Howzat! Will South Africa stump Australia before the ICC?

Cricket patrons might have been expecting to read about the next on-field epic between these cricketing rivals. But here’s the googly. This post discusses another type of battle between two cricket titans – South Africa and Australia – off the pitch and potentially in arbitration. Both the South African and Australian men’s cricket teams were vying for a spot in the sport’s inaugural World Test Championship (WTC) final, due to take place in England in June 2021. The stage to qualify for the final was set – the Australians were to fly to South Africa for a three-test match series showdown in March 2021. But Covid-19 claimed yet another sporting event as its victim. On 2 February 2021, Cricket Australia (CA) announced its withdrawal from the South Africa tour.

A sticky wicket: the dispute

CA claimed that the Covid-19 situation in South Africa left it with "no choice" but to reschedule travel plans due to the "unacceptable level of health and safety risk". Consequently, Cricket South Africa (CSA) wrote to the world cricket’s governing body – International Cricket Council (ICC) requesting it to consider the reasonableness of CA's decision to cancel the tour and has since lodged a formal complaint with the Dispute Resolution Committee (DRC) of the ICC.

While CSA’s complaint to the ICC is not publicly available, it is likely in the form of a written “notice of dispute”, as defined in paragraph 6 of the DRC’s Terms of Reference (TOR). Parties have 45 days from the date of the notice to resolve the dispute through mandatory good faith negotiations (TOR, paragraph 6.3). As of the date of this post, that negotiation period is ongoing.

Pitch report: views from either side of the Indian Ocean

Australia bat first

CA withdrew from the tour for the following reasons: (i) South Africa was experiencing a peak of Covid infections with a more virulent strain of the virus; (ii) concerns that Australian players might be stranded in South Africa in case of any infections; and (iii) CA’s decision not to travel to South Africa was based on “overwhelming medical advice”.

The South African response

It appears that CSA is invoking terms in both the WTC and ICC Future Tours and Programme (FTP) agreements, to claim points on the WTC table and financial compensation from CA. CSA asserts, among other contentions, that: (i) CA's cancellation did not comply with WTC terms; (ii) the ICC is required to obtain independent reports on the health situation in South Africa from health experts in South Africa, to determine if Australia breached WTC terms; (iii) South Africa was on a very significant downward trajectory of the pandemic when CA’s decision was taken; and (iv) CSA committed to importing an Australian tracking system at great cost to ensure proper tracking of close contacts in the event of a positive Covid test.

CSA also rejected CA’s offer to play the scheduled Test series in Australia or at a neutral venue, such as in the UAE.

Precedents of the DRC – availability of the Government Approval Exemption

This is not the first time the ICC’s DRC has been involved in a dispute over a cancelled series. In the past, parties have relied on a force majeure clause in the FTP agreement which provided that non-compliance with the master FTP schedule would be acceptable for reasons including the non-grant of a government approval (Government Approval Exemption).

Pakistan Cricket Board v Board of Control for Cricket in India (BCCI) - 2018

Pakistan’s cricket body argued that the BCCI breached an alleged agreement that involved the BCCI ensuring that India toured Pakistan for matches in 2014 and 2015. Accordingly, it claimed damages for approximately USD 63m from the BCCI. However, the ICC’s DRC held that Pakistan’s claim failed and that there was no such obligation on the BCCI — primarily on the basis that there was no binding agreement between the parties (ICC DRC – Award (November 2018), paragraph 43).

The DRC acknowledged the BCCI’s submissions on the Government Approval Exemption relating to political relations between India and Pakistan at the time, and the resulting refusal of permission from the Government of India. However, in light of the DRC’s finding that there was no binding agreement between the parties, its panel held that the question pertaining to government approval remained moot. Nevertheless, in the present case, CA may find the tribunal’s analysis relating to the availability of the Government Approval Exemption useful.

Zimbabwe v Australia - 2007

Similarly, the Australian government’s decision to cancel its cricket team’s scheduled tour of Zimbabwe in 2007 was considered acceptable non-compliance by the ICC* on the basis of the Government Approval Exemption in the FTP agreement.

Next steps – the follow-on

If the dispute is not resolved through negotiations in good faith between CA and CSA within the 45-day time period, it will be referred to the DRC. The DRC will then convene a three-member dispute panel to hear and determine the dispute. The Dispute Panel will operate as an arbitral tribunal and any proceedings will be governed by English law with a seat in London, England. English courts will have exclusive jurisdiction over any disputes arising out of proceedings from the Dispute Panel.

Bruised Proteas – more than a matter of pride

CSA has faced a tumultuous two-year period marked by significant corporate governance failures which the interim board has sought to redress. It is uncertain whether the dispute between CSA and CA will be resolved by good faith negotiations or at the next stage of the process, namely arbitration. CSA’s interim board chairman has himself stated that CSA does not know “what the prospects of success are because there are provisions in the rules that relate to Covid for postponements to take place”. In the meantime, the finalists for the WTC have also been determined – India and New Zealand. This may well have an impact on the vigour with which CSA seeks to pursue a claim for WTC points.

However, given CSA's adverse financial position and that CSA’s costs and losses from the tour cancellation will run into millions of South African Rand, it is likely that CSA will press for the full resolution of the dispute and prepare for a fervent appeal before any arbitral tribunal constituted. Howzat!

*Based on press reports. The ICC’s award for this matter does not appear to be publicly available.

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