TEAM CODE: 002

IN THE SUPREME COURT OF BOHEMIA

CIVIL APPEAL No. 123/2016

Under §53T of The Competition Act, 2002

IN THE JOINT MATTER OF

BKL & KFB……………………………………………………........…APPELLANT

VERSUS
X Sports & CCB…..……..................................................................RESPONDENTS

Rodidas…………....................................................................................APPELLANT
VERSUS
BKL, KFB, Cougar & CCB…….….…….…….…….….................RESPONDENTS

BKL, KFB & Media Bohemia……………………….………………APPELLANTS

VERSUS
Luminous Sports & CCB .………...................................................RESPONDENTS

Bootube………………………………………………………………...APPELLANT
VERSUS
Luminous Sports & CCB……………..............................................RESPONDENTS

CA Application:

X Sports…………..................................................................................APPELLANT
VERSUS
BKL, KFB & CCB…………………………..……………….........RESPONDENTS

MEMORIAL ON BEHALF OF BKL, KFB, Cougar , BooTube and Media

Bohemia
COUNSEL APPEARING ON BEHALF OF BKL, KFB, Cougar , BooTube and
Media Bohemia
 TABLE OF CONTENTS

INDEX OF AUTHORITIES………………………………………........……………..….…..iii-vi

LIST OF ABBREVIATIONS……………………………………………..….……...…….……vii

STATEMENT OF JURISDICTION............................................................................................viii

STATEMENT OF FACTS…...................................................................................................ix-xii

ISSUES FOR CONSIDERATION........................................................................................xiii-xiv

1. WHETHER KFB AND BKL ARE ENGAGING IN PRACTICES RESULTING IN

CONTRAVENTION OF §4(2)(C) AND SECTION §3(4) OF THE COMPETITION ACT?

2. WHETHER THERE HAS BEEN ABUSE OF DOMINANCE ON PART OF KFB AND BKL

IN ITS MANNER OF ASSIGNMENT OF MERCHANDISING CONTRACT AND THE

AGREEMENT BETWEEN BKL AND COUGAR IS ANTI-COMPETITIVE?

3. WHETHER BKL AND KFB ARE LIABLE FOR ABUSE OF DOMINANCE BY GIVING

BROADCASTING RIGHTS FOR BKL TO MEDIA BOHEMIA?

4. WHETHER LUMINOUS SPORTS IS LIABLE FOR ABUSE OF DOMINANCE BY

LEVERGING ITS POSITION IN MARKET FOR TV BROADCAST TO ENTER THE

MARKET OF INTERNET BROADCAST IN BROADCASTING BKL MATCHES?

5. WHETHER THE APPLICATION FOR COMPENSATION BEFORE COMPAT SHOULD

BE KEPT AT ABEYANCE UNTIL THIS HON’BLE COURT FINALLY DECIDES THE

APPEAL?

i
SMMARY OF ARGUMENTS..............................................................................................xv-xvi
WRITTEN SUBMISSIONS..……………................................................................................1-28

PRAYER…………………………………………………….….,,………….…………………...29

ii
 INDEX OF AUTHORITIES

LIST OF CASES

S. No Case Title Page No.

1. AB Volvo vs. Erik Veng (UK) Ltd., [1988] EUECJ C-238/87 24
2. Atos Worldline India Pvt. Ltd. vs. Verifone India Sales Pvt. Ltd, Case 24
No. 56 of 2012
3. Ballarpur Industries Ltd. vs Sinarmas And Anr., [1996] 87 Comp Cas 26
159
4. BBI/Boosey & Hawkes, Case IV/32.279, OJ 1987 L 286/36 23
5. BCCI vs. Prasar Bharati Broadcasting, 2015(148)DRJ 342 15
5. Boston Pizza International Inc. vs. 395047 B.C. Ltd., 2008 B.C.S.C. 12
1016
6. BP vs. Commission, [1978] C.J. Comm. E. Rec. 1513 8
7. Commercial Solvents vs. Commission, (Cases 7/73) [1974] 1 CMLR 8,22,23
309
8. Darshan Singh vs. State Of Punjab, (1953) SCR 319 28
9. D.G. (I &R) vs. Sahyadri Motors Agencies & Mahindra & Mahindra 26
Ltd., (1997) 5 CTJ at 78 (MRTPC)
10. David Meca-Medina and Igor Majcen vs. Commission of the European 4
Communities, [2006] I ECR 6991 (ECJ)
11. Federal Trade Commission vs. Motion Picture Advertising Services 11
Co., 344 U.S. 392, 396
12. Frank Robinson, ‘Renewal of a Franchise – Legal Considerations’, 12
Ontario Bar Association (July, 2010)
13. Greig vs. Insole, [1978] 1 WLR 302 3
14. Hilti AG vs. Commission, [1991] ECR II-1439 24
15. HT Media Limited vs. Super Cassettes Industries LTD, Case No. 40/ 11 22

iii
16. Hugin vs. Commission, [1979] ECR 1869 24
17. MCX Stock Exchange Ltd. vs. National Stock Exchange of India Ltd., 25
C.A. No. 01/2014 in Appeal No. 15/2011
18. Meco Trovics Pvt Ltd. Compensation Application No. 1704 of 1987, 26
decided on 30-10-1991
19. Motosykletistiki Omospondia Ellados NPID (MOTOE) vs. Elliniko 2
Dimosio, Case No: C-49/07
20. Organo Chemical Industries vs. UOI, (1979) 4 SCC 573 28
21. Pragati Construction Company vs. Ottis Elevators, (1992) CTJ at 307 26
(MRTPC)
22. Public Interest Litigation vs. UOI, 2012 (3) SCC 1 16,17
23. Reliance Natural Resources Ltd vs. Reliance Industries Ltd., 2010 (7) 16
SCC 1
24. Renault vs. Aqueducs Automobiles, SARL ECR (1997) I-967 24
25. Secretary, Ministry of Information and Broadcasting, Government of 15,16
India and Others v. Cricket Association of Bengal and Others, 1995
(2) SCC 161
26. Sh. Dhanraj Pillay And Ors. vs M/S Hockey India, CCI Case No. 4,5
70/2011
27. Telemarketing (CBEM) vs. SA Compagine Luxembourgeoise del 23
Telediffusion, 1985 E.C.R. 3261
28. Tetra Pak Rausing SA vs. Commission, T-51/89 [1991] 8
29. U.S. vs. Addyston Pipe & Steel Co., 85 F. 175 U.S. (6th Cir.1898), 211, 13
271, 281
30. United Brands vs. Commission of the European Communities, (Case 22
27/76)
31. United States vs. American Can Co., 87 F. Supp. 18,31 (N.D. Cal. 11
1949)
32. Walrave and Koch, Case 36/74 [1974] ECR 1405 3

iv
 LIST OF BOOKS REFERRED

S. No. Books Referred Page No.

1. S.M. DUGGAR, GUIDE TO COMPETITION LAW, (5thEd. Vol. 1, 26

2010) 1121-1122
2. VINOD DHALL, COMPETITION LAW TODAY: CONCEPTS,
ISSUES AND THE LAW IN PRACTISE, (1st Ed 2010) 66
3. ABIR ROY & JAYANT KUMAR, COMPETITION LAW IN INDIA, 9, 11
(1st Ed 2008), 22
4. LLOYDS, INTRODUCTION TO JURISPRUDENCE, (8th Ed. 2008), 19
396-397
5. RATANLAL & DHIRAJLAL, THE LAW OF TORTS, (26th Ed., 27
2010) 184
6. RICHARD WHISH & DAVID BAILEY,COMPETITION LAW, 24
Oxford University Press(7th Edition 2011) 697-699

LIST OF ONLINE JOURNALS

S. No. Online Journals Page

No.
A. Piszcz, Białystok Law Books 6 Competition Law In Comparative 21
1. Perspective, 69. Available at
https://books.google.co.in/books?id=xFgaHv91rsMC&pg=PA69&lpg=PA69&dq=the
re+are+in+fact+situations+where+seperate+market+arise+which+exist+only+for+s
hort+period&source=bl&ots=jAVYVyqP9U&sig=VOFCB2htbXwUFmifDsnhsE13VHk
&hl=en&sa=X&ved=0ahUKEwinjf2JpanLAhUFbY4KHcCvBc4Q6AEIHzAA#v=onepage
&q=there%20are%20in%20fact%20situations%20where%20seperate%20market%
20arise%20which%20exist%20only%20for%20short%20period&f=false

v
2. European Council Directive 89/552/EEC, (Oct. 1989), (OJ 1989 L 298, 19
p. 23), Art. 3a. Available at
3. France: The Autorité de la concurrence receives Commitments from 24
Nespresso to lift alleged Barriers to Entry for other Coffee Capsule
Manufacturers, European Competition Commission, (2014). Available at
http://ec.europa.eu/competition/ecn/brief/03_2014/fr_nespresso.pdf
4. Roundtable On Refusals To Deal -Note by the European Commission, 21
Directorate For Financial And Enterprise Affairs Competition Committee,
(Oct. 04, 2007). Available at
http://ec.europa.eu/competition/international/multilateral/2007_oct_refusals_
to_deal.pdf
5. U.S. Attorney-General’s National Committee Report, (1955), 144-146. 10
Available at
http://babel.hathitrust.org/cgi/pt?id=umn.31951d02427803y;view=1up;seq=
163
6. Wolf Sauter, Proportionality Analysis and Models of Judicial Review, (1st 5
March 2016), European Law Blog. Available at:
http://europeanlawblog.eu/?p=1833, last seen on 10/12/2014

LEGISLATIONS
1. THE CONSTITUTION OF INDIA, 1950.
2. THE COMPETITION ACT, 2002.
3. THE PRASARBHARATI (BROADCASTING CORPORATION OF INDIA) ACT, 1990.
4. THE SPORT BROADCASTING SIGNALS (MANDATORY SHARING WITH
PRASARBHARTI) ACT, 2007.

vi
 LIST OF ABBREVIATIONS

Abbreviations Full form

¶ Paragraph
& And
Anr. Another
A.I.R. All India Reporter
Art. Article
Assn. Association
BCCI Board of Control for Cricket in India
BOA Bohemian Olympic Association
CCB Competition Commission of Bohemia
Co. Company
COMPAT Competition Appellate Tribunal
Corp. Corporation
Govt. Government
Ed. Edition
HC High Court
Hon’ble Honourable
KFB Kabaddi Federation of Bohemia
KSL Kabaddi Super League
Ltd. Limited
MOYSA Ministry of Youth and Sports Affairs
Ors. Others
p. Page
SAKF South Asian Kabaddi Federation
§ Section
SC Supreme Court
S.C.C. Supreme Court Cases
UoI Union of India
vs. Versus

vii
 STATEMENT OF JURISDICTION

Most Respectfully Showeth:

The Appellants have approached the Hon’ble Supreme Court Of Bohemia under the remedy

provided in §53T of the Competition Act, 2002.

‘§53T Appeal to Supreme Court. —The Central Government or any State Government or the

Commission or any statutory authority or any local authority or any enterprise or any

person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to

the Supreme Court within sixty days from the date of communication of the decision or order

of the Appellate Tribunal to them: Provided that the Supreme Court may, if it is satisfied that

the applicant was prevented by sufficient cause from filing the appeal within the said period,

allow it to be filed after the expiry of the said period of sixty days’.

viii
 STATEMENT OF FACTS

Bohemia is a republic in South Asia, where, MoYSA in order to revive conventional sports

incentivized a number of defunct sports federations like Kabbadi by reducing governmental

regulation of these sporting federations and granted them more autonomy with minimal

interference their administration.

CASE I

1. X Television Network launched – KSL; a professional sporting league based on the franchise

model. The opening season of KSL, organized in November 2014, was a huge success

because of efficient marketing and promotion and participation of a large number of

international players. Following its success, the second season was announced to take place

in November 2015.

2. In August 2015, KFB, a National Federation of Bohemia for Kabaddi and affiliated to BOA

and the SAKF announced its own BKL. At the same time, KFB announced a 15-day training

and fitness camp for national level players for selection in the national team from 15 – 30

November 2015. The dates for this training program coincided with the dates of the 2nd

edition of the KSL and KFB refused to changes these dates.

3. In September 2015, KFB notified a list of sanctioned and unsanctioned events - KSL was not

on the list of sanctioned events. These agreements had clauses regarding disciplinary action

like a termination clause for the players for participating in unsanctioned events, these

regulations were to be effected from November 2015. Due to these, three national players

and five players from the Bohemian junior Kabaddi team terminated their agreements with

KSL.

ix
4. The second season of KSL was not as much of a success as the first. This was attributed to

announcement of a second league, the missing players, as well as a general reduction of

enthusiasm as the novelty of the KSL had worn off.

5. X Sports alleged abuse of dominance by BKL for denial of market access and causing market

foreclosure by entering into exclusive agreements with players and by imposing conditions

on them to not participate in KSL. KFB was held liable for the abuse of dominance. The

same was reiterated by COMPAT.

6. BKL and KFB filed an appeal against the order of COMPAT.

CASE II

1. BKL awarded merchandise contract of all its franchises to Cougar for BKL. The exclusive

merchandising agreement contained an automatic renewal clause for one year at a premium

payment of 20% over the current seasons’ negotiated price.

2. Rodidas, merchandise manufacturer filed an Information before the CCB alleging that the

exclusive supply agreement between BKL and Cougar with the automatic renewal clause is

anti-competitive and resulted in a denial of market access to Cougar’s competitors.

3. CCB held that the said contract violated §3(4) and §4 of the Competition Act.

4. KFB and BKL filed an Appeal before the COMPAT. COMPAT overruled the CCB order.

Roddidas filed an appeal against the same.

CASE III

1. BKL invited global tenders for live telecast of BKL matches. Based on the technical

qualifications and commercial considerations the exclusive broadcasting rights were

awarded to Luminous Sports. Media Bohemia approached SC for granting the broadcasting

x
 rights for BKL as it was the national broadcaster in Bohemia and had the widest reach and

maximum viewership across Bohemia.

2. While the matter was subjudice in SC, BKL awarded the broadcasting rights to Media

Bohemia in addition to Luminous Sports at one third cost.

3. Luminous Sports filed two suits against BKL, one in CCB alleging abuse of dominance by

BKL in unilaterally modifying the agreement with Luminous Sports and granting

preferential treatment to Media Bohemia in awarding television rights.

4. On the basis of DG’s findings, CCB held KFB liable for abusing its dominant position.

Appeal was filed and COMPAT reiterated the order of CCB. BKL and KFB filed an appeal

against the order of COMPAT.

CASE IV

1. BooTube, a online site approached Luminous Sports for the internet broadcasting rights of

the BKL matches. Lumious Sports accepted BooTube's request subject to some terms.

2. BooTube refused these conditions. Luminous Sports advertised that BKL will also be

telecasted on its online platform Luminous.com.

3. BooTube filed an Information against Luminous Sports in CCB.

4. CCB held that Luminous Sports is not Dominant in the market for broadcasting sporting

events. Therefore, it arrived at no conclusion on the allegations of abuse. Bootube filed an

appeal in COMPAT.

5. BooTube’s appeal was dismissed, reiterating holdings of CCB.

CASE V

X Sports filed an Application under §53N of the Competition Act before the COMPAT. The

COMPAT deferred the same until SC’s final order in this regard. X Sports challenged the Order

xi
of the COMPAT to put the compensation application under abeyance before the SC, event after

the conditions under Section 53N had been met.

The SC admitted the civil appeals, and directed that all the related matters be listed for final

hearings together.

xii
 ISSUES FOR CONSIDERATION

1. WHETHER KFB AND BKL ARE ENGAGING IN PRACTICES RESULTING IN

CONTRAVENTION OF §4(2)(C) AND SECTION §3(4) OF THE COMPETITION ACT?

A. KFB is not engaging in practices resulting in contravention of §4(2)(c) and §3(4) of the

Competition Act.

B. Pyramid structure is essential in organisation of sports.

C. Actions taken by KFB are under the legal sanction of the authority assigned to it.

2. WHETHER THERE HAS BEEN ABUSE OF DOMINANCE ON PART OF KFB AND

BKL IN ITS MANNER OF ASSIGNMENT OF MERCHANDISING CONTRACT AND

THE AGREEMENT BETWEEN BKL AND COUGAR IS ANTI-COMPETITIVE?

A. BKL and KFB are not dominant in the relevant market of organization of kabaddi

leagues/events in bohemia.

B. Private-placement of merchandising agreement is justified by its economic efficiency.

C. The agreement is not anti competitive as it encourages the competitive spirit in the

market.

D. The agreement has no anti-competitive aspect within §19 (3)(a)-(c).

E. Economic efficiency outweigh the adverse effects as per §19(3)(d)-(f)

F. Auto renewal clause is an ancillary clause to uphold the main purpose of the contract.

xiii
3. WHETHER BKL AND KFB ARE LIABLE FOR ABUSE OF DOMINANCE BY

GIVING BROADCASTING RIGHTS FOR BKL TO MEDIA BOHEMIA?

A. BKL and KFB are not dominant in the relevant market for broadcasting of kabaddi

events.

B. Broadcasting rights given to media bohemia were in public interest.

C. KFB had a duty to mandatorily share broadcasting signals with Media Bohemia.

4. WHETHER LUMINOUS SPORTS IS LIABLE FOR ABUSE OF DOMINANCE BY

LEVERGING ITS POSITION IN MARKET FOR TV BROADCAST TO ENTER THE

MARKET OF INTERNET BROADCAST IN BROADCASTING BKL MATCHES?

A. Luminous Sports is dominant in the relevant market for broadcasting of BKL matches.

B. Luminous Sports has constructively refused to supply broadcasting rights to Bootube.

C. Luminous Sports has used its dominant position to enter into the market of internet

broadcasting.

5. WHETHER THE APPLICATION FOR COMPENSATION BEFORE COMPAT

SHOULD BE KEPT AT ABEYANCE UNTIL THIS HON’BLE COURT FINALLY

DECIDES THE APPEAL?

A. The appeal is still pending before this hon’ble court thus there is no final finding to this

effect.

B. The true intention and purpose of the provision in question should be taken into account.

xiv
 SUMMARY OF ARGUMENTS

1. WHETHER KFB AND BKL ARE ENGAGING IN PRACTICES RESULTING IN

CONTRAVENTION OF §4(2)(C) AND §3(4) OF THE COMPETITION ACT.

It is humbly submitted that the role of KFB as a regulatory body in furtherance of the

encouragement of Kabaddi Sport in Bohemia does not amount to an abuse of dominant position

within the meaning of §4 of the Competition Act and the agreements signed with the Kabaddi

Players does not contravene §3(4) of the Act.

2. WHETHER THERE ABUSE OF DOMINANCE ON PART OF KFB AND BKL IN

ITS MANNER OF ASSIGNMENT OF MERCHANDISING CONTRACT AND THE

AGREEMENT BETWEEN BKL AND COUGAR IS ANTI-COMPETITIVE?

It is humbly submitted before the Hon’ble Court that the granting of Exclusive Merchandising

Rights to Cougar does not constitute an abuse of dominant position under §4 of the Competition

Act and the agreement between BKL and Cougar is not anti-competitive as per § 3 of the Act but

is rather encouraging the competitive spirit.

3. WHETHER BKL AND KFB ARE LIABLE FOR ABUSE OF DOMINANCE BY

GIVING BROADCASTING RIGHTS FOR BKL TO MEDIA BOHEMIA?

It is humbly submitted before this Hon’ble Court that BKL and KFB are not liable for abuse of

dominance by giving broadcasting rights to Media Bohemia because BKL and KFB are not

dominant in the relevant market for broadcasting of Kabaddi events because of substitutes

available in the market. There cannot be any case for abuse of dominance since broadcasting

xv
rights given to Media Bohemia were in Public interest and KFB had a duty to mandatorily share

broadcasting signals with Media Bohemia.

4. WHETHER LUMINOUS SPORTS IS LIABLE FOR ABUSE OF DOMINANCE BY

LEVERGING ITS POSITION IN MARKET FOR TV BROADCAST TO ENTER

THE MARKET OF INTERNET BROADCAST IN BROADCASTING BKL

MATCHES?

It is humbly submitted before this Hon’ble Court that Luminous Sports is liable for abuse of

dominance by leveraging its position in the market for TV broadcast to enter the market of

internet market in broadcasting of BKL matches because Luminous is dominant in the relevant

market for broadcasting of BKL matches as it had the exclusive right to sub license the right for

broadcasting rights of BKL to any medium. Being dominant, it has constructively refused to

supply broadcasting rights to Bootube and has used its dominant position to enter into the market

of internet broadcasting.

5. WHETHER THE APPLICATION FOR COMPENSATION BEFORE COMPAT

SHOULD BE KEPT AT ABEYANCE UNTIL THIS HON’BLE COURT FINALLY

DECIDES THE APPEAL?

It is humbly submitted before this Hon’ble Court that COMPAT was right in deferring the

Compensation Application so filed by X sports because the appeal is still pending before this

Hon’ble Court thus there is no final finding to this effect. Any grant of compensation in a matter

which is sub judice would result in the present proceedings becoming infructuous.

xvi
 WRITTEN SUBMISSIONS

1. WHETHER KFB AND BKL ARE ENGAGING IN PRACTICES RESULTING IN

CONTRAVENTION OF §4(2)(C) AND §3(4) OF THE COMPETITION ACT.

1.1. It is submitted that there is no of abuse of dominance on part of KFB and BKL in the

relevant market of ‘Organization of Private Kabaddi Leagues/Events in Bohemia’ because [A]

firstly, KFB is not engaging in practices resulting in contravention of §4(2)(c) and §3(4) of the

Competition Act, 2002 (Hereinafter “Act”). [B] secondly, Pyramid structure is essential in

Organisation of Sports and [C] lastly, Actions taken by KFB are under the legal sanction of the

authority assigned to it.

A. KFB is not engaging in practices resulting in contravention of §4(2)(c) and §3(4)

of the competition Act.

1.2. It is submitted that the act of KFB does not amount to an abuse of dominant position in

the market for ‘Organization of Private Kabaddi Leagues/Events in Bohemia’. The responsibility

of sanctioning kabaddi sports events being held in Bohemia and involving players of our

nationality comes from the unique nature of governance of organized sport and having and

exercising such regulatory authority does not in itself result in abuse of dominant position.

1.3. It is submitted that the objectives underlying the activities of KFB in the given case are

clear, transparent, and entirely proper and legitimate:

(i) To protect the integrity of the sport, and the public's confidence in the ability of its

governing bodies to take any action necessary to safeguard that integrity; and

(ii) To ensure that due priority is given in the sporting calendar to international events (i.e.

events between teams representing different nations), because such events are the lifeblood of the

sport, the driver of the popular interest in the sport that is essential to its long-term health.

1
1.4. It is submitted that KFB has exercised its regulatory role and not an economic function

with respect to selection of the national team and training of sportsmen and other activities

undertaken for the development of the sport.

1.5. It is also submitted that the pyramid structure for regulation and organization of

competitive sports is vital and in line with established sport structure. KFB as the National

Federation of Bohemia, is entrusted with upholding the values enshrined in all members of the

SAKF. The sole purpose and function of sports governing bodies such as KFB is to act as

custodian of the sport in promoting the public interest by organizing, governing and regulating

the sport in the way that will allow it to flourish. It is submitted that regulatory functions should

not be assessed against the yardstick of market forces and therefore, the activities of KFB with

regard to the selection of players in the national teams and the compulsory attendance in training

camps is not to be seen in the light of commercial interests.

B. Pyramid structure is essential in Organisation of Sports

1.6. The most significant merits of pyramid structure are ensuring integrity of the sport,

proper organisation and conduct of sporting calendar, ensuring primacy of national

representative competition, etc. They are enumerated as follows:

i) Pyramid structure helps to ensure that the special requirements of sports, such as uniform

rules and a uniform timetable for competitions, are taken into account.1

ii) Pyramid structure is essential for organization of national championships and the

selection of national athletes and national teams for international competitions.

1
Motosykletistiki Omospondia Ellados NPID (MOTOE) vs. Elliniko Dimosio, Case No: C-49/07.

2
iii) Enforcement of rules that ensure proper organization and prioritisation of international

competition as the international competition is recognized to be an essential and valuable feature

of sport2.

iv) Enforcement of rules that protect integrity of the sport and maintain public confidence.

1.7. Reliance was placed on the case of Greig vs. Insole3 where English HC held that the

game should be properly organised and administered. The High Court approved the prospective

disqualification of the cricket players who would thereafter contract to play with World Series

Cricket or other unapproved private promoters. Thus the system of sanctioned/unsanctioned

events having been borrowed from the field of cricket is vital in ensuring precedence to national

events as compared to private commercially driven events.

C. Actions taken by KFB are under the legal sanction of the authority assigned to it.

1.8. It is submitted that the competition laws do not stop sports federations issuing regulations

required for the 'organisation and proper conduct of competitive sport', so long as any restrictive

side-effects of those regulations are inherent in and proportionate to the achievement of that

objective. Thus it is pertinent to consider the inherence and proportionality of the restrictive

condition to the achievement of sporting objectives before concluding on violation of

competition laws. A private entrepreneur is able to pay more prize money to professional players

as it does not have to share the revenues with the grass roots of the sport.

(a) Lack of any restrictive condition regarding participation of players in unsanctioned

events could lead to the private entrepreneurs free riding on investment made by official bodies

working for development of the sport.

2
Walrave and Koch, Case 36/74 [1974] ECR 1405.
3
Greig vs. Insole, [1978] 1 WLR 302.

3
(b) From the players’ point of view, movement to an unsanctioned event that benefits him

constitutes a breach of duty of solidarity that he owes to the sport.

Thus it is submitted that KFB’s actions in maintaining the primacy of national representative

sport, promotes public interest in the game.

1.9. It is submitted that it is pertinent to apply the inherence proportionality principle in the

present case. The inherence-proportionality test which is currently considered as the appropriate

approach to address the competition issues in sports sector provides that if the alleged restrictive

conditions is inherent to the objectives of the sports federation and the effect of restrictive

condition on economic competition among stakeholders or on free movement of players is

proportionate to legitimate sporting interest perused, the same may not be viewed as anti-

competitive. This test may be applied to all rules, without needing to classify them as purely

sporting or otherwise.

1.10. In the Hockey India case4, CCI, despite recognising the dominance of Hockey India in the

relevant market, refrained from labelling it as abusive. The reasoning, which drew heavily from

the Mecca-Medina5 ruling of the European Court of Justice, was built upon the principle of

“inherence proportionality”, or the Proportionality Test that is regarded as the most seemly

mechanism to weigh anti-competitive practices in the field of sports.

1.11. Reverting back to the agreements that HI had with its players that was reproached on the

ground of conscripting a bunch of restraints on the free movement of players, the CCI‟s

observations that termed the conditions in the covenant as “inherent and proportionate to the

achievement of the objectives” of Hockey India, were founded upon the Proportionality Test –

4
Sh. Dhanraj Pillay And Ors. vs M/S Hockey India, CCI Case No. 70/2011
5
David Meca-Medina and Igor Majcen vs. Commission of the European Communities, [2006] I
ECR 6991 (ECJ).
4
that seeks to strike a balance between competition laws and the integrity of sports by striving to

understand whether a practice has not only exceeded its limits, but also gone beyond the

legitimate goals it was meant to pursue thereby leading to a scenario where, to put it in strict

economic terms, the claimed benefits have exceeded the costs6. Meaning thereby, that abuse of

dominance could be justified only under situations that qualify as inherent and proportionate to

the objectives of the sport that the enterprise promotes. Settling this issue, the CCI held the

conditions to be perfectly legitimate, and accorded them a bubble of cogency that could not be

burst on a per se basis, but solely upon instances of their application in a disproportionate

manner, which was not considered to be the case in the present matter7.

1.12. Thus it submitted that the intent/rationale behind introduction of the guidelines relating to

sanctioned and unsanctioned events needs to be appreciated before arriving at any conclusions.

Factors such as ensuring primacy of national representative competition, deter free riding on the

investments by national associations, maintaining the calendar of activities in a cohesive manner

not cutting across the interests of participating members, preserving the integrity of the sport, etc.

are inherent to the orderly development of the sport, which is the prime objective of the sports

associations.

1.13. These restrictive conditions are inherent and proportionate to the objectives of KFB and

cannot be fouled on per se basis till there is any instance where these are applied in a

disproportionate manner, for which there is no evidence at present and therefore the allegations

of violation of §3(4) and §4(2)(c) cannot be substantiated.

6
Wolf Sauter, Proportionality Analysis and Models of Judicial Review, (1st March 2016),
European Law Blog. Available at: http://europeanlawblog.eu/?p=1833, last seen on 10/12/2014.
7
Supra n.4.

5
2. WHETHER THERE ABUSE OF DOMINANCE ON PART OF KFB AND BKL IN ITS

MANNER OF ASSIGNMENT OF MERCHANDISING CONTRACT AND THE

AGREEMENT BETWEEN BKL AND COUGAR IS ANTI-COMPETITIVE?

2.1. It is submitted that there is no abuse of abuse of dominance on part of KFB and BKL in

its manner of assignment of merchandising contract as [A] firstly, BKL and KFB are not

dominant in the relevant market of Organization of Kabaddi Leagues/Events in Bohemia.[B]

secondly Private-Placement of Merchandising Agreement is justified by its economic efficiency.

[C] thirdly, The agreement is not anti competitive as it encourages the competitive spirit in the

market. [D] fourthly, The agreement has no anti-competitive aspect within §19 (3)(a)-(c) [E]

fifthly, Economic efficiency outweigh the adverse effects as per §19(3)(d)-(f) and [F] Lastly,

Auto renewal clause is an ancillary clause to uphold the main purpose of the contract.

A. BKL and KFB are not dominant in the relevant market of Organization of

Kabaddi Leagues/Events in Bohemia.

(i) Determination of Relevant Market

2.2. As per explanation to §4 of the Act," dominant position means a position of strength,

enjoyed by an enterprise in the relevant market..." The task of defining the relevant market is

essential on the part of Competition Commission in order to inquire if the enterprise is violating

the provisions of §4 of the Act.

Therefore, assessment of dominance is to be preceded by delineation of the correct relevant

market in which dominance of the enterprise under consideration is to be assessed. There are

three components that make a market, viz. the producer on the supply side, the consumer on the

demand side and the underlying product or service. §2(t) of the Act defines ‘relevant product

market’ to mean a market comprising all those products or services which are regarded as

6
interchangeable or substitutable by the consumer, by reason of characteristics of the products or

services, their prices and intended use.

Therefore in the present context the relevant market is to be construed as ‘Organization of

Kabaddi Leagues/Events in Bohemia’.

(ii) No evidence of Abuse of Dominance in the relevant market.

2.3. It is submitted before this Hon’ble court that, undoubtedly the most significant source of

dominance is the regulatory powers of the KFB. KFB as a monopoly in organization of Kabaddi

is axiomatic as it is the de-facto regulator of the game. But the assessment of its dominance in

the market for ‘Organization of Kabaddi Leagues/Events in Bohemia’ needs thorough

examination. It is a well established fact, that KFB is not the only entity which launched a

Kabaddi league in Bohemia. The Kabaddi Super League (promoted by X Sports) was one such

event based on a similar franchise model8. Clearly KFB is not the entity thereby being no scope

for a monopoly.

2.4. With regard to BKL’s dominant position, BKL is just one of the events that KFB

organizes in Bohemia as KFB also organizes and regulates various national contingents of men,

women and juniors for representing Bohemia in various International Events like the Asian

Kabaddi Championship of China9. Moreover with the existence of professional kabaddi leagues

like KSL, BKL cannot hold a dominant position in the relevant market. Rodidas is free to

approach KFB for sponsoring merchandises of various other national teams/contingents of

Bohemia which participate in events throughout the world.

8
Moot Proposition, ¶6 at 2
9
Moot Proposition, ¶9 at 3.

7
2.5. Even if BKL were to be considered dominant, the judgements of Commercial Solvents10

and BP11 clearly show that even undertakings holding dominant positions are allowed to look

after their commercial interests and make profitable decisions. In the case of Tetra Pak I the right

of dominant undertakings to act in their best interest was re-emphasised.12 Moreover it is

submitted that KFB and BKL have developed the sporting event by investing an exorbitant

amount of capital and this justifies their claim to profess their right of free will in making the

contract with Cougar for the merchandising sponsorship of the franchisees in the league.

B. Private-Placement of Merchandising Agreement is justified by its economic

efficiency.

2.6. It is submitted that BKL is a private league with no obligation to invite tenders for each

activity it does. ‘Merchandising Rights’ are to be considered as associate sponsorship rights in

the BKL. Thus the contracts for such associate sponsorship rights do not involve substantial

consideration vis-a-vis, consideration paid for franchise rights or broadcasting rights as the scope

and scale of such contracts would only be restricted to the sponsorship of merchandise and do

not include any other administrative or sub-licensing rights.

2.7. Thus the market for associate sponsorship rights is thinner than the market for

broadcasting or franchising and the cost of tendering and inviting bids would have been a cost

and time intensive process. BKL, being at its nascent stage, requires efficient cost and time

management in order to ensure that the basic objective of reviving Kabaddi as a commercial

10
Commercial Solvents vs. Commission,[1974] C.J. Comm. E. Rec. 223, [1974].
11
BP vs. Commission, [1978] C.J. Comm. E. Rec. 1513.
12
Tetra Pak Rausing SA vs. Commission, T-51/89 [1991].

8
sport in Bohemia is carried out. Thus, it was a prudent decision on part of BKL to award rights

on private placement basis.

2.8. Also, the contracts were of short duration, given the fact that the agreement between BKL

and Cougar was only for the first season13 of the BKL which implies that the market can open up

for other seasons of BKL.

2.9. Therefore it is submitted that in the present case denial of the merchandising agreement

to Rodidas was on reasonable grounds which are covered by the bundle of rights that they have

over the organization of the league. In no manner can their agreement with Cougar be considered

anti-competitive or can their act be construed as abuse of dominance.

C. The agreement between BKL and Cougar encourages the competitive spirit in the

market.

2.10. It is humbly submitted before the Hon’ble Court that the agreement between BKL and

Cougar is not anti-competitive as it encourages the competitive spirit in the market.

The availability of new and improved products constitutes an important source of consumer

welfare.14 In the present case the agreement between the parties is entered keeping in mind the

commercial and efficiency justifications.15. The exception clause of §3(3) of the Act16 provides

for, all the agreements which contribute in improving production, distribution or promotion of

technical or economic progress while allowing consumers a fair share of the resulting benefit.

Hence, it is submitted that such agreements can be allowed to be made.

13
Moot Proposition ¶22, at 5.
14
ABIR ROY & JAYANT KUMAR, COMPETITION LAW IN INDIA, (1st Ed 2008), 22
15
Moot Proposition, ¶36 at 8.
16
The Competition Act, 2002, §3(3).

9
 D. The agreement has no anti-competitive aspect within §19 (3)(a)-(c).

2.11. The agreement entered by it with Cougar though in the nature of Exclusive supply

agreement is not per se anti-competitive as exclusivity is necessary to achieve the purpose of the

agreement. An exclusive dealing arrangement is one, where two or more enterprises agree that

one or both will deal exclusively with the other and refuse to deal with third parties in respect of

a commodity or class of commodities, a specified service or class of services. These

arrangements originate principally to cater to the manufacturer’s need to promote his branded

products at all stages of distribution. The US Attorney-General’s National Committee Report17

described the technique and effect of exclusive dealing:

“Unlike tying agreements, exclusive agreements may in fact promote vigorous

competition and need not signal coercive market power of the seller. They may be

preferred by customers as assuring a steady adequate source of supply, affording

protection against price fluctuations. For the seller, an exclusive arrangement may

reduce selling expenses and encourage an evenly scheduled economically planned

production.”

2.11. Additionally BKL needs to establish a foothold in the market by assuring a definite

volume of business in the beginning stages and one efficient way is to have a good arrangement

for the production and distribution of its merchandise. What is pertinent to be assessed here is

whether the system of granting exclusive merchandising rights to Cougar for the franchises of

BKL in fact “forecloses” competitors from a substantial market. It is of course elementary that

every bilateral contract for the sale of goods correspondingly prevents third parties from getting

that business and to this extent excludes Rodidas’s trade. However this arrangement is not

17
US Attorney-General’s National Committee Report, (1955), 144-146. Available at
http://babel.hathitrust.org/cgi/pt?id=umn.31951d02427803y;view=1up;seq=163.
10
different from an ordinary mercantile agreement; a flexible short-term requirements contract and

hence not restrictive or exclusionary. A realistic practical inquiry is pertinent and coverage and

duration of the challenged agreement must be measured against the context and the actual

practices of the particular industry18 and therefore it is humbly submitted that exclusive

merchandising agreements are the norm of the global industry of organizing sporting leagues.

E. Economic efficiency outweigh the adverse effects as per §19(3)(d)-(f).

2.12. According to the agreement, the exclusive merchandising is aimed at ensuring a good

quality of the merchandise for the BKL. Competition law does not prohibit these outright and

generally adopt a liberal attitude towards them.19 When the parties to an agreement combine

their respective assets they may be able to attain a cost configuration that would not be possible

otherwise. The combination of two existing technologies that have complementary strengths may

reduce production costs or lead to the production of a higher quality product20 and would have

pro‐competitive benefits within the provisions of §19(3)(d)-(f)21.

F. Auto renewal clause is an ancillary clause to uphold the main purpose of the

contract.

2.12. It is humbly submitted that the auto –renewal clause is merely an ancillary clause to

protect the interests of both the parties in the agreement. It is also submitted that for BKL it was

18
Federal Trade Commission vs. Motion Picture Advertising Services Co., 344 U.S. 392, 396;
United States vs. American Can Co., 87 F. Supp. 18,31 (N.D. Cal. 1949).
19
VINOD DHALL, COMPETITION LAW TODAY: CONCEPTS, ISSUES AND THE LAW
IN PRACTISE, (1st Ed 2010) 66.
20
Supra n.14.
21
The Competition Act, 2002, §19(3)(d)-(f).

11
a means to incentivize the merchandise supplier to make a commitment to the BKL and ensure

that the conditions of the agreement are successfully met with by giving an option to renew the

contract for another season of the league.

2.13. In franchise and distribution relationships, rights of renewal carry added importance

compared to ordinary commercial arrangements. Franchises and distributorships are generally

intended to be, or at a minimum contemplate the possibility of, long-term relationships. Such

agreements establish ongoing performance obligations for both parties, often necessitate

significant up-front investment by the franchisee/ distributor, and frequently involve the shared

use of trade-marks that the franchisor/supplier may protect through non-competition clauses or

other forms of restrictive covenant22. In many instances, the requirement for the

franchisee/distributor to make up-front expenditures of significant capital only makes business

sense with some security of tenure provided through a right of renewal.23 From the perspective of

Cougar, the franchisor/supplier, rights of renewal can also provide stability and continuity

throughout their distribution systems24. Hence it is humbly submitted that the auto renewal

clause is only an optional measure and was put in place to provide a means of security to Cougar.

2.14. The rule against restraints of trade emerged from the common law of contract, where the

purpose of the law is to allow parties, by contract, to protect their legitimate expectations. It

makes sense, then, that parties are allowed to restrict each other’s freedom to the extent

necessary to protect the legitimate fruits of the agreement. In this case, the apparent restraint of

22
Adam Ship, ‘Specific Performance of Franchise and Distribution Agreements in Canada’, 39
Advocates’ Q, 407,(2012).
23
Boston Pizza International Inc. vs. 395047 B.C. Ltd., 2008 B.C.S.C. 1016.
24
Frank Robinson, ‘Renewal of a Franchise – Legal Considerations’, Ontario Bar Association
(July, 2010), 1.
12
new entrants is not a hard and fast binding condition but rather an option for strengthening the

present contractual relationship between BKL and Cougar. As it was discussed in the case of

U.S. v. Addyston Pipe & Steel Co.25, when a restraint is intended to protect the legitimate

interests of the contracting parties, its legality depends on whether it is also proportionate to that

protection, or whether it goes beyond what is necessary and thereby becomes injurious to the

public interest. In other words, some agreements must include restraints in order to allow parties

to enjoy the legitimate fruits of those agreements. Without those restraints, the agreements would

not adequately protect the legitimate interests of the parties. They would not function properly.

2.15. Thus, what makes a restraint ‘ancillary’, and therefore legal, is that it “is inserted only to

protect one of the parties from the injury which, in the execution of the contract or enjoyment of

its fruits, he may suffer from the unrestrained competition of the other. The main purpose of the

contract suggests the measure of protection needed, and furnishes a sufficiently uniform

standard by which the validity of such restraints may be judicially determined.”26 In other words,

the main purpose of the merchandising agreement is to grant exclusivity in merchandising and

this auto-renewal clause is merely a contingent option to be exercised in the event of the parties

wishing to extend their contractual relationship and to protect the legitimate interests of both the

parties.

25
U.S. vs. Addyston Pipe & Steel Co., 85 F. 175 U.S. (6th Cir.1898), 211, 271, 281.
26
Id at 282.

13
3. WHETHER BKL AND KFB ARE LIABLE FOR ABUSE OF DOMINANCE BY

GIVING BROADCASTING RIGHTS FOR BKL TO MEDIA BOHEMIA?

3.1. It is humbly submitted before this Hon’ble Court that BKL and KFB are not liable for

abuse of dominance by giving broadcasting rights to Media Bohemia because [A] firstly, BKL

and KFB are not dominant in the relevant market for broadcasting of Kabaddi events, [B]

secondly, broadcasting rights given to Media Bohemia was done in Public interest and [C] lastly,

KFB had a duty to mandatorily share broadcasting signals with Media Bohemia.

Submissions on behalf of BKL

A. BKL and KFB are not dominant in the relevant market for broadcasting of

Kabaddi events.

3.2. It is humbly submitted that the relevant product market in the present case as per §19(7)27

and §2(t)28 of the Competition Act is the market for broadcasting of National, International and

Private Leagues of Kabaddi and as per §19(6)29 and §2(s)30 the geographic market is Bohemia. It

is submitted that various substitutes to the broadcast of kabaddi matches are available in the

relevant market as BKL is merely a league conducted by KFB. The market also comprises of

federations like SAKF and private players like X TV Network, which conduct their own leagues

and international events.31 Therefore, it is submitted that solely broadcasting of BKL matches
27
The Competition Act, 2002, §19(7).
28
The Competition Act, 2002, §2(t).
29
The Competition Act, 2002, §19(6).
30
The Competition Act, 2002, §2(s).
31
Moot Proposition, ¶ 5, at 2.

14
does not constitute a dominant product in the relevant market and hence does not make KFB

liable for abuse of dominance.

3.3. Furthermore, it would be unfair and unjust to narrowly ascertain the relevant market to

the disadvantage of KFB, who is working bonafidely for the revival of a defunct sport like

Kabaddi.

B. Broadcasting rights given to Media Bohemia were in Public interest.

3.4. It is humbly submitted before this Hon’ble Court that in every country a sizeable number

of people are unable to watch matches which are aired on paid to watch channels due to the

inability to pay for such channels owing to the disparity amongst different socio-economic

classes. This is detrimental for the promotionof every kind of sport, especially a defunct sport

like Kabaddi. For this reason Media Bohemia was given signals to air BKL matches but with no

further rights causing no prejudice to the Respondents. Therefore, it is submitted that private

Kabaddi league like BKL has opened its viewership to the general public promoting public

interest.

3.5. At this point it will be pertinent to refer to the case of Secretary, Ministry of Information

and Broadcasting, Government of India and Ors vs. Cricket Association of Bengal and Ors32 and

BCCI vs. Prasar Bharti Broadcasting33 where this Hon’ble Court observed that the right to

freedom of speech and expression also includes the right to educate and inform the present and

the prospective sportsmen interested in the particular game and also to inform and entertain the

lovers of the game. It was also observed that “for the sporting organisations such as BCCI, the
32
Secretary, Ministry of Information and Broadcasting, Government of India and Others v.
Cricket Association of Bengal and Others, 1995 (2) SCC 161.
33
BCCI vs. Prasar Bharti Broadcasting, 2015 (148) DRJ 342.
15
promotion of sports also includes its popularization through all legitimate means. For this

purpose, they are duty bound to select the best means and methods to reach the maximum

number of listeners and viewers. Such sports organisations like BCCI / CAB can be held liable

for neglecting their duty in not exploring the said media and in not employing the best means

available to them to popularise the game.”34

3.6. In the present case, there is no ambiguity about the fact that MOYSA was keen on

reviving conventional sports such as Kabaddi with the object to encourage youth to participate

and to promote interest of general public35 and KFB being a national federation is duty bound to

effectuate these objectives. For this purpose, KFB was required to select the best means and

methods to reach the maximum number of listeners and viewers. The only manner it could

accomplish the same was by giving the signals of BKL to Media Bohemia, the National

broadcaster of Bohemia, which was the only ‘free-to-air’ channel there36 and had the widest

reach and maximum viewership.

3.7. It the case of Public Interest Litigation vs. UOI37 and Reliance Natural Resources Ltd vs.

Reliance Industries Lt38, Spectrum was regarded as a national resource. Since broadcasting is an

activity, which is based on the utilization of natural resources, it brings within its character, the

public trust doctrine which entails that a natural resource cannot be only used for maximization

34
Id.
35
Moot Proposition, ¶ 4, at 2.
36
Clarification 30, at 5.
37
Public Interest Litigation vs. UOI, 2012 (3) SCC 1.
38
Reliance Natural Resources Ltd vs. Reliance Industries Ltd., 2010 (7) SCC 1.

16
of profits of private entities, but should be used for the maximization of public interest.

Consequently, broadcasting is subject to public trust obligations and regulations.

Therefore, CCB and COMPAT were inherently wrong to construe Clause 87.II.A. to be an unfair

condition as stated in §4(2)(a)(ii)39 on Luminous Sports, when the same was reasonably

justifiable.

3.8. Moreover, it was unjust on the part of CCB and COMPAT to ignore the fact that a free to

air channel like Media Bohemia cannot be placed in the same scale as Luminous Sports, a pay to

air channel, who is only driven by commercial interest. Thus, the intelligible differentia applied

by KFB in charging 1/3rd of the amount paid by Luminous Sports from Media Bohemia was

logically complete and wholly justifiable.

3.9. Lastly, it is submitted that allegation of Luminous Sports that KFB had abused its

dominant position by unilaterally modifying the agreement cannot be sustained since Luminous

Sports had expressed its consensus with the impugned clause in question by signing the contract.

Moreover, it is clearly given in catena of cases decided by this Court especially in the case

Public Interest Litigation v. UOI40 that there is no dispute with the proposition that a public

interest cannot be curtailed by a private agreement.

Submissions on behalf of Media Bohemia

C. KFB had a duty to mandatorily share broadcasting signals with Media Bohemia.

3.10. It is submitted that distribution of broadcasting signals of sporting events of public

39
The Competition Act, 2002, §4(2)(a)(ii).
40
Supra n. 36.

17
interest in Bohemia is characterized by exclusive rights holders or broadcasters like X sports and

Luminous Sports. They acquire exclusive rights for all the available platforms including satellite

and cable etc, as a result large numbers of listeners and viewers in Bohemia specially those who

do not have access to satellite and cable television and most of which are in rural areas are

denied access to these events. For example, during the recent India-West Indies One Day series,

people could not watch the first match of the series due to BCCI’s right holders refusal to

provide live feed to Doordarshan, who is the public broadcaster having reach up to 98% of

Indian population and only network having widest reach.

3.11. On the basis of the above, it is submitted that the object of Media Bohemia in accordance

with the Prasarbharati (Broadcasting Corporation Of India) Act, 1990 as enshrined in §12 is to

ensure that the citizens right to be informed freely, truthfully and objectively and that of ensuring

adequate coverage to the country’s diverse culture and of catering to the various sections of the

society is in consonance of the citizens fundamental rights enshrined under Art. 19(1)(a)41 of the

Constitution, to receive information. §12(2)(e)42 of the same Act, clearly stipulates that

"Corporation shall, inter alia, be guided by the objective of providing adequate coverage to

sports and games so as to encourage healthy competition and the spirit of sportsmanship".

3.12. It is also submitted that The Sport Broadcasting Signals (Mandatory sharing with

Prasarbharti) Act, 2007 (Hereinafter “Sports Act”) has been followed by the Appellants. The

preamble to the Sports Act indicates that it is an Act “to provide access to the largest number of

listeners and viewers, on a free to air basis of sporting events of national importance through

41
The Constitution of Bohemia, Art. 19(1)(a).
42
The Prasarbharati (Broadcasting Corporation Of India) Act, 1990, §12(2)(e).

18
mandatory sharing of sports broadcasting signals with Prasarbharati and for matters connected

therewith or incidental thereto.” §343 of the Sports Act is the most important Section for the

purposes of the issue as it reads that there should be mandatory sharing of live telecast of the

sporting events of National importance by the owners of the content with Prasarbharti.

3.13. Furthermore, Art. 3(a)(1) of the European Union Directive - Television Without

Frontiers, which was adopted in 1989 and amended in 1997 also lays that;

"Each Member State may take measures in accordance with Community law to ensure

that broadcasters under its jurisdiction do not broadcast on an exclusive basis events

which are regarded by that Member State as being of major importance for society in

such a way as to deprive a substantial proportion of the public in that Member State of

the possibility of following such events via live coverage or deferred coverage on free

television."44

Therefore, it is submitted that Media Bohemia had a right to claim the broadcasting rights of

BKL to which KFB had a correlative duty to give these rights to it, according to Hohfeld’s

theory of rights45 . Therefore, it is submitted that KFB should not be liable for abuse of

dominance and Media Bohemia should not be punished with any unreasonable and unwarranted

time lag, which clearly COMPAT/ CCB has no expertise/authority to levy.

43
The Prasarbharati (Broadcasting Corporation Of India) Act, 1990, §3.
44
European Council Directive 89/552/EEC, (Oct. 1989), (OJ 1989 L 298, p. 23), Art. 3a.
Available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62000CJ0207.
45
LLOYDS, INTRODUCTION TO JURISPRUDENCE, (8th Ed. 2008), 396-397.

19
4. WHETHER LUMINOUS SPORTS IS LIABLE FOR ABUSE OF DOMINANCE BY

LEVERGING ITS POSITION IN MARKET FOR TV BROADCAST TO ENTER THE

MARKET OF INTERNET BROADCAST IN BROADCASTING BKL MATCHES?

4.1. It is humbly submitted before this Hon’ble Court that Luminous Sports is liable for abuse

of dominance by leveraging its position in the market for TV broadcast to enter the market of

internet market in broadcasting of BKL matches because [A] firstly, Luminous is dominant in the

relevant market for broadcasting of BKL matches, [B] secondly, it has constructively refused to

supply broadcasting rights to Bootube and [C] lastly, Luminous Sports has used its dominant

position to enter into the market of internet broadcasting.

A. Luminous is dominant in the relevant market for broadcasting of BKL matches.

4.2. It is humbly submitted that as per §19(7)46 and §2(t)47 of the Competition Act, the

relevant product market in the present case is market for broadcasting of BKL matches on TV

and as per §19(6)48 and §2(s)49 the geographic market is Bohemia. This is because in the present

case Luminous Sports clearly has a commercial advantage over its competitors like X sports and

Media Bohemia to further sub license media rights to anyone on any medium50. Moreover,

consumers, including the end consumers and the ones who want to buy the licensing rights, are

46
The Competition Act, 2002, §19(7).
47
The Competition Act, 2002, §2(t).
48
The Competition Act, 2002, §19(6).
49
The Competition Act, 2002, §2(s).
50
Moot Proposition, ¶ 17, at 5.

20
totally dependent on it. Therefore, conditions as stated in §19(4)- (d) and (f)51 are satisfied and

hence make Luminous sports a dominant player.

4.3. Furthermore, it cannot be denied that enterprises can gain dominant position temporarily

due to economic situations or events such as sports events and festivals.52 Thus, in the present

case by construing a seasonal nature of the league, it is not entirely untenable to imagine that a

market cannot exist for short period.

B. Luminous Sports has constructively refused to supply broadcasting rights to

Bootube.

4.4. It is humbly submitted that the conditions imposed by KFB on Bootube for the purchase

of internet broadcasting rights of BKL were highly excessive and inherently unjust. The

conditions offered were not rational and feasible for any buyer to accept and therefore, can be

fairly construed as an act of constructive refusal to supply.

4.5. It is submitted that constructive refusal to deal covers not only situation of pure or

straight forward refusals but instances of agreement by dominant company to deal but under

unreasonable and uneconomic conditions. It is also acknowledged that charging excessive prices

51
The Competition Act, 2002, §19(4)(d), §19(4)(f).
52
A. Piszcz, Białystok Law Books 6 Competition Law In Comparative Perspective, 69.
Available at
https://books.google.co.in/books?id=xFgaHv91rsMC&pg=PA69&lpg=PA69&dq=there+are+in+
fact+situations+where+seperate+market+arise+which+exist+only+for+short+period&source=bl
&ots=jAVYVyqP9U&sig=VOFCB2htbXwUFmifDsnhsE13VHk&hl=en&sa=X&ved=0ahUKE
winjf2JpanLAhUFbY4KHcCvBc4Q6AEIHzAA#v=onepage&q=there%20are%20in%20fact%2
0situations%20where%20seperate%20market%20arise%20which%20exist%20only%20for%20s
hort%20period&f=false.retrieved on 01.03.2016.

21
may amount to an effective refusal to deal.53

4.6. In the present case, the conditions offered by Luminous sports included a time lag of

15minutes from the TV broadcast whereas Luminous.com was given the same at a time lag of

5minutes and in addition -

(i) Luminous Sports asked for a seasonal – non refundable security of ₹50 Lakhs;

(ii) Bootube would have to pay 40% its revenue proceeds and lastly;

(iii) Luminous Sports withheld the option to award internet broadcasting to any other

operator.

4.7. Analyzing the above conditions, it can be fairly construed that Luminous Sports had

sought to impose unfair and unreasonable conditions and prices on Bootube which is in

contravention of §4(2)(a)(i) & (ii)54 of the Act. Such conditions are also severely restrictive and

have sought to limit and restrict the entry of Bootube in the market of Internet broadcasting.

4.8. The fact that imposition of unfair conditions and excessive pricing in an agreement

amounts to constructive refusal which is a part of refusal to supply that leads to abuse of

dominance, if done by a dominant enterprise was upheld in the case of HT Media Limited

vs. Super Cassettes Industries Limited55. Further in the case of United Brands vs. Commission56

53
Roundtable On Refusals To Deal -Note by the European Commission, Directorate For
Financial And Enterprise Affairs Competition Committee, (Oct. 04, 2007). Available at
http://ec.europa.eu/competition/international/multilateral/2007_oct_refusals_to_deal.pdf.
54
The Competition Act, 2002, §4(2)(a)(i)(ii).
55
HT Media Limited vs. Super Cassettes Industries Limited, Case No. 40 of 2011.
56
United Brands vs. Commission of the European Communities, (Case 27/76).

22
and Commercial Solvents57, it was held that refusal of supplies by a dominant producer to

customer would constitute an abuse. Therefore, it is submitted that based on above submissions,

Luminous Sports has abused its dominance by strategically indulging in the constructive refusal

to supply.

C. Luminous Sports has used its dominant position to enter into the market of internet

broadcasting.

4.9. It is humbly submitted before this Hon’ble Court that Luminous Sports very strategically

indulged in constructive refusal to supply, to conveniently enter into the internet as well as

mobile application market. It indeed very cunningly, used its dominant position in the relevant

market of broadcasting of BKL matches to make way for its venture Luminous.com. By this

game plan, Luminous.com was insulated from any kind of competition, even after being a new

entity.

4.10. It is in the case of BBI/Boosey & Hawkes58 where course of conduct adopted by a

dominant undertaking with a view to exclude a competitor and threats from the market by means

other than legitimate means was included in the definition of abuse of dominance. In the case of

Telemarketing (CBEM) vs. SA Compagine Luxembourgeoise del Telediffusion59 it was clearly

held that if the refusal to supply is not justified by technical or commercial requirements, but is

intended to eliminating all competition from another undertaking, such conduct amounts to an

abuse prohibited by Art. 86 of the EC Treaty.

57
Commercial Solvents vs. Commission, (Cases 7/73) [1974] 1 CMLR 309.
58
BBI/Boosey & Hawkes, Case IV/32.279, OJ 1987 L 286/36.
59
Telemarketing (CBEM) vs. SA Compagine Luxembourgeoise del Telediffusion, 1985 E.C.R.
3261.
23
4.11. It is submitted that in the present case, there was no clear objective justification for

imposing such unreasonable and unfair terms in the offer for internet broadcasting rights. These

terms were strategically laid so as to effectively eliminate Bootube from the market and to aid

the commercial interest of Luminous Sports in popularizing Luminous.com. Such an act of

eliminating competitors to ease entry from one market to another was dissuaded 60 and ordered as

abuse of dominance in the case of Atos Worldline India Pvt. Ltd. vs. Verifone India Sales Pvt.

Ltd. 61

4.12. Apart from this in the 1979 Hugin-case62 on the refusal to supply spare parts for cash

registers to independent maintenance/repair companies, the 1988 Volvo/Veng63– and Renault-

cases64 on the refusal to supply car spare parts to independent repairers; the well known

1991 Hilti-case65 on the tying of nail guns and nail cartridges; and most importantly the French

case of Coffee machine66 where Nespresso had linked the purchase of its capsules to that of its

coffee machines, with no objective justification, thereby excluding manufacturers producing

competing capsules, are a few cases of similar abuse of dominance as done by Luminous Sports.

60
RICHARD WHISH & DAVID BALEY, COMPETITION LAW, Oxford University Press, (7th
Ed., 2011) 697-699.
61
Atos Worldline India Pvt. Ltd. vs. Verifone India Sales Pvt. Ltd, Case No. 56 of 2012.
62
Hugin vs. Commission, [1979] ECR 1869.
63
AB Volvo vs. Erik Veng (UK) Ltd., [1988] EUECJ C-238/87.
64
Renault vs. Aqueducs Automobiles, SARL ECR (1997) I-967.
65
Hilti AG vs. Commission, [1991] ECR II-1439.
66
France: The Autorité de la concurrence receives Commitments from Nespresso to lift alleged
Barriers to Entry for other Coffee Capsule Manufacturers, European Competition Commission,
(2014). Available at http://ec.europa.eu/competition/ecn/brief/03_2014/fr_nespresso.pdf.
24
4.13. Therefore, it is humbly submitted that by imposing such unjust, unfair and restrictive

conditions in the offer, it can only be concluded that Luminous was working to strengthen the

position of its internet and mobile application Luminous.com to the exclusion of Bootube.

5. WHETHER THE APPLICATION FOR COMPENSATION BEFORE COMPAT

SHOULD BE KEPT AT ABEYANCE UNTIL THIS HON’BLE COURT FINALLY

DECIDES THE APPEAL?

5.1. It is humbly submitted before this Hon’ble Court that COMPAT was right in deferring

the Compensation Application so filed by X sports because [A] firstly, The appeal is still pending

before this Hon’ble Court thus there is no final finding to this effect and [B] secondly, that the

true intention, object and purpose of the provision in question should be taken into account.

A) The appeal is still pending before this Hon’ble Court thus there is no final finding to

this effect.

5.2. It is humbly submitted before this Hon’ble Court that the suit in which COMPAT gave its

decision holding BKL and KFB liable for abuse of dominance is appealed against under §53T of

the Competition Act, 2002. The same has also been admitted and the adjudication is still

impending before this Hon’ble Court.

5.3. It is submitted that in the case of MCX vs. NSE67, MCX filled a Compensation

Application in COMPAT demanding damages, while NSE had appealed against the Order of

COMPAT, to SC under §53T, along with Application for stay. Abreast with these facts and that

Application for stay was pending before SC, COMPAT adjourned the hearing of their

67
MCX Stock Exchange Ltd. vs. National Stock Exchange of India Ltd., C.A. No. 01/2014 in
Appeal No. 15/2011.
25
Application on two occasions, on 26.11.2015 and 18.01.2016. Same precedent was rightly

followed in the present case.

5.4. Moreover, it is an established law that an Application for Compensation can be filled by

an aggrieved person from an order of commission for recovery of damages but it is necessary at

the first instance to determine whether the person or undertaking proceeded against, has

committed an unfair trade practice or indulged in any Anti-competitive behavior68. Thus, the

essential ingredients of Compensation Application are as under69:

a) There must be loss or damage;

b) Loss or damage must be result of contravention of provisions of §3 to §6 of the Act;

c) The loss or damage must be caused to any enterprise or any person;

d) The Application shall be made by such an aggrieved person to the Appellate Tribunal.

5.5. At this juncture, it is pertinent to mention that an identical provision for compensation

existed in the MRTP Act, 1969; §12B, wherein it was held in catena in cases that an application

for Compensation is not dealt only with determination of quantum of compensation but

invariably has to be preceded by an ascertainment of whether any prohibited trade practice has

been committed70. Moreover, in plethora of judgments it was also established that two parallel

proceedings under different forums, specifically for Compensation, cannot be allowed to go

together71.

68
Meco Trovics Pvt Ltd. Compensation Application No. 1704 of 1987, decided on 30-10-1991.
69
S.M. DUGGAR, GUIDE TO COMPETITION LAW, (5thEd. Vol. 1, 2010) 1121-1122.
70
Ballarpur Industries Ltd. vs Sinarmas And Anr., [1996] 87 Comp Cas 159.
71
Pragati Construction Company vs. Ottis Elevators, (1992) CTJ at 307 (MRTPC); D.G. (I &R)
vs. Sahyadri Motors Agencies & Mahindra & Mahindra Ltd., (1997) 5 CTJ at 78 (MRTPC).
26
5.6. Lastly, it is submitted that the Act does not provide a specific period of time within which

the COMPAT shall adjudicate and pass an order in respect of an application for adjudication of

compensation, since it is difficult to predict the length of such proceedings and ascertaining the

quantum of compensation is a cumbersome procedure.

5.7. However, it is submitted that, the intent of the provision is apparent and one can logically

deduce from the bare reading of the provision that: in the event that an entity has filed an appeal

against a CCB decision holding it guilty of infringing a provision of the Act, the claim for

compensation can only be filed, against such entity after the COMPAT has decided the appeal,

meaning thereby if a claim is filed after the CCB decision but before an appeal has been filed,

then upon the filing of such appeal, the claim for compensation shall be kept in abeyance till the

disposal of the appeal. Same analogy is required in the present context as this Hon’ble Court is

yet to pronounce its final order therefore application for compensation should be deferred till this

Hon’ble Court gives its final order about the contravention of §3 and §4, if any, against BKL and

KFB.

B) The true intention, object and purpose of the provision in question should be taken

into account.

5.8. It is humbly submitted that in a suit for damages, in civil cases, court awards pecuniary

compensation to the plaintiff for the injury or damage caused to him by wrongful act of the

defendant. That is only after it is proved that the defendant committed a wrongful act, the

plaintiff would be entitled to the Compensation.72 In the present case, the suit is at the stage of

72
RATANLAL & DHIRAJLAL, THE LAW OF TORTS, (26th Ed., 2010) 184.

27
appeal before this Hon’ble Court and therefore COMPAT’s order cannot be considered final as

to whether BKL and KFB, have violated any provisions of the Competition Act at all.

5.9. It is an established law that a bare mechanical interpretation of words and application of

legislative intent devoid of concept of purpose will reduce most of the remedial and beneficial

legislation to futility73. A statute is to be construed according “to the intent of legislature who

makes it” and “the duty of the judicature is to act upon the true intention of legislature”- the mens

or Sententia Legis. Words and statutes occurring in a statue are to be taken not in an isolation or

detached manner, disassociated from the context, but are to be read together construed in the

light of the purpose and the act itself.74

5.10. Therefore, it is submitted that Compensation in this section is used in a sense of

reparation for the loss or damage caused. The compensation, is thus, a monetary equivalent of

any loss or damage consequent of anti-competitive practices. Hence, compensation cannot be

determined merely on COMPAT’s order in isolation of the fact that the same order has been

appealed against where its adjudication is awaited as that will defy the very purpose of

‘Compensating the aggrieved party’ when the matter is sub-judice. Any grant of compensation

would result in the present proceedings becoming infructuous.

73
Organo Chemical Industries vs. UOI, (1979) 4 SCC 573.
74
Darshan Singh vs. State Of Punjab, (1953) SCR 319.

28
 PRAYER

In light of the questions presented, arguments advanced and authorities cited, the counsels for the

respondents most humbly and respectfully pray before this Honorable Court to be graciously

pleased to:

CASE I: FOR BKL KFB

I. DECLARE that COMPAT’s order against KFB and BKL is erroneous and liable to

be reversed as actions of KFB do not violate §4 of the Competition Act.

II. UPHOLD that decision of COMPAT with respect to no disintegration of the KFB

and BKL.

III. DECLARE the penalty levied by COMPAT is unwarranted due to no violation of §4

by BKL and KFB.

CASE II : FOR BKL , KFB and Cougar

I. DECLARE that the agreement between BKL, KFB and Cougar was pro-

competitive.

II. DECLARE that KFB and BKL are not abusing their dominance in the relevant

market.

CASE III: FOR BKL KFB & Media Bohemia

I. DECLARE that there is no abuse of dominance on part of KFB and BKL.

II. DECLARE that the conduct of BKL has not resulted in denial of market access or

foreclosure for its competitors.

 CASE IV: FOR BOOTUBE

I. DECLARE that Luminous Sports has abused its dominance in the market for

broadcasting the BKL matches by leveraging its position in the market for TV

broadcast of Kabaddi matches to enter into the market for internet broadcasting of

Kabbaddi

II. IMPOSE such penalty on Luminous Sports for violation of §4 as it may deem fit.

CASE V: BKL KFB and CCB

I. UPHOLD the order of COMPAT that compensation claims would be heard after the

Supreme Court passed a final order in the appeal against the matter.

AND/ OR

Further the Court may pass any other orders in the light of justice, equity and good conscience.

And for this act of kindness, your Lordships, the respondent shall as duty bound ever humbly

pray.

Respectfully submitted,

Sd/-

(Counsel for the BKL,KFB,

COUGAR, MEDIA BOHEMIA, BOOTUBE)