Sports disciplinary hearings get the arbitral treatment

Danish Kaneria was an, at times unplayable, leg spin and googly bowler.¹ He quickly became, and remains, the leading spin wicket-taker in Pakistan. However, when an allegation was made, during Mervyn Westfield’s 2012 trial for corruption², that Kaneria had arranged ‘spot fixing’, working in conjunction with illegal bookmakers during the 2009 county one-day season, a series of decisions were set in motion which resulted in Kaneria  receiving a lifetime ban from all forms of cricket in England & Wales; a ban that is recognized and reciprocated by other national cricket boards around the world.

The key evidence against Kaneria was Westfield’s account of their conversations while they were Essex teammates. However, in the lead-up to Kaneria’s case coming before the England & Wales Cricket Board (‘ECB’) Cricket Disciplinary Commission (‘CDC’) appeal panel in April 2013, Westfield’s conduct gave the ECB cause for concern that he would not attend. He had given evidence twice (at his own criminal trial and at the first instance CDC hearing) and, doubtless, considered that to be sufficient. 

The CDC Regulations did not grant any power on the appeal panel to compel Westfield to attend (as would have been the case in a criminal trial). The ECB therefore looked for an alternative mechanism to ensure his attendance. One elegant, if speculative, option presented itself: if the CDC appeal panel process could be characterised as an ‘arbitration’ for the purposes of the Arbitration Act 1996 (‘the Act’), then the Commercial Court would, in principle, have jurisdiction and competency to order that Westfield attend as a witness, pursuant to section 43 of the Act. 

It was an innovative strategy and one that paid off: the decision of Mr Justice Cooke in England & Wales Cricket Board v Kaneria confirmed that the CDC appeal panel hearing was an ‘arbitration’ to which the Act, and the supervisory jurisdiction of the Commercial Court set out therein, applied.²  Westfield gave evidence and Kaneria’s appeal was dismissed.³

The approach taken by Mr Justice Cooke deserves analysis and its implications need consideration. The practical result in the instant case – the compulsion of Westfield to give evidence to the appeal panel (without which the whole matter may have been unresolved)  – has a superficial appeal. However, the wider implications of the approach taken by Mr Justice Cooke in his post hoc characterisation of sports disciplinary processes as arbitrations under the Act are by no means straightforward; nor indeed do they sit easily within the sports regulatory framework.

The Judgment

While it offers no definition of the term ‘arbitration,’ the Act states in its preamble that its provisions apply to ‘arbitration pursuant to an arbitration agreement.’⁴  The difference between the parties in the Kaneria case lay, in essence, in the approach to that second occurrence of the word ‘arbitration.’ According to the ECB, the question was whether or not the process, to which Kaneria had agreed, could, objectively, be described as an ‘arbitration.’ In other words, the ECB argued that (a) Kaniera had consented to the procedure; and (b) an arbitration does not have to be labeled as such in order to be an arbitration. Kaneria, on the other hand, argued that the Act only applied where the participants to that arbitration had expressly agreed to it, and in this case there no express agreement because the parties to the agreement did not have arbitration in mind.