Sri Lanka Cricket questions fairness of reform plans ahead of ICC meeting

Letter from Sri Lanka Cricket's president Jayantha Dharmadasa questions fairness of some of the restructuring proposals made by India, England and Australia to the game.

Sri Lanka Cricket, presided by Jayantha Dharmadasa, reportedly wrote to the ICC and objected to the fairness of the reform plans. Ishara S Kodikara / AFP

As the world of cricket descends on Singapore for a seminal ICC board meeting, the stage could be set for an intense legal battle between the game’s haves and some have-nots.

A rehearsal of sorts has played itself out in correspondence, in possession of The National, between one of the have-nots, Sri Lanka Cricket (SLC) and the ICC.

Australia, England and India are set to put proposals calling for a vast restructuring of the game to vote; they already have the support of four other boards. But opposing the changes are Pakistan, South Africa and Sri Lanka, the trio successfully deferring a vote at a board meeting in Dubai last week.

On February 5, SLC stridently questioned the legality of the proposals as well as the manner in which they were conceived, in a letter addressed to the legal head of the ICC, Iain Higgins.

Eight points, covering the breadth of the proposals are raised. The governing body replied, rebutting most of them, but it is likely the debate will continue at the meeting on Saturday, turning it potentially into a legal battlefield.

SLC sent the letter, from their president Jayantha Dharmadasa, a day after their board met with various stakeholders in the game and confirmed publicly their opposition to the proposed changes.

The changes redraw the administrative and financial landscape of the world game, potentially concentrating power and wealth in the hands of the big three.

“SLC has specific concern that the tenor and scope of the Purported Resolutions are in conflict with the fundamental principles upon which the ICC was founded,” the letter begins.

It cites the existing Memorandum of Association of the ICC, detailing the objectives of the organisation to ‘administer, develop, co-ordinate, regulate and promote the game of Cricket world-wide in co-operation with its Members.’

Dharmadasa argues these proposals abrogate “power and authority from the 10 Full Members and the Associate Members, and vest[ing] it, in an inordinately disproportionate manner in just 3 Full Members.

“The purported Resolutions also have the effect of taking a disproportionately large share of the funding available from the ICC and distributing it among these three Full Members, at the expense of the other seven Full Members and the Associate Members.

“This is contrary to the equal revenue share model that is enshrined in the constitution. I seek your confirmation that you have given your mind to this aspect and satisfied yourself that these purported ‘Resolutions’ can be maintained.”

The ICC responded by saying that they see “no legal justification in your letter to support any contention that the Board should not properly consider these matters on Saturday.”

That line stands for most of the following arguments: that there is no reason for these proposals to not at least be discussed, and, as it is increasingly trying to emphasise, their fate ultimately lies with the boards themselves.

Responding, for example, to this first objection, that these proposals negate the ICC’s original aims, Higgins says: “Those Full Members tabling the resolutions are clearly of the view that the resolutions do in fact support the ‘objects’ of the ICC...and, on the face of the resolutions themselves, they would appear to be correct.

“Any member that disagrees, the reply continues, is “free to vote against the resolutions, or take such other action as they see fit. However, I see no legal basis for not considering these resolutions.”

Dharmadasa asks about the soundness of such far-reaching proposals originating from a working group of a specific committee - the Financial & Commercial Affairs Committee (F&CA).

“We trust you have perused and satisfied yourself that the Terms of Reference of the F&CA Committee, to ascertain whether it has thereby been entrusted with such a broad scope of power as to make recommendations on the extremely wide range of matters as are covered by the proposed Purported Resolutions.”

In reply, the ICC concludes that the origins of the proposals from the F&CA are within legal ambit. “[I]t is correct that the resolutions cover areas that do not fall squarely within the F&CA’s terms of reference.” There is no requirement, the reply continues, that a resolution must come from a sub-committee, or that it must come from sub-committee with “mandate in that area” or that a committee exclusively “considers matters within their scope...Accordingly, I see no legal basis to support your contention.”

Significantly, Dharmadasa casts doubt on the idea of ‘Contribution Costs’, which underpins the basis of the newly proposed financial redistribution model and removes the existing model of an equitable distribution for all full members.

“It is our view that this “Contribution Cost” is not a true cost, and accordingly cannot constitutionally be dealt with in this manner ... Therefore we have been advised that the ... Resolution which introduced an unequal distribution of the ‘contribution costs’ is contrary to the Memorandum of Association of the ICC.”

Here, though, there does appear to be legal wriggle room. The ICC’s “preliminary view” is that both the contribution costs and the Test cricket funds are in “furtherance” of the ICC’s objectives.

But, the reply continues, “We will consider that matter further, and will reflect on your comments in that respect. However, once again, in the circumstances, I cannot see at this stage any legal basis for the ICC Board not to consider these matters at its upcoming meeting.”

The briefest, and perhaps most pithy point Dharmadasa raises is about the creation of an Executive Committee (ExCo) which plans to cede executive power to a five-member committee in which the big three have permanent seats.

“We seek confirmation that you have satisfied yourself of the constitutionality of the creation of the committees consisting of a permanent majority of the representatives of BCCI, ECB and CA.”

The creation of an ExCo, with permanent members, the ICC says does not violate the constitution. “There is nothing in the constitution that prevents the creation of permanent places for any individual Member Board (or group of Member Boards) on any of the Board’s sub-committees.

“The make-up of the committees is a matter for the Board to decide, and any Full Member director is free to vote for or against the proposed resolutions in that area, as they see fit.”

The new, proposed Future Tours Programme (FTP) is also a target of SLC objections. The FTP has always been the result of bilateral negotiations, but the ICC currently places minimum requirements between members which need to be adhered to.

In the new scheme, bilateral series are provided bankable and legally binding cover, but minimum requirements of each member to play at least one series home and away against the other have been removed.

“The purported Resolutions seek to impose wide changes to the FTP, essentially by doing away with the current FTP Scheme and permitting the individual Boards to contract with each other,” Dharamdasa argues.

“You would be aware that contracts that have already been entered into by individual Members on the basis of the existing ICC Executive Board approved FTP, including Sponsorship Contracts and Broadcasting Contracts for which such Members have committed and already received monies.

“We seek confirmation that you have considered the legality of this, and have advised the ICC of its potential liability to indemnify any Members that may be caused loss and damage in this regard.”

The ICC is clear in its reply that it will not assume “any liability.” Acknowledging the “uncertainty about the enforceability” of current FTP regulations, the reply continues: “If a Member Board has entered into agreements with other Member Boards, who then choose to renege on their commitments, then that is a matter for the aggrieved Member Board to deal with directly against the offending Member Boards.

“If they don’t have binding agreements with other Member Boards, then where is the loss? I will reflect further on your comments, but, in any event, this does not stop the Board from considering these matters at its upcoming meeting.”

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