Transparency International publishes report on cricket corruption: More protection for whistleblowers neededAlex Odell
Last week, Transparency International, the world’s leading anti-corruption organisation (of which our colleague, Special Counsel Monty Raphael QC of Peters & Peters LLP, is a trustee director), published a report, Fair Play: Strengthening Integrity and Transparency in Cricket, into the corruption risks posed to the sport of cricket by poor governance.
That such a report was necessary for a sport which, as the report's title suggests, was once a by-word for fair play, must be of concern to both cricket's administrators and its fans. The report reflects widely-held anxieties about cricket's governance and anti-corruption practices at all levels of the game.
The report provides a "road map" for the sport's governing body, the International Cricket Council (ICC), to follow to improve cricket's governance and anti-corruption work. In this blog, we focus on one of the central recommendations of the report; the recommendation that the ICC publish whistleblowing procedures for the games stakeholders.
The concept of whistleblowing, and the debate over what role it should play in both criminal and regulatory investigations, is of particular relevance at present; in June this year, we wrote about the impact of the latest US approach to dealing with the issue, the Dodd-Frank Whistleblower Program, which financially incentivises whistleblowers and paid out $14million in the fiscal year of 2013 alone.1
Reflecting the importance of this topic, at the start of November 2013 Transparency International published a series of principles designed to provide guidance in drafting whistleblower legislation, internationally. The principles proposed the following definition of whistleblowing:2
"Whistleblowing: the disclosure of information related to corrupt, illegal, fraudulent or hazardous activities being committed in or by public or private sector organisations (including perceived or potential wrongdoing) – which are of concern to or threaten the public interest – to individuals or entities belied to be able to effect action."
Whistleblowers have been described as the regulators of last resort, and their role within a strong and effective system of governance is increasingly uncontroversial. Cricket, however, faces two particular difficulties in successfully introducing a system which encourages and protects whistleblowers.
First, cricket is an international sport, but there is very little harmonisation of whistleblowing legislation internationally, not least amongst those nations most prominent within the sport. The protection accorded to whistleblowers is particularly poor in India, where the sport's seat of power lies. There is not only an absence of any legislation in India to protect whistleblowers, but those who have sought to use the Right to Information Act in the jurisdiction, a piece of legislation akin to the UK's Freedom of Information Act, to expose corruption in public authorities have been the victim of attacks ranging from social ostracism or harassment, to assault or murder.3 To develop a corporate culture which recognises the importance of whistleblowers against such a backdrop is clearly a challenge. Pending Indian legislation which aims to protect whistleblowers, The Public Interest Disclosure and Protection to Persons Making Disclosure Bill, which is currently making its way through the Indian parliament, will only apply to employees of the Indian government, and certainly wouldn't extend to those involved in cricket. Whistleblowers need legislative protection in the jurisdictions in which cricket operates.
Second, there is the personal risk faced by players and other potential whistleblowers in cricket. The world of professional cricket is small. Professional cricketers risk their careers when they report unlawful activity, which may have been committed by team mates. This means that any system which administers such disclosures must be able to guarantee confidentiality and provide clarity on what is expected of the relevant stakeholders.
The existence of a disciplinary offence of 'failing to disclose' under Article 2.4 of the ICC Anti-Corruption Code4 creates a further complication for whistleblowers.
These offences create an inherent risk that a whistleblower may be accused of having committed an offence by virtue of not reporting unlawful activities promptly. In the absence of formal guidance on the approach the ICC will take to a whistleblower that may be subject to Article 2.4 of the Code, players may be reluctant to report corruption. This ambiguity is at odds with the robust governance the game both needs and deserves.
The Transparency International report is a useful contribution to the debate about how cricket is governed, and has successfully raised awareness of the huge challenges the sport faces. The next step must be for the ICC, and its member nations, to enact reforms to strengthen the protections for people who can expose corrupt practices and conflicts of interest within the game.
Co-authored by Chris Gribbin.
4. 2.4.2 Failing to disclose to the ACSU (without undue delay) full details of any approaches or invitations received by the Participant to engage in conduct that would amount to a breach of the Anti-Corruption Code.
2.4.3 Failing to disclose to the ACSU (without undue delay) full details of any incident, fact, or matter that comes to the attention of a Participant that may evidence an offence under the Anti- Corruption Code by a third party, including (without limitation) approaches or invitations that have been received by any other party to engage in conduct that would amount to a breach of the Anti-Corruption Code.
2.4.4 Failing, without compelling justification, to cooperate with any reasonable investigation carried out by the ACSU in relation to possible breaches of the Anti-Corruption Code, including failure to provide any information and/or documentation requested by the ACSU (whether as part of a formal Demand pursuant to Article 4.3 or otherwise) that may be relevant to such investigation.
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About the Author
Alex is a barrister at Peters & Peters Solicitors, specialising in business crime, extradition, corruption and sports law. He is part of the P&P Sports Disputes and Investigations team. Prior to joining P&P, Alex was a tenant at the leading criminal set Five Paper Buildings. He has extensive experience of sports law in the context of criminal litigation, having prosecuted cases involving the illicit broadcasting of premier league football for many years.