Independent Regulators in Sport: English Cricket

England’s underwhelming performance in the recently concluded men’s Cricket World Cup is not English cricket’s only concern. Off the pitch, the domestic game is experiencing a turbulent phase, including an enquiry into allegations of institutional racism at Yorkshire County Cricket Club (see our previous post) and other county clubs. 

Such allegations, together with global movements including ‘Black Lives Matter’ and ‘Me Too’, prompted the England and Wales Cricket Board (ECB) to establish the Independent Commission for Equity in Cricket (ICEC) in March 2021 “to assist the [ECB] in assessing the evidence of inequalities and discrimination of all forms within cricket, and the actions needed to tackle these issues.”

One of the ICEC’s key recommendations was the establishment of an independent regulator for cricket in England and Wales (Cricket Regulator). At a time when the UK Government has announced that it will put forward legislation in 2024 for the establishment of an independent football regulator, this post  explores the ICEC’s recommendations and the recent establishment of the Cricket Regulator.

ICEC report

In June 2023, the ICEC issued its detailed report, Holding up a Mirror to Cricket, on different aspects of cricket in England. In the ICEC’s opinion, “the ECB’s dual roles of promoter and regulator have the potential to give rise to conflicts of interest that are irreconcilable under the game’s current and proposed regulatory and compliance structure”. The ICEC recommended (among other things) that:

• There should be a single set of regulations and non-regulatory standards which apply across both professional and recreational cricket, made by the ECB (Recommendation 23)
• A new regulatory body should be established, independent from the ECB. The new regulatory body, not the ECB, should be responsible for investigating alleged regulatory breaches and for making decisions about whether to bring charges (Recommendation 22)
• The sanctions available to the Cricket Discipline Commission (CDC) should be strengthened, including the power to suspend or cancel the right to host high profile matches (Recommendation 32)
• The ECB and the wider game should put in place processes to ensure that complaints can be raised and addressed by informal (as well as formal) means, including through mediation before or after a formal process has started (Recommendation 34).

ECB’s response and the Cricket Regulator

In its response to the ICEC report, the ECB agreed with the recommendation relating to the establishment of a new independent regulator and, on 4 December 2023, the ECB announced the launch of the Cricket Regulator. The key features of the Cricket Regulator are as follows:

• It will be overseen by a new, independent Cricket Regulatory Board and ring-fenced from the rest of the ECB, with no line management from those within the Cricket Regulator to the ECB.
• Members of the current ECB Regulatory Committee have become the first Board members of the Cricket Regulatory Board.
• Areas of work that were once part of the ECB’s remit will now sit with the Cricket Regulator, including safeguarding, integrity (anti-corruption, misconduct and anti-doping) and anti-discrimination.
• When a case is brought to the Cricket Regulator, the Cricket Regulator will undertake an investigation before deciding whether there is sufficient evidence to put the case to the CDC. The CDC will be re-purposed as the Cricket Discipline Panel in 2024.
• Each year an independent assurance process will be carried out – by a body such as Sport Resolutions – to confirm that there has been no involvement in regulatory cases handled by the Cricket Regulator by ECB personnel outside of the Cricket Regulator.

Comment

The launch of the Cricket Regulator is a significant step by the ECB towards: (i) addressing the recent controversies and governance issues surrounding English cricket; and (ii) responding swiftly to the unequivocal recommendation of the ICEC to create an independent regulator for cricket. However, the ECB’s response to the ICEC’s other key governance recommendations has created a corridor of uncertainty. For example, the ECB has only confirmed that it is considering the recommendation to strengthen the sanctions available to the CDC. 

It is also unclear the extent to which the ECB will adopt a single set of regulations and non-regulatory standards applicable across professional and recreational cricket, with the ECB to date only confirming that it will distinguish between regulations and non-regulatory rules. 

The detail of the governance and disciplinary role of the Cricket Regulator also remains to be articulated, although its website is due to launch in 2024, at which point we would expect to see more detail concerning its role, powers and governance. Time will tell whether the clear separation between the ECB, with responsibility for making regulations, and an independent regulator, responsible for their enforcement (including the power to investigate complaints about the ECB itself), as recommended by the ICEC, will be realised. 

In this context, it is significant that, in the face of the stated intention by the UK Government to establish an independent regulator of football with statutory underpinning, the ICEC report considered the question of statutory regulation but concluded that statutory intervention would take too long and risk distancing cricket’s leaders from their responsibilities in this area. However, the report also noted that, if English cricket did not take significant action to bring about swift change, government intervention may be the most appropriate next step. The ICEC confirmed in September that it is considering the ECB’s response to its recommendations and will share its view with the DCMS Select Committee in due course. There is therefore little doubt that the progress made by the ECB and the Cricket Regulator will be closely scrutinised in the months and years to come.

Cricket and football are not the only sports in England in which independent regulation has recently been proposed. Premiership Rugby established a new and independent “sporting commission” earlier this year to provide independent monitoring of club finances. More on this soon.

Benja Arnott and Ali Amerjee would like to thank Connor McNamara and Alan Zheng for their assistance in the preparation of this post.

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