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Players across sports have taken legal action for wrongful dismissal. The Australian opener could do the same, but financial compensation will hardly also bring a recall
June 15, 2011
Graham Morris, that evergreen and ever-ready master of lens and shutter, served up an enchanting shot of Muttiah Muralitharan and Graeme Swann for readers of the London Times last Thursday. Murali was animation personified: arms folded but fingers darting east and west, eyes ablaze, smile a-dazzling, rabbiting twenty to the dozen. Hands curled in schoolboyish obedience behind his back, trademark grin displaced by a soft semi-smile, Swann was hanging on every syllable, every pearl of wisdom, gaze undivided, eyes exuding undying respect, even awe. Sadly one can only fantasise about the grimmer splendours Morris might have achieved had his subjects been Andrew Hilditch and Simon Katich.
Forget the retributive powers of the fairer sex. Hell, apparently, hath no fury like a Katich scorned. On the day Morris snapped Murali and Swanny, the New South Welshman delivered an intemperate but highly articulate, and far from unjustified, tirade against Hilditch and the rest of Australia's beleaguered national selectors for not renewing his contract. He even admitted he had considered legal action. Maybe he felt forewarned and forearmed by Curt Flood, who took Major League Baseball all the way to the Supreme Court four decades ago to challenge the right of the St Louis Cardinals to trade him to the Philadelphia Phillies against his wishes. Flood, whose biography was entitled A Well-Paid Slave, paved the way for free agency but lost both the case and a fortune, and sacrificed his career. Then there's Jean-Marc Bosman, the Belgian whose 1995 legal challenge in the European Court of Human Rights performed a similarly priceless service for footballers, before he sank into depression and alcoholism. Such is the mountain facing Katich and perhaps why, to date, he has decided against following suit.
For Katich in 2011 read David Gower in 1992. He may have usurped Geoff Boycott as England's most prolific Test run-maker and collected three hundreds in his last five matches, but the beloved entertainer was still dumped for the tour of India. Age, again, was cited. In reality, to out-going team manager Mickey Stewart and captain Graham Gooch, the alleged friend whose own Test career he had once saved, Gower was one of the "champagne boys" (along with Ian Botham and Allan Lamb) who were apparently setting a bad example in their aversion to grim seriousness.
The outcry reverberated far and wide. Gooch and Stewart, fumed one Guardian reader, had "spoiled a great sport for millions of us for no perceptibly good reason". Lords, MPs and newspaper editors joined forces with Tim Rice and Harold Pinter to propose an MCC motion of no confidence in the selectors, and won the vote at Westminster's Methodist Central Hall (though the postal vote, crucially, went the other way). However laudable, it was a futile gesture. Livid with Gooch for informing him of his omission just 40 minutes before the squad was announced - on a crackly prehistoric mobile phone line, in a tunnel - Gower, who sensibly distanced himself from the raging clamour, could bask in this reassuring hug of public affection, but the Roundheads prevailed.
Cases for unfair dismissal are rife nowadays, and properly so. The right to contest a decision that fundamentally affects your life has been hard won; it should be inviolable. Why should sport be exempt? Raymond Domenech demanded 2.9 million euros from the French Football Federation last November after being sacked as national coach in the wake of a pitiful World Cup campaign kiboshed by a player revolt. Tony Greig, Mike Procter and John Snow famously took the Test and County Cricket Board to the High Court to overturn the suspensions from county cricket that were the knee-jerk response to World Series Cricket. What killed it for the TCCB was their contractual relationship with the plaintiffs: they didn't have one.
Neil Burns and Carl Crowe struck a telling blow in 2003 when Leicestershire made a settlement that effectively conceded the club had no right to sack them without fair notice and procedure. "Cricketers," Tim Kevan, a barrister specialising in sport, assured me, "are being empowered." Chris Schofield, once England's Great White Legspin Hope, benefited two years later, a tribunal upholding his claim that Lancashire's late decision to "release" him (don't you just love the delicious irony of that gentlemanly euphemism?) had hindered his marketability. Yet the victory was hollow; worse, Schofield told me, the months of wrangling left him "in bits".
Board contracts, meanwhile, have added grist to the players' mill. Indeed, as long ago as January 2002, Tim May, then chief executive of the Australian Cricketers' Association, said administrators should be prepared for the possibility of players suing for unfair severance. Cue Katich. What if he did sue Cricket Australia? Let's eavesdrop on m' learned friends' opening statements, as enacted for the Hollywood blockbuster It Ain't Cricket:
Prosecution counsel (Al Pacino): "Ladeez and gennelmen of the jury, this is the biggest no-brainer since The Don himself - Bradman not Corleone - had to decide between becoming a cricketer or a jockey. I ain't never heard of anything so grossly unfair, so scandalously unjust, so utterly spiteful, as the treatment meted out to my client. Look at him. Look at his eyes. Look at how they glisten with pain and anger and loss. Is this a man who has nothing left to give? Does he not deserve your compassion? I trust you will agree with me - I know will agree with me - that this is a man wronged. Dreadfully, disgustingly, despicably wronged."
Defence counsel (Jack Nicholson): "Ladies and, ahem, gentlemen of the joo… ooory, with all due deference to my unlearned goombah friend, what we have here is a travesty of a mockery of a farce. To deny an employer his innate right to fire any employee at any time, let alone one who wilfully sends spectators to sleep for the sake of his own precious average, is simply un-Australian. You might as well castrate the kangaroos."
HOW FAR, THOUGH, COULD ALL THIS GO? If Jimmy Anderson is declared fit at the Rose Bowl, it would be fascinating, for instance, to be inside Steven Finn's head at 10am tomorrow.
At Lord's last week, the stringbean from Watford became the youngest Pom to nab 50 Test wickets, supplanting Ian Botham. And still the carpers carp. Not that they are being entirely unreasonable. He can be generous in line and length, yes, and while an average of 26.92 is enough for 13th place among those who have sent down upwards of 100 overs during the past 24 months, an economy rate of 3.89 runs per over dumps him down to 62nd. Like Botham, he is a lucky bowler, apt to take wickets with undeserving balls, but that's surely more pro than con. Besides, look at the hard currency. Of the 320 bowlers who have taken 50-plus Test wickets this century or last, Finn ranks third in strike rate (41.4), behind Shane Bond (38.7) and Dale Steyn (39.9). Of the 54 who have delivered 150-plus overs during the past two years, his rate of conquest tops the lot.
The bottom line is not complex. On current form, who would you back to keep Kumar Sangakkara and Mahela Jayawardene in the doldrums and give Hampshire a rollicking start to its inaugural Test - Finn or Stuart Broad? Granted, Broad's bat is increasingly living up to its owner's name, but against the post-Murali Sri Lanka, being listed at No. 8 is no guarantee of taking guard. Besides, while England persist with a four-man attack - probably 20% too few in a DRS-free series against India - the likeliest wicket-takers should be deployed. But what if Broad got the nod and fury consumed Finn, triggering a spiral that left him floundering in depression's bottomless pit?
Rewind to Adelaide 1998. Alex Tudor, a strapping, gifted young quick who could bat a bit, had just marked his Test debut in Perth by nailing Justin Langer, Ricky Ponting and the Waughs, but did that ensure retention? Not on your nelly. Gooch, now England's tour manager, explained that, having gone one down in the series, more experienced arms were required. But as he subsequently let slip, he also didn't want the boy getting too big for his britches and thinking this international lark was a piece of the proverbial cake.
Quite what message this sent can only be guessed at, but let's content ourselves with two observations: 1) Tudor, despite his belligerence and bouncers, was a gentle soul who needed more encouragement than most, not least since he was a black man in a predominantly white team, and 2) he never came remotely close to fulfilling that seemingly abundant promise. Could linkage be proven? Never mind Mike Brearley; even Johnnie Cochrane might balk at picking up that gauntlet. A case of this ilk, nevertheless, may not be far away.
Sure, taken to its logical extreme, this could all get a bit silly. A dropped batsman could base a suit on having averaged 0.13 more than a rival. And yes, provided they can justify their choices on cricketing or behavioural grounds, of course selectors should be able to select without fear of men brandishing briefs. Katich's cause, nonetheless, remains just. But will he have the courage or heart to pursue it, knowing that financial recompense could hardly be accompanied by a recall unless the part-time "monkeys" concerned are fired? To set a legal precedent will require a Flood-like selflessness. Mind you, he could always settle for the lesser goal of regime change.
Rob Steen is a sportswriter and senior lecturer in sports journalism at the University of BrightonFeeds: Rob Steen
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