How cricket is tackling racism: A review of the ICC’s Anti-Racism Policy and Conciliation ProcessAnujaya Krishna
“…any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.
This is how the International Convention on the Elimination of All Forms of Racial Discrimination defines “racial discrimination”.1 Needless to say, it can be debilitating for an individual and especially shameful for a noble pursuit like sport.
It is said that in the early 20th century, the West Indies joined Australia and South Africa on the touring cricket map. “The initial harmony between white and black players in South Africa was weakening as racial discrimination took hold - a talented black fast bowler, Krom Hendricks, was excluded from the squad for a first tour of England in 1894, and Ranji was omitted from an England tour there, at the request of white South Africans.” Around the same time, Pelham Warner (born in the Caribbean, and after whom the Warner Stand at Lord’s is named), recognized the value of "natives" in the opposition, condemned the whites-only selection policies of some islands.2
In time, the game has evolved and is now widely representative and inclusive. While systematized exclusion and discrimination may be a thing of the past, there have been isolated instances of racist remarks/comments, not just among players (for instance, the ‘Monkeygate’3 involving India and Australia) but also against a player/team by spectators (for instance, a man being banned in November 2016 from going to the cricket in Australia for three years after he allegedly wrote racist graffiti4 aimed at a South African player). In fact, an umpire had also accused5 the International Cricket Council (ICC) of racial discrimination in 2006, but later dropped the case.
In view of these situations, the International Cricket Council (ICC) has in place a set of codes and regulations to curb this practice, including a confidential conciliatory and disciplinary procedure. This article explains the anti-racism framework in cricket, particularly the conciliation mechanism, and how this framework can be made more robust. Specifically, it looks at:
The ICC’s rules to tackle racism;
Analysis of the disciplinary and conciliation procedure under the code
Applicability of the policy to spectators
Conclusion and recommendations
The ICC’s rules to tackle racism
The Marylebone Cricket Club (MCC) is recognized as the custodian of the Laws of Cricket6 (Laws), since its formation in 1787.7 The ICC is the global governing body for cricket, but it relies on the MCC for the drafting and interpretation of laws related to cricket.8
Law 42 has been added to the Laws last year9, which empowers umpires to take action on-field against players for misconduct, wherein the offences have been categorized into four levels, and the umpire can decide into which level an instance of misconduct falls. These include: “using language or gesture to another player, umpire, team official or spectator that, in the circumstances, is obscene or of a seriously insulting nature.”10 This, by implication, could be applied to racist conduct as well.
The ICC has a dedicated Anti-Racism Policy11 (Policy) in place since 2012. It complements the provisions of the Anti-Racism Code for Players and Player Support Personnel12 (Code). The Code was amended in 2006, following recommendations by a working party under Goolam Vahanvati, India’s then solicitor general. The committee also agreed to a series of anti-racism policy initiatives, including:
The ICC commissioning an eminent qualified lawyer to draft legislation dealing with racist behavior at cricket matches; Members would then lobby their respective governments to ensure adoption, establishing tough powers to deal with racism at sporting events.
The adoption of a text message or telephone hotline at venues allowing spectators to report offensive behaviour in confidence.
The holding of diversity days to emphasize the way cricket continues to break down barriers of race, colour, religion and culture.13
There is also a set of Implementation Guidelines14 to enable ICC Members to execute the Policy. The Policy and the Code both apply specifically to International Matches15, but all ICC Members are encouraged to adopt and implement corresponding policies that apply to all other domestic cricket taking place within their respective jurisdictions.16 The Policy also deals with racial abuse by spectators.
Analysis of the Disciplinary and Conciliation Procedure under the Code
Articles 3 to 8 of the Code deal with the various stages of a complaint and action taken in an incident of racism.17 Article 3 states that an alleged offence under the Code may be reported by the ICC’s Chief Executive Officer (CEO)/ Umpire/ Match referee/ Team Manager or CEO18.
Article 4 of the Code, which provides for the notification and conciliation procedure, is the bulwark on which the resolution of such disputes rests. The key stages of the procedure are as follows:
The GC will inform and obtain consent for following the Conciliation procedure from the Participant named in the Report and the individual(s) subject to the alleged offence.
The case will then be forwarded to a Conciliator (sole).
The Conciliator will oversee the procedure of Conciliation and ensure that it takes place as soon as possible, and unless exceptional circumstances apply, no later than fourteen days after the consents have been received by the ICC’s General Counsel:
The conciliation will be conducted at the place where the alleged offence was committed;
The parties to the conciliation procedure should have an open mind and act honestly and in good faith;
“All statements, submissions and evidence made, heard or disclosed during any part of the conciliation process shall be so made, heard or disclosed strictly (unless the relevant party agrees otherwise) on a "without prejudice" basis and may only be used by any party for the purposes of the conciliation process only.”20 This extends to proceedings before the Judicial Commissioner (if the conciliation procedure has not been adopted/has failed), wherein, as per Article 6.2 of the Code, no such statements, submissions and/or evidence produced before the Conciliator will be adduced, given or accepted during any disciplinary hearing before the Judicial Commissioner without the express consent of the relevant party.
The possible solutions are listed in Article 188.8.131.52, including suspension, public apology, private apology, joint press statement, agreement by the Participant to undergo relevant programme of education and/or counseling;
The solution reached by the parties will be final and binding on all parties;
The ICC will issue a public announcement regarding a resolution reached by all the parties during the conciliation meeting as soon as possible after the end of the conciliation meeting. The public announcement may include:
details of the identity of the Conciliator;
offence committed; and
terms of any agreed resolution.
Until the public announcement is published by the ICC, “all parties involved in the conciliation procedure shall treat such procedure as strictly confidential.”21 However, this does not prevent the ICC or either of the parties (or any relevant National Cricket Federation) publicly confirming the date of any conciliation meeting, the offence that is alleged to have been committed and/or the name of the Participant charged.
The above-mentioned conciliation procedure was introduced by the ICC in 200922, almost a year after a controversial incident between Andrew Symonds of Australia and Harbhajan Singh of India. The conciliation procedure is sought to be the first resort to solve such disputes, considering that there may not be a need for triggering the Disciplinary Procedure immediately in all cases, because some disputes arise merely as a result of “confusion, misunderstanding, ignorance or language and translation barriers”. This process was hailed by the Federation of International Cricketers’ Associations (FICA), the players’ lobby group, which recognizes it as a “superior process” and one that “promotes a better understanding of the whole issue of racism”23. This is because mediation at the initial stage in such issues accords an opportunity to the vilified player to explain to the accused player why his actions were offensive. This, in FICA chief executive Tim May’s words, “It promotes a better understanding of the whole issue of the issue of racism” 24. For instance, in the Andrew Symonds-Harbhajan Singh case it turned out to be a case of a Hindi expletive (with no racist connotations) having been misunderstood to be a racist slur.
The element of confidentiality is an important part of the Code. An example would be the way an incident between Afghanistan and Namibia25 was handled in 2016. The ICC, via a press release, revealed that a complaint made by Cricket Namibia under the Code against Afghanistan was resolved by means of a confidential conciliatory process. The nature of the press release was such that the exact details of the offence and particulars of parties involved were not all revealed but the basic overview of the complaint, procedure and result was given to the public. In the instant case, the ICC stated that following discussions with an ICC-appointed conciliator, all parties agreed that “some of the offence caused by words used by some of the Afghanistan players resulted from cultural differences, a lack of sensitivity and misunderstanding. The Afghanistan Cricket Board accepted that certain words spoken by some of their players in the presence of a Namibian player could reasonably have been expected to cause offence.” The Afghanistan Board and players in question issued an apology to the Namibian player. The Afghanistan Board also agreed for its national team players to attend an education and training course organized by the ICC to inform international cricketers about their responsibilities with respect to the issues of race, language and culture.
That the ICC aims to resolve such issues with due dignity, secrecy and without giving wind to inflammatory speculation is reflected in the ICC’s statement that since all parties agreed that the conciliation process had resulted in a consensual resolution, the matter was closed and no further comment will be made26. In the Disciplinary Procedure itself (followed in case of A.2 above), one of the general principles of procedure calls for strict confidentiality as to the proceedings, until a public announcement is made in accordance with the rules.27
There is a provision for appeals against decisions made by the Judicial Commissioner as per Article 8 of the Code, and such appeal can only be filed by the Participant found guilty or by the ICC’s CEO. Sanctions are levied in accordance with categorization of offences as first, second, or third, and in all cases, it is mandatory to undergo a programme of education/counseling designed to promote the understanding and awareness of issues directly relevant to the offence that the Participant has been determined to have committed.28
Applicability of the Policy to Spectators
In 2006, Richard Caborn, the then UK sports minister, had called on the ICC to find ways to eliminate racial taunts from spectators.29 The ICC has made efforts in this direction. In 2007, the ICC wrote to the India and Pakistan Cricket Boards30 to inquire about reports of racism by spectators during matches played in Baroda and Lahore respectively.
The ICC’s Anti-Racism framework is not restricted to players and officials. An offence under the Code means:
“Engaging in any conduct (whether through the use of language, gestures or otherwise) which is likely to offend, insult, humiliate, intimidate, threaten, disparage or vilify any reasonable person in the position of a Player, Player Support Personnel, Umpire, Match Referee, Umpire Support Personnel or any other person (including a spectator) on the basis of their race, religion, culture, colour, descent, national or ethnic origin.” (Article 2.1.1. Emphasis added)
The Policy deals with educating stakeholders in cricket to deal with situations involving racism by spectators31. The ICC and its Members are to ensure dissemination of information to spectators regarding what will be regarded as inappropriate racist conduct.32 Paragraph 11 of the Policy details ways in which proper code of conduct may be effected with respect to spectators, including ban/removal from stadia, attending educational/training programmes to inform and improve spectator conduct. In 2018, a spectator, who had racially abused33 South African cricketer, Imran Tahir, during a One-Day International match against India in Johannesburg, was evicted from the stadium after Tahir reported the incident to the stadium security.
The Implementation Policy in aid of the Code also provides guidelines on how Members can enforce anti-racist measures among spectators, such as preparing ground officials/stewards to handle instances of racism from spectators, have a system of public announcements to dissuade racist chanting etc.34
Conclusion and Recommendations
The analysis undertaken shows that the policy to curb racism in cricket has evolved and both the ICC as well as Members are committed to ensuring greater integrity in the sport. The fact that the MCC introduced a whole new Law last year to regulate player conduct with on-field sanctions as well adds gravitas to the mission to restore cricket to its stature as the "gentleman’s game".
As regards the conciliation procedure followed to resolve disputes involving allegations of racism, it reflects a mature approach towards handling the issue rather than going for hardline sanctions in a one-size-fits-all approach. The parties are given a chance to diffuse the situation, which might have arisen due to language/cultural barriers rather than the malicious intent of racist discrimination. Secondly, the details of the proceedings as well as the particulars of parties involved and the incident itself are kept confidential to curb needless speculation, or publicize offensive language/content to further fan the fire. The fact that the ICC anti-racism Policy and Implementation Guidelines also deal with situations of racism involving spectators takes care of an important aspect- where sports like football have already made much progress. It is interesting to note that the Implementation Policy seeks Members to develop plans at two levels: one, if there is racism on match days, and two, if there is racism outside of the official match (say, warm-up matches, post-match, in person or in writing).
The ICC/Members could consider introducing an online complaints and redressal system (similar to the ICC Anti-Corruption Unit (ACU) Hotline) as well, wherein spectators who have recorded any racist conduct by other spectators can report the incident with evidence. This will foster greater participatory regulation in the sport and assist law enforcement agencies in punishing people who engage in racism. Secondly, due time should be allocated to publicizing anti-racism policies on television and radio, especially during the pre-match shows, since this is an area that is not spoken about much in cricket despite its significance.
To end where we began: Pelham Warner wrote in Cricket in Many Climes, proclaiming cricket’s ability to forge international relations or soothe disputes: "its friendly intercourse does much to strengthen the amity of nations, and to make for international understanding,"35 and it is this spirit that cricket should constantly strive to strengthen and rejuvenate.
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- Tags: BCCI | Board of Control for Cricket in India (BCCI) | Cricket | Discrimination | Equality | Federation of International Cricketers’ Associations (FICA) | ICC Anti-Corruption Unit | ICC Anti-Racism Code for Players and Player Support Personnel | ICC Anti-Racism Policy | India | International Convention on the Elimination of All Forms of Racial Discrimination | International Cricket Council (ICC) | Laws of Cricket | Marylebone Cricket Club
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About the Author
Anujaya Krishna is currently working as a legal practitioner and legal knowledge consultant in India. She has been associated with the Sports Law team at Duane Morris and Selvam LLP, Singapore. She has authored a book entitled Sports Law and most recently got published in the Handbook on Sports Law. She has been keenly interested in Sports Law since her college days, and has several publications to her credit, in national journals as well as in international ones, such as the journal of the International Association of Sports Law, Greece.