The Spirit of Cricket is a well-known term in the cricketing world; at its simplest, it encapsulates the commitment to maintaining the highest standards of behaviour and conduct, both on and off the field. However, the sport has been shaken by a series of transgressions. In particular, recent events in both the English and Australian game have received extensive media attention. They also raise some interesting legal questions.
Following an enquiry into allegations of institutionalised racism at Yorkshire County Cricket Club (YCCC), during which a number of individuals came forward with accounts of experiencing racial abuse by other players and staff, the England and Wales Cricket Board (the ECB) brought charges against YCCC and seven individuals. One of the individuals charged, former cricketer Andrew Gale, confirmed that he will not engage with the ECB’s disciplinary process, nor will he acknowledge any sanction imposed on him. At least four of Gale’s co-accused have withdrawn from the disciplinary process, although it is currently unclear whether they intend to comply with any sanctions handed down.
Recently, the ECB also confirmed that the substantive hearing of a Panel of the Cricket Discipline Commission(the CDC) into disciplinary charges against YCCC and a number of individuals will take place in London between 1 March 2023 and 9 March 2023 (inclusive). This hearing will only
address issues of liability and any issues of sanction will be dealt with at a later date.
Meanwhile, former Australian vice-captain David Warner recently withdrew his application to end his lifetime ban from leadership positions within the Australian cricket team, imposed by Cricket Australia in the aftermath of the “
sandpaper-gate” incident.
Both issues have brought a greater level of scrutiny to cricket-related investigations, and this blog post examines some of the legal issues arising out of the challenge of effectively enforcing sanctions imposed against both current and former cricketers as part of an internal investigation process.
The ECB’s Investigation into YCCC
The applicable rules and sanctions
The CDC is responsible for adjudicating on alleged breaches of the ECB’s rules and regulations, in accordance with the
CDC Regulations (the
Regulations). The Regulations have jurisdiction over both registered cricketers and coaches and the CDC may impose a wide range of sanctions, including a reprimand, suspension from playing domestic and/or international cricket matches, and up to an unlimited fine.
Previous cases predominantly involved current players and unsurprisingly, the sanctions focus on suspensions from playing cricket and relatively minor fines. The charges against former player Andrew Gale were brought under a rule which (broadly) prohibits any conduct which may be prejudicial to the interests of cricket, or which may bring the ECB, the game of cricket, or any cricketer into disrepute. However, in the absence of any publicly available decisions of the CDC relating to former cricketers specifically, the type of sanctions that may be imposed on Andrew Gale are at this stage unclear, as are the ways in which the ECB may seek to enforce them should he refuse to comply.
Non-compliance with sanctions: a gap in the field?
The CDC disciplinary panel has the power to require the attendance of Andrew Gale at the hearing, and should he fail to appear, the panel may draw “such reasonable inferences as it deems proper” from this. This may result in the charges against Gale being upheld by the CDC.
The Regulations provide that the consequence of failing to pay a fine imposed by the CDC is suspension from participating in any match until the fine and/or costs order is paid in full, effectively banning an individual from participating in professional cricket until the fine is paid. But what happens where an individual, like Andrew Gale, will no longer participate in professional cricket?
Arguably, any sanction imposed by the CDC can only bind such individuals should they attempt to return to professional cricket. That said, the practical consequences of such allegations, if not defended, including reputational damage and loss of income may be considered a form of sanction. Notwithstanding that despite failing to participate in the CDC process, Andrew Gale and his co-accused separately
won an unfair dismissal claim against YCCC before an employment tribunal.
Whilst the Regulations do not contain provisions compelling individuals no longer involved in professional cricket to comply with sanctions, other sports have implemented rules to this effect. For example, the
Premier League Handbook provides that fines and costs imposed following a disciplinary investigation shall be recoverable by the board as a civil debt. Therefore, in the event of a sanctioned individual failing to pay a fine or costs, unlike the ECB, the Premier League has a mechanism through which a financial sanction can be enforced by the courts in England and Wales.
Cricket Australia’s Code of Conduct
Not to be outdone by their Ashes rivals, the practical consequences of sanctions on players is an issue that has also plagued Australian cricket in recent years.
Cricket Australia banned David Warner and two other members of the Australian cricket team from international and domestic cricket for periods ranging from nine months to a year, after the players were found to have attempted to alter the condition of the ball using sandpaper, during a Test match vs South Africa in 2018. Warner was also banned from holding the role of captain or vice-captain of the Australian cricket team for life. At the time of the ban, there was no right to appeal a sanction once it was accepted by an individual.
Following Cricket Australia’s amendment of the
Cricket Australia Code of Conduct for Players and Player Support Personnel (the
Code of Conduct) in November 2022, players were permitted to have a long-term sanction modified, subject to an application to be reviewed by an independent three-person panel. Warner accordingly submitted an application to have his captaincy ban modified. However, after the panel determined that a hearing would be public in accordance with Article 10.9.3.1 of the Code of Conduct, Warner
withdrew his application: in his words, he felt the panel was determined to conduct a “
public spectacle” and he was not prepared to put himself and his family through “
further humiliation and harm by conducting a media circus”.
Comment
The sanctions to be imposed on cricket professionals are only one aspect of the wider investigation process. It’s clear from these two cases that the rules of the procedure leading to a sanction are highly relevant and can impact the outcome of the process. It is vital that sports governing bodies take stock and consider whether they have the appropriate tools in place to manage such a process. No doubt many will have watched these two case studies with interest, and will accordingly be bolstering their own investigation and sanctions regimes.
As a final note, in light of the considerable thought given to such rules (and potential grey areas) by other sporting regulators such as the Premier League, cricket’s governing bodies may seek to implement similar measures to provide more clarity in the case of sanctions on former players.
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