***Official*** English Domestic Season 2008

[Richard]

Broadly speaking you're right in saying you can't force anyone to offer an employment contract to anyone. But I can't see how that arises here. The issue that more commonly arises, and arises here, is whether an employer can be stopped from offering a contract to an individual by virtue of a contractual agreement with a third party. Here the restraint of trade doctrine applies, and powerfully, as the ECB found out earlier this summer when forced to back down from its ridiculous posturing over Mushtaq et al. It makes no difference whether you're talking about an existing contract, or a prospective contract.

The Mushtaq et al contracts had already been signed though, had they not? If someone from the ECB has a quiet word with county chairmen, and says "if you want to continue to receive your grants, you will not offer any new contracts to overseas cricketers who've played in the ICL" there's surely no restraint-of-trade law that can make an impact?

As I say, the BCCI didn't cast the ECB into the fiery pit for backing down. This is because, pantomime villains though they may appear, the BCCI also have lawyers and realise what can and can't be done.

Well, you'd hope that'd be the case. But plenty of reports I've read seem to suggest otherwise. I've read them myself thinking "eh? They surely realise the ECB's hands are tied... don't they?" but the text in front of me suggests otherwise. Maybe it's just writers sensationalising things - that's about the only other conclusion I could come to.

I doubt it very much. And if they do, the ECB should tell the BCCI where to stick it. And if the ECB don't do that, well that's the ECB's issue, not Sussex's.

How all this adds up to what you've perceived to be a "lack of common-sense" on the part of Sussex is, I'm afraid, beyond me.

The ECB are not in a position to be telling the BCCI to stick anything. They are, I hope, as I say above, in a position to make it clear their hands are tied. But reports suggest that the BCCI are barely willing to accept this.

If whoever at Sussex who was responsible for signing Mohammad Sami had any thought for the greater good of the English game, they'd have reconsidered, IMO. You cannot divorce Sussex from the ECB - Sussex need to help the ECB, as they need the ECB to help them.

As for Sami's merits as a bowler, I have an open mind (try it some time!) and am prepared to wait and see.

I have an open mind too - where there is sufficiently little evidence for my mind to have been made-up. However, I know for certain Sami is a hopeless bowler. That doesn't mean it's impossible for him to bowl well for Sussex for a couple of weeks - of course it is. But I have to come to the conclusion that this is far less likely than more, and hence if I had the choice between Sami and a whole multitude of others, he'd be one of the last I'd choose.

 

[zaremba]

The Mushtaq et al contracts had already been signed though, had they not? If someone from the ECB has a quiet word with county chairmen, and says "if you want to continue to receive your grants, you will not offer any new contracts to overseas cricketers who've played in the ICL" there's surely no restraint-of-trade law that can make an impact?

Well that depends. If a county then wanted to break ranks from this cartel, it could do so and claim that the agreement reached between the ECB and fellow-counties was an unlawful restraint of trade. In any event I don't think that the ECB ought to be engaging in nod-and-a-wink skullduggery.

I had the choice between Sami and a whole multitude of others, he'd be one of the last I'd choose.

It's a question of who is on the market, and affordable. Sussex are (despite their great recent success) by no means a rich county. They have earned their success on the basis of shrewd and sometimes surprising choices. 3 championships in 5 years tells me to have a little bit of faith in their judgment of a player.

 

[fredfertang]

What happened to Spen Cama's millions Mr Z?

To be honest I thought Sussex were minted

 

[Richard]

Well that depends. If a county then wanted to break ranks from this cartel, it could do so and claim that the agreement reached between the ECB and fellow-counties was an unlawful restraint of trade. In any event I don't think that the ECB ought to be engaging in nod-and-a-wink skullduggery.

It's certainly not ideal. However it's been noted more than once that some laws cover people who really do not deserve this cover (the thief who breaks into a house and falls down the unlawful flight of stairs who can then sue the householders despite being far, far more in the wrong himself, for instance). If laws can be bent around by, well, nod-and-wink skullduggery, in order to stop them covering the backs of those who do not deserve it (ie, Subhash Chandra and Zee, proprietors of the ICL) then I see less wrong with it than might otherwise be the case.

Fully realising, of course, that a lawyer might well feel that every British law is 100% defensible and if it weren't then it would be changed.

It's a question of who is on the market, and affordable. Sussex are (despite their great recent success) by no means a rich county. They have earned their success on the basis of shrewd and sometimes surprising choices. 3 championships in 5 years tells me to have a little bit of faith in their judgment of a player.

As I say - we wait to see, but signing Sami always has the hallmarks of a recipe for disaster. If it doesn't turn-out that way - good guesswork lads. If it does - we (well, I) told you so lads.

 

[GIMH]

Rich, do you not think the ECB breaking the law in that way would be worse than upsetting the BCCI as they would be putting themselves, as an establishment, at risk.

Not to say I'm naive enough to think no shady practice ever goes on there though

 

[zaremba]

It's certainly not ideal. However it's been noted more than once that some laws cover people who really do not deserve this cover (the thief who breaks into a house and falls down the unlawful flight of stairs who can then sue the householders despite being far, far more in the wrong himself, for instance). If laws can be bent around by, well, nod-and-wink skullduggery, in order to stop them covering the backs of those who do not deserve it (ie, Subhash Chandra and Zee, proprietors of the ICL) then I see less wrong with it than might otherwise be the case.

Fully realising, of course, that a lawyer might well feel that every British law is 100% defensible and if it weren't then it would be changed.

As I say - we wait to see, but signing Sami always has the hallmarks of a recipe for disaster. If it doesn't turn-out that way - good guesswork lads. If it does - we (well, I) told you so lads.

If it succeeds, it's guesswork. If it fails, it's your good judgment. Your arrogance is sometimes deeply entertaining, and I take my hat off to you for it.

 

[Richard]

Rich, do you not think the ECB breaking the law in that way would be worse than upsetting the BCCI as they would be putting themselves, as an establishment, at risk.

Not to say I'm naive enough to think no shady practice ever goes on there though

There's risk whichever way you go - you simply have to assess which is the greater. I'm not privvy to all the important information, so for all I know the solution I'm advocating might indeed not be the best one. From what I do know, though, it seems to be that way.

 

[zaremba]

However it's been noted more than once that some laws cover people who really do not deserve this cover (the thief who breaks into a house and falls down the unlawful flight of stairs who can then sue the householders despite being far, far more in the wrong himself, for instance).

The point of the restraint of trade law is to allow professionals to ply their trade freely and to use their skills to earn money wherever they lawfully can. And not to be restricted in doing so by (among other things) deals between cartels of employers. For me, that's not a law that our sport's governing bodies should be trying to "bend" or avoid.

I'm surprised that you think that burglars and their rights provide much illumination to the subject.

 

[Richard]

If it succeeds, it's guesswork. If it fails, it's your good judgment. Your arrogance is sometimes deeply entertaining, and I take my hat off to you for it.

Come on!? What else is it but guesswork if you're going for a player who's a proven failure?

Perhaps "taking a punt" would be more acceptable terminology, though essentially it's the same thing. You would surely not deny that signing a bowler with as dubious a record as Sami is indeed taking a punt?

 

[Goughy]

While the restraint of trade law applying here is perfectly fine when someone is under existing contract, there is (I presume - you might be able to offer some interesting insight here) nothing that can be done to force people to offer contracts to anyone. And therefore it disappoints me when counties do offer ICL players contracts after their superiors' (ie, the ECB - who keep them solvent) position on that league has been made clear.

Hmm, would seem a pretty straight foward case of collusion.

Ie if the counties got together and decided not to offer contracts to ICL players then they are in deep poop.

 

[GIMH]

My opinions on the ICL are well-documented. For example, if the England selectors wanted to give Chris Read a crack (unlikely anyway) then they shouldn't have their selection policy dictated by the BCCI. No, **** that.

 

[Richard]

The point of the restraint of trade law is to allow professionals to ply their trade freely and to use their skills to earn money wherever they lawfully can. And not to be restricted in doing so by (among other things) deals between cartels of employers. For me, that's not a law that our sport's governing bodies should be trying to "bend" or avoid.

I'm surprised that you think that burglars and their rights provide much illumination to the subject.

The point is, the law places the need of the individual above the need of the game. Under all circumstances. Even if it's best for the game to try to outlaw the ICL, if players are prevented from earning because of this, the law views this as wrong.

Ethically, this may indeed be a defensible position - the game of cricket is not a human-being with feelings, so therefore you could indeed argue that one player's ability to earn is more important. Leaving aside for a minute the fact that many other human beings do, whether they realise it or not, depend on the health of the game in order to earn, as will many millions in the future.

However, all principles of cricket have put the game above the individual. Situations which pit restraint of trade law against the historic principles of the game will always come out with awkward conclusions.

 

[fredfertang]

I believe there is the possibility of claiming unfair dismissal on the non-renewal of an expired fixed-term contract? Bishen Bedi springs to mind

And to not offer employment to ICL players might cause problems with indirect racial discrimination might it not?

 

[Richard]

Hmm, would seem a pretty straight foward case of collusion.

Ie if the counties got together and decided not to offer contracts to ICL players then they are in deep poop.

Why? Surely there can be no one individual (talking overseas players here) who can offer a shred of evidence that they would have been offered a deal and have now not been because of their ICL connections.

For British players, the situation might be different.

 

[GIMH]

Is there really any point getting rid of the overseas ICL players, though, if there are still going to be English players and Kolpaks?

Kolpaks might be on the way, admittedly

 

[zaremba]

Come on!? What else is it but guesswork if you're going for a player who's a proven failure?

Perhaps "taking a punt" would be more acceptable terminology, though essentially it's the same thing. You would surely not deny that signing a bowler with as dubious a record as Sami is indeed taking a punt?

There is certainly a bit of punt about it. But as I say I'm open-minded about it. Guesswork is wide of the mark because there are strong and important Sussex-Pak links in place. The big issues will have been properly explored - How's his fitness? What's his motivation for playing? How's he bowling? I think you can take it that if he's a success, it's more than guesswork, even though the county has dared to take a different view from you

 

[Goughy]

Why? Surely there can be no one individual (talking overseas players here) who can offer a shred of evidence that they would have been offered a deal and have now not been because of their ICL connections.

For British players, the situation might be different.

Well once an investigation takes place, employees are questioned and execs put on the stand there would be no shortage of evidence.

What you are asking (ie collusion) is illegal and everyone in cricketing circles would know about it.

 

[Richard]

Is there really any point getting rid of the overseas ICL players, though, if there are still going to be English players and Kolpaks?

Kolpaks might be on the way, admittedly

Only 4(?) English players playing in the ICL - Read, Solanki, Nixon, Maddy.

 

[GIMH]

All have played internationals not that long ago, interestingly, or perhaps irrelevantly

 

[Richard]

Well once an investigation takes place, employees are questioned and execs put on the stand there would be no shortage of evidence.

What you are asking (ie collusion) is illegal and everyone in cricketing circles would know about it.

The point would be that the wider community need not know about it, and no investigation need be called by anyone.

Obviously if it was something that emerged into the open it'd be a recipe for disaster.