How the Anderson/Jadeja ruling puts Cricket and ICC’s Code of Conduct under spotlight

Published 11 August 2014 | Authored by: Kevin Carpenter
The recent test cricket series between England and India has shown the more unsavoury side of what has traditionally been considered a gentleman’s game. There has been what some may view as petty behaviour by players and administrators of both teams leading to a recent decision by an International Cricket Council (‘ICC’) Judicial Commissioner, His Honour Gordon Lewis AM, under the ICC Code of Conduct for Players and Player Support Personnel (‘the Code’).1 

The Written Reasons2 relate to an incident between England’s leading bowler, James Anderson and Indian all-rounder Ravindra Jadeja. The Reasons do not show the sport in a good light and call into question certain key elements of the Code.

The allegations made by both the England and Wales Cricket Board (‘ECB’) and the Board of Control for Cricket in India (‘BCCI’) related to behaviour that allegedly took place between the two players on 10 July during the First Test between the countries this Summer.

The principal allegations of the verbal and physical altercations between the two players took place in the corridor outside the England dressing room at the Trent Bridge ground; the importance of this will become apparent.

The charges

The charges brought alleged that the behaviour by both Mr Anderson and Mr Jadeja was either “contrary to the spirit of the game” or “brings the game into disrepute”.

Article 3.1 of the Code allows not only an Umpire to report an alleged offence under the Code, but also the Team Manager or CEO of either of the two National Cricket Federations whose teams are participating in the match, as in this case. When reporting the alleged offence in the appropriate Form Rep 1, the complaining party must also state what Level they believe the alleged offence to be. The various types and levels of offences are found in Article 2 of the Code: Level 1 being the least serious and Level 4 being the most serious.

It appears that the actual offences under each Level are largely the same, with the main difference being the range of sanctions available if the allegations are found to be proven. Levels 1 and 2 are heard by the Match Referee whereas allegations made in relation to Levels 3 and 4 must be heard by a Judicial Commissioner. In this particular instance, the BCCI alleged that Mr Anderson had committed a Level 3 offence,3 while the ECB lodged a report with the ICC that Mr Jadeja had committed a Level 2 offence.4

One would have thought that the appropriate Level for the alleged offence would have been decided by the ICC upon receiving the allegation; not by the complaining party.

 

The evidence

The first notable point from His Honour Lewis’s Written Reasons was his express reference to the witness evidence of England wicket keeper, Matt Prior (one of the 13 witnesses heard), who gave testimony about the colourful (to put it mildly) language that is, apparently, “common place” on an international cricket field.

This does the image of the sport no good whatsoever and creates a certain level of public embarrassment, similar to when witnesses were giving evidence on the foul language readily employed on the football field in the Regina -v- John Terry5 case, which concerned allegations of racism from one professional football player to another.

However, as I have already mentioned, it was what happened off the field that became the main subject matter of this particular sporting disciplinary hearing. It has been reported in the media, supposedly fuelled by the BCCI, that there was a close circuit television camera (‘CCTV’) positioned outside of the changing rooms of the teams at the stadium which should have captured what happened between the two players, and yet, having requested such evidence, the BCCI were informed that the camera was not connected and therefore there had been no recording of what had taken place.6 This left His Honour Lewis in the rather unenviable position of having to rely on the accounts of the aforementioned 13 witnesses with no other form of evidence available to make his decisions.

As in most sporting disputes, one must look to the historical background to garner the true reasons as to why the parties chose to bring these seemingly tit-for-tat charges. It has been reported that the Indian team, and particularly its high profile captain, Mahendra Singh Dhoni7, had become less than impressed with the levels of verbal abuse, or ‘sledging’ as it is called in cricket8, levied out by Mr Anderson, with other international cricket teams feeling the same.9

The animosity between the main protagonists in this rather churlish sporting tiff may well have been the reason why His Honour Lewis felt it appropriate to make such comments as: “certainly the witnesses gave support to two different factual situations (and many varying versions thereof) with considerable enthusiasm and the long team lines”; and: “obviously one version of the facts must be untrue, but the existing CCTV image unhelpful and the witnesses hopelessly biased in favour of one party or the other”.

 

Standard of proof

His Honour Lewis’s comments regarding the standard of proof to be applied to the charges warrant further discussion. He had great trouble in applying Article 6.1 of the Code (Standard of Proof and Evidence), which states:

Unless otherwise described herein, the standard of proof in all cases brought under the Code of Conduct shall be whether the Match Referee or Judicial Commissioner is comfortably satisfied, bearing in mind the seriousness of the allegation that is made, that the alleged offence has been committed. The standard of proof in all cases shall be determined on a sliding scale from, at a minimum, a mere balance of probability (for the least serious offences) up to proof beyond a reasonable doubt (for the most serious offences).

Given both the suspension and fine available for a Level 3 offence, His Honour Lewis’s view was that comfortable satisfaction in this case had to be “something close to beyond reasonable doubt”. On that basis he was not convinced that this high standard, akin to a criminal standard, had been discharged.

The unclear drafting of Paragraph 6.1 is unsatisfactory, particularly as it allows Judicial Commissioners to apply a criminal standard of proof to a sporting dispute, which is far from good practice and a difficult stance to defend. Even the heightened comfortable satisfaction standard is usually reserved to matters of corruption in sport.

Overall it is extremely difficult to determine how to properly apply Article 6.1, not to mention that there is nothing pleasing about there being a “sliding scale”.

Review of the Code and procedures

This issue, along with the grading of offences into different Levels depending on the permissible sanctioning range, led His Honour Lewis to make a rather strong statement at the conclusion of his Reasons having dismissed both charges:

finally, as a newly appointed Judicial Commissioner, I urge the ICC to conduct an immediate review of its Code of Conduct, as these proceedings have highlighted a number of inadequacies in the Code and situations with which it cannot easily cope”.

This is not to mention the fact that the incident took place on 10 July, yet the telephone hearing did not take place until 1 August, in which time two further five-day Test Matches hd taken place between the two countries in the series in which both Mr Anderson and Mr Jadeja were allowed to play, with the outcome of the charges hanging over both the two players in question and the series.

The BCCI have asked the ICC to appeal its own Judicial Commissioner’s decision but it has subsequently refused to do so10 and one cannot blame them given the fact that the original Hearing took nearly six hours involving 13 witnesses at a huge cost to both parties.

There has been considerable criticism of both parties to the Proceedings, but also criticism of the ICC disciplinary Code and procedures.11 One can hope that these are reviewed immediately to provide a more transparent and easy to understand process for all concerned.

Indeed, ICC Chief Executive David Richardson has made this commitment in a statement following the decision.12 That press release also stated that language such as that described in the Reasons has “no place in the game”, which is something I am sure all stakeholders in the sport agree with despite, in the words of Mr Richardson, “International Cricket [being] tough, competitive and uncompromising”.

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About the Author

Kevin Carpenter

Kevin Carpenter

Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.

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