Introduction
“All cricket matches are to be contested on a level playing field, with the outcome to be determined solely by the respective merits of the competing teams and to remain uncertain until the cricket match is completed.”
The ICC (International Cricket Council) Anti-Corruption Code
With the purpose of preventing corrupt practices undermining the integrity of the sport of cricket and preserving public confidence in ICC to protect the sport from such corrupt practices, The ICC Anti-Corruption Code[1], governed by the English law came into effect on 9 February 2018. The Code was last amended in January 2021 and contains 11 Articles. The Anti-Corruption Unit (ACU) is a department of the ICC that is tasked with monitoring compliance with the Anti-Corruption Code and investigating suspected violations, among other things. The article aims to give a detailed insight into the Code’s provisions. Read on!
Applicability of the Code
Article 1 of the Code states that the applicability of the Code is on all the participants. The term ‘participant’ includes either or both of the following:
- Any selected cricketer
- Any coach, trainer, selector, manager, team owner or official, physiotherapist, doctor, or any other individual who is employed, representative, or associated
- Player Agent, ICC Official, Pitch Curator, Match Referee, Umpire or Umpire Support Personnel
The selection of cricketers must be done recently or one which has been done in the last twenty-four months. The same is the case with the second category of persons. The first two categories should be either or both:
- participating in or working in relation to a match (international and/or domestic) for any touring or playing team, squad, or club that is in any way connected to the National Cricket Federation (in terms of membership, association, or jurisdiction).
- Subject to a period of ineligibility that is unexpired in accordance with either or both – Anti-Corruption Code and any of the National Cricket Federation’s rules on anti-corruption.
Conduct constituting an offence under the code
According to Article 2, corruption, betting, misuse of Inside Information, and some other conducts constitute an offence under the Code. These conducts are discussed in detail as follows:
Corruption
Towards an international match, if any of the following acts is done, it would be amount to corruption:
- Undertaking, making an effort towards, or being a party to an agreement in fixing, contriving, or influencing improperly the match’s progress, result, conduct, or any other aspect of such a match. This may also include activities where there is a deliberate underperformance.
- Ensuring the happening of a particular incident for betting or any other corrupt purpose.
- Seeking, offering, accepting, or agreeing to accept a bribe or other reward in furtherance of either first or second point.
Betting
Where any bet is placed, accepted, laid down, or entered into with another party relating to an international match’s aspect.
Misuse of Inside Information
When inside information is used for the purposes of betting or such information is disclosed with the knowledge or where a participant must have the knowledge that such a disclosure may lead to the misuse of information for betting in relation to any international match.
Other conduct
- There are some other grounds as well which include giving or providing to any participant any benefit (including those having and not having monetary value both) or failing to disclose the receipt of such a benefit or where the participant has been offered contractual or non-contractual benefits of the value of US $750 or more.
- Professional association with any excluded person without ACU’s prior approval, not cooperating with any participant-related proceeding, investigations by ACU, failing to disclose an approach or invitation received, or another participant’s corrupt conduct if it comes to a participant’s attention.
It is to be noted that direct or indirect inducement, giving of instructions, encouragement, soliciting, persuading, or facilitation of any participant intentionally to do any of the above-discussed conducts would also amount to an offence under the Code.
Permissible sanctions
Article 6 of the Code provides for sanctions under different offences discussed above. For corruption, the period of ineligibility is a minimum of five years and the maximum period is a lifetime. For betting, it is a minimum of one year and a maximum of five years. For misuse of inside information, it is a minimum of six months or one year depending on the nature of offence, and a maximum of five years. Some offences under other conducts can attract a minimum ineligibility period of six months while some can attract no minimum ineligibility period. The maximum period under such offences might be two years or five years, depending on the nature of offence.
For determining an appropriate sanction, the Anti-Corruption Tribunal must first determine the relative seriousness of the offence, including identification of all relevant factors that it deems to aggravate or mitigate the nature of the offence. In all cases, the Tribunal has the discretion to impose a fine on the participant.
Process of investigation
Article 4 of the Code provides a detailed process of how and when the investigation takes place and consequently when the notice of charge is sent.
Whenever there is a suspicion or allegation of a breach coming within the purview of the Code brought to attention by any source, it shall be referred to the general manager of the ACU for instigating investigation. Apart from this, if the ACU believes that a participant may have committed an offence, the investigation may be conducted at any time.
The investigation may be conducted in conjunction with the National Cricket Federations and/or other relevant authorities that may include administrative, criminal, judicial, and professional authorities. It is to be noted that at its own discretion, the ACU may stay the investigation pending, with its outcome being conducted by other National Cricket Federations and/or other relevant authorities.
Notice of charge
When is the notice sent and what detail does it contain
Before going into the details about the notice of charge, it is important to know the meaning of the following two terms:
- ICC’s General Counsel: The ICC-appointed person who, from time to time, acts as the ICC’s General Counsel or his/her designee.
- ICC’s Independent Oversight Group: It is an ICC official committee. The committee’s main goal is to assist and guide the ACU general manager and the chairman in developing and implementing the overall strategy that aims to deal with the threat of corruption in the sport of cricket.
The notice is sent by the ICC’s General Counsel (as far as participants apart from directors are concerned) or the Chairman of the ICC’s Independent Oversight Group (as far as only the directors are concerned) in consultation with the relevant ICC policy. It is sent at the time when the concerned persons determine that there is a case to answer under Article 2 i.e.an offence under the Code has been committed.
The notice should be in written form and a copy of it has to be sent to the senior legal officer or anti-corruption official of the National Cricket Federation to which the participant is affiliated. In case, there is no person holding such positions, the CEO of the National Cricket Federation has to be sent a copy of the notice.
The notice shall contain the following details:
- Informing the participant that he/she has a case to answer under Article 2 and specifying the alleged specific offence.
- The details of the act or omission alleged which supports the charge also need to be given.
- In case the charge is upheld or admitted, informing about the range of sanctions that would be applicable in accordance with the Code.
- Informing about the matters related to provisional suspension, if applicable
- Informing about the ‘Right to hearing’ available to the participant and how to exercise it.
Powers with the ACU after the notice is sent
After the notice has been sent, the ACU General Manager may make a written demand to a participant at any time to do all or any of the following:
- Providing answers to questions in writing and/or in person at an interview.
- Allowing the ACU to take information (which the ACU General Manager reasonably believes to be relevant to the investigation) from the mobile of the participant. Along with this or instead of this, information can be asked to be copied or downloaded.
Information under the second point, if asked for, has to be provided immediately upon the participant’s receipt of the demand. Otherwise, a minimum of fourteen days from the demand’s receipt is provided. An extension can be sought where cogent reasons are provided. It is to be noted that the decision of granting or denying such an extension lies wholly with the ACU General Manager who has to act reasonably at all times.
When a written request of hearing is submitted
After receiving the notice of the charge, a participant can submit a written request for a hearing if he/she wishes to exercise his/her right to a hearing before the Anti-Corruption Tribunal (whether to contest liability or sanction or both). The written request must explain how the participant is responding to the charge/charges, along with the basis of such response in a summarised manner.
The General Counsel of the ICC must receive the request as early as possible for it being effective. The maximum time in which it could be received is 14 days of the receipt of the notice of charge. The ICC has to send a copy of the notice to the National Cricket Federation (to which the Participant is affiliated) without any delay.
When a written request if failed to be filed
When a written request is failed to be filed for a hearing, there is no need for a hearing before the Anti-Corruption Tribunal. The participant shall be deemed to have waived the Right to hearing and as specified in the notice shall be deemed to have:
- Admitted the commission of the alleged offence or offences under the Code
- Agreed to face the range of applicable sanctions
Burden of proof
As per Article 3, the burden of proof in all the cases (except otherwise mentioned under the Code) shall be on the ICC. The standard of proof shall be whether the Anti-Corruption Tribunal is comfortably satisfied that the alleged offence has been committed, keeping in view, the seriousness of the allegation. The standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt.
The hearing process
Article 5 of the Code provides in detail, the hearing process in case a written request for hearing is submitted by a participant. The matter has to be first referred to the Chairman of the ICC Code of Conduct Commission, who shall appoint three members from the Commission for the formation of an Anti-Corruption Tribunal to hear the case. The members can include the Chairman himself and a member, who is lawyer shall sit as Chairman of the tribunal.
The appointed members must be:
- Having no relation with the case
- Independent of the parties
- From the different country as the participant in question (unless agreed otherwise)
Preliminary hearing
A preliminary hearing shall be convened by the Tribunal’s Chairman with the ICC, participant, and their legal representatives (if any). The hearing should take place through a telephone conference call unless the Chairman determines otherwise. At the preliminary hearing, the participant shall raise any legitimate objection and the tribunal’s Chairman shall rule on its legitimacy.
Following the conclusion of the preliminary hearing, the ICC has to send notice of any orders or instructions issued during the preliminary hearing to the National Cricket Federation to which the Participant is associated, without undue delay.
Hearing
Both the parties have the right to be heard and be present at the hearing, along with the right to be represented by legal counsel (at parties’ own expense and of their own choice). The decision of whether to convene a hearing or determine whole or any part of the matter through written submissions is with the Tribunal’s chairman. The hearing shall be, in any case, conducted in a manner that affords the participant a fair and reasonable opportunity of presenting evidence, addressing the Tribunal, and presenting the case.
When the charge is admitted by the participant
At any time during the proceedings, the participant has the choice to admit the breaches he/she is charged with. It may or may not be in furtherance of an agreement with the ICC to face appropriate sanctions to be imposed to avoid the need for a hearing before the Tribunal. The Tribunal, in this case, shall discontinue the proceedings and there is no need for further hearing.
Announcement of the decision
A written decision with reasons shall be announced by the Anti-Corruption Tribunal as soon as possible, the maximum time limit for which is thirty days from the conclusion of the hearing. The decision must provide findings of the Tribunal, along with the reasons as to whether any offence/offences are committed and whether any sanctions are to be imposed. In case, sanctions include serving a period of ineligibility, the decision should also provide for the date of the commencement of the period. Information regarding the right to appeal shall also be provided.
It is to be noted that at the time of providing this decision, a copy of the findings and decision of the Tribunal has to be provided by the ICC to the National Cricket Federation to which the Participant is affiliated. This has to be done prior to publicly announcing such a decision.
Appeals
As per Article 7, Certain decisions under the Code can be challenged through an appeal to CAS (The Court of Arbitration for Sport in Lausanne, Switzerland) by the concerned participant or the ICC (as applicable). The decisions which can be challenged are as follows:
- The decision of the ICC Code of Conduct Commission’s Chairman for not lifting a provisional suspension
- The decision that an offence under the Code has or has not been committed
- The decision that a charge of breaching the Code should be dismissed for jurisdictional or procedural reasons.
- The decision of imposing or not imposing a sanction. This may also include the appropriateness of an imposed sanction.
CAS’s decision on the appeal shall be final and binding on all parties and no right to appeal shall lie after that.
Making a public disclosure
According to Article 8, only after a participant has been formally charged under the Code, following due process, the ICC shall make public disclosure of the name of such a participant, along with the offence that he/she has been charged with.
After the decision has been issued by the Tribunal, then two situations might arise:
- That it is affirmed that the participant has committed the offence
- That the participant is exonerated
In the first situation, the decision for making public disclosure of the same lies with the ICC while in the second situation, public disclosure can be made only with the consent of the participant (who may approve or disapprove or may approve a redacted form).
Conclusion
Some of the recent incidents such as the Former West Indies all-rounder, Marlon Samuels being charged under the Code[2], Wicketkeeper-batter of the United Arab Emirates (UAE), Gulam Shabbir being banned for four years[3], and Indian opener KL Rahul being fined under the Code[4], clearly reflects the seriousness with which the Anti-Corruption Code works. While no offence should go unnoticed, the maximum time limit for bringing an action against a participant under the Anti-Corruption Code is 10 years from the date of occurrence of the offence.
[1] The International Cricket Council Anti-Corruption Code for Participants
[2] Marlon Samuels charged under ICC Anti-Corruption Code, ICC (Sept. 22, 2021), https://www.icc-cricket.com/media-releases/2264319.
[3] Shabbir banned for four years under ICC Anti-Corruption Code, ICC (Sept. 6, 2021), https://www.icc-cricket.com/media-releases/2264319.
[4] Rahul fined for breaching ICC Code of Conduct, ICC (Sept. 5, 2021), https://www.icc-cricket.com/media-releases/2244268.
YLCC would like to thank Aditi Aggarwal for her valuable insights in this article.
