BCCI — The Question of State, and the Broadcasting Rights

Introduction

The Board of Control for Cricket in India (BCCI) is registered as a society under the Tamil Nadu Societies Registration Act, 1975. Legally, it is not a government institution but a private body, occupying a unique position in the Indian society. It regulates and controls virtually every aspect of cricket in the country. Its responsibilities range from organising domestic tournaments and supervising State cricket associations to selecting players for the Indian national team. It also manages the Indian Premier League (IPL), one of the world’s most lucrative sporting competitions. It negotiates broadcasting and media rights worth billions of dollars.

What makes BCCI different is that its authority does not come from any statute or government grant. Instead, its power stems from the fact that it is universally recognised as the governing body of cricket in India. As a result, players, teams, broadcasters, sponsors, and fans have little choice but to operate through the framework established by BCCI.

This combination of private legal status and immense public influence has given rise to debate: Should the BCCI be treated as part of the “State” despite being formally organised as a private society?

This question is central to the discussion in this article. The answer determines the extent to which legal mechanisms, particularly competition law and doctrines such as the essential facilities doctrine, can be used to scrutinise and regulate BCCI’s exclusive broadcasting arrangements. If BCCI is viewed merely as a private organisation, its conduct is largely governed by ordinary commercial and competition law. If, however, its public functions are given greater legal significance, stronger forms of oversight may become justified.

Is BCCI “State” under the Constitution?

Article 12 of the Constitution of India defines what amounts to “the State” for the purpose of enforcing fundamental rights. If a body is the “State”, then citizens can take it directly to the Supreme Court under Article 32 for violating their fundamental rights. The constitutional status of the BCCI came directly before the Supreme Court in Zee Telefilms Ltd. v. Union of India¹. The dispute arose when the BCCI cancelled a multi-million-dollar television broadcasting contract that had already been awarded to Zee Telefilms and instead granted the rights to another bidder. Zee claimed that the decision was arbitrary and unfair and sought to challenge it as a violation of its fundamental right to equality under Article 14 of the Constitution.

However, Zee faced an important legal obstacle. Fundamental rights claims under Article 14 can generally be brought only against the “State” or authorities that fall within Article 12 of the Constitution. As a result, Zee first had to establish that BCCI should be treated as a State entity.

Zee’s argument was based on the unique position occupied by the BCCI in Indian cricket. It contended that BCCI enjoyed complete control over the sport in India, selected the players who represented the country in international competitions, and exercised powers that affected millions of people. Zee also pointed to the support that BCCI received from the government, including security arrangements for matches, regulatory clearances for international tours, and various tax-related benefits. According to Zee, an organisation with such extensive authority and influence over a matter of national importance should not be permitted to act arbitrarily simply because it was formally registered as a private society.

The Supreme Court, however, rejected this argument by a narrow majority of 3:2. The majority held that BCCI’s dominant position in Indian cricket did not originate from any statute, government delegation, or legal grant of authority. Rather, its influence had developed over time because it was the first and most organised body to govern the sport in India.

The Court also found that the support provided by the government, such as security arrangements, travel clearances, and favourable tax treatment, did not amount to governmental control over BCCI’s activities. These were viewed as forms of assistance commonly extended to private organisations and were insufficient to convert BCCI into a State entity. Since BCCI was neither created by statute nor subject to substantial governmental control, and because it remained financially and administratively independent, the majority concluded that it did not fall within the definition of the “State” under Article 12. Consequently, the BCCI could not be sued directly before the Supreme Court under Article 32 for alleged violations of fundamental rights.

Justice S.B. Sinha², in a powerful dissent, adopted a different approach. Rather than focusing on BCCI’s formal legal status, he emphasised the nature of the functions it performed. In his view, the BCCI effectively regulated a sport of immense national significance, selected the Indian national team, and exercised authority without any meaningful competition. As a result, it was performing a public function that closely resembled that of a governmental regulator.

Justice Sinha therefore argued that BCCI should be subject to constitutional standards of fairness and accountability, regardless of its private legal form. Although this view did not prevail in the case of Zee Telefilms in 2005, its emphasis on the public nature of BCCI’s functions would later influence the Supreme Court’s reasoning in subsequent cases and continue to shape debates about BCCI’s legal status.

BCCI — “Not State,” But still accountable

In BCCI v. Cricket Assn. of Bihar³, the Supreme Court revisited the question of whether BCCI could be treated as a “State” under Article 12 of the Constitution. This case arose from the 2013 IPL spot-fixing scandal, where the Court had to decide if BCCI’s internal probe committee and disciplinary actions could be reviewed by courts.

The Court stayed consistent with its earlier ruling in the case of Zee Telefilms, reaffirming that BCCI is not “State” under Article 12. However, it added an important qualification: even private bodies, if they perform functions of public importance such as selecting the national cricket team, must act fairly and can be challenged before High Courts under Article 226. They cannot be subjected to is direct writ jurisdiction under Article 32 in the Supreme Court.

In effect, the Indian law has adopted a middle path:

1. BCCI remains a private body for constitutional classification.

2. Yet, because cricket is a matter of national importance, BCCI’s decisions including how it structures and sells broadcasting rights are open to judicial scrutiny.

This means BCCI cannot behave as though cricket is purely its private business; its actions carry a public character and must meet standards of fairness and transparency.

Broadcasting and competition law

This constitutional debate explains why competition law has become the more effective way to challenge BCCI’s exclusive broadcasting arrangements. Since BCCI is not a “State” as per Zee Telefilms, parties cannot argue that exclusive broadcast deals violate fundamental rights.

They can argue that BCCI, as a dominant commercial player has abused its dominance under the Competition Act, 2002, which applies to both private and public bodies. This was exactly the case in Surinder Singh Barmi v. BCCI⁴, where the Competition Commission of India (CCI) held that BCCI’s regulatory control and commercial self-interest in the IPL, including the grant of exclusive ten-year media rights to a single broadcaster, amounted to an abuse of dominant position.

This raised a further question: Could the essential facilities doctrine (EFD) be used to argue that BCCI’s control over live cricket broadcast content is now so complete that rival broadcasters are effectively locked out of the market?

What Is the essential facilities doctrine?

Competition law does not penalise a company merely for being large or successful. Its concern arises when a company controls an indispensable resource and uses that control to exclude smaller rivals from the market. The EFD addresses this situation.

The doctrine originated in United States law, in United States v. Terminal Railroad Assn. of St. Louis⁵ a company that controls a facility that its competitors cannot realistically replicate or obtain elsewhere may, in certain circumstances, be required to provide access on fair and reasonable terms. The same is understood on four elements:

1. Control.— A company controls a facility or resource that is essential for effective competition.

2. Indispensability.— Competitors cannot reasonably duplicate, build, or obtain a viable substitute for that facility.

3. Exclusion.— Refusing access would materially restrict or eliminate competition in a related market.

4. Feasible access.— Access can be provided on fair terms without undue technical or operational difficulty.

India’s take on the doctrine

India’s Competition Act, 2002 does not state the words “essential facilities doctrine”. But Section 4(2)(c) comes close, prohibiting a dominant company from engaging in practices that result in “denial of market access in any manner”.

In India, the doctrine was first discussed in Arshiya Rail Infrastructure Ltd. v. Ministry of Railways⁶. In this case private container-train operators argued that rail terminals built on government land, and controlled by the Container Corporation of India, were essential facilities they needed access to. The CCI laid down a four-part test:

1. could access be given without technical difficulty;

2. could a rival realistically build the same facility within a reasonable time;

3. would refusing access seriously and lastingly damage competition; and

4. could access be granted on fair terms?

On the facts, the Commission found that rival operators could, with enough investment, build their own terminals, so the doctrine did not apply.

A more successful application came the following year in Shamsher Kataria v. Honda Siel Cars India Ltd.⁷ In this case, car owners complained that manufacturers refused to sell spare parts, diagnostic tools, and repair manuals to independent garages, forcing customers back to expensive authorised dealers. The CCI held that these parts and manuals were essential facilities for independent repairers. Also, there was simply no realistic way for them to copy a manufacturer’s proprietary components. This case is a leading example in showing Indian law is willing to apply essential-facility reasoning to something a private company built and owns not only to government-built roads, railways, and terminals.

Applying the doctrine to cricket broadcast rights

Live cricket has one feature that makes it a strong fit for essential-facility treatment: once a match ends, it cannot be recreated. A rival broadcaster cannot produce its own version of yesterday’s cricket match. The footage either belongs to the licensed broadcaster, or it simply does not exist for anyone else. This is quite different from the rail terminals in the case of Arshiya Rail⁸, which a well-funded rival could rebuild.

Applying the three-part framework to today’s cricket broadcasting market suggests that exclusive control over cricket rights can raise competition concerns. Such as:

1. Indispensability.— Cricket broadcasting rights are effectively irreplaceable. A rival broadcaster or streaming platform cannot obtain a substitute product at any price because live cricket content is unique and cannot be replicated once the rights have been granted to another operator. Access to premium cricket tournaments is therefore often essential for competing effectively in sports broadcasting and streaming markets.

2. Lack of objective justification.— A rights-holder may argue that exclusivity enables it to maximise revenue from the sale of media rights. However, the desire to earn higher profits is merely an ordinary commercial objective and does not amount to the kind of independent, objective justification that competition law has traditionally recognised. By contrast, justifications such as genuine capacity constraints or technical limitations may excuse a refusal to provide access. Profit maximisation alone generally cannot.

3. Foreclosure of competition.— CCI’s approach to the 2024 merger involving Reliance Industries, Viacom18, and Disney Star’s India business reinforces this concern. The CCI approved the transaction only after the parties agreed to divest certain television channels and commit not to bundle advertising rates across their combined cricket rights. These remedies indicate that the regulator was concerned that an unconditional merger could have foreclosed competition in the broadcasting and advertising markets associated with cricket content.

Taken together, these factors suggest that exclusive control over major cricket broadcasting rights may have the potential to restrict market access and weaken competition.

Content is not the same as infrastructure

The counter arguments to this claim also deserved equal consideration:

1. Firstly, the doctrine has traditionally been applied to assets such as railway bridges, ports, terminals, and electricity grids. These are often controlled because of historical advantages, regulatory privileges, or natural monopoly conditions. Cricket broadcasting rights are different. The BCCI organises the matches, and broadcasters such as Disney Star and Viacom18 acquire those rights through open and competitive bidding. Requiring a broadcaster to share rights that it fairly got through substantial investment seems inconsistent with the doctrine’s original purpose. The doctrine’s main objective is to prevent the abuse of unearned advantages rather than to penalise successful competition.

2. Secondly, exclusivity may result from competition rather than restrict it. Sports broadcasting rights are given through transparent tender processes. As in the case of Barmi⁹, in which any broadcaster with sufficient sources may bid. Taking this into consideration, exclusive rights are not a bottleneck in competition, which the rivals cannot replicate. It is an ordinary result of a competitive auction for an asset. Where all market participants have a fair opportunity to compete, exclusivity may therefore be understood as the legitimate reward for a successful bid, rather than as a barrier to competition.

These arguments are persuasive and deserve serious consideration. However, Kataria¹⁰ shows that Indian competition law is willing to apply essential-facility reasoning beyond traditional infrastructure. This includes privately created assets and intellectual property rights, where genuine indispensability can be established on the facts.

The key issue, therefore, is not whether cricket broadcasting rights qualify as “infrastructure” in the traditional sense. Rather, it is whether downstream markets such as television, streaming services, and sports advertising remain genuinely competitive when a single entity controls the supply of a unique and non-substitutable product. If such control allows the rights holder to exclude rivals, raise barriers to entry, or reduce competition in those markets, competition law concerns may arise regardless of how lawfully the rights were acquired in the first place.

Conclusion

The debates surrounding BCCI’s constitutional status and its broadcasting practices ultimately reflect the same underlying tension. In practice, BCCI functions as the regulator of cricket in India and exercises enormous influence over a sport of national significance. Yet, in legal terms, it remains a private society that is primarily governed by ordinary commercial and competition law rather than constitutional obligations.

The Supreme Court’s decision in the case of Zee Telefilms was justified in exercising caution when interpreting the term “State” under the Constitution. Expanding that definition to include every powerful private monopoly could expose a vast range of private organisations to constitutional litigation. At the same time, the Court’s approach in the Cricket Assn. of Bihar case¹¹ correctly recognised that BCCI cannot rely solely on its private legal status when its decisions and activities have nationwide consequences.

A similar balance can be achieved in the context of broadcasting rights through the essential facilities doctrine. The doctrine need not be applied in its strictest form, which is traditionally limited to indispensable infrastructure. Equally, it should not be rejected merely because broadcasting rights were obtained through a fair and competitive bidding process.

A practical middle path would involve two measures. First, CCI could issue specific guidance under Section 64(1), Competition Act on how dominance and exclusivity should be assessed in sports broadcasting markets. This would provide greater certainty than the current case-by-case approach. Second, where competition concerns arise, the preferred remedy should be mandated non-exclusive digital sub-licensing rather than more intrusive interventions. Such a framework would allow competing platforms access to a portion of the content on fair terms while preserving the commercial benefits earned by the original rights-holder.

This approach strikes a balance between competing interests. It protects the legitimate investments made by broadcasters in acquiring valuable sports rights while also promoting wider access, competition, and consumer choice in the market for India’s most important sporting content.