Bending the rules ex post facto

By skepticlawyer

Lawyers don’t like retroactive laws, but it now seems – despite insisting on having its rules called ‘laws’ – that cricket is in no such quandary.

For those unfamiliar with one of the more controversial events in the Gentleman’s Game, in the 2006 Oval Test, Pakistan refused to take the field against England after being accused of tampering with the ball, and umpire Darrel Hair awarded the game as a ‘forfeit’ to England. Earlier, he’d awarded England 5 runs for ball tampering – which is shown in the graphic.

Well, the ICC has retrospectively decided to change the result to a draw, despite the fact that refusing to take the field – according to the Laws of Cricket – has always led to a forfeit. Obviously the BBC is going to take England’s part, but Jonathan Agnew does have a point:

BBC cricket correspondent Jonathan Agnew said the move would open up “an absolutely enormous can of worms”.

He told BBC Radio 5 Live: “The Pakistanis were accused of ball tampering and they did not come out to play.

“The umpires went into their room and said ‘You must come out to continue the game’, they did not and, under the laws of any sport, if you refuse to play, you lose the game.”

“Match abandoned, they’re saying, as a draw, – well, abandoned on what grounds? It wasn’t the weather, it wasn’t anything else, it was that Pakistan wouldn’t come out to play for whatever reason.

“That game has now been classified as a draw, so if you’re losing, you sit in the dressing room, don’t come out and you can get away with a draw.”

Of course, the Pakistanis insist that they weren’t ball tampering, and that Hair was doing them down. They may be right. That, however, is no longer the point. The point is retrospectively changing the rules (and the result).

I’ve long suspected that cricket – especially Test Cricket – exposes the cultural faults of every country that plays it. I know of no other game with this tendency. Australians are shown up as boors. The English used to be shown up for arrogance (think Douglas Jardine), but – in line with their loss of Empire and a general modern diffidence – now tend to reveal an inability to take the bull by the horns. This does not seem to afflict Northerners (Andrew Flintoff) or Welshmen (Simon Jones). Meanwhile, teams from the subcontinent – and especially Pakistan – are shown up as bad sports.

None of this would matter very much, except that the Sub-Continental cricketing authorities now control the ICC. Among other things, this has lead to a degree of tenderness in the handling of Zimbabwe – despite an obviously racist selection policy – inexplicable to people who think that like cases should be treated alike. It has now lead to the retrospective changing of a result.

Retrospectivity. Failure to apply the law consistently. Constantly searching for a ‘special case’ and then claiming ownership of it. These are signal rule of law failures. We tend to forgive them on the grounds that the countries in question were treated badly by us in days gone by. We shouldn’t. They are characteristic of developing countries, and do much to damage ordinary people in those countries. Indeed, the World Bank has figured out that rule of law failure can write off a country faster than a failure to institute free trade. Who wants to trade when the rules tell you today what to do yesterday?

I have a nasty feeling that until cricket stops imitating life (or life stops imitating cricket) in many countries of the former British Commonwealth, opportunities for both economic and social progress will never be what they should be. India will remain behind China, despite being a democracy. Pakistan, meanwhile, won’t leave the starting blocks at all.

15 Comments

  1. Posted July 3, 2008 at 5:50 pm | Permalink

    The Pakistanis were accused of ball tampering

    Really? Noooooo…

    That’s just daft. How could you accuse the Pakistanis of such iniquity. They have a sterling reputation for scrupulous honesty. 🙂

  2. Posted July 3, 2008 at 10:40 pm | Permalink

    I hope this doesn’t become a pattern for cricket. I’d hate to see its laws and rules as badly applied as those of football.

  3. Sinclair Davidson
    Posted July 4, 2008 at 5:23 am | Permalink

    Let me stir and take th side of the Pakistanis. The facts as follows (as best I recall). Mr Hair accused the Paki’s of ball tampering, but (a) they denied this and (b) subsequently investigated produced no evidence of any ball tampering. Mr Hair then proceeded to penalise the Paki’s anyway and when they showed unhappiness he chose to award the game to England. Media reports at the time indicated that the other umpire was unhappy about that. In the wash-up Mr Hair then tried to acquire additional payment for his services and ultimately had his employment terminated.

    Hmmm. Yes. Well. This was a common sense response to an unusual problem. To take something similar, a couple of years ago at a Launceston AL game, the umpires didn’t hear the final siren and one of the teams kicked a goal long after the game had meant to end. The rules state that the game ends when the umpire hears the siren and lifts his arms to end the game (or blows his whistle or does something). The umpires didn’t do so and the other team ‘won’ the game. The AFL Commission reversed that decision and ex post ended the game when the siren blew. Purist predicted the end of the universe as we know it, but no. Life goes on, it is only a game.

    Cricket will survive too. Players and consumers have to have confidence in the umpires. Mr Hair made a very poor judgement call when he penalised the Pakis – that is the most generous interpretation of what he did – and they were not going to accept it.

  4. Posted July 4, 2008 at 5:50 am | Permalink

    The issue is no longer the rightness or wrongness of Hair’s umpiring call. I wasn’t at the Oval, so can’t comment. The issue is now the retrospective changing of a result. Joseph Raz makes a convincing case for accepting an authority’s content-independent rulings most of the time, as against having to employ Kantian moral self-direction each and every time. This would be unproductive (and destructive). I think (in the paper I’m preparing for the IHS on this point) that Hayek can be marshalled to support Raz on this point.

    Or cricket will come to resemble football, as Lad Litter points out.

    The Pakistanis may well be ‘right’. As Richard Epstein argues, however, in law, 95% is good enough.

  5. Sinclair Davidson
    Posted July 4, 2008 at 6:25 am | Permalink

    “content-independent rulings ” ??

    I’ve never been to a ‘real’ criket match, but I have been to the football and IMHO the community are somewhat intolerant of poor umpiring decisions and game administrators ignore the consumers at their peril. (Sorry to say SL, there just aren’t enough purists around to preserve the tradition that the umpire is a god. There are so few purists around that 20/20 is going to be the most popular version of the game).

  6. Posted July 4, 2008 at 3:42 pm | Permalink

    The Pakistanis might’ve been right but if you change rules afterward to suit things then you make ’em rubbery. Every time something happens and you don’t like it just change th rules. Might as well not have ’em.

    Sport’s full of injustice at the hands of the rules. In the 2002 World Cup Turkey beat South Korea (just). The reason it didn’t come down to penalities is because one of Koreas goals was ruled offside. It wasn’t offside – just.

    The Koreans had used the offside rules very well during the tournament and did so here. But it was very close and the ref’s call, tho’ wrong, was understandable. For very practical reasons, even if the ref’s decisions are wrong, they stand anyway.

    Tought for the Koreans. But that’s the game. I don’t see why rules should be changed to alter history. The choice is always between the best of two bad scenarios. Changing the rules to suit is worse then not doing so and leaving unfair results stand.

    IMHO.

    Turkey v Korea 2002 was the Best ever btw.

  7. Posted July 4, 2008 at 6:13 pm | Permalink

    Adrien, SL,
    Just a small observation. The difference between the match here and the Turkey / SK (and the footy for that matter) is that here the match had finished and there was no further play after the Ump’s call – so the subsequent challenge to the Ump’s call could not affect the subsequent play in the match.
    Not sure if I have expressed that well, so to put it another way – the offside call was made and play progressed from that point. Subsequenly goals were scored (or not scored) that would have been affected by the call that could be contested. In the case of the Eng. vs. Pak. match no further play occurred so you have the luxury of making a judgement on the ump’s decision in isolation.
    That said, I would agree that the original decision should stand on its merits – but I would not agree that matches should not be changed in outcome where the decision is made to end the game. If the umpire ends the game and awards the match to one team (or awards a draw) and the decision is subsequently found to be wrong in law then it should be open to the appropriate authority to change the declared result as a form of restitution.
    This should not be the case where play occurs subsequent to the decision.

  8. Posted July 5, 2008 at 5:57 pm | Permalink

    Michael Holding’s view here.

  9. Sinclair Davidson
    Posted July 6, 2008 at 12:31 pm | Permalink

    The AFL are being sued over the umpiring error at Launceston. Fantastic.

  10. derrida derider
    Posted July 7, 2008 at 5:27 pm | Permalink

    Sinclair, FWIW your account of the events leaves out a couple of rather pertinent points. Hair consulted the other umpire (Doctorow) and they examined the ball together. Only after Doctorow’s agreed with him did Hair signal to deduct the runs. It’s hard to avoid the conclusion that the Pakistanis and ICC have not crucified Doctorow because he’s West Indian.

    But yeah, the ICC has fallen to third world standards of governance.

  11. Posted July 7, 2008 at 5:35 pm | Permalink

    the ICC has fallen to third world standards of governance.

    Maybe we should get Mugabe into sort it out.
    🙂

  12. Sinclair Davidson
    Posted July 7, 2008 at 6:09 pm | Permalink

    DD – I did concede “as best I can recall”. Anyway, I see Hair’s back.

  13. Posted July 7, 2008 at 11:35 pm | Permalink

    OT but I am having to be alert to some very strange spam heading for this thread. If you see something that purports to be about cricket but actually contains links to sites selling a certain well known performancing enhancing drug, then you’ll know one’s got through.

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