Judgment of Justice Albie Sachs
APPEAL BY GAUTAM GAMBHIR AGAINST TEST MATCH SUSPENSION - DECISION BY APPEALS COMMISSIONER ALBIE SACHS
 The Code of Conduct Breach Report prepared by Match Referee Chris Broad states cryptically: "The 5th ball of the 51st over bowled by Shane Watson on day one of the test match Gautam Gambhir while running back for his second run there was an inappropriate coming together between him and Shane Watson."
 I have now watched the DVD recording of the incident. There can be no doubt that while running back Gautam Gambhir deliberately kept his left arm (carrying the bat) extended so that his elbow would make some contact with the midriff of Shane Watson. Though the resultant collision was not by any means violent, it was manifestly deliberate, and as such inappropriate.
 Gautam Gambhir acknowledges as much. He pleaded guilty to a C1 Level 2 charge of conduct contrary to the spirit of the game. In finding him guilty, Chris Broad stated that a player cannot take the law into his own hands under any circumstances or provocation; striking another player will not be tolerated particularly as he has previous history of such an offence.
 In mitigation it was said that Gautam Gambhir was upset at being sworn at (though he appears to have sworn back in return). The penalty imposed was a ban for 1 Test Match. The reason for the penalty was given as follows:
"He admitted he was guilty of the charge which meant he wasn't given the highest penalty possible but a fine didn't work last time, hopefully a ban will make him realise he cannot strike another player, EVER."
 The decision was given at 08:30a.m. on 31 October, Chris Broad having slept on the matter after a hearing at the close of play on 30 October. At 1p.m. on 31 October Gautam Gambhir lodged an appeal, giving the following grounds:
"I admit that making physical contact with a player is unacceptable. What I request be taken into account is the amount of abuse and provocation directed at me throughout my lengthy time at the crease. While I understand that sledding is a part of the game, I believe that incessant personal abuse and foul language directed at me should not be made acceptable, nor sanctioned. I request that this be taken into consideration and it is on these grounds that the sentence is appealed."
 On my appointment as Appeals Commissioner I requested that directions be issued stating that I proposed to determine the appeal on the basis of the documentary record, coupled with relevant video footage, together with any written submissions either Chris Broad or Gautam Gambhir or the umpires might wish to make.
 Chris Broad responded by stating that at the pre-series meeting with the captains he had stressed the importance of mutual respect between the teams, given the incidents in the previous test series in Australia. He pointed out that after the incident in the present matter there was a lot of discussion between the umpires as to what charge to lay.
 Initially it was thought that Article 2.4 of the Code of Conduct was appropriate. However, because of a previous offence during the last 12 months he would have been obliged to treat this as a Level 3 offence and impose a minimum penalty of a two-Test match ban. The umpires felt that in view of the facts of this case - the lightness of the physical contact and the element of provocation - a two-Test ban would be unduly harsh. They also felt that Article 2.4 did not adequately deal with the circumstances of this particular matter (there being provocation involved).
 The umpires accordingly had regard to the note of the ICC Code of Conduct which provides for a player to be charged under Rule C1 if the circumstances of the alleged incident are not adequately covered by the listed offences. This is why they invoked the C1 clause Level 2, which still gave the referee the option of banning the player for a maximum of 1 Test Match should he have deemed that to be the right punishment.
 The statement goes on to indicate that at the hearing in the umpire's room, Gambhir pleaded guilty to the charge, which saved a lot of time and heartache. Video evidence was shown, when asked why he had made contact with Shane Watson, Gautam Gambhir answered that he had been verbally abused by most of the Australian bowlers throughout that day and during the last Test as well where he scored a hundred, and on this occasion he wasn't going to accept it any longer.
 Testifying in Gambhir's defence, Anil Kumble said that swearing throughout the Asian subcontinent was very offensive to most Asians, a point that he (Chris Broad) accepted. The problem with Gautam Gambhir was that during the 2nd Test and again during this innings he was seen on TV swearing back at the Australian bowlers, which was confirmed by the on-field umpires, so Chris Broad concluded that if one doesn't want to be sworn at, then one shouldn't swear in retaliation.
 Umpire Billy Bowden had been very insistent that players should never take the law into their own hands, and that if Gautam Gambhir had been finding the chat from the Australians too much then he should have approached them and they would have spoken to the Aussie captain to get his players to lessen it or stop it all together.
 Chris Broad says that he imposed a 1 Test Match ban because he felt the player had not learned from the fine he had received for a similar incident, and that making inappropriate physical contact with a player should not be tolerated on the field of play - EVER! [His emphasis.] The player could have been fined as well as banned, but the fact that he had admitted his guilt at the hearing had to go in his favour.
 Gautam Gambhir responded to the directions today, 3 November 2008. His written submission made the following points:
i. At the hearing he had stated that the alleged incident had occurred as a consequence of the continuous verbal abuse and provocation rendered to him by the Australian player.
ii. In terms of Article H11(e) of the Code of Conduct, the Appeals Commissioner shall hear and determine the appeal. An appellant, therefore, had a right of hearing on an appeal preferred by him. Further, Article H11(f) of the Code of Conduct stated that oral representations by the appellant should be permitted unless there are good reasons for relying on written submissions only. Since the incident in question took place in view of constant verbal abuse and provocation, it would be imperative that as Appeals Commissioner consider the full written statement and after affording a hearing to him in terms of Article H11(e) read with Article H11(f) of the Code of Conduct. The hearing would not only enable him to explain the circumstances under which the incident took place, but also facilitate substantiating the grounds of appeal.
iii. In the alternative, he sought the right of legal representation in terms of Article 1.4 of the Principles of Natural Justice Guidelines in the ICC Code of Conduct.
iv. He further requested that the following documents be furnished to him - a) The audio-video footage of the incident in question. b) The entire record of the hearing that took place before the ICC Match Referee on October 30, 2008 including the Report lodged by the Umpires. c) The video recording of the hearing that took place on October 30, 2008 before the ICC Match Referee.
v. In the circumstances he requested extension of time to file his written statement until his requests for the above materials had been considered by the ICC and the Appeals Commissioner.
 I will deal first with the request for a postponement. Gautam Gambhir correctly states that the principle governing the procedure to be followed is that of Natural Justice. This in turn requires procedural fairness, and what is fair in any particular case will depend on the circumstances. Two relevant factors in the present matter are that he was able to see the video at the hearing on 30 October, and that he pleaded guilty to the charge of breach of the Code of Conduct. There were accordingly no disputes of fact, and the only issue in this appeal is whether the penalty is disproportionate in all the circumstances, particularly bearing in mind the provocation to which he had been subjected.
 In considering the proportionality of the penalty, I am prepared to accept that he had been the victim of prolonged and persistent verbal abuse by members of the Australian team, culminating in a moment of anger that led to his unfortunate lapse. I would add in his favour that the manner in which Shane Watson had raised an arm as he ran past for the first run, could have been taken by him as a mocking gesture, and thereby could have served as the last provocative straw. Furthermore, I accept, as the umpires did, that the actual contact was not serious.
 The points he wishes to make have already been made, and for purposes of this appeal I fully accept their veracity. In this context, further delay would leave him (and the selectors, and the public) in the unenviable position of not knowing where he stood in relation to the upcoming Test match, without any corresponding benefit as far as the appeal is concerned. Similar considerations apply in relation to his request for an oral hearing. The right to be heard in terms of natural justice does not necessarily imply the right to an oral hearing. In a case where important questions of fact are in dispute, it would ordinarily be correct to hear the appellant speaking and answering questions in his or her own voice. In other matters, given the great distances and the time differences usually involved, and the desirability of speedy resolution, it would ordinarily be reasonable to rely on written submissions only.
 No explanation has been offered as to why the request for oral hearings and the right to legal representation are made at the last minute. Nor is it clear how acceding to them would in any material way contribute to a better resolution of this matter.
 The fact is that on the evidence before me, I am already satisfied that the probabilities strongly favour the submission that Gautam Gambhir was, as he claims, subjected to inordinate verbal provocation by the fielders; that the raising by Shane Watson of his arm could have been seen by him as an aggressive gesture; and that the physical contact, while deliberate, was not heavy. The only question before me is whether these factors, taken together, make the 1 Test match ban unduly severe.
 In this respect, I cannot ignore the fact that this was the second time within a year that Gautam Gambhir had been found guilty of losing his cool while setting off on a run, the first having been nearly a year ago when he collided with the Pakistani player Shahid Afridi. A perusal of the documents in that matter makes it clear that his claim of an accidental collision was not accepted, and a fine of 50% of the match fee was imposed.
 Furthermore, cricket is not a contact sport. Small collisions can lead to big ones. Players must constantly be on guard to avoid physical contact with opposition players. The risk of accidental collision must be cut down. Deliberate collision can never be condoned, however grave the provocation.
 At the same time, it is not only physical argy-bargy that must be minimised. Constant verbal assaults are also unbecoming, and also bring the game into disrepute, the more so if their intention is to break the player's concentration and provoke a loss of temper. To my mind, these 'verbals' as they are euphemistically called, whether they involve swearing or not, provide a kind of tension and aggression inconsistent with the spirit of cricket. Yet even if a case can be made out that the time has come to consider whether sledging has any place in cricket at all, one form of unbecoming conduct cannot justify another. However severe the verbal assaults on them may be, players are obliged not to give vent to their anger through physical retaliation. They must respond with their prowess as cricketers, and not with the furious muscle of out-of-control anger. Even a hint of physical retaliation must be strongly dealt with. And captains and umpires should be astute not to allow any badgering which raises the temperature and encourages undue ire.
 Accordingly, while not without sympathy for Gautam Gambhir, I cannot find that the penalty imposed on him is so disproportionately severe that I should intervene. He concedes that what he did was unacceptable. It was not the first time. Millions of people saw it. Though his excellence does not require him to be better-behaved than mediocre players, it does not give him immunity from the rules of the Code of Conduct. The cricketing world is entitled to expect from him and all cricketers the highest standards. The rules against actual or threatened violence against opponents must be strictly enforced. The appeal must fail. The penalty stands.
03 November 2008