Newsletters Sports Law 16th Apr 2018

Australian Ball-Tampering: Mob Justice or a Fair Cop?

On 24 March 2018, the Australian cricketer Cameron Bancroft was caught on camera doctoring a cricket ball with sandpaper to obtain an unfair competitive advantage during his side’s third test match against South Africa.  It quickly emerged that the Australian captain, Steve Smith, knew about the ball-tampering and had condoned it.  Moreover, the Australian vice-captain, David Warner, accepted that he had instigated the attempt at cheating and had even shown Bancroft how to manipulate the ball.  These confessions made headlines around the world and sent shock-waves through the cricketing community. Australia’s Prime Minister, Malcolm Turnbull, weighed in on the scandal, labelling it a “terrible disgrace”, and calling on Cricket Australia, the governing body for cricket in Australia, to act “decisively and emphatically”.

Decisive action soon followed from a number of cricketing bodies.  The International Cricket Council (ICC), the global governing body of cricket, found that the players had infringed a number of provisions of the ICC Code of Conduct for Players and Player Support Personnel.  Bancroft was handed a fine and three demerit points for “changing the condition of the ball” under Article 2.2.9 of the ICC Code.  Smith was suspended and fined for “conduct that is contrary to the spirit of the game” under Article 2.2.1.  Both these infringements are categorized as Level 2 on the ICC scale, which runs from Level 1 to Level 4 (Level 4 infringements include, for example, an act of violence during play).  Each level carries its own range of penalties, so once the ICC had decided that these were Level 2 offences its discretion to impose sanctions was limited.  In this instance, the sanctions meted out were accepted by the players in question and therefore the need for any formal ICC hearing was avoided.  However, a number of high-profile commentators in the cricketing world were quick to express the view that the penalties imposed were too lenient.  Graeme Smith, a former captain of South Africa who is widely regarded as one of the best test match openers of all time, observed that although the ICC had stuck to the letter of the law, they had not “dealt with it effectively”.  In fact, the ICC has now promised a wide-ranging review into how it punishes poor player behaviour in the wake of the ball-tampering saga.

Then came a slew of financially costly bans and disendorsements.  The Board of Control of Cricket in India (BCCI) banned Smith and Warner from taking part in this year’s Indian Premier League, and the pair have lost extremely lucrative contracts as a result.  Similarly, a growing number of companies have withdrawn individual sponsorship deals with the players.  Cricket Australia has also lost out financially from the scandal, with Magellan Financial Group ending its sponsorship agreement and stating that a “conspiracy by the leadership of the Australian men’s Test cricket team […] is so inconsistent with our values that we are left with no option but to terminate our ongoing partnership.”

The baton was finally passed to Cricket Australia, and on 28 March it handed down its own sanctions against the players.  Smith and Warner were banned for 12 months each, with the former suspended from captaining Australia for at least two years; Warner will not be considered for any team leadership positions in the future.  The cricketing body found that Smith had “misled match officials and others regarding Bancroft’s attempts to artificially alter the condition of the ball” and had made “misleading public comments regarding the nature, extent and participants of the plan.”  The infringements by all three players were treated as Level 3 offences by Cricket Australia, by reference to a scale that, like the ICC’s, runs from Level 1 to Level 4.  Interestingly, Article 2.2.8 of the CA Code deals with “changing the condition of the ball in breach of Law 41.3 of the Laws of Cricket”, with the conduct categorised as a Level 2 offence.  Any attempt to manipulate a cricket match for inappropriate strategic or tactical reasons is also a Level 2 offence.  All three were charged under Article 2.3.5, which serves as a ‘catch-all’ provision and covers situations not dealt with by other specific Level 3 offences.

Since those latest penalties were imposed, there has been some expression of sympathy for the three players, with the suggestion that Cricket Australia has treated them harshly.  The players’ union, the Australian Cricketers’ Association, noted a number of “glaring and clear anomalies” in Cricket Australia’s expedited investigation and disciplinary approach.  However, although the three players reportedly took legal advice on the possibility of appeal, all three ultimately decided to accept the sanctions imposed by Cricket Australia.  On 11 April 2018, Cricket Australia confirmed that none of them would be awarded new contracts for the forthcoming season.

That might well be the end of the road for the Australian ball-tampering scandal, at least from a procedural point of view.  In any event, there are a number of issues worth considering.  Whilst there has been much discussion of the “lenient” approach taken by the ICC and the “harsh” approach adopted by Cricket Australia, fewer column inches have been dedicated to the inconsistencies between the two bodies’ categorization of the offences, despite the fact that the ICC Code of Conduct is very similar to that used by Cricket Australia.  This in turn raises the possibility that one or both of the two bodies may have been unduly swayed by public opinion.  It is notable in this regard that the head of Cricket Australia wrote an open letter to the public before the bans were imposed stating that the organisation had “heard your feedback loud and clear.”  The players did of course have recourse to a quasi-judicial process to challenge the penalties imposed, but the case serves as a timely reminder that trial by media frenzy is almost always an unedifying spectacle.  On the other hand, it has been pointed out that the conduct in question did go beyond a single act of ball-tampering.  To this extent, many cricket fans feel that Cricket Australia was right to take into account the broader context, and in particular the finding that Smith and Warner instigated the conduct from positions of influence and seniority.  Either way, it would have taken a bold commissioner to overturn the bans.

Robert Dacre & Tom Cornell

Categories: Newsletters