Insights into litigation, sports law, media and legal culture

Rejection of du Plessis’ ball-tampering appeal is a ripper of a read

This year, the Boxing Day Test between Australia and Pakistan in Melbourne was interrupted by at least 460 rain breaks, hot humidity and, given the weather conditions, an insight for us southerners into what life in Far North Queensland feels like. Cricket fans dissatisfied by re-runs of Australia v England mid-1980s test series when the covers were down, have had to resort to desperate measures.

For me, during these hot, humid, and potentially cricket-dull times, the December 2016 decision of the Judicial Commissioner, Michael Beloff QC has proved well worth a look.  This was the decision in which the Judicial Commissioner dismissed the appeal of Francois Du Plessis, the Captain of the South African Test Team for breaching Article 2.2.9 of the ICC Code of Conduct (‘Changing the condition of the ball in breach of Law 42.3 of the Laws of Cricket’) during the November 2016 Australia v South Africa Test Match in Hobart.

Followers of the Essendon saga will recall that Michael Beloff QC was the President of the Court of Arbitration for Sport Panel presiding over the hearing in which 34 players were banned for anti-doping violations. My post offering insight into Mr Beloff’s background can be found here.

In between end of year celebrations, you may have glimpsed media reports of the decision that were largely confined to paraphrasing the obligatory press release issued by the winning party. I certainly construed the media reports along the lines of, what was Faf Du Plessis thinking of in appealing, and he lost, who cares.

In fact, the decision offers a lot more than such 2016-weary-I-need-a-holiday reporting. Who knew the Award would be a great read?  Some might argue, even better than a book of retired cricketer’s anecdotes released just in time for Christmas!

Key concepts explored included: What does altering the condition of a ball mean?  Is shining a ball changing its condition? What is fairness in the context of these rules? What is an artificial substance? What if something artificial is mixed with something natural? How does use of a mint to shine a ball compare to rubbing it on the fabric of one’s leg?

Reading the end before the beginning

Let’s start with the very end, namely, the Epilogue, another concept more in keeping with a book than an arbitral Award. Mr Beloff wrote in terms suggesting he wasn’t keen for Marcus Trescothick’s book of anecdotes to find its way into his own Christmas stocking: “It appears that there is a belief current in cricketing circles (whatever its validity) that applying a mixture of saliva and a sweet to a match ball enhances its propensity to swing. This was somewhat hyperbolically described in Marcus Trescothick’s memoir (Coming Back to Me) as one of “the great scientific discoveries“.

He then quoted Mike Brearley, the chair of the MCC’s World Cricket Committee who had said in relation to Law 42.3, “If you speed you’d probably get away with it. But not everyone does. Sometimes you are caught. And when you are caught flagrantly doing something, you deserve to face the penalty, whatever that penalty is. Which seems to me as far as I know is what happened to Faf du Plessis. The fact that other people do it doesn’t mean that you shouldn’t catch the odd person who does it flagrantly.

In other words, Mr Beloff sought to address the question of why cricketers would want to slobber a mixture of saliva and mint all over a cricket ball in the outfield, and the likely proclivity of the practice. By appearing in an Epilogue, this information wasn’t strictly relevant to his decision, although suspicious minds might suggest it informed the context, at least in part.

The key ARGUMENTS

Mr Beloff was required to choose between competing theories offered on behalf of Mr Du Plessis and the ICC  as to the construction of the relevant rule. Both theories are compelling, which Mr Beloff recognised when he referred to the careful and skillful written and oral submissions by Will Houghton QC assisted by David Becker (for Du Plessis) and Jonathan Taylor assisted by Sally Clark (for the ICC).

Mr Du Plessis argued that Law 42.3 of the Laws of Cricket refers to changing the condition of the match ball, and that the ICC could only prove such a change by adducing expert scientific evidence to show that applying a ‘sugary residue’ would alter the ball’s condition.  In the absence of such evidence, and in circumstances where the umpires had not suggested there had been any change at all, the ICC had failed to establish the high standard required for a contravention.

Relevantly, Mr Du Plessis did not deny when giving evidence to the Match Referee that he sought to shine the ball.  His evidence also referred to trying to have the ball “stay as good as long as possible” and “help preserve the hardness or whatever of the ball“.

He explained that he pleaded not guilty, and no doubt pursued an appeal, because he didn’t feel he had altered the condition of the ball.  Rather, he felt like he was just shining the ball, and that his practice was perfectly acceptable in the cricketing fraternity: “Basically, we use sweets for two reasons. [Note the use of ‘we’ – emphasis added] One was that my mouth was very dry and I wanted to try and get a bit of saliva going. And the second is to make sure that you can keep the ball as new and as shiny and preserve that shine for as long as possible.”

In other words, preservation does not lead to any change, and shining the ball this way (at least in his view), is within the spirit of the game and widespread.

The ICC, however, focussed on another aspect of Law 42.3 which expressly prohibits both polishing the ball with an an artificial substance (‘Any fielder may … polish the ball provided that no artificial substance is used’) and applying any artificial substance to the ball (‘The following actions shall not be permitted … applying any artificial substance to the ball…’).

The ICC submitted that it was essentially uncontroversial that the Mr Du Plessis had polished the match ball with an artificial substance, namely, a mixture of saliva containing a residue of mint. Therefore, from a plain reading of Law 42.3 he had contravened.

MAKING The Umpire’s Call

First, Mr Beloff reminds the reader that one must start by construing the language of the rule.

For sports lawyers, I quite like this pithy summary offered by Mr Beloff as to the relevant rules of contractual interpretation, noting that English law is the governing law under the ICC Code of Conduct.  Australian law offers some nuances so Australian practitioners should construe his comments only as a guide: “The starting point must be the language of the provision in question. That language must be construed in its context. To the extent that there is a tension between a purposive and a literal construction, the latter  must yield to the former. Where possible, a disciplinary provision must be capable of ready application but must, in the case of any ambiguity, be interpreted contra proferentum i.e. (here) against the ICC and in favour of the Appellant. The conduct of those who applied the provision after its enactment in principle is generally inadmissible as an aid to construction.

Secondly, Mr Beloff noted the language of Law 42.3, and its incorporation into Article 2.2.9 of the Code of Conduct.

Thirdly, he examined how Law 42.3 fit generally within the Laws.  He contemplated the Preamble to the Laws, emphasising that part which espouses that Cricket is a game that owes most of its unique appeal to the fact that it should be played not only within its Laws but also within the Spirit of the Game. [Note the capital ‘S’ and ‘G’, a nod to the special nature of sportsmanship in Cricket]

He also referred to the fact that umpires are the sole judges of fair and unfair play, and that they may intervene at any time.

Then, he considered, so far as was material, those parts of Law 42 under the rubric of ‘Fair and Unfair Play’. These were:

  1. Fair and unfair play – responsibility of captains
  2. Fair and unfair play – responsibility of umpires
  3. The match ball – changing its condition

Under heading 3., in part (a), any fielder may, amongst other things, polish the ball provided that no artificial substance is used and such polishing wastes no time.  This is regarded as fair.  What is unfair can be found in part (b), including: rubbing the ball on the ground for any reason, interfering with any of the seams or the surface of the ball, or using any implement or taking any other action whatsoever which is likely to alter the condition of the ball, excepted as permitted. [Note the use of the word ‘likely’]

The conundrum faced by Mr Beloff is that the heading to 3. refers to the prospect of changing the condition of the ball (relied on by Mr Du Plessis’ lawyers) but the body text refers to unauthorised things like the use of artificial substances which, to be frank, may have no impact on the condition of the ball at all but are nevertheless impermissible (relied on by the ICC).

Mr Beloff sought to reconcile these potentially inconsistent concepts with the following reasoning:

  • All the actions set out in Law 42.3 (a) and (b) amount to changing the condition of the match ball
  • The concept of “likely” to alter the condition of the ball extends to the ordinary meaning of the concept
  • The above conclusions avoid the need for expert evidence
  • The Code of Conduct is designed to be a robust disciplinary procedure
  • In any event, even polishing a ball would change its condition: “After polishing it would not be in the same condition as it was before the polishing, even if that polishing merely restored the ball to its condition before it was first used
  • Polishing the ball with an artificial substance is clearly an offence, in that part (a) cannot be read any other way: “A bright line is drawn in between polishing with a natural substance (e.g. sweat or saliva), which is permitted, and with an artificial substance, which is not“.

In deciding that the application of artificial substances to the ball is clearly outlawed, Mr Beloff was influenced by a Guidance Note to Article 2.2.9 of the Code of Conduct.  The Guidance Note provides that any action(s) “likely to alter the condition of the ball” (that word ‘likely’ again) not specifically permitted under Law 42.3(a) may be regarded as “unfair“. Such actions were said to include applying any artificial substance to the ball.

The Umpires were also told under the Guidance Note to use their judgment to apply the principle that actions taken to maintain or enhance the condition of the ball, provided no artificial substances are used, shall be permitted. Other prohibited actions involved damage to the condition of the ball or acceleration to its deterioration.

Based on the above, he found that Mr Du Plessis’ use of a saliva/mint combination was an artificial substance, even if the saliva by itself was not.

Remember this Michael Beloff quote next time you have to explain why saliva applied to a cricket ball is okay, but saliva plus a breath mint is not:

If the drinking of gin is prohibited it is not a defence to say that it was mixed with tonic

Accordingly, Mr Beloff concluded that the additional conclusion and sanction was correct.  On the question of penalty, Mr Beloff was influenced by the need for Mr Du Plessis to be a role model as Captain of the South African team.  He therefore noted that – had he not been convinced that Mr Du Plessis’ was sincere when testifying that he thought his actions were lawful – he would have imposed suspension points. This was said to be, not least, because of the special responsibility imposed upon him as a captain.

Narrator’s comment

The drafting of the Code of Conduct, Law 42.3 and the Guidance Note offer some challenges.  One can sense Mr Beloff’s awareness of this when he stated, “The substantive dog must wag the procedural tail, not vice versa“.

If one is to engage in semantics, consider this:

  1. Is  a”likely” alteration to the condition of the ball something more than “possibly”? Typically, the answer would be ‘yes’.  Consider a sliding scale in which, for the sake of argument, ‘likely’ is above 50% and ‘possibly’ is below 50%.  What conduct gets one above that 50% line rather than below it?  Shouldn’t there be some considered thought around this?
  2. What constitutes the alteration? Mr Beloff suggested the ball would be changed if it was restored, and assumed that this would invariably be the case.  Consider though, that the Guidance Note also refers to  “maintain”.  Isn’t ‘maintaining’ just a continuation or ‘preservation’ as Mr Du Plessis suggested he was trying to achieve?  How can that represent any kind of change?
  3. Adding up 1. + 2., one would therefore expect a need to paint a full evidentiary picture based on things like the number of overs, the state of the ball before and after ‘the incident’, and the nature of the bowling activity at the time to address the question of intention and whether or not any change was likely to be achieved.

For an interesting article on ball tampering, how cricketers do it and what they are trying to achieve, see here.

Yet the Guidance Note suggests that Law 42.3 is pretty close to a deeming provision, so that these considerations are not required. That is, according to the Guidance Note, artificial substances cannot be used under any circumstances because (reading between the lines) they risk being unfair or contrary to the Spirit of the Game, even if that is not achieved.  If that is the case, let Law 42.3 say so in no uncertain terms.

Epilogue

If Mr Beloff can have an epilogue, so can I.

Ultimately, Mr Du Plessis’ testimony to the Match Referee likely did not help him. Take this exchange:

Sally Clark: And the reason you did that you have said, is because it was to polish the ball and to maintain and to enhance the condition, the shine on the ball?

Faf Du Plessis: Yes. The word I would use is preserve. But yeah, if it does enhance, then obviously that’s great. (my emphasis)

Therefore, at the very least, Mr Du Plessis could be said to have been reckless as to the prospect that his minty saliva mix would alter the condition of the ball, even if his primary objective was to ‘preserve’. That might not have helped him, in the overall context of the appeal.

You might say, hang on, a shirt or trousers is artificial. Every cricketer shines a ball by rubbing it vigorously against a trouser leg or shirt. Why isn’t that prohibited? Michael Beloff has an answer for you in relation to this. He said that here, the ball is ordinarily applied to the clothing, not the clothing to the ball. Perhaps accepting that this explanation deserves the quirk of an eyebrow (rule 42.3 says only ‘provided that no artificial substance is used‘) he added that, in any event, the fabric of the clothing is not intended to be transferred to the ball. So there.

Finally, for followers of the Essendon saga who have learnt so much about sports law they deserve their own law degree, a few short points:

  • the hearing was de novo (Code Article 8.2.2.3)
  • it took place in Dubai even though there was no obvious practical need for a hearing to take place there
  • the hearing was dealt with in less than half a day
  • the rules of evidence do not apply (Code Article 6.2)
  • the standard of proof is a specific provision allowing for an unusual sliding scale of probability calibrated to the seriousness of the alleged offence (Code Article 6.1)
  • Mr Beloff determined that the standard of proof was one of comfortable satisfaction, relying on CAS authority

Finally, if you are looking for a new fave Latin term over the holidays, Mr Beloff referred to the comfortable satisfaction test as part of the lex sportiva (I reckon he means something like ‘sports law vocabulary’) – more stringent than the ordinary civil standard (balance of probabilities) but less stringent than the criminal standard (beyond reasonable doubt).

Disclosure: Natalie Hickey is a Commission Counsel assisting the Cricket Australia Code of Conduct Commission for the 2016/2017 cricket season. The views in this post are personal and do not represent any opinions of Cricket Australia or the Code of Conduct Commission.

 

 

 

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