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Amrut Joshi Founder [email protected] GameChanger Law Advisors, Bangalore Image: 221A / E+ / Getty Images #SandpaperGate: Why the ICC got it wrong and Australia got it right Amrut Joshi, Founder of GameChanger Law Advisors and Member of the World Sports Advocate Editorial Board, shares his opinion on the scandal that has rocked Australian cricket and the concerns surrounding the discrepancies found between the investigations carried out and sanctions issued by the national governing body and the global governing body of cricket.

In the words of Sir Donald Bradman both players made dramatic admissions. have been forced to miss only one AC1, “When considering the stature Bancroft admitted to attempting to more test match in addition to the test of an athlete, or for that matter any change the condition of the ball, while match against or four ODIs/ person, I set great store in certain Smith admitted to the “leadership group” T20I matches as a maximum sanction. qualities which I believe to be essential of the Australian Team being aware On the other hand, Bancroft admitted in addition to skill. They are that the of the plan to tamper with the ball. to changing the condition of the ball, person conducts his or her life with which is an ofence under Article 2.2.9 dignity, with integrity, courage and The ICC makes the first move of the ICC Code of Conduct. Bancroft perhaps most of all, with modesty. Soon thereafter, it was the International was handed three demerit points, These virtues are totally compatible with Cricket Council (‘ICC’), cricket’s global which under the provisions of the pride, ambition and competitiveness.” governing body, that made the first move Code meant that he would not even by pressing charges against Smith and miss the last test match of the series One cannot fathom how disappointed Bancroft, for violations of the ICC Code of against South Africa. Further, the ICC the greatest cricketer of all time would Conduct for Players and Player Support merely fined him 75% of his match fee. be had he been alive to witness the Personnel (‘ICC Code of Conduct’)3. sordid ball tampering saga that erupted Here is where things take an interesting responds to on 24 March 2018 at the Newlands turn. In a hearing conducted by the the “moral outrage” at home Cricket Ground in Cape Town. match referee, admitted4 At around the same time, Cricket Australia being party to a decision within the (‘CA’) was forced to initiate its own It all began during the post-lunch ‘leadership group’ of the Australian investigation into the same incident, session on the third day of the third team to attempt to change the condition prompted in no small measure by the test match between Australia and of the ball in order to gain an unfair massive outrage that this incident sparked South Africa. With South Africa firmly advantage over the South African team. among Australia’s public, including a in the lead in the match, and on condemnation from its Prime Minister, course to clinch what would have The decision of that group, of which Malcolm Turnbull5. As has been eloquently been a series leading win, television Smith is the team , risked causing expressed by a multitude of cricket cameras spotted Australian opener, serious damage to the integrity of the columnists and commentators, Australia’s holding a “foreign match and was contrary to the spirit of cricket team is older than the country object” when working on the ball2. the game. And yet, the ICC charged itself and historically, cricket has been Smith under Article 2.2.1 of the ICC Code the team sport that has commanded the The footage is shown on the big screen of Conduct (i.e. a Level 2 Ofence) and greatest nationwide support in Australia. at Newlands. On seeing the footage, not under Article 2.3.1 (which would This incident, when viewed alongside Bancroft panicked and stufed the have meant that his actions would have a series of other instances of , substance down his trousers. When been construed as a Level 3 Ofence). on and of-field confrontations6, seemed questioned by the umpires, Bancroft Smith’s punishment under the ICC to ignite a sense of “moral outrage” in attempts a cover up by showing them a Code of Conduct was that he would be the Aussie public, with calls from all black cloth, before play goes on. At the banned from playing the last test match and sundry to reboot the culture of the end of the day’s play, Australian captain of the series against South Africa and Australian cricket team, and to restore Steve Smith and Bancroft fronted up that he was fined 100% of his match the age old Aussie tradition of “playing before the media for a highly anticipated fee. Even if the ICC had charged Smith hard but fair.” Consequently, there were post-match press conference, where under Article 2.3.1, he could potentially calls to ban the errant players from the

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continued game for a substantial amount of time. my opinion, this suggests that either the with a national governing body when The CA despatched its Integrity Ofcer Australian cricketers were misleading faced with the same situation? to conduct an investigation into the the Referee, the Umpires and other ICC incident. The results of its investigation ofcials about (a) the players who were On the other hand, despite the CA being threw up several interesting diferences party to the plan; and (b) the nature of criticised heavily for allowing a culture from the ICC’s investigation. Firstly, the plan (it was only CA that determined to develop within the Australian team, the CA’s investigation brought to the that the “foreign object” used by Bancroft which encouraged a “win at all costs” fore the role of , who was sandpaper and not sticky tape as attitude, credit must be given to it for the had not been charged by the ICC, let had originally been claimed by Bancroft); manner in which it has come down on alone been penalised! According to the or the ICC’s investigative mechanisms the players after this incident came to CA’s investigation, it was Warner who were totally shambolic. Despite Steve light. The CA has clearly characterised had developed the plan to “attempt Smith admitting to the ICC ofcials that the ofence committed by the players to artificially alter the condition of the he was a party to a decision within the as being more serious, when compared ball” and instructed Bancroft to “carry “leadership group” of the Australian with the ICC’s characterisation (Level 3 out a plan to take steps to attempt to team to attempt to change the condition versus Level 2). The ICC has announced artificially alter the condition of the ball7.” of the ball in order to gain an unfair a review of its Code of Conduct10 in advantage over the South African team, the aftermath of this incident, and one Secondly, the CA charged Smith, the ICC did not even press him as to who would hope that apart from clarifying Bancroft and Warner with a breach constituted the “leadership group.” There what constitutes ‘ball tampering’ more of Article 2.3.5 of the CA Code of can be no other plausible explanation specifically, it also clearly states when Conduct8, namely that their conduct: for the failure of the ICC to even charge, conduct that is “contrary to the spirit of (a) was contrary to the spirit of the game; let alone penalise David Warner. the game” is to be treated as a Level 2 (b) was unbecoming of a ofence and when the same conduct representative or ofcial; Lastly, the ICC has clearly not paid any should be treated as a Level 3 ofence. (c) is or could be harmful to the heed to the premeditated nature of the interests of cricket; and/or ofence committed by the players. As As for the global player community, (d) did bring the game of is evident from the furore generated there are a whole lot of legal, moral, cricket into disrepute. across the world, to most observers, the and cultural questions that are as Australian cricketers were involved in yet unanswered. Hasn’t rampant ball Under the CA’s Code of Conduct, this an act of “cheating” that was exposed tampering been a part of the game for was treated as a Level 3 ofence, and by the television cameras. The ICC a long time, with administrators either consequently the following sanctions claims that ball tampering is only a Level unaware or turning a blind eye? were handed out to the three players i.e. 2 ofence under its Code9, and hence, Steve Smith - suspension of 12 months the sanctions levied by the ICC against Could it have been conceivable that the from all international and domestic cricket, Smith and Bancroft were the maximum bowlers of the Australian cricket team David Warner - suspension of 12 months available to it under its Code of Conduct. were not in the know about the plan11? from all international and domestic cricket, And then there is the deeper cultural and Cameron Bancroft - suspension of Here again, the ICC seems to have been issue that seems to be permeating nine months from all international and caught napping in its eforts to police through the cricketing world - that domestic cricket. The BCCI followed the the game. Once the players admitted of a “win at all costs” culture. This is CA in imposing bans on Smith and Warner, to their ofences, could it not have been clearly not just an issue for Australian preventing them from playing in the 2018- possible for the ICC to treat this as a Cricket to contend with - players from 19 season of the . Level 3 ofence, and charge the players almost all cricket playing countries under Article 2.3.1? The penalties levied have admitted/been caught/charged Too harsh or too light? by the ICC seem to be jarringly light, with ball tampering in the last four It appears from the chain of events that especially in light of how the CA viewed decades. With financial stakes in cricket the CA’s investigation unearthed more the same ofences! How can the global higher than ever, it is unfortunate that information on the ball tampering plan governing body of the game be viewed players believe that they need to than what was disclosed to the ICC. In to be so pusillanimous in comparison resort to any means to win a game.

1. Speaking at his Induction into The Sport 5. See Brydon Coverdale ‘Why is Australia so 8. See the Cricket Australia Code of Conduct Australia Hall of Fame, 1985. See https:// outraged at Steven Smith’s team?,’ at http:// for Players and Player Support Personnel, www.sahof.org.au/about-us/history/ www.espncricinfo.com/story/_/id/22916100/ https://www.cricketaustralia.com.au/cricket/-/ 2. Subsequent investigations by Cricket why-australia-outraged-steven-smith-team media/20A51657C8FC48BC91C44654 Australia revealed that the substance 6. The earlier test matches in the same series 9C9015F7.ashx in question was sandpaper. had been marred by an of-field confrontation 9. See ‘ICC to review code of conduct, ball- 3. Please see the ICC Code of Conduct for Players between Australia’s David Warner and South tampering set to be bigger ofence’ at and Player Support Personnel, at https:// Africa’s and South African http://www.espncricinfo.com/story/_/ pulse-static-files.s3.amazonaws.com/ICC/ bowler making contact with id/22951750/icc-review-code-conduct- document/2017/10/05/40ae9126-9042-437a-9cba- Steven Smith’s shoulder after claiming his . ball-tampering-set-bigger-ofence 12a1bdb21923/Code-of-Conduct-For-Players-and- 7. See ‘CA says sandpaper was used to tamper, not 10. Ibid. Player-Support-Personnel-efective-28-...-1-.pdf sticky tape as Bancroft claimed,’ at http://www. 11. See ‘Australia ball-tampering: ‘Nonsense’ 4. This is noted on the ICC Website, https:// espncricinfo.com/story/_/id/22940383/cricket- only three players knew - Andrew Flintof,’ at www.icc-cricket.com/about/cricket/rules- australia-says-sandpaper-was-used-tamper- http://www.bbc.com/sport/cricket/43706190 and-regulations/code-of-conduct not-sticky-tape-cameron-bancroft-claimed

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