Sunday 21 April 2013

Suarez Biting the Hand that Feeds

Epilogue 26.4.13
Suarez received a ban of 10 games from the FA Independent Regulatory Commission (IRC). Suarez was immediately said to be considering his future in the English game notwithstanding that the ban is likely to be effective worldwide.
NB The FA can apply to FIFA under the FIFA Disciplinary Code to make the ban apply equally in each and every country if the infringement is 'serious' (examples of which include doping and match fixing, but clearly conduct attracting a 10 match suspension is 'serious'). Perhaps they wont in the hope that Suarez may leave English football.
The IRC clearly decided to make an example of Suarez and took account of his appalling disciplinary record. The reasoned decision has just been published. Suarez and Liverpool publicly stated before the verdict that they did not believe that there were grounds for departing from the usual 3 match ban for violent conduct. If so, they got it badly wrong. They somewhat acknowledged this by deciding not to appeal. Whoever is in control of LFC PR needs a long hard look at themselves.
Brendon Rodgers suggested that the IRC had been unduly influenced by adverse comments by the Prime Minister. This is both irresponsible and absurd. Action should be taken. Mr Rodgers' judgement as a manager must also be called into question.
Original Story
 I have no idea how much Luis Suarez has earned from football. I accept that he is a very talented player. I was slightly perturbed that he was recently named as a candidate for PFA Player of the Season. I was appalled by the way Liverpool FC under Kenny Dalglish's management supported a player accused of racist abuse by wearing the infamous training t - shirts before a match see here.
Perhaps it is true that you reap what you sow. Although they deny it and state they want Suarez to stay, Liverpool may now be in possession of an asset they feel they have to sell, but which has become tainted goods.
What am I talking about? Yesterday Suarez quite deliberately bit the arm of Chelsea player Branislav Ivanovic during the Anfield EPL clash. Why? Heaven knows, but the video footage did not seem to suggest any reason whatsoever (hard to come up with a good reason in any circumstances!)
On Friday at the PFA Awards Dinner will Suarez show up in case he wins? What an appalling embarrassment for the Player's Union that would be. Let's hope for everybody's sake that the votes go in another direction (Bale or Van Persie perhaps).
Suarez subsequently apologised and Liverpool called his conduct 'unacceptable'. For stating the obvious they were said to have handled the situation well. Their every utterance since seems to have undermined that position. Suarez requested that the fine meted out to him by the club should go to the Hillsborough Families Support Fund. One cannot but feel the hand of the PR department behind that pronouncement. Of course Suarez shamed the club again on the day that Liverpool fans were paying their respects to the indomitable Hillsborough Mum, Anne Williams, after she lost her fight for life this week.
Suarez's career has been littered with unsavoury incidents including incredibly another biting incident (he went for the neck that time) whilst playing for Ajax in 2010. He received a 7 match ban from the Dutch FA.
The referee at Anfield on this occasion missed the incident. This was forgiveable given that it was a sly off the ball attack on the Chelsea defender. As I have argued elsewhere these incidents could be resolved swiftly by the use of video technology and an official in the stands see here. Although a sending off would not meet the justice of the case.
It opens up the necessity for further action by the FA. Suarez has tonight been charged by the FA with Violent Conduct and can expect to appear before an Independent FA Disciplinary Panel. He knows what that feels like. They will have to take into account the player's terrible record. Only last season he was banned for 8 games for the Evra racism incident and for a rude gesture at fans. The likelihood is that Suarez will be banned for more than the 7 games he received in Holland.
Should he be prosecuted? In the UK criminal prosecutions for acts on the field of play are reserved for those situations where the 'conduct is sufficiently grave to be properly categorised as criminal'. Relevant factors according to Woolf LJ in Barnes might include, inter alia, the nature of the sport and level of the participants involved, the nature of the act, the degree of force used, the resultant injury or consequent risk of injury, and the intention of the perpetrator. Prosecutions are rare. Nonetheless those engaging in off the ball incidents are flirting with a danger which goes beyond the wrath of the governing body.
 In my view Suarez would have escaped criminal prosecution anyway, but as it transpired his victim Ivanovic, when spoken to by Merseyside Police yesterday, indicated that he did not wish to make a formal complaint. No doubt he was utterly baffled by what Suarez did. Suarez clearly has psychological flaws in his make up. Nonetheless Ivanovic's calm non reaction on the field helped to defuse the situation. Praise where praise is due.
An ordinary person who bit somebody in an unprovoked attack would expect to be prosecuted, potentially find themselves in the Crown Court and conceivably receiving a custodial sentence. Sporting specificity indeed.
Suarez on the other hand should be made an example of by the footballing authorities. And Liverpool Football Club should ask themselves whether they have their priorities right.

Friday 19 April 2013

Turning Point for Recruitment of Black Coaches

'Instead of getting somebody you know, you should strive to get somebody who is the best. The way to do this is to cast a wide net, interview several candidates including people of different backgrounds and including people who are overlooked, both black and white'. Cyrus Mehri.

I am tired of the merry go round of familiar faces switching Premier League and Football League jobs amongst themselves. I have written elsewhere ( Rooney Rule ) railing against the injustice that is the absence of opportunity for potential black coaches or managers. Nothing very much seemed to be changing and I seriously questioned the will of those in a position to make meaningful changes.

But nothing bad lasts forever. A similar situation pertained in NFL a decade ago. NFL teams commonly interviewed only one or 2 candidates for vacant positions before declaring the position filled. Unsurprisingly few of these coaches was from a minority background notwithstanding that when, occasionally given an opportunity, minority coaches had excelled.

Cyrus Mehri in conjunction with 'OJ Simpson Lawyer', the late Johnnie Cochrane, came up with a simple but impressively effective answer. The NFL was persuaded that clubs should be compelled to interview more candidates for posts and the rules decreed that minority candidates should be amongst this wider pool.

Dan Rooney, owner of the Pittsburgh Steelers, advocated the plan and it became effective from 2003 'The Rooney Rule' was born. It is not a quota system, but a rule of equal competition.

The effects were fairly stunning and later in the decade black coaches or General Managers appeared in 6 consecutive Super Bowls.

English Football has thus far proved a tougher nut to crack. Amongst the contrary arguments were that  time was of the essence, the wider the pool the longer the process, and that clubs could not afford to be without a manager for such a period of time. There were fears of tokenism.

Is that about to change? Following collaboration between the PFA (advised by Mehri) and the Football League, a proposal named 'Coaching Fair Play' is to be put to the 24 Division 2 Chairmen in June 2013. Hiring clubs will be required to interview at least one individual from a 'ready list' of minority coaches. The scheme is backed by Football League Chairman Greg Clarke and Richard Bevan of the LMA. It is hoped that this will be in place for next season and will in due course be adopted by the Premier League. By that point there should be many more experienced minority candidates than is presently the case.

PFA Chief Gordon Taylor said 'If we are to encourage players to stay in the need to give people a belief that having qualified they will be given a fair chance to get employment'.

Tuesday 9 April 2013

Rugby's Disciplinary Priorities Askew?

I sometimes wonder how Sporting Bodies and their disciplinary panels arrive at some of their decisions and I have to question the guidelines which they purport to follow.

Stade Francais scrum half Jerome Fillol was cited after video footage incontrovertibly showed him spitting directly in the face of Peter Stringer his Bath opponent during an Amlin Cup European match at the Recreation Ground 2 weeks ago. Fillol was at risk of a ban of between 4 and 52 weeks pursuant to IRB regulations. His action generated widespread revulsion and was described as the lowest of the lows. Stringer himself stated on Twitter that there was no place for such action in any walk of life. Brett Gosper CEO of the International Rugby Board also proclaimed on Twitter that Fillol should be punished to the 'full extent of the Law'.
Fillol duly appeared before the IRB Panel in Dublin today and received a 14 week suspension. The Panel decided that the entry point was 26 weeks and reduced that for 'genuine remorse, exemplary record, and strong character references'. Via Twitter rugby pundit and ex England hooker, Brian Moore, described the ban as 'hard but fair' and stated that the entry point could not be said to be 'unreasonable'.
Fillol's action infringed IRB Regulation 10.4 (m): A player must not do anything that is against the spirit of good sportsmanship in the enclosure'. The sanction for such conduct depends on the starting point: Low end 4 weeks, Mid Range 7 weeks, Top End 11 + up to 52 weeks.

Opinions certainly varied as to the appropriate penalty.

In February 2012 Uttoxeter winger Paul Milward received a 12 month suspension from an RFU Disciplinary Panel after he spat at a female spectator during a bad tempered altercation. The match itself was eventually abandoned. The Disciplinary Panel found that this was a deliberate 'assault'. The spit struck the coat of the victim. She described herself as 'humiliated'. The Panel, headed by Judge Sean Enright, found that Milward's actions were more serious than those relating to merely spitting at a player and that 10.4 (m) did not cover spitting at a spectator. Milward was charged pursuant to RFU Regulation 5.12 ('conduct prejudicial to the interest of the Union'). The Panel referred to the interests of the game and made reference to, inter alia, the effect upon the image of the game and the response of potential sponsors. Milward denied the allegation at both the original hearing and a subsequent appeal, but lost on the facts. The Appeal Panel found him guilty, but reduced the ban to only 9 weeks. This case perhaps demonstrates the difficulties in fixing the level of penalty. The Appeal Panel's decision is strangely not available on the RFU's website or seemingly anywhere else.
Looking back at previous incidents in American sports suggests that perhaps this spitting offence is not quite viewed with the same degree of abhorrence as in Europe. Blue Jays second baseman, aggrieved at being struck out by the umpire in 1996 proceeded to spit in his face. He was banned for 5 games and resolved the matter with the umpire by means of a handshake.
Basketball superstar Charles Barkley was racially abused by a 'fan'. At the end of the game Barkley rounded on the spectator and spat at him. Unfortunately he missed and hit a young girl instead. He was banned for one game. He later stated that this was the one incident he regretted in his career.
In football Patrick Vieira became so enraged by Neil Ruddock's taunts that he gave him a 'mouthful' back and received a 6 game ban as a result. Fabien Barthez playing for Monaco spat at a referee and received a 6 month ban (of which 3 suspended).
I am sure we all feel the revulsion. However where does Fillol's  offence sit alongside gratuitous acts of violence such as stamping on a helpless player (Cian Healy for instance - 2 week ban)? Moreover when you consider that UEFA has just announced 10 game bans for racist abuse, which side of that line would spitting fall? The spit does not hurt or truly harm, it just shows complete and utter disrespect for the victim (and the sport in general). It says an awful lot about the perpetrator.
Meanwhile rugby referee Hugh Watkins has just been banned for 12 matches. His crime? Watching the Hong Kong 7s on TV he wrote on Twitter about a refereeing decision
 "Sorry that's a shocker. Had to be a red no other option. we need referees to be consistent in this"
Now of course it was unwise and a breach of WRFU Code of Conduct to publicly criticise another referee, but a 12 week ban? Watkins has quit the game in disgust after 20 years service. Now that is a shocker!

Monday 25 March 2013

Nirvana - How to Combat Racism in Football?

What happened to Rio Ferdinand yesterday ('sick racist chanting about burning people on bonfires') amply demonstrates that the positive cause I write about below could not be more valid and urgent. The total inability of the English FA to react appropriately speaks volumes. I haven't been a victim of racism my whole life, but I am beginning to understand how easily many are and how easily it is ignored by the rest of us.
Although Nirvana is a magical word with many different meanings and important spiritual connotations, for present purposes I am going to use just 2: liberation and salvation.
Last week  I attended an inspiring and moving event in Leicester entitled 'Race for Football - National Road Show 2013'. It was organised by Leicester Nirvana FC and supported by The Voice newspaper, Society of Black Lawyers and Black and Asian Coaches Association (BACA).
The very first person that I spoke to at the event said that he had attended in order do 'his bit' to try to improve or remove issues of racism in football. Sadly however he also remarked that he had been talking about this subject for 20 years (his whole adult life essentially) and not a great deal had changed for the better.
Regrettably I also spoke to one attendees who seemed to only want to be seen to be doing the right thing, but who clearly had no desire to embrace multi culturalism at all.
According to recent research at Loughborough University (Dr Jamie Cleland and Professor Ellis Cashmore), racism in British football is 'rife'. Surveys of fans had revealed that the problem was believed to be 'endemic'.
At the Road Show all bar one of an audience approaching 100 people indicated that they had directly experienced racist abuse. Very few had made an official complaint, but if they had the outcome had been considered 'poor' in the majority of cases.

We watched a video presentation during which black and asian children spoke articulately about their experiences of being verbally abused on football pitches and from the touchline - often by adults. The Loughborough research seemed to be echoed at the Road Show. My predominant impressions were that the overwhelming majority of the audience felt that not enough was being done by the authorities and various anti racism campaigns within football to address this, particularly for them, very real and painful issue.
Roisin Wood Chief Executive of Kick It Out was a member of the Panel and she spoke very passionately. However as she told me during a break, KIO is caught on the horns of a dilemma, funded by the FA, and to a degree by the PFA and the Premier League, and therefore has its independence questioned. Remove FA support however and the charity would be obliged to seek commercial support which would almost certainly compromise its independence further. I say funded, but that budget is approximately £440,000 per annum, the equivalent of the weekly wages of perhaps 4 premiership players, and KIO numbers just 7 people. Having met Roisin I am convinced that KIO could achieve so much more if it were given adequate and meaningful funding. I would have liked to develop that discussion. Why does the football community think that its lead anti racism charity is only worth a minute fraction of the vast sums of money pouring into the game? Criticism of KIO for not having sufficient impact or for not doing enough, often expressed as 'just handing out t - shirts', cannot be justified given that level of resources. KIO is non investigatory and non sanctioning. Its role is education, advocacy and support. I would like to help KIO.
The prevailing mood of the gathering was that the football authorities remain very unrepresentative, predominantly white, male institutions. The pace of change is glacial and, as Colin King of BACA observed, it can take a whole career to progress through an organisation like the FA before acquiring the appropriate blazer (usually from somebody who has passed to another life - he was only partly joking!) The mismanagement of the John Terry Case had given many the impression, rightly or wrongly, that the FA's main priority had been to ensure that Terry was available for Euro 2012. The woefully inadequate punishments handed out for racist chanting across Europe reinforce the view that there is insufficient will in football governance to address the need for change, and that any action is merely window dressing.
The FA's representative on the Panel, Jonathan Mills, was at pains to emphasise the FA's FA's Anti Discrimination Action Plan. The audience were dubious and particularly sceptical about the likely benefits of the initiative. Keith Murdoch of Leicestershire County FA seemed very willing to engage with minority community groups and responsive to Leicester Nirvana's cause of 'removing racial discrimination wherever it exists'. At a local level it was encouraging and seemed feasible that better representation and enlightenment could be achieved. However the stories of the abuse suffered by ethnic minorities whilst playing a sport in Leicester were dispiriting.
Nirvana FC was formed in 1982 to enable young black and Asian children from Inner city Leicester areas to have a sporting opportunity in a positive and supportive environment. In spite of tremendous hurdles and some needless obstacles, the club has thrived against the odds. Youngsters have progressed to the professional game and there are approximately 50 Nirvana players who have gone through professional football academies.
Nirvana seek the following reforms to football governance:
*FA to invest in and work with grassroots clubs to tackle racial discrimination
*Local FA to develop transparent disciplinary procedure to address racial discrimination and abuse
*A compulsory module to be integrated in all FA coaching, managerial and refereeing qualifications that addresses multi cultural issues to develop participants cultural learning
*FA to provide a diversity breakdown of the distribution of facilities and funds at all levels
* FA to commit to addressing all racist incidents, involving Police and having a zero tolerance approach to repeat offenders.
I met a lot of fantastic people that night. There was no hostility towards me as a minority person amongst that audience. I found that everybody wanted to engage and to learn. The event was full of hope and ambition. It is just a beginning, essentially driven by ordinary (but also extraordinary) people.
To my mind the goals are Nirvana - the liberation of all people to enjoy 'the beautiful game' equally, and the salvation of the true essence of that sport cleansed of the curse that is racism.

Monday 18 March 2013

Taking on the IOC at CAS

Last week the Court of Arbitration for Sport finally delivered its verdict in the case of Mu Yen Chu and Chinese Taipei Olympic Cttee v The International Olympic Committee. The IOC managed to carry the day and thereby maintain the status quo with regard to their London 2012 Athlete's Commission Election result. The IOC had disqualified Chu and the Japanese athlete Murofushi for breaches of the election rules regarding campaigning. The rules effectively outlaw campaigning. There seems little doubt that the rules place lesser known candidates at a disadvantage. This may have some relevance to CAS' ultimate conclusions.
 The merits of the rules for this particular election are dubious, although this was not the point of the case before CAS. Chu denied breaching the rules. The case had originally hit the headlines because Chu was accused of handing out lollipops to athletes in order to, supposedly,  entice them to vote for him. The source of this allegation only became known during the course of the appeal proceedings. The Australian Chef de Mission, Fiona de Jong, had emailed the Election Committee complaining that she had been told that Chu had been handing out the aforementioned candy in the Athletes' Village. It transpired that she had not witnessed this herself, had not identified any athlete who had in fact witnessed this and could supply no other evidence of its ever having taken place. De Jong was not called by the IOC at CAS, and although they maintained the allegation throughout the appeal, the IOC produced no further 'evidence' beyond the original second hand De Jong hearsay email. Unsurprisingly CAS found that there was insufficient evidence to 'confirm Chu distributed lollipops'.
 It may not be that surprising that the Australian delegation did not wish to further involve itself in this matter by appearing at CAS.  During the Games a photograph had been published in the media showing the Australian Election candidate, James Tomkins (he was elected), walking around the Village next to a giant 'kangaroo'. This might have been extremely awkward for the IOC and the Australians given that, unlike the case of Chu, there was actually photographic evidence of the activity, but nothing had happened to Tomkins. It might have been suggested that this was overt campaigning  of the kind outlawed by the IOC's rules. CAS commented (the matter was not directly relevant to the Appeal) that 'the photograph proved nothing in the absence of evidence that he deliberately posed with the kangaroo'. See for yourselves.

The appeal ultimately came down to the question as to whether there was evidence that Chu had further transgressed after he was given a written warning on the 26th July 2012 (following the De Jong email). The only evidence called by the IOC on this point was that of the Zimbabweans, Kirsty Coventry (travelled and appeared in person) and Busi Chindove (Chef de Mission of Zimbabwean team - by mobile telephone from Zimbabwe - incredibly and perfectly audibly). Interestingly Miss Coventry had lost the original election, but following the disqualifications of Chu and Murofushi she found herself in 3rd place and accordingly elected. Whilst acknowledging that Miss Coventry was 'de facto interested in the outcome' the Panel accepted her evidence, supported by her colleague Chindove, that Chu had campaigned in restricted areas after the warning letter of the 26th July, notwithstanding that she only complained about these transgressions after the vote had ended, and when the results of the election were certainly known to some, according to some unchallenged witness statements.
An interesting aspect of the case was the position of the Chair of the Election Committee, Anita De Frantz, a very senior and longstanding member of the IOC. De Frantz had caused the original warning letter to be sent to Chu. She was present at meetings with Coventry and Chindove, conducted the 'Investigation meeting' with Chu and presented a 'comprehensive oral report' to the Executive Board. The Appellants wanted to question her about the process by which it was decided that Chu had transgressed ie about the nature of the evidence and how it came to her attention and how the decision that Chu should be disqualified was arrived at.
De Frantz seemingly refused to play any part in the proceedings and the IOC proceeded without her, calling other witnesses in her stead, but never providing the answers that the Appellants were seeking. The Panel were of the opinion that the 'De Frantz argument' was not relevant as this was a hearing de novo, and accordingly it was for the them to decide whether the IOC had proved its case, and if so, whether the sanction imposed was within the appropriate range of proportionate responses.  The Panel never did hear what was contained within De Frantz's 'comprehensive oral report' for which there was no written record.
Reputation Intact

Mu Yen Chu had set out to clear his name. He had been stained with the label of 'lollipop man'. Although ultimately the Panel found against him in the appeal, it was interesting that they chose to specifically characterise him as being guilty only of 'excessive zeal rather than of a desire to cheat'. His  actions were 'overt rather than covert' and 'they should not be equated with dishonesty'. According to the Panel, Mu Yen Chu's 'reputation and integrity as a sportsman remain untarnished'. Vindication of sorts.

Thursday 14 March 2013

Liar, Liar - Should Polygraph Evidence be used in Sports Tribunals?

The use of polygraph or lie detector evidence in Sports Law cases has been much debated. Given that evidence beyond adverse analytical findings is being used more frequently to prove doping violations pursuant to the WADA Code, there are calls for the use of such evidence, both to prove cases against and to exonerate athletes accused of doping. In cricket, in a bid to fight corruption, Steve Waugh, ex Australian captain, has led calls for the use of lie detectors. He 'convincingly' passed a test to 'demonstrate' that he had never been involved in match fixing. The MCC released a statement "The World Cricket Committee accepts that the use of polygraph tests is a sensitive subject but their potential use should now be widely debated in the game".

Waugh Advocates Use

There is considerable disagreement as to the accuracy of polygraph testing. Claims as to its reliability seem to range from 60 - 95% accuracy. In the CAS case of Alberto Contador, the Panel heard evidence from 2 leading professors who suggested an accuracy of 95% with 5% false positives ie people said to be lying who were not in fact. Nonetheless there must always be a degree of self interest in assessing the validity and value of one's own expertise.
 In the UK polygraph evidence is not used in courts, but it has begun to impact upon other legal procedures. The use of lie detector tests for certain criminals subject to  licence conditions has been legalised and sex offenders can now be assessed for release based in part on such investigations. Polygraph evidence is used in criminal proceedings in some US states although it is often said that the role of the jury in deciding the truth should not be usurped by scientific devices and the like.
The polygraph measures a person's physiological responses (eg pulse, respiration, blood flow etc). The theory is that a person's natural fear of being caught out in a lie will result in increased physiological responses when answering the relevant questions as opposed to when answering the control questions.
Opponents of the testing suggest that it can be defeated in a number of ways including by the adoption of 'counter measures' (such as the use of drugs and hypnosis) to reduce the variance in physiological response, but also by the self infliction of pain to derail the control response. Indeed Lance Armstrong's lawyer's statement in 2012 that the cyclist would be willing to take such a test to prove his innocence suggests that he was massively confident of successfully defeating it. Armstrong nemesis Tyler Hamilton even admits in his book 'The Secret Race' to having beaten the lie detector machine.
The position of CAS with regard to the admissibility of this type of evidence has shifted. In 2008 the Swiss athlete Daubney sought to rely upon a successful polygraph test to prove his innocence of knowingly taking cocaine. CAS ruled that such evidence ws inadmissible under Swiss law and accordingly any statement made to the expert by Daubney was purely admissible as a personal declaration. The expert scientific evidence was not admissible. Subsequently in the case of Alberto Contador, he successfully argued that, pursuant to WADC Article 3.2 'facts relating to an anti doping violation may be established by any reliable means' which had not been in force at the time of Daubney, such evidence was admissible. The admissibility was not challenged by the other parties. CAS ruled that the evidence added  'some force' to Contador's 'declarations of innocence, but do not, by nature, trump other elements of the evidence'.
The Chinese judoka Tong Wen also sought to rely upon polygraph evidence at CAS. Both Wen and Contador were represented  by Mike Morgan. The Respondent objected, but CAS did not ultimately make any finding about this aspect of her case. They ruled that the Respondent had not proved the doping violation because the B sample had been tested without the athlete being present and accordingly the adverse analytical finding was inadmissible.
Mike Morgan has reportedly made the point that such evidence should only be admissible where the athlete has consented to the procedure. Compulsion to take the test is, he argues, likely to skew the results of the test and accordingly render it unreliable in any event.
It is therefore more than likely that this type of evidence will prove more useful, but to a limited degree, to the accused athlete, than the prosecuting authority.

Thursday 7 March 2013

Can Danish Kaneria Evade Ban?

The answer to the question posed above was delivered today 26/4/13.
Kaneria lost his appeal against the findings of match fixing. Surprisingly the appeal against the sanction of a life ban is to be heard later. Once the ECB secured a High Court summons against key witness Mervyn Westfield, and in the spite of the bluster of Kaneria's legal team, the writing was on the wall for the Pakistani. This was a very good day for cricket.
The Original Story
In 2012 Danish Kaneria was found guilty by an independent ECB anti corruption panel of inducing another player (Mervyn Westfield) to under perform and of bringing the game into disrepute and consequently given a life ban. Because of reciprocal arrangements throughout cricket his ban is enforceable worldwide. Kaneria has not been able to play cricket since because notwithstanding an appeal the ban took immediate effect. The finding against him was largely based upon the testimony of Mervyn Westfield, a colleague at Essex County Cricket Club. Westfield himself was imprisoned for 4 months and banned by the ECB for 5 years although he can return to club cricket after 3 years. The Police also investigated Kaneria, but, given that they could not rely upon Westfield as a witness at that time, concluded that there was insufficient evidence to proceed.
The ECB Panel accepted Westfield's testimony before them and found Kaneria to be lying and giving an implausible account.
Kaneria is now appealing the ECB's finding against him. The hearing should have taken place in December 2012, but was postponed until April 2013 due to the unavailability of Westfield. It is believed that Westfield has withdrawn his co - operation and is refusing to attend. It was widely believed that Westfield could not be compelled to attend. Given that he cannot get his own ban reduced by continuing to co - operate, he appeared to have lost any desire to assist the ECB. When deciding upon the sanction in his case, his ban could have been mitigated by 'substantial assistance', but there is no provision to enable his sanction to be revisited in the light of subsequent co - operation. The time limits to appeal his original ban expired 21 days after the Panel's decision. There appears to be no discretion to allow Westfield to appeal out of time. Accordingly the ECB has no incentive to offer Westfield for his co - operation and testimony.
Nonetheless in a sensational development on the 11th April 2013 the ECB successfully obtained a witness summons from the High Court compelling Westfield's attendance before the Disciplinary Appeal Panel. Pursuant to Practice Direction 34A
 A witness summons may be issued in the High Court or a county court in aid of a court or tribunal which does not have the power to issue a witness summons in relation to the proceedings before it.


 Kaneria had been looking to profit from the absence of the ECB's star witness, but this is a potentially devastating blow to his hopes? The ECB may have turned the tables on the Pakistani cricketer at the eleventh hour.
The appeal is not ordinarily by way of a de novo rehearing. There is a presumption within the regulations that the appeal will look at the 'reasonableness of the original decision' rather than hearing evidence afresh.

Regulation 7.4.2
Where required in order to do justice (for example to cure procedural errors at the first
instance hearing), the appeal shall take the form of a re-hearing de novo of the issues
raised by the case. In all other cases, the appeal shall not take the form of a de novo
hearing but instead shall be limited to a consideration of whether the decision being
appealed was “Wednesbury unreasonable”.

 The legal arguments will turn on the interpretation of the phrase 'where required in order to do justice'.
Kaneria will argue that he is entitled, and that it is necessary, to cross examine Westfield (again) in order for justice to be served. Those acting for the ECB will contend that there is a full record (indeed an audio recording should exist) of Westfield's evidence and that it was fully tested at the original hearing by prominent Queen's Counsel and sports lawyers. Unless there have been significant developments since the original testimony and there are fresh matters that should be put to Westfield which undermine his credibility, the ECB's standpoint may prevail. Furthermore  I cannot see that Kaneria has any prospect of persuading the appeal panel that the original decision was 'Wednesbury unreasonable' ie perverse and contrary to the evidence.
Those acting for Kaneria have recently been loudly expressing their position in the media and asserting that a significant claim for compensation against the ECB for worldwide  loss of earnings will follow. They further suggest that they want Westfield to attend the hearing and for the 'truth' to emerge. They argue that any future hearing should be held in public knowing that ECB rules state the contrary. Somehow I doubt very much that Kaneria's team would greet an appearance by Westfield at the eventual appeal hearing with open arms. They may have to suffer it anyway and get what they 'publicly desired'.
The Daily Mail (22.3.13) floated the prospect of a rapprochement between the ECB and Westfield and perhaps some mitigation of the length of his ban. It does not identify the mechanism by which this would be achieved. Of course it would be very attractive to the cricket authorities to secure the co - operation of Westfield in an attempt to maintain the ban on the much bigger fish which is the Pakistani cricketer. In addition it claims that Westfield testified at the Old Bailey during criminal proceedings. In fact he pleaded guilty. Any observations there about Kaneria came from his defence Counsel and the sentencing judge. Kaneria of course was not ultimately prosecuted in the criminal courts due to lack of evidence.
Following Day 1 of the hearing Kaneria and his team were less ebullient than previously, claiming that the evidence was 'not strong' and that you cannot take away somebody's livelihood on the word of one person. This suggests that whatever misgivings Westfield has about his presence at the appeal his testimony continues to damn Kaneria.