November 11, 2008

Michael Jeh

All in a day's work?

Michael Jeh

An Employment Law expert who read my previous post contacted me today. He provided me with some interesting perspectives on whether abuse on the cricket field (in the professional game) might one day finish up in the law courts.

Rugby has already seen instances of players suing each other for high tackles and punches that caused serious injury. Referees have been sued when scrums have collapsed which resulted in spinal injuries. Fast bowlers might have to re-think the old threats of “I’ll knock your block off” lest that be interpreted as premeditated assault. Likewise, sledging and verbal abuse in a professional work environment. Perhaps even selectors might one day be sued for unfairly terminating a career. Where might it end?

It motivated me to do some research on the topic. Here’s a link to a self-help guide to Workplace Bullying in Australia Most countries would have similar rules and laws that govern the workplace.

A hypothetical situation then: what happens if a professional cricketer in Australia encounters any of the behaviours described above? Can he file a case for workplace bullying or harassment against individuals or against the organisation that runs the competition?

He may well be able to take action against any opposition player who engaged in abuse, psychological harassment or intimidation. The umpires could possibly be in the firing line for being unable or unwilling to control a workplace that was under their jurisdiction. The governing body (eg: Cricket Australia) could also be liable for failing to provide a workplace that was fair and free of harassment/bullying practices.

The aggrieved party could argue that their career has been adversely affected or prematurely ended because of the systemic workplace abuse that has been allowed to go unchecked. The court case could see team-mates (witnesses) testifying against each other under oath. Prosecution lawyers would certainly remind them of the penalties that apply for perjury, even against their best friends!

Umpires will be expected to maintain a safe workplace because they are in control of that environment whilst play is in progress. In some senses, it will be no different to the CEO being held responsible for the behaviours that occur in the office, especially if he/she knew about it and did nothing to stop it!

The company itself (governing body) has a responsibility to run a workplace that is free from systemic bullying, harassment and intimidation. Most legal jurisdictions are unlikely to swallow a defence that is based around arguments like “it’s a man’s game, what happens on the field stays on the field, it’s all part of the game, we play it hard but fair etc”.

Cricket is now a multi-million dollar business, from highly paid administrators to umpires, match referees, legal counsel, team managers and the cricketers themselves. When it suits them, they justify their salaries and self-importance by referring to it as a bona fide business operation. Fair enough too. What they must be prepared for now is to be judged in that same legal light when it comes to running the business of cricket.

In today’s increasingly litigious environment, it will only be a matter of time before a cricketer files a law suit of this nature. Lost earnings, lost career, mental stress, nervous breakdowns…the list is endless. Already we are seeing a proliferation of legalities entering the game with High Court judges presiding over appeals and talk of “natural justice” and other such high-flown legal jargon. It’s no longer the amateur game of yesteryear where an umpire or administrator’s verdict was final and they didn’t have to justify everything from a legal standpoint.

The governors of the game might one day have to recognise the seriousness of this cancer and put clear policies in place to make it a decent and fair workplace. Forget the whimsical yearnings for the spirit of the game and all that rubbish. Sadly, those romantic ideals died some time ago. It’s now a serious business, played for high stakes and lucrative livelihoods.

The ICC is full of lawyers who should be able to see this train wreck coming. Will they pre-empt this futuristic scenario or will it be the usual case of policy on the run? One simple question for the administrators – would they tolerate this sort of verbal intimidation and harassment in their plush offices in Dubai, St John’s Wood, Melbourne and Mumbai? If the answer is an indignant and self-righteous “of course not”, then how can they allow it on the ‘factory floor’?

Michael Jeh is an Oxford Blue who played first-class cricket, and a Playing Member of the MCC. He lives in Brisbane

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Posted by The Enticer on (November 15, 2008, 0:07 GMT)

Michel, thanks for an incisive piece on this issue and thanks for following up. This issue needs to be addressed. People are right to point out that there are laws meant to deal with this however they are never applied fairly. You will notice how the subcontinental players have borne the brunt of the laws and Warne, Hayden and McGrath have gotten away with absolute murder. Remember warne yelling at dravid ? Wasnt that a mockery of the game? But the Broads,the Dennesses and the Procters chose to overlook it saying ohh it is their culture (hard but fair.. whatever that means). I think umpires from SA, Aus, Eng should be given mandatory racial sensitivity training so that they dont discriminate (how so ever accidentally one might argue).

Posted by Geoff Plumridge on (November 13, 2008, 11:32 GMT)

David, what is naiive is the idea that in this modern litigious world a Supreme Court Judge would just ignore the idea that someone was bullied verbally out of a sport that was intended to be their livelyhood because someone commented on their appearance, their sexual orientation, even the manner of their very procreation. With two very independant witnesses in place (ie black & whites) I think you would be extremely surprised what the result would be if a young bloke had his career destroyed by someones foul mouth and then went and sued Cricket Australia for failing to supply a safe environment to play cricket in. That is what Michael is saying. If you can tell me what chapter of the MCC Coaching manual deals with acceptable on field barbs, not even mentioning the actual laws (which outlawe sledging under Law 42(4)anyway) and tell me what the defence would be.. that it is "culturally acceptable".. sorry- no cigar. Peoples livelyhoods are at stake.

Posted by David on (November 13, 2008, 5:14 GMT)

The idea of treating the international sporting arena as a normal workplace is just naive. Professional cricketers get their wages through contracts; match fees are performance bonuses, and the point of playing at all is to make sure the other guy doesn't get his bonus.

If you want a legal framework for professional sport, then it’s not Workplace Relations, but Corporate/Consumer Affairs (in Aus, the ACCC). Sports teams are businesses in competition with other businesses in the marketplace (the sporting field). So the only legal recourse is to try to pick up the abuse on the effects mics and sue them for defamation. Otherwise, all’s fair in love and business.

Posted by David on (November 13, 2008, 5:14 GMT)

Great idea, S. Sen! Now, how would that go ... 1st Ashes test, slip talking to mid-on: "Hey, Binga! Did you see what Pietersen's wife did last night ..." Slip fieldsman before the judge: "But I wasn't talking to the other team." Judge's verdict: Not guilty.

I don't like sledging either, and I never sledged anyone when I played, but you've got to be practical. While codes of conduct and "the spirit of the game" might be rubbery ideas and difficult to apply consistently, they're better than trying to create legislation which won't be able to achieve anything at all in practice. Much as we would like it to, aside from racial vilification and some kinds of assault, the law can't do anything.

Posted by S. Sen on (November 13, 2008, 3:41 GMT)

Excellent post. I'm tired of sledging and assorted verbal rubbish being tossed about by grown men. There should be a strict ban on talking to the other team on the field. Any player who violates the ban should be subject to disciplinary action, and repeat offenders open to lawsuits.

Posted by Michael Jeh on (November 12, 2008, 23:21 GMT)

Thanks for the varied responses. It's always good to read a variety of views when posing a hypothetical that has no history (yet) to be judged by. I hope cricket doesn't go down the ultra litigious path but as art often imitates life, I have no good reason to believe it won't eventually do so. I wonder if a selector will one day be sued for not selecting a player who felt he was being unfairly discriminated against? In some senses, it's no different to the strict employment laws that govern selection committees for jobs. If someone has scored more runs than another player, can selectors choose the lower run scorer because they see that magic X Factor that sheer stats alone don't cover? Likewise, will an umpire one day be sued for making a wrong decision that cost someone his career? Are there any similarities to normal life/work situations? I'm already seeing it in club cricket where kids/parents are now demanding explanations from selectors. One small step away from lawyers...

Posted by Michael Jeh on (November 12, 2008, 23:12 GMT)

Digitaleye, thanks for being so magnanimous about accepting my comments about the author not controlling the blog responses. I get lots of people who question why I didn't post their comments and it's clear they don't realise that I have no control whatsoever over the posting of comments. I write the piece, submit it and then join the queue of bloggers like everyone else! Thanks for your understanding.

Posted by David on (November 12, 2008, 15:47 GMT)

I'm sorry, Geoff Plumridge, but fairyland is YOUR address. If cricketers are barred from "intimidatory behaviour", then there goes the bouncer at the throat or Matt Hayden walking down the track to the quicks. And if they're going to complain because the other team has reduced their earning power - well that's the whole point, isn't it? You don't play to lose! The problem is that when you try to bring workplace legislation into the equation, you discover the grey area is so big it's unworkable. To get someone out, you need to break his concentration. You can do this by varying your length, or moving the field, or telling the keeper to get ready for an edge outside off stump next ball, or asking the batsman if he's really so unfit that he can't run a 2, or asking him if he knows where his sister was last night, or calling him a monkey. The extreme ends of the spectrum are clear cut. But where do you draw the line in the middle? The law's no practical help beyond racial/religious abuse.

Posted by Chandu on (November 12, 2008, 15:16 GMT)

Interesting article. Hope ICC bosses are reading this.

Posted by Ashok Sridharan on (November 12, 2008, 10:54 GMT)

Excellent point. I only hope the powers that be are alive to the dangers posed by sledging. A lot of sides have come to take it as part of the game. Worse still, officials not only acknowledge it, but seem unwilling to intervene.

I daresay its going to take a major shake up to bring officialdom out of its stupor. Until then, more and more ugly incidents (no shortage of them in the recently concluded Indo-Australia series) will keep cropping up, as will new controversies.

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ABOUT THE AUTHOR

Michael Jeh
Born in Colombo, educated at Oxford and now living in Brisbane, Michael Jeh (Fox) is a cricket lover with a global perspective on the game. An Oxford Blue who played first-class cricket, he is a Playing Member of the MCC and still plays grade cricket. Michael now works closely with elite athletes, and is passionate about youth intervention programmes. He still chases his boyhood dream of running a wildlife safari operation called Barefoot in Africa.

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