A difficult day for cricket – the options for the ICC in Its consideration of Shakib Al Hasan

By 1st November 2019 General News

Introduction

On 29 October 2019 the International Cricket Council (the “ICC”) banned Bangladesh team captain Shakib Al Hasan (“Mr. Al Hasan”) from all cricket for two years (with one year of that suspended).  Mr. Al Hasan is ranked as the number one all-rounder in one-day internationals and had performed exceptionally well in the recent World Cup.  Mr. Al Hasan accepted three charges of breaching the ICC Anti-Corruption Code (“the Code”) in respect of a number of fixtures, including international and Indian Premier League (“IPL”) matches.

This is arguably the most high-profile ban of a current cricketer that the game has seen in years and comes relatively soon after the decision to ban former cricketer, Mr. Sanath Jayasuriya, a legend of Sri Lankan cricket.  He was banned for failing to cooperate with an investigation, and alternatively obstructing or delaying an investigation whilst chairman of the Sri Lanka Cricket Selection Committee.  Whilst in many respects it has been an unfortunate year in cricket, for those policing the integrity of the game, it is reassuring that the ICC is taking a stand against corruption.

The Facts and the Decision

Mr. Al Hasan accepted three charges of breaching Article 2.4.4 of the Code:

  • failure to disclose to the ICC’s Anti-Corruption Unit (“ACU”) full details of any approaches or invitations he received to engage in Corrupt Conduct in relation to the Bangladesh, Sri Lanka and Zimbabwe Tri-Series in January 2018 and/or the 2018 IPL;
  • failure to disclose to the ACU full details of any approaches or invitations he received to engage in Corrupt Conduct in relation to a second approach in respect of the Tri-Series in January 2018; and
  • failure to disclose to the ACU full details of any approaches or invitations he received to engage in Corrupt Conduct in relation to an IPL 2018 match between Sunrisers Hyderabad v Kings XI Punjab on 26 April 2018.

In summary, Mr. Al Hasan accepted that he had failed to report approaches made to him to provide inside information to Deepak Aggarwal (“Mr. Aggarwal”), an individual known to the ACU and suspected of corrupt involvement in cricket.  The relevant communications Mr. Al Hasan confirmed with  Mr. Aggarwal included:

  • on 19 January 2018, Mr. Al Hasan received a WhatsApp message which stated, “do we work in this or I wait til [sic] the IPL”. The reference to “work” was a reference to Mr. Al Hasan providing inside information to Mr. Aggarwal;
  • on 23 January 2018, Mr. Al Hasan received another message which stated, “Bro anything in this series?” Mr. Al Hasan confirmed this related to a request of inside information in relation to the ongoing Tri-Series by Mr. Aggarwal; and
  • on 26 April 2018, Mr. Al Hasan played for the Sunrisers Hyderbad team in its IPL match against Kings XI Punjab. Mr. Al Hasan received a message from Mr. Aggarwal asking him whether a particular player was playing in the game that day. Thus, another request for inside information.

The conversation on 26 April 2018 progressed into a discussion about dollar account details and bitcoin. Mr. Al Hasan told Mr. Aggarwal that he wanted to meet him “first”.  Mr. Al Hasan stated that he had concerns about Mr. Aggarwal, feeling he was a bookie and a bit “dodgy”.

The Tribunal noted at paragraph 12 of their decision that Mr. Al Hasan had:

told the ACU that he did not accept or act upon any of the approaches he received from Mr Aggarwal, in particular, he did not provide him with any of the information requested, nor did he accept or receive any money or other reward from Mr Aggarwal. However, he did not at any time report any of the approaches to the ACU or any other relevant authority.

The Relevant Regulations

Mr. Al Hasan constituted a Participant for the purposes of the Code as a result of playing for Bangladesh in International Matches.  As a result, Mr. Al Hasan was bound by the Code and, as noted at paragraph 4 of the Tribunal’s decision:

“agreed, among other things, (i) to comply with the Code; (ii) not to engage in conduct that would constitute a breach of the Code; and (iii) to submit to the jurisdiction of the ICC to investigate apparent or suspected Corrupt Conduct that would amount to a violation of the Code.

Further, Article 2.4.4 states that the following is an offence:

“Failing to disclose to the ACU (without unnecessary delay) in full details of any approaches or invitations received by the Participant to engage in Corrupt Conduct under the Anti-Corruption Code.”

The ICC and BCCI (the National Cricket Federation under whose jurisdiction the IPL is played) agreed in accordance with Article 1.7.3.3 (what to do when alleged corrupt conduct relates to one or more international matches and one or more domestic matches) that the ICC would act in relation to all of Mr. Al Hasan admissions.

In considering potential sanctions, this is covered by Article 6.  Specifically Article 6.1 outlines the relevant factors that a Tribunal is required to consider in determining the seriousness of the offence. Aggravating factors included are, but not limited to, the following:

  • lack of remorse;
  • previous bad disciplinary record;
  • negative impact on the impacted match (either commercial and/or public interest);
  • amount of profits or money involved being substantial;
  • the number of participants involved; and
  • any other aggravating factor(s) that the Anti-Corruption Tribunal considers relevant and appropriate.

Mitigating factors found at Article 6.1.2 include, but are not limited to, the following:

  • an admission of guilt;
  • a good previous disciplinary record;
  • youth/lack of experience;
  • cooperation with the ACU;
  • limited damage caused to the impacted match (either commercial and/or public interest);
  • assistance provided to the ICC; and
  • any other mitigating factor(s) that the Anti-Corruption Tribunal considers relevant and appropriate.

Further, Article 6.2 outlines a table of possible sanctions being dependent upon the offence committed.  In relation to Mr. Al Hasan, the range for a breach of Article 2.4.4 was a period of ineligibility for a period of between six months and five years.  The table clearly specifies that:

“In all cases, in addition to any period of ineligibility, the Anti-Corruption Tribunal shall have the discretion to impose a fine on the Participant of such amount as it deems appropriate.

Mr. Al Hasan accepted the breaches under Article 5.1.12 as well as the sanctions suggested.  Notably, Article 5.1.12 is important, as Article 7.2 of the Code states:

for the avoidance of any doubt, no party shall have any right of appeal against (a) an Agreed Sanction imposed pursuant to Article 5.2.12.

The Sanction

The Tribunal considered many factors when reaching its conclusion, including a balancing act between finding a proportionate punishment, upholding the Code’s objectives, and the importance of protecting the sport and maintaining public confidence in the “determination of the sport of cricket to stamp out corruption.

The Tribunal decided that the following issues constituted aggravating factors: Mr. Al Hasan’s failure to report three approaches from Mr. Aggarwal to provide inside information; that the approaches were made over a period of several months; that the intent of the approaches were clear, namely to obtain inside information; that Mr. Al Hasan is an experienced international cricketer who has participated in numerous anti-corruption education sessions; and that he held a position of responsibility, namely as captain of the Bangladesh national team.

The Tribunal determined that the following constituted mitigating factors: Mr. Al Hasan’s voluntary admission and cooperation during interviews; his prompt admission of his breaches following receipt of the Notice of Charge; his remorse and contrition; his previous good disciplinary record; that the offences did not substantially damage the commercial value and/or public interest in the relevant matches; and that the offences did not affect the outcome of the relevant matches.

Mr. Al Hasan also received credit for agreeing an outcome that avoided the need for a hearing, saving both time and money.  Consequently, the Tribunal decided that a sanction of ineligibility for two years, of which twelve months should be suspended, was “reasonable and proportionate”.  It was further added that for Mr. Al Hasan to avoid the suspended year coming into effect, he should comply, in full, with two addition conditions:

  • he must not commit any offence under the Code (or the anti-corruption rules of any National Cricket Federation) during the initial period of suspension; and
  • he must also participate promptly and fully in any anti-corruption education and/or rehabilitation programmes as specified by the ICC.

Pursuant to Article 6.4 Mr. Al Hasan’s period of ineligibility started on the date of the decision.

Reflections

Former cricketers have been quick to weigh in on the debate.  Michael Vaughan (a former England captain) has publicly declared that he has “no sympathy” with Mr. Al Hasan and that the punishment “should have been longer”.  There is some force in this argument, particularly since Mr. Al Hasan was the captain of an international team and would have been exposed to numerous anti-corruption exercises and training sessions.  In practice Mr. Al Hasan was banned for just a year, which  some have argued was minor in all the circumstances, not least given that the maximum penalty that could have been imposed was five years.

Notably, the sanctions imposed upon Mr. Al Hasan and in other recent cases (such as Mr. Jayasuriya) may not be sending the right message to players and coaches as it would have done had punishments been more severe.

Local press coverage noted that Mr. Al Hasan had “made a mistake and he’s realised that”, a point seemingly acknowledged by Mr. Al Hasan’s honesty and transparency in his ACU interviews.  Whilst it is accepted that Mr. Al Hasan was not facing criminal sanctions at the time of the interview, the Tribunal’s written reasons made it abundantly clear that any evidence provided by Mr. Al Hasan might be used in support of a charge in relation to a breach of the Code.  Certainly whilst Mr. Al Hasan would have been aware of the potential damaging ramifications for his career, he nonetheless proceeded to disclose such information, for which he deserves some credit.

Arguably, one of the most important outcomes for any such situation is that the individual understands their wrongdoing.  The Tribunal recognised this, noting Mr. Al Hasan’s remorse as a mitigating factor.  Furthermore, in terms of a player’s welfare, a significant but not career ending ban is likely to be the preferred option for all but the most serious offences.  It is certainly easy to suggest that the punishment was not long enough, however, it is also worth remembering that Mr. Al Hasan is 32 years old and therefore is at a more advanced stage in his playing career than if he were a cricketer just starting out at an international level.  This event will almost certainly have a negative impact upon any prospective endorsements or commercial contracts which itself will be a consequential unspoken punishment.  Likewise, his name and reputation will forever be tarnished by this incident.

Conclusion

Although some may argue that sanctions are not tough enough, what more can be done to prevent corruption in cricket? Is there any scope for punishing the relevant player’s governing body? That would certainly raise the stakes and act as a real motivator for governing bodies to do everything within their power to ensure that players comply with the anti-corruption code. This could also include extensive education for junior level teams right through to a senior level.  Conversely, and somewhat cynically, would this, however, mean that some nations would not cooperate with the ICC?

Notwithstanding the above, undoubtedly this is another example of the growing strength of the ICC’s anti-corruption unit.  Mr. Al Hasan is a household name in cricket and being able to successfully bring him to cricketing justice is no small achievement.  As 2019 nears to a close it will be thought provoking to see what lies in store for the anti-corruption unit for 2020, which will include ‘The Hundred’ (a professional 100-ball cricket tournament to be held in England and Wales in July 2020) and which itself, may become a target for corruption.

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