Stumping the Status Quo: A Legal Case for Recognising Cricketers as Employees

Introduction

In India, the Board of Control for Cricket in India (BCCI) is the apex organisation responsible for the development, growth, and governance of cricket as a sport, demonstrating a largely successful track record in recent times with respect to the major accomplishments of the Indian Cricket Team and the overall influence on the favourable trajectory of the sport in the country.¹ Although, the popularity of cricket is rapidly increasing everyday, certain questions with respect to the status of the cricketers in India as employees or independent contractors remain unclear.

The article would start off by presenting a brief overview of the current position of cricketers having central contracts with BCCI, further defining the scope of the article and putting forth the primary argument. Part II would present a multi-pronged legal assessment of the current arrangement between BCCI contracted cricketers and BCCI by employing the established tests of employment, including the control and supervision test, mutuality of obligations test among others, to buttress our primary argument. Further, Part III would present a comparative analysis of how other jurisdictions, including the EU and UK, scrutinise the nature of similar agreements between the athletes and their governing bodies/clubs in order to reinforce our argument.

Part I: Present position

At present, the BCCI contracts with the cricketers by means of annual player retainership agreements.² Retainership agreements, by their very nature, are generally work-for-hire agreements. In these agreements, the person contracted with for their services is not essentially an employee and is generally not required to adhere to certain standards as expected from an employee. Additionally, retainers generally tend to be more malleable in contrast to a contract of employment which is more standardised with respect to certain terms of the agreement. Therefore, it is quite clear that the retainership agreements are not employment contracts i.e. contract of service and are in essence contract for services.

At this juncture, it becomes crucial to note the Supreme Court in Sushilaben Indravadan Gandhi v. New India Assurance Co. Ltd. verdict³ held that for determining whether there is a contract of service or contract for service, everything depends on the terms of the contract entered into between both the parties. In furtherance of the same, the primary argument that this article seeks to put forth is that although the agreements entered into between the cricketers and BCCI are annual retainership contracts, on application and subsequent analysis of this arrangement by the means of various established tests for determining the existence of an employment arrangement, the contracted cricketers are in essence employees of the BCCI and not independent contractors.

Part II: Establishing employer-employee relationship

(A) Control and supervision test

In Dharangadhra Chemical Works Ltd. v. State of Saurashtra⁴, it was held that the existence of a right with the employer to control and supervise the work done by an employee would indicate an employer-employee relationship. The Court also relied on 4 indicators for determining a contract of service. These included the power to select, remunerate, control the method of work and suspend or dismiss the contracted party.

As per the abovementioned factors, an important indicator of the significant influence of BCCI over contracted cricketers is the complete autonomy it possesses with regard to deciding who will be granted central contracts.⁵ Further, BCCI then distinguishes between all the selected players by the means of different paygrades, being the exclusive authority which decides upon which player will receive a particular quantum of wages for their personal services, indicating a significant level of financial control over the players.⁶

Furthermore, the BCCI in furtherance of its disciplinary measures can impose certain fines⁷, penalties⁸ which can also extend to suspensions⁹ if they deem their actions to be unprofessional and contrary to the BCCI’s professional code of conduct. Additionally, the cricketers contracted with BCCI are not allowed to participate in international leagues similar to Indian Premier League (IPL)¹⁰, significantly deviating from the practice followed in almost all the other cricketing nations including the cricket powerhouses Australia and England, where there is no such restriction on players.¹¹

The BCCI also tends to supervise the personal as well as the commercial behaviour of the players, with respect to various endorsements which are commercial in nature to ensure transparency and avoid plausible conflict of interest.¹² The supervision covers interactions of cricketers with the public and the media even when they are not playing a cricket match, leading to a constant disciplinary supervision over the cricketers.¹³ Furthermore, BCCI also has the discretion to drop cricketers from the annual contracts as per its own discretion, which is typically exercised by its Selection Committee.¹⁴

(B) Mutuality of obligations test

In Ram Singh v. State (UT of Chandigarh) verdict¹⁵, the Supreme Court emphasised over the mutuality of obligations being one of the crucial factors in determination of an employer-employee relationship. The test evaluates whether there is an existence or absence of an obligation on part of the parties involved in an arrangement. In this context, the Supreme Court in Workmen v. State of T.N. verdict¹⁶ relied upon the emphasis placed on the test in Ram Singh case¹⁷. Considering the facts of the case, the Court held that the absence of reciprocal obligations on part of both the society and workers was one of the major factors indicating that there existed no employer-employee relationship.¹⁸

In this context, the BCCI has the sole authority to choose the cricketers for representing the Indian Cricket Team.¹⁹ They have an obligation to arrange, share, control and regulate schedules for various international and domestic cricket series and tournaments.²⁰ BCCI is further obligated to arrange for all the associated operational requirements, and make sure that a suitable environment is provided to the cricketers to represent Indian Cricket Team.²¹ Additionally, BCCI is also obligated to offer distinct pay grades to the cricketers, predominantly based on an international standard, further pointing towards an organised arrangement.²² Most importantly, the BCCI aims to promote and protect the players, who it considers to be the “primary agents of the game”.²³ In essence, the contracted cricketers depend on the BCCI for the availability of the abovementioned aspects.

Similarly, the contracted cricketers are mandated to be available for matches scheduled by the BCCI.²⁴ The cricketers have no autonomy in refusing to be available for a particular match when called upon to represent the cricket team²⁵ and are mandated to comply with the code of conduct which is backed by sanctions such as fines and penalties among others.²⁶ This includes complying with the Anti-Corruption Code for Participants, 2019,²⁷ failure of which may lead to life-long ban.²⁸ Furthermore, the cricketers are generally required to give precedence to their obligations for the Indian Cricket Team as opposed to their domestic commitments.²⁹ Therefore, there are certain obligations on part of both BCCI and cricketers which are non-negotiable and continuous in nature.

(C) Integrality, integration and organisation test

In Hussainbhai v. Alath Factory Thezhilali Union verdict³⁰, Supreme Court established that a contract of service exists in case an individual performs a work which is integral to the establishment for which he/she is working. In this instance, it is evident that the contracted cricketers perform an integral role in the functioning of the BCCI. According to the objects mentioned in their Constitution³¹, the BCCI aims to control and enhance the standards of cricket in India, and provide measures for the development of the same.³²

In connection with the same, the Supreme Court in Ram Singh case relied on the integration test according to which a person is an employee of an organisation if he/she is “fully integrated into the employer’s concern or remained apart from and independent of it”.³³ Since the selected cricketers have central contracts with the BCCI, they are significantly connected to the systematic structure of the BCCI as an organisation.³⁴ By virtue of the same, they are not allowed to be completely independent since it is evident that they cannot participate in international and domestic leagues unless the participation has received the approval by BCCI.³⁵

Furthermore, in Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments verdict³⁶, the Supreme Court referred to the verdict handed out in Bank Voor Handel En Scheepvaart N.V. v. Slatford³⁷, wherein Lord Denning stated that the test of being a servant is in essence a question regarding whether the person is part and parcel of the organisation.³⁸ The sport of cricket cannot be played without cricketers and therefore, they are the most significant and integral part of the foremost objective of BCCI i.e. development and promotion of cricket across India.³⁹ They form an integral component of the BCCI’s everyday functioning. This argument is further buttressed by the fact that the cricketers are unequivocally crucial for BCCI in their objective of generating better revenue or income.⁴⁰ Cricket matches are followed by people in significant numbers due to the massive popularity of certain players and the sport as a whole, for which the cricketers serve as the quintessential ambassadors.

(D) Economic reality test and economic dependency test

In Silver Jubilee verdict⁴¹, the Supreme Court referred to United States v. Silk⁴². The unanimous verdict held that the actual question which needs to be addressed is whether the men were employees “as a matter of economic reality”.⁴³ Considering the entire gamut of the economic relationship, it is evident that the BCCI exercises a significant degree of control over the cricketers as discussed previously. The cricketers do indeed have opportunities for having profits or loss depending on their inclusion or exclusion from the annual contracts. There is an element of permanency in relationships as well due to the annual contracts, requiring commitment of contracted cricketers for a significant amount of time as and when required.

In Hussainbhai case⁴⁴, the Supreme Court mentioned the economic dependency test, holding it to be a crucial factor while determining the existence of an employer-employee relationship, more specifically in cases where the employer can employ control over the employment and subsistence of the worker. It is important to note that while a cricketer may have alternative streams of income including contracts with IPL franchises and commercial endorsements, retainers and match fees from the matches they play for Indian Cricket Team constitute a crucial and majority portion of the income of a considerable number of the BCCI contracted players, especially those players who have just started their Indian Cricket Team careers. This is a significant factor, highlighting the economic dependence of these cricketers on BCCI.

(E) Integrated/multifactorial approach

In Balwant Rai Saluja v. Air India Ltd. verdict⁴⁵, the Supreme Court borrowed from the integrated approach which was relied upon in Montreal v. Montreal Locomotive Works Ltd.⁴⁶ and Workmen case⁴⁷, both of which stressed upon the importance of employing a multifactorial approach in determination of an employer-employee relationship. The factors highlighted by Balwant Rai verdict⁴⁸ indicated that if an authority, with respect to an individual, has the power to appoint, pay remuneration, dismiss, take disciplinary action and exercise a significant degree of control and supervision along with the factor of continuity in service of the given agreement, the particular authority would be considered to be an employer of the individual concerned. As established in the multi-pronged analysis above, all the factors of the integrated approach are fulfilled.

Part III: Comparative analysis

In UK, football players are considered to be the employees of the club. In William Hall v. London Lions Basketball Clubs UK Ltd.⁴⁹, whether a professional basketball player was an employee or not, was held to be never in dispute by the Court. This case further reinforced the principle of professional team athletes being an employee. In the Australian case of Buckley v. Tutty⁵⁰, the Court categorically held the professional footballer was indeed an employee of the club. In Colombia, the Colombian Football Association unequivocally accepted the status of professional footballers as workers, and validated their “right to associate in defence of their interests”.⁵¹ This principle of professional athletes being recognised as employees can be observed across jurisdictions.

As per the EU law, the focus is on the overall situation of a professional which includes the work environment in which they perform their obligations, indicating that the term “worker” should not be narrowly construed. A worker is considered to be a “person who performs services for, and under the direction of another in return for remuneration”.⁵² Further, in countries including Croatia and Italy, various sports legislations recognise elite athletes who are athletes selected for participation “in an individual or team sport that is included in the Olympic Games programme” as employees.⁵³

In J. Varnish v. British Cycling Federation T/A British Cycling verdict⁵⁴, it was held that there was an absence of reciprocal obligations in the arrangement concerned. The Tribunal held that irrespective of the significant control exercised by British Cycling over Varnish, there was no obligation to perform service in personal capacity for the wages being provided to the cyclist and held that there was no existence of an employer-employee relation. Furthermore, in Vanessa Sahinovich case⁵⁵, it was held that the swimmer was economically dependent on the National Olympic Committee of Austria and that she was also obligated to carry out personal work with restricted freedom regarding the workplace and the working hours. It further held that these factors, along with the fact that Vanessa was bound by the instructions provided by Austrian no objection certificate (NOC) were sufficient to establish an employer-employee relationship.⁵⁶

As per International Labour Organisation (ILO), the employment relationship arises when a person performs a task in exchange of remuneration, in a condition guided by the national law and practice.⁵⁷ One of the key features to differentiate between an employee and independent contractor is “subordination or dependency”, which can be taken complementary and supplementary to each other.⁵⁸ Furthermore, as per the ILO Recommendation 206 (No. 198),⁵⁹ the determination of the employee status should be based on ”primarily by the facts relating to the performance of work and remuneration of the worker” not on ”how the relationship is characterised in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties”. Additionally, the ILO collectively lists ”athletes and sports players” as an occupation, as laid down in its Standard Classification of Occupations⁶⁰, it does so by recognising certain tasks as job such as undertaking training practice and sessions to maintain expertise at a sport, competing in sports event and adhering to the laid down rules and regulations of a specific sports among others.

Concluding reflections

The issue of the existence of an employer-employee relationship has arisen in a number of countries in this context. In 2002, the New Zealand cricket addressed the issue, holding the cricketers of New Zealand Cricket Team as independent contractors.⁶¹ Furthermore, in 2014, this issue was also raised with concerning cricketers of West Indies Cricket Team where the status quo with respect to the independent contractor status of cricketers was retained.⁶² The Indian situation in this context is different due to a variety of factors. For instance, while the cricketers of New Zealand and West Indies are allowed to participate in international leagues, Indian cricketers contracted with BCCI cannot participate in international and domestic leagues without BCCI’s approval.⁶³

Further, in Australia, the rights, obligations and the conditions specified in the contract between parties concerned along with conduct of the parties after the contract is finalised are considered as the distinguishing element in determination of a particular arrangement. Australian jurisprudence has historically leaned towards holding an employer-employee relationship in cases of team sports, including holding that the players participating in their Football and Rugby leagues are in essence employees of their clubs.⁶⁴ Following from Buckley verdict⁶⁵ and cricket being by its nature a team sport, the logical conclusion is that cricketers contracted with the Australian Cricket Association are in essence employees. Considering that all the other factors already discussed above are present, with specific emphasis on a similar if not greater extent of control exercised by BCCI in the Indian context, it is contended that the BCCI contracted cricketers are employees of the BCCI.

Considering the far-reaching consequences and uncertainty with respect to the actual status of Indian Cricket Team cricketers present for the overall legal framework relating to labour and sports law, it is an indispensable necessity to address the same once and for all.