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034

IN THE SUPREME COURT OF BOHEMIA,


AT _________.

Appeal No. _______/2016


(Under 53T of the Competition Act, 2002)
___________________________________________________________________________
Bohemian Kabaddi League

...Appellant No. 1

Kabaddi Federation of Bohemia

...Appellant No. 2

v.

Luminous Sports

...Respondent No. 1

X Sports

...Respondent No. 2

___________________________________________________________________________
Clubbed With
Appeal No.______/2016
(Under 53T of the Competition Act, 2002)
___________________________________________________________________________
BooTube

...Appellant

v.

Luminous Sports

...Respondent No. 1

___________________________________________________________________________

Clubbed With
Appeal No._____/2016

(Under 53T of the Competition Act, 2002)


___________________________________________________________________________
Rodidas

...Appellant

v.
Bohemian Kabaddi League

...Respondent No. 1

Cougar

...Respondent No. 2

___________________________________________________________________________
Clubbed With
Appeal No._______/2016
(Under 53T of the Competition Act, 2002)
___________________________________________________________________________
X Sports

...Appellant

v.

Bohemian Kabaddi League

...Respondent No. 1

Kabaddi Federation of Bohemia

...Respondent No. 2

___________________________________________________________________________
Memorandum filed on behalf of
Bohemian Kabaddi League, Kabaddi Federation of Bohemia, BooTube, Cougar.
Counsel appearing on behalf of
Bohemian Kabaddi League, Kabaddi Federation of Bohemia, BooTube, Cougar.

TABLE OF CONTENTS
INDEX OF AUTHORITIES.............................................................................................................v
LIST OF ABBREVIATIONS.............................................................................................................x
STATEMENT OF JURISDICTION..................................................................................................xii
STATEMENT OF FACTS.............................................................................................................xiii
ISSUES FOR CONSIDERATION...................................................................................................xvi
SUMMARY OF ARGUMENTS....................................................................................................xvii
WRITTEN SUBMISSIONS..............................................................................................................1
I.

BKL HAS NOT VIOLATED 4 OF THE COMPETITION ACT, 2002 WITH RESPECT TO THE

EXCLUSIVE BROADCASTING AGREEMENT..............................................................................1


A.

BKL IS NOT DOMINANT IN THE RELEVANT MARKET.............................................1

B.

ALTERNATIVELY, BKL HAS NOT ABUSED ITS DOMINANT POSITION........................7

II.

LUMINOUS HAS VIOLATED 4 OF THE COMPETITION ACT WITH RESPECT TO THE

INTERNET BROADCASTING RIGHTS......................................................................................10


A.

LUMINOUS IS AN ENTERPRISE AS PER 2(H) OF THE ACT....................................10

B.

LUMINOUS IS IN A DOMINANT POSITION IN THE RELEVANT MARKET.................10

C.

THE ACTIONS OF LUMINOUS CONSTITUTE AN ABUSE OF DOMINANT POSITION

UNDER 4(2) OF THE ACT...............................................................................................15


III.

BKL HAS NOT VIOLATED 4 OF THE COMPETITION ACT WITH RESPECT TO THE

MERCHANDISING AGREEMENT.............................................................................................17

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A.

BKL IS NOT IN A DOMINANT POSITION IN THE RELEVANT MARKET...................18

B.

ALTERNATIVELY, BKL HAS NOT ABUSED ITS DOMINANT POSITION IN THE

RELEVANT MARKET..........................................................................................................22
IV.

THE AGREEMENT BETWEEN BKL AND COUGAR DOES NOT VIOLATE 3 OF THE

COMPETITION ACT................................................................................................................23
A.

THE AGREEMENT DOES NOT CAUSE A NEGATIVE IMPACT ON THE MARKET.......24

B.

THE AGREEMENT HAS AMELIORATING EFFECTS ON THE COMPETITION..............28

V.

KFB AND BKL DID NOT VIOLATE 4 OF THE COMPETITION ACT.............................29


A.

KFB IS NOT AN ENTERPRISE.................................................................................30

B.

ALTERNATIVELY, KFB AND BKL ARE NOT DOMINANT IN THE RELEVANT

MARKET....................................................................................................................30
C.

ALTERNATIVELY, EVEN IF IT IS ASSUMED THAT KFB AND BKL ARE DOMINANT IN

THE RELEVANT MARKET, THEY HAVE NOT ABUSED THIS DOMINANT POSITION...........32
VI.

THE COMPATS DECISION TO PUT THE COMPENSATION CLAIMS UNDER ABEYANCE

IS VALID...............................................................................................................................33
A.

THE LEGISLATIVE INTENT OF 53N SHOWS THAT A RESTRICTION ON THE CLAIM

FOR COMPENSATION, DURING PENDENCY OF APPEAL ON THE INFRINGEMENT DECISION,


WAS INTENDED................................................................................................................34
B.

THE ORDER FOR COMPENSATION WOULD LEAD TO GROSS INJUSTICE...............35

PRAYER.....................................................................................................................................36

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INDEX OF AUTHORITIES
A. STATUTES
1. Competition Act, 2002...............................................................................................passim
2. Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007..........10

B. TREATIES
1. Treat on the Functioning of the European Union................................................................5

C. INDIAN CASES
1. Arshiya Rail Infrastructure Limited v. Ministry of Railways, Case No. 12/2011 (CCI)....2
2. Automobiles Dealers Association, Hathras v. Global Automobiles Ltd, Case No. 33/2011
(CCI).................................................................................................................................24
3. Belaire Owners Association v. DLF Ltd., Case No. 19/2010 (CCI)...................................7
4. Bijay Poddar v. Coal India Ltd. Case No. 59/2013 (CCI)...................................................8
5. Cine Prakashakula Viniyoga Darula Sangham A v. Hindustan Coca Cola Beverages Pvt.
Ltd, Case No. UTPE 99/ 2009 and RTPE-16/2009 (CCI)................................................22
6. Consumer Online Foundation v. Tata Sky, Case No. 02/2009 (CCI)................................26
7. Dhanraj Pillay v. Hockey India, Case No. 73/2011 (CCI)..........................................31, 33
8. Edelweiss Commodities Services Ltd Vs Commercial Tax Officer & Ors., W.P.15902 of
2015 (Madras High Court)................................................................................................35
9. HT Media Limited v. Super Cassettes Industries Limited, Case No. 40/2011 (CCI).......26
10. K. Madhusudhan Rao v. Lodha Healthy Constructions & Developers Private Limited,
Case No. 40/2013 (CCI)....................................................................................................21

Page | 5

11. Kapoor Glass Pvt. Ltd. v. Schott Glass India Pvt. Ltd., Appeal No. 45/2012 (COMPAT)..
.......................................................................................................................................8, 14
12. MCX Stock Exchange Ltd. v. NSE India Ltd, Case No. 13/2009 (CCI)............................7
13. Mohammad Ali Khan v. Commission Of Wealth Tax, AIR 1997 SC 1765 (SC).............34
14. National Insurance Co. Ltd. vs. Laxmi Narain Dhut, 2007 (4) SCALE 36 (SC).............34
15. Prasar Bharti v. BCCI, 2015 SCC OnLine Del 7046 (Delhi High Court)..........................9
16. Prints India v. Springer India Pvt. Ltd., Case No. 16/2010 (CCI)...........................1, 11, 18
17. Saurabh Tripathy v. Great Eastern Energy Corporation Ltd., Case No. 63/2014 (CCI)...6,
21
18. Shamsher Kataria v. Honda Seil Cars India Ltd. And Ors., Case No. 3/2011 (CCI)....2,
19, 23, 24
19. Sonam Sharma v. Apple Inc., Case No. 24/2011 (CCI)....................................................24
20. Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420 (SC)......................................34
21. Surender Singh Barmi v. BCCI, Case No. 61/2010 (CCI)..................................3, 5, 12, 13
22. Tata Engineering and Locomotive Co Ltd (Telco) v. The Registrar of Restrictive Trade
Agreement, 1977 AIR 973 (SC)........................................................................................23
23. UPSE Securities Limited v. National Stock Exchange of India Limited, Case No.
67/2012 (CCI)...................................................................................................................22

D. EUROPEAN CASES
1. AKZO Chemie BV v. Commission, 1991 ECR I-3359 (ECJ)..........................................20
2. Atlantic Container Line AB v. Commission, 2003 ECR II-3275 (General Court)...........21
3. Baker v. British Boxing Board of Control, [2014] EWHC 2074 (Queens Bench)..........32
4. BBI/Boosey and Hawkes: Interim Measures, 1987 OJ (L 286) 36 (EC) 6, 21

Page | 6

5. CBEM v. CLT & IPB (Telemarketing), 1985 ECR 3261 (ECJ).......................................19


6. Centre Belge detudes de marche Telemarketing v. CTL, [1985] ECR 3261 (EC)..........16
7. Commercial Solvents v. Commission, [1974] ECR 223 (EC)..........................................16
8. Delimitis v. Henninger Brau AG, 1991 ECR I-935 (ECJ)................................................24
9. Dona v. Mantero, Case 13/76 (ECJ)..................................................................................30
10. Expedia Inc. v. Autorit de la concurrence, Case C-226/11 (ECJ)...................................25
11. Group Canal+/RTL/GICD/JV, Case COMP/M.2483 (EC).....................................3, 12, 19
12. Hilti Aktiengesellschaft v. Commission, 1991 ECR II-1439 (General Court)..................20
13. Hoffmann-La Roche & Co. AG v. Commission, 1979 ECR 461 (ECJ).............................5
14. Irish Sugar v. Commission 1999 ECR II-2969 (ECJ).................................................19, 21
15. Joint Selling of Commercial Rights of UEFA Champions League, Case COMP C.237.398 (EC).............................................................................................................3, 12, 13
16. Joint Selling of Media Rights of the German Bundesliga, Case COMP/C.2/37.214 (EC).
.................................................................................................................................3, 12, 13
17. Joint Selling of Media Rights to the FA Premier League, Case COMP/C-2/38.173 (EC).3,
5, 12, 13, 20, 22
18. Lehtonen v. Fdration Royale Belge des Socits de Basket-ball ASBL (FRBSB), Case
C-176/96 (ECJ).................................................................................................................30
19. Meca-Medina and Majcen v. Commission, Case C-519/04 P (ECJ)................................32
20. N. V. Netherlands Banden Industrie Michelin v. Commission, 1983 ECR 3461 (ECJ)...22
21. Newscorp / Telepiu, Case COMP/M. 2876 (EC)....................................................3, 11, 13
22. Nottingham Building Society v Eurodynamic Systems, [1993] FSR 468 (UK Court of
Appeals)............................................................................................................................35
23. Nungesser v. Commission 1982 ECR 2015 (ECJ)............................................................28

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24. Societe Technique Miniere v. Maschinendau Ulm 1966 ECR 337 (ECJ)........................28
25. United Brands Co. v. Commission, 1978 ECR 207 (ECJ)......................................5, 14, 20
26. Walrave and Koch v. Union Cycliste Internationale, [1974] ECR 1405 (ECJ)................30
27. Wouters and Others v. Algemene Raad Vane de Nederlandse Orde van Advocaten [2002]
ECR I-1557 (ECJ)...............................................................................................................9

E. U.S. CASES
1. Berkey Photo Inc v. Eastman Kodak Co, 444 US 1093 (1980) (USSC)..........................22
2. Board of Trade of the City of Chicago v. US, 246 US 231 (USSC).................................28
3. Continental T.V. v. GTE Sylvania, 433 U.S. 36 (1977) (USSC).......................................24
4. North American Soccer League v National Football League, 459 US 1074 (1982)
(USSC)............................................................................................................................2, 3
5. U.S. Healthcare v. Health Source, 61 USLW 2595 (Court of Appeals)............................26
6. U.S. v. Microsoft, 253 F.3d 34 (Court of Appeals)...........................................................26
7. United States v. International Harvester Co. 274 US 693 (1927) (USSC).......................22

F. OTHER CASES
1. Adidas Ltd. v. Football Association of Ireland, Case no. 421 of 12/9/95 (Supreme Court
of Ireland)..........................................................................................................................27
2. News Ltd. v. Australian Rugby Football League Ltd., (1996) 64 FCR 447 (Federal Court
of Australia)...................................................................................................................2, 12

G. BOOKS
1. A. Roy, COMPETITION LAW IN INDIA (2nd edn., 2014)......................................................17

Page | 8

2. C. Jones, PRIVATE ENFORCEMENT OF ANTITRUST LAW IN EU, UK AND USA (1999).....34


3. F. Wijckmans, and F. Tuytschaever, VERTICAL AGREEMENTS IN EU COMPETITION LAW
(2nd edn., 2011)........................................................................................................2, 11, 18
4. G. Monti, EC COMPETITION LAW (1st edn., 2007)..............................................................9
5. L.E.Swayne, ENCYCLOPEDIA OF SPORTS MANAGEMENT AND BROADCASTING, Vol. 1
(2011)................................................................................................................................19
6. O. Williamson, THE ECONOMIC INSTITUTIONS OF CAPITALISM (1985)............................23
7. R Posner, ANTITRUST LAW (2nd edn., 2001)......................................................................29
8. R. Nazzini, CONCURRENT PROCEEDINGS IN COMPETITION LAW (2004)..........................34
9. R. Whish and D. Bailey, COMPETITION LAW (8th edn., 2015).....................................22, 26

H. OTHER AUTHORITIES
1. Commission Notice on Agreements of Minor Importance (De Minimis), OJ C 368/07....25
2. European Commission Guidelines on Vertical Restraints, O.J. 2010 (C 130)
1...................................................................................................25, 26, 28, 29
3. Guidance on Article 102 Enforcement Priorities in Applying Article 82 EC Treaty to
Abusive Exclusionary Conduct by Dominant Undertakings, OJ 2009 (C 45)7..
...........................................................................................................................5, 14, 19, 20
4. Report by the EC Commission in OECD, Competition Issues Related to Sport (1996)...27
5. Report by the EC Commission in OECD, Refusal to Deal, 26 (2007)..............................17

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LIST OF ABBREVIATIONS
S R.

Abbreviations

EXPANSION

NO.
1.

AAEC

Appreciable Adverse Effect on Competition

2.

Art.

Article

3.

BKL

Bohemian Kabaddi League

4.

CCB

Competition Commission of Bohemia

5.

CCI

Competition Commission of India

6.

Co.

Company

7.

COMPAT

Competition Appellate Tribunal

8.

DG

Director General

9.

EC

European Commission

10.

ECJ

European Court of Justice

11.

EU

European Union

12.

KFB

Kabaddi federation of Bohemia

13.

KSL

Kabaddi Super League

14.

Ltd.

Limited

15.

Luminous

Luminous Sports

16.

OECD

Organisation for Economic Co-operation and

17.

Pvt.

Development
Private

18.

r/w

read with

19.

SAKF

South Asian Kabaddi Federation

20.

SC

Supreme Court of India

21.

SSNIP

Small but Significant & Non-Transitory Increase in


Price

Page | 10

22.

TFEU

Treaty on the Functioning of the European Union

23.

The Act

The Competition Act,2002

24.

U.S.

United States

25.

USSC

Supreme Court of the United States

26.

&

And

27.

Paragraph

28.

Section

Page | 11

STATEMENT OF JURISDICTION

I.

CIVIL APPEAL NO._____ OF 2016

The Appellants, Bohemian Kabaddi League and Kabaddi Federation of Bohemia have
approached this Honourable Court under 53T of the Competition Act, 2002.

II.

CIVIL APPEAL NO.____ OF 2015

The Appellant, BooTube has approached this Honourable Court under 53T of the
Competition Act, 2002.

III.

CIVIL APPEAL NO.____ OF 2016

The Appellant has approached this Honourable Court under 53T of the Competition Act,
2002. The Respondents, Bohemian Kabaddi League and Cougar, humbly submits to the
jurisdiction of this Honourable Court.

IV.

CIVIL APPEAL NO.____ OF 2016

The Appellant has approached this Honourable Court under 53T of the Competition Act,
2002. The Respondents, Bohemian Kabaddi League and Kabaddi Federation of Bohemia,
humbly submits to the jurisdiction of this Honourable Court.

Page | 12

Page | 13

STATEMENT OF FACTS

THE PLAYER CONTRACTS


KFB is a registered society and the National Federation for Kabaddi in Bohemia, affiliated to
SAKF. It is the apex body of state associations that kabaddi players are affiliated to, and
selects players for the national team. KFB and SAKF announced the launch of BKL, a
professional kabaddi league in August 2015.
X Sports is a sports channel and promoter for KSL, a private professional kabaddi league.
KSLs first season in November 2014 was a considerable success. Its second season was held
in November 2015 and was not a big success.
In September 2015, KFB published a list of sanctioned and unsanctioned events, approved by
SAKF. KSL was not a sanctioned event. Under new agreements signed between KFBs
member associations and the players, disciplinary action would be taken against players
participating in unsanctioned events and failing to attend compulsory national camps. A
compulsory national camp for selection in the team for the Asian Kabaddi Championship was
to be held dates that clashed with the second season of KSL.
Some national players and junior players terminated their contract with KSL after the
announcement of the regulations. X Sports filed an information alleging abuse of dominance.
The DGs report recorded KFB as dominant in the market for conducting and governing
national and international kabaddi in Bohemia, and that BKL had abused its dominant
position.

Page | 14

CCB directed KFB and BKL to cease and desist from continuing with restrictive clauses and
ordered the disintegration of KFB and BKL to avoid conflict of interest. COMPAT ruled that
the latter order was excessive and unwarranted and set it aside.
THE BROADCASTING AGREEMENT
Luminous Sports was awarded the exclusive international, as well as Bohemian broadcasting
rights of BKL matches. BKL reserved the right to unilaterally alter the agreement to promote
kabaddi or in furtherance of public interest. Another bidder, Media Bohemia filed a petition
stating that it should be granted the broadcasting rights as it is the national broadcaster and a
free-to-air channel. BKL awarded the broadcasting rights for telecast in Bohemia to Media
Bohemia for a consideration amount one third of the amount paid by Luminous.
Luminous Sports filed an Information alleging abuse of dominance. The DG found BKL
guilty of abuse of dominance by imposing unfair conditions. The CCB upheld the finding and
ordered a time lag of 15 minutes in Media Bohemias streaming. COMPAT too upheld CCBs
order in this regard.
THE INTERNET BROADCASTING RIGHTS
BooTube, an online video streaming website, approached Luminous for internet broadcasting
rights of BKL matches, since Luminous holds the right to further license the media rights to
anyone on any medium. Luminouss acceptance was subject to terms including payment of a
non-refundable security by BooTube, payment of 40% revenue proceeds, telecast with a time
lag of 15 minutes and Luminouss right to award internet broadcast rights to another operator.
BooTube refused to accept. Luminous then advertised that BKL matches would be telecast on
its online platform and mobile application, free of charge, and with a lag of 5 minutes from
the TV broadcast.

Page | 15

BooTube filed an Information against Luminous for abuse of dominance in the market for
broadcast of BKL matches. The DG did not find Luminous dominant. CCB upheld DGs
findings in the matter. COMPAT dismissed BooTubes appeal on the grounds of Luminous
not being dominant in the market for broadcasting sports.
THE MERCHANDISING AGREEMENT
Cougar, an international manufacturer of T-shirts and caps, and the international sponsor of
SAKF, was awarded the exclusive merchandising rights for all franchisees for the opening
season. The merchandising agreement contained an automatic renewal clause for one year at
a premium payment of 20% over the current price.
Rodidas, a Bohemian manufacturer of T-shirts and caps, filed an information alleging an
exclusive supply agreement between BKL and Cougar.
During investigation, it was found that one of the franchisees had protested against BKLs
right to award merchandising rights and the auto-renewal clause. Also, the Franchisee
Agreement entitled BKL to expel any franchisee on grounds of misconduct and acts against
fairplay.
The CCB directed BKL to eliminate the auto-renewal clause and held the existing contract to
be in violation of 3 and 4 of the Act. However, the COMPAT ruled that the pro-competitive
effects of the exclusive merchandising contract outweighed the anti-competitive effects.
THE COMPENSATION CLAIM
On behalf of KSL, X Sports filed an application under 53N of the Act claiming
compensation. The COMPAT put the application under abeyance till the aforementioned

Page | 16

appeals are decided. X Sports contended that the conditions under the section were met and
appealed against the COMPATs decision.
All the above appeals are now before the Supreme Court of Bohemia.

Page | 17

ISSUES FOR CONSIDERATION


APPEAL I
1. Whether BKL has violated 4 of the Act with respect to the Exclusive Broadcasting
Agreement between BKL and Luminous Sports.
2. Whether KFB and BKL have violated 4 of the Act with respect to the player
contracts.

APPEAL II
1. Whether Luminous has violated 4 of the Act with respect to the Internet
Broadcasting Rights.

APPEAL III
1. Whether BKL has violated 4 of the Act with respect to the Merchandising
Agreement between BKL and Cougar.
2. Whether the agreement between BKL and Cougar violated 3 of the Act.

APPEAL IV
1. Whether the COMPATs decision to put the compensation claims under abeyance is
valid.

Page | 18

SUMMARY OF ARGUMENTS
I.

BKL HAS NOT VIOLATED 4 OF THE COMPETITION ACT WITH RESPECT TO THE
EXCLUSIVE BROADCASTING AGREEMENT BETWEEN BKL AND LUMINOUS SPORTS.

4 of the Act prohibit an enterprise from abusing its dominant position in the relevant market.
Kabaddi, being a sport with low popularity and public interest, doesnt have a strong fan
following. It can be substituted with other sports by the consumers. Therefore, the relevant
market is the market for the broadcasting rights of the sporting events. BKL is not dominant
in the relevant market because because it can neither operate independently of the
competitive forces prevailing in the relevant market, nor affect competitors, consumers or the
relevant market in its favour. In any event, even if BKL is assumed to be dominant in the
market, it has not abused its position. This is because BKL has not imposed any unfair and
discriminatory conditions on Luminous. Alternatively, even if BKL has imposed unfair
conditions, it is still not liable for the violations of provisions of 4 of the Act. This is because
the actions of BKL were in furtherance of public interest.
II.

LUMINOUS HAS VIOLATED 4 OF THE COMPETITION ACT WITH RESPECT TO THE


INTERNET BROADCASTING RIGHTS.

4 of the Act prohibits an enterprise from abusing its dominant position in the relevant
market. Luminous is a firm engaged in economic activity, thus is an enterprise. In the instant
case, the market for the television broadcasting of private professional kabaddi leagues and
market for the internet broadcasting of private professional kabaddi leagues are two different
relevant markets. This is because these two products are not substitutable due to the existence
of factors such as specialised producers, high switching cost. Luminous is dominant in the

Page | 19

market for television broadcasting of the private professional kabaddi leagues because of its
ability to operate independently of the competitive market forces and affect the market,
competitors in its favour. Luminous has abused its position by leveraging its position in the
television broadcasting market to benefit its own platform Luminous.com in the internet
broadcasting market.
III.

BKL HAS NOT VIOLATED 4 OF THE COMPETITION ACT WITH RESPECT TO THE
MERCHANDISING AGREEMENT

4(1) of the Act states that no enterprise or group shall abuse its dominant position. All
products that are substitutable from a consumers point of view are part of the same market.
The relevant product is the market for merchandising rights for BKL matches and the
consumers are the merchandise manufacturers. For these manufacturers, producing sports
merchandise is not substitutable with producing other merchandise due to the special
requirements. The relevant market in this case is the market for rights of sports merchandise.
BKL is not dominant in the relevant market because it does not have a majority share and is
not able to operate independently of competitive forces. Additionally, Consumers have
countervailing buying power and BKL cannot affect the market, consumers or competitors.
Even if it is assumed that BKL is in a dominant position in a narrower market, it has not
abused this position. This is because the exclusive contract and auto-renewal clause are for a
short duration and this does not deny market access to competitors or consumers. Therefore it
is submitted that BKL has not violated 4 of the Act.
IV.

THE AGREEMENT BETWEEN BKL AND COUGAR DOES NOT VIOLATES 3 OF THE
COMPETITION ACT

Page | 20

Agreements within the purview of 3(4) of the Act would be in contravention of 3(1) only if
they are likely to cause AAEC. The market share of the seller in the relevant market is
detrimental in deciding whether there is AAEC in the market due to the exclusive supply
agreement. In this case, BKL and Cougar do not have a majority share in the relevant market.
They do not have enough economic power to create entry barriers or drive competition out of
the market and create substantial foreclosure. The exclusive supply agreement and the autorenewal clause were for a short duration. A specified and short duration of the agreement does
not cause entry barriers and does not drive competition out of the market, or foreclose the
market for new entrants. Therefore there are no negative effects. Additionally there are
positive effects of exclusive contracts and auto-renewal clauses like, economies of scale in
the market, long term investments by producers, solution to the free rider problem etc.
Therefore the agreement does not case AAEC in the market, and is not void under 3 of the
Act.
V.

KFB AND BKL HAVE NOT VIOLATED 4 OF THE COMPETITION ACT WITH
RESPECT TO PLAYER CONTRACTS

4(1) of the Act states that no enterprise or group shall abuse its dominant position. KFB is
not an enterprise as KFBs activities are of purely sporting interest and do not constitute an
economic activity. Alternatively, if KFB is an enterprise, KFB and BKL are not dominant in
the relevant market. The relevant market is determined by substitutability. Kabaddi is
substitutable by other sports for the viewers, hence the relevant market is not restricted to
kabaddi. KFB cannot affect competition in this relevant market, KFB and BKL constitute
only a small share. Thus KFB and BKL are not dominant in the relevant market. In any event,
even if KFB and BKL are dominant, there is no abuse of dominance. KFBs regulations were
not disproportionate to the objectives sought to be achieved, therefore KFB and BKL did not
violate 4.

Page | 21

VI.

THE COMPATS ORDER TO PUT THE COMPENSATION CLAIM UNDER ABEYANCE


SHOULD BE UPHELD.

The order of the COMPAT to put the 53N application for compensation under abeyance
should be upheld. This is because the legislative intent of the provision shows that a
restriction on the claim for compensation during the pendency of the appeal on the
infringement decision is intended. The order for compensation should only be passed after the
findings of the contravention becomes definitive. Additionally, there is a huge risk of
injustice if the enterprise is made to pay the compensation before the adjudication of appeal.

Page | 22

WRITTEN SUBMISSIONS
BKL HAS NOT VIOLATED 4 OF THE COMPETITION ACT, 2002 WITH

I.

RESPECT TO THE EXCLUSIVE BROADCASTING AGREEMENT


1. 4(1) of the Act states that no enterprise or group shall abuse its dominant position.1 It is
submitted that the findings of COMPAT are incorrect and there is no such violation because
BKL is not dominant in the relevant market [A]. Alternately, even if BKL is dominant in the
relevant market, it has not abused its dominant position [B].
A. BKL IS NOT DOMINANT IN THE RELEVANT MARKET
i.

The Market For The Broadcasting Rights Of Sporting Events In Bohemia Is


The Relevant Market.

2. The ascertainment of the relevant market is essential for analysing a case of abuse of
dominance.2 The dominant position of an enterprise or a group within an identified relevant
market has to be established first.3 When determining what constitutes the relevant market,
due regard must be given to both the relevant product as well as geographic market.4

1 4(1), Competition Act, 2002.


2 Prints India v. Springer India Pvt. Ltd., Case 16/2010, 9 (CCI) [hereinafter, Prints India].
3 Explanation 2, 4(2), Competition Act, 2002.
4 19(5), Competition Act, 2002.

Page | 1

3. All those products or services which are regarded as interchangeable or substitutable by the
consumer form part of the same relevant product market.5 Relevant product market is
primarily determined by gauging product substitutability from a consumers perspective.6 In
the instant case, the relevant product is the broadcasting rights for BKL matches. The buyers
of the product are the TV channels or broadcasters, like Luminous Sports, Media Bohemia
and X Sports.7 Here it is necessary to differentiate between the upstream market of selling
broadcasting rights, from the downstream market of broadcasting BKL matches to public.8
This is because the consumers for both these products are different and they are not
substitutable.9

5 2(t), Competition Act, 2002.


6 F. Wijckmans, and F. Tuytschaever, VERTICAL AGREEMENTS IN EU COMPETITION LAW,
106, (2nd edn., 2011).
7 Proposition, 13, Line 4-6.
8 Shamsher Kataria v. Honda Seil Cars India Ltd. And Ors., Case No. 3/2011, 19.4 (CCI)
[hereinafter, Kataria].
9 Kataria, supra note 8, 19.4.

Page | 2

4. The products, to be a part of the same market, need not be perfect substitutes.10 In North
American Soccer League11and News Limited12 the issue before the court was whether
broadcasting of every sport is a distinct market or a part of a larger market. It was held that a
broad market, including different sporting leagues, should be identified as the relevant
market. This is because various sporting bodies compete with each other for attendance at
games, sponsorship money, television access etc. The mere fact that a core crowd of some
sports league would never find another substitute for the league, did not mean that no other
sport was in fact substitutable for that sports league.13 Similarly, in the instant case,
broadcasting of kabaddi leagues cannot be identified as a distinct market.
5. Admittedly, competition authorities globally, have identified separate markets for the

broadcasting rights of different sports such as cricket,14 football,15 etc. However, they have
10 Arshiya Rail Infrastructure Limited v. Ministry of Railways, Case No. 12/2011, 14.17,
(CCI)
11 North American Soccer League v National Football League, 459 US 1074 (1982), 8
(USSC) [hereinafter, NASL].
12 News Ltd. v. Australian Rugby Football League Ltd., (1996) 64 FCR 447, 153 (Federal
Court of Australia) [hereinafter, News Ltd.].
13 NASL, supra note 11, 8.
14 Surender Singh Barmi v. BCCI, Case No. 61/2010, 8.38 (CCI) [hereinafter, BCCI].
15 Group Canal+/RTL/GICD/JV, Case COMP/M.2483, 12 (EC) [hereinafter, Canal]; Joint
Selling of Media Rights to the FA Premier League, Case COMP/C-2/38.173, 22 (EC)
[hereinafter FAPL]; Joint Selling of Commercial Rights of UEFA Champions League, Case
COMP C.2- 37.398, 63 (EC) [hereinafter, UEFA]; Joint Selling of Media Rights of the

Page | 3

done so because typically, those sports can regularly attract high audience numbers, specific
audiences or provide a certain brand image, which cannot be achieved by means of other
content.16 These sports are identified as the major sporting events in these countries due to
their substantial audience size.17 Further, the competition authorities did not come to any
conclusion whether the rest of the sports individually constitute separate markets or not.18
ECC identified the different relevant markets as market for exclusive rights of the
international football events that take place every year and market for the rights of other
sporting events.19 The market for the other minor sports was not further divided.
6. Similarly, in the instant case, kabaddi was not a major sport in Bohemia.20 Kabaddi has seen
low participation from the youth.21 Further, the general public also has little interest in
kabaddi.22 The Bohemian government floated incentive schemes to encourage the
participation of the youth and to invigorate the interest of the general public.23 The

German Bundesliga, Case COMP/C.2/37.214, 41 (EC) [hereinafter Bundesliga].


16 UEFA, supra note 15, 63.
17 FAPL, supra note 15, 22.
18 Newscorp / Telepiu, Case COMP/M. 2876, 71 (EC) [hereinafter, Newscorp].
19 Id., 52.
20 Proposition, 4, Line 1-3.
21 Proposition, 4, Line 4-5.
22 Proposition, 4, Line 4-5.
23 Proposition, 4, Line 4-5.

Page | 4

Government revived the sports federation for kabaddi.24 Kabaddi cannot be compared to
Football and Cricket as the viewers dont have any strong preference for kabaddi.
Consequently, the broadcasters will not have any preference for the broadcasting rights of
kabaddi as it does not attract a large viewer base. Therefore, it is submitted that the kabaddi
broadcasting rights can be substituted for the broadcasting rights for other sports. The
relevant product market in the instant case should be the market for the broadcasting rights
of sporting events.
7. The relevant geographic market25 should also be taken into consideration to identify the
relevant market.26 CCB should pay due regard to the factors such as language,27 consumer
preference,28 inter alia, while identifying the relevant geographic market. The geographic
market for the acquisition of media rights is usually defined on the basis of national or
linguistic criteria, and is therefore national in scope.29 This is primarily due to the differences
in the regulatory regimes, language barriers and other conditions of competition prevailing in
the different nations.30 Thus, the geographic relevant market should be restricted to Bohemia.

24 Proposition, 4, Line 1-3.


25 2(s), Competition Act, 2002.
26 19(5), Competition Act, 2002.
27 19(6)(f), Competition Act, 2002.
28 19(6)(g), Competition Act,2002.
29 FAPL, supra note 15, 14; Bundeslinga, supra note 15, 19; BCCI, supra note 14, 8.38.
30 FAPL, supra note 15, 23.

Page | 5

8. In conclusion, it is submitted that the market for the broadcasting rights of sporting events in
Bohemia is the relevant market.
ii.

BKL Is Not Dominant In The Identified Relevant Market

9. As has been argued above, the relevant market in the instant case is the market for the
broadcasting rights of sporting events in Bohemia. It is submitted that BKL is not in a
dominant position in this market because first, BKL does not operate independently of the
competitive forces prevailing in the relevant market [a], and secondly, BKL cannot affect
competitors, consumers or the relevant market in its favour [b].
a. BKL Cannot Operate Independently Of The Competitive Forces Prevailing In The
Relevant Market.
10. It is an established principle that a firm would be able to behave independently of competitive
forces, if it has acquired a position of economic strength.31 This position of economic strength
can be understood to be one of substantial market power.32
11. In the instant case, BKL doesnt have any substantial market power in the identified relevant
market. This is on account of the fact that the popularity of kabaddi is very low in Bohemia

31 United Brands Co. v. Commission, 1978 ECR 207, 65 (ECJ) [hereinafter, United
Brands]; Hoffmann-La Roche & Co. AG v. Commission, 1979 ECR 461, 4 (ECJ)
[hereinafter, Hoffmann].
32 Guidance on Article 102 Enforcement Priorities in Applying Article 82 EC Treaty to
Abusive Exclusionary Conduct by Dominant Undertakings, OJ 2009 (C 45)7, 10
[hereinafter, Enforcement Guidance]; Art. 102, TFEU.

Page | 6

and the government has been launching schemes for its revival.33 It constitutes only a small
part of the identified market, as a lot of other sports form a part of this market. The market
share of BKL in the market for the broadcasting rights of sporting events is negligible, due to
the existence of other major sporting events. Therefore, it is submitted that BKL cannot
operate independently of the competitive forces prevalent in the relevant market.
b. BKL Cannot Affect Competitors, Consumers Or The Relevant Market In Its Favour
12. An enterprise should have the ability to engage in conduct that excludes competition or
prevents the entry of newcomers into the relevant market, and should be able to influence the
relevant market in its favour.34 As argued above35, BKL holds a very small share of the
market, on account of the fact that the relevant market covers all sports broadcasting in
Bohemia. Therefore, anomalous behavior of BKL would not have any significant effect on
the market or competitors.
13. Additionally, any anti-competitive practices by BKL will not affect the buyers as there are
other substitutes available to the buyers in the identified market. The buyers have
countervailing buying power because of the competitive market.36

33 Proposition, 4, Line 4-6.


34 BBI/Boosey and Hawkes: Interim Measures, 1987 OJ (L 286) 36, 18 (EC)
[hereinafter, Boosey]; 19(4)(h), Competition Act, 2002.
35 Memorandum, 11.
36 Saurabh Tripathy v. Great Eastern Energy Corporation Ltd., Case No. 63/2014, 18 (CCI)
[hereinafter, Tripathy].

Page | 7

14. In conclusion, it is submitted that BKL does not hold a dominant position in the relevant
market. Therefore, BKL could not have violated 4 of the Act.
B. ALTERNATIVELY, BKL HAS NOT ABUSED ITS DOMINANT POSITION.
15. In any event, even if the market identified by CCB is the relevant market and BKL is
dominant in that market, BKL has not abused this dominant position. This is because first,
BKL has not imposed any unfair conditions on Luminous [i]. Secondly, BKL has not granted
any preferential treatment to Media Bohemia [ii]. Alternatively, even if it is assumed that
BKL has imposed unfair and discriminatory conditions on Luminous, the actions of BKL are
protected as they are in furtherance of public interest. [iii].
i

BKL Has Not Imposed Any Unfair Condition On Luminous.

16. 4(2)(a) of the Act provides that the indirect or direct imposition of unfair or discriminatory
conditions in the purchase or sale of goods of service constitutes abuse of dominant
position.37 The term unfair has not been defined in the Act.38 It has to be examined either in
the context of unfairness in relation to customers, or in relation to a competitor.39
17. Conditions which let the seller make unilateral changes in the terms and conditions of the
agreement, without buyers consent, are considered unfair.40 However, the presence of

37 4(2)(a), Competition Act, 2002.


38 MCX Stock Exchange Ltd. v. NSE India Ltd, Case No. 13/2009, 10.71 (CCI)
[hereinafter MCX].
39 MCX, supra note 38, 10.72.
40 Belaire Owners Association v. DLF Ltd., Case 19/2010, 12.8.8 (CCI).

Page | 8

appropriate safeguards in effecting the modification of terms and conditions, implies that the
exercise of such power would not be one sided and unfair.41
18. Clause 87.II.A of the exclusive broadcasting agreement between Luminous and BKL gives
BKL the right to modify any terms and conditions of the agreement.42 However, proper
safeguards are provided in this clause. BKL can only alter the terms in order to further the
interest of the sport of kabaddi in Bohemia and/or in the furtherance of public interest.43 BKL
doesnt have the right to arbitrarily alter the terms. BKL granted the rights to Media Bohemia
to further the interest of the sport. This is because Media Bohemia is a Free TV Channel, and
therefore it has the widest reach in Bohemia and will thus increase the viewership of the
sport. They have also issued a press statement in this regard.44 Therefore, it is submitted that
Clause 87.II.A of the exclusive broadcasting agreement is not an unfair condition under 4(2)
(a) of the Act.
iii.

BKL Has Not Granted Any Preferential Treatment To Media Bohemia.

19. The Act provides that the imposition of discriminatory price or conditions amounts to an
abuse of dominant position.45 Discrimination has been understood by the CCI to mean
dissimilar treatment to equal transactions.46 It is submitted that the conduct of BKL doesnt
constitute discriminatory treatment. This is because the transactions between BKL and
41 Bijay Poddar v. Coal India Ltd. Case No. 59/2013, 57 (CCI).
42 Proposition, 25, Line 6.
43 Proposition, 25, Line 7-9.
44 Proposition, 15, Line 4-6.
45 4(2)(a), Competition Act, 2002.

Page | 9

Luminous, and between BKL and Media Bohemia are not equal. The rights have been given
to Media Bohemia to further the interest of the sport, as it is the only Free TV Channel in
Bohemia.47 Further, there are crucial differences in the licensing agreements. Media Bohemia
does not have the power to sub-licence the rights on any medium.48 It only has the right to TV
broadcasting. Therefore, BKL has not granted preferential treatment to Media Bohemia. The
agreements are fundamentally different.
20. In conclusion, it is submitted that the conduct of BKL does not amount to abuse as per 4(2)
of the Act.
iv.

The Actions Of BKL Are Protected As They Are In Furtherance Of Public


Interest.

21. It is an established principle of law that any restriction on competition which is necessary to
promote or safeguard national public interest, may be allowed to stand. 49 The defence of
public interest is also available for the violations related to abuse of dominant position.50
22. Further, it is established that the act of making sporting events of national importance
available on the Free TV, for people who do not have Pay TV subscription, is in public
46 Kapoor Glass Pvt. Ltd. v. Schott Glass India Pvt. Ltd., Appeal No. 45/2012, 45
(COMPAT) [hereinafter, Kapoor Glass].
47 Clarifications, Q30.
48 Clarifications, Q31.
49 Wouters and Others v. Algemene Raad Vane de Nederlandse Orde van Advocaten [2002]
ECR I-1557, 113 (ECJ) [hereinafter, Wouters].
50 G. Monti, EC COMPETITION LAW, 210 (1st edn., 2007).

Page | 10

interest.51 This was endorsed in the Indian context with respect to analogous statutory
provision i.e The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act,
2007.52 In the instant case, BKL has given the rights of broadcasting BKL matches to the freeto-air channel, Media Bohemia in public interest.53 Therefore, it is submitted that the actions
of BKL should be protected by the public interest defence.

II.

LUMINOUS HAS VIOLATED 4 OF THE COMPETITION ACT WITH


RESPECT TO THE INTERNET BROADCASTING RIGHTS.

23. The 4(1) of the Act states that no enterprise or group shall abuse its dominant position.54 It is
submitted that Luminous should be made liable for the violation of 4 of the Act because
first, it is an enterprise as per 2(h) of the Act [A]. Secondly, it is in a dominant position in the
relevant market [B]. Lastly, the actions of Luminous amount to abuse under 4(2) of the Act
[C].
A LUMINOUS IS AN ENTERPRISE AS PER 2(H) OF THE ACT.
24. The prohibitions mentioned under 4 are only applicable on an enterprise or group.55 The
definition of an enterprise has been provided in the Act.56 In the instant case, Luminous is a
51 Prasar Bharti v. BCCI, 2015 SCC OnLine Del 7046, 55 (Delhi High Court).
52 Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007.
53 Proposition, 14, Line 6.
54 4(1), Competition Act, 2002.
55 4(1), Competition Act, 2002.
56 2(h), Competition Act, 2002.

Page | 11

firm, which is engaged in the activity relating to TV broadcasting services.57 Therefore, it is


submitted that Luminous is an enterprise and thus 4 of the Act is applicable to it.
C. LUMINOUS IS IN A DOMINANT POSITION IN THE RELEVANT MARKET.
i

Market For The Television Broadcasting Of Private Professional Kabaddi


Leagues In Bohemia Is The Relevant Market.

25. The ascertainment of the relevant market is essential for analysing a case of abuse of
dominance.58 The dominant position of an enterprise or a group has to be established in the
identified relevant market.59 When determining what constitutes the relevant market, due
regard must be given to both the relevant product as well as geographic market.60
26. All interchangeable products or services form part of the same relevant product market.61
Relevant product market is determined by assessing product substitutability from a
consumers perspective.62 CCB has to take consumer preferences into consideration for the
determination of the relevant product market.63

57 Proposition, 17, Line 1.


58 Prints India, supra note 2, 9.
59 Explanation 2, 4(2), Competition Act, 2002.
60 19(5), Competition Act, 2002.
61 2(t), Competition Act, 2002.
62 F. Wijckmans, supra note 6, at 106.
63 19(7)(c), Competition Act, 2002.

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27. There are different mediums available for broadcasting such as television, internet, mobile
etc. ECC has distinguished between the TV broadcasting market and new media platforms
like internet broadcasting.64 They identified each of these as a separate market because of the
differences in the characteristics of each medium.65 There are different logistical requirements
for each of these markets. All these mediums of broadcasting require specialised service
providers.66 Further, the different mediums of broadcasting are not substitutable for viewers,
as it involves significant shifting cost. Therefore, it is submitted that the television
broadcasting market is different from the internet broadcasting market.
28. Sports broadcasting rights constitute a distinct field from the broadcasting right of other
television programmes.67 It is also established that the market for sport broadcasting rights
ought to be subdivided into separate product markets.68
29. Globally, competition authorities have identified separate markets for the broadcasting rights
of different sports such as cricket,69 football,70 etc. The fans of a particular sport would never

64 Newscorp, supra note 18, 292.


65 Newscorp, supra note 18, 312.
66 UEFA, supra note 15, 40.
67 Canal, supra note 15, 12.
68 Canal, supra note 15, 12; UEFA, supra note 15, 63; FAPL, supra note 15, 22.
69 BCCI, supra note 14, 8.38.
70 Canal, supra note 15, 12; UEFA, supra note 15, 63; FAPL, supra note 15, 22;
Bundesliga, supra note 15, 41.

Page | 13

find another sport substitutable for that sport.71 Thus, the broadcasting rights of one sport are
not a substitute for the broadcasting rights for other sports. The competition authorities
further divided the market for the broadcasting of a particular sport into two different
markets.72 In BCCI73, CCI stated that there are inherent differences between international/first
class cricketing events and private professional cricket leagues, such as the nationality of the
players, objectives of the event etc. Therefore, it identified a separate market for the
organisation of private professional cricket leagues in India.74 Similarly, in Newscorp
/Telepiu 75, the ECC identified the relevant market as the market for broadcasting rights of
football events that take place every year, where national teams participate. In UEFA76, the
ECC held that there was a separate market for the acquisition and resale of football
broadcasting rights of events that are played regularly throughout every year.
30. Similarly, the international kabaddi matches also cannot be substituted for private
professional kabaddi leagues. Hence, it is submitted that market for the broadcasting of the
private professional kabaddi leagues should be identified as the relevant product market.
Therefore, it is submitted that the consumer cannot substitute the broadcast of private
professional kabaddi leagues with any other service.

71 News Ltd., supra note 12, 152.


72 UEFA, supra note 15, 63
73 BCCI, supra note 14, 8.38.
74 BCCI, supra note 14, 8.38.
75 Newscorp, supra note 18, 52.
76 UEFA, supra note 15, 56.

Page | 14

31. The relevant geographic market77 should also be taken into consideration to identify the
relevant market.78 The CCB should pay due regard to the factors such as language,79
consumer preference,80 etc., while identifying the relevant geographic market. The geographic
market for the acquisition of media rights is usually defined on the basis of national or
linguistic criteria, and is therefore national in scope.81 This is primarily due to the differences
in the regulatory regimes, language barriers and other conditions of competition prevailing in
the different nations.82 Further, different tenders have been called for the national broadcast
and the rest of the world broadcast of BKL matches.83 Therefore, it is submitted that the
Bohemia should be identified as the relevant geographic market.
32. In conclusion, it is submitted that the market for the internet broadcasting of private
professional kabaddi leagues in Bohemia and market for the television broadcasting of
private professional kabaddi leagues in Bohemia are different markets. Further, these should
be the relevant markets for the purpose of identifying abuse under 4(2)(e) of the Act.
v.

Luminous Is In A Dominant Position In The Relevant Market.

77 2(s), Competition Act, 2002.


78 19(5), Competition Act, 2002.
79 19(6)(f), Competition Act, 2002.
80 19(6)(g), Competition Act,2002.
81 FAPL, supra note 15, 23; BCCI, supra note 14, 8.38; UEFA, supra note 15, 56;
Bundesliga, supra note 15, 41.
82 FAPL, supra note 15, 23.
83 Clarifications, Q17.

Page | 15

33. As has been argued above, the relevant markets in the instant case are the markets for the
television broadcasting of private professional kabaddi leagues in Bohemia and market for
the internet broadcasting of private professional kabaddi leagues in Bohemia. The
dominance of an enterprise is not required in both the markets for the purpose of identifying
abuse under 4(2)(e) of the Act.84 It is submitted that BKL has acquired a dominant position
in the former market.
34. It is an established principle that a firm would be able to behave independently of competitive
forces, if it has acquired a position of economic strength.85 This position of economic strength
can be understood to be one of substantial market power.86 However, CCI stated that
independence in the context of dominance does not mean absence of any other player in a
relevant market.87
35. It is submitted that Luminous holds substantial market power in the relevant market. There
are only two kabaddi leagues in Bohemia i.e. BKL and KSL.88 BKL is the biggest league in
Bohemia and is the only private league sanctioned by KFB.89 This gives national payers the
freedom to participate in BKL.90 Thus, BKL will have larger viewership base than KSL.
84 4(2)(e), Competition Act, 2002.
85 United Brands, supra note 31, 65; Hoffmann supra note 31, 4.
86 Enforcement Guidance, supra note 32, 10.
87 Kapoor Glass, supra note 46, 20.
88 Proposition, 7-8.
89 Proposition, 10, Line 9.
90 Proposition, 10, Line 2-4.

Page | 16

Luminous, under an exclusive broadcasting agreement, has been granted the exclusive
broadcasting rights of BKL matches on television and the power to sub-license the media
rights of BKL matches to anyone on any medium.91
36. The existence of entry barriers in the relevant market is also taken into consideration to

ascertain the dominance of an enterprise.92 In the instant case, the entry into the relevant
market is difficult as Luminous has the exclusive rights to sub-license the media rights of
BKL.93 Further, the introduction of a new league involves high capital cost. The approval of
KFB is also critical for the organization and success of any competing league. 94 In conclusion, it
is submitted that Luminous is dominant in the relevant market.

D. THE ACTIONS OF LUMINOUS CONSTITUTE AN ABUSE OF DOMINANT POSITION UNDER


4(2) OF THE ACT.
37. The Act provides that the act of using its dominant position in one relevant market to enter
into, or protect, other relevant markets constitutes abuse of dominant position.95 In the instant
case, it is submitted that Luminous has abused its dominant position by leveraging its market
position.
38. There is a need to identify the primary and the secondary markets to ascertain leveraging.96
The two relevant markets in the instant case are the markets for the television broadcasting
91 Clarifications, Q7.
92 19(4)(h), Competition Act, 2002.
93 Clarifications, Q7.
94 Proposition, 10, Line 1-2.
95 4(2)(e), Competition Act, 2002.

Page | 17

of private professional kabaddi leagues in Bohemia and market for the internet
broadcasting of private professional kabaddi leagues in Bohemia As previously argued,97
Luminous holds a dominant position in the market of the television broadcasting rights of the
private professional kabaddi leagues in Bohemia.
39. This gives Luminous the exclusive right to sub-license the media rights of BKL matches to
anyone on any medium, including internet. Therefore, the two identified markets are interlinked as the broadcaster cannot broadcast programmes on the internet without getting access
to the broadcasting rights from Luminous.98 The primary market i.e. television broadcasting,
gives Luminous the exclusive right over the raw material for the secondary market i.e,
internet broadcasting rights. It was established that the refusal to supply the raw material, in
relation to which the enterprise is dominant, to benefit its position in the secondary market
constitutes abuse of dominant position.99
40. Imposing inordinately high prices or unacceptable terms and conditions constitute
constructive refusal to supply.100 In the instant case, it is submitted that Luminous has
constructively refused to supply the internet broadcasting rights to BooTube by charging
unfair prices and imposing unfair conditions. Luminous reserved the right to award the

96 4(2)(e), Competition Act, 2002.


97 Memorandum, 36.
98 Centre Belge detudes de marche Telemarketing v. CTL, [1985] ECR 3261, 13 (EC).
99 Commercial Solvents v. Commission, [1974] ECR 223, 25 (EC).
100 A. Roy, COMPETITION LAW IN INDIA, 327 (2nd edn., 2014); Report by the EC Commission
in OECD, Refusal to Deal, 26 (2007).

Page | 18

internet broadcast rights to any other operator.101 Further, Luminous was allowing BooTube to
telecast the match with a 15 minute time lag.102 However, they were broadcasting the same
telecast on their own platform, Luminous.com, with a 5 minute lag.103 These terms imposed
by Luminous on BooTube were unacceptable because of their economic constraints.
41. Therefore, it is submitted that Luminous leveraged its dominant position in the primary
market by imposing unfair conditions on BooTube to benefit its online platform
Luminous.com in the secondary market. In conclusion, the conduct of Luminous amount to
abuse of dominant position as it is violative of 4(2)(a) and 4(2)(e) of the Act.

III.

BKL HAS NOT VIOLATED 4 OF THE COMPETITION ACT WITH


RESPECT TO THE MERCHANDISING AGREEMENT

42. 4(1) of the Act states that no enterprise or group shall abuse its dominant position.104 It is
submitted that BKL has not violated 4 of the Act. This is because first, BKL is not in a
dominant position in the relevant market [A]. Alternatively, even if BKL was in a dominant
position, it had not abused this dominant position in the market [B].
A BKL IS NOT IN A DOMINANT POSITION IN THE RELEVANT MARKET
i

The Relevant Market In This Case Is The Market For Rights of Sports
Merchandise.

101 Proposition, 18, Line 9.


102 Proposition, 18, Line 7.
103 Proposition, 20, Line 4-5.
104 4(1), Competition Act, 2002.

Page | 19

43. The ascertainment of the relevant market is essential for analysing a case of abuse of
dominance.105 The dominant position of an enterprise or a group has to be established in the
identified relevant market.106 When determining what constitutes the relevant market, due
regard must be given to both the relevant product as well as geographic market.107
44. All those products or services which are regarded as interchangeable or substitutable by the
consumer form part of the same relevant product market.108 To determine the relevant product
market, CCB has to take into account the characteristics, end-use of products, the existence of
specialized producers, consumer preferences etc.109 Relevant product market is primarily
determined by gauging product substitutability from a buyers perspective.110
45. The relevant product in the instant case is the merchandise rights for BKL matches. The
buyers of the product are manufacturers of merchandise, like Cougar and Rodidas.111 Here, it
is necessary to differentiate the upstream market of selling merchandise rights from the
downstream market of manufacturing merchandise.112 This is because the consumers for both
these products are different and they are not substitutable.113

105 Prints India, supra note 2, 9.


106 Explanation 2, 4(2), Competition Act, 2002.
107 19(5), Competition Act, 2002.
108 2(t), Competition Act, 2002.
109 19(7), Competition Act, 2002.
110 F. Wijckmans, supra note 6, at 106.
111 Proposition, 22.
112 Kataria, supra note 8, 19.4.

Page | 20

46. This has to be further narrowed down because a distinction has to be made between
producers of sports merchandise and producers of other merchandise. ECJ has made a
distinction between sports broadcasting channels and other channels based on the specific
needs of the former.114 Similarly, there are special requirements for sport merchandising, like
technical knowledge, presence of a loyal fan base, price differentiation etc. which normal
merchandise producers need not be concerned about.115
47. It is submitted that owing to the different and unique requirements of sports merchandising
rights, they are not substitutable with other merchandising rights. The characteristics of the
two products are different, and in the downstream market, these products have different
consumer demands and product markets.116 For manufacturers of sports merchandise, the
demand may be seasonal, and depends on the fan base and viewership of the sport, populatiry
of the team, etc.117 However there are no such considerations in the market for general
merchandising rights. Additionally, manufacturing sports merchandise has an extra advantage
because of the size of the demand. Therefore, it is submitted that the two products are not
substitutable and will not be part of the same market.

113 Kataria, supra note 8, 19.4.


114 Canal, supra note 15, 12.
115 L.E.Swayne, ENCYCLOPEDIA OF SPORTS MANAGEMENT AND BROADCASTING, Vol. 1, 256
(2011).
116 Enforcement Guidance, supra note 32, 79; CBEM v. CLT & IPB (Telemarketing), 1985
ECR 3261, 20 (ECJ); Irish Sugar v. Commission 1999 ECR II-2969, 166 (ECJ)
[hereinafter, Irish Sugar].
117 Swayne, supra note 115, at 257.

Page | 21

48. The relevant geographic market in this case should be restricted to territory of Bohemia. This
is primarily due to the differences in the regulatory regimes and other conditions of
competition prevailing in the different nations.118
49. In conclusion, it is submitted that the relevant market in this case is the market for rights of
sports merchandise in Bohemia.
vi.

BKL Is Not In A Dominant Position In This Relevant Market.

50. It is submitted that BKL is not in a dominant position in the relevant market because first,
BKL does not operate independently of the competitive forces prevailing in the relevant
market [a], and secondly, BKL has not affected competitors, consumers or the relevant
market in its favour [b].
a

BKL Does Not Operate Independently of the Competitive Forces Prevailing in the
Relevant Market

51. Market share is one of the relevant factors to be taken into consideration when inquiring into
whether an enterprise enjoys a dominant position.119 A position of economic strength enables
a firm to operate independently of the competitive forces in the relevant market.120 Market
share less than 40% would lead to a presumption that dominance is unlikely, in the absence of
exceptional circumstances.121 In the instant case, because the market is for sports
118 FAPL, supra note 15, 23.
119 19(4)(a), Competition Act, 2002.
120 United Brands, supra note 31, 65.
121 Enforcement Guidance, supra note 32, 14; AKZO Chemie BV v. Commission, 1991
ECR I-3359, 60 (ECJ); Hilti Aktiengesellschaft v. Commission, 1991 ECR II-1439, 92
(General Court); Atlantic Container Line AB v. Commission, 2003 ECR II-3275, 907

Page | 22

merchandising rights, there are many competitors who own such rights and BKL is not a
majority stakeholder in the market. The presence of rivals of repute means that no player is
prima facie dominant.122 The manufacturers, who are the consumers in the market, would not
differentiate between BKL and other kabbadi leagues, any other sporting league, or domestic
or international sports matches. Therefore, it is submitted that BKL is not in a position to
operate independently of the competitive market forces.
c. BKL Has Not Affected Competitors, Consumers or the Relevant Market In Its Favour
52. An enterprise should have the ability to engage in conduct that excludes competition or
prevents the entry of newcomers into the relevant market, and hence is able to influence the
relevant market in its favour.123 In the instant case, as argued above BKL hold a very small
share of the market. Thus, anomalous behavior of BKL will not have any significant effect on
the market or competitors.
53. Additionally, the buyers have countervailing buying power because of the competitive
market.124 Therefore BKL would not be able to act independent of consumers.125
54. All these factors help to conclusively assert that BKL is not in a dominant position in the
relevant market. Therefore, it is submitted that BKL has not violated 4 of the Act.
E. ALTERNATIVELY, BKL HAS NOT ABUSED ITS DOMINANT POSITION IN THE RELEVANT
MARKET.
(General Court).
122 K. Madhusudhan Rao v. Lodha Healthy Constructions & Developers Private Limited,
Case No. 40/2013, 4 (CCI).
123 Boosey, supra note 34, 18; 19(4)(h), Competition Act, 2002.
124 Tripathy, supra note 36, 18.
125 Irish Sugar, supra note 116, 94, (ECJ).

Page | 23

55. In any event, even if BKL is dominant in a certain market, it is submitted that it has not
abused its dominant position and therefore not violated 4 of the Act. For this purpose, the
smallest market definition is taken as the relevant market. In this case, the relevant market is
assumed to be the market for selling of merchandising rights for BKL. Prima facie, it is not
an offence in itself if a firm is in a dominant position in the market.126 4(1) of the Act only
intends to make abuse of dominant position an offence and not merely being in a dominant
position.127
56. It is submitted that BKL has not indulged in any practice that resulted in denial of market
access in any manner. Joint selling of rights for a short period, of less than five years is not
anti-competitive per se.128 Agreements with reduced extent of exclusivity did not appreciably
restrict competition.129 In the instant case, the exclusive contract was only for the first season
of BKL.130 Additionally exclusive contracts help in risk allocation, transaction cost, asset
specificity, and bounded rationality.131 CCI adopts an effect based approach to anti-

126 N. V. Netherlands Banden Industrie Michelin v. Commission, 1983 ECR 3461, 57


(ECJ); Berkey Photo Inc v. Eastman Kodak Co, 444 US 1093 (1980), 27 (USSC); United
States v. International Harvester Co. 274 US 693 (1927), 20 (USSC).
127 UPSE Securities Limited v. National Stock Exchange of India Limited, Case no.
67/2012, 6 (CCI); Cine Prakashakula Viniyoga Darula Sangham A v. Hindustan Coca Cola
Beverages Pvt. Ltd, Case No. UTPE 99/ 2009 and RTPE-16/2009, 66 (CCI).
128 FAPL, supra note 15, 22.
129 R. Whish and D. Bailey, COMPETITION LAW, 629 (8th edn., 2015).
130 Clarifications, Q34.
131 O. Williamson, THE ECONOMIC INSTITUTIONS OF CAPITALISM, 42 (1985).

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competitive agreements. As argued in the memorandum,132 in the instant case the exclusive
supply agreement with the auto-renewal clause, is not anti-competitive and does not deny
market access to competitors.
57. Lastly, BKL did not restrict the right of the franchises to sell the merchandising rights. It
entered into a consensual contract with them for the joint selling of rights.133 BKL did not
stifle the franchises right of refusal. The forfeiture of security clause only spoke about acts
against fairplay and gross misconduct by the franchises.134 It was never implied that a refusal
to enter into an agreement with BKL would result in a fine or an expulsion for the franchises.
58. Consequently, it is submitted that BKL did not resort to practices that denied market access or
abuse its dominant position in any other way to violate 4 of the Act.

IV.

THE AGREEMENT BETWEEN BKL AND COUGAR DOES NOT VIOLATE


3 OF THE COMPETITION ACT

59. Agreements within the purview of 3(4) of the Act would be in contravention of 3(1) only if
they are likely to cause AAEC.135 Such agreements are not per se illegal and there is no
presumption that they cause AAEC. The rule of reason is applied to assess such
agreements.136 The likely pro-competitive and anti-competitive effects of an agreement are to

132 Memorandum, 76.


133 Proposition, 22, Line 5-6.
134 Proposition, 26, Line 5-7.
135 3(4) r/w 19(3), Competition Act, 2002; Kataria, supra note 8, 20.6.11.
136 Tata Engineering and Locomotive Co Ltd (Telco) v. The Registrar of Restrictive Trade
Agreement, 1977 AIR 973, 693 (SC).

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be evaluated on a case to case basis, and only a net negative impact on competition renders it
illegal.137
60. In this regard, it is submitted that the agreement between BKL and Cougar does not cause
AAEC because first, the merchandising agreement does not cause a negative impact on the
market [A] and secondly, the merchandising agreement has ameliorating effects on the
competition in the market. [B].
A THE AGREEMENT DOES NOT CAUSE A NEGATIVE IMPACT ON THE MARKET
61. The Act specifies factors like creation of entry barriers, driving existing competition out of
the market, and foreclosure of competition by hindering entry into the market to determine
the aggravating effects of the agreement.138 It is submitted that that BKLs agreement with
Cougar does not cause AAEC in the relevant market because first, BKL does not have a
majority share in the relevant market [i], secondly, the exclusive supply agreement was for
one season [ii] and lastly, the automatic renewal clause was for one year only. [iii]
i

BKL Does Not Have A Majority Share In The Relevant Market.

62. The market share of the seller in the relevant market is detrimental in deciding whether there
is AAEC in the market due to the exclusive supply agreement.139 The De Minimis doctrine,
137 Kataria, supra note 8, 20.6.33; Delimitis v. Henninger Brau AG, 1991 ECR I-935, 13
(ECJ); Continental T.V. v. GTE Sylvania, 433 U.S. 36 (1977), 11 (USSC); Automobiles
Dealers Association, Hathras v. Global Automobiles Ltd, Case no. 33/2011, 12.7 (CCI)
[hereinafter, Automobiles].
138 19(3)(a)-(c), The Competition Act, 2002.
139 Sonam Sharma v. Apple Inc., Case no. 24 of 2011, 20 (CCI); Automobiles, supra note
137, 12.10.

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prescribed by the ECJ, states that where the market share held by each of the parties to the
agreement does not exceed 15% on any of the relevant markets affected by the agreement,
there is no AAEC.140
63. As argued above in the memorandum, the relevant market in this case is the market for rights
for manufacturing sports merchandise.141 The market share of the buyer on the upstream
purchase market is important for assessing the ability of the buyer to impose exclusive supply
which forecloses other buyers from access to supplies.142 In the instant case, as argued above
in the memorandum, BKL is neither a dominant player in the market, nor does it hold a
majority share in the relevant market.143
64. The importance of the buyer on the downstream market is the factor which determines
whether a competition problem may arise. If the buyer has no market power downstream,
then no appreciable negative effects for consumers can be expected. Negative effects may
arise when the market share of the buyer on the downstream supply market as well as the
upstream purchase market exceeds 30 %.144 It is submitted that Cougar is also not a dominant
player in the relevant market. Even though Cougar has a 7-year contract with SAKF, it is only

140 Commission Notice on Agreements of Minor Importance (De Minimis), OJ C 368/07, 9;


Expedia Inc. v. Autorit de la concurrence, Case C-226/11, 23 (ECJ).
141 Memorandum, 49.
142 European Commission Guidelines on Vertical Restraints, O.J. 2010 (C 130) 1, 194
[hereinafter, Vertical Guidelines].
143 Memorandum, 54.
144 Vertical Guidelines, supra note 142, 194.

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for international kabaddi matches.145 Cougar does not have a major share in the national,
domestic or private professional kabaddi matches market, let alone other sports.
65. A contract between two enterprises that are not dominant in the market, even if such a
contract is a vertical restraint, does not cause market foreclosure.146 The two parties do not
have enough economic power to create entry barriers or drive competition out of the market.
The consumers have enough countervailing buying power.147 In this case, the foreclosure is
not substantial because Cougar and BKL do not have enough market share to affect market
dynamics. Therefore, it is submitted that the agreement does not cause any AAEC.
vii.

The Exclusive Supply Agreement Was For One Season

66. Other than the market position of the supplier, the duration of the operation of a vertical
restraint is an important consideration in determining the present and future effects of
foreclosure on competition.148 If there is no proof of dominance of the parties to the
agreement, a duration exceeding 5 years is considered absolutely anti-competitive.149
Agreements with reduced extent of exclusivity did not appreciably restrict competition.150
145 Proposition, 22.
146 U.S. v. Microsoft, 253 F.3d 34, 202 (Court of Appeals); HT Media Limited v. Super
Cassettes Industries Limited, Case no. 40/2011, 23 (CCI); Consumer Online Foundation v.
Tata Sky, Case no. 02/2009, 45 (CCI).
147 Vertical Guidelines, supra note 142, 198.
148 U.S. Healthcare v. Health Source, 61 USLW 2595, 26 (Court of Appeals).
149 Vertical Guidelines, supra note 142, 133.
150 Whish, supra note 129, at 629.

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67. In this case BKL entered into an exclusive supply agreement with Cougar only for the first
season of BKL.151 In the case of Adidas152, it was pointed out that there were many other
teams and individuals that other sportswear manufacturers could enter into similar
agreements with. As the agreement had a limited duration, other sportswear firms could bid at
the appropriate time for the right to supply. Similarly, the reduced extent of exclusivity in this
case does not prevent, restrict or distort competition. Cougars agreement with BKL did not
prevent it from producing and marketing other sportswear. Other suppliers were not
prevented from entering the sports merchandise market by virtue of the agreement. Therefore,
there were no entry barriers created, no foreclosure of market and no disadvantage to
competitors by the way of this agreement. Hence it is submitted that, exclusivity in the
agreement does not cause AAEC in the market.
viii.

The Automatic Renewal Clause Was For One Year Only.

68. CCI has held that the auto-renewal clause could be anti-competitive due to its perpetuity.153
The ECJ took a view that an auto-renewal clause frustrates entry into the market due to the
uncertainty about the extent of the clause.154 However, in the instant case, the auto-renewal
clause in the agreement was only for one year at a premium of 20%.155 The basic premise on
151 Clarifications, Q34.
152 Adidas Ltd. v. Football Association of Ireland, Case No. 421 of 12/9/95, 24 (Supreme
Court of Ireland); Report by the EC Commission in OECD, Competition Issues Related to
Sport, 41 (1996) [hereinafter, Competition Issues Related to Sports].
153 Surinder Singh Barmi v. BCCI (Supplementary Order), Case No. 61/2010, 36 (CCI).
154 Competition Issues Related to Sports, supra note 152, at 76.
155 Proposition, 22, Line 6-7.

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which the auto-renewal clause was held to cause AAEC is not met. A specified and short time
of the auto-renewal clause would not cause entry barriers because after the term of one year,
other competitors could bid for the contract. This does not drive competition out of the
market, or foreclose the market for new entrants.
69. Therefore it can be concluded that the agreement does not cause any adverse effects on the
competition in the market.
F. THE AGREEMENT HAS AMELIORATING EFFECTS ON THE COMPETITION
70. According to the Competition Act, it is the effect of the agreement that is important, not the
object. The restrictions in the agreement have to be assessed in the context of the market to
determine their net effect on competition.156 The vertical restraints in the agreement need to
be reasonable for it to have a positive effect on the competition. 157
71. The Act enumerates various factors like benefits to the customers, improvement in production
and distribution, scientific, technical and economic development etc. to be taken into account
to analyze the ameliorating effects of the agreement.158
72. Exclusivity agreements with auto-renewal clauses enable manufacturers to make long-term
investments in the product. Sometimes there are client-specific investments to be made by
either the supplier or the buyer, such as in special equipment or training. The investor may

156 Nungesser v. Commission 1982 ECR 2015, 87 (ECJ); Societe Technique Miniere v.
Maschinendau Ulm, 1966 ECR 337, 20 (ECJ).
157 Board of Trade of the City of Chicago v. US, 246 US 231, 241 (USSC).
158 19(3)(d)-(f), Competition Act, 2002.

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not commit the necessary investments before particular supply arrangements are fixed
causing hold-up problems.159 Auto-renewal clause helps is solving such problems. 160
73. It also helps with the vertical externality problems.161 When manufacturers have the security
of manufacturing that product for a considerable time, they try to achieve economies of scale
and this reduces the vertical externalities.162 This helps to improve production and distribution
of the goods as well as promote technical development in the market.163
74. Additionally, they help to tackle the free-rider problem.164 They prevent other suppliers from
benefitting from the investments of some supplier. This makes manufacturers and suppliers
less skeptical about investments for the improvement of the product. It also helps to build a
consumer image, where the consumer associates the quality products with that specific brand
or manufacturer.165
75. In conclusion, exclusive supply agreements with auto-renewal clauses result in a lot of procompetitive effects on the market. Therefore the agreement between Cougar and BKL has
ameliorating effects which results in the net impact on the agreement being positive.

159 Competition Issues Related to Sports, supra note 152, at 76.


160 Vertical Guidelines, supra note 142, 107(d).
161 Vertical Guidelines, supra note 142, 107(f).
162 R Posner, ANTITRUST LAW, 11 (2nd edn., 2001).
163 19(3)(e), (f), Competition Act, 2002.
164 Vertical Guidelines, supra note 142, 107(a).
165 Vertical Guidelines, supra note 142, 107(c).

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76. In conclusion, it is submitted that the agreement does not cause AAEC in the market under
19(3) of the Act. Therefore it is not in contravention of 3(1) of the Act, and under 3(2),
such an agreement is not void.

V.

KFB AND BKL DID NOT VIOLATE 4 OF THE COMPETITION ACT.

77. 4(1) of the of the Act states that no enterprise or group shall abuse its dominant position.166 It
is submitted that first, KFB is not an enterprise [A]. Alternatively, if KFB is an enterprise,
KFB and BKL are not dominant in the relevant market [B]. Alternatively, if KFB and BKL
are dominant, abuse of dominance did not take place [C]. Lastly, CCBs order is
disproportionate [D].
A KFB IS NOT AN ENTERPRISE
78. An enterprise includes a person engaged in any economic activity, i.e. an activity relating to
the provision of goods or services on the market, not including any activity relating to the
sovereign functions of the Government.167
79. The practice of sport is subject to competition law only in so far as it constitutes an economic
activity.168 Rules of purely sporting interest having nothing to do with economic activity have
been considered outside the purview of competition law. These, however, must be limited to
their proper objective.169

166 4(1), Competition Act, 2002.


167 2(h), Competition Act, 2002.
168 Lehtonen v. Fdration Royale Belge des Socits de Basket-ball ASBL (FRBSB), Case
C-176/96, 32 (ECJ); Dona v. Mantero, Case 13/76, 12 (ECJ).
169 Walrave and Koch v. Union Cycliste Internationale, [1974] ECR 1405, 8-9 (ECJ).

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80. KFB is the National Federation of Bohemia for Kabaddi, affiliated to SAKF, entrusted with
the function of selecting the national team as well as regulatory powers over its state
associations and its member players.170 Therefore, it is submitted that KFBs activities are of a
purely sporting nature and do not relate to the provision of any services on the market. The
regulations introduced by KFB are inherent in the organisation of sport in order, for instance,
to maintain certain basic international norms, enforce anti-doping standards, maintain a clashfree sporting calendar, promote talent etc.
81. Therefore, it is submitted that since KFB is not engaged in any economic activity, it is not an
enterprise and does not fall within the ambit of the Act.
G. ALTERNATIVELY, KFB AND BKL ARE NOT DOMINANT IN THE RELEVANT MARKET
82. Assuming but not conceding that KFB is an enterprise, it is submitted that KFB and BKL are
not dominant in the relevant market.
i

The Market Defined By The DG Is Incorrect As The Market Is Not Restricted To


Kabaddi

83. When determining what constitutes the relevant market, due regard must be had for both the
relevant product as well as geographic market.171 Relevant product market comprises of all
those interchangeable or substitutable services.172 While determining the relevant product

170 Proposition, 5, Line 6-9.


171 19(5), Competition Act, 2002.
172 2(t), Competition Act, 2002.

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market, due regard must be given to consumer preferences.173 In the case of conducting or
governing sports the viewers or the fans are the ultimate consumers.174
84. Kabaddi is one of the sports which the MoYSA is trying to revive and popularise.175
Therefore, it is implied that it does not have a following and demand large and strong enough
for it to be not substitutable by other sports, or even other forms of entertainment.176
Considering the demand substitutability of kabaddi viewers, it is submitted that the relevant
market defined by the DG is narrow and should not be restricted to kabaddi events in
Bohemia.
ix.

KFB And BKL Are Not Dominant In The Relevant Market

85. A dominant position means a position of strength, enjoyed by an enterprise, in the relevant
market, which enables it to operate independently of competitive forces prevailing in the
relevant market, or affect its competitors or consumers or the relevant market in its favour.177
86. KFB is the National Federation for Kabaddi and only has the power to lay down norms,
select the national team and conduct kabaddi matches.178 Therefore it cannot affect
competition in the relevant market i.e. organisers of other sporting events. KFB and BKL,
taken together or separately, would constitute only a small share of the relevant market.

173 19(7)(c), Competition Act, 2002.


174 Dhanraj Pillay v. Hockey India, Case no. 73/2011, 118 (CCI).
175 Proposition, 4, Line 1-3.
176 Memorandum, 6.
177 Explanation (a) to 4, Competition Act, 2002.
178 Proposition, 5, Line 5-9.

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87. Hence, it is submitted that KFB and BKL are not dominant in the relevant market and have
not violated 4 of the Act.
H. ALTERNATIVELY, EVEN IF IT IS ASSUMED THAT KFB

AND

BKL ARE DOMINANT IN

THE RELEVANT MARKET, THEY HAVE NOT ABUSED THIS DOMINANT POSITION
88. In any event, even if KFB and BKL are in a dominant position, it is submitted that there
was no abuse of this dominant position. Any national governing body is free to stipulate
that its members should comply with its rules and, if that is not acceptable, people are
free to operate independently.179 Where regulation by such a national body can be
objectively justified, it is not unlawful.180 If the effects of a practice are inherent in the
pursuit of the legitimate objectives sought to be achieved and proportionate to them, it
will not be considered anti-competitive.181 Factors such as ensuring primacy of national
representative competitions, deter free riding on the investments by national association,
preserving the integrity of sport, etc. are the primary objectives of sports associations.182
89. In the instant case, it is submitted that KFBs regulations were not disproportionate to the
objectives they sought to achieve. The list of sanctioned and unsanctioned events is necessary
for the maintenance of a sporting calendar. Further, the decision of sanctioning events needed
the approval of SAKF, and was not solely based on KFBs discretion.183 The list was also
necessary to maintain a degree of control over players associated with the regulatory body
179 Baker v. British Boxing Board of Control, [2014] EWHC 2074, 18 (Queens Bench).
180 Id., 19; Hockey India, supra note 174, 10.13.6.
181 Meca-Medina and Majcen v. Commission, Case C-519/04 P, 42 (ECJ); Wouters supra
note 49, 97.
182 Hockey India, supra note 174, 10.12.1.

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and its member associations since the conduct of unsanctioned events will not be in
accordance with the norms and procedures prescribed by the national federation, in this case
KFB, and the international/continental federation that it is affiliated to i.e. SAKF.
90. Therefore, it is submitted that since the effects of the restriction are inherent in the legitimate
objectives sought to be achieved, KFBs regulations do not amount to abuse of dominance.

VI.

THE COMPATS DECISION TO PUT THE COMPENSATION CLAIMS


UNDER ABEYANCE IS VALID.

91. COMPAT decided that the application by X Sports for the claim of compensation under 53N
should not be decided during the pendency of the appeal of the infringement decision.184 It is
submitted that the decision of COMPAT with regard to the application under 53N should be
upheld because first, the legislative intent of 53N shows that a restriction on the claim for
compensation, during pendency of appeal on the infringement decision, was intended [A].
Secondly, if the order for compensation is passed, it would lead to gross injustice [B].
A THE LEGISLATIVE INTENT OF 53N SHOWS THAT A RESTRICTION ON THE CLAIM FOR
COMPENSATION, DURING PENDENCY OF APPEAL ON THE INFRINGEMENT DECISION, WAS
INTENDED
92. A statute is an edict of the Legislature and in construing a statute, it is necessary to seek the
intention of its maker.185 If a statutory provision is open to more than one interpretations, the

183 Proposition, 10, Line 2.


184 Proposition, 42, Line 3-6.
185 Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420, 12 (SC).

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Court has to choose that interpretation which represents the true intention of the
Legislature.186 53N(1) provides that an application can be made to the COMPAT for the
adjudication of a claim for compensation that may arise from the findings of the
Commission or the orders of Appellate Tribunal in an appeal against any finding of the
Commission.187 However, 53N(3) gives the Appellate Tribunal the powers to pass an order
for the compensation for the loss or damage caused as a result of any contravention of the
provisions of Chapter II having been committed by an enterprise.188
93. The fact that the legislators have intentionally used different language in these two provisions
shows that they intended different interpretations. The language used in 53N(3) show that
the reference is made to the definitive findings of contravention of the provisions of chapter
II of the Act. The decision of the finding of contravention cannot be said to be definitive
during the pendency of the appeal.189 In the instant case, the decision of the COMPAT relating
to the violations of 4 of the Act by BKL and KFB is being appealed in the Supreme Court.190
Therefore, it is submitted that an order under 53N(3) cannot be passed till the finding of the
contravention becomes definitive.

186 National Insurance Co. Ltd. vs. Laxmi Narain Dhut, 2007 (4) SCALE 36, 34 (SC);
Mohammad Ali Khan v. Commission Of Wealth Tax, AIR 1997 SC 1765, 14 (SC).
187 53N(1), Competition Act, 2002.
188 53N(3), Competition Act, 2002.
189 R. Nazzini, CONCURRENT PROCEEDINGS IN COMPETITION LAW, 169 (2004); C. Jones,
PRIVATE ENFORCEMENT OF ANTITRUST LAW IN EU, UK AND USA, 101 (1999).
190 Proposition, 43, Line 1-4.

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I. THE ORDER FOR COMPENSATION WOULD LEAD TO GROSS INJUSTICE


94. An order for compensation should not be passed where the risk of injustice due to the order
being passed outweighs the risk of injustice due to the order not being passed.191 In the instant
case, if COMPAT passes the order directing the enterprise to make payment to the applicant
during the pendency of the appeal on the infringement decision, it carries a great risk of
injustice to the enterprise. The fact that the infringement decision has been appealed shows
that there is a probability that the order of the COMPAT can be overturned. Thus, if the
enterprise is made to pay the compensation during the pendency of the appeal, it is left with
no statutory remedy.192 The appeal proceedings might take long, and even if the enterprise
wins in appeal, it will be a herculean task to a refund on the amount paid as compensation.193
Thus, there is a huge risk of injustice if the enterprise is made to pay the compensation before
the adjudication of appeal. Therefore, the enterprise should not be made to pay compensation
before the findings of the violations become definite.
95. In conclusion, it is submitted that COMPATs decision to put the compensation claims of X
Sports, under abeyance during the pendency of the appeal, is valid.

191 Nottingham Building Society v Eurodynamic Systems, [1993] FSR 468, 19 (UK Court
of Appeals).
192 Edelweiss Commodities Services Ltd Vs Commercial Tax Officer & Ors., W.P.15902 of
2015, 3 (Madras High Court).
193 Id.

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PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Honourable Court may be pleased to adjudge and declare that:
1

BKL has not violated 4 of the Competition Act with respect to the exclusive
broadcasting agreement.

Luminous has violated 4 of the Competition Act with respect to the internet
broadcasting rights.

BKL has not violated 4 of the Competition Act with respect to the merchandising
agreement.

The agreement between BKL and Cougar does not violate 3 of the Competition Act.

BKL has not violated 4 of the Competition Act with respect to the player contracts.

COMPATs decision to put the compensation claims under abeyance is valid.

And pass any other order that this Honble Court may deem fit in the interests of justice,
equity and good conscience.

ON BEHALF OF BKL, KFB, BOOTUBE AND COUGAR ,


A034
COUNSEL FOR BKL, KFB, BOOTUBE AND COUGAR.

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