018 R

TEAM CODE: 018R
IN THE HON’BLE SUPREME COURT OF BOHEMIA, AT RIVERDALE
Appeal Jurisdiction U/§ 53T, The Competition Act, 2002
Appeal
KABADDI FEDERATION OF BOHEMIA ...Appellant

v.
X SPORTS ...Respondent
Clubbed With
Appeal
X SPORTS & ORS. ...Appellants
v.
KABADDI FEDERATION OF BOHEMIA & ORS. ...Respondents
Clubbed With
Appeal
BOHEMIAN KABADDI LEAGUE ...Appellant

v.
LUMINOUS SPORTS …Respondent
Clubbed With
Appeal
RODIDAS ...Appellant
v.
BOHEMIAN KABADDI LEAGUE ...Respondent No. 1
COUGAR ...Respondent No. 2
Clubbed With
Appeal
BOOTUBE ...Appellant
v.
LUMINOUS SPORTS ...Respondent
MEMORANDUM FILED ON BEHALF OF X SPORTS, LUMINOUS SPORTS,

RODIDAS AND COMPETITION COMISSION OF BOHEMIA
COUNSELS APPEARING ON BEHALF OF X SPORTS, LUMINOUS SPORTS,
RODIDAS AND COMPETITION COMMISSION OF BOHEMIA

TABLE OF CONTENTS
TABLE OF CONTENTS...........................................................................................................ii
INDEX OF AUTHORITIES......................................................................................................v
LIST OF ABBREVIATIONS...................................................................................................xii
STATEMENT OF JURISDICTION.........................................................................................xv
STATEMENT OF FACTS......................................................................................................xvi
ISSUES FOR CONSIDERATION..........................................................................................xix
SUMMARY OF ARGUMENTS..............................................................................................xx
WRITTEN SUBMISSIONS......................................................................................................1
1. THE EXCLUSIVE AGREEMENTS BETWEEN KFB AND PLAYERS RESULTED
IN DENIAL OF MARKET ACCESS AND FORECLOSURE OF MARKET WHICH
RESULTS IN ABUSE OF DOMINANCE BY KFB.............................................................1
1.1 KFB falls under the jurisdiction of the Competition Act, 2002...................................2
1.2 The relevant market is “conducting and governing, national and international
Kabaddi in Bohemia”.........................................................................................................3
1.3 The appellant is in dominant position in the relevant market and possesses “market
power”................................................................................................................................6
1.4 KFB abused its dominant position by entering into exclusive agreements with
players................................................................................................................................8
ii
The counsels for the appellants humbly submit that KSL has an actionable injury under
section 53(N) of the Competition Act, 2002, therefore COMPAT is bound to initiate
compensation proceedings to determine the eligibility and quantum..................................16
3. BKL AND KFB HAVE ABUSED THEIR DOMINANCE IN THE EXLCUSIVE
BROADCASTING AGREEMENT WITH LUMINOUS SPORT......................................16
3.1 The relevant market in this case is “Broadcasting Rights for BKL matches in
Bohemia”..........................................................................................................................17
3.2 BKL is in dominant position in the defined relevant market.....................................21
3.3 BKL abused its dominance by unilaterally modifying the exclusive broadcasting
agreement and granting preferential treatment to Media Bohemia..................................23
4. THE AGREEMENT CLAUSES OFFERED BY LUMINOUS SPORT FOR
BROADCASTING RIGHTS DID NOT DENY MARKET ACCESS AND CAUSE
ABUSE OF DOMINANCE.................................................................................................27
4.1 Relevant Market.........................................................................................................27
4.2 Respondent is not dominant in the relevant market under Section 19(4)..................27
4.3 The Respondents have not used their dominant position in the market of TV
broadcast of Kabaddi matches to enter into the market for internet broadcasting of
Kabaddi............................................................................................................................29
5. THE MERCHANDISING AGREEMENT AWARDED TO COUGAR WAS AN ANTI-
COMPETITIVE AGREEMENT AND THERE WAS AN ABUSE OF DOMINANCE ON
PART OF BKL AND KFB...................................................................................................32
5.1 BKL is an enterprise under Section 2(h) of the Act...................................................32

iii
5.2 Agreement entered into by the sponsors is an exclusive-supply agreement..............32
5.3 There exists an agreement between Cougar and BKL...............................................34
5.4 Relevant Market analysis...........................................................................................34
5.5 The agreement between the Respondents and their authorized service providers is
likely to cause AAEC.......................................................................................................35
5.6 Agreement between BKL and the franchisee teams is in the restraint of trade..........36
5.7 BKL is dominant in the relevant market....................................................................38
5.8 Respondents have abused their dominant position....................................................39
PRAYER..................................................................................................................................41
iv
INDEX OF AUTHORITIES
Cases
Andrew Byars v Bluff City News Co Inc 609 F 2d 843............................................................11
Automobiles Dealers Association v Global Automobiles Limited & Anr Case No 33 of 2011
(‘Automobiles Dealers’) ; Exclusive Motors Pvt Ltd v Automobili Lamborghini SPA
(‘Lamborghini’) Case No 52 of 2012...................................................................................33
British Interactive Broadcasting/Open (Case IV/36.539) Commission Decision 1999/781/EC
[1999] OJ L 312...................................................................................................................18
BSkyB/Kirch(Case No COMP/JV.37) EEC No 4064/89..........................................................20
Case 258/78 Nungesser v Commission [1982] ECR 2015.................................................24, 25
Case 26/75 General Motors Continental v Commission [1975] ECR 1367............................34
Case 322/81 Michelin v Commission [1983] ECR 3461............................................................8
Case 62/86 AKZO Chemie BV v Commission [1991] ECR I- 3359.........................................23
Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461.....................6, 7, 8, 9, 22, 27
Case C- 280/08P Deutsche Telekom AG v Commission [2010] ECR I- 000..............................8
Case C-234/89 Stergios Delimitis v Henninger Bräu AG [1991] ECR I-935..........................36
Case C-457/10 P Astra Zeneca AB v Commission [2012] ECR I-000.....................................29
Case C-49/07 MOTOE v Elliniko Dimosio (2008) ECR I-4863......................................2, 6, 32
v
Case C-519/04 David Meca-Medina and Igor Majcen v Commission of the European
Communities [2006] ECR I-6991...........................................................................................3
Case n III SK 16/08 Polish Supreme Court (2009) Canal+/Polski Case n III SK 16/08.........26
Case T-175/99 UPS Europe v Commission [2002] ECR II-1915, para 51...............................30
Case T-193/02 Laurent Piau v Commission of the European Communities [2005] ECR II-209.
................................................................................................................................................7
Case T-30/89 Hilti AG v Commission of the EuropeanCommunities [1991] ECR II-1439 [90].
..............................................................................................................................................22
Case T-65/89 Iberian Trading UK Ltd v BPB Industries [1993] ECR II – 00389...................39
Coca-Cola (Case COMP/A.39.116/B2) Commission Decision 2005/670/EC [2005] OJ L 253.
..............................................................................................................................................10
CVC/SLEC (Case No COMP/M.4066) [2006] OJ C 90..........................................................19
De Beers/Alrosa (Case COMP/E-2/38.381).............................................................................33
Dhanraj Pillay v Hockey India [2013] CCI 35.......................................................2, 4, 6, 11,37
Dr Deepa Narula v Taneja Developers and Infrastructures Ltd [2012] CCI 59.......................1
ENIC/UEFA (Case COMP IV/37.806) [2002] para 41..............................................................5
Hemant Sharma v Union of India (2012) 186 DLT 17..............................................................2
Hendry v World Professional Snooker and Billiards Association [2002] UKCLR 5.................4
In Re Union Ferry Co 98 NY 151............................................................................................24
vi
Joint selling of the commercial rights of the UEFA Champions League (COMP /C.2-37.398)
Commission Decision 2003/778/EC [2003] OJ L 291.........................................................19
Joint selling of the media rights to the FA Premier League (Case COMP/38.173) [2006] OJ C
7............................................................................................................................................18
Joint selling of the media rights to the German Bundesliga (Case COMP/37.214) [2005] OJL
134/46...................................................................................................................................38
KNVB/Sport 7 matches (Case IV/36.033) [1996] OJ C228/4..................................................36
Lucas Automotive Engineering v Bridgestone/Firestone Inc 275 F 3d 762...............................5
Minnesota Made Hockey Inc v Minnesota Hockey Inc 789 F Supp 2d 1133.......................3, 32
Om Datt Sharma v Competition Commission of India [2014] CC 121....................................35
Richard Whish, David Bailey, Competition Law (7thedn,OUP 2011)......................................22
Shamsher Kataria v Honda Siel Cars India Limited and Ors [2014] CCI 79...........................6
Singapore Broadcasting Corp v Performing Right Society Ltd [1991] FSR 573....................30
Standard Oil Co of California (Standard Stations) v United States 337 US 293, 70 S Ct 545
(1949)...................................................................................................................................36
Surinder Singh Barmi v Board of Control for Cricket in India [2013] CCI 25.........................2
UEFA Broadcasting Regulations (Case 37.576) Commission Decision 2001/478/EC [2001]
OJ L 171...............................................................................................................................18
Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman [1995]
ECR I-4921..........................................................................................................................37
vii
United Brands Company v Commission [1978] ECR 207.............................................22,28,29
Statutes
Civil Procedure Code 1908, s 10..............................................................................................33
Competition Act 2002, s 19(4)(b)............................................................................................29
Competition Act 2002, s 19(5).................................................................................................22
Competition Act 2002, s 19(6)...........................................................................................27, 41
Competition Act 2002, s 2(b)...................................................................................................54
Competition Act 2002, s 4(2)(a)...............................................................................................38
Competition Act 2002, s 4(2)(c).........................................................................................22, 29
Competition Act 2002, s 4........................................................................................................27
Competition Act 2002, s 53(n).................................................................................................34
Competition Act 2002, s 53(O)................................................................................................33
Competition Act, s 19(4)(a)................................................................................................28, 42
Competition Act, s 19(4)(b).....................................................................................................43
Competition Act, s 19(4)(f)......................................................................................................44
Competition Act, s 19(4)..........................................................................................................28
Competition Act, S 2(f)............................................................................................................25
Competition Act, s 2(h)............................................................................................................23
Competition Act, S 2(t)............................................................................................................24

viii
Competition Act, s 4(2)(c)........................................................................................................45
Indian Contract Act 1872, s 27.................................................................................................58
Other Authorities
Commission of the European Communities, IXth Report on Competition Policy (1979).......52
European Commission Competition Report 1997, p 122........................................................57
Rules
Commission, ‘Guidance on its enforcement priorities in applying Article 82 of the EC Treaty
to abusive exclusionary conduct by dominant undertakings’[2009] OJ C 45/7..................30
Guidelines on Vertical Restraints [2000] O.J. C291/1, para.202.............................................54
Constitutional Provisions
The Constitution of India 1950, art 323-A...............................................................................36
Books
Bellamy & Child, European Community Law of Competition (6th edn, OUP)........................60
C K Takwani, Civil Procedure with Limitation Act,1963 (7thedn, Eastern Book Company
2013) 67...............................................................................................................................34
John J. Miles, Exclusive dealing agreements: Health Care and Antitrust Law (Thomson
Reuters 2015) ch 4 vertical agreements...............................................................................52
Katarina Pijetovic, EU Sport Law and Breakaway Leagues in Football (1stedn, Asser Press
2015) 245.............................................................................................................................26
Richard Whish, David Bailey, Competition Law (7thedn, OUP 2011) 267....................26,29,30
ix
Simon Gardiner, Sports Law (3rdedn, Cavendish Publishing Australia 2006) 367..................51
Stephen Weatherhill, European Sports Law: Collected Papers (2ndedn, Asser Press 2014)....45
Journals
Arnold Vahrenwald, ‘Germany: broadcasting - television by internet service provider’ (2005)
16(6) ENT L R 54................................................................................................................50
Emerson Robert W, ‘Implied Obligations in Franchising: Beyond Terminations’,(1998) 35
Am Bus LJ 559.....................................................................................................................61
Organisation for Economic Co-operation and Development (OECD), Competition Issues in
Television and Broadcasting (DAF/COMP/GF 2013)13.....................................................50
Rau A Lee, ‘Implied Obligations in Franchising: Beyond Terminations’ (1992) 47 Bus Law
1053)....................................................................................................................................61
William M Landes, Richard A Posner, ‘Market Power in Antitrust Cases’ (1981) 94 Harv L
Rev 937................................................................................................................................49
Web Resources
‘2014 FIFA World Cup™ reached 3.2 billion viewers, one billion watched final’ (Fifa.com,
16 Dec 2015) <http://www.fifa.com/worldcup/news/y=2015/m=12/news=2014-fifa-world-
cuptm-reached-3-2-billion-viewers-one-billion-watched--2745519.html>accessed 4th
March 2016..........................................................................................................................40
Ari Gilberg, ‘The 20 highest-paid athletes in the world’ Business Insider (11 June 2015)
<www.businessinsider.in/The-20-highest-paid-athletes-in-the-
world/articleshow/47621190.cms> accessed 6 March 2016................................................25
x
Commission, ‘Antitrust: Commission opens formal investigation into International Skating
Union's eligibility rules’ (Brussels, 5 October 2015) <http://europa.eu/rapid/press-
release_IP-15-5771_en.htm> accessed 27th February 2016.................................................31
Kienapfel Philip and Stein Andreas, ‘The Application of Article 81 and 82 EC in the Sport
Sector’ (2007) 3rd issue EC Competition Policy Newsletter <
http://ec.europa.eu/competition/publications/cpn/2007_3_6.pdf>..................................25,38
Saransh Gehlot, ‘Rakesh Kumar: Kabaddi is in my blood’ (Sportskeeda, 4 July 2015)
<www.sportskeeda.com/kabaddi/interview-rakesh-kumar-kabaddi-blood>accessed on 6
March 2016..........................................................................................................................29
Press Release
Commission, ‘Commission closes its investigation into Formula
One and other four-wheel motor sports’ (30 October 2001) IP/01/1523.............................31
Office of Fair Training, ‘Voluntary assurances given by Bacardi-Martini Limited to the
Director General of Fair Trading’ (National Archives,30 January 2003) PN 10/03............31
LIST OF ABBREVIATIONS
Abbreviations Full Forms
AAEC Appreciable Adverse Effect on Competition
AIR All India Reporter
All ER All England Reports
Anr Another
BKL Bohemian Kabaddi League
CA Competition Act
xi
CAT Competition Appellate Tribunal (UK)
CCI Competition Commission of India
CMLR Common Market Law Reports
Co Company
COMPAT Competition Appellate Tribunal
Del Delhi
DG Director General
DLT Delhi Law Times
ECR European Court Reports
Edn Edition
EEC European Economic Community
F 2d Federal Reporter, Second Series
F 3d Federal Reporter, Third Series
F Supp Federal Supplement
Inc Incorporated
ISPs Independent Service Providers
KFB Kabaddi Federation of Bohemia
KSL Kabaddi Super League
Ltd Limited
MoYSA Ministry of Youth and Sports Affairs
No Number
OFT Office of Fair Trading
OJ Official Journal
Ors Others
S Section
SCC Supreme Court Cases
Supp Supplement
TFEU Treaty for the Functioning of the European Union

xii
T&C Terms and Conditions
UKCLR UK Competition Law Reporter
UOI Union of India
US United States
V Versus
WP Writ Petition
STATEMENT OF JURISDICTION
In the present Appeal under Section 53T of the Competition Act, 2002 concerning the matter
of Kabaddi Federation Of Bohemia & Ors v X Sports & Ors. The Respondents humbly
submits to the jurisdiction of this Hon’ble Court.
xiii
of X Sports & Ors v Kabaddi Federation Of Bohemia & Ors. The Appellants humbly
submits to the jurisdiction of this Hon’ble Court.
of Bohemian Kabaddi League v Luminous Sports. The Respondents humbly submits to the
jurisdiction of this Hon’ble Court.
of BooTube v Luminous Sports. The Respondents humbly submits to the Jurisdiction of this
Hon’ble Court.
of Rodidas v Bohemian Kabaddi League & Ors. The Appellants humbly submits to the
jurisdiction of this Hon’ble Court.
STATEMENT OF FACTS
(i) Background:
Bohemia is a republic in South Asia and its laws are in pari materia with the laws of India.
Bohemia enacted its Competition Act in 2002. CCB treats decisions of the CCI as having
xiv
persuasive value and also also relies on precedent of competition regulators of the EU and the
US.
SAKF is the apex body in South Asia responsible for the promotion and regulation of
Kabaddi in South Asia and KFB is for Bohemia. It’s affiliated to BOA and the SAKF.
X Television Network announced the launch of its sports channel ‘X Sports’ with the launch
of the KSL, a professional sporting league based on franchisee model and a KSL governing
council. The opening season of KSL organised in the end of November 2014 was a huge
success. The second season was announced to take place in November 2015.
(ii) KFB’s new regulations and the ensuing events:
In August’15, KFB also announced its own Kabaddi League, ‘BKL’ on the same lines and a
15-day training and fitness camp for selection of national team Asian Kabaddi Championship
in China, the dates coinciding with the 2nd edition of the KSL.
In September’15, KFB published a list of sanctioned and unsanctioned events (approved by
the SAKF), participation in the latter resulting in disciplinary action. This was one of the
clause in the fresh agreements signed with players. The new regulations took effect from 1
November’15. KSL wasn’t on the list of sanctioned events.
(iii) Tendering of Broadcasting rights by BKL :
BKL sold franchises for ten teams and also invited global tenders for live telecast of the
matches in Bohemia and in rest of the world. Luminous Sports, Media Bohemia and X Sports
entered bids for exclusive broadcasting rights. The rights were awarded to Luminous Sports.
Aggrieved by this decision, BKL awarded the broadcasting rights to Media Bohemia in
xv
addition to Luminous Sports after Media Bohemia filed a petition before the Bohemian SC
stating that it should be granted the broadcasting rights for BKL as it was the national
broadcaster in Bohemia and had the widest reach across Bohemia. Luminous Sports filed a
suit against BKL for breach of contract and an Information under Section 19 of the
Competition Act before the CCB, alleging abuse of dominance by BKL. BooTube, an online
video streaming website, approached Luminous Sports for the internet broadcasting rights of
BKL matches. Luminous Sports proposed few conditions which BooTube refused to accept.
Later Luminous Sports advertised launched its own online platform and its mobile
application. BooTube filed an Infor
mation against Luminous Sports for abusing its dominance in the market.
(iv) Sponsorship of merchandise of BKL:
Cougar, an international manufacturer of T-Shirts and caps was awarded the exclusive
merchandise rights by BKL, for each of the ten teams for the opening season. The exclusive
merchandising agreement contained an automatic renewal clause. Rodidas, a Bohemian
manufacturer of the same filed Information before the CCB alleging that the automatic
renewal clause was anti-competitive.
(v) Order of CCB :
CCB clubbed the three cases and directed the DG to conduct an investigation. Meanwhile, X
Sports filed Information against BKL for abusing its dominance. The DG recorded that KFB
had become dominant in the market violating Section 4 of the Competition Act. DG’s report
recommended that BKL had abused its dominant position and the exclusive supply agreement
between BKL and Cougar violated Section 3(4) and Section 4 of the Competition Act. The
CCB noted that the conduct of BKL was abusive in nature and that Luminous Sports had not
violated the Competition Act. The CCB passed the order directing KFB and BKL to cease
from continuing with the restrictive clauses contained in the contract between the players and
xvi
various member associations of KFB. Aggrieved by the decision of the CCB, KFB and BKL
filed an Appeal before the COMPAT. BooTube also approached the COMPAT against the
order of the CCB regarding Luminous Sports.
(vi) Order of COMPAT:
COMPAT heard all the parties and reaffirmed the decision of the CCB holding that KFB and
BKL had abused their dominant position, dismissed BooTube’s appeal and held that the
merchandising contract didn’t violate Section 4.
(vii) Appeal before Supreme Court:
Aggrieved by the decision of the COMPAT, KFB and BKL, Rodidas and Bootube appealed
the decision challenging the findings of the COMPAT before the Supreme Court. X Sports
during the pendency of the appeals filed an application under Section 53N of the Competition
Act before the COMPAT claiming compensation which the COMPAT ordered to be put under
abeyance till the SC decides on the appeals. X Sports appealed against this order before the
SC. The Supreme Court admitted all the appeals and directed them to be heard together.
ISSUES FOR CONSIDERATION
1) WHETHER THE AGREEMENT OF KFB AND BKL WITH THE PLAYERS
HAS RESULTED IN FORECLOSURE OF MARKET SUCH THAT IT WOULD LEAD
TO ABUSE OF DOMINANCE?
2) WHETHER COMPAT IS BOUND TO INITIATE COMPENSATION
PROCEEDINGS UNDER SECTION 53 N TO X SPORTS BEFORE THE DISPOSAL
OF APPEAL?
xvii
3) WHETHER THE KFB AND BKL HAVE CARRIED OUT AN ABUSE OF
DOMINANT POSITION IN THEIR BROADCASTING AGREEMENT WITH WITH
LUMINOUS SPORTS?
4) WHETHER THE AGREEMENT CLAUSES OFFERED BY LUMINOUS
SPORT FOR BROADCASTING RIGHTS DENIED THE MARKET ACCESS TO
OTHER COMPETITORS LIKE BOOTUBE?
5) WHETHER THE MERCHANDISING AGREEMENT AWARDED TO
COUGAR BY BKL WAS AN ANTI- COMPETITIVE AGREEMENT?
SUMMARY OF ARGUMENTS
IN DENIAL OF MARKET ACCESS AND FORECLOSURE OF MARKET WHICH
RESULTS IN ABUSE OF DOMINANCE BY KFB
1.1 KFB shall be considered as an “enterprise” and would fall under the jurisdiction of the
Competition Act, 2002.
1.2 The relevant market in the current case is “conducting and governing national and
international Kabaddi in Bohemia”.
xviii
1.3 KFB is in a dominant position within the relevant market and possesses market power.
1.4 KFB abused its dominant position by entering into exclusive agreements with its players.
2. THE COMPAT ISN’T BOUND TO INITIATE COMPENSATION PROCEEDINGS
UNDER SECTION 53(N) BEFORE THE APPEALS IN SUPREME COURT AREN’T
DISPOSED.
2.1 The matter of compensation filed in application under Section 53(N) of the Competition
Act is sub-judice to the appeal pending before the Supreme Court.
2.2 If the Supreme Court decides in favour of KFB and the COMPAT decides in favour of X
Sports, then the two situations are contradictory.
2.3 The trial of both proceedings is also a waste of the time and resources of the State and the
concerned parties.
BROADCASTING AGREEMENT WITH LUMINOUS SPORT
3.1 The relevant market in this case is “Broadcasting Rights for BKL matches in Bohemia”.
3.2 BKL is in a dominant position in the upstream of the defined relevant market.
3.3 BKL abused its dominant position by unilaterally modifying the exclusive broadcasting
agreement and granting preferential treatment to Media Bohemia.
BROADCASTING RIGHTS DID NOT DENY MARKET ACCESS
4.1 The relevant market is the broadcasting of sports matches in Bohemia.
4.2 The respondent is not dominant under Section 4 to cause foreclosure in the market,
because of the countervailing market power of the rivals, low market power and low market
shares.
xix
4.3 The clauses offered to Boo Tube can be very well justified under ‘objective justification’
of the action of an undertaking holding special rights.
COMPETITIVE AGREEMENT AND THERE WAS AN ABUSE OF DOMINANCE ON
PART OF BKL AND KFB.
5.1 BKL is an enterprise under Section 2(h) of the Act.
5.2 Agreement entered into by the respondents is an exclusive-supply agreement. The auto –
renewal clause in the agreement is anti-competitive and puts barriers to the entry.
5.3 The agreement between the Respondents and their authorized service providers is likely
to cause AAEC by foreclosing the market. The agreement entered into between the
respondent and franchisees is also in the restraint of trade.
5.4 The respondents have abused their position under Section 4(2) (a) (ii).
xx
WRITTEN SUBMISSIONS
IN DENIAL OF MARKET ACCESS AND FORECLOSURE OF MARKET
WHICH RESULTS IN ABUSE OF DOMINANCE BY KFB
The counsels for X Sports submit that exclusive agreements between Kabaddi Federation of
Bohemia (hereafter KFB) and players imposing disciplinary sanctions for participating in
Kabaddi Super League (hereafter KSL) and other “unsanctioned events” 1 resulted in denial of
market access and foreclosure of relevant market for the respondent. The denial of market
access results in abuse of dominance that KFB wields in the relevant market for the
respondent.2 Firstly, the jurisdiction of the Competition Act shall be established over the
appellants. In order to determine whether an enterprise is abusing its dominant position or
not, it is necessary to determine the relevant market in which that particular enterprise was
alleged to be in a dominant position.3 The next issue would be whether the enterprise abused
its dominant position in any manner in that relevant market in terms of Section 4 of the Act. 4
It is submitted that for determining the relevant market, due regard should be paid to the
relevant product market and relevant geographic market.5
1
Proposition para 10.
2
Competition Act 2002, s 4(2)(c).
3
Dr Deepa Narula v Taneja Developers and Infrastructures Ltd [2012] CCI 59.
4
ibid.
5
Competition Act 2002, s 19(5).
1
1.1 KFB falls under the jurisdiction of the Competition Act, 2002
It is submitted that sporting federations are liable to be treated as “enterprise” under Section
2(h) of the Competition Act.6 Sporting federations have been involved in commercial
activities such as organization of private professional league which make federation liable to
be treated as an “enterprise”.
The Competition Act focuses on the functional aspects of the body than the institutional
aspect.7 It has been previously held in Surinder Singh Barmi v Board of Control for Cricket
in India8 that Board of Control for Cricket in India (hereafter BCCI), registered non-profit
society and regulatory federation for Cricket in India is an “enterprise”. Hockey India, the
regulatory authority for Hockey in India, is an enterprise within the ambit of the Act for
commercial activities.9
In the current scenario, KFB has indulged in commercial activities such as creation of
Bohemian Kabaddi League (BKL) and selling broadcasting rights, franchisee rights and
merchandising rights for the same.10 The exceptions provided for exemption from application
of the Act11 are not applicable.

The European Court of Justice has held that any commercial activity related to sport does not
immune the activity from the application of the Treaty or Competition Law. 12 Such a
conclusion is not hindered by regulatory nature of the body.13 Exchange of money for services
6
Hemant Sharma v Union of India (2012) 186 DLT 17.
7
Surinder Singh Barmi v Board of Control for Cricket in India [2013] CCI 25.
8
ibid.
9
Dhanraj Pillay v Hockey India [2013] CCI 35.
10
Proposition paras 12, 22.
11
Competition Act, s 2(h).
12
Case C-49/07 MOTOE v Elliniko Dimosio (2008) ECR I-4863.
13
ibid.
2
even by a non-profit organization is a commercial transaction and same cannot be granted
immunity under the antitrust laws merely on their institutional status.14

Lastly, the mere fact that a rule or regulation is sporting does not immunize person or body
involved in formation of such rule from Competition law.15 An inherent sporting rule which is
restrictive and anti-competitive can be challenged for violation of the Treaty. 16 Therefore,
KFB falls under the jurisdiction of the Competition Act.
1.2 The relevant market is “conducting and governing, national and international
Kabaddi in Bohemia”
The relevant market in this case would constitute of ‘conducting and governing, national and
international Kabaddi in Bohemia’. The relevant product market would be the conduct and
governance of Kabaddi in Bohemia, and relevant geographic market would be limited to
Bohemia.
(A) The relevant product market is “conducting and governing national and
international Kabaddi”
The counsels submit that determination of relevant product would be dependent upon
interchangeability or substitutability by the consumer. 17 A sport involves multitude of
relationships.18 It is submitted that the product of the case is organization of Kabaddi in the
nation of Bohemia. The consumers of the same are primarily players of the sport. Conducting
and governing such a sport is a unique product in its nature and does not have any
interchangeable substitutes for the consumer.

14
Minnesota Made Hockey Inc v Minnesota Hockey Inc 789 F Supp 2d 1133.
15
Case C-519/04 David Meca-Medina and Igor Majcen v Commission of the European
Communities [2006] ECR I-6991.

16
ibid.
17
Competition Act, S 2(t).
18
Dhanraj (n 9).
3
(i) Players constitute the “consumer” in relevant product market
It is submitted that without athletes, sports cannot exist. Players ply their trade in professional
sport for a specific consideration through match fees. The exchange of services for the team,
which in this case is regulated by the federation, causes the player to become a “consumer” of
the services offered by the federation or tournament organisers. 19 Certain ‘star’ players who
are often the best players in sport also manage to earn supplementary income from
endorsements depending upon their marketability. 20 It is reasonable to deduce that
professional sportsperson depend immensely upon the federation or organisers of the sport
for their livelihood, since without the opportunity to display their skills in the sport, the
player would have no chance to exploit such skills for profit.21
Viewers gravitate to the event depending upon a number of considerations, especially upon
the quality of the event. The quality of the event is dependent upon the quality of players
playing the sport. Outstanding players or ‘stars’ play an important role in attracting fans. The
mere presence of stars had a substantial positive impact on revenues.
The movement of the viewer towards the sport leads to an increase in revenue in a number of
ways. The event is followed live by a cumulative audience of hundreds of millions of fans on
different kinds of media devices, which makes the event especially interesting for sponsors
19
Competition Act, S 2(f).
20
Ari Gilberg, ‘The 20 highest-paid athletes in the world’ Business Insider (11 June 2015)
<www.businessinsider.in/The-20-highest-paid-athletes-in-the-
world/articleshow/47621190.cms> accessed 6 March 2016.

21
Hendry v World Professional Snooker and Billiards Association [2002] UKCLR 5.
4
and advertisers aiming to reach large targeted audiences.22 The preference of viewers
determines the value of a programme to advertisers and pay TV broadcasters.23
(ii) There exists a lack of demand substitutability for the consumer
The outer boundaries of a product market are determined by the reasonable inter-
changeability of use or the cross-elasticity of demand between the product itself and
substitutes for it.24 It is submitted that the product in the current scenario does not have any
substitutes for itself. The game requires a degree of specialization and skills on part of the
professionals involved and they cannot be substituted for involvement in other sports. This
makes players solely effectually dependent upon the governing body of the game for
sustaining themselves as professional-sportspersons. The choices of the players are further
restricted when market for competing leagues within the relevant market are closed down
while introducing sanction for tournaments.
The activity of conducting and the sport has no interchangeability within themselves. 25 The
exploitation of sport for commercial purposes is complementary to governance and conduct
of the sport.26 KFB is involved in a similar dual function of providing for governance and
conduct of the sport and commercial exploitation of the same through BKL.
(B) The relevant geographic market is the State of Bohemia
22
Katarina Pijetovic, EU Sport Law and Breakaway Leagues in Football (1stedn, Asser Press
2015) 245.
23
ENIC/UEFA (Case COMP IV/37.806) [2002] para 41.
24
Lucas Automotive Engineering v Bridgestone/Firestone Inc 275 F 3d 762.
25
MOTOE (n 12).
26
ibid.
5
While giving to all or any of the factors enumerated under clause (a) to (h)27 the relevant
geographic market would be the State of Bohemia.28
1.3 The appellant is in dominant position in the relevant market and possesses “market
power”
The Appellant submits the definition of ‘dominant position’ under Section 4(2) of the Act is
similar to that under Article 102 of TFEU. 29 A dominant position under relates to a position
by an undertaking which enables it to prevent effective competition being maintained on the
relevant market by affording it the power to behave to an appreciable extent independently of
its competitor, customers and ultimately of its consumers.30 In order to assess the dominance
in the relevant market in the instant case, the Appellant considers it imperative to analyse
factors listed in Section 19(4).
(A)Market share and size of the enterprise
It is submitted that market share is a relevant factor in determining the dominant position of
the enterprise.31 In Hoffman-La Roche32 the Court held that ‘very large shares’ are in
themselves indicative of dominance unless there are ‘exceptional circumstances’. A rule-
making authority such as a national sporting federation occupies a dominant position by the
virtue of its functions.33 Further, the size of the enterprise and resources too are indicative of
27
28
Dhanraj (n 9).
29
Shamsher Kataria v Honda Siel Cars India Limited and Ors [2014] CCI 79.
30
Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461.
31
Competition Act, s 19(4)(a).
32
Hoffman-La Roche (n 30).
6
dominance.34 The control of KFB over its state-federations and resources including players
and stadiums establish the dominant position of the enterprise. The market is further
vertically integrated when KFB has state associations under its ambit and all Kabaddi players
of Bohemia are contracted to these State-associations.
(B)High consumer dependence
The consumers for the relevant market do not have any substitutable alternatives except
working within the realm of KFB. This is true since conducting ambit of KFB also includes
selection of national teams for international events. Many players of sport consider playing
for their country to be the highest honour they can achieve within their sporting careers. 35
Thus, the consumer depends highly upon the enterprise.36
1.4 KFB abused its dominant position by entering into exclusive agreements with
players
The Court of Justice held in Michelin v Commission37 that a firm in dominant position of the
market has a special responsibility of not allowing its conduct to hamper the undistorted
33
Case T-193/02 Laurent Piau v Commission of the European Communities [2005] ECR II-
209.
34
Competition Act, s 19(4).
35
Saransh Gehlot, ‘Rakesh Kumar: Kabaddi is in my blood’ (Sportskeeda, 4 July 2015)
<www.sportskeeda.com/kabaddi/interview-rakesh-kumar-kabaddi-blood>accessed on 6
March 2016.
36
Competition Act 2002, s 19(4)(b).
37
Case 322/81 Michelin v Commission [1983] ECR 3461.
7
competition on market. The meaning of the term abuse in Deutsche Telekom v Commission38
it said after quoting paragraph 91 from Hofmann-La Roche39, that
“A dominant firm must not strengthen its position by using methods other than those which
come under the scope of competition on merits.”
The restriction on players to take part in KSL created a horizontal foreclosure of market for
KSL into the relevant market of conducting the sport of Kabaddi in Bohemia. This led to
denial of market access for the respondent to enter into the market for Kabaddi and can be
classified as abuse of dominance under the Act. 40 Finally, there arises a conflict of interest
between the regulatory and commercial function of KBL which is causing exploitation of the
market position.
(A) KFB caused horizontal foreclosure of market by establishing an exclusive
purchasing agreement with players
It is submitted that a horizontal foreclosure of market takes place when a competing supplier
is cut off from the end consumer by the actions of dominant undertaking. 41 A horizontal
foreclosure is caused especially when the dominant firm enters into an exclusive purchase
agreement with the consumer.
An exclusive purchase agreement is an agreement where the purchaser is prevented from
purchasing competing products from anyone other than the dominating firm. Such an
obligation or promise either on part of the consumer or the dominant undertaking constitutes
38
Case C- 280/08P Deutsche Telekom AG v Commission [2010] ECR I-000.
39
Hoffman-La Roche (n 30).
40
Competition Act 2002, s 4(2)(c).
41
Richard Whish, David Bailey, Competition Law (7thedn, OUP 2011) 267.
8
an abuse of dominance under Article 102.42 The finding of abuse will not be deterred by the
fact whether consumer wilfully or not subjected himself to it. 43 The Coca-Cola Company
agreed that it would refrain from entering into exclusive purchasing commitments with
customers in 2004.44 Bacardi promised similar assurances regarding its agreements with pubs
and bars for selling of white rum.45
The FIA, organiser of Formula 1 racing, was investigated by the Commission for indulging in
abuse of dominance when its exclusive licensing contract among others included the option
for termination for participation in rival events not organized or sanctioned by FIA. The
Commission settled the matter with FIA which lifted these anti-competitive restrictions. 46 The
Commission has recently formal investigation into International Skating Union's eligibility
rules which imposed similar restrictions on competing events.47
In the current case, the appellant has indulged in similar conduct while restricting players
from participating in KSL. The appellant unilaterally imposed these obligations despite
42
Hoffman La-Roche (n 30) para 89.
43
Commission, ‘Guidance on its enforcement priorities in applying Article 82 of the EC
Treaty to abusive exclusionary conduct by dominant undertakings’[2009] OJ C 45/7.

44
Coca-Cola (Case COMP/A.39.116/B2) Commission Decision 2005/670/EC [2005] OJ L
253.
45
Office of Fair Training, ‘Voluntary assurances given by Bacardi-Martini Limited to the
Director General of Fair Trading’ (National Archives,30 January 2003) PN 10/03.

46
Commission, ‘Commission closes its investigation into Formula
One and other four-wheel motor sports’ (30 October 2001) IP/01/1523.
47
Commission, ‘Antitrust: Commission opens formal investigation into International Skating
Union's eligibility rules’ (Brussels, 5 October 2015) <http://europa.eu/rapid/press-release_IP-
15-5771_en.htm> accessed 27th February 2016.

9
protest from players.48 The scheduling of compulsory national camp with second season of
KSL cannot be treated as mere co-incidence and indicates intent of the appellant to drive
respondent out of the market. The effect of the sanctioned and unsanctioned list was set to be
from 1 November, 2015, the month when second season of KBL was scheduled to be held. 49
The access to players was thus restricted. Denial to a market of players results in loss of
market or profitability within the league as established earlier in the analysis of relevant
market. This was the case when the second season of KSL was not as successful and reasons
were attributed to these missing players.50
However, a monopolist's refusal to deal with customers who deal with its rivals is inherently
anticompetitive and illegal51. Thus, it is submitted that the appellant indulged in foreclosure
of market which resulted in denial of market access on part of KSL.
(B) Existence of conflict between regulatory and commercial function of KFB
It is submitted that there exists a conflict of interest on part of KFB when it exercises both
regulatory and commercial function in running the sport. The intertwining of both these
functions has resulted in the abuse of dominance on the part of federation. The Commission
in the settlement of FIA52 case also ensured that the conflict between regulatory duties and
commercial functions was addressed by FIA which agreed to forgo its commercial role. The
conflict of interest between these roles was also commented upon in Dhanraj Pillay v Hockey
India53 where CCI called for clear articulation and differentiation between the regulatory and
48
Proposition para 9.
49
50
51
Andrew Byars v Bluff City News Co Inc 609 F 2d 843.
52
ibid.
53
Dhanraj(n 9).
10
commercial function. Thus, the disintegration of BKL and KFB is not excessive in nature and
ensures maintenance of competition and public interest in the long run.
2) COMPAT IS BOUND TO INITIATE COMPENSATION PROCEEDINGS UNDER
SECTION 53 N TO X SPORTS BEFORE THE DISPOSAL OF APPEAL
2.1 COMPAT is bound to initiate compensation proceedings
A claim for compensation can only be brought before the COMPAT as under Section 53(N)
of the Act it is the only mechanism provided for private antitrust cases dealing with
compensation for inflicted damages resulting from competition law violations. COMPAT is
the authority where the claim should begin, hence, X Sports had to approach COMPAT for
seeking compensation.
The conditions set out by subsection(1) of Section 53(N) are that an application for
compensation may be made after either the Commission or the COMPAT has determined in a
proceeding before it that a violation of the provisions of the act has taken place.
Now, CCB in its findings held that KFB and BKL violated Section 4. This order was
appealed by KFB before the COMPAT54 which as per section 53(B) of the Competition Act 55
could only be done within a period of sixty days from the date of such order. The COMPAT
reaffirmed the decision of the CCB holding that KFB had abused its dominant position. 56
KFB further appealed the order of COMPAT in the SC under Section 53(T) of the
54
55
Competition Act 2002, s 53(B).
56
11
Competition Act57which again could be done within the same limitation period. Also, all the
appeals were made within the limitation period.58
However, no such limitation is imposed on an application for compensation which thereby
means that such application can be made any time after the Commission or the COMPAT has
given its order, therefore there wasn’t any such obligation for X Sports. In the MRTP Act,
1969, it was held by the Commission that these were no provision making the Law of
Limitation applicable to such application.59
The explanation (a) of Section 53(N) requires the order of the Commission or COMPAT
where it has determined before it that there was a contravention of Chapter II of the Act. Thus
the requirements under Section 53(N) are clearly met as for initiating compensation
proceedings, X Sports has such order of the COMPAT.
Also explanation (b) of Section 53(N) of the Competition Act, enquiry is to be made for the
purpose of determining the eligibility and quantum of compensation and not for examining
afresh the findings of the Commission or the COMPAT on whether any violation of the Act
has taken place. The COMPAT therefore is bound from the express Section to initiate
compensation proceedings looking into the eligibility.
Under Section 19, the Commission only enquires into any alleged contraventions of the act
whereas application under Section 53 (N) that is not to be based on any new findings but
based on findings in the order of the COMPAT, hence the issues aren’t identical. The appeal
that lies in SC is on the former and not the latter, explanation (b) of section 53(N) making
them different. Hence, COMPAT has a discretion as to whether it would award compensation
57
Competition Act 2002, s 53(T).
58
Clarifications para 44, 45.
59
Rakesh Pawar v National Insurance Co Ltd (1997) 27 CLA 113 (MRTPC).
12
to X Sports but not on whether compensation proceedings should be initiated or not when X
Sports satisfies all conditions for so.
As per section53-O60 and section 3 of the COMPAT Regulations, 2010, 61 the COMPAT shall
not be bound by the procedure laid down in CPC but shall be guided by the principles of
natural justice. In exercise of its powers it can go beyond CPC so long as they pass orders in
conformity with the principles of natural justice 62. The chief rules of natural justice include
giving each party an opportunity of adequately stating his case. 63 Fair hearing is necessary
even when something is obvious64, however, COMPAT put the compensation application
under abeyance stating that compensation claims would be heard after the SC passed a final
order in the appeals against its orders although it should have provided X-Sports with an
opportunity to state their claims as the requirements under section 53(N) have been met.
While courts are governed by detailed procedural rules, tribunals generally regulate their own
procedure applying the provisions of the CPC only where it is required. 65 The legislature
created tribunals and transferred the work ordinarily done by courts to them to provide for
speedy disposal and to reduce the burden on the civil courts. Most of the tribunals have been
given the power to lay down their own procedure unlike that of the regularly constituted
courts. In each case, the principles of natural justice are required to be observed.66
60
Competition Act 2002, 53(O).
61
The Competition Appellate Tribunal (Procedures for Appeals & Applications) Regulations
2010, s 3.
62
Allahabad Bank v Radha Krishna Maity [1998] 98 Comp Case 264 (SC).
63
D K Yadav v J M A Industries Ltd [1993] 3 SCC 259.
64
Union Carbide Corporation v UOI AIR 1992 SC 248.
65
UOI v Madras Bar Assn (2010) 11 SCC 35 para 35.
66
State of Gujarat v Gujarat Revenue Tribunal Bar Assn (2012) 10 SCC 353 para 16.
13
2.2 Contravention of section 4 resulted in loss or damage
Owing to the abuse of its dominant position by KFB, KSL suffered loss. Few players who
had entered into agreements with KSL had terminated their contracts and didn’t participate in
the second season. The second season wasn’t as much of a success as the first 67. For the claim
of compensation to stand, an injury-in-fact caused by the alleged wrongdoing 68 and the nature
of injury being that which is protected by Competition Law which makes the defendant’s act
unlawful69 have to be established. The regulations that the KFB had come up with would
eventually force KSL out of the market as being an unsanctioned-event, players participating
in it would face disciplinary-action, simultaneously the dates clashing with the 15 day
national-camp to be organized in Bohemia which required compulsory attendance, KSL
wouldn’t observe participation from these players and in absence of players, KSL would be
forced out of the market. To sufficiently plead causation, the plaintiff must allege that the
defendant violated the competition laws and that violation has a ‘tendency’ to injure
plaintiff’s business.70 Hence, there clearly has been an injury to KSL and there is a ‘tendency’
of it being forced out of the market owing to the direct contravention of the competition laws
by KFB.
Any person who is affected by any prohibited practice should have a remedy to recover
damages from the guilty party. There being a clear contravention of section 4 by KFB
resulting in loss to X Sports, there being a legal injury which is protected by Competition
Law and going by the principle of ‘ubi jus ibi remedium’, COMPAT is bound to initiate
67
68
Associated Gen Contractors of California Inc v California State Council of Carpenters 459
US 519 [1983].
69
Brunswick Corp v Pueblo Bowl-o-Mat Inc US 477 [1977].
70
Amerinet Inc v Xerox Corp 972 F 2d 1483.
14
compensation proceedings and provide a remedy to X Sports as it is the appropriate forum to
approach in regard of any private antitrust claims. Also, the COMPAT cannot keep an
aggrieved party which has a clear case for claiming compensation waiting till the SC doesn’t
decide on the matter which might take time for its disposal.
The counsels for the appellants humbly submit that KSL has an actionable injury under
section 53(N) of the Competition Act, 2002, therefore COMPAT is bound to initiate
compensation proceedings to determine the eligibility and quantum.
BROADCASTING AGREEMENT WITH LUMINOUS SPORT
The counsels for respondents Luminous Sport submit that the unilateral action of BKL to
award broadcasting rights to Media Bohemia was an abuse of dominant position. The
relevant product market is submitted to be in this case is “Broadcasting rights for BKL
matches in Bohemia”. In the said relevant market, the federation holds a dominant position
in the upstream market of acquisition of broadcasting rights. The invocation of Clause 87.II.A
for further licensing of the rights was imposition of an unfair and discriminatory condition in
purchase of these rights.71 The unilateral modification of the contract violated the essence of
the exclusive broadcasting contract. The provision of specialised services by a “sports
channel” vis-à-vis a national broadcaster requires a higher level of investment, commercial
qualifications and technical considerations and awarding of such a contract amounts to free-
riding.
71
Competition Act 2002, s 4(2)(a).
15
3.1 The relevant market in this case is “Broadcasting Rights for BKL matches in
Bohemia”.
It is submitted that the relevant market in the case would be “Broadcasting rights for BKL
matches”. The relevant market would be divided into both, “relevant product market” and
“relevant geographic market”. The relevant product market would be “Broadcasting Rights
for BKL matches” which would be divided into the upstream market of “Acquisition of such
broadcasting rights” which influences the downstream market of “Broadcasting of BKL
matches”. The relevant geographic market in the current case is restricted to the country of
“Bohemia”.
(A) The relevant product market is “Broadcasting rights for BKL matches”.
It is submitted that sport media rights constitute one of the main factors that have driven
economic growth in the sport sector.72 For many media operators, sports right are must have
content and the Commission in past has recognized in various decisions that sport rights
constitute “vital input” and key sales driver in the media sector.73
(i)The upstream product market is “acquisition of broadcasting rights for BKL
matches”
It is submitted that the upstream product market in this case is the acquisition of broadcasting
rights for BKL matches. Viewer preferences are decisive for all types of broadcasters in their
programme acquisition policy and thus determine the value of a programme to broadcasters. 74
A number of broadcasters cater to these viewer preferences and accordingly seek to acquire
72
Kienapfel Philip and Stein Andreas, ‘The Application of Article 81 and 82 EC in the Sport
Sector’ (2007) 3rd issue EC Competition Policy Newsletter <
http://ec.europa.eu/competition/publications/cpn/2007_3_6.pdf>.
73
ibid.
16
the rights to telecast various sporting events. In the upstream market, all broadcasters
compete for these rights. These rights entitle them to broadcast the event on their television
networks or channels for the viewer. Broadcasters acquire programmes in order to attract
large audiences whether they are financed fully or partially by advertising revenues or not 75.
The allocation of these rights often takes place through a tendering process conducted by the
league or federation allocating these rights in question. Luminous Sport in the current case
similarly bagged these rights through a tendering process subject to “technical requirements
and commercial considerations”.76
The Commission held in the case of UEFA Broadcasting regulations77 that a separate market
for broadcast of sports could be further narrowed to the sport itself, as the popularity of
football commands a separate market. Differentiation could also take place on the matter of
how regularly or irregularly sporting events were conducted within a sport itself 78 compared
to regular sporting events The relevant market for broadcasting rights of such events which
74
British Interactive Broadcasting/Open (Case IV/36.539) Commission Decision
1999/781/EC [1999] OJ L 312.

75
Joint selling of the media rights to the FA Premier League (Case COMP/38.173) [2006] OJ
C 7.
76
77
UEFA Broadcasting Regulations (Case 37.576) Commission Decision 2001/478/EC [2001]
OJ L 171.
78
‘2014 FIFA World Cup™ reached 3.2 billion viewers, one billion watched final’ (Fifa.com,
16 Dec 2015) <http://www.fifa.com/worldcup/news/y=2015/m=12/news=2014-fifa-world-
cuptm-reached-3-2-billion-viewers-one-billion-watched--2745519.html>accessed 4th March
2016.
17
happen at a periodic interval longer than any forms of sport is different from such
tournaments.79
With a wider choice available to viewers, branding of such channels encourages audiences to
build loyalty towards a particular channel.80 However, loyalty for such channels can only be
achieved when a channel seeks to differentiate its content from others. 81 By bidding for the
rights of BKL, the respondent seeks to build a brand image for itself in the domain of
Kabaddi broadcasting. Thus a different relevant market for broadcasting of Kabaddi matches
exists.
(ii) No demand substitutability restricts the market to BKL matches
The scenario of broadcasting Kabaddi in the relevant market has two viable scenarios,
broadcasting of KSL and broadcasting of BKL. The market for broadcasting of KSL is
already monopolized by X Sports who are the promoters of KSL. 82 Thus, the broadcasting
rights of BKL are not interchangeable and the upstream market is limited to ‘Acquiring
broadcasting rights of BKL’.
(iii) The downstream product market is “Broadcasting of BKL matches”
It is submitted that the broadcasting of these matches in the downstream market is dependent
upon the acquisition of rights in the upstream market. While many cases have held that the
downstream market for broadcasting of sports events is divided into separate markets for pay-
79
CVC/SLEC (Case No COMP/M.4066) [2006] OJ C 90.
80
Joint selling of the commercial rights of the UEFA Champions League (COMP /C.2-37.398)
Commission Decision 2003/778/EC [2003] OJ L 291.

81
ibid.
82
Proposition para 6.
18
TV and free-for-all viewing83, this cannot be the case in current scenario. Luminous Sports
and Media Bohemia were competing for the same tender which the former won after
presenting a bid fulfilling the required conditions. Both the parties are in competition for
viewers and advertisers as well.
Lastly, even if we were to assume both constituted separate downstream markets, the
exclusive contract given to Luminous Sport ensures supply only to the relevant downstream
market of pay-TV.
(B)The relevant geographic market for the case is restricted to Bohemia
While defining the relevant geographic market, due regard should be given to all or any of
the factors enumerated under clause (a) to (h).84 The broadcasting rights for Indian and global
viewership have been allocated via two separate contracts, both of which have been won by
Luminous Sports85. However, in the present case, the conduct of BKL with respect to
exclusivity of the contract is limited to the Bohemian contract. Further, it has been held that
the relevant geographic market for broadcasting rights is limited to a nation86
3.2 BKL is in dominant position in the defined relevant market
The market share of BKL vis-à-vis the respondent in the upstream market of acquisition as
defined is close to monopoly. The size and resources of BKL as a league gives it a higher
bargaining power compared to the respondent. The respondent further submits that the
dependence of the consumer for these broadcasting rights entitles the federation to establish
its dominance. Lastly, the enterprise is able to create a barrier while specifying the
83
BSkyB/Kirch(Case No COMP/JV37) EEC No 4064/89.
84
85
Clarification 6.
86
UEFA (n 77) para 90.
19
requirements for tender87 and by its own conduct of misusing Clause 87.II.A and granting
broadcasting rights to Media Bohemia, established dominance within the relevant product
market.
(A) Market share and size and resources of the enterprise indicate existence of
market power.
It is submitted that market share is a relevant factor in determining dominant position of the
enterprise.88 The existence of a dominant position may derive from several factors which,
taken separately, are not necessarily determinative but among these factors a highly important
one is the existence of very large market shares. 89 The view may legitimately be taken that
very large shares are in themselves, and save in exceptional circumstances, evidence of the
existence of a dominant position.90 There are varying degrees of market power – from none,
to ‘non-appreciable’, to ‘substantial’, to pure monopoly. Market share figures tell
us something about where an undertaking is along this continuum.91 Further, market power
can be equated with dominance.92
In the current scenario, due to pre-existing foreclosure of media rights for KSL, BKL is the
only enterprise which can provide for such services to media companies fighting for these
rights. The restrictions placed upon players for not participating in KSL and players moving
87
Clarification 14.
88
Competition Act, s 19(4)(a).
89
Case T-30/89 Hilti AG v Commission of the European Communities [1991] ECR II-1439
[90].
90
Hoffmann (n 30).
91
Richard Whish, David Bailey, Competition Law (7thedn,OUP 2011).
92
United Brands Company v Commission [1978] ECR 207.
20
away from KSL further indicate the dominance of BKL in the market. 93 Thus, the size and
resources of BKL are sufficient for finding of dominance.94
(B) Dependence of consumer on the enterprise.
The consumers of these media rights are totally dependent upon the league to provide for the
broadcasting rights in the upstream market for utilization of the same in downstream. The
necessity of broadcasting for the channels and media houses exists to earn advertisers and
build a loyal customer case. Thus, the consumers depend upon BKL to provide for
broadcasting rights in the limited market scope and such dependence in turn creates a
dominant position for BKL.95
(C) Creation of barriers and conduct of BKL establishes dominance.
In AKZO Chemie BV v Commission96 the Commission found that undertaking’s ability to
weaken or eliminate troublesome competitors was an indicator of dominance. The creation of
barrier to entry by imposition of conditions including technical requirements and the conduct
of unilaterally modifying the exclusive broadcasting rights contract indicate the position of
dominance of BKL. The misuse of Clause 87.II.A to further grant broadcasting rights to
Media Bohemia indicates conduct flowing only because of existence of a dominant position.
3.3 BKL abused its dominance by unilaterally modifying the exclusive broadcasting
agreement and granting preferential treatment to Media Bohemia.
It is submitted that the appellant has abused its dominant position under Section 4 of the
Competition Act. The submission of the respondent is based on the ground that the appellant
93
Proposition paras 10-11.
94
Competition Act, s 19(4)(b).
95
Competition Act, s 19(4)(f).
96
Case 62/86 AKZO Chemie BV v Commission [1991] ECR I- 3359.
21
acted independently of the respondent, a competitor in the upstream market and unilaterally
modified an exclusive broadcasting agreement. It further imposed an unfair condition in the
purchase of the service through Clause 87.II.A and misused it for granting broadcasting rights
to Media Bohemia. Such an act limits the market access which the promised exclusive nature
of the contract would have provided for. KFB further did not take into consideration the
merits and specialized services on which competitive tendering was promulgated and gave
Media Bohemia the opportunity to free-ride the existing licenses paid for by Luminous Sport.
The resulting competition ekes out an injury for the respondent and thus leads to denial of
market access.97
(A) The essence of exclusive broadcasting contract is its “exclusivity”.
It is submitted that an exclusive broadcasting agreement by its implication implies the
existence of “exclusivity” for Luminous Sports. An “exclusive right” has been defined in In
Re Union Ferry Co98as:
“An exclusive right is one which only the grantee thereof can exercise, and from which all
others are prohibited or shut out”.
Concerns have been previously raised regarding the legitimacy of an exclusive broadcasting
agreement when put in context with Article 101(1). One of the Court’s most important early
examinations of the issue arrived in Nungesser v Commission99. The Court observed that an
exclusive licence involved the owner undertaking not to grant other licences in respect of the
same territory and not to compete himself with the licensee on that territory. To prohibit an
97
Competition Act, s 4(2)(c).
98
In Re Union Ferry Co 98 NY 151.
99
Case 258/78 Nungesser v Commission [1982] ECR 2015.
22
exclusive licence would cause the interest of undertakings in licences to fall away. The Court
concluded that grant of exclusive license was not a violation of the Treaty.
Exclusivity is commonly considered an essential element in a successful vertical deal and is
immensely attractive for the buyer who would be induced to purchase such rights. 100 A
purchaser may reconsider his purchase if it were to be known to him that there would be no
exclusivity for the rights in question. The very essence of the exclusive broadcasting contract
here thus is the exclusivity of the broadcasting rights.
The exclusivity of these rights were merely not limited to exploitation of these rights by the
respondent but also the right to further license these media rights to anyone on any
medium101, which was abused on part of BKL while granting of rights to Media Bohemia.
(B) Objective of competitive tendering beaten
The objective of competitive tendering was to ensure that the broadcasters fulfilled the
required conditions on part of the respondent.102 The Commission in all cases required the
collective sellers on the upstream market to organise a competitive bidding process under
non-discriminatory and transparent terms, thereby giving all potential buyers an opportunity
to compete for the rights.103
Luminous Sports was also a specialized sports channel, compared to Media Bohemia which
was a national broadcaster. A sports channel has to cater to a limited market of sports viewing
compared to a national broadcaster whose interests are much more varied and cannot provide
100
Stephen Weatherhill, European Sports Law: Collected Papers (2ndedn, Asser Press 2014).
101
102
ibid 14.
103
EC Newsletter (n 69).
23
for the required prioritization. Luminous Sports was the only channel out of three channels
competing which could have provided for a prioritized focus on the league itself.
Media Bohemia, after failing to obtain the tender through competitive process resorted to
strong-arming tactics by filing a writ petition in the Supreme Court. 104 The reach or public
viewership was not defined as criteria for allocating the rights. However, preferential
treatment to Media Bohemia was granted while provision of these rights was made citing
“public interest” and maintenance of competition between broadcasters. 105 Thus, the actions
of BKL with respect to broadcasting of rights automatically defeated the objective of carrying
out a competitive tender process. Provision of such media rights without a tendering process
and based on preferential treatment amounts to an anti-competitive act.106
(C) Free-riding of existing licenses and denial of market access.
It is submitted that the broadcasting rights for BKL were granted to Media Bohemia at one-
third the consideration of that of Luminous Sport.107 Luminous Sport has had to pool in a
higher investment compared to that of Media Bohemia with respect to the market within
Bohemia. While the respondent does possess the right to license these rights further, the
exercise of Clause.87.IIA almost nullifies the exclusivity of the clause for which the
additional consideration was paid. This entitles the additional consideration to be considered
as an investment upon which Media Bohemia is free-riding. Exclusive distribution
agreements may be used to prevent the problem of free- riding.108
104
Nungesser (n 99).
105
ibid 15, 27.
106
Canal+/Polski Case 16/08 Polish Supreme Court (2009) III SK 16/08.
107
108
Whish (n 41) 627.
24
However, in the current scenario, the free-riding is taking place not merely on price of bids
per se but further on in terms of difference of quality of investment. This entitles Media
Bohemia to make less investment on the same rights that the respondent will receive. The less
investment is also relative to the specific coverage of sport unlike generic coverage being
provided on the national broadcasting channel. As established earlier, Media Bohemia and
Luminous are competing on the same downstream market for the same number of viewers
and advertisers. The number of viewers influences the advertisers and the access of free-for-
view channels lies more than pay-TV channels. Thus, the market access in terms of
advertisers is restricted due to unjust free-riding of resources on part of Media Bohemia.
BROADCASTING RIGHTS DID NOT DENY MARKET ACCESS AND CAUSE
ABUSE OF DOMINANCE
4.1 Relevant Market
The counsel submits that correct relevant market in this case is the broadcasting of sports
matches in Bohemia over any medium.
Demand side substitutability –There are no perfect substitutes of the relevant product.
If a viewer wants to watch a sports match, he will necessarily watch it and will not
substitute it by a movie or any entertainment programme. Thus, the sports matches do
not have substitute sin the market.
4.2 Respondent is not dominant in the relevant market under Section 19(4)
As per Section 19(4), the respondent is not dominant in the relevant market due to various
factors.
(A)Market share of the enterprise - Section 19(4)(a)
25
The presence of very large market shares are an indicative of dominance 109 .This is submitted
that there are other broadcasters present in the relevant market for broadcasting sports
matches. There are various other channels like Media Bohemia, X sports. Even, on the online
platform there are other online websites to provide the broadcasting of sports. Hence, the
respondent does not hold as much shares as it is necessary to be dominant in the market.
(B)Countervailing market power
The counsel for the respondent submits that the relative market power of the competing firms
is important to know whether there are significant actual or potential competitors who may be
able, to rebut any presumption of dominance that might arise on the basis of narrow
consideration of market shares.110 Other competitors, like Media Bohemia have the wider
coverage then the respondent.111 Thus, it is submitted that the relative market power of the
rivals’ enterprises dilutes every presumption of dominance of the respondent
(C)Market power of the respondents

Market Demand Elasticity-- The existence of substitutes limits the firm's market power 112.The
market elasticity of demand for the sports matches telecasted on luminous sport can be
substituted by the other sport matches telecasted by other undertakings. The market demand
elasticity of the relevant product of the firm has good substitutes available in the market
which shows that the market power of the firm is limited.
109
Hoffmann-La Roche (n 30).
110
United Brands (n 89).
111
112
William M Landes, Richard A Posner, ‘Market Power in Antitrust Cases’ (1981) 94 Harv L
Rev 937.
26
4.3 The Respondents have not used their dominant position in the market of TV
broadcast of Kabaddi matches to enter into the market for internet broadcasting
of Kabaddi
The counsel on behalf of respondent submits that that the market is of broadcasting sports
matches. The Respondent has not tried to enter the relevant market of internet broadcasting
because to violate section 4(2) (e), a firm has to be dominant in one relevant market. The
respondent is not dominant on the market of TV. Even on the online platform the majority of
113
shares held by the channel are not so high and it is not dominant. Historically, different
types of media (TV, radio, Internet or press) were viewed as separate product markets, but
convergence has forced a number of NCAs to adopt a broader market definition 114. If we
115
evaluate both the markets under the SNNIP test then a slight rise in the price of broadcast
over one medium would let the viewer substitute the medium.The Court has held that there
are various ways of offering broadcasting services to the viewers. Thus, in the present case
when the defendant got the exclusive broadcasting rights then he was free to broadcast it on
any medium.116 Further, the respondents’ conduct can be reasonable under ‘objective
justification’.117
(A)Protecting the Undertaking’s commercial interests
(i)‘Boo Tube would pay Luminous Sports a non-refundable security of 50 Lakh’
113
Arnold Vahrenwald, ‘Germany: broadcasting - television by internet service provider’
(2005) 16(6) ENT L R 54.

114
Organisation for Economic Co-operation and Development (OECD), Competition Issues in
Television and Broadcasting (DAF/COMP/GF 2013)13.

115
Whish (n 41) 31.
116
Clarification 46.
117
Case C-457/10 P Astra Zeneca AB v Commission [2012] ECR I-000.
27
The respondent has acquired exclusive broadcasting rights for BKL matches from the
118
federation after payment of 4 crore and a profit percentage too. It is a holder of special
right which is required after paying the price for the same. In the case of UPS,119it was held
by the Commission that holders of the special rights are not barred from making profits.
Broadcasting rights for sporting events are an established practice to maximise revenue and
the worth of such transactions is measured in the exclusivity of the right conferred. 120 Thus,
the special rights can be used for the firm’s benefits.
(B)Assessment of the fee charged
‘Boo Tube would pay Luminous Sports 40% of the revenue proceeds from telecasting
the matches on its online channel’
In the case of United Brands121 it has been held that a proper assessment of price and cost
incurred is to be made. The respondent has charged also 40% of the revenue proceeds, where
on the other hand they are paying a profit percentage and also a sum of 4 crore for the rights.
122
Further, in the case of Singapore Broadcasting Corp v Performing Right Society Ltd the
license fee income was given legitimacy and various approaches to it were discussed. It was
held that license fee income calculated as a percentage of total revenue is reasonable. Thus, it
is submitted that the term concerning charge on the revenue proceeds of the appellant is
lawful and not an abuse of the dominant position by the respondent.
118
Clarification 42.
119
Case T-175/99 UPS Europe v Commission [2002] ECR II-1915, para 51.
120
Simon Gardiner, Sports Law (3rdedn, Cavendish Publishing Australia 2006) 367.
121
United Brands (n 89).
122
Singapore Broadcasting Corp v Performing Right Society Ltd [1991] FSR 573.
28
(C) Pro-competitive effects
“Luminous Sports reserved the right to award internet broadcast to any other operator”123
In the IXth Report on Competition Policy, the Commission defined three objectives for its
competition policy; keeping the Common Market open and unified; ensuring fairness in the
marketplace (in particular this factor was said to necessitate special consideration towards
small and medium sized firms that lack market strength); and protection of the legitimate
interests of workers, users and consumers.124 The exclusive contract may not drive
competitors from the market; it may bar or deter new entry, which might have deconcentrated
an already highly concentrated market. But, in the present case the respondent by keeping the
option of granting exclusive rights open are indulging in a pro-competitive behaviour.125
COMPETITIVE AGREEMENT AND THERE WAS AN ABUSE OF
DOMINANCE ON PART OF BKL AND KFB.
5.1 BKL is an enterprise under Section 2(h) of the Act
The counsel for appellant submits that BKL is an enterprise under Section 2(h) because sports
associations are undertakings to the extent that they themselves carry out activities of
123
124
Commission of the European Communities, IXth Report on Competition Policy (1979).
125
John J Miles, Exclusive dealing agreements: Health Care and Antitrust Law (Thomson
Reuters 2015) ch 4 vertical agreements.

29
economic nature. In the case of MOTOE,126 the CJ held that EU competition law can be
applied to the sports federation. It was also held national associations that group the clubs
together are ‘associations of undertakings’. It is submitted that BKL has teams and athletes
under its aegis, so it can very well be addressed as association of undertakings. Arguendo, the
plea to use non-profit organization was considered in the case Minnesota Made Hockey, Inc.
V Minnesota Hockey, Inc127 it was held that services in exchange of money even by a non-
profit organization is a commercial transaction. Thus, the League entered into various
commercial activities by entering into broadcasting rights, sponsorships rights agreements
etc.
5.2 Agreement entered into by the sponsors is an exclusive-supply agreement
The exclusive supply agreement is defined under Section 3(4) (b) of the Act. 128 It states that
an agreement in contravention of Section 3(1), if such agreement causes or is likely to cause
an appreciable adverse effect on competition in India. In order to determine whether any
agreement is in contravention of Section 3(4) read with Section 3(1) of the Act, the following
five essential ingredients of Section 3(4) have to be satisfied129:
1. There must exist an agreement amongst enterprises or persons
126
MOTOE (n 12).
127
Minnesota (n 14).
128
129
Automobiles Dealers Association v Global Automobiles Limited & Anr Case No 33 of 2011
(‘Automobiles Dealers’); Exclusive Motors Pvt Ltd v Automobili Lamborghini SPA
(‘Lamborghini’) Case No 52 of 2012.

30
2. The parties to such agreement must be at different stages or levels of production chain, in
respect of production, supply, distribution, storage, sale or price of, or trade in goods or
provision of services
3. The agreeing parties must be in different markets
4. The agreement should be of the nature as illustrated in clauses (a) to (e) of sub-Section 4 of
Section 3 of the Act
5. The agreement should cause or should be likely to cause AAEC.
An exclusive supply agreement involves the obligation of the supplier to sell his product too
130
exclusively to certain customers. It is submitted that exclusive supply obligations are only
likely to result in anti-competitive foreclosure if most of the input suppliers are tied and if
firms willing to purchase the respective product are unable to find alternative sources of
supply131.
5.3 There exists an agreement between Cougar and BKL
In the present case, there exists an agreement between the two enterprises i.e. the
manufacturers and their respective authorized service providers,132 which falls within the
definition of agreement under Act.133
(A) The two parties to the agreement are at different stages or levels of production
chain and are in different markets.
130
Guidelines on Vertical Restraints [2000] O J C291/1 para 202.
131
De Beers/Alrosa (Case COMP/E-2/38.381).
132
Proposition, para 26.
133
Competition Act 2002, s 2(b).
31
BKL is the regulatory league which is responsible for conduction the Kabaddi league
successfully. While, Cougar is the International manufacturer of T-shirts, which clearly
operates in the different market
(B) The agreement is of the nature as illustrated in clauses (a) to (e) of Section 3(4) of
the Act.
In the present case a bare perusal of the contents of this clause clearly shows that this
exclusivity clause restrict the other manufacturers from acquiring the merchandise rights of
other franchisee. Therefore, in the instant case, the first four essential ingredients of Section
3(4) are present.
5.4 Relevant Market analysis
(A) Relevant Market
The relevant market in this case comprises of the ‘merchandise rights for sportswear in the
Bohemia Kabbadi League’. In the case of General Motors v Commission134 , the Court of
Justice held that licensing which are granted by the undertakings, form a distinct product
market. Thus, “the exclusive merchandise rights which were granted by BKL to Cougar from
a separate relevant market”.
(B)Demand-Side Substitutability
This is submitted that the goods in the above stated relevant market will be the ones provided
by Cougar to the teams. The team franchisees are the consumers of goods rendered by
Cougar and the players do not have substitutes in the relevant market to interchange with
goods provided by Cougar. Also, the merchandise market for sportswear is a separate market
as sportswear doesn’t have any substitute.135

134
Case 26/75 General Motors Continental v Commission [1975] ECR 1367.
135
Om Datt Sharma v Competition Commission of India [2014] CC 121.
32
5.5 The agreement between the Respondents and their authorized service providers is
likely to cause AAEC.
The Appellant submits that Section 19(3) lists factors that are to be considered by the
Commission while determining AAEC. While analysing its anti-competitive nature, the
cumulative effects of the agreements shall be considered.
(A) Automatic Renewal Clause
In the present case the agreement entered into between Cougar and BKL is an exclusive
merchandise agreement with an automatic renewal clause. The exclusive agreements lasting
longer than five years do not achieve the claimed efficiencies or the efficiencies are not
sufficient to outweigh the foreclosure effect of such long-term exclusive supply
agreements.136 The EC Regulation 2790/1999 on the vertical restraints states that single
branding is only exempted if the market share threshold is not exceeded and if the duration is
no longer than five years.137 The time duration for which an exclusive contract has been
138
brought into force also matters. In the case of Stergios Delimitis v Henninger Bräu the
Court rightly added that the duration of the ties is also important. Also, in the Dutch Football
Association exclusive broadcasting rights given to Sport 7 and a renewal clause was held to
be anti-competitive by the Commission139.
(B) Foreclosure of Market
136
Commission, ‘Guidelines on Vertical Restraints’ [2009] OJ C 45/7.
137
Commission Regulation (EC) No 2790/1999 on the application of Article 81(3) of the
Treaty to categories of vertical agreements and concerted practices [1999] OJ L 336, art 5.
138
Case C-234/89 Stergios Delimitis v Henninger Bräu AG [1991] ECR I-935.
139
KNVB/Sport 7 matches (Case IV/36.033) [1996] OJ C228/4.
33
In the case of Standard Oil Co. of California (Standard Stations) v. United States,140 the
Court found that “when such restrictive supply contracts and that when there has been no
change in market share of the suppliers ,when such contracts were used, it was reasonable to
infer that the relevant market had been foreclosed to newcomers”. Thus, short-run market
stability is not a valid substitute for long term foreclosure effects. In the present case, the
market is getting foreclosed in the long term because of the automatic renewal clause.
5.6 Agreement between BKL and the franchisee teams is in the restraint of trade
The agreement which has entered into by the franchisor (BKL) with the franchisee(the teams)
for the appointment of Cougar as an exclusive merchandise sponsor is in the restraint of trade
as this action can be construed as concerted action under Section 1 of the Sherman Act. In the
case of American Needle, Inc. V. National Football League, Justice Stephen held that
“licensing activities for individual teams’ conducted through a corporation separate from the
teams and with its own management, constituted concerted action that was not categorically
beyond the coverage of § 1 of the Sherman Act, which made illegal a contract, combination,
or conspiracy in restraint of trade.” Also, Article 81(1)(a)141 of the EU law all those
concerted practices between two undertakings are prohibited which result in restraint of trade
by fixing trading conditions.
(A) That the teams and BKL both are undertakings

BKL is an undertaking has already been proved above. Sport clubs or teams are undertakings
within the meaning of Article to the extent that they carry out economic activities. 142 In his
opinion in the Bosman case, Advocate General Lenz considered that football players
140
Standard Oil Co of California (Standard Stations) v United States 337 US 293, 70 S Ct 545
(1949).
141
The European Commission Treaty, art 81(1)(a).
142
Dhanraj (n 9).
34
employed by a football club and who therefore are not independent do not constitute
undertakings.143 A concerted activity is inherently fraught with anti-competitive risk and here
the respondents have failed to discharge their burden by appointing Cougar as an exclusive
merchandise sponsor.
(B) Joint Selling of the rights
Joint selling describes is the situation where sport clubs entrust the selling of their media
rights to their sports association which then sells the rights collectively on their behalf. In its
three decisions144 so far, the Commission consistently took the view that joint selling
constitutes a horizontal restriction of competition as it may hinder competition between clubs
in terms of prices, innovation, services and products offered to fans, and usually leads to the
league selling the rights in a single bundle or very few packages on an exclusive basis.
5.7 BKL is dominant in the relevant market
The Appellant submits that while determining whether an enterprise is in a dominant position,
the factors under Section 19(4) should be taken into account. Accordingly, in order to assess
the dominance of the Respondents , the Appellant considers it imperative to analyse various
other factors listed in Section 19(4).
(A)Monopoly in the relevant market
BKL started under the aegis of KFB; however BKL was given regulatory powers in
conducting the league145. The monopoly of BKL in the relevant market flows from its
143
Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman
[1995] ECR I-4921.

144
UEFA (n 77); Joint selling of the media rights to the German Bundesliga (Case
COMP/37.214) [2005] OJL 134/46.

145
Proposition para 8.
35
regulatory power. This monopoly enjoyed by BKL is evident from the contracts that it has
entered into with regards to media rights, sponsorship rights. In the relevant market, BKL has
assumed exclusive right of appointing, on behalf of the franchisee, a single merchandise
sponsor.
(B)Anti-competitive conduct as an evidence of dominance
The counsel for the appellants submits that the very fact that a firm can engage in the anti-
competitive suggest that it is able to act independently of its competitors and customers. 146
The appellants submit that BKL has clearly abused its dominant position by venturing to anti-
competitive agreement with Cougar.
5.8 Respondents have abused their dominant position
It is submitted that respondents have abused their dominant position and this is because of
two reasons:
(A)Denial of market access under Section 4(2)(c)
It is important to prevent dominant firms from entrenching their position on the market by
adopting exclusionary behaviour.147 Moreover, in the case of Iberian Trading UK Ltd v BPB
Industries OJ148exclusive supply contracts were held to be abusive because they operate as an
entry barrier to the market where the undertaking offering such contracts is dominant. Thus,
the appellants submit that respondent abused their dominant position by entering into
exclusive –supply agreement.
146
Bellamy & Child, European Community Law of Competition (6th edn, OUP).
147
Turnbull S, ‘Barriers to Entry, Article 86 EC and the Abuse of a Dominant Position: An
Economic Critique of European Community Competition Law’ (1996) 17(2) ECLR 96.
148
Case T-65/89 Iberian Trading UK Ltd v BPB Industries [1993] ECR II – 00389.
36
(B)Imposing unfair conditions under Section 4(2) (a) (ii)
BKL, being a franchisor has abused its dominant position by imposing unfair conditions on
the franchisees to appoint an exclusive merchandise sponsor which has affected the relevant
product market. Generally, a fiduciary relationship may arise in a franchisor/franchisee
relationship if the franchisee was obligated to accept requirements allegedly imposed by the
franchisor because of the franchisor's position of dominance. There have been many cases in
which arbitrary termination clause by the Franchisor has given rise to unfair contracts. 149
Sports leagues that do not face competition from close substitutes will artificially suppress
the number of franchises in the league.150 The evidence by the franchisees produced also
suggests that under the fear of the termination of the contract, the franchisees have entered
into the illegal contract.
149
Emerson Robert W, ‘Implied Obligations in Franchising: Beyond Terminations’ (1998) 35
Am Bus LJ 559.
150
Rau A Lee, ‘Implied Obligations in Franchising: Beyond Terminations’ (1992) 47 Bus Law
1053).
37
PRAYER
Wherefore, in light of the facts of the case, issues raised, arguments advanced and authorities
cited, this Hon’ble Court may be pleased to adjudge and declare that:
In Appeal of KFB v X Sports
 The appellant has abused its dominant position in relevant market.
 There exists a conflict of interest between the regulatory and commercial function of
KFB.
 Affirm the order made by COMPAT on finding of abuse of dominance.
 Reverse the order made by COMPAT on penalty and disintegration, affirm the order
by CCB on same and impose a penalty of 3% on BKL and KFB of their average
annual revenue for last three years.
 KFB must form an independent body to administer BKL and revenues from same
should flow to Ministry of Youth and Sports Affairs.
In the appeal of X Sports & Ors v KFB & Ors :
 The COMPAT isn’t bound to initiate the compensation proceedings and application
for compensation be put under abeyance.
In the appeal of Luminous Sport v BKL :
 The appellant abused its dominant position in the relevant market.
38
 Affirm the order made by COMPAT on time lag for broadcast of BKL matches on
Media Bohemia.
In the appeal of Boo Tube v Luminous :
 The respondent is not dominant in the market and hasn’t denied market access by the
clauses of the agreement.
 Affirm the order made by COMPAT.
In the appeal of Rodidas v Cougar & BKL :
 The agreement between the respondents has AAEC.

 The agreement between BKL and the franchisee teams for an exclusive merchandise
sponsor is an agreement in the restraint of trade.

 The respondent (BKL) has abused its dominant position in the market.
 Affirm the order of CCB and set aside the order by COMPAT in the appeal.
All of which is respectfully submitted
Counsels for X Sports, Luminous Sports, Rodidas and CCB.
39

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IN THE HON’BLE SUPREME COURT OF BOHEMIA, AT RIVERDALE

Appeal Jurisdiction U/§ 53T, The Competition Act, 2002

KABADDI FEDERATION OF BOHEMIA ...Appellant

BOHEMIAN KABADDI LEAGUE ...Appellant

MEMORANDUM FILED ON BEHALF OF X SPORTS, LUMINOUS SPORTS,

COUNSELS APPEARING ON BEHALF OF X SPORTS, LUMINOUS SPORTS,

RODIDAS AND COMPETITION COMMISSION OF BOHEMIA

ISSUES FOR CONSIDERATION..........................................................................................xix

1. THE EXCLUSIVE AGREEMENTS BETWEEN KFB AND PLAYERS RESULTED

IN DENIAL OF MARKET ACCESS AND FORECLOSURE OF MARKET WHICH

RESULTS IN ABUSE OF DOMINANCE BY KFB.............................................................1

compensation proceedings to determine the eligibility and quantum..................................16

3. BKL AND KFB HAVE ABUSED THEIR DOMINANCE IN THE EXLCUSIVE

BROADCASTING AGREEMENT WITH LUMINOUS SPORT......................................16

3.2 BKL is in dominant position in the defined relevant market.....................................21

agreement and granting preferential treatment to Media Bohemia..................................23

4. THE AGREEMENT CLAUSES OFFERED BY LUMINOUS SPORT FOR

BROADCASTING RIGHTS DID NOT DENY MARKET ACCESS AND CAUSE

4.1 Relevant Market.........................................................................................................27

5. THE MERCHANDISING AGREEMENT AWARDED TO COUGAR WAS AN ANTI-

COMPETITIVE AGREEMENT AND THERE WAS AN ABUSE OF DOMINANCE ON

PART OF BKL AND KFB...................................................................................................32

5.1 BKL is an enterprise under Section 2(h) of the Act...................................................32

5.3 There exists an agreement between Cougar and BKL...............................................34

5.4 Relevant Market analysis...........................................................................................34

likely to cause AAEC.......................................................................................................35

5.7 BKL is dominant in the relevant market....................................................................38

5.8 Respondents have abused their dominant position....................................................39

Andrew Byars v Bluff City News Co Inc 609 F 2d 843............................................................11

(‘Automobiles Dealers’) ; Exclusive Motors Pvt Ltd v Automobili Lamborghini SPA

(‘Lamborghini’) Case No 52 of 2012...................................................................................33

British Interactive Broadcasting/Open (Case IV/36.539) Commission Decision 1999/781/EC

BSkyB/Kirch(Case No COMP/JV.37) EEC No 4064/89..........................................................20

Case 258/78 Nungesser v Commission [1982] ECR 2015.................................................24, 25

Case 26/75 General Motors Continental v Commission [1975] ECR 1367............................34

Case 322/81 Michelin v Commission [1983] ECR 3461............................................................8

Case 62/86 AKZO Chemie BV v Commission [1991] ECR I- 3359.........................................23

Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461.....................6, 7, 8, 9, 22, 27

Case C- 280/08P Deutsche Telekom AG v Commission [2010] ECR I- 000..............................8

Case C-234/89 Stergios Delimitis v Henninger Bräu AG [1991] ECR I-935..........................36

Case C-457/10 P Astra Zeneca AB v Commission [2012] ECR I-000.....................................29

Case C-49/07 MOTOE v Elliniko Dimosio (2008) ECR I-4863......................................2, 6, 32

Communities [2006] ECR I-6991...........................................................................................3

Coca-Cola (Case COMP/A.39.116/B2) Commission Decision 2005/670/EC [2005] OJ L 253.

CVC/SLEC (Case No COMP/M.4066) [2006] OJ C 90..........................................................19

De Beers/Alrosa (Case COMP/E-2/38.381).............................................................................33

Dhanraj Pillay v Hockey India [2013] CCI 35.......................................................2, 4, 6, 11,37

ENIC/UEFA (Case COMP IV/37.806) [2002] para 41..............................................................5

Hemant Sharma v Union of India (2012) 186 DLT 17..............................................................2

In Re Union Ferry Co 98 NY 151............................................................................................24

Commission Decision 2003/778/EC [2003] OJ L 291.........................................................19

KNVB/Sport 7 matches (Case IV/36.033) [1996] OJ C228/4..................................................36

Lucas Automotive Engineering v Bridgestone/Firestone Inc 275 F 3d 762...............................5

Om Datt Sharma v Competition Commission of India [2014] CC 121....................................35

Richard Whish, David Bailey, Competition Law (7thedn,OUP 2011)......................................22

UEFA Broadcasting Regulations (Case 37.576) Commission Decision 2001/478/EC [2001]

Civil Procedure Code 1908, s 10..............................................................................................33

Competition Act 2002, s 19(4)(b)............................................................................................29

Competition Act 2002, s 19(5).................................................................................................22

Competition Act 2002, s 19(6)...........................................................................................27, 41

Competition Act 2002, s 2(b)...................................................................................................54

Competition Act 2002, s 4(2)(a)...............................................................................................38