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Ben Stokes & Alex Hales: Disciplinary Matters in England and Wales Cricket

Given its escalation all the way to the Bristol Crown Court, even the casual sports fan will have noted the media furor regarding Ben Stokes and the street brawl he engaged in last September.

Although Stokes was found not guilty for the offence of affray, he has not escaped all liability for his actions just yet.

At the same time as Stokes was charged by the Avon and Somerset Police, both Stokes and Alex Hales were charged internally by the England governing body for cricket, the England and Wales Cricket Board (ECB).

What were they charged with?

Both players were referred to the independent Cricket Discipline Committee (CDC) and charged with two counts of breaching ECB directive 3.3, which states:

“No participant may conduct themselves in a manner or do any act or omission at any time which may be prejudicial to the interests of cricket or which may bring the ECB, the game of cricket or any cricketer or group of cricketers into disrepute.”

These types of clauses in governing bodies’ regulations are commonly used as sweeper provisions, to punish participants for actions away from the field of play.

How will the disciplinary process work?

Although funded by the ECB, the CDC operates independently of the ECB and is responsible for administering cricket discipline covered by the ECB’s Rules, Regulations and Directives.

The CDC has set a private hearing to be held on 5 and 7 December 2018, with a three-man panel (“Disciplinary Panel”) chaired by former Derbyshire cricketer Tim O’Gordon, a qualified solicitor.

Regulation 7.1 states that the ECB must appoint a prosecutor, who cannot be a member of the CDC.

Regulation 7.14 of the CDC notes that any decisions made by a Disciplinary Panel “shall be by a majority vote”.

In the interests of a fair hearing, the panel has given both the ECB prosecutor and the Players’ legal representatives time to prepare their respective cases and review evidence submitted during the Crown Court hearing, although the Disciplinary Panel will be careful not to be re-hearing the criminal charges. As a result, the fact that Ben Stokes was found not guilty in Bristol Crown Court will not be indicative of the outcome in this hearing.

Regulation 7.1 also states that:

the burden of proving the guilt of the Players shall be on the prosecutor and the standard of proof required shall be the civil standard.

What this means is that the prosecutor must prove, on the balance of probabilities (i.e. that there was a greater than 50% chance) that the players were guilty of bringing the game into disrepute. This is a significantly lower standard of proof than that required in criminal courts, where juries must be persuaded ‘beyond reasonable doubt’.

What powers does the CDC have?

Regulations 8.1 – 8.3 govern the general penalties and costs that a Disciplinary panel may impose.

These are:

  • caution as to future conduct;
  • reprimand; and/or
  • fine without limit.

Furthermore, regulation 8.1.4 highlights the impositions that can be levied against any cricketer:

  • suspension of eligibility to play in any match(es) or for any fixed period;
  • suspension of eligibility for selection to play for England in any match(es) or for any fixed period; and/or
  • suspension (for any period) or termination of registration under the Qualification and Registration Rules.

Is there a right of appeal following CDC rulings?

There is a right of appeal which is governed by regulation 10.

Regulation 10.2 states that:

“unless (having regard to the requirements of a particular Match or Competition) the Disciplinary Panel Chairman has decided that a shorter period shall apply and the Accused has been informed of this fact, any appeal must be commenced within 14 days after the date of the decision against which the Accused wishes to appeal.”

Regulation 10.3.3 states that the only valid grounds of appeal, which must be particularised in a written notice of appeal addressed to the Chief Executive of the ECB are:

  • that the decision of the Disciplinary Panel… was against the weight of the evidence;
  • procedural irregularity (which may include a mistake of law);
  • fresh evidence (in which case the particulars must state why the evidence was not called at the original hearing); and/or
  • The sanction imposed was manifestly excessive.

Conclusion

Given the reduced standard of proof and the fact that there has been lengthy media discussion both at the time of the brawl and in the lead up to the criminal trial, there is a real possibility that Stokes could be found guilty of breaching ECB Directive 3.3. Another concern for him may be the diametrically opposed message in the ECB’s promotion of their new family-friendly competition.

The potential verdict for Alex Hales is also hanging in the balance. Though it was contended in the trial that Hales was involved in the brawl, he was not formally charged by the Avon and Somerset Police.

Hales did, however, acknowledge in January 2018 that he should not have gone out whilst on England duty, stating:

it is about being responsible when you are on England duty. You have eyes all over you and that brings responsibility on and off the field”.

Athletes now more than ever are subject to round-the-clock attention from both fans and the media. With this increased visibility comes the expectation that these athletes will hold themselves up as role models. In addition, as sport continues to grow commercially, self-regulation will become more prevalent.

Not only will it be expected that governing bodies take ownership over their players, but they will want to do so, in order to promote and uphold their core values.

© Copyright 2018 Squire Patton Boggs (US) LLP

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