DEEP DIVE | Legal Take: Can the 2015 match-fixing scandal bans be challenged?
This piece was first published by News24, in three parts, on 30 November, 1 December and 2 December 2020.
After three former cricketers that received bans for their part in the 2015 match-fixing scandal – Thami Tsolekile, Lonwabo Tsotsobe and Alviro Petersen – brought the matter back into the public spotlight, it was important to take a legal look at the merits of having those outcomes overturned and, if so, how.
Seven South African professional cricketers were banned from the game in 2016 and 2017, following an investigation by Cricket South Africa's (CSA's) Anti-Corruption Unit (ACU) into allegations of match-fixing during the 2015 RAM SLAM T20 Challenge Series.
The players entered into sanction agreements with CSA in terms of the CSA Anti-Corruption Code for Participants (the Code), which were effectively "plea bargains".
This meant players admitting to their transgressions, which avoided the need for hearings to be held before the CSA Anti-Corruption Tribunal (the Tribunal).
Tsolekile, Tsotsobe and Petersen spoke to Robert Marawa on his Marawa Sports Worldwide (MSW) radio show about their respective bans, the investigation process and their treatment in the process, without specifically stating how they would like their complaints resolved.
The complaints raise a number of legal considerations centred on whether there is scope for cases and the investigation to be reopened and whether the players would have grounds to challenge the validity of their sanction agreements.
The players' primary complaints
Tsolekile said to Marawa he felt the investigation was not fair and that this was why he had not apologised for his conduct when he received the ban.
Tsolekile questioned the fairness of his 12-year ban in comparison to the lesser ban received by a fellow former Lions player, mentioning that the investigators had referred to Tsolekile as a "ringleader".
During his appearance on MSW, Tsotsobe said the information that was surfacing shocked him and that he had consulted his legal team, "who will be dealing with CSA and the South African Cricketers' Association (SACA)".
Tsotsobe questioned whether his transgressions were sufficiently serious to warrant the eight-year ban he received.
Petersen told Marawa he believes CSA acted maliciously in charging him, with the intention of reaching a settlement on unreasonable terms. He questioned whether he is actually guilty of certain of the offences or implied as much.
Petersen said he was asked by the investigators to string ringleader Gulam Bodi along to allow them to gather sufficient evidence before acting.
According to Petersen, CSA had already known about Bodi for close to a month by the time he reported the matter.
Petersen lamented that additional players became involved and, ultimately sanctioned, which he believes would have been preventable if the investigators had shut Bodi down sooner.
The trio complained that the investigation and the process followed were biased – with Tsolekile of the firm belief that there was racial bias.
Both Tsolekile and Tsotsobe complained that lawyers had been foisted on them by SACA, the trade union that represents professional cricketers.
They said that SACA would only pay for SACA-appointed lawyers, while Petersen said SACA covered a portion of his legal fees, even though he chose his own legal representative.
Comments made by Tsolekile and Tsotsobe on MSW indicate that they may believe they were coerced into entering into the sanction agreements, to their detriment. This is no minor allegation.
Moreover, Tsotsobe said that CSA's investigators undertook not to pursue criminal charges against him if he agreed to a sanction, but that the Hawks had recently contacted him.
It seems this was a material term that led him to enter into a sanction agreement in the first place.
Tsolekile also said that the Hawks had recently contacted him, seeking a statement.
Questions arose on MSW about the involvement of certain other players who were not sanctioned.
A further issue that was discussed on the show was the safety of players and their families in the context of failing to report approaches to engage in match-fixing, considering the criminal elements involved.
Where an offence is committed due to a player's belief that the safety of any person is under serious threat, this can amount to a valid defence against any charge under the Code.
If this was not duly considered at the time of the sanction agreement, this opens the door to the possibility of a player being technically "not guilty" of an offence that they have admitted to.
These complaints include numerous serious claims, which will need to be substantiated by the players and supported by evidence in any engagements with CSA or in legal proceedings.
The complaints that stand out from a legal perspective and the ensuing legal questions will be delved into in greater detail in Parts 2 and 3 of this deep dive.
CSA's response to the complaints
Right after Tsolekile's assertions, CSA released two statements, on 7 August and 8 August 2020, in response to what it referred to as unfounded allegations in the media made by certain of the banned players, while defending the process followed and its outcomes.
According to CSA, a comprehensive investigation was carried out over approximately 18 months, with the ACU collaborating with retired judge, Justice Bernard Ngoepe, specialist external lawyers, the International Cricket Council (ICC), the Board of Control for Cricket in India (BCCI), the Directorate for Priority Crime Investigation (the Hawks), and an external digital forensic team.
Justice Ngoepe, who also appeared on MSW, subsequent to the players, oversaw the investigation in his capacity as the independent non-executive chairperson of the ACU.
Changing tune to some extent from its 7 August statement, CSA stated the next day that, if credible evidence arose of players having signed sanction agreements under duress, or if the process was compromised, it would engage the relevant bodies and review the cases itself, where appropriate.
On MSW, Justice Ngoepe shed light on aspects of the investigation and discussed a number of the complaints raised, countering many of the claims of unfairness – including those of racial bias.
Recent engagements involving Tsolekile
On 15 October, TimesLIVE reported that Tsolekile was in discussions with SACA and CSA to have his 12-year ban overturned.
Despite Tsolekile saying he was unaware of the talks, SACA communications manager, Zoli Xhola, confirmed to the publication that the discussions were ongoing at the time.
Xhola said Tsolekile had approached SACA, enquiring about how he should go about having his ban "reduced" and that the players' union advised him to make written submissions to CSA.
CSA could take the initiative and reopen the investigation and SACA might have persuasive influence if it deemed further investigation to be necessary.
With agreed sanctions being just that, the parties can agree to rescind an agreement or to change its terms, if they no longer deem the agreement fair or appropriate.
In the absence of such a fresh agreement being reached, if a player sought to have their sanction agreement declared invalid, they would have to institute legal proceedings to this end.
The Code gives the CSA CEO (Kugandrie Govender is presently acting in this role) the discretion to permit the relaxation of a player's ban prior to its expiry, subject to approval by the ICC and the CSA board.
However, this caters for instances where a player's conduct since being sanctioned warrants intervention, for example, due to them showing remorse.
Tsolekile's primary complaints, though, are legally based potential grounds to challenge the validity of an agreed sanction. This is in contrast to grounds for a discretionary reprieve.
Important legal considerations
A contract is an agreement that gives rise to legally binding obligations.
The obligations provided for by the sanction agreements include CSA's apparent undertaking not to pursue criminal complaints against the players, and the players forgoing the right to a hearing.
It was mentioned on MSW that the players also agreed to participate in anti-corruption educational initiatives, which is consistent with comments made by CSA in 2016.
The legal point of departure is that, unless proven otherwise, it will be accepted that the players fully understood the terms of their sanction agreements at the time of signature and that the agreements are fair.
Foundational to South African contract law is the pacta sunt servanda principle, in terms of which "public policy" requires that contracting parties should comply with obligations that they have undertaken freely and voluntarily and that only where contractual terms are immoral, illegal or contrary to the public interest will a court refuse to enforce or uphold a contract.
Also important is the caveat subscriptor principle, translated as "let the signatory beware", which means that a party is bound by contractual terms, because of the impression of agreement which is created by their signature.
The fact that a provision in a contract, which has been willingly entered into, may operate "harshly" does not mean it is unenforceable.
Significant weight is attributed to these principles in determining the validity and enforceability of contracts.
As will be explored, it is particularly difficult for a party to prove that they should not be bound by a contract they have entered into, such as the players' sanction agreements.
The players might feel they are in a weak position because they have agreed to the sanctions, and that the odds would be stacked against them in trying to escape the operation of the agreements.
The courts may consider fairness, reasonableness and justice in deciding whether the enforcement of a contract would be contrary to public policy.
Preceding any litigation would be formal correspondence in which the opposing party, or parties, would be informed of a player's legal complaints, the relief which they seek and the potential legal proceedings. This could be the catalyst for negotiations on a player's sanction agreement.
If a sanction agreement was no longer valid and enforceable, the player in question would be exposed to potentially having proceedings brought against him again, which could result in a hearing before the Tribunal.
The Code contains a "statute of limitations", which prevents action being taken against a player more than 10 years after the date of an offence.
Of course, a new agreement between CSA and a player could incorporate an amended sanction or an undertaking by CSA that no action would be taken against the player.
What is the appropriate dispute resolution forum?
In terms of the Code, the Court of Arbitration for Sport (CAS), in Lausanne, Switzerland, has the exclusive jurisdiction to hear appeals against decisions made by the Tribunal.
With the Tribunal neither having made findings nor imposed these sanctions, an appeal would not be available to the ex-players. The Code confirms this expressly: there is no right of appeal against an agreed sanction.
Ordinarily, the courts would be the appropriate forum to deal with challenges to the validity and enforceability of contracts, with the Code being governed by the law of South Africa.
However, players' employment contracts with the CSA franchises contain an agreement to refer any disputes relating to the employment contract to mediation, followed by arbitration.
With their employment contracts binding players to the Code, challenges to the validity of the sanction agreements would seem to be disputes relating to the employment contract. Private arbitration may, therefore, be the correct forum to hear such disputes.
Agreements to private dispute resolution are not uncommon in employment contracts and are applicable in local professional football and rugby.
As the Labour Appeal Court confirmed in 2017 in SAFPU and others v Free State Stars Football Club (Pty) Ltd, in exceptional circumstances, employees may be exempt from complying with an agreement to refer a matter to private arbitration as the first port of call – the National Soccer League’s Dispute Resolution Chamber (DRC), in that case – instead of following default routes for resolving legal disputes.
In the SAFPU case, such exceptional circumstances included the fact that the DRC required players to pay fees, whereas the Labour Court and Labour Appeal Court require no such charges.
The memorandum of understanding (MOU), which is collectively bargained by SACA, CSA and the franchises and provincial teams, may provide further detail as far as dispute resolution is concerned.
- Edited by Sibusiso Mjikeliso.
Disclaimer
The content published on the website of Miles Chennells & Associates, including articles, is provided for general purposes only and does not constitute legal advice.
Accordingly, we accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in our publications.
Where appropriate, our publications contain reference to sources from which information was obtained and/or links to such sources.
In the event that you seek to obtain legal advice in respect of any particular matter, please make contact with the practice in order to enlist our services.
Copyright © 2020 Miles Chennells & Associates. For permission to reproduce any of our publications, please contact us at miles@chennellslaw.co.za.
Please refer to the full terms of use on our website.