SLC’s response to ICC’s Head of Legal

Sri Lankan Cricket board (SLC), as we know now, along with PCB, had abstained from the voting at the ICC to pass the proposals revamping the ICC’s governance structure and revenue distribution model.

The SLC President had written a letter to the ICC’s head of legal, Iain Higgins asking for explanations before the vote, and they received a response (none too satisfactory, I’d think) from Mr. Higgins. So, they followed that with another missive. Here is the full version of that. Over at “A Cricketing View”, Kartikeya has published the initial letter to ICC’s head of legal from SLC and the response they received.

__________________________________________

7th February 2014

 

Mr. Iain Higgins

Head of Legal

International Cricket Council

Dubai Sports City, Emirates Road

Dubai

United Arab Emirates

 

Dear Mr. Higgins,

I refer to your email of the 6th instant and wish to place on record that your views are contrary to the legal advice that we have received in respect of these purported ‘Resolutions’. It is our view that legal barriers exist, which effectively prevent these purported Resolutions from even being placed before the Directors for a vote at this meeting.

We must also place on record our concern of the fact that, in relation to your response to Item (III) you have stated that “We will be clarifying these specific areas after the Board has considered them….”. This implies that you also are intrinsically involved in the very process to which we have raised objection, and consequently would not be in a position to view the matter impartially. We are accordingly, albeit reluctantly, compelled to consider your views in this light.

We note that as a professional you are bound by your code of ethics to act and provide your views in an impartial manner, and trust you are mindful that you must discharge this onerous responsibility in the best interests of the ICC and its constituent Members. We will not do you the disservice of drawing your notice to the repercussions to you of a failure to act in such manner, save to state that SLC finds it quite telling that you have continued to defend these purported Resolutions despite having, at the same time, conceded certain of the points raised by us.

In the context of your reply we also find it necessary to point out our observation of the fact that even previous communications from you give rise to a possible impression in the minds of the Members that you yourself are a proponent of the purported Regulations, and are thus unable to discharge your duties of providing impartial legal advice to the ICC and its Members on the legality thereof. We draw your specific notice to the email communication from you to the Board of Directors dated 28th January 2014 wherein you have circulated what you term “the document containing the principles that were unanimously supported this afternoon in respect of the ICC future structure”. There had been absolutely no unanimity in the support of these proposals, a fact which is amply evident from what transpired at the meetings, correspondence leading upto this point and reports from the press. The fact that you, acting in your trusted capacity as Head of Legal of the ICC would inform its Directors that these principles received ‘unanimous support’, despite opposition by several Members  is conduct that is, to say the least, not in keeping with the statute of the office that you hold.

In addition to what we have already placed on record, I would also wish to point out the following matters which arise out of certain aspects of your response.

Item (I)

In respect of Item (I) I note you have stated that in your view the purported Resolutions are not in conflict with the Objects of the ICC. I’m sure you would understand my surprise that you, as a professional who is ethically bound to provide unbiased advice does not view the removal of a substantial amount of funding from 70% of the Full Members and all of the Associate Members, and instead vesting it in 3 Full Members is in conflict with the Objectives of ‘developing and promoting cricket world-wide’.

Item (II)

I note your agreement that the purported Resolutions fall outside the scope of the Terms of Reference of the F&CA Committee, and consequently I trust you would therefore concede that these proposals are ultra views the authority of the F&CA.

As you are well aware, these proposals have from the very inception always emanated as proposals from the F&CA Commercial Rights Working Group. You yourself have in fact, by email of the 31st January 2014 referred to these proposals as “revised Resolutions” from the “working group”.

SLC has upto date not received any formal notice that the said purported Resolutions are being tabled by 3 Full Members. In fact, in terms of the only documentation we have received thus far (and that too from you in your capacity as Head of Legal) these purported Resolutions are proposals of an F&CA working group. You would be aware that even at the January 2014 ICC Board Meeting these very proposals (prior to revision) were placed before the Board as “Working Group Proposals” of the F&CA Commercial Rights Working Group.

We are also somewhat at a loss to understand how you claim that these purported Resolutions are being tabled by 3 Full Members, when we ourselves are unaware of that fact, despite being a Full Member ourselves.

In this context, the fact that you have sought to justify the purported Resolutions on the basis that they are now being tabled by 3 Full Members is somewhat mystifying to us.

We are also compelled to join issue with your statement to the effect that “the terms of reference for the Board’s sub-committee do not grant exclusivity to those committees to consider matters within their scope”. Is it your considered legal opinion that a sub-committee can exceed their delegated power in this manner? If so, what is the purpose of terms of reference? Is it your position that notwithstanding the requirement of Terms of Reference for Board sub-committees in the rules of governance of the ICC, and notwithstanding the F&CA having exceeded such mandate, that the purported Resolutions can yet be tabled?

Items (III), (IV) & (VI)

I note your contention that the constitutional provisions do not require either proper notice to the Board, or disclosure of the specifics of any constitutional changes. SLC does not however accept that meetings of this nature can be summoned without either an agenda, or proper notice of the constitutional amendments for which Board approval is sought.

Item (V)

In your response to item (V) you have expressed your preliminary view of the matter and have said you will look further into the matter. I look forward to receiving your views in this regard prior to the Meeting. However, I must confess I am somewhat taken aback that threshold matters such as these had not been considered by you before you saw it fit to circulate these proposals, and view this to mean that the legal team of ICC has in fact not considered the constitutionality of the proposals before these queries were raised.

Yours sincerely,

Jayantha Dharmadasa

Jayantha  Dharmadasa

President
Sri Lanka Cricket
35, maitland Place, Colombo 07,
Sri Lanka.

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