to Pakistani players and asked IHF to move the tournament like it happened for Asia Cup.
Itachi
Test Debutant
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In the context, religious war doesn't relate to religion. It simply means, instead of holding hidden agenda and going against BCCI in every aspect.... PCB was just following the assumption that BCCI should be held responsible for it's commitment.
Ganju Baba
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Which part of "MOUs are not legally binding" was too difficult for PCB and fans to understand.
Sheikh Chilli ke haseen khawab.
Sheikh Chilli ke haseen khawab.
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