Why the ECB case against Michael Vaughan failed

ECB chair Richard Thompson described it as "the most complex and thorough regulatory investigation and disciplinary process" English cricket has ever seen. As such, when it came to the most high-profile component of the Cricket Disciplinary Committee (CDC) hearings over racism at Yorkshire, the grey areas were simply too grey.

The key difference between the case against Michael Vaughan by the ECB following Azeem Rafiq's allegations of discriminatory language and those levelled at five other former Yorkshire players was on the scale of detail. It relied on proving a specific sentence was uttered by Vaughan at a specific time - prior to the start of a T20 match between Yorkshire and Nottinghamshire at Trent Bridge in June 2009 and post the team huddle. This was the only charge against Vaughan, as opposed to the others - and it failed to stick.

The first reason for that was because full, exact phrase could not be ascertained. It was noted within the final report produced by the CDC panel -consisting of Tim O'Gorman as chair, Mark Milliken-Smith KC and Dr Seema Patel - that while the beginning of the alleged comment Vaughan made to Rafiq and three other Asian players (Adil Rashid, Ajmal Shahzad and Rana Naved-ul-Hasan) had been consistent in Rafiq's accounts leading up to the disciplinary hearing - "There's too many of you lot" - the end varied from either "we need to have a word about that" or "we need to do something about it".

It was noted the final ECB charge went with "we need to have a word about that", whereas a letter sent to Vaughan in February 2022 notifying him of the investigations went with "we need to do something about it". During cross-examination, Rashid, a key witness, ended up using both versions which, in the eyes of the panel, made his testimony obsolete: "in respect of an allegation in which the words alleged are particular and important, this clearly has an adverse impact on the reliability and accuracy of the ADR's evidence".

When questioned by Milliken-Smith, the ECB lawyer Jane Mulcahy KC acknowledged the "slightly messy" nature of the different versions but argued the subclauses did not change the meaning behind the sentence. The panel acknowledged as much, as well as that the incident occurred almost 14 years ago and so might not lend itself to clear recollection. This caveat they afforded to both sides.

In their opinion, the consistency in the allegations and recollections of the first part of that sentence - "There's too many of you lot" - constituted a 'second limb' to Vaughan's charge. That moved the process along, allowing other evidence to the table, which, ultimately, brought down the ECB's case against Vaughan.

Shahzad, in a recorded interview with the ECB on 3 December 2021, was unequivocal that he "didn't hear" the comment, at odds with Rafiq's assertion it was "said loud enough for all of us Asian players and the other Yorkshire players to hear it". Even though Shahzad was not present for cross-examination, weight was given to his testimony as one of the four allegedly targeted by the comment. That is in contrast to Naved-ul-Hasan, who declined the request of the ECB to engage with the process in January 2022, despite confirming to ESPNcricinfo that he would in November 2021.

The key figure in Vaughan's case was Jacques Rudolph, whose story in this incident has several layers. Rudolph was captain on the day, and as per the inconclusive Sky footage from the match, was stood between Vaughan and the four Asian players in the huddle. It is a position he was reasonably assumed to have remained in during a 19-second period when the broadcast cuts away from the huddle, in which time the comment was alleged to have been made.

Moreover, Rafiq's witness statement in the case against Rich Pyrah mentioned that Rudolph was also referred to as "one of us" or "one of you lot" - an Asian player - because of his darker complexion compared to the white members of the squad. Thus, the panel reasoned, he would have been more sensitive to what was supposedly said. In an email to Brabners - Vaughan's solicitors - in October 2021, Rudolph stated "categorically" that he "did not hear any comment made in that regard".

The words could not be proved. Historic tweets presented by the ECB - which Vaughan himself described as "offensive" and "completely unacceptable" - might have worked as supplementary evidence, particularly two from 2010, some 15 to 16 months after the incident. Further testimony from Shahzad - "I don't remember him saying stuff like that…. He wasn't that way inclined, you know, he definitely wasn't" - along with the fact this was the only public accusation levied against Vaughan in what the panel called "a lengthy and high-profile playing career" were stronger assessments of his character. With little to ride alongside, the tweets were, ultimately, redundant.

Evidently, offering himself up for cross-examination also worked in Vaughan's favour. That is expressly clear in the summation of the cases against Pyrah, Andrew Gale, Tim Bresnan and John Blain. The panel drew "reasonable inference" that their failure to attend the disciplinary hearings was because they did not have "an answer to the ECB's case which would sensibly stand up to cross-examination". The same point was made about Matthew Hoggard, who admitted using terms like "Rafa the K*****", P*** and "TBM" or "token black man". Hoggard's qualified admissions and that of Gary Ballance and Yorkshire were used as vital components against those four.

In a statement, Vaughan criticised the "adversarial" nature of the CDC investigation. While there are legitimate questions to be asked about how all this has been conducted, especially how English cricket arrived at a point where this was rightly deemed a necessity, the process of squaring one man's word against another, whether held in an Arbitration Centre or the high courts, is necessarily adversarial. Of course, the portrayal in parts of the media as all this being solely about Vaughan and Rafiq didn't help. Though unavoidable, perhaps, given former England captain was the only one of the six charged to attend the hearings.

In summing up Vaughan's case, which occupies eight of the 82 pages of the CDC's findings, the panel stated they did not conclude that anyone had lied or acted out of malice - which in itself feels like their way of dampening the "Vaughan vs Rafiq" framing of this whole affair. Their considerations centred squarely on whether the ECB's case against Vaughan "was sufficiently accurate and reliable on the balance of probabilities, to rule out mistake."

Their conclusion: "It was not".