Crafty Counsel looks at the Yorkshire County Cricket Club racism scandal. Sharing the lessons it holds for lawyers helping to structure internal investigations.
Anatomy of a governance catastrophe
On 16th November, Azeem Rafiq sat down in front of the Digital, Culture, Media and Sport Committee to talk about his experience of racism at Yorkshire County Cricket Club (YCCC). His testimony left the sport reeling as he described the effect on his mental health, his relationship with his teammates and, ultimately, on his career.
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But as the smoke clears, questions persist about how a complaint of workplace bullying in 2017 led all the way to a parliamentary committee hearing live-streamed to a horrified nation four years later. Something had to have gone terribly wrong here. The issues raised call into question the procedures and governance of not just YCCC, but the sport as a whole.
Legal professionals played a role throughout this sad saga, from Rafiq’s initial complaints in 2017 to YCCC’s investigation in 2020 and 2021, and continuing with the regulator’s response, the England and Wales Cricket Board (ECB). One member of the Crafty Counsel community said he felt Azeem Rafiq had been “frankly let down by the legal profession.” So what happened here? And what, if anything, can we learn from it?
The picture that emerges from the transcripts of the DCMS hearing, the summarised report by the club’s investigation panel, and YCCC’s press releases over the past year, is a picture of an organisation that didn’t know how to, or chose not, to engage properly with Rafiq’s complaints.
Overview of the committee findings
The committee hearing explored a smorgasbord of issues including:
- The lack of transparency in YCCC’s investigation into Rafiq’s complaints, which were first raised internally in 2017
- The continued delays in publishing the report of the independent investigation panel, which even today has only been seen in summary or in leaks obtained by ESPNCricinfo
- The makeup and structure of the independent panel, which saw two resignations in its first month and which Julian Knight, Chair of the DCMS Committee described as “a Venn diagram of stupidity”
- The appointment of law firm Squire Patton Boggs to conduct the investigation for the panel by YCCC. Roger Hutton, chairman of YCCC at the time, was previously a senior partner at SPB.
- The unclear nature of the relationship between the panel and SPB. Of particular concern to Kevin Brennan MP of the DCMS committee was the fact that in April 2021, the panel changed the terms of reference to the investigation. SPB was instructructed not to make a finding on the question of YCCC’s institutional racism. Instead the panel made that determination themselves, reporting in August that it was unable to find evidence of institutional racism.
- The Colin Graves Trust played a significant role in the club’s governance. Former YCCC Chairman Roger Hutton testified that he planned to dismiss senior executives at the club but faced pressure from the Colin Graves Trust, which had previously supported YCCC with several million pounds in loans.
- The role of the Professional Cricketers’ Association (PCA). Rafiq spoke to a PCA lawyer and was told “You do not have a case.” Rafiq said that he later found out that this was because “if they had backed me it would have taken their whole budget”.
- The apparent conflict of interest for the ECB in its roles as both promoter and regulator of the sport.
- The ECB’s decision not to investigate YCCC until after the club had submitted its own report, a year after the investigation started
Reactions to the Yorkshire County Cricket Club Scandal from in-house lawyers
Atik Ahmed is Head of Legal at Marco Polo Network. In his spare time, a Council Member of the London Football Association (LFA). From his perspective, how YCCC dealt with the affair was dissimilar to the manner in which sports review anti-discrimination matters. Ahmed was particularly concerned that the panel concluded the ‘P-word’ was used as ‘friendly banter’ between teammates. The panel also argued that Rafiq’s offense was unreasonable, as neither player intended malice toward the other.
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“It is not possible to say the ‘P-word’ to Azeem Rafiq, and it be considered objectively acceptable in any circumstance whatsoever. We’ve seen similar anti-discrimination cases in football at all levels of the game. Even at the grassroots level, players and clubs have been sanctioned for proven cases of discrimination. The YCCC panel stated to be experts in their field. Three out of five were also of South Asian descent and one panel member was a practising employment law barrister. For them to come to this conclusion, on this specific matter, is inexplicable to me. Ultimately it damages the trust that players should have in independent processes.”
Ahmed also expressed disappointment in the ECB and its decision to permit the YCCC to run its own investigation. “The ECB structure effectively allowed the YCCC to mark its own homework. Even to today, withhold the panel’s full report from public view,” he said. “This case has also highlighted failures in the robustness of the ECB’s own regulatory processes”.
What can in-house lawyers learn?
Professor Richard Moorhead of the University of Exeter literally wrote the book on ethics for in-house lawyers. He warned that legal professionals in a case like this had to keep a tight focus on maintaining their independence.
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“It’s quite common for corporates or other organisations to commission independent investigations which actually have as their dominant focus reputation management, rather than dealing with the guts of the issue,” he told Crafty Counsel. “And that, to me, is the heart of the case. This is a clear example of the client and the firm being dragged into questions about their independence and propriety. They’ve focused on managing their image instead of addressing the substance of the complaints and the problem.
So what should have happened? Professor Moorhead explained there are three essential elements to good investigations:
“Firstly, you have to have clear terms of reference. Then you have to have speed. It’s really important to the victims and to the host organisation to find out quickly what went on. And finally, you have to have high quality investigators. They have to know what they’re doing in terms of conducting interviews. Ultimately, too, they need to be able to report their findings clearly and independently.”
The reaction from Yorkshire County Cricket Club
Since the scandal erupted, individuals have expressed regrets, sponsors have withdrawn, and Yorkshire has replaced senior executives and board members in bulk. Incoming Chair Lord Kamlesh Patel has settled the employment tribunal. He also announced a new investigation and hotline looking into historic and present cases of racism. Lord Patel praised Rafiq for his courage and called for “a period of truth and reconciliation”.
At the time of writing, YCCC has not responded to a request for comment. However, the club announced a review into club governance carried out by the Good Governance Institute with Howard Kennedy. Publication of this is expected on 24th January 2022. Encouragingly, YCCC has also published the full terms of reference for review.
“The independent Governance review will be essential in helping us shape how we move forward as a Club following the recent challenges we have faced. Our leadership and the way we operate as a club have failed many. We must closely examine our processes and procedures. I am determined that we exceed the gold standard, both on paper and in practice,” said Lord Patel in a statement on December 3rd.
Meanwhile, the ECB published a five point plan to tackle racism while working on its own investigation. The PCA has vowed to learn from the scandal. It’s set up its own panel of independent barristers for players to contact about issues of racism and discrimination.
Whether genuine systemic change for the club and the game has come from these activities has not been seen.