Ram Varadarajan, a California businessman and President of the New Inning Foundation has sent the USACA board a stern letter demanding that USACA elections be held no later than March 1, 2012. The candidate for the USACA Presidency calls the delay of the USACA elections an act of disenfranchisement perpetrated on its member leagues, adding that the current board has unilaterally extended its tenure in office by three months plus. He is seeking a response from the USACA board by December 14, 2011, and has retained an international law firm to review the situation.
Ram Varadarajan, USACA presidential candidate.
Varadarajan has indicated that he is willing to file a lawsuit against the national cricket body, and has scheduled a teleconference with league presidents for this Saturday, December 10 at 11:00am PST (2:00pm EST) to discuss the current situation with the Compliance Review requested by USACA and the overdue national elections.
Following is the complete text of the letter sent to the USACA Board of Directors and copied to all league presidents.
December 8, 2011
Re: USACA Elections
To the Board of Directors of the United States of America Cricket Association:
Introduction. Under USACA’s Constitution, the members of the Board of Directors serve three year terms and national elections for each seat must occur by November 30 of each electoral year.
Because the last Board election took place in 2008, the Constitution required an election by November 30,
2011. However, without the consent of constituent members or an amendment to the Constitution, the current Board of Directors unilaterally postponed the elections—and, thus, extended their tenure—for at least ninety days. The Board has not committed to hold elections by any certain date and, instead, says it will reevaluate the situation on March 3, 2012, and determine whether an election may proceed at some point thereafter.
Many league members do not agree with the Board’s decision. Like them, I believe the Board has acted in excess of its authority, in violation of the USACA Constitution and the directives of the International Cricket Council, and in its own self-interest. For that reason, at my expense, I retained the international law firm O’Melveny & Myers LLP to review the matter and advise me.
I am hopeful that, after reviewing this letter and soliciting the views from league members, the
Board will reconsider its decision and allow the Constitutionally-mandated national election to proceed without further delay. At the conclusion of this letter, I set forth a specific proposal that I believe fairly and equitably addresses the issues identified by the Board and, at the same time, complies with the Constitution.
Background. The International Cricket Council requires each Associate Member, including USACA, to articulate specific election protocols and to execute those guidelines “as is written in the constitution.” In compliance with ICC’s mandate, the USACA Constitution sets forth explicit requirements for elections of its governing Board of Directors and makes plain that all members in good standing shall have the right to participate in those elections. Under USACA’s Constitution, (a) a Board Member’s term shall last no longer than three years; and (b) elections shall be held no later than November 30 of each electoral year. See Art. XXI § 4; Art. XXI § 1. There is no dispute that the last Board election occurred in 2008 and, therefore, under the Constitution, a new national election was required to be held by November 30, 2011. However, no election was held.
On December 3, 2011—four days after the election should have concluded—the Board notified league members through distribution of meeting minutes that it had decided to postpone the election for at least 90 days. The Board’s rationale for postponement appears to be that (a) for reasons unrelated to any election, the Board has asked league members to complete an administrative audit; (b) each league member must successfully complete the audit to be in “good standing” and, thus, be able to vote in a
Board election; (c) the administrative audit is not complete; (d) until the administrative audit is complete, the Board does not know which, if any, league members are in “good standing”; and (e) an election under such circumstances is subject to potential challenge and, therefore, must be postponed.
Analysis. Let me be very clear: there is nothing wrong or inappropriate about heightened compliance procedures. I fully support the Board’s effort to ensure that league members respond to the administrative audit and to bring accountability to the process by imposing consequences on those leagues, if any, that refuse to comply.
However, the administrative audit is not—and, absent an amendment to the Constitution, could not be – a prerequisite for elections to proceed. The Board members have three-year tenures, not three years plus whatever time is necessary to finalize an ad hoc compliance review. Elections are required to be held by November 30 of each electoral year, not November 30 plus whatever time may be needed to “analyze” league’s submissions. The compliance review is not mentioned anywhere in the Constitution and appears to have been originated in the last few months based on a determination that, for tax reasons, the Association would benefit from more rigorous compliance with technical administrative matters. The Board’s September 16, 2011 letter to league members makes clear that the process will be carried out in a cooperative and iterative manner. The letter did not warn leagues that all members must comply and complete the information immediately or else the Constitutionally-required Board elections would be postponed indefinitely. The Board has never identified any provision of the Constitution that authorizes it to postpone the required elections until the Board is satisfied all league members responded fully, completely, and satisfactorily with an administrative audit. This is especially true when the “review” was initiated for the first time two months before the required elections and made mandatory less than six weeks ago.
Nor can complete and successful “compliance” with an audit that goes far beyond the Constitutional requirements for good standing be added post hoc as a requirement for members to vote in elections. Under the Constitution, the Board possesses limited powers to disenfranchise a member in “good standing.” Unlike “provisional members” over whom the Board maintains substantial discretion, a USACA league member in good standing is entitled to a hearing and an opportunity to respond before the Board can suspend its rights.
See Art. XIII § 2. To my knowledge, the Board has not initiated, much less concluded, any hearing by which it has suspended or withdrawn “good standing” status from any league member.
This makes sense for at least three reasons. First, by postponing the election scheduled to occur by November 30, 2011, the current Board members unilaterally extended their own tenures indefinitely. This type of self-interested decision-making is unprecedented and dangerous. No provision of the Constitution grants the Board such expansive self-aggrandizing powers.
Second, as the Board’s letter intimates, completion of the “compliance review” is purely administrative and not coterminous with good standing. League members were in good standing before the inquiry was initiated: each paid its membership dues, abided by the Constitution, invested time and effort in its league, and advanced the game of cricket. Yet the Board, a month before its three-year term was set to expire, effectively conditioned members’ right to vote on complete and successful compliance with an audit.
The Board has no authority to disenfranchise members based on the administrative audit. According to the December meeting minutes, the Board effectively amended the Constitution by expanding the six requirements for good standing to nine requirements—the additional three all being part of the administrative audit. The table below demonstrates the Board’s unauthorized attempt to expand the good standing requirements:
Constitutional Requirements forGood Standing (Art. VII § 1)
The Member:
1. Owes no outstanding membership dues or other debts;
2. Has not ceased to be a Member;
3. Has not been suspended, expelled, or otherwise sanctioned;
4. Has complied with the Constitution, policies, and rules of the Association;
5. Is not subject to disciplinary investigation or penalty; and
6. Has bylaws that are not in conflict with the USACA Constitution.
Administrative Audit
The Member:
1. Operates pursuant to a written constitution and/or by-laws;
2. Plays under its own written playing conditions/regulations, or under previously published playing conditions (such as ICC rules);
3. Has submitted a signed and notarized Article III pledge;
4. Has provided the names and contact information for itself and its officers;
5. Has identified all of the clubs in their league, including the names and contact information for club presidents, and each club has at least 15 active members;
6. Has paid dues for all of its member clubs;
7. Is able to demonstrate competent financial controls, or is willing to start to implement
competent financial controls;
8. Has implemented, or is willing to start to implement, a formal youth development program; and
9. Has implemented, or is willing to start to implement, a formal women’s development program.
The Member must also submit all of the following information from 2008-2010 for the audit:
10. League officials responsible for compliance related duties;
11. Cricket grounds leased or owned by Member, and all documents in connection therewith;
12. League website name;
13. Detailed list of meetings;
14. Election details (including participants and the number of votes each official received);
15. IRS tax returns or IRS Form 1023 Application for 501(c)(3) status and letter from the IRS approving that application;
16. A written description of each Member’s internal financial controls, including the date that each control was implemented and the names and contact information for the individual(s) responsible for each aspect of the league finances;
17. Income and expenses for each league, club, and tournament; and
18. Copies of all election notices and meeting minutes.
Third, as the Board itself recognized, collecting and providing this information is time consuming, arduous and, until October 22—precisely the time regional elections preceding the national election of Board members were supposed to occur—was completely voluntary. The Board never notified league members that immediate and complete compliance with the audit by all or substantially all of the members was a prerequisite to national elections proceeding. Indeed, the Board stated that it would assist any member having difficulty with the arduous process by helping prepare and collect the necessary documents. I believe that the next Board of Directors can determine the consequences, if any, of noncompliance with the administrative audit, but the audit does not and cannot serve as a basis for an indefinite postponement of the Constitutionally-required election of new governors.
The Board’s unilateral decision to suspend the election violates several provisions of our Constitution:
• Article VII, Section 1: members in good standing have a right to vote in Board elections.
The compliance review is not a prerequisite to vote.
• Article VIII, Section 2: the Board cannot suspend a member unless it has “an opportunity to present its case to the Board prior to the decision to suspend or expel.” No formal process has been implemented to deny full members the right to vote.
• Article XI, Section 1: the Board of Directors oversees the management of USACA, but it does not have the unilateral authority to amend the Constitution or impose new voting requirements. Nor does the Board have the authority to create new voting requirements to extend its term in office.
• Article XXI, Section 1: “Elections shall be held no later than November 30 of each electoral year.” This requirement is absolute and without exception. The Board lost its authority on November 30, 2011, and any decisions by the Board after that date—including those made during the December 3, 2011 meeting—have no force or effect on the Association or its members under the Constitution.
• Article XXI, Section 4: a Board Member’s term ends after three years. This provision does not contemplate ad hoc delays or postponement for any reason, much less a unilateral decision by those in power to remain in power until they see fit.
• Article XXII, Section 1: a Member in good standing is entitled to vote at any meeting, including elections. The Board has deprived all of its Members of that right, including those members who the Board concedes are in good standing and in compliance with the administrative audit.
• Appendix B, paragraph 13: under the Code of Ethics, the Board is required to “[p]rovide openness, transparency and full disclosure to all members on matters pertaining to USACA.”
Here, the Board has postponed the election and suspended Members’ voting rights without full disclosure of the alleged deficiencies.
Conclusion.
The Board has not acted impartially. By postponing elections on the purported bases set forth in the December 3 minutes, the Board unilaterally extended their tenure. That decision is tantamount to Congress asking every citizen to complete a “compliance audit” and postponing the 2012 Congressional elections until the audit is complete. Such self-interested decision making is unwarranted, unjustified, and unprincipled.
League members who comprise the Association have a Constitutional right to determine who will lead USACA for the next three years. To that end, I respectfully request that national elections for the next USACA Board of Directors occur forthwith and no later than March 1, 2012. I further request that the Board respond to this letter no later than December 14, 2011. If the Board refuses these requests, then I will have no choice but to evaluate all of my options, including filing a lawsuit to force an election.
Very truly yours,
Ram Varadarajan
cc: USACA League Presidents