Rafiq, Vaughan, Yorkshire: a race reckoning

Nobody other than a handful of people can ever know for sure whether Michael Vaughan said what he is alleged to have said to four Yorkshire players nearly 14 years ago. "There's too many of you lot, we need to do something about that", or in some recollections, with a slightly tweaked second clause: "we need to have a word about that". Fourteen years is a long time, so a word lost here or there is to be expected, but nobody disputes - not the recipients or Vaughan - that, if uttered, it would have been a racist statement.

Of the four - three British-Asians and one Pakistani - three say they heard it. Ajmal Shahzad says he didn't hear it and says that Vaughan was not that way inclined, that way being the way of the racist. Rana Naved-ul-Hasan said he heard it but chose not to give evidence to that effect. Of the others in the vicinity that day, we don't know.

Not even the three-person panel of the Cricket Discipline Commission (CDC), who sat over a five-day hearing at the start of March for this and other allegations made by Azeem Rafiq can ever know for sure. They don't need to. They aim to reach a verdict by the end of the month based on the lower of two yardsticks in adjudications: on the balance of probability, the yardstick for a civil hearing, and not proved beyond reasonable doubt. That is, on the balance of probabilities, did Vaughan say what he is alleged to have said, or not?

Two and a half years after Rafiq began the most urgent conversation the UK has had about race in cricket, and here we are, obsessing about those words. It is not, perhaps, where anyone intended to be. But given how it began, that is not surprising. The interview Rafiq gave to wisden.com's Taha Hashim in August 2020 did not intend to focus on the racism he says he suffered at Yorkshire. That was a detour in an otherwise evocative profile on the fading of a once promising young cricketer who was a symbol of the county's inclusiveness credentials.

Then it barrelled away, slap-bang, into a fervent and ongoing culture war. People lost jobs. Careers ended. Sponsors left. Allegations of racism at other counties tumbled out. The government took note. Parliamentarians held hearings. Newspapers took sides. Social media poured petrol on to the burning heap. Yorkshire were left on the verge of financial ruin.

And then here we were, at the International Arbitration Centre in the heart of London, its slick and featureless interior with unremarkable conference and meeting rooms, the anaesthetising aesthetic designed, one might reasonably suspect, to draw the sting and heat from the disputes to be settled within.

Hard evidence for the Vaughan allegation is scant, so to speak. Broadcast footage of the pre-game huddle at about the time Vaughan is alleged to have said it, exists. But it's a tease. There is no footage of the exact moment the remark is alleged to have been made when the huddle broke away to enter the field.

The footage is not incriminating, which explains why it has been used by both the prosecution - the ECB in this case - and Vaughan's defence for their own ends. Jane Mulcahy, the ECB's lead counsel, highlights a 19-second gap in footage away from the camera where such a thing could have been said. Christopher Stoner, Vaughan's lawyer, counters that the footage confirms Vaughan's innocence. The team goes on to the field in good spirit; Adil Rashid, one of the quartet allegedly targeted by this remark and who says he heard it, is seen joshing with Tim Bresnan (who has also been charged with making racist comments on a separate occasion). There's no way he would have said it, Vaughan reasons, because that's not who he is, and especially not before a game because the impact would have hurt his side's chances of winning.

Even Vaughan shaking hands with the four players, as seen on the clip, has been weaponised. The prosecution say it is a sign he singled them out. The defence say it reflected a moment of genuine pride, referred to in Vaughan's memoir from the same year: three British Asian players, homegrown, turning out for Yorkshire, a county with a long, exclusionary history, was worth celebrating.

The prosecution sees Vaughan's social-media persona as central. Referring to some of his tweets from that time - which Vaughan agreed were "unacceptable" - they say the tone is similar to the alleged remark. "If a person has a tendency to make racist comments," Mulcahy argued, before garnishing it with some QED, "they have a tendency to make racist comments."

Mulcahy's case builds on the atmosphere at Yorkshire CCC in that time as supporting evidence. The club has since admitted failing to address the systemic use of racist language. Two Yorkshire players, Matthew Hoggard and Gary Ballance, have admitted to making racist remarks in that period. Vaughan says he couldn't recall Hoggard making such remarks in the dressing room. (Six other individuals as well as Yorkshire were charged by the ECB, though only Vaughan appeared to defend himself. Yorkshire and Hoggard have admitted, or part-admitted to some charges; the others have all denied them and refused to attend the hearing, claiming the process is flawed.)

The crux of Vaughan's defence, meanwhile, is that the ECB investigation was deeply flawed. Stoner called it "woefully and wholly inadequate". The ECB, Stoner said, was hellbent on pinning Vaughan from the off, not only by not interviewing enough people but not even interviewing Vaughan himself, as well as ignoring evidence and testimony that was counter to their case. "Due process matters and it is the cornerstone of law," Stoner said. "But in our submission, it was sent on holiday by the ECB."

There's plenty else for the panel to consider; the amount of paperwork submitted constitutes a ferocious assault on the environment. A lot of it is one person's word against another's, though, so the case more or less boils down to this: Vaughan's social media and various admissions on the one side, against potential flaws in the ECB investigation on the other.

Words are important, as acknowledged in an exchange between the ECB's legal head Meena Botros and Stoner, but the question for the panel is: whose?

If that feels like a deeply inadequate place to be in after all this, then it is of a piece with the entire hearing. The CDC is more used to parochial housekeeping - sanctioning counties for fielding improperly registered players or issuing points deductions for poor pitches. Occasionally there might be the flutter of an anti-corruption breach or a doping case. Recently it has encountered racism-adjacent territory, retrospectively punishing players for inappropriate social-media behaviour in the past.

This is bigger. This is one of the most successful modern England captains, a prominent media personality, against the man who has become the face of antiracism. This is a battle for unclaimed frontiers in that culture war. If Vaughan is found not guilty but the others charged are, it will likely allow many to see it as proof that there is no racism in English cricket, or that the problem is overblown; or that Rafiq is - and this is already a popular trope in such cases - a troublemaker. If Vaughan is found guilty, he has the right to appeal, and given that he has argued the very shape of his "life and livelihood" is at stake, he will exercise it. There is no end here, only more ammunition for the culture war.

Yet on paper this hearing is about alleged breaches of ECB directive 3.3, which isn't specifically about discrimination or racism. It is about bringing the game into disrepute. The ECB has an anti-discrimination code and a directive (3.4) that says each participant must be bound by it, but because that was only introduced in March 2021 and these cases pre-date it, charges cannot be laid under that code. That it took the ECB until 2021 to put in place a specific nationwide anti-discrimination code for all cricket under its jurisdiction, and then only as a response to Black Lives Matter, is itself an indictment. It isn't as if these issues are new or that Yorkshire is the only county side with a past.

It also speaks to the complicated historical nature of such allegations, and indeed more broadly, of the moment we find ourselves in. Laws and codes change as communities and values do, but they still can't be applied retroactively to past behaviour, even though it might seem suitable to do so. Or, as the columnist Hadley Freeman wrote two years ago about the late novelist Philip Roth, whose work was being, let's say, robustly reappraised in light of #MeToo: "Looked at from the point of view of today, every single thing from the past is on the wrong side of the modern moment, because that's how time works."

In this case, of course, it isn't that the words and behaviours in question were not offensive in 2009. They were; this isn't the re-editing of Roald Dahl's books which are much further away from the modern moment. But, as with the panic when old, inappropriate tweets from current England players were dug out, there's no satisfactory consensus yet on how to deal with it.

Consequently, having the CDC be the arbiter of what amounts to a Brief Modern History of Racism in English Cricket is much like the trial for the murder of Nicole Simpson being adjudicated upon by the Brentwood Residents' Committee in LA.

The greater burden and scrutiny in these matters must fall necessarily on institutions. They are the ones who make the rules, who maintain them, and who run investigations against those who break them. The case Stoner made against the ECB's investigation of Vaughan's allegations, lasering in on procedural flaws, was compelling. Arguably, though, the bigger questions about the roles of the ECB as a regulatory body and one of its constituents, Yorkshire, which Stoner crept up to without quite raising fully, are more troubling.

Yorkshire have behaved exactly as you would imagine a county at war with itself might. When they first conducted an independent investigation, using the legal firm Squire Patton Boggs (SPB), the club was not found to be institutionally racist, although seven of 43 allegations Rafiq made, including of racist behaviour, were upheld. Nevertheless, Yorkshire's chairman when the investigation took place, Roger Hutton, told parliamentarians (after he had stepped down) that he thought the club was institutionally racist.

Under his chairmanship, Yorkshire turned 180 degrees, admitting that the club had failed to address the systemic use of racist language by multiple players and employees over a long period. That sounds a lot like admitting to institutional racism without admitting to institutional racism, and a not unreasonable inference to draw is that it allowed Yorkshire to escape deeper cross-examination at the CDC, while also displaying sufficient culpability.

Initially Yorkshire had said they would take no further disciplinary action after the SPB investigation. The investigation, which began in September 2020, took nearly a year. The report was presented to Yorkshire in August 2021 but to this day has not been published in full (it emerged that Hutton had links to SPB, bringing the firm's independence into question).

But soon after Lord Patel became chair in November 2021, the club summarily sacked 16 backroom and support staff. It was dressed up as a necessary reset of the club's culture. Many of the 16 had put their names to a letter to the county board, complaining about the reputational damage Rafiq's unchallenged claims had wrought on the club and about, as they saw it, his "one-man mission" to bring down the club.

And then a week before the CDC hearing began, the kind of stuff CIA suits go to jail for at the end of Bourne films: Yorkshire publicly admitted to a mass deletion of emails and documents relating to the Rafiq case, but by unspecified persons and at an unspecified time around that of Lord Patel's appointment. Except, during the hearing it was reported that senior club officials were sure that the documents were still in Yorkshire's possession well after Lord Patel took over. Yorkshire are not unfamiliar with internal strife historically, but rarely can the club have been as pulled apart, at both ends of this culture war.

The sackings feel now like an inflection point. Two of the signatories to the letter - head coach Andrew Gale and bowling coach Richard Pyrah - were among those charged by the ECB at the CDC. There was also the batting coach, Paul Grayson, who joined the men's side in 2019, after Rafiq had left the club, and so it wasn't clear what the case against him had been. Kunwar Bansil, the club's British Asian physio, was a signatory; Bansil was interviewed by Michael Atherton after he was sacked and spoke of a very different experience at Yorkshire to Rafiq's.

By then, though, there was no space in the discourse for grey. Everything had built unceasingly to this moment. The delay and secrecy over the SPB investigation, the lack of ostensible action in its wake, the public furore after Rafiq's emotional appearance at a parliamentary committee. Somebody needed to pay and these 16 did.

Except, by Yorkshire's own admission, it was done without due process and was "procedurally unfair". The letter the sacked staff had sent, seen by ESPNcricinfo, was bruising and not without vindictiveness in tone. It also did not acknowledge Rafiq's experiences of racism at all, instead calling him "problematic" and "a complete liability off the field". Firing the letter-writers, as Yorkshire did, ultimately cost the county nearly £1.5 million in severance payouts. The real cost was in entrenching the polarisation. Rafiq had been treated appallingly. Now there were 16 staff who could claim the same. At best, it was a purge; at worst, it came across as a crass act of revenge by Yorkshire on Yorkshire.

Perhaps this wasn't two Yorkshires but the same old Yorkshire, after all, as David Hopps said, detecting cruel irony in what Lord Patel had done. "Uncompromising, implacable, adamant that only his way is the right one, and supremely confident in his own moral compass, he has revealed many of the Yorkshire attributes that over generations have caused the county so much pain."

In a rare recent interview Patel gave to Eastern Eye, he said that he had been asked by the ECB to come in and "turn the disaster around". The publication claimed to disclose (in their words) that "the ECB urged him to get rid of people". Which people wasn't clear but Lord Patel said: "I was asked by the ECB to ensure some people who were there from the previous regime did not take part in that governance process." The interview reads like a valedictory middle finger to the ECB - Patel steps down this month - claiming that ECB support wasn't forthcoming once he had done what he had been asked to do.

The interview was brought up at the CDC by Vaughan's team, during a tense and uneasy exchange with Botros. It got close to what is, in some ways, the knotted heart of this matter - though it did not go right into it. Did the ECB, under pressure to act post-BLM and Rafiq, bring Lord Patel in specifically to clean house at Yorkshire? The interview leaves little doubt this was the case.

If so, that would place the ECB as the game's promoter and regulator, a former employer of Vaughan, a prosecutor in this case, and from one interpretation of Patel's interview, an active participant because of the sackings. In the intersection of those duties, there must lie some conflict, and even, perhaps, a curtailing of the ECB's ability - as Vaughan's team argued - to be fair and impartial in the hearings. At best, as ESPNcricinfo's UK editor Andrew Miller noted, it spotlighted the somewhat circular absurdity of the whole affair, the ECB charging its own constituents for failures that it, as the overall regulator of the game, must bear some responsibility for.

Botros came across as both imperturbable and somewhat hapless, not least when Lord Patel's interview came up, in a three-hour grilling. No, he said, he didn't say Patel was not being truthful. But he also denied "any knowledge of the ECB telling Lord Patel to sack anyone". He just didn't have knowledge of the things Patel had spoken about.

A little tempering of this critique of institutional failings is advisable, given that racism inquiries or investigations are messy, difficult processes and rarely resolved tidily. Nobody wins. Somebody just ends up slightly less unhappy than somebody else. As Cricket South Africa well knows, having grappled with issues of race, discrimination, and representation near daily since its readmission post-apartheid in 1992.

Partly as a response to BLM and the discussions it ignited, CSA set up the Social Justice and Nation-building (SJN) hearings in the South African summer of 2021. It did not constitute a disciplinary process. They began as a compensatory process for players who had been victims of racism, but that idea was dropped because, well, putting a cost to racism is another level of messy.

Instead, they became a bit like the country's Truth and Reconciliation Commission after apartheid, an open house for former players and administrators to unload traumas. Some of the testimonies were harrowing. Others were little more than the ordinary grievances carried around like an ID badge by professional athletes who never quite made it.

It was an imperfect process and ended up with the least desirable but most predictable outcome: having to weigh one person's word against another's in a formal disciplinary proceeding. Which is not tenable because victims of racism, as ESPNcricinfo's South Africa correspondent Firdose Moonda likes to say, don't carry around receipts for the racism inflicted upon them.

Graeme Smith and Mark Boucher faced investigations after the hearings. Smith was cleared and charges against Boucher were withdrawn after witnesses, including Paul Adams, declined to appear. Smith was CSA's director of cricket then and is now commissioner of the SA20; Boucher was South Africa coach then and is an IPL coach now. Of the receipt-less alleged victims, Thami Tsolekile was, and still is, serving a ban for corruption; Adams' promising coaching career, meanwhile, was throttled by the board itself - according to a former board CEO - because of the deep-set inequalities in the game in the country.

Still, the hearings served a purpose. They painted an alternative but necessary history of that great South Africa side, and really, of modern South African cricket. It was sobering and, hopefully, cautionary. The collective unburdening felt necessary at that point because these were stories that had not been publicly aired, and given they finally had been, at the very least they would provide some residual deterrence.

This is not the CDC's remit. All it is tasked with doing is to work out the probability of whether 14 words of racist intent were spoken in Nottingham in June 2009. (To be fair, had all those charged turned up to defend themselves, this would have been a more substantial audit; that they didn't is not on the CDC). Also, the CDC (or English cricket) does not operate in a country in which racism was state policy. The SJN hearings had the very tangible and real legacy of apartheid to rail against. It gave that discourse a shape.

English cricket has no such target. All it has is the anxious and hurried acknowledgment, after BLM, after Rafiq, that there is racism within the game. Is it institutional or does it permeate the game? The shape, extent, and nature of it is not clear. Yorkshire has been pulled up. How many skeletons exist in how many other counties' closets? In recent years, the chairmen of Middlesex and Essex have been condemned or officially sanctioned for inappropriate or outright racist comments. Playing staff at both counties are deeply unrepresentative of London, given their pool of talent comes from London or Greater London, areas with the country's most diverse demographic.

What of the culpability of the ECB in all this, with the broader responsibility to make the game more inclusive? What of its own failures, including but not limited to the abysmally low rates of conversion of recreational cricket to professional cricket for British South Asians, barriers in pathways the ECB is aware of but has struggled to overcome; the fact that only one British Asian has ever been head coach of a county; or that there are two umpires of colour in a 34-person panel (after none were appointed for nearly two decades ); or the 75% decline over time in the number of black British professional players that led to Surrey setting up the ACE programme in 2020; or, in recognising, as Rainford-Brent has, that the problems of the game's inclusivity might be more acutely centred around socio-economic status, with race as subset.

A more holistic reckoning will come in the shape of a report by the Independent Commission for Equity in Cricket (ICEC). The Commission was formed two years ago to examine race, gender and class in the English game. It has collected evidence from over 4000 people of their lived experiences within the game and the report - which will be made public - is due soon.

That could be a lot of words to take in.