FAIR PLAY, CRICKET AND THE LAW
FAIR PLAY, CRICKET AND THE LAW
As a young man I played sport. I now practise law. There is a connection. The play element in sport is obvious. It is less so in law. Few things would seem to be further apart than the domain of jurisprudence and play.
Seriousness and the interests of the individual and society epitomise law. However, as Johan Huizianga pointed out in his seminal work Homo Ludens (man the player), “the sacredness and seriousness of an action by no means precludes its play-quality”. There is a close affinity between law and sport. If according to Wittgenstein, “philosophy is playing with concepts”, is not law “playing with rules”?
The actual practice of law in the form of a law suit resembles a contest. In Ancient Greece, litigation was considered as an avon (a contest bound by fixed rules and sacred in form where two contending parties invoked the decision of an arbiter). The juridical process started by being a contest and the agonistic nature of its character is still self evident in our adversarial system.
The administration of justice takes place in a ‘court’ for a start. Any proceedings before a judge are always dominated by the intense desire of each party to win the case. The judicial contest is subject to a system of rules which set the law suit in the domain of antithetical play.
The Oxford Law Professor, the late Ronald Dworkin said the supreme virtue of law is integrity. Law should speak in a coherent and principled way. It must be interpreted to aim ultimately towards what he called, “some single comprehensive vision of justice.” Translated to sport, is that fair play?
In the Republic, Plato declares that there are two arts which I would say some God gave to mankind, music and gymnastics. Albert Camus (who apparently was a pretty good goalkeeper) centuries later said that he learnt ethics from sport. Harold Pinter reflecting Plato, more specifically said that, “Cricket is the greatest thing God created on earth. Certainly greater than sex, although sex isn’t too bad either.” Pinter’s view may explain why the Vatican is to announce this week that it is setting up its wn cricket club to be known as “St Peter’s Cricket Club” (I hope they practice what they preach.) Or it may be due to the publication of a new book entitled “Italian Cricket Club” in which the author Ilario Lombardo writes that cricket, “is a sport of integration because it’s a sport of fair play. It is a sport in which the ‘other’ may be an adversary but is also treated with respect.”
However, it was Neville Cardus who focused on the relationship between the Laws of Cricket and societal values. He wrote, “if everything about England was destroyed, except the laws of cricket, English society could still be recreated from them.”
Law 42(18) of the Laws of Cricket, under the heading “fair play” provides that; “games are rule-governed practices. The standard of fair play refers to the spirit of the game rather than the letter of the law. The spirit of the game is antecedent to its laws. The laws define the practice of game playing.” In the same way law is a rule-governed practice.
In addition to the constitutive rules of sport and law there are resources connected closely – perhaps conceptually – to both practices. These resources can be used to adjudicate on issues in sport and the law. Sport and the law have an independent, intrinsic logic of their own that make them more than a mirror reflecting the values of society. Both the playing of sport and the administration of our legal system practices that have histories and traditions.
Practices change; they must; but the change comes from within and operates inside the context formed by tradition and practice. In cricket, the spirit of the game provides guidelines as to not only what is done but what ought to be done. In law, that intrinsic logic is reflected in the normative principles which have influenced the development of our legal system.
Should sportsmen regard fair play as adding anything to their obligations to adhere to the rules of the game? Is the concept of fairness a principle of law, and if not, should it be?
In O’Neil v Philips  1 WLR 1092 which was a case on the meaning of unfairness for the purposes of section 994 of the Companies Act 2006, Lord Hoffman said at page 1098, “although fairness is a notion which can be applied to all kinds of activities, its content will depend upon the context in which it is being used. Conduct which is perfectly fair between competing businessmen may not be fair between members of a family. In some sports it may require, at best, observance of the rules, in others (‘it’s not cricket’) it may be unfair in some circumstances to take advantage of them.”
The phrase, “it’s not cricket” was originally used by Reverend James Pycroft in 1851 to express his disproval of overarm bowling. It was not until 1864 that it was legal to bowl overarm.
130 years later in February 1981 at Melbourne in a one day match with New Zealand needing 6 from the last ball for a tie, the Australian Captain Greg Chappell, instructed his brother Trevor to deliver an underarm delivery along the ground. He did so and the New Zealand’s Prime Minister, Sir Robert Muldoon, called it an “act of cowardice” and stated that he now understood the reason why Australia’s one day uniform was yellow. Yet, what Chappell did was lawful. It has been said that, “no other case in recent cricket memory has so epitomised the conflict between law and morality.”
The 2000 Code of Laws of Cricket introduced a preamble dedicated to the Spirit of the Game. Article 3 of the preamble provides that so far as fair play is concerned, umpires have a discretion to intervene not only on the basis of what they are empowered to so under the laws but in case of, “any other action they consider to be unfair.” This is an important provision because it is inconsistent with the often expressed view that Laws are all an umpire has to work with.
All the circumstances in which a rule might be applied cannot be seen in advance. There are some issues both in sport and law which can only reasonably be settled when they arise and are identified. It is for this reason that the relevant legal system may have to rely upon the values which are not expressly contained in the rules of the laws. This has been called, “the open texture of rules (see Dworkin’s Law Empire)
So far as English public law is concerned, the judges have not yet developed a substantive fairness paradigm. There is a concern that activism in applying a general theory of fairness would west the courts with the power to determine how administrative decision should be taken.
Understandably, the courts do not want to trespass on the powers of the executive and substitute their own views of the facts for that of the decision maker. That would be undemocratic and inconsistent with the fundamental principle of the separation of powers. But in circumstances where the decision reached is substantively unfair in the sense of being unjust there is in my view a strong argument that the courts should intervene. The concept of fairness in Lord Hoffman’s view would, “free the court from technical considerations of legal right and… confer a wide power to do what appeared just and equitable” (O’Neill v Philips, ibid, page 1098). This would not mean that the court could so whatever the individual judge happens to think fair. It would be applied judicially and its content would be based upon rational principles. The court would have a very wide objective of maintaining law’s integrity and aiming towards “some single comprehensive vision of justice.”
In cricket, the problem is a different one. Umpires already have that power but they are reluctant to use it where the consequences are so serious for the transgressors and the decision maker. It an umpire seeks to remedy an injustice, as did the Australian umpire Darrell Hair in the ball tampering incident in the England v Pakistan Test Match at the Oval in 2006, there is real risk that the cricket authorities will not be supportive. In his case, as you will recall, he even lost his job for a time.
There is a darker side to sport which I shall call “Orwellian”. George Orwell said, “Serious sport has nothing to do with fair play. It is bound up with hatred, jealousy, boastfulness, disregard of all rules and sadistic pleasure in witnessing violence.” Few of us, I suspect, would agree with that observation. But it does draw our attention to the potential for sport to be corrupted by the failure to adhere to the principles of fair play.
Corruption in the form of match and spot fixing is undoubtedly sport’s biggest threat. It is contrary to the predominant norm of sport – the will to win. It is potentially destructive of the game of cricket. The incidences of corruption in sport, especially in cricket, have hugely increased in competitions where entertainment is regarded as more important than winning (such as the IPL). Drug taking and doping are wholly contrary to the will to win fairly. Cheats cannot win. And if you cheat, you are not playing sport. These problems need to be resolved by the taking of the decisive action, and not just by the sporting authorities, but by government. I would personally advocate the introduction of specific laws to make corruption in sport a criminal offence and perhaps (more broadly) a statutory code of laws for sport. Self regulation can only go do far and has not proven effective. It does not have the force of law and its enforcement powers are weak. Much more needed to be done by government and sporting authorities to help achieve far play both on and off the field.
In my talk I have tried to demonstrate the close relationship between sport (expecially cricket) and law both as a matter of form and substance. I have tried to demonstrate that they are both practices that have the shared ethos of fair play. Sport as well as the law has played a significant part in seeking to remedy injustices – witness cricket’s role in the downfall of apartheid in South Africa – and generally sport’s roe in establishing the principles of equality of opportunity and fair treatment for al those participating in the practice. It is significant that the Minister for Sport is also the Minister for Equality.
There is, therefore, a connectivity between sport and human rights. But it is vital in the modern world of sport as big business to maintain that relationship. It hangs by a thread. It is under threat from the match fixers, the cheats, the drug takers and corrupt bookmakers. They are destroying the reputation of cricket, and sport, as emblematic of fair play.
Mr Justice Cooke got it absolutely right when he identified the massive threat to sport., especially cricket that corruption presents when sentencing three Pakistani cricketers and the fixer for their involvement in spot fixing in the Lord’s Test between England and Pakistan in 2010. He said;
“The gravamen of the offence committed by all four of you is the corruption in which you engaged in a pastime, the very name of which used to be associated with fair dealing on the sporting field. “It’s not cricket” was an adage. It is the insidious effect of your actions on professional cricket and the followers of it which made the offence so serious. The image and integrity of what was once a game, but is now a business is damaged in the eyes of all, including the many youngsters who regarded three of you as heroes and who would have given their eye teeth to play at the levels and with the skill that you had. You procured the bowling of three no balls for money to the detriment of your national cricket team, with the object of enabling others to cheat at gambling. Now whenever people look back on a surprising event in a game or a surprising result, or whenever in the future there are surprising events or results, followers of the game who have paid good money to watch it live or to watch it on TV … will be led to wonder whether there has been a fix and whether what they have been watching is a genuine contest between bat and ball. What ought to be honest sporting competition may not be such at all.”