A Conundrum Between Protecting Free Speech and Tackling Racism In Cricket – The Ollie Robinson Case

[Author: Trusha Modi, a third-year student of Law at Jindal Global Law School]

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Introduction

The tweets made by Ollie Robinson were all over the Internet few minutes after he took the field at the Home of Cricket to represent his country for the first-time. These tweets included racist and sexist remarks which were made by him in 2012-2013, when he was a teenager. This led the England and Wales Cricket Board (‘ECB’) to suspended him immediately after conclusion of the test-match played between New Zealand and England, pending an investigation. An independent panel was set up by the ECB, which adjudicated on 3^rd July, 2021 and the Cricket Discipline Commission has handed down an eight-match ban suspension and a fine of £ 3200 on Ollie Robinson for breaching ECB directive 3.3 and 3.4. It is not the first time that a player has faced penalty or suspension for historical social media remarks. Andre Gray, an English Premier League soccer player was similarly charged with misconduct in 2016 for homophobic tweets made by him in 2012 by the football regulating authority in England i.e., Football Association. The fiasco opens the broader issue of maintaining a balance between regulating freedom of speech and expression of athletes and making the sport more inclusive by tacking the issue of racism.

Freedom of Speech and Expression

The freedom of speech and expression is guaranteed by all the countries around the globe. It is a fundamental constitutional right of citizens in India under Art.19(1)(a), and a fundamental and human right in European Union under Article 19 of the Universal Declaration of Human Rights. Article 10 of the Human Right Act protects the right to hold information and express it freely without any government interference. But such freedom of speech and expression is not absolute in each and every jurisdiction and is subject to certain restriction in the interest of national security, territorial integrity, disorder or crime, etc. Article 10(2) of ECHR to which UK is a signatory also states that such freedom is not absolute and carries with it duties and responsibilities.

Regulation of Free Speech by National Sporting Organization

The National Sporting Organizations (‘NSOs’), and in the instant case the ECB can regulate an athlete’s freedom of speech and expression on ground of ‘sport neutrality’ i.e., to guarantee autonomy of sports and strengthen the NSO’s morals and ethics. The primary rationale behind such ‘sport neutrality’ is that athlete’s opinion has the power to create a negative impact and shock the spirit of the game. With the increasing popularity of sports, the athletes are given a “role-model” status so their speech or conduct can have a greater negative impact on human dignity. Sports has become an integral element to promote cross-broader relations and “enable people otherwise known as enemies to become friends.” Athletes’ opinions, especially racist remarks disturb the capacity of sports to create a friendly environment. Therefore, the Code of Conduct, Directives and Anti-Discrimination or Anti-Racism policies formed by the National Sporting Organization that includes clauses for regulation of free speech and expression is justified on above-mentioned grounds.

The Anti-Discrimination policies and Code of Conduct is important to make Cricket more inclusive especially in light of the increasing instances of racism in Cricket. The recently concluded World Test Championship Finals saw spectators being removed from Ageas Bowl, Southampton because of racial slurs directed towards New Zealand players. Similarly, earlier this year, fans were penalized to slur racist comments towards Indian Cricketer Mohmmad Siraj in Australia. It was just two years back in 2019 when the racist and sexist comments made by Indian Cricketers Hardik Pandya and KL Rahul on a chat show landed them with a suspension from BCCI. The infamous ‘monkey-gate’ incident during the Sydney Test Match remains fresh in our memories. The International Cricket Council (ICC) has a dedicated an Anti-Racism policy, the Anti-Discrimination policy to deal with such incidents. While the policies clearly include on-field incidents within its ambit, it is still a question whether social media remarks made by players constitute offence under these policies to suspend or sanction a player.

Interpretation of the Anti-Discrimination polices and Code of Conduct

The ICC’s Anti-discrimination Policy apply for all international matches. It has allowed its members to exercise flexibility and discretion to make their own Anti-Discrimination policies under Article 1.3 of the Anti-Discriminatory Code for Participants.

The offence clause under the Anti-Discrimination policy of ICC is as follows:

“2.1 The following conduct, if committed by a Participant at any time during, or in relation to, an International Match, shall amount to an offence under the Anti-Discrimination Code:

2.1.1 Engaging in any conduct (whether through the use of language, gestures or otherwise) which is likely to offend, insult, humiliate, intimidate, threaten, disparage or vilify any reasonable person in the position of a Player, Player Support Personnel, Umpire, Match Referee, Umpire Support Personnel or any other person (including a spectator) on the basis of their race, religion, culture, colour, descent, national or ethnic origin, sex, gender, sexual orientation.”

Per contra, the offence clause under the ECB’s Anti-Discrimination Code of Conduct is as follows

It will be a breach of this Code for any Participant to:

• Act in any manner, make any omission, or engage in any conduct, which (in the opinion of a reasonable person) does or is likely to, offend, insult, humiliate, intimidate, threaten, disparage and/or vilify any person or group of people, based on, or by reference to, any Protected Characteristic; and/or
• make any decision or any omission or do anything which might reasonably be deemed to discriminate against any person, or group of people, or to disadvantage that individual or group based on any Protected Characteristic unless permitted by law; and/or in instances where the Participant is an organization.
• ECB’s Directives under which Ollie Robinson is sanctioned are as follows:

“3.3 No Participant may conduct themself in a manner or do any act or omission at any time which is improper or 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.

3.4 Each Participant is bound by and must comply with the ECB Anti-Discrimination Code.”

The Anti-Discrimination Code of ECB is very broad as opposed to ICC’s Anti-Discrimination Policy because of the absence of the qualification “at any time during or in relation to a match.” A social media remark wouldn’t constitute an offence under ICC’s policy if such remark is not made in relation to a match, however, ECB’s policy is not limited in its scope and interpretation of the same can even include the social media remarks made by Ollie Robinson albeit 8 years back. The ECB directives in the Anti-Discrimination policy are broad enough to even include punishment for conduct of a player eight years back because of the phrase “any time” under Directive 3.3. Such policies and directive controls the freedom of speech and expression excessively and retrospectively.

Contractual Relationship between Athletes and National Sporting Organizations

As discussed earlier, such policies are justified on ground of sport-neutrality. Another ground which justifies the existence of policies which regulates athlete’s fundamental and human right of freedom of speech and expression is the contractual  relationship between athlete and National sporting Federation. In the case of Irina Deleanu v. Federation Internationale de Gymnastique the Court of Arbitration for Sport (‘CAS’) declared that because of the special contractual legal relationship between an association and players, the association may impose stricter duties than the one’s imposed by criminal law. The National Sporting Organizations are private bodies regulated by the “so-called lex sportiva: ‘federal laws [that] constitute a private law regulation, with international vocation”. Therefore, the relationship between athletes and NSOs is not vertical but horizontal in nature governed by a contract.

In the Case of Amadou Diakite v. FIFA, the CAS held that “the fundamental rights are not meant to be applicable in private relations between individuals and therefore are not applicable in disciplinary cases judged by private association.”

Since ECB, the governing body for Cricket in England is not a government body but a part of the global private regime of sporting federations, it is not obligated to protect Human Rights and guarantee freedom of speech and expression. The restriction imposed on the free speech of a player was held to be valid in the case of Jibril Rajoub v. FIFA where Jibril Rajoub expressed negative views on media which led to 12-month suspension pursuant to violating Article 53 of the FIFA Disciplinary Code. The restriction to free speech was upheld by the CAS on account of voluntary nature of the contract and legitimate aim of the sporting organization to limit some kinds of statements like racist, sexist remarks or statements that incites hatred or violence. Such cases therefore, recognize the right of the ECB to establish ‘codes of conduct’ i.e., directives and policies in order to limit players free speech and conduct on the basis of their potential impact on public opinion. The broad morality clauses of the ECB policies for its cricketers and the punishment sanctioned on Ollie Robinson has been therefore justified by ECB in pursuit of ECB’s own legitimate aim of promoting equality, inclusivity and diversity, tackling racism in cricket and protecting its own image.

Chilling-effect on Freedom of Speech and Expression

Ollie Robinson was not in a contractual relationship with the ECB when he made the tweets back in 2012-13. Hence, the argument that restriction on free speech can be imposed on account of voluntary nature of contract is not applicable in this case. The reasoning applicable in Ollie Robinson’s case for penalties imposed on him by ECB, is that of ‘sport-neutrality’ and sanctions imposed in light of pursuance of legitimate aim of tackling racism. The conundrum arises is that whether it is justified to punish a player retrospectively in order to tackle racism. The ECB’s broad morality clauses sanctions is not limited to on the field or off-the field playing incidents but regulates a player’s speech and expression for perhaps his whole life even though not on contract i.e., not contracted out of his right of freedom of speech and expression. Such retrospective sanctions i.e., punishing someone for an offence which was not punishable at the time it was committed is against the principle of natural justice, also enshrined under Article 7 of ECHR. The broad morality clauses cannot be justified on the basis of the legitimate aim of ECB to tackle racism because it not only regulates the speech of the player responsible for tweets but also chills the speech of other potential athletes. It instils fear and deter other young athletes to exercise their freedom of speech and expression which may not be offensive but tongue in cheek comments or remarks criticizing sporting authorities. Most athletes have no bargaining power against sports organization and therefore will not be able to defend themselves against the sanctions levied on them by the board.

Conclusion

There is no justification for Ollie Robinson’s offensive remarks, but the policies that governs a player should not have such an impact that regulates the player’s speech for his whole life. Penalties shouldn’t be levied for conduct or behaviour of a person when the person was a teenager, not on contract and having no guidelines or knowledge as to what constitutes violation of ECB’s directives. In pursuit of tackling racism and promoting equality, inclusivity and diversity, regulating the freedom of speech and expression for player’s on the field or off the field conduct and behaviour while on contract with the association is justifiable because athletes are aware of the sanction that can imposed on them for their wrong conduct.

Without laying any guidelines as to what constitutes violation of the broad morality clauses that sanctions a player’s conduct is against the spirit and the purpose of the fundamental human rights of freedom of speech and expression. Such pre-contracts punishments are unconscionable. It not only regulates the human right of an individual but of other athletes as well who aspire to represent their country because of the chilling effect that is created by sanctions/penalties imposed on Ollie Robinson. Most likely if such rules are challenged as in the case of Charles O. Finely & Co., Inc. v. Kuhn, the courts in order to protect the best interest of sports will rule in favour of the league who dismissed athletes for their conduct or words spoken. Therefore, even if Ollie Robinson challenges the sanction on account of not being regulated by a contract, the traditional reasoning of sport-neutrality, legitimate aim of tackling Racism would find him at a losing end.

PREFERRED CITATION: Trusha Modi, A Conundrum Between Protecting Free Speech and Tackling Racism In Cricket – The Ollie Robinson Case, SLPRR, <https://sportslawandpolicyreviewreporter.com/?p=1573> July 14, 2021.

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