Research & planning - assignments - for AT3 tribunal subs PDF

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Research & planning notes for AT3 submissions counsel for Bancroft...

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RESEARCH Bancroft arrived in Perth on 29 March 2018, and gave a press conference at the WACA. An emotional Bancroft expressed disappointment, regret and remorse, admitting that he had failed as a role model and in the eyes of the broader community, and that when confronted on the field by the umpires and media about his actions he panicked. He asked for forgiveness and said that he would be contributing back to the community. Responses to sanctions While no one contended that the charges and findings against Bancroft, Smith and Warner were not justified, many argued that the sanctions were unprecedented, and that there were flaws in the Cricket Australia (CA) description of the incident. Some did not separate the event—an attempt at ball tampering—from the wider charge brought against the trio of bringing the game into disrepute.

https://www.icc-cricket.com/news/650423 "I was sighted on the screen and that resulted in me shoving it down my trousers. Once I was sighted on the big screens I panicked quite a lot. I want to be here because I'm accountable for my actions. I've got to live with the consequences and the damage to my reputation." Guardian There is a poignant irony in the fact that Bancroft scored 77 assured runs, off 103 balls, in the very match when, in South Africa’s second innings, he was caught on camera using a piece of sandpaper to tamper with the ball. When he finally realised he had been rumbled he shoved the incriminating evidence down his underpants. It was a despairing act which could not save him or Australian cricket from ignominy. He and the two other named culprits (Warner and the captain Steve Smith) were justifiably punished for cheating but Bancroft nods gently when I say it seems a small private tragedy that he acted so stupidly just after he had found his way as a Test batsman. “In purely cricketing terms,” he admits, “it makes me feel a little shit. I was just settling and then, of course, it was lost.” It should be underlined that Bancroft accepts full responsibility for his actions. “That’s exactly what I was – lost,” he says quietly. “I was obviously disappointed because I’d let the team down and carried out an act that completely compromised my values. But it came down for me just when I was really improving at that level. It felt like I’d thrown a lot away. I hadn’t got a Test 100 yet but I felt I was on my way to achieving that, so I was extremely disappointed to give that up. But that’s how important that part of my life was then. I’ve come to learn that it is important but it doesn’t dictate my life in the same way.” Bancroft was so desperate to succeed as an Australian Test cricketer he was ready to do almost anything to feel valued by the other players. “Absolutely. I grew up idolising Test cricketers and that was a dream I wanted for me. Holding that so sacred to my heart made me a little naive and vulnerable to wanting to be embraced and a part of it all. At that point I hadn’t really grasped the concept that cricket’s just a game. Yes, you’re playing for Australia. Yes, it’s Test cricket. Yes, it’s something to be really proud of. But it is just a game. “I invested too much to the point where I lost control of my values. What had become important to me was being liked, being well valued, feeling really important to my teammates, like I was contributing something by using sandpaper on a cricket ball. That’s something I don’t think I even understood until that mistake happened. But it’s part of the journey and a hard lesson I needed to learn.” There is much to admire in Bancroft’s honesty but it also seems wrong that only Smith, Warner and he were blamed when others in the team must have known what was happening. At least some of the bowlers, surely, knew what he was doing? There is a long pause before Bancroft answers: “Yeah, look, all I wanted to do was to be responsible and accountable for my own actions and part. Yeah, obviously what I did benefits bowlers and the awareness around that, probably, is self-explanatory. I guess one thing I learnt through the journey

and being responsible is that’s where the buck stops [with Bancroft himself]. Had I had better awareness I would have made a much better decision.” I ask the question again. So some of the bowlers did know? Bancroft’s hesitation is even longer. “Uh … yeah, look, I think, yeah, I think it’s pretty probably selfexplanatory.” His answer shows his acute discomfort in implicating any of his teammates. It has been confirmed in public investigations that Warner asked Bancroft to rough up the ball by using sandpaper. Smith, as their captain, knew what they were planning and he did nothing to stop them. Each of the three men have suffered but the rest of the team have not admitted any prior knowledge of cheating. Bancroft does not name anyone and he is happier when explaining how he turned misery into a positive experience. During his nine-month ban, after he pulled himself out of depression, he took Spanish lessons, practised yoga and meditation and worked in Australia with a charity that supports children with cancer as part of his community service. “I threw myself into lots of different things that gave me perspective on life. I remember being in Johannesburg waiting for my flight home. It was probably the only night in my life where I lay in bed and couldn’t sleep the whole night, literally eyes to the ceiling, and that was a really difficult experience for me. It showed how impactful it had been on me. Our sports psych at the Waca told me straightaway it was about how we rebuild and look after my wellbeing, and then find some purpose and move forward. That first month was pretty flattening but it was also proactive – and it needed to be otherwise I’d be stuck in the past all the time.” Has Bancroft, who is 28, grown as a person? “Yes. It doesn’t condone, whatsoever, the mistake I made but in terms of all I’ve learned about myself and life, I’m almost grateful for the mistake in a way. It’s been an interesting journey and I wouldn’t change it for the world. It changed me and I’ve become the person I am today. It’s also taught me to deal with the anxiety and disappointment that comes with cricket and everyday life. There are always going to be challenges. It’s how you’re able to stay as balanced as possible when that happens.” In August 2019, after a successful English summer with Durham, Bancroft’s equilibrium and resolve meant he was called back into the Australian Test team for the first two Ashes Tests at Edgbaston and Lord’s. “I was proud of that. I would have loved it to have been a bit more of a fairytale. You do amazingly well, score hundreds and stay in the team. But it wasn’t to be.” Bancroft scored 44 runs in four innings, while he was ritually abused by the English crowd, before being dropped. He also struggled the following Australian summer. After averaging just 13 in state cricket, he was also dropped by Western Australia in early 2020. His response in the season which has just finished has been impressive. He averaged 48.42 and was named in the Sheffield Shield team of the year. The sun is out while Bancroft talks to me at an event with Vertu Motors, an official partner of Durham Cricket. His focus is firmly on Durham where, in his first season with the county in 2019, he hit 726 runs and averaged 45.37. That form propelled him back into the Test team and should he do the same again this English summer he has a real chance as only three front-line specialist batsmen – Smith, Warner and Marnus Labuschagne – have been granted red-ball contracts by Cricket Australia. His first game for Durham will be next week and he suggests how at home he feels. “Being up here in the north-east you’re so far away from everyone else and I understand that – being from Western Australia. It can build great camaraderie and I think I can complement that really well.” Bancroft regards Justin Langer, Australia’s head coach, as his mentor. He even pasted a poster of Langer on his bedroom wall when he was a boy, and their close relationship will not hurt his chances of another Test comeback – possibly in the Ashes in Australia later this year. “That’s a goal and a door I haven’t shut for myself. But it’s also something I’m not mentally stressing about and obsessing about either. If I’m in the right place, scoring runs, doing what I enjoy doing, I’m sure there’ll be another opportunity for me.”

Bancroft smiles when asked if he feels more equipped now to cope with Test cricket? “It’s hard to say. I’ll do the best I can. That’s the thing about cricket – you fail more often than you do well. I’ve failed a hell of a lot in the game but if I get that chance again then I hope I’m able to improve on how I did previously. That’s all I can ask for from myself.” Tamper the play in it  S According to articles 2.2.9 and 42.3 in the laws of cricket (sections concerning the alteration of the condition of the ball in the International Cricket Council’s formal ‘Code of Conduct’), the bowler and fielders are permitted to clean and polish the ball, sustaining its shine. They are prohibited, however, from using any other aids apart from bodily fluids – sweat, spit – and their own clothing (ICC 2017). One side of the ball is polished and carefully maintained, while the other is allowed (or caused) to deteriorate, therefore creating increased drag - ‘turbulent flow’ - on that side during its movement through the air as it travels along the line of the seam; in this way, the friction on the rougher hemisphere produces a bending of the line of flight – the swerving movement of a ‘curve-ball’. ‘Ball tampering’ is a term that refers to illegitimate means of gaining advantage by accelerating the deterioration of the condition of the ball, thereby unfairly interfering with the ‘orderly’ aerodynamics and legibility of its trajectory, and increasing swerve and unpredictability. So tampering involves deception, simulation and disguise, discreetly and necessarily concealed within a performed and illusory pretense of playing by the rules and ‘playing the game’, while incrementally introducing a kind of sinister deviation in the predictable and orderly, a swerve of difference in repetition. Two months after submitting this text for publication, ball tampering briefly became the focus of the international media, and triggered the performance of a great deal of indignant moral outrage, as if the fact that such tactics could be at play within the game of cricket was the most unforeseen and alarming of revelations. During the third test match between South Africa and Australia in Cape Town in March 2018, television cameras and live-feed monitors in the stadium picked up Australia’s Cameron Bancroft rubbing the ball with a mysterious yellow object that he then concealed, with comically inept sleight-of-hand, down the front of his trousers. Approached by the umpires, Bancroft showed them a dark-grey sunglass pouch from his side pocket, and no penalty was imposed at that time. However the close-up images of Bancroft’s actions had been widely disseminated, and the heightened media attention prompted an immediate investigation. Subsequently Bancroft and Australia’s captain, Steve Smith, admitted that in fact there had been an attempt to interfere with the ball’s condition, using sand paper as an abrasive tool, and that the tampering plan had been hatched during a lunch break by a ‘leadership group’ within the Australian camp. Formally charged with improper conduct by the ICC, Smith and Bancroft were heavily fined. In the wake of the players’ admission, the Australian Prime Minister, Malcolm Turnbull (‘it beggars belief’), and a range of international commentators publicly condemned the players’ actions, and a formal investigation was undertaken by Cricket Australia. Ultimately Smith, Bancroft and David Warner, the Australian vicecaptain (a notoriously aggressive competitor, and the apparent instigator of the tampering plan) were found guilty of cheating, lying and bringing the game into disrepute; they were sanctioned with lengthy bans from all international and domestic cricket. In addition, the Australian coach, Darren Lehmann, resigned. On their return to Australia, all three beleaguered players gave tearfully apologetic press conferences to the international media, in which they spoke of their shame, their failure as ‘men’, ‘leaders’ and ‘role models’, and their commitment to forthcoming reviews of the team’s culture and the conduct of professional sportsmen. Psychology plays its innings Perhaps, tampering the cricket ball to extract enhanced reverse swing, although argued for being a relatively lower level offence, fits best into the definition of “cheating,” which is a “deceptive behavior intended to break the rules and make illegitimate gains.”[1] Apart from match and spot fixing, where players are bribed mostly to underperform, resorting to illegitimate means or cheating is driven by an

ultimate motive to win. The modern sport in general, not limited to any particular sport or team or individual, has been criticized for their “winning at all cost” attitude.[2] Perhaps, this attitude has been termed as “popular mythology” that is ruining the modern sports.[2,3] The Australian “win at all cost” attitude has been blamed, by the sports and telecast media, as being the primary motivation behind the index “sandpaper‐gate” cheating saga. Consider the confessions made by Steven Smith and Cameron Bancroft immediately after the incident (on the 3rd day of the test match) and the ones that came about 5 days later. A distinction is very much evident, isn’t it? Social psychology literature (although not directly related to sports) suggests that improper timing of an apology, i.e., immediately after a transgression, invokes suspicion and raises questions about its sincerity.[17,18] Results from experimental studies that used hypothetical situations have also shown that later apologies were more effective and that this was mediated by a feeling of being heard and being understood.[14] The later (emotion fueled) apologetic confessions that came after a strict ban being imposed on them seem to be an attempt to convert a relatively retributive punishment (where punishment is proportionate to crime) to a restorative one (where offenders are encouraged to take responsibility for their actions and to repair the harm they have done) [19] and a plead for forgiveness, not just from fans and fraternity, but also from authorities. Considering that the offence has been committed against “cricket” and not just the opponent team, arguably, a retributive punishment is a popular choice. However, should they agree to become the emissaries of something like the GUBOG approach in cricket, a restorative judgment may well be considered. Beyond the boundary The official rules of cricket declare anything other than polishing or cleaning of the ball to be illegal, yet some actions, which are difficult to detect, such as mixing the stickiness of a sweet into saliva are believed to occur on a regular basis. It seems reasonable to say that the more ‘foreign’ the object used is to the field of play, the more deviant the act of ball tampering in question will be adjudged. This is a key factor in the reaction against the Australian players in 2018. While sandpaper is an item that some players may keep in their kit for the purpose of using to smooth a rough patch on their bat, it has no reason to be customarily on the playing field and certainly not in the possession of the non-batting team. That Australian players initially said that adhesive tape (an item a fielding player may well have in their possession during the game) had been used to rub dirt onto one side of the ball, indicates their awareness that an admission to the use of sandpaper would result in a harsher response. The lie about the sandpaper, as well as the premeditated and planned nature of the ball tampering also heightened the opprobrium that ultimately came to bear on the three Australian players identified as perpetrators. For example, former Australian captain Michael Clarke emphasized premeditation being the most unacceptable aspect of the wrongdoing (Majumdar, 2018). . Bancroft was the only player known to have actually tampered with the ball. He was captured on television footage appearing to rub a yellowish coloured item in the shape of a small strip of paper on the ball and then placing that same item down the front of his trousers. When questioned by umpires during the game about his actions, Bancroft denied that there had been any wrongdoing. However, in a subsequent press conference after the day’s play, Bancroft, in the company of Smith, admitted that he had attempted to scuff the surface of the ball with dirt and grit, administered by a piece of adhesive tape. Smith admitted that Bancroft enacted a plan that had been devised during the lunch break by the ‘leadership group’ within the Australian team. While acknowledging that such an error was a misjudged piece of games- manship, Smith claimed it had no impact on the game and saw no reason as to why he should stand down as captain or for follow-up administrative penalties to apply. It was not until a few days later, following an investigation by Cricket Australia (CA) that the item used in the ball tampering was identified as sandpaper rather than adhesive tape. During this process, vicecaptain Warner was identified as the architect of the plan and as being responsible for tutoring Bancroft on the craft of roughing the ball with the illicit item (Barrett, 2018a). Smith’s involvement was in knowing about the plan but ignoring his captaincy responsibility to stop it happening. Smith, as captain, was also the main guilty party in misleading the public, via press coverage, regarding the nature of the item used (ABC News, 2018). The CA investigation also found that no other players in the team, nor the Australian coach, Darren Lehmann, had knowledge of the plan. Subsequent

discussion within the press and associated cricket punditry has questioned that such a plan of action could have been confined to just three players within a dressing room environment (Dore, 2018). CA’s next line of response, following from that noted above, was to replace Smith as captain for the rest of the Cape Town Test match with wicket-keeper Tim Paine and to strip Warner of the vice captaincy, but this was soon followed by a decision to withdraw Smith, Warner and Bancroft from the tour entirely and to have three additional players replace them in the squad. Harsher penalties for the dismissed players were then decided by CA on 28 March 2018. Each was charged with breaching article 2.3.5 of CA’s Code of Conduct concerned with the responsibility of a national representative player to uphold ‘the spirit of the game’, to not act in a way ‘harmful to the interests of the game’ or to ‘bring the game into disrepute’. Smith received a playing suspension of one year from ‘international and domestic cricket’ and a suspension of one year from being considered eligible for captaincy and related positions following the conclusion of his playing suspension. Warner received an identical playing suspension to Smith, but also an effective life ban from ever again holding a leadership position within international or domestic cricket. Bancroft received a nine-month playing suspension from all forms of international and domestic cricket and an identical penalty to Smith in regard to holding team leadership positions (Barrett, 2018b).2 Each player was given the opportunity to appeal the penalties, but despite speculation in the media that they might do so all three accepted the verdicts without protest (Sports Staff, 2018). Based on precedent regarding ball tampering, the penalties were undoubtedly stiff, as noted by a number of former international players in media commentary roles. Indeed, the penalties seem more appropriately regarded as a response to the public outcry than being commensurate to the actual cheating within the context of cricket (Levi, 2018). However, the penalties may well have now set a new standard in how future ball tampering will be adjudicated. Sandpaper and the ‘spirit of the game’ The sternness of the penalties applied to Smith, Warner and Bancroft are indicative of a moral outrage against their acti...