Stumped by Social Media: can cricketers be suspended for historic Tweets?

In the social media age, it has become clear that scorecards, player statistics and scouting reports aren’t the only indicators being monitored by the England and Wales Cricket Board (ECB). Cricketers’ social media posts are also under scrutiny. When the historic Tweets of one England men’s cricketer (Cricketer A) came to light during a test match last year, he unreservedly apologised. But the ECB was equally quick to suspend him from international cricket as a first step, “pending the outcome of a disciplinary investigation”. The case was accordingly sent to the ECB’s Cricket Discipline Commission (CDC). 

The CDC also recently sanctioned another county cricketer (Cricketer B) for historic offensive Tweets posted between 2011 and 2013. Cricketer B was fined £1,500 and will serve an immediate one-match ban with the other four matches suspended for a two-year period from the date of his hearing. The opening of these investigations begs an interesting legal question: can the ECB suspend cricketers for historic social media transgressions, some of which date back several years? The answer to this question involves an analysis of a combination of the CDC’s recent decision relating to Cricketer A and the ECB’s rules and regulations in this context. 

The ECB’s rules and regulations governing cricketers 

The ECB oversees the implementation of – and compliance with – numerous regulations governing the qualification, registration and conduct of players playing in tournaments within England & Wales  and representing the English national team in international fixtures. The 2020 ECB Regulations Governing the Qualification and Registration of Cricketers (the Regulations) require players to sign a declaration which provides that the relevant player will abide by all of the ECB’s rules, regulations, codes and directives, including the ECB’s Directives and Anti-Discrimination Code (the Code). The suspension of Cricketer A was based on a potential breach of the Directives and the Code. 

The Disciplinary Panel’s Decision

The CDC’s decision analyses the approach to the sanctions on Cricketer A for his 14 historic Tweets posted between 2012 and 2014 that were seemingly of a discriminatory nature (and accepted as such by Cricketer A).

Breaches of the ECB’s regulations

The starting points for the CDC’s analysis were the two charges brought by the ECB, namely a breach of each of ECB Directives 3.3 and 3.4. These directives broadly relate to conduct prejudicial to the interests of cricket, conduct which may bring disrepute to the game of cricket and compliance with the ECB’s Anti-Discrimination Code. 

The ECB’s Anti-Discrimination Code provides that: 

“It will be a breach of this Code for any Participant to act in any manner, make any omission, or engage in any conduct, which (in the opinion of a reasonable person) does, or is likely to, offend, insult, humiliate, intimidate, threaten, disparage and/or vilify any person or group of people, based on, or by reference to, any Protected Characteristic.”*

Cricketer A admitted to both the above charges and made a verbal apology on the same day that the Tweets came to light. The three members of the disciplinary panel hearing the case (the Panel) held that the breaches were serious and aggravated by: (i) the breadth of their targets; (ii) the number of Tweets posted; and (iii) the period over which they were posted. 

Mitigating factors

The Panel also considered mitigating factors in the matter and in doing so, provided guidance on the legal implications of the historical nature of the Tweets. The Panel held that the Tweets were posted more than six and a half years before they came to light, when Cricketer A was “a young and immature man”, and acknowledged that there had been no similar conduct subsequently. However, the Panel noted that he was “nonetheless an adult at the time” the Tweets were posted. 

Interestingly, the Panel considered the time elapsed since the Tweets from the lens of a “mitigating factor” alone and not from a “limitation” perspective. Given that the time elapsed since the Tweets is more than the general limitation period of six years in English law for a contractual or tortious action, it is somewhat surprising that the Panel did not consider the prospect of limitation in more depth. 

Further, the Panel noted that the Tweets were posted before Cricketer A: (i) received “social media education” from the Players Cricket Association; and (ii) was a cricketer registered with the ECB. In doing so, the Panel – whether deliberately or otherwise – underscored that it had jurisdiction over Cricketer A’s actions even before he was registered with the ECB – alluding to a generous approach to its jurisdiction in the matter.

The Panel also received “compelling evidence” in the form of references from coaching staff at the player’s club and others in the “cricketing environment” which regarded him as a “thoughtful and well-respected person”. It was also the first disciplinary matter brought against Cricketer A. Accordingly, the Panel was satisfied that Cricketer A’s character was “far from the younger man” portrayed by the Tweets.

Other mitigating factors included the remorse shown by Cricketer A (exemplified by his public statement and admission of guilt) and the impact of the revelation of the Tweets on him (including his voluntary withdrawal from the selection for three county cricket matches).

The Decision

The Panel held that a suspension of eight matches would be appropriate given the seriousness of the charges against Cricketer A. But the Panel also took into account: (i) various mitigating factors (discussed above); (ii) Cricketer A’s suspension from the next scheduled test match for the England men’s team; and (iii) two T20 matches from which Cricketer A voluntarily withdrew himself. 

Accordingly, the Panel deducted these three matches from its proposed eight-match suspension, and held that the remaining five matches would be suspended for a period of two years. But if Cricketer A committed further serious breaches of cricketing regulations in this two-year period, the suspended five-match sanction would be brought back into operation. Accordingly, Cricketer A was free to play cricket immediately. 

Comment

The CDC’s decision effectively answers the question at the start of this article – the ECB has the power to sanction cricketers for historic social media posts which result in a breach of the Code. The CDC appears to have arrived at this conclusion notwithstanding the absence of its analysis on any limitation principles or express discussion of its jurisdiction over this matter.

It is worth noting that a breach of the Code may also trigger a breach of other applicable regulations, including obligations on a cricketer by virtue of his or her association with or employment by county cricket clubs. In light of the CDC’s decision relating to Cricketer A, alongside the ECB’s stated aim to tackle all forms of discrimination, cricketers will have to play with a straight bat off the field to avoid being stumped by social media  before their innings even begins. 

* As defined in the Equality Act 2020 from time to time. These characteristics include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

Sign up to SportingLinks for more dedicated legal opinion on topical issues in the sports sector.