WHAT IS TALENT POACHING?

The term “Talent Poaching” gained notoriety in 2010 where it was used to describe practices that involve companies hiring current or former employees from a competitor or similar company. Employee poaching oftentimes happens in growing industries that require employees with specialized skills and the sports industry is no different. Sports Talent poaching takes place when a team manager or owner approaches players from other teams, who are already committed to their first team, but they will still be asked directly and try to and persuade them to switch teams. Players must have the full freedom to choose look for their interest and associate with an appropriate franchise, as long as it is according to the regularized procedure. Players have the right to leave their franchise or request a special position within the franchise, the acceptance of which is subject to the situation and condition the franchise is in. The players whose performance is recognized well have greater chances to be poached by the rival firms. Players are being poached to join supposedly better teams with the promise of more facilities and better chances of winning trophies. Every year, poaching accusations are thrown around as players move from team to team. Sometimes, they appear to be real grievances. Other times, the teams may be looking for leverage in trying to get the player that they want. The Global Sports industry at large has had difficulty curbing such problem of poaching, the practice where one team inappropriately entices a player to join its team while that player is still under contract with another team. 

TALENT POACHING IN INDIAN PERMIER LEAGUE

Few sports enjoy the international presence and global following that cricket has, with special mention of the popularity garnered by the Indian Premier League (IPL). The league has helped most international teams discover the untapped talent which has not only raised the standard of International Cricket but has also made IPL the Mecca of Global Sports. IPL teams have been over the years, able to build a bond, between the players, the franchise and the people of the city the franchise belongs to.  However, with the promise of lucrative contracts and high levels of competition in IPL, even the most talented players can choose to abandon franchises and accept opportunities to play in the other better paying or positioned franchise without regard to their existing contractual obligations. The signing away of contracted players, or player poaching as it is commonly called, is an unfortunate occurrence and was recently experienced involving two big names in international cricket. The Lucknow franchise has allegedly approached KL Rahul and Rashid Khan, for the IPL 2022 season. Due to this the Indian Premier League franchises, Punjab Kings and Sunrisers Hyderabad lodged a complaint against the new Lucknow franchise ahead of the IPL retention deadline.  As per BCCI rules, players cannot talk to other franchises until the retention period of the teams is overHowever, this is not the first time that a player has been approached or a franchise has been accused of poaching. More than a decade back in 2010, Ravindra Jadeja was banned for a year and Mumbai Indians were reprimanded after the all-rounder failed to renew his existing contract with the Rajasthan Royals and attempted to negotiate a new contract with the Mumbai Indians.

DID TALENT POACHING ACTUALLY TAKE PLACE IN THE CURRENT CASE?

Although there haven’t been any set of parameters to determine a case as an instance of Talent Poaching, there has been a case in the International Sports Industry where a test has been laid down in order to establish talent poaching in the sports context. In order to establish Talent Poaching in sports, the aggrieved party needs to establish:

• That the players were entered into a valid contract with the respective franchises;

• Yes KL Rahul and Rashid Khan were entered into a valid contract with the Punjab and Hyderabad IPL Franchise.

• That the Lucknow Franchise knew that the aggrieved team has entered into a contract with the players;

• Yes, it seems only fair to assume that they knew about the contract, as both the players were active members of their respective squads

• That the Lucknow Franchise’s intention was to cause the players to breach his or her contract with the aggrieved team, and the player did breach their contract;

• The Lucknow Franchise allegedly approached the players once the Season was over, but before the Term of employment ended. Moreover the complete facts regarding the approach from the Lucknow Franchise never came out and all the actions were based on rumors as far as public forums and knowledge centers state.

• That the aggrieved team suffered damages as a result of the breach of contract.

• KL Rahul had reportedly parted ways with Mohali-based franchise, and had asked the team management not to retain him for the 2022 season, thereby confirming that he would leave the franchise. Having made the situation clear to the franchise, it is evident that the Franchise could have not suffered any direct damage.
• Rashid Khan had approached the franchise to be in the first spot of retention instead of the offered second spot, as the difference between the salaries two spots would be a minimus of INR 4 crore. As per, CricketAddictor, a sports news website, even after multiple rounds of talks between both parties, neither could be convinced otherwise and they had to break their partnership. Here again it is evident that the Franchise could have not suffered any direct damage.

So, there is a slight chance of establishing Talent Poaching in the current case.

WHAT ABOUT THE LIABILITY OF THE PLAYERS?

Assuming that bad luck hits the Lucknow franchise and the two players, and somehow Talent Poaching is established, the question of the player’s arises. Although both the star players are liable if we if see the provisions of the Standard 2021 IPL Player Contract, there can be a strategy, (maybe mistaken in law but might fly if presented properly) which might be taken (or not) by them to defend their positions. Read ahead to know-how

Now the Standard 2021 IPL Player Contract defines a Season asthe period from the 7th day prior to the first match of the League until the end of the 1st day following the last Match of the League Season involving the Team unless either BCCI or the Franchisee has requested the Player to remain for any closing ceremony or other such event which takes place on or before the day after the Final irrespective of whether the Team participates in such Final (a “League Season”); (ii) the period during which the Player is travelling to and from and involved with or taking part in any Friendly Matches, it being acknowledged by the Player that he is obliged to report to the Franchisee two days before any such Friendly Match; and (iii) the period from the 5^thday before the first Additional Match of any Additional Event (whether involving the Team or otherwise) until the end of the 1^st  day following the final such Additional Match which involves the Team, unless either BCCI or the Franchisee has requested the Player to remain for any closing ceremony or other such event which takes place on or before the end of the relevant Additional Event irrespective of whether the Team remains in such Event;

_REASONING

Since both the players had completed the period of the “SEASON” before being allegedly approached by the Lucknow Franchise, they were not in the period of their employment and had no responsibility towards their respective franchise and therefore had no relation with the same. Section 27 of the (Indian) Contract Act, 1872 makes a restrictive provision void, such as ‘non-compete’ in an employment contract, between an employer and its employee, after the termination of an employment contract/employee engagement. Moreover, No-poaching agreements are made between employers – i.e. at the same level of the value chain, therefore the only liability in the present case should be upon the Lucknow Franchise and not the players. Under the purview of the Competition Act, Section 3 deals with anti-competitive agreements prohibited among enterprises engaged in identical or similar trade of goods or provision of services. In the Desiccant Rotors International Pvt. Ltd. v. Bappaditya Sarkar and Another., the Delhi High Court observed that it is this attempt to protect themselves from the competition which clashes with the right of the employees to seek employment where so ever they choose and in a clash like this, it is clear that the right of livelihood of the latter must prevail.

Moreover, time is the most crucial element in any negotiation and especially in the sports industry. Had the two players, waited for the “TERM” to get over, even after having officially/unofficially ended their association with their respective franchise, it would have resulted in them missing out on the “better offer” which was allegedly offered to them by the Lucknow Franchise, as laws, rules and regulations in the form of agreements entered into between the employer and the employee should not hamper the growth of employee but should, however, secure the interests of the employer.

DIFFICULTIES IN CASES OF TALENT POACHING IN SPORTS

Succeeding in sports talent poaching claims has become difficult for several reasons, one of which being that the complaint asserting the cause of action must specify with particularity how each element of the claim is met (as opposed to making generalized assumptions/conclusions).  Due to the required particularity that a complaint must have in order to assert a viable cause of action, that standard effectively requires that the aggrieved team has sufficient knowledge of the other team’s actions and intentions prior to starting the lawsuit in order to allege facts which support the claim.  However, there is no black and white test to determine if a team can allege a sufficient amount of facts to support the cause of action. Of course, the more facts that can be alleged the better.  But, this means that bringing any such claim lacks the certainty of success from the outset. Such claims may be difficult to prove from an evidence standpoint, as intent and knowledge have high bars of proof to satisfy.  What may be particularly helpful from an evidentiary perspective are logs of any online communications, given the mass use of digital mediums of communication.  However, obtaining such communications during the discovery process of such a lawsuit is no easy task as well.

CONCLUSION

Although it may be difficult for a Sports team to pursue a lawsuit when another team has poached a player, it is nonetheless a viable option for a team seeking to protect its interests.  Unfortunately, the few governing bodies of sports leagues have done little to disincentivise poaching, forcing teams to either accept the situation or attempt to avail themselves of their legal rights.  However, the cost of legal fees associated with pursuing a lawsuit may discourage teams from enforcing their legal rights.  Unfortunately, those costs and the lack of significant league action may force teams to simply accept that their player has been poached.