The controversy between the Cricket players in India and the
ICC, the world Cricket administration body on "Event Sponsoring" and
"Ambush Marketing" has raised some very fundamental IPR issues. Probably there
will be reverberations in the Cyber World also.
What is the Issue?
The issue centers around the individual rights of the players
to participate in any advertisement or promotional activities of companies who
are competitors to the "Official Sponsors" of an event.
Many of the Cricketers have already entered into personal
contracts with Marketing Agencies for endorsements for a period of an year or
more. Now the ICC (International Cricket Committee) has entered into a contract
with a sponsor for a tournament that is taking place in September 2002, in which
it has agreed to its sponsor that "No Player participating in the tournament
would endorse rival business 30 days before the start of the tournament
and upto 30 days after its closure.
As a result any player who is selected to play for the
tournament by his countries sporting authority has to renege on his earlier
contracts or forego selection.
In another funny move, ICC has entered into a contract with
the national sports bodies (such as BCCI -Board of Cricket Control in India )
stating that the "Board shall send the best team for the tournament".
As a result, if players who are generally expected to make
the top team of the country are under sponsorship contracts with the rivals of
the tournament sponsors and they do not renege the contract, they have to be
dropped from the team and in doing so, the BCCI can be accused of "not sending
the best team".
The result is that either the players have to default on
their sponsorship contracts or the BCCI has to default on its commitment on
sending the best team.
It is not clear how such a conflicting contract was entered
into between the ICC and the BCCI. The president of the BCCI has stated that "ICC
will murder BCCI" if the best team is not sent and is therefore pressurising the
players that they agree to the terms imposed by ICC.
This has raised several issues implications of which go beyond
the field of sports and marketing into law and fundamental rights.
Is BCCI liable if the "Best Players" are not selected for the
Tournament?
In any sporting event, particularly a team event such
as Cricket, there is no authority which can state "What is the Best Team".
Usually the selection made by the selection committee is always contested by the
sporting public that a few players are there for reasons other than their
ability. At no point of time therefore the team selected can be considered as
"The Best". It is only a question of degree of how many deserving persons were
left out in a team. If the so called top players of the country are not
available for selection either due to injury or due to them being not eligible
by virtue of being in contract with some Company, then the "Best Team" would be
one which contains only the remaining members. Hence there is no ground for BCCI
to be held liable for selecting a "B" team since who ever is selected would be
out of the eligible members.
BCCI therefore is spreading a canard that it may suffer
because of the withdrawal of some of the players from the tournament.
What is "Ambush Marketing"?
"Ambush Marketing" is an exotic word coined by the marketing
persons to prevent sale of competitor's products in a market ever which they
have a better control. For example, Cadbury's may put a condition to a super
market that if it wants to stock its Cadbury products, they should agree not to
stock any other product. This has been tried in India by not only Cadbury but
also the Blade manufacturers in the past. The practice has not however failed to
get public support and has been considered both anti consumer and unfair.
Is it "Marketing"? or "Forcing the Players to Cheat?"
What ICC plans to do is worse by several degrees
compared to the above cases observed in Consumer product retailing. ICC's
Contract with its sponsors means that if Sachin Tendulkar is having a contract
with TVS for promotion of a Car any ads using Sachin should not be carried
roughly for around 3 months around the tournament time. This amounts to
"Blocking an Existing Contract" and the advertiser who has contracted with
Sachin is adversely affected if the advertisement has to be removed during a
peak selling season.
In fact once an endorsement contract is signed, it would be
unethical even for Sachin to prevent its use by the legitimate owner of the ad
rights.
It is also possible that Sachin's contract may or may not
provide for such withdrawal and the advertiser may refuse to abide by Sachin's
request. In such a case, Sachin may be selected to play and the offending ad may
still appear in the media making Sachin a defaulter to ICC/BCCI.
Mr Kishan Rungta, the former BCCI president in a recent TV
programme suggested that there should be a "Force Majeur" Clause which should
enable the players to renege on the contracts. However, "Force Majeur" applies
to a condition which is beyond the control of the contracting parties. However,
in this case since Sachin is well within his powers to refuse to participate in
the tournament, "Force Majeur" protection may not be available to him.
Additionally, ICC contract also appears to block the players
from entering into any fresh contract of similar nature. This leads to a
peculiar situation where a "Right to Sponsor a Product" is being mortgaged. As
an example, Rahul Dravid who today does not have a contract with Jet Airways
is prevented from entering into any contract with Jet airways by virtue of the
ICC contract. In a way ICC is in such a case exercising a right on a property
not existing on the day of its contract with Dravid.
ICC and BCCI seem to think that players are their property
and they can enter into any contract involving the players without consulting
them and even if it infringes on their existing contracts and forces them
to commit what could be termed as frauds for which the player can be charged
under Section 420 of IPC.
Why All Cricketers are Not into Advertisements?
It is also a myth that a marketer recruits a Cricketer only
because of his playing cricket for the country and not otherwise. How is it then
that all the players do not get equal opportunity to participate in Ads?. The
marketer choses a celebrity for endorsement not only because he is the most
succesful player of the moment, but also for certain character that he
represents, such as success, grit, determination, team spirit, honesty etc.
Nothing prevents a Batsman who collects a "King Pair" from
endorsing a "Pair of Spectacles" or a "Butter fingered Fielder" endorsing "Amul
butter".
It is also possible that a Cricketer may acutally be a good
actor and he may be recruited for that reason. Gavaskar and Rahul Dravid belong
to that category and can be models in their own right. It is therefore
in-correct to say that a Cricketer is endorsing a product only because he is a
cricketer.
It is therefore wrong for any cricketing body to claim
priority rights over the endorsement capabilities of the cricketers.
Further, BCCI and ICC can only give chances to players to
play for the country in the first instance and back them for some time. But it
is the innate ability of the players to play the game better than others that
makes them "Celebrities" and being sought after by marketers. The demand for
being models therefore comes from being "Successful" because of their own
abilities and not because ICC or BCCI is conducting some tournament and
selecting the player. Those so called "Patriots" who argue that " "Players exist
because of Cricket" are ignoring this contribution of the players in developing
into a celebrity. It is therefore wrong to say that any Cricketer who
refuses to play for the country committing in the process a breach of faith with
his existing marketer is an "Un patriotic person".
Who Gives Monopoly Rights to BCCI / ICC?
Despite the unfairness of the demand of ICC and theattempt to
infringe personal rights of players to pursue their own marketing career along
with their cricketing career, the system today is heavily biased in favour of
the Cricketing bodies. This is so because they are monopoly bodies who can
select a player even if he is undeserving (for a short time at least) and
can reject a player even if he is deserving.
It is this "Power" that makes these bodies behave
irrationally. Even though there are "Contracts" signed by players, it must
be recognized that these contracts are between tow unequal parties and should be
held void ab-initio. There is "Undue Influence" and " Perceived Coercison" that
makes players to sign on the dotted line and such contracts have no validity in
law.
But the BCCI and ICC will continue to behave in a dictatorial
manner as long as they are conferred with a monopoly status. Today if Cricket is
a popular sport and companies are queing up behind the players and the
cricketing bodies for sponsoring events, teams, and individual players, it is
because the public are contributing to the popularity of the game. It is the
public who visit the matches in the stadium and the public who watch the match
broadcasts. The real owner of the "Endorsement Capability" of the players is
therefore the public and not the cricketing bodies. It is therefore
necessary that the monopoly of the Cricketing bodies has to be broken and the
public should have a say in the matter of Cricket administration.
If only the BCCI is elected not by the members of
the select cricket clubs but by the Cricketing public, they would be more
reasonable. Perhaps the current crisis will create a new awareness amongst the
public leading to public participation in some manner in the cricket
administration. This restructuring of the cricket administration should be a
positive fall out of this crisis.
The Dangerous Precedent being set by ICC
Assuming that ICC is able to arm twist the players and
get its way, then the sponsors in future would only go to ICC and BCCI and
not the individual players. The players can only give a conditional
endorsement contract which may say that " The endorsements can be used only
when there is no conflict with the sponsors of ICC/BCCI " This may grossly
undermine the value of the contracts. The players in future will therefore
lose heavily on their marketing income.
The claim of ICC that its right to use a player in
an advertisement is not restricted to the "Event" such as "Telecast of the
Match" or "Instadia publicity etc, but to any other advertisement that may
be carried within the relevant period is likely to set very dangerous
precedents in the area of Intellectual Property Rights.
The trend being set by ICC can even percolate into the
area of IPR on Cyber space. To highlight the possible trend that we may be
moving into, ICANN and the various registrars may perhaps say that the
"Websites" are their creation and hence ICANN should have the right to
market the ad space on web sites.
Similarly, each ISP can say that their clients access
Internet because of them and hence they have the right to block rival sites.
The road to Yahoo blocking by Indian ISP s is now becoming clear because it
is nothing but "Ambush Marketing". If ICC can claim such rights why not
ICANN or an ISP?
