Cricket Council USA
Posted April 24 , 2012
The debate on the eligibility of leagues to vote has now completely shifted away from what is the right thing to do to foster an inclusive spirit of cricket. The ongoing battle can best be described as technical in nature and there is even greater evidence now than ever before that USACA is keen on using every tool available to exclude leagues from the democratic process instead of spending the time, money and energy to make USACA an inclusive and thriving organization.
Pic (Right): Election has become a technical tug of war
The court provides an opening to disenfranchised leagues
Judge Koh, in the order denying preliminary injunction in the Ram Varadarajan and CCA v. USACA case, wrote: "The plain text of the USACA Constitution vests dispute resolution powers in the independent auditor over 'questions arising in connection with the right to vote.' Thus, there appears to be a remedy under the USACA Constitution yet to be exhausted. Failure to exhaust would bar all of Plaintiffs’ claims here."
The court's determination that the auditor was empowered to resolve their eligibility gave an opening to several disaffected leagues to appeal to the independent auditor, which they did in the hours following the publication of Judge Koh's order working through the night. It is a testament to the leagues' perseverance and passion for the sport that they acted as fast as they did.
By the morning of the election, over a dozen leagues had already sent their appeals to the auditor, Keefe, McCullough & Co., LLP. "To assist you, we are willing to answer any and all questions and provide any and all pertinent information that will help you independently ascertain our right to vote in this election," the leagues pleaded.
Election not yet certified
Following Judge Koh's order, the election proceeded and the business of certifying the election remained. However, by April 18, it was clear that the audit firm was on a sticky wicket.
A debate now rages on regarding this apparent contradiction between the remedy mentioned by Judge Koh, which the leagues have sought to use, and USACA's position regarding the role of the 'independent auditor.'
USACA's lawyers have told the auditor very clearly that, "It is the Board's sole responsibility under that Section to make the determination of voter eligibility." USACA's lawyers also noted that it was the USACA board's position that, "You [the auditors] have no authority to conduct such an independent audit." The letter argues that, "Resolution of disputes means making a decision based on the evidence and arguments presented to you by the parties at the time of the election. It does not include conducting an entirely new and independent investigation."
Counsel for Ram Varadarajan and CCA wrote that they, "disagree with how the USACA Board is trying to encroach on the impartiality of Keefe, McCullough & Co., LLP, in its role as the independent auditor, by imposing rules, structures, and timelines that make it impossible for you to properly perform your duties." They reminded the auditors that, "because the Board uses leagues’membership dues to pay your fees, USACA’s member leagues are as much your clients as the Board of USACA."
The USACA board, needless to say, is eager to shut out the 32 disaffected leagues and have the election certified. In his letter to the auditors, the USACA counsel noted that the board, "does not countenance any further delay of the final certification of the election results."
"You should decide the leagues' timely requests promptly based on the evidence submitted to you," USACA has advised the auditors.
But the lawyers for Varadarajan and CCA point out that the USACA board and counsel should not be allowed to improperly influence the auditors' decision-making and that the auditors should not rely on Mr. Chance's findings stating that Judge Koh had described the so-called compliance process as "suspicious."
Independent Auditor may not conduct further audit, USACA says
USACA's lawyer wrote that it was the board's position that the auditors, "are not authorized under the USACA Constitution, New York law or the terms of your engagement by USACA to conduct a further audit or factual investigation or to rule upon requests submitted after the annual meeting ended."
The counsel for Varadarajan and CCA countered that some of the information that USACA provided the auditors may have been inaccurate. A similar observation was made with respect to the information provided to the auditors in connection with at least one other league that this author has reviewed. According to one source, a handful of leagues have written to the auditors citing discrepancies in the assessments sent to the auditors by USACA.
For your reference, and to help you form your own judgement, here is what the constitution says about the role of the independent auditor in Article XXII:
Section 2: There shall be an independent auditor, appointed by the Board, who shall ensure that all voting/elections are conducted in a fair and impartial manner. Said auditor shall be a Certified Professional Accountant (CPA). The independent auditor shall:
i. Determine the number of legitimate members and shall issue the ballots to the members consistent therewith.
ii. Determine at a general meeting the existence of a quorum, the validity and effect of proxies.
iii. Receive votes, ballots or consents.
iv. Hear and determine all challenges, and questions arising in connection with the right to vote.
v. Count and tabulate all votes, ballots or consents.
vi. Determine and record the results, and do such acts as are proper to conduct the election or vote with fairness to all members.
Section 3: Upon request of the person presiding at the meeting or any members entitled to vote thereat or any other legitimate member, the independent auditor shall make a report in writing of any challenge; questions or matters determined by him/her and execute a certificate of any facts found by him/her. Any report or certificate made by the auditor shall be prima facie evidence of the facts stated and of the votes.
Business as usual?
Of course, none of this has prevented USACA and some of the newly elected administrators from continuing the process of filling key positions. Mr. Nabeel Ahmed was reportedly named acting CEO of USACA, a position that according to the constitution must be advertised. Some regional administrations have quickly moved to nominate and elect people to a variety of positions even as the membership status of leagues remains unresolved.