TThe thing about inviting a tiger for tea is that despite all the excitement, the fur, the teeth, the muscles, they tend to run away with your food and drink all the water from the taps. The point of saying yes to the person with the biggest stick is that in the end you don’t have to say yes or no or whatever. And that person still has a very big stick.
The point of closing your eyes and just taking the money is: money is only passed in exchange for something of value, and full payment will be collected. Welcome to English cricket in full blind, groping crisis mode, and the first small tremor of what lies ahead, whatever happens in the coming weeks.
Here’s a question no one has answered yet. Could the England and Wales Cricket Board, the Hundred franchises and their county partners find themselves on the receiving end of an employment law claim for workplace discrimination if Pakistani players are absent from next season’s squad?
The obvious answer is: probably not. Nothing has happened yet. The BBC published a story suggesting that the four Indian-owned Hundred franchises have reservations about hiring Pakistani players. The ECB has energetically denied the existence of a shadow ban, something it cannot actually know for sure. But so far this is all just talk, hypothesis, new age fear.
The second obvious answer is: does it actually matter? The very fact that this is a problem is devastating. Here we have a scenario in which the ECB’s big, beautifully packaged commercial project, sold as a force for sunlight, modernity and openness, could end up actively reinforcing the exclusion of cricketers on the basis of race.
At that point the whole thing just collapses. Every part of the Hundred’s staging, the beaming, self-righteous tone, the lame marketing, the ECB’s prim talk about “enshrining” equality in its statutes. It all goes up in smoke when the message in reality is: you won’t get in if you’re Pakistani.
The broader answer to that question about legal action is: well, maybe. This could theoretically happen. Sure, it might not be as difficult as many have assumed, if the wrong kind of dots are joined, and if someone out there has the will and the resources. No wonder the ECB has been, for lack of a better phrase, making a fool of itself all week, while its CEO, Richard Gould, and chairman, Richard Thompson, have been going around trying to put out the fire in their own tails; a fire that, in a gallows humor twist, was lit by their own hand.
This is the most important point. No one can say he wasn’t warned. The ECB knew all about it the possible exclusion of Pakistani players from the Hundred. It refused to require firm public guarantees as sales to Indian financial institutions progressed. In particular, Gould’s actively softened suggestions to sell a month of summer to politically-oriented private equity could come with all kinds of restrictions, baggage or unwanted influence.
Why would anyone pretend to be sure of that? Everyone knows that selection around the world has been affected by the hostile relations between India and Pakistan. Everyone knows that Indian cricket often aligns with Indian politics, and in particular with the ruling Bharatiya Janata Party.
The BJP is led by Narendra Modi. Jay Shah, the chairman of the International Cricket Council, is the son of Modi’s oldest political ally. There is no pretense here, no shadow dance. It’s all out in the open. Cricket’s global infrastructure, at both macro and micro levels, is dictated not just by a single nation, but by a single nationalist movement within that nation.
As such, anyone in English cricket with half a brain has known a degree of power and control factored into the wildly promoted Hundred buys. Does anyone involved in English cricket actually have half a brain? Lancashire CEO Daniel Gidney even suggested, with hash marks flashing past his eyes, that the Hundred should sell a share directly to the Board of Control for Cricket in India, and in effect to the Indian government. This is the one in charge here. This is the English cricket, always hungry, always banging his spoon on the high chair tray, always looking for someone else to feed him.
And now we have a taste of what the summer sell-out could mean in practice. The auction list for the Men’s Hundred will be reduced from 710 players to around 200 in the coming days, with 63 Pakistanis in the mix. The ECB has written to the Hundred Franchises warning of “action” if there are indications of discrimination in their selection. What action? No one knows, although there have been chilling talks about a referral to the cricket regulator. That sound you can hear is the chattering of billionaires’ teeth. Oh yes. Slap me, daddy. Give your sternly worded warnings.
As things stand, given the sensitivities, it would be very surprising if none of the players on the longlist are from Pakistan. Boys. Throw the Richards a bone. They’re dying out here. But beyond that, there are two well-rehearsed justifications for a Pakistan-free selection. Firstly, no one can actually prove that this is a deliberate policy, coupled with the suggestion that the Pakistani players are not good enough anyway. And second, the idea that India is paying for all this so that it can do whatever it wants. Both are deceived. The second is the key.
At that point, enter: the law. “Discrimination based on nationality, ethnicity or national origin is a form of racial discrimination under the Equality Act 2010,” said Susan Perry, partner at law firm Brecher LLP. “It applies to both prospective and current employees. There are certainly some issues to consider at ECB and franchise level, with who is most at risk of a claim depending on how the contracts are structured.”
The idea that Pakistani players as a whole are not good enough to qualify seems less plausible when the top scorer in the current T20 World Cup plays for Pakistan and is on the current Hundreds auction list. This seems like a fairly strong objective argument for selection.
To be clear, the fault lies in not fairly considering someone for work, not in simply not hiring him or her. It applies at the recruitment stage. Discrimination does not have to be proven beyond doubt. The law accepts that hard evidence is very rare. A balance of probabilities is often sufficient. Evidence of favorable treatment can be inferred from environmental conditions. The law is persistent. There will be no deviation from it.
Who can take legal action for this? British employment law can be applied to foreign bodies in the right circumstances. But the provinces are also vulnerable. Have they taken all reasonable steps to ensure that all potential hires on the new teams are treated equally by everyone at every stage of recruitment? Can they prove that they did this?
More of a challenge: what is the ECB’s exposure? Given the evidence of every other franchise league, it was entirely foreseeable that this would become a problem. The pattern is clear. The two Indian Premier League-affiliated ILT20 franchises in the United Arab Emirates, sister clubs of MI London and Southern Brave, have not signed a Pakistani player for four seasons. No Pakistani player has ever been signed by the Indian-owned teams in the South African SA20. We are not children. We know this happens. The ECB has simply dismissed the prospect of the Hundred coming. “We are aware of that in other regions,” Gould said last year. “But that won’t happen here.” Bright…
This does not mean that anyone will actually appear in court. But it is important to note that this is at least a possibility, that if what has happened elsewhere continues to its logical conclusion, the Hundred could be in breach of UK discrimination law. And this, let’s be clear, is an astonishing drop in itself.
Forget the legal angle. What about the moral angle? Do you remember that? How has the ECB put our summer sport in this position? How have we reached a point where avoiding a legal claim under anti-racism legislation can be seen as a victory? How does asking this question fit with the ongoing fuss about inclusion and outreach? How will girls and boys of Pakistani descent feel about entering their local franchise?
And how can all this be in line with the good intentions of the ECB’s State of Equity report, published last November and heralded as evidence of the progress made in “engagement with ethnically diverse communities”. The report is introduced by Gould’s own noble talk about making cricket “the country’s most inclusive team sport”. Oh yeah?
“It is essential that we do not take our foot off the pedal,” Gould warns everyone else as he chastises the provinces and urges them to create a culture of true anti-racism and become active allies. An entire section discusses street cricket sessions aimed at convincing people from the Pakistani community in Milton Keynes to take up the game. This is not credible, it means nothing if it is not possible to be a Pakistani in the Hundred.
It is hoped that none of this will happen, that the political pressure and the danger of the collapse of the brand will be enough. If not, the ECB director will be hugely exposed. Gould wrote in November about his own willingness to be “held to account when it comes to our ambitions for equality, diversity and inclusivity”. Nice words. But now hostage to fortune. Tap tap.
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