Sandpapergate: ICC’s Failure to Save the Spirit of the Game from Orchestrated Cheating.
The author is a third-year student at National Law University, Jodhpur. She may be reached at firstname.lastname@example.org.
The South Africa-Australia Test Series saga has not stopped unravelling since the ball-tampering scandal was captured on live telecast during the third test match. Whether or not South Africa manages to clinch a Test Series win against Australia at home-a feat last achieved in 1970- is yet to be seen; however, it is not wrong to say that this series will be remembered for the hullaballoo caused when Cameron Bancroft was caught red-handed with sandpaper and tape – foreign substances being used to scuff up the ball on live television, with Australian captain Steve Smith confessing to being the ring-leader behind the offence.
The public reception to this collusive act of cheating has been scathing and acute. During the third test match, Australian supporters removed their flag and stuck naked flags instead. Cricket legends have come forward in collective disdain for the acts of the Australian captain including past captains like Michael Clarke; even the Australian Prime Minister Malcolm Turnbull called for swift action against the disgraceful act of cheating.
Personal opinions aside, as far as tangible backlash is concerned, Steve Smith and David Warner have been demoted from their posts of Captain and Vice-Captain respectively. Even coach Darren Lehmann is liable to be removed from his post with reports stating thathe knew about the plan as he had tried to warn Bancroft about being caught on camera. Steve Smith has also been removed from captaincy of the Indian Premier League team Rajasthan Royals. Cricket Australia is still carrying out investigations on Johannesburg and is yet to reply to reports of whether the players involved would be facing a year-long ban from the team.
Despite the bitter fallout faced by the players, mainly Smith and Bancroft, the punishment meted out by the International Cricket Council has been surprisingly lukewarm. Steve Smith was charged under Article 2.2.1 of the Code of Conduct i.e. act of serious nature that is contrary to the spirit of the game – a Level 2 offence which brought forth a fine of 100% of his match fee and one Test Match ban. Cameron Bancroft was charged under the Level 2 offence of Article 2.2.9 of the Code i.e. changing the condition of the ball in breach of clause 41.3 of the ICC Standard Test Match, ODI and T20I Playing Conditions, receiving a fine of 75% of his match fee and three demerit points. With glorious expectations that hoped for the ICC to take strict action against this premeditated act of cheating and set a strong precedent for the future, this punishment was met with less than warm reviews.
ICC Demerit Point System for Offences
The demerit points system of the ICC was introduced in December 2016 as a tool to crackdown on repeat offenders of the ICC Code of Conduct. The mechanism in place simply notes the presence of demerit points in the record of the player in correspondence with the Level of Offence committed by him/her. These points remain in the record of the player for 24 months and the accumulated demerit points may translate into corresponding punishments of suspension in ICC International matches. Even after a ban or suspension has been meted out, the demerit points remain in the record for 24 months so as to hold the player accountable and deter recidivism. This does bring in questions of double jeopardy, however, the intention is to increase the gravity of the punishment with every repeated offence.
The number of offences defined by the ICC Code are divided into to four Levels: Level 1 constitutes minor offences; Level 2 constitutes serious offences; Level 3 covers very serious offences, while Level 4 constitutes overwhelmingly serious offences. According to Article 6 of the Code, which defines the standard of proof for the offences, the Match Referee or the Judicial Commissioner must be satisfied as to the commission of the offence. This “comfortable satisfaction” is subject to the sliding standard of proof wherein minor offences have to be proved on the basis of balance of probabilities while overwhelmingly serious offences have to be proved beyond a reasonable doubt. The nature of evidence must of the kind that can be proved by reliable means: i.e. as in this case, the presence of live television footage and the players’ admission. It must also be noted that, the level of offence is also dependent on the context of the occurrence.
It is on the foundation of context that the action taken by the ICC seems to fall short. On his very own admission, Steve Smith brings to light a premeditated, concerted effort to indulge in the act of cheating during the Test Series. Bancroft admits complying with the instructions of the captain and “a bunch of senior players” to use the foreign objects to tamper with the ball. This shows that an intention to cheat and influence the course of the game was present from the very beginning. If past instances of ball tampering are referred to for perspective, these acts seem to have been resorted to in the spur of the moments. For example, Faf du Plessis, who has been charged for this offence twice, used the zip of his trousers and later saliva from a mint to tamper with the ball. Shahid Afridi bit the ball, Vernon Philander scratched the ball with fingers and more recently, Dasun Shanaka picked the seam of the ball to tamper with it. This is not to say that these acts are not incidents worthy of action, but they can be distinguished with the present offence.
The introduction of a foreign object onto the field from the very beginning displays a premeditated mala fide intention to be dishonest rather than an act of desperation during the game. It is also unfortunate to note that a new player in Bancroft was used as a vessel by the Captain and the “bunch of senior players” to indulge in dishonest acts. It is on the basis of these distinguishing instances that the punishment and classification of offence seems disproportionate to the proof and context available.
Kagiso Rabada Incident
Extending further on the element of disproportionality, it is important to also look into another issue that this Test Series was embroiled in. Kagiso Rabada had been charged under the Level 2 offence under Article 2.2.7 of the Code i.e. for making inappropriate and deliberate physical contact with Steve Smith during an International Match. He was initially fined 50% of his match fee and given three demerit points, until both were reduced in appeal. The initial fine had a polarising effect as many did not consider the impugned physical contact to be deliberate. Rabada claimed to not even remember the contact due to excitement of having taken Smith’s wicket.
It is strange to note that the offences of both Rabada and Smith fall under the same Level 2 offence. Though it is necessary to discourage inappropriate and deliberate physical contact players, it is still difficult to believe that a brush with a player would have the same weight as a pre-planned collective effort to cheat and change conditions of the game.
The internal investigation of Cricket Australia is yet to bring about new revelations about whether there was intention to cheat and if it had been collectively orchestrated by the senior players of the team. If this is proved beyond a reasonable doubt, it would mark a corrupt time in the history of Australian Cricket. As far as ICC is concerned, it is unclear how Steve Smith’s offence was classified as a Level 2 offence, despite the reasons elucidated above. The ICC must bring more clarity on how levels of offences are distinguished and should focus more on the facts and evidence that define the context of the offence. Sandpapergate, as it has become to be dubbed, should have been a chance for ICC to mete strong sanctions on cheating, a la, Deflategate for the NFL. Whatever the results maybe, ICC seems to have jumped the gun with their decision and has failed to reign in mala fide elements that hamper the spirit of the gentleman’s game.
 The ICC Code of Conduct for Players and Player Support Personnel, Article 2.
 Ibid, Article 6.