Where do different sports draw the line on "sledging” and “taunting"? - Part 1 – Cricket and Tennis

Published 23 December 2015 By: Lloyd Thomas

Cricket_Players_Facing_Off

In sport, “sledging” or “taunting” describes the practice of using insulting, intimidating or provocative language or behaviour against an opponent to try and gain a competitive advantage.

The practice can take many different forms, and the question of what is acceptable conduct and what is not is a difficult one. Governing bodies have sought to resolve the question in different ways, meaning that what may be acceptable in one sport may not be appropriate in another.

This two-part article analyses the different regulatory approaches taken by the governing bodies of four major sports – Part 1 focuses on cricket and tennis, and Part 2 on basketball and American football.

 

Cricket

The line between gaining a competitive advantage and unacceptable conduct in a sporting environment has always been a difficult one to draw. From sport’s earliest days, competitors have always sought to gain an advantage over their opponents. Some see this as an inherent part of sport.

As cricketer Stuart Broad said of sledging:

I know the International Cricket Council are very strict about what you are allowed to do and what looks good on TV, but you can’t let that take away from your natural game.

We’ve got a few guys in this squad who like to be in a battle and I think you need that in Test cricket. When two players are playing with passion for their country, that’s good to see.1

Sledging has been commonly used by cricket teams to seek to intimidate their opponents since at least the 1960s.

There are differing stories about how the term “sledging” came into use: Ian Chappell, the former Australian cricket player, claims that the term came into use in either the 1963 – 1964 or 1964 – 1965 Sheffield Shield competition when a player who swore in the presence of a woman was said to have been as subtle as a sledgehammer.2

Alternatively, it has been argued that the term derived from fielding teams in the mid-sixties who played against former Australian opening bowler Grahame Corling. It has been alleged that Corling’s wife was having an affair with a team-mate and that, in reference to this, when Corling came out to bat, fielding teams would start singing the Percy Sledge song ‘When a Man Loves a Woman’.3

Whatever the origin of the term, sledging is now a well-established element of cricket and one that is surrounded by controversy. Some consider that it is an essential part of the sport, whereas others consider it to be unacceptable gamesmanship.

The ICC’s Regulations

The International Cricket Council (the “ICC”) has sought to control (though not entirely outlaw) the practice through a number of the Articles in its Code of Conduct for Players and Player Support Personnel (the “ICC Code”).

Level One Offence

Article 2.1.44 states that it is a Level One Offence to use:

…language or a gesture that is obscene, offensive or insulting during an International Match.

The guidance to this offence states that:

Article 2.1.4 includes: (a) excessively audible or repetitious swearing; and (b) obscene gestures which are not directed at another person, such as swearing in frustration at one’s own poor play or fortune. In addition, this offence is not intended to penalise trivial behaviour.

When assessing the seriousness of the breach, the Umpire shall be required to take into account the context of the particular situation and whether the words or gesture are likely to: (a) be regarded as obscene; (b) give offence; or (c) insult another person.

This offence is not intended to cover any use of language or gestures that are likely to offend another person on the basis of their race, religion, gender, colour, descent, national or ethnic origin. Such conduct is prohibited under the ICC’s Anti-Racism Code and must be dealt with according to the procedures set out therein.

Example: Michael Clarke

During the 2013-2014 Ashes series, the Australian batsman Michael Clarke provoked English player James Anderson by telling him to “Get ready for a broken f****** arm”.5 The comment was picked up on the stump microphone, which led umpire Kumar Dharmasena and third official Marais Erasmus to bring a charge under Article 2.1.4 of the ICC Code.

Clarke admitted the offence, which meant a formal hearing was not required. As a breach of Article 2.1.4 of the ICC Code, Clarke was fined 20% of his match fee.6

Punishments for Level One offences

Under Article 7 of the ICC Code,7 the following punishments are set out for a Level One Offence:

  • For a first offence, a warning/reprimand and/or the imposition of a fine of up to 50% of the applicable Match Fee;
  • For a second offence within 12 months, the imposition of a fine of between 50% - 100% of the applicable Match Fee and/or up to two suspension points;
  • For a third offence within 12 months, the imposition of between 2 and 8 suspension points; and
  • For a fourth and subsequent offences within 12 months, the imposition of eight suspension points or a suspension for a fixed period of time ranging between the equivalent of eight suspension points and one year.

Level Two Offence

The ICC Code also contains Article 2.2.4,8 which states that it is an offence to use “language or gesture(s) that is seriously obscene, seriously offensive or of a seriously insulting nature to another Player, Player Support Personnel, Umpire, Match Referee or any other third person during an International Match.” This is a Level Two Offence. As with Article 2.1.4, the guidance to this Article states that:

It is acknowledged that there will be verbal exchanges between Players in the course of play. Rather than seeking to eliminate these exchanges entirely, Umpires will be required to report such conduct that falls below an acceptable standard. This offence is not intended to penalise trivial behaviour.

Punishments for Level Two Offences

Under Article 7 of the ICC Code,9 the following punishments are set out for a Level Two Offence:

  • For a first offence, the imposition of a fine of between 50 – 100% of applicable Match Fee and/or up to two suspension points;
  • For a second offence within twelve months, the imposition of between two and eight suspension points;
  • For a third offence within twelve months, the imposition of eight suspension points or a suspension for a fixed period of time ranging between the equivalent of eight suspension points and one year; and
  • For a fourth and subsequent offences within twelve months, the imposition of a suspension of between one and five years.

On 23 February 2014, India’s U-19 captain Vijay Zol was suspended for one match after being found to have breached the equivalent offence of Article 2.2.410 (then Article 2.2.8) of the ICC Code. Zol caught English player Ben Duckett during the thirtieth over, and then used seriously offensive language towards the batsman, which was recorded by television cameras.11

Comment: Cricket’s Partial prohibition

Contrary to the position in tennis under the ATP Rules (see below), the ICC Code explicitly acknowledges that verbal exchanges are part and parcel of the game of cricket and that “trivial behaviour should not be penalised. In this respect, it is notable that sledging offences are specifically distinguished from offences on the basis of race, religion, gender, colour, descent, national or ethnic origin. Those are to be dealt with by the ICC Anti-Racism Code.

The ICC has implemented a sliding scale of sanctions which can be imposed depending on the number of infractions of the ICC Code during a 12 month period. The ICC Code also provides discretion to determine the severity of sanction.

The approach taken by the ICC to tackle sledging therefore reflects the fact that the line between what is acceptable and what is not is not always clear; the discretion provided for reflects that, allowing the ICC to impose a sanction which is case-appropriate. What is interesting is that, unlike the approach taken in tennis by the ATP, the ICC has accepted that sledging occurs, and has implemented flexible regulations to reflect that fact.

 

Tennis

While verbal exchanges are commonplace in sports such as cricket, it is not often that tennis players are caught engaging in such behaviour. It is arguable that this is because there are only two participants (in singles matches) on whom all eyes are watching. It could equally be argued that this reflects something in the nature of the sport itself.

Either way, the recent sanction of player Nick Kyrgios received significant news coverage and the ATP’s treatment of the matter showed how seriously it takes such conduct in its tournaments.

During the second round match between Kyrgios and opponent Stan Wawrinka at the Rogers Cup in Montreal on 12 August 2015, the on-court microphones caught Kyrgios saying to Wawrinka:

[Thanasi] Kokkinakis banged your girlfriend. Sorry to tell you that, mate.12

Kyrgios was initially fined US$10,000 (the maximum on-site maximum fine). Yet following a further investigation by the ATP, he was issued with a suspended 28 day ban and a further fine of US$25,000.13

On-Site Offence

Offences of this nature are dealt with by the ATP Official Rulebook (the “ATP Rules”).14 Krygios’ initial fine of US$10,000 was levied pursuant to Article 8.03 (M)(d)(i) – On-Site Offenses/Procedures,15 which states that:

i) Players shall not at any time directly or indirectly verbally abuse an official, opponent, sponsor, spectator or any other person within the precincts of the tournament site. Verbal abuse is defined as any statement about an official, opponent, sponsor, spectator or any other person that implies dishonesty or is derogatory, insulting or otherwise abusive.

Under Article 8.03(M)(d)(ii),16 the punishment for such offence is as follows:

ii) Violation of this section shall subject a player to a fine up to $10,000 for each violation. In addition, if such violation occurs during a match, the player shall be penalized in accordance with the Point Penalty Schedule. In circumstances that are flagrant and particularly injurious to the success of a tournament, or are singularly egregious, a single violation of this section shall also constitute the player Major Offense of Aggravated Behavior.” (Emphasis added)

Kyrgios was therefore fined the maximum amount for an on-site offence of this nature.

Player Major Offense

Article 8.03(M)(d)(ii) of the ATP Rules provides that such conduct may also constitute the “Player Major Offense” of “aggravated behavior”. A further investigation into Kyrgios’ conduct therefore ensued and it was found that his comment constituted “aggravated behaviour”.17 Article 8.04(A) of the ATP Rules,18 which concerns such offences, states that:

a) No player, their coaches, physiotherapist, therapist, physician, management representative, agent, family member, tournament guest, business associate or other affiliate or associate of any player (“Related Persons”), or any other person who receives accreditation at an Event at the request of the player or any other Related Person, at any ATP World Tour or ATP Challenger Tour tournament shall engage in aggravated behavior which is defined as follows:

i) One or more incidents of behavior designated in this Code as constituting aggravated behavior.

ii) One incident of behavior that is flagrant and particularly injurious to the success of a tournament, or is singularly egregious, including the sale of credentials.

iii) A series of two (2) or more violations of this Code within a twelve (12) month period which singularly do not constitute aggravated behavior, but when viewed together establish a pattern of conduct that is collectively egregious and is detrimental or injurious to ATP World Tour or ATP Challenger Tour tournaments.

Where a player is alleged to have committed a Player Major Offense, the ATP Rules state that the ATP Executive Vice President of Rules & Competition shall undertake such investigation into that offence as he, in his sole discretion, shall determine is appropriate and necessary. Upon completion of that investigation, the ATP Administrator of Rules and Competition shall determine whether a Player Major Offense has occurred and, if so, shall fix a penalty to be imposed.19 In terms of sanctions, the Administrator of Rules and Competition has discretion to:

…subject a player to a fine up to $25,000 or the amount of prize money won at the tournament, whichever is greater, and/or suspension from play in ATP World Tour and ATP Challenger Tour tournaments or events for a minimum period of twenty-one (21) days and a maximum period of one (1) year...20

Application to Kyrgios

Kyrgios was given the maximum on-site fine of US$10,000, the maximum fine for aggravated behaviour of US $25,000 and a suspension of 28 days (as against a possible maximum suspension of a year). The ATP clearly viewed his comments as serious and sanctioned him accordingly.

 

Comment

As noted above, comments such as Kyrgios’ are not as common in tennis as they are in other sports. This is reflected in the ATP Rules which expressly prohibit such conduct. There is no acceptance that such conduct may be appropriate or that it is an accepted element of the sport. It should therefore be expected that any breach of the Rules of this nature will be met with censure and, probably, with a substantial fine.

Nonetheless, the ATP Rules provide a layered sanctions procedure which is applicable in cases of this kind. This process incorporates a degree of discretion which can be applied to any given case, as required to address the nature of the offence being considered. For instance, an offender may have the following sanctions applied to them:

  1. They may first be subject to a sanction of “up to $10,000” and a points penalty. This provides the ATP with discretion to select the appropriate level of sanction at first instance, with an upper limit of US$10,000. This allows it to reflect the perceived severity of the player’s comments with an appropriate monetary fine, as well as the imposition of points penalties during the match itself.
  2. If the conduct is deemed sufficiently serious, a further investigation can be undertaken. If that investigation finds that the player has committed “aggravated behavior” the ATP Administrator of Rules and Competition may impose one (or both) of the following sanctions:
  3. A fine of “up to” US $25,000; and
  4. A suspension of a minimum of 21 days and a maximum of one year.

Thus the ATP Rules provide it with the ability to scale the sanction to reflect the perceived seriousness of the conduct in question, consistent with the principle of proportionality.

As cases such as Kyrgios’ are relatively rare in tennis, it will be interesting to see how the ATP approaches similar cases in the future (if any occur!).

This article continues in Part 2 by looking at the regulations in basketball and American football.

 

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Author

Lloyd Thomas

Lloyd Thomas

Lloyd Thomas is an associate in Squire Patton Boggs’ Litigation department and is part of the Sports Law team based in its London office.

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