Michael Jeh November 11, 2008

All in a day's work?

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
15

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

Comments have now been closed for this article

  • 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).

  • 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.

  • 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.

  • 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.

  • 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.

  • 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...

  • 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.

  • 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.

  • Chandu on November 12, 2008, 15:16 GMT

    Interesting article. Hope ICC bosses are reading this.

  • 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.

  • 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).

  • 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.

  • 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.

  • 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.

  • 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.

  • 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...

  • 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.

  • 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.

  • Chandu on November 12, 2008, 15:16 GMT

    Interesting article. Hope ICC bosses are reading this.

  • 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.

  • Geoff Plumridge on November 12, 2008, 7:58 GMT

    Redneck I disagree entirely with what you said. Don Bradman said catagorically that he never heard "sledging" in his 20 year test career. Never. So unless you are calling the Don a liar we must assume that personal attacks meant to diminish a players on field abilities are a recent development. Michael has made a very clear point here. Professional cricketers support their families with money they earn on the field. It's a job. So in ANY job there should be a level of professional courtesy that exists (and does exist in actual legislation) that make workplaces free of bullying and intimidatory behavior. Anyone who thinks that the sporting arena is exempt from the same legal requirements as other working environments is living in a fairyland. So instead of relying on inaccurate historical references and transparent "cultural" explanations that excuse sledging we should recognise it for what it is. It is personal attacks and bullying that can affect someones ability to earn a living.

  • redneck on November 12, 2008, 3:21 GMT

    this is the perfect example of why having too many lawyers in the world is a bad thing!!! if a player wants to take sledging to court then its a good thing that sledging has been a part of cricket for over 100 years and can be argued that any player taking up cricket knows this before he or she takes the field!

  • David on November 12, 2008, 3:09 GMT

    The professional sporting workplace is unlike any other. When you sign up to play, you waive your rights to legal redress in certain respects. Eg, a rugby league player can't complain about being knocked unconscious by a legal (within the laws of the game) shoulder charge, nor a cricketer about a broken hand from trying to stop a blistering drive. Given the intense psychological demands of playing top-class cricket (concentration, courage, confidence, etc), I believe it's reasonable for a team to target a player's psychological as well as technical weaknesses. While you don't have to resort to abuse/bullying to do this (abuse really just shows that the abuser lacks imagination), until the ICC actually legislates against every possible case of abuse (and the extra complexities arising out of cultural differences are enormous!), it's impractical to say anything other than: when you signed up to play, you knew it could happen; when you took the field you accepted the risks.

  • Anjo on November 11, 2008, 19:02 GMT

    Hah, then why not challenge the monopoly that is World Cricket or any official sports governing body for that matter? There are already systems in place that are tailor made to deal with the situations you have described, with an independent arbitrator appointed to deal with events, the same system that is used in several other industries that will go to the courts as a last resort. As in those cases, when this arbitration is considered incomplete or insufficient it is not unusual to see a party seek justice from the national judicial system. Case in point, players protesting life bans in courts and the ICL threatening legal action for restriction of trade. So I guess the system was designed to encourage (publicize) sporting rivalry that might not be acceptable in the boring lives of ordinary citizens :). But your last couple of questions have me stumped... maybe at the board level its a whole new ball game full of bureaucratic sledges and intimidation? Its not pretty anywhere.

  • digitaleye on November 11, 2008, 15:48 GMT

    No!, it won't happen. Cricket boards will never let things get so out-of-hand that one of their players will sue an opponent. They have made far too many sweetheart deals with other boards to let trivial matters like welfare of the players threaten their stash.

    On a side note, Michael, thanks for your kind clarification about user comments moderation on this blog. I had been befuddled before, when innocuous comments of mine were never published while those I strongly worded were expeditiously published ;).

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  • digitaleye on November 11, 2008, 15:48 GMT

    No!, it won't happen. Cricket boards will never let things get so out-of-hand that one of their players will sue an opponent. They have made far too many sweetheart deals with other boards to let trivial matters like welfare of the players threaten their stash.

    On a side note, Michael, thanks for your kind clarification about user comments moderation on this blog. I had been befuddled before, when innocuous comments of mine were never published while those I strongly worded were expeditiously published ;).

  • Anjo on November 11, 2008, 19:02 GMT

    Hah, then why not challenge the monopoly that is World Cricket or any official sports governing body for that matter? There are already systems in place that are tailor made to deal with the situations you have described, with an independent arbitrator appointed to deal with events, the same system that is used in several other industries that will go to the courts as a last resort. As in those cases, when this arbitration is considered incomplete or insufficient it is not unusual to see a party seek justice from the national judicial system. Case in point, players protesting life bans in courts and the ICL threatening legal action for restriction of trade. So I guess the system was designed to encourage (publicize) sporting rivalry that might not be acceptable in the boring lives of ordinary citizens :). But your last couple of questions have me stumped... maybe at the board level its a whole new ball game full of bureaucratic sledges and intimidation? Its not pretty anywhere.

  • David on November 12, 2008, 3:09 GMT

    The professional sporting workplace is unlike any other. When you sign up to play, you waive your rights to legal redress in certain respects. Eg, a rugby league player can't complain about being knocked unconscious by a legal (within the laws of the game) shoulder charge, nor a cricketer about a broken hand from trying to stop a blistering drive. Given the intense psychological demands of playing top-class cricket (concentration, courage, confidence, etc), I believe it's reasonable for a team to target a player's psychological as well as technical weaknesses. While you don't have to resort to abuse/bullying to do this (abuse really just shows that the abuser lacks imagination), until the ICC actually legislates against every possible case of abuse (and the extra complexities arising out of cultural differences are enormous!), it's impractical to say anything other than: when you signed up to play, you knew it could happen; when you took the field you accepted the risks.

  • redneck on November 12, 2008, 3:21 GMT

    this is the perfect example of why having too many lawyers in the world is a bad thing!!! if a player wants to take sledging to court then its a good thing that sledging has been a part of cricket for over 100 years and can be argued that any player taking up cricket knows this before he or she takes the field!

  • Geoff Plumridge on November 12, 2008, 7:58 GMT

    Redneck I disagree entirely with what you said. Don Bradman said catagorically that he never heard "sledging" in his 20 year test career. Never. So unless you are calling the Don a liar we must assume that personal attacks meant to diminish a players on field abilities are a recent development. Michael has made a very clear point here. Professional cricketers support their families with money they earn on the field. It's a job. So in ANY job there should be a level of professional courtesy that exists (and does exist in actual legislation) that make workplaces free of bullying and intimidatory behavior. Anyone who thinks that the sporting arena is exempt from the same legal requirements as other working environments is living in a fairyland. So instead of relying on inaccurate historical references and transparent "cultural" explanations that excuse sledging we should recognise it for what it is. It is personal attacks and bullying that can affect someones ability to earn a living.

  • 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.

  • Chandu on November 12, 2008, 15:16 GMT

    Interesting article. Hope ICC bosses are reading this.

  • 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.

  • 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.

  • 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...