Kaneria v The English & Wales Cricket Board Ltd

“What do they know of cricket who only cricket know”.

This well known quotation from CLR James’ book “Beyond a Boundary” illustrates the richness and reach of cricket. The facts as found in the present case show that, for some people, the reach of cricket has extended far beyond any boundary imaginable when CLR James wrote his celebrated book some fifty years ago.

The applicant, Mr Kaneria, is a Pakistani national and a professional international cricketer of considerable repute and experience. He played for Essex Cricket Club for six seasons between 2004 and 2010 as an overseas player.

The Defendant (“the ECB”) is the body with responsibility for all aspects of the administration of the game of cricket in England and Wales.

On 5 September 2009, Mr Mervyn Westfield, a young Essex fast bowler, played in a one day match between Essex and Durham. As he was later to admit in the Crown Court, he bowled deliberately badly having agreed to concede 12 runs in his first over in return for financial reward. In the event he conceded 10 runs, including a wide, and received £6,000. For this “spot-fixing” he was sentenced to four months imprisonment in February 2012.

The disciplinary proceedings brought by the ECB against Mr Kaneria alleged two charges against him: (1) he had induced or encouraged, or attempted to induce or encourage, Mr Westfield not to perform to his merits by deliberately conceding a minimum number of runs in breach of 2009 ECB Directive 3.8.5; and (2) he had thereby conducted himself in such a manner as might bring the game of cricket or any cricketer into disrepute in breach of 2009 ECB Directive 3.3. Mr Kaneria denied both charges.

On 22 June 2012, following a five day hearing, a three man Disciplinary Panel of the ECB’s Cricket Discipline Commission, chaired by Mr Gerard Elias QC, found Mr Kaneria guilty of both charges. It decided that it was appropriate to impose a life ban (“the Life Ban”) on Mr. Kaneria and that Mr. Kaneria should pay the sum of £100,000 towards the ECB’s legal costs and expenses of the proceedings before the Discipline Panel.

Mr Kaneria appealed against that decision to an independent Appeal Panel set up by the ECB’s Discipline Commission (“the Arbitral Panel”). The appeal was by way of rehearing and took place over five days in April 2013 before a five man panel, chaired by HHJ Edward Slinger.

The Arbitral Panel issued its decision on the merits in May 2013. It found that Mr. Kaneria had induced and encouraged Mr. Westfield to commit the spot-fixing. The Arbitral Panel also found, among other things, that Mr Kaneria had “acted as a recruiter of spot-fixers” in late August/early September 2009 and that he was “fully aware of and encouraged the details of the [corrupt] arrangements put to Mr.

Westfield” by Mr. Kaneria’s corrupt associate, an illegal Asian book-maker by the name of Anu Bhatt.

Further hearings in relation to Mr. Kaneria’s appeal against the proportionality of the Life Ban and the legitimacy of the costs order took place on 2 and 9 July 2013 respectively. The Arbitral Panel issued its decision shortly afterwards in July 2013. It upheld the Life Ban. It also upheld the costs order made and made a further costs order requiring Mr Kaneria to pay £100,000 towards the ECB’s appeal costs (“the Cost Orders”).

In the present proceedings Mr Kaneria, applied for an order that the 18 July 2013 arbitral award (“the Award”) of the Arbitral Panel be set aside for serious irregularity pursuant to section 68(3) of the Arbitration Act 1996 (“the Act”) and/or for permission to appeal under section 69 of the Act. Given the overlap between the issues raised, the applications have been directed to be dealt with together.

Under section 68 of the Act a party to an arbitration may challenge an award on the ground of serious irregularity “which the court considers has caused or will cause substantial injustice to the applicant”. The kinds of irregularity covered by the section are set out in section 68(2) and include at (b) “the tribunal exceeding its powers”.

Mr Kaneria contends that there has been a serious irregularity causing him substantial injustice because the Arbitral Panel has exceeded its powers in (1) imposing/upholding the Costs Orders and (2) imposing a Life Ban.

Under section 69 of the Act a party to an arbitration may appeal to the court on “a question of law arising out of an award”. Unless the parties agree otherwise, the permission of the court to appeal is required and such permission shall only be given if the requirements of section 69(3) are satisfied. These requirements include satisfying the court that the decision is obviously wrong or, where the question of law is one of general public importance, at least open to serious doubt. The court also has to be satisfied that it is “just and proper in all the circumstances” for it to determine the question.

Mr Kaneria seeks permission to appeal on the grounds that the Arbitral Panel erred in law in finding that:

The ECB’s 2009 Cricket Discipline Commission Regulations (“the 2009 Regulations”) were the Regulations which applied in 2009 when Mr Kaneria undertook to be bound by the ECB’s “Rules, Regulations, Directives and Resolutions”. Under the 2009 Regulations the maximum costs order which could be made was £2,000.

The ECB’s 2012 Cricket Disciplinary Regulations (“the 2012 Regulations”) were the Regulations which applied in 2012 when the disciplinary proceedings were commenced against Mr Kaneria. Under the 2012 Regulations there is no financial limit on the costs order which may be made.

The Arbitral Panel found that the 2012 Regulations were the relevant and applicable Regulations. It was on this basis that it upheld the Disciplinary Panel’s Costs Order of £100,000 and made its own Costs Order of £100.000.

Mr Kaneria contends that in so doing the Arbitral Panel exceeded its powers as the applicable Regulations are the 2009 Regulations under which only £2,000 could have been awarded.

Mr Kaneria places particular reliance on the terms of the letter of undertaking signed by him in 28 April 2009 for the 2009 season. It was on the basis of this undertaking that the proceedings for breach of ECB Directives were brought. The undertaking provided that:

“I Danish Prabhashanker Kaneria hereby undertake and confirm that I will abide by the Laws of Cricket, the present Rules, Regulations, Directives and Resolutions of the England and Wales Cricket Board (the ECB) and any further Rules, Regulations, Directives and Resolutions brought to my notice during the season 2009 and acknowledge that I have seen and read:

a)

the Regulations Governing and Qualification and Registration of Cricketers for Competitive County Cricket and their Qualification for England; and

b)

the Cricket Discipline Commission Regulations; and

c)

the current Directives of ECB; and

d)

the Playing Conditions for First Class Matches; and

e)

the Anti-Doping Regulations and;

f)

the Clothing and Equipment Regulations; and

g)

the ECB’s data protection notification for First Class and Minor County Cricketers

which are set out in ECB Rules and Regulations 2009 and more specifically I agree that this undertaking shall be deemed to incorporate the undertaking by registered Cricketers set out in Regulation 7.2 of the Regulations Governing the Qualification and Registration of Cricketers for Competitive County Cricket 2008, headed Negotiations between Counties and Cricketers.”.

Mr Kaneria’s argument is that the undertaking given by him is limited to the “present” Regulations and any further Regulations brought to his notice “during the season 2009”. He never agreed to be bound by later Regulations. Accordingly he is not bound by and cannot be made subject to costs orders under later Regulations, such as the 2012 Regulations.

I agree with Mr Kaneria that any proceedings for breaches of the ECB’s Directives would have to relate to those applicable in 2009. His conduct at that time was regulated by the Directives which were then applicable. In this case the charges were for breach of the 2009 Directive. That does not mean, however, that proceedings brought years later are governed by the Regulations which would have applied to proceedings brought in 2009.

The relevant Regulations are “Discipline Regulations” and they regulate the bringing and conduct of disciplinary proceedings. As procedural Regulations one would expect the applicable Regulations to be those in force at the time that proceedings are brought; not those which may have applied years earlier.

This is borne out by paragraph 3.8.1 of the 2009 Directive which states that “Any breach of these Directives shall be dealt with under the Cricket Discipline Commission Regulations”. That is naturally and sensibly to be construed as meaning the Regulations in force at the time that breach is “dealt with”. In this case those were the 2012 Regulations.

It is further borne out by paragraph 3.1 of the 2009 Directive which provides that each person “shall comply in all respects with all Rules, Regulations, Directives (including this Directive) and Resolutions of the ECB for the time being in force” (emphasis added).

The relevant time for compliance with the Regulations is when proceedings are brought under them. By agreeing to comply with the Regulations “for the time being in force” Mr Kaneria was agreeing to be bound by the Regulations in force at the time of proceedings brought against him.

As the Arbitral Panel held:

“the Panel is satisfied that the procedures in relation to both the Disciplinary Panel hearing and the current Appeal are governed by the Regulations in force in 2012 – at the time of the institution of the proceedings against Mr. Kaneria in 2012” because Mr. Kaneria “accepted that he was required to comply with all [ECB] Rules, Regulations and Directives “for the time being in force””.

For all these reasons I am satisfied that the Arbitral Panel was correct to conclude that the applicable Regulations were the 2012 Regulations. It therefore had power to make the Costs Orders and there was no serious irregularity.

The power of both the Disciplinary Panel and the Arbitral Panel to impose a life ban is derived from 2009 ECB Directive paragraph 3.8. Paragraph 3.8.19 provides that the Panel:

“retains the absolute discretion to impose any penalty within its general powers in respect of any proven allegation of breach of these Directives, save that the maximum penalties to be considered by the Commission in relation to an individual engaging in conduct covered by these Directives shall be as follows…”

Paragraphs 3.8.20 to 3.8.29 then list ten specific offences for which express maximum sanctions are set out. Paragraph 3.8.24 applies to “any person found to be a party to contriving or attempting to contrive the result of any match, matches or any aspect of the same” and paragraph 3.8.26 applies to “any person found to have induced or encouraged any other person not to perform on his merits in any match owing to any such arrangement”. Any person found to have committed such an offence by a Disciplinary Panel can be liable to a maximum sanction of “suspension for life from any involvement in the playing, organisation or administration of any cricket under the jurisdiction of [the ECB].”

It is accordingly clear that the ECB has the power to impose the Life Ban under the 2009 Directive. It has an “absolute discretion to impose any penalty within its general powers” (paragraph 3.2.19) and those powers expressly include “suspension for life” (paragraph 3.8.26).

Mr Kaneria contends that the exercise of the power was unlawful because it was disproportionate. However, that is an allegation that the Arbitral Panel erroneously exercised a power which it has. It is not an allegation that the Arbitral Panel purported to exercise a power which it did not have. As such it does not fall within section 68 of the Act, as the House of Lords decision in Lesotho Highlands Development Authority v Impregilo SpA and others, [2005] UKHL 43; [2006] 1 A.C. 221 makes clear. As Lord Steyn stated:

“[24] But the issue was whether the tribunal "exceeded its powers" within the meaning of section 68(2) (b). This required the courts below to address the question whether the tribunal purported to exercise a power which it did not have or whether it erroneously exercised a power that it did have. If it is merely a case of erroneous exercise of power vesting in the tribunal no excess of power under section 68(2) (b) is involved...

[31] ...section 68(2) (b) does not permit a challenge on the ground that the tribunal arrived at a wrong conclusion as a matter of law or fact. It is not apt to cover a mere error of law...

[32] In order to decide whether section 68(2)(b) is engaged it will be necessary to focus intensely on the particular power under an arbitration agreement, the terms of reference, or the 1996 Act which is involved, judged in all the circumstances of the case. In making this general observation it must always be borne in mind that the erroneous exercise of an available power cannot by itself amount to an excess of power. A mere error of law will not amount to an excess of power under section 68(2) (b).”

The Arbitral Panel has not exceeded its powers in imposing the Life Ban or making/upholding the Costs Orders as alleged or at all. The section 68 application must accordingly be dismissed.

Mr Kaneria contends that the Arbitral Panel erred in law in imposing the Life Ban in that it was wholly disproportionate because:

The complaints made by Mr Kaneria do not disclose an error of law. The Arbitral Panel had an “absolute discretion to impose any penalty within its general powers”. The grounds relied upon do not show an arguable error of law in the exercise of that absolute discretion. The Arbitral Panel considered and exercised that discretion and gave reasons for reaching the conclusion which it did. It did not act arbitrarily or capriciously or have regard to extraneous matters.

In so far as it is relevant to consider the substance of the reasons given for the decision reached, they were cogent and compelling. The Arbitral Panel approved and adopted the following findings of the Disciplinary Panel:

“Self evidently, corruption, specifically spot fixing, in cricket or any other sport for that matter, is a cancer that eats at the health and very existence of the game. For the general public, supporting the game and their team within it, there is no merit or motivation to expend time, money or effort to watch a match whose integrity may be in doubt. The consequences of the public’s disengagement from cricket would be catastrophic.

Furthermore, the game of cricket simply cannot afford to have its reputation tarnished in the eyes of commercial partners. These partners could not and would not link their brand to a sport whose integrity had been so undermined.

For players who have devoted their entire careers to the pursuit of hard fought and properly competitive sport, to have those genuine achievements called into question by the corrupt actions of a tiny minority, may tend to devalue their worth.

Accordingly, we have no doubt that this is a cancer which must be rooted out of the game of cricket. As a result of this, in relation to domestic cricket, the ECB and the PCA have introduced programmes of training and education such that in 2012 there are in place for all county cricketers appropriate safeguards in the area of match fixing and corruption. These were not in place in 2009. In reaching our conclusions, we have had regard to the authorities placed before us in relation to sanctions imposed for corrupt activity in sport”.

The Arbitral Panel further stated as follows:

“... In particular this Panel emphasises the deliberate and planned approach, in conjunction with professional corrupters against whom Mr. Kaneria had been warned. Mr. Westfield was a young, comparatively modest paid player, on the fringes of the First Class game and, therefore, vulnerable to temptation offered to him through Mr. Kaneria, a massively experienced international player with considerable status in the Essex line-up. The Panel has taken full account of the cases drawn to its attention and, in particular, the more modest sentences imposed in the cases of [Salman] Butt, [Mohammad Asif] and others....The Panel, whilst noting the authorities which suggest that spot-fixing might be less serious than match-fixing, consider that, in the circumstances of this case, the distinction is not significant. Spot-fixing, being easier to arrange and harder to detect is an on-going evil as are recent trends further to extend corruption to less high-profile cricket. Many of the aggravating features, now enshrined in the ECB Anti-Corruption Code, are present in this case....the Panel finds that no lesser penalty than a life ban is appropriate both as a deterrent to others and also to ensure that he has no further opportunity to damage the game.”

Further, the Arbitral Panel’s decision turns on the particular facts and, in so far as it raises a question of law at all, it is not a question of law of general importance.

The application for permission to appeal must accordingly be dismissed as it cannot be shown that the Arbitral Panel has reached a conclusion of law which is obviously wrong, or even open to serious doubt.

Further, there is force in the ECB’s point that it would not be “just and proper in all the circumstances” for the court to determine the question. The question relates to the exercise of an absolute discretion. That discretion was vested in a specialist cricketing Panel with wide ranging knowledge and experience of the game. That Panel is in a far better position than this court to consider how to exercise discretion to determine the appropriate sanction.

The application which is made involves an allegation of excess of power and falls under s.68 rather than s.69. In any event, for reasons already given, no error of law was made.

Mr Kaneria contends that the Arbitral Panel erred in law in finding that the principle of “lex mitior” did not apply to the Costs Orders. The ECB accepts that the principle of “lex mitior” applies to a sanction or penalty imposed by a disciplinary panel. However, it contends that, as the Arbitral Panel found, the Costs Orders do not involve a sanction or penalty.

Lewis & Taylor on Sport Law and Practice (3^rd edition) state as follows in relation to the application of this criminal law principle of “lex mitior”

“… if the rules change in favour of the athlete between the time the acts in question occur and the time the hearing panel comes to determine the charge, either in terms of what constitutes a violation … or in terms of what the sanction is for a particular violation …., the CAS jurisprudence is clear that the criminal law doctrine of lex mitior applies by analogy, i.e. the athlete is entitled to the benefit of the more lenient rule”.

Mr Kaneria submits as follows:

The Arbitral Panel held that:

“The general principle of lex mitior is not challenged in these proceedings – the issue, however, turns on whether or not, under the terms of the ECB rules, regulations or directives, an order for costs is properly to be considered a sanction or penalty.

The Panel has considered, with care, the submissions made on Mr. Kaneria’s behalf but is satisfied that the ECB Regulations, governing these proceedings clearly distinguish between sanctions/penalties which constitute a form of punishment and the costs incurred during the course of the proceedings…”

The Arbitral Panel’s reasoning and conclusion is supported by the terms and structure of Regulation 8, which is the relevant Regulation for disciplinary proceedings. The heading of the Regulation distinguishes between “penalties” and “costs”. Penalties are addressed in 8.1. Costs are addressed separately in 8.4. Further, costs are paid to indemnify. They are not a punishment nor are they dependent on any rule being broken. No assistance is to be derived from the “Anti-Corruption Code”, a different set of provisions which were subsequently brought in, or from the UEFA case relied upon of FK Pobeda and others v UEFA [CAS 2009/A/1920]). The issue turns on the proper construction of the relevant Regulations, not other provisions in other Codes or contexts.

Further, the issue is not of general importance since the £2,000 costs cap was removed in 2011 and there are therefore unlikely to be any further cases in which the issue arises.

Mr Kaneria contends that the Arbitral Panel erred on a question of law in finding him guilty of two offences of spot-fixing. He submits that the decision was outside the range of permissible findings open to the Arbitral Panel on the basis of the evidence it considered. In particular he contends that it was not open to the Arbitral Panel to find guilt to the criminal standard in circumstances in which the primary evidence of fact against him was the allegedly flawed, inconsistent and dishonest evidence of Mr Westfield.

The facts are a matter for the Arbitral Panel, not the court. Appeals under section 69 may only be made in respect of questions of law. This is a challenge to the Arbitral Panel’s findings of fact. Even if proven, a finding made contrary to the evidence, or on insufficient evidence, is an error of fact, not law. It does not raise any question of law. The court accordingly has no jurisdiction to grant permission to appeal. Even if it did, there are no grounds for suggesting that an error of law was made.

For the reasons outlined above the applications under section 68 and section 69 must be dismissed.