The state of Sri Lankan cricket: corruption, sanctions and amnestyAnujaya Krishna
“You would do well to love cricket for it is more free from anything sordid, anything dishonourable than any game in the world. To play it keenly, generously, self sufficiently is a moral lesson in itself. And the classroom is God's air and sunshine. Foster it my brothers so it may attract all who find the time to play it. And protect it from anything that may try and sully it ...” (Lord Harris, fifth touring England captain to Australia)1
Corruption, especially to facilitate match- or spot-fixing threatens to dismantle the very fabric of cricket. It is with this in mind that the International Cricket Council (ICC) has established the Anti-Corruption Unit (ACU), the ICC Anti-Corruption Code for Participants (Anti-Corruption Code) and the ICC’S Minimum Standards For Players’ And Match Officials’ Areas At International Matches (ICC Minimum Standards).
One cricketing nation that has been in the eye of the storm as regards corruption in cricket is Sri Lanka.2 So much so that ICC General Manager, Alex Marshall used the phrase “the very specific challenges we face in Sri Lanka”3, while speaking on the need to remove corruption from cricket there. In the span of the last six months, corruption charges have been levied against four former Sri Lankan cricketers: Nuwan Zoysa, Avishka Gunawardene, Dilhara Lokuhettige, and Sanath Jayasuriya (Jayasuriya). In fact, Jayasuriya has been banned from all cricket-related activities for two years after being found guilty of breaching two counts of the Anti-Corruption Code.4 The other three are currently under suspension.
This article reviews the situation in Sri Lanka, focusing on the charges levied against these four cricketers, and Jayasuriya in particular, in whose case a decision has already been taken by the ICC. It also reviews the amnesty offered by the ICC to any "participant" who would offer information about corruption in Sri Lankan cricket.
Sanath Jayasuriya had an illustrious career as a skilled batsman and former skipper of the Sri Lankan Cricket Team, playing in more than 100 Test Matches, over 400 One Day Internationals (including being a part of the ICC World Cup-winning team of 1996) and 31 T20 matches. Between April 2016 and 7 September 2017, he served as the Chairman of the Sri Lanka Cricket Selection Committee as well.6
It was during an investigation launched by the ICC into alleged corruption in Sri Lankan cricket that Jayasuriya was interviewed by two members of the ACU. Before these interviews, Alex Marshall, the ACU General Manager was authorized in accordance with the standard operating procedures of the ACU to probe Jayasuriya, including demanding mobile devices held by him, since he was satisfied that information transmitted from/to mobile devices held by Jayasuriya between 1 January to 22 September 2017 could be of relevance to the investigation.7
22 September 2019 - Jayasuriya’s first interview with ACU officials
The interview was initiated by the ICC as part of the investigation into corruption in Sri Lankan cricket. Here, a formal demand for the mobile phones used by Jayasuriya was made due to the ACU General Manager Alex Marshall being satisfied that information sent or received between January 1, 2017 to September 22, 2017 from Jayasuriya’s phone would be relevant to the investigation. Upon questioning, Jayasuriya handed over two mobile phones and confirmed that he only had two phones and no other numbers. Any previous numbers he had had been disconnected. Even after the ACU officials explained to him that if he did not truly disclose the phones used by him, he may commit an offence under the Anti-Corruption Code, Jayasuriya confirmed the use of only the two phones he handed over to the ACU officials for investigation.
23 September 2019 - Jayasuriya’s second interview with ACU officials
In the next interview, Jayasuriya mentioned the existence of two other phones that he said he had “lost” “by accident” and had not mentioned them because he was not using them and had therefore not thought about them. One of these numbers, that the ACU had called on the previous day, was found to be switched on by the ACU but during this interview, Jayasuriya (unaware of the ACU’s attempts to call that number the previous day) claimed not to have used the number since 23/24 May 2017.
5 October 2019 - Jayasuriya’s third interview with ACU officials
Jayasuriya made some clarifications about his statements over the course of the previous two interviews. He stated that he had destroyed and not "lost" one of the phones (contrary to what he stated before) to be spared of journalists who were hounding him after a private video of his got leaked. It was only in this third interview, two weeks after the demand letter had been issued to him that he handed over the phone with the SIM card of the number that he had claimed to have "destroyed" earlier. The ACU was able to establish active use of the said number between May 25, 2017 and October 5, 2017.
Following the interviews, Jayasuriya was charged with two offences under the Anti-Corruption Code:
Article 2.4.6 – Failure or refusal, without compelling justification, to cooperate with any investigation carried out by the ACU, including failure to provide accurately and completely any information and/or documentation requested by the ACU as part of such investigation.
Article 2.4.7 – Obstructing or delaying any investigation that may be carried out by the ACU, including concealing, tampering with or destroying any documentation or other information that may be relevant to that investigation and/or that may be evidence or may lead to the discovery of evidence of corrupt conduct under the Anti-Corruption Code.
Some of the key reasons that led to these charges are the inaccurate information furnished by Jayasuriya about the mobile phone devices used by him during the first two interviews, submitting only two phones to the ACU initially for downloading information critical to the investigation, withholding key information pertaining to a phone number used by him and not handing over that SIM card until the third interview.8
As a result of these proceedings, Jayasuriya voluntarily entered into a period of suspension. It should be noted that upon receipt of a notice of charge under Article 4.6, the accused needs to file a written request to the ICC’s General Counsel if he/she wishes to be heard before the Anti-Corruption Tribunal (ACT), within 14 days of the receipt of the notice.9 Alternatively, the participant may admit charges at any stage, in which case, discussions will be held with the ICC on a “without prejudice” basis. The ICC may depart from sanctions set out in Article 6.2 of the Anti-Corruption Code for good reason.10 On October 29, 2018, Jayasuriya’s lawyer responded to the Notice of Charge of the ICC, admitting the charges and expressing a desire to enter into agreed sanctions as given in Article 5.1.12.
Majorly, the following factors 11are accounted for when determining the proportionality of a ban imposed on an accused for violating the provisions of the Anti-Corruption Code:
Before deciding on Jayasuriya’s sanction (after weighing any mitigating or aggravating factors), the ICC decision pointed out that by failing to hand over relevant information, say the mobile phones, on time, it could be presumed that the accused was trying to conceal incriminating material on it that would prove the commission of another anti-corruption offence.12 This made Jayasuriya punishable with the highest permissible sanction for such cases- a period of ineligibility to participate in the sport of cricket for five years (the exact implications of this ineligibility are laid down in Article 6.5 of the Anti-Corruption Code)13.
However, the Panel also noted some mitigating factors in his case alleviated the ban to two years:
His prompt admission of the breach after receiving the Notice of Charge;
His good antecedents in discipline in the sport (now marred by his failure to be a role model for others in the sport);
His remorse and contrition;
Him taking the less time- and resource-consuming route (instead of the one calling for a hearing before the ACT, as explained above), which will enable those resources to be used elsewhere in combating corruption.
The charges against Nuwan Zoysa, Dilhara Lokuhettige and Avishka Gunawardene
It is worth clarifying at the out-set that Article 8 of the Anti-Corruption Code protects the confidentiality of information pertaining to proceedings before formally charging anyone, “except where the ICC (acting reasonably) deems it necessary for the purposes of protecting the integrity of the sport and/or any of its Participants (for example in circumstances where there is significant damaging and/or incorrect media speculation)”. Even after a formal charge is made, only the name of the participant charged and the offence(s) they are charged are disclosed. There is, therefore, at present, limited information available in public domain relating to the cases that follow.
Article 2.1.1 - being party to an effort to fix or contrive or to otherwise influence improperly the result, progress, conduct or other aspect of an International match.
Article 2.1.4 - directly soliciting, inducing, enticing or encouraging a player to breach Code Article 2.1.1.
Article 2.4.4 - failing to disclose to the ICC’s Anti-Corruption Unit full details of any approaches or invitations he received to engage in corrupt conduct under the Code.
The first charge seeks to punish participation in or facilitation of an effort to fix a whole match or some part of it – for example, spot-fixing.
The second charge seeks to penalize actions by which a participant encourages another player to take part in match- or spot-fixing, thereby abetting the commission of the offence.
The third charge makes it incumbent upon a participant to disclose to the ACU any proposals/solicitations of corruption under the Anti-Corruption Code. This offence follows the ICC Code of Conduct Commission’s recommendation in 2000 that, “an obligation on the part of the players to report to the team manager or captain any approach made to them by bookmakers or knowledge of such approach to any other player”, with the corollary that “failure to make such a report be made a punishable offence”.15 The provision aims to address problems at the earliest possible stage, and is in consonance with the ICC ACU’s approach to handle the menace of corruption in the sport effectively (in order of priority): Prevention; Disruption; Investigation; Prosecution.
The same charges were also brought against former Sri Lankan player, Dilhara Lokuhettige in April, 201916. These were in addition to the charges imposed on him in 2018 by the ICC, on behalf of the Emirates Cricket Board, for violation of the Emirates Cricket Board’s Anti-Corruption Code (ECB Code) (since the ICC was appointed as the Anti-Corruption Official for the ECB Code)17: The charges relate to conduct during the T10 Cricket League played in the United Arab Emirates (UAE) in 2017.
Interestingly, following the amnesty scheme (see below), charges were leveled against two more cricketers in relation to the aforementioned T10 Cricket League in the UAE. Nuwan Zoysa was charged with breach of four counts of the ECB Code18:
Article 2.1.1 – (see above).
Article 2.1.4 – (see above).
Article 2.4.4 – (see above).
Article 2.4.6 – Failing or refusing, without compelling justification to cooperate with any investigation carried out by the ACU in relation to possible Corrupt Conduct under the Code.
While Nuwan Zoysa remained provisionally suspended owing to the earlier charges under the Anti-Corruption Code, he has been additionally provisionally suspended under the ECB Code, till these charges are determined.
The second cricketer charged as per the May 10, 2019 ICC media release is Avishka Gunawardene, who has been charged under the following provisions of the ECB Code19:
Article 2.1.4 – (see above); and
Article 2.4.5 - Failing to disclose to the ACU (without unnecessary delay) full details of any incident, fact, or matter that comes to the attention of a Participant that may evidence Corrupt Conduct under the Anti-Corruption Code by another Participant.
He has also been provisionally suspended under the ECB Code until the charges are determined.
The ICC, for the first time, introduced a scheme of amnesty (Amnesty) for people to come forward and report incidents, information or approaches to engage in corrupt conduct in cricket, that were not reported previously, since failure to report20 such instances is a serious offence and has stringent repercussions under the Anti-Corruption Code. The scheme was launched on a pilot basis considering the particular challenges that cricket is facing in Sri Lanka.21 The salient features of the Amnesty were:
It was for the duration of 15 days (January 16-31, 2019)
Applicable to all participants under both the Anti-Corruption Code and the Sri Lankan Cricket Anti-Corruption Code
Any information reported will not lead to imposition of a charge for failure to report before
Channels to report (open 24 hours a day):
ICC Integrity App
ICC ACU Hotline
ICC ACU e-mail
An ACU representative was also based in Sri Lanka throughout the duration of the amnesty, who can be contacted using the aforementioned channels.
Moreover, before the Amnesty scheme was formally launched, Steve Richardson, the ICC Anti-Corruption Unit's Coordinator of Investigations, clarified that the scheme was not meant to serve as a safeguard for corrupt people who had fixed matches.22 Rather, it was for those who were approached by fixers, turned down the offer but failed to report this, as failure to report constitutes a separate charge under the ICC and the Sri Lankan Anti-Corruption Codes.
While the ICC was happy at how the Amnesty scheme progressed, with several people reporting corruption-related information within the first week of the scheme itself,23 prominent Sri Lankan bowler and cricketer, Lasith Malinga, spoke out against it, stating that no leeway should be given to those who indulge in corruption: “I don’t know why they are giving that opportunity (the amnesty)….if they catch people they should punish them straight away – otherwise people have a guilty mind (that a game they are watching isn’t genuine) and cricket is going nowhere”.24
While this may have been the first such scheme by the ICC, the idea of protecting whistleblowers of corruption in the sport is not entirely new to cricket. Cricket Australia had also floated an amnesty scheme between October-November 2014, for anyone coming forward with information relating to match-fixing or doping ahead of the World Cup 2015. Interestingly, this scheme had clearly stated that the immunity/protection extended only to the reporting and not to players who had committed illegal acts themselves.25 Currently also, Cricket Australia hosts the STOP Line for reporting such instances of corruption. Its website clearly states that where a person who makes a disclosure of a corrupt activity is himself “implicated” in the misconduct, Cricket Australia will use all reasonable efforts to protect the individual from repercussions, but such reporting may not protect the person from the reasonable consequences flowing from any involvement in serious misconduct.26
Even further back, in 2012, the England and Wales Cricket Board also introduced a three-month long amnesty period to players to report past instances of having been approached for fixing matches.27 And it was reported in 2014 that Declan Hill, an authority on corruption and match-fixing in international sports, recommended that the ICC and national cricket boards offer 60-day amnesty to procure more information on corrupt activities in cricket and get to the bottom of the problem, by stating,
“This is how we have to clean up international cricket; we have to establish an independent agency, somebody separate from ICC, somebody that doesn't have a conflict of interest in concealing corruption in the sport. We have to say to every single international cricket player for the last 10 or 15 years, you have an amnesty, if you come forward in the next 60 days and tell us everything that you know about fixing, corruption, why it's existing, what's going on, who's participated in it, we will promise you that we will not prosecute you.”
Conclusion and Recommendations
The ICC’s ACU supported by the Anti-Corruption Code and other rules is making strides in the fight against corruption in sport. In fact, the call for stringent punishment (read life ban) for those involved in match-fixing has also received support from many international cricketers who are concerned about the way corruption threatens to eat the game from within.28
However, in order to take stringent action to address the issue of corruption, it is imperative that the problem is first diagnosed and the wrongdoers identified. This is why Alex Marshall, while speaking about the Amnesty, said, “[a]llowing retrospective reporting of alleged approaches to engage in corrupt conduct will assist in our ongoing and wide-ranging investigations, as well as enabling us to continue to develop a comprehensive picture of the situation there.”29 Developing this “comprehensive picture” is key, else all efforts to redress the issue will be rendered futile, with each one holding a different part of the proverbial elephant and not realizing who/what the problem is.
The need of the hour is for a stakeholder-driven approach wherein apart from the ICC, equal, if not greater, onus lies with the players, coaches and others involved during the matches, to protect the integrity of the “gentleman’s game”. Anti-corruption education for players and other stakeholders involved in the sport should be insisted upon, even if the playing assignment is a short-term one, home or overseas30. Further, apart from the ICC, the national cricket boards also need to be proactive to address this problem, thinking of new and innovative ways to resolve it, including making use of digital media to increase awareness and reach of such initiatives.
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- Tags: Anti-Corruption | Cricket | Governance | ICC Anti-Corruption Code for Participants (Anti-Corruption Code) | International Cricket Council (ICC) | Sri-Lanka
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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.