Western Australian Cricket Association v Murray Goodwin
- On 12 October 2003 the Western Australian Cricket Association (‘WACA’) lodged a complaint pursuant to Cricket Australia’s Code of Behaviour (‘the Code of Behaviour’) in respect of certain comments allegedly made by Mr Murray Goodwin who is a prominent cricketer having previously had a distinguished international career for Zimbabwe and currently a member of the Western Australian Cricket side.
- The charge laid against Mr Goodwin by the WACA was for a breach of Rule 9 of Section 1 of the Code of Behaviour. Rule 9 is in the following form:-“Without limiting any other Rule, players and officials must not make public or media comment which is detrimental to the interests of the game.”
- The guidelines which form part of the Code of Behaviour indicate that players and officials will breach this Rule if by making any public or media comment they:-
“- Publicly denigrate another player or publicly denigrate or criticise an …. official …. or team against which they have played or will play, whether in relation to incidents which occurred in the match or otherwise ….
- Denigrate another player or official by inappropriately commenting on any aspect of his or her performance, abilities or characteristics …. “
- Subsequent to the laying of the charge, the WACA gave detailed particulars of the charge. It is unnecessary to refer to the detailed particulars of the charge. It is sufficient to summarise the charge against Mr Goodwin in this fashion. During a series of interviews on 7 and 8 October 2003 to various media sources, Mr Goodwin made comments which suggested that players were chosen for the Zimbabweian Test Cricket Team otherwise than on pure ability. He suggested that race played a part in such selection.
- Following several directions hearings by tele-conference a hearing of the matter was scheduled for Saturday 1 November 2003. On Friday 31st October 2003 I was advised that Mr Goodwin intended to plead guilty to the charge and I was requested, accordingly, only to adjudicate on the question of penalty.
- This course of action was one which was agreed by both parties to the matter, namely the WACA and Mr Goodwin who was very ably represented by Mr Ron Birmingham QC.
- The parties have asked me to determine the question of penalty, if I regard this course as appropriate, in the light of a signed statement made by Mr Murray Goodwin dated 30 October 2003 and a written submission made on behalf of the WACA dated 31 October 2003. I attach hereto copies of each of those documents.
- It is apparent from Mr Goodwin’s Statement that he acknowledges making the comments attributed by the WACA and acknowledges that they constituted a contravention of the Code of Behaviour. That Statement also makes plain, in my mind, Mr Goodwin’s sincere regret for making statements which, on any view of it, were ill-timed, potentially harmful to the interests of cricket and otherwise inappropriate.
- Mr Goodwin is, in my view, to be commended for acknowledging his mistake in making the comments and expressing such contrition which I believe is totally genuine.
- It is pleasing also that the WACA, which properly made this complaint, has given due weight to Mr Goodwin’s Statement.
- In the WACA’s submission, it urges me to take account of Mr Goodwin’s ‘genuine contrition’ and that submission urges me ‘strongly’ to issue no more than a reprimand with respect to Mr Goodwin’s conduct.
- It is not, of course, my function to simply rubber stamp an agreement between the parties to a complaint as to the appropriate penalty for a breach of the Code of Behaviour. Such a course would be completely contrary to the letter and spirit of the Code of Behaviour. It is a role of the Commissioner for the Code of Behaviour to determine what is the appropriate penalty for a breach of the Code irrespective of the wishes or views of the parties. Nevertheless, in my opinion, the views of the parties are a significant factor to have regard to in considering an appropriate penalty.
- Mr Goodwin’s plea of guilty to the charge relieves me of the obligation of adjudicating upon whether there was, in fact, a breach of the Code of Behaviour. Having said that, I should indicate that, on the materials which I have seen, Mr Goodwin’s decision to plead guilty to the charge was appropriate. That is not to say that I may not have come to a different conclusion upon having heard all the evidence. In particular, however, I note that there is no material before me to suggest, one way or the other, whether the comments made by Mr Goodwin are in fact accurate or reflect the true state of affairs in respect of Zimbabweian selection policies. Further, I expressly make no comment on whether or not, upon a proper construction of the Code of Behaviour, truth would be a defence to a charge under Rule 9 of the Code of Behaviour. It suffices to say that the Code of Behaviour, in my view, contractually binds players who participate in competitions under the auspices of Cricket Australia. Notions of freedom of speech which may otherwise be in vogue pursuant to the common law can, of course, be limited or restricted by the contractual agreement of parties. The Code of Behaviour, in my view, is such a contractual limitation. Cricketers who wish to enjoy the benefits of playing in competitions conducted under the auspices of Cricket Australia must also be prepared to incur the obligations which are imposed by the contractual arrangements to which they agree.
- As a result of a number of well publicised incidents in the past 12 months, the Code of Behaviour has been considerably revised to reflect and enhance the Spirit of Cricket. As I understand it, all players playing in elite competitions under the auspices of Cricket Australia have been fully briefed upon the new requirements under the Code of Behaviour. I infer that Mr Goodwin, at the time he made the comments attributed to him, had been the beneficiary of such a briefing.
- That is a matter of concern for me because, as I apprehend it, the revised Code of Behaviour is intended to not only sanction a player for a breach of it but also to deter future breaches not only by the player concerned but also by others. Ordinarily, in my view, that may mean that a less sympathetic approach to breaches of the Code of Behaviour should be taken now than has hitherto been the case. In saying this, of course, I am not seeking to prejudge any future breaches of the Code of Behaviour, rather I am seeking to state my impression of the purpose and intention of the revisions to the Code.
- Under Section 5 Rule 2 of the Code I am obliged to apply one or more of the following penalties to a breach of Section 9 of Section 1 of the Code of Behaviour:-
- Ban the person from participating in any match;
- …..
- Fine the person an amount that accords with Rule 11 of this Section;
- ….
- Require the person to undergo counselling for a specified time;
- Require the person to perform voluntary service to cricket or the community; and/or
- Reprimand the person.
- Under Section 5 Rule 3 of the Code I am entitled, in considering the appropriate penalty, to take into account any relevant circumstance including the following:-
- The seriousness of the breach;
- The harm caused by the breach in the interests of cricket;
- The person’s seniority and standing in the game;
- Remorse shown by the person and the prospects of further breaches;
- The prior record of the person in abiding by this Code, the ICC Code of Conduct and any similar Code of Behaviour;
- The impact of the penalty on the person.
- In considering the appropriate penalty, pursuant to these considerations, I have formed the following views:-The seriousness of the breachI consider the breach to be a moderately serious one. Leaving aside the truth or otherwise of Mr Goodwin’s allegations, the comments were very inappropriately timed (immediately before the commencement of Test Series between Australia and Zimbabwe) and were likely to cause embarrassment to, and place pressure upon, Zimbabweian players and officials at an important time in the development of cricket in that country .
The harm caused by the breach to the interests of cricket
Given Mr Goodwin’s contrition and apologetic remarks I consider the harm which could otherwise have been done by his comments has been very substantially alleviated. Nevertheless, I think those comments were harmful to the interests of cricket.The player’s seniority and standing in the game
Mr Goodwin is a senior player of high standing in the game. He has played at the highest levels of the game and with distinction not only for Zimbabwe but also in first class cricket in Australia and England. This is a neutral factor in my mind because Mr Goodwin’s standing in the game gave added legitimacy to his allegations but, on the other hand, that consideration is cancelled out by the contribution he has made to the game.The remorse shown by Mr Goodwin and the prospect of further breaches
Mr Goodwin has shown considerable and commendable remorse and I do not consider there is the likelihood of any further breaches of the Code by him.Mr Goodwin’s prior record
Mr Goodwin has had a long and distinguished international and first class career without any other blemish of the Code of Behaviour or any similar Code of Conduct. This is to his great credit and must be taken into account on the question of penalty.The impact of the penalty on Mr Goodwin
I regard this as an irrelevant factor. I consider that any fine I may impose will be within Mr Goodwin’s reasonable means. - Having considered all of the matters listed above and having taken into account the contents and nature of the breach of the Code by Mr Goodwin, in this case I consider that a reprimand is the appropriate penalty.
- In this regard, my finding is consistent with the finding I made in a recent matter in respect of Mr Adam Gilchrist and reflects the fact that I consider that Mr Goodwin intended no malice in the comments he made. Further, I do not believe that Mr Goodwin realised the impact and significance of his comments. In respect of each of these matters, I consider that I should give Mr Goodwin the benefit of any doubts I have about them.
- Accordingly, pursuant to Section 5 Rule 2 of the Code of Behaviour I reprimand Mr Goodwin in respect of the conduct the subject of the charge. I impose no further sanction.
- In conclusion, as will be apparent from these Reasons, I wish to stress that the sanction which I have imposed in this matter should not beregarded by players or officials subject to the control of Cricket Australia as a precedent for future similar conduct. Of considerable significance to me in imposing the present penalty has been the fact that the revised Code of Behaviour has only recently been promulgated and I think that, in this particular case, justifies a more lenient approach than might otherwise be the case at a subsequent time when players are more familiar with the revised Code. Further, the leniency of the sanction in this regard has also been considerably influenced by the compassionate attitude taken by the complainant.ALAN SULLIVAN QC
Deputy Senior Commissioner
Friday 31 October 2003