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| Marlon Samuels has been banned from the game for two years © AFP |
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On May 2, West Indies batsman Marlon Samuels was found guilty of a misconduct charge brought against him because of his involvement with an Indian gambler, Mukesh Kochhar. The judgment, which brought with it an immediate two-year ban from the game, was handed down by the Disciplinary Committee of the West Indies Cricket Board (WICB), headed by Justice Adrian Saunders and including Dr Lloyd Barnett, Professor Aubrey Bishop and former West Indies captain Richie Richardson.Following is a condensed version of the report of the WICB Committee:ChargesThe particulars of the first charge were that Mr Samuels had:received the benefit of the provision of hotel accommodation to the value of Indian Rupees 50,486.70 (US$1,238) from Mukesh Kochhar and/or his associates. At the conclusion of the West Indies vs India ODI Series in January 2007, [he] travelled to Mumbai on January 31, 2007 and stayed there at the Hyatt Regency Hotel until Sunday February 4, 2007. One night of the hotel stay was included in the Series travel and, as such, the cost was paid by the BCCI. On February 4, 2007, while checking out of the hotel, [he] called Mukesh Kochhar on his mobile and after speaking to him, handed over the phone to the cashier, who was informed by Kochhar that somebody would be sent to the hotel with the cash owing which was Indian Rupees 50,486.70 (US$1,238). About 30 minutes later a man called Yogesh Arora attended the hotel and paid the bill in cash.The particulars of the second charge were that Mr. Samuels had:engaged in conduct which, in the opinion of the Executive Board, relates directly or indirectly to the Rules of Conduct i.e. (i) to (xiii) and is prejudicial to the interests of the game of cricket, in that on Saturday January 20, 2007 at 23:45 hrs, while staying at the Pride Hotel in Nagpur, [he] received a phone call from one Mukesh Kochhar and provided to him accurate information regarding the West Indies opening bowlers at the first ODI between the West Indies and India which was played the very next day, January 21, 2007, in Nagpur.Peacock investigationThe circumstances surrounding the allegations made against Mr Samuels had been thoroughly investigated by Mr Alan Peacock, a Senior Investigator of the Anti-Corruption & Security Unit of the ICC. Mr Peacock had compiled a Report of his investigation and this was made available to the Committee. The Committee had the benefit of all the statements that had been taken by Mr. Peacock from persons who were in a position to assist with the investigation. These statements included both the audio recording and a printed transcript of a full and candid interview conducted by Mr Peacock with Mr Samuels on Wednesday April 25, 2007 in the presence of his lawyer, Mr Neita. The Committee also had available to it the audio recording and printed transcripts of a telephone conversation between Mr Mukesh Kochhar and Mr Samuels. This recording was available because the Indian police had been officially recording telephone calls made by Mr Kochhar and the recording of the call in question had been turned over to Mr Peacock.Mr Peacock was present in person to be examined on his report and on such other matters as Mr Samuels’ lawyers or the members of the Committee wished to question him.The evidentiary backgroundThere is little dispute as to the factual circumstances that attend the two charges. Central to all the relevant events is the relationship between Mukesh Kochhar and Marlon Samuels. Mr Kochhar is an Indian national who resides in Dubai. Mr Samuels is a West Indian international cricketer.The two men first met in early 2002. The West Indies team was in Sharjah to play against Pakistan. Marlon Samuels was just 19 years old at the time. While on tour he had sustained a knee injury requiring surgery and so was in the Players and VIP Stand. Mr Kochhar had a VIP box there. Mr Kochhar came into contact with Mr Samuels. He struck up a conversation with the injured youngster. In the course of the conversation Mr Samuels complained about the food at the hotel. Mr Kochhar immediately called up a friend who runs a local restaurant and arranged for food to be delivered to Mr Samuels’ room anytime he called. Mr Samuels and Mr Kochhar exchanged telephone numbers and, although they did not see each other frequently over the years, Mr Kochhar kept in regular telephone contact. The two developed a friendship. Mr Samuels regarded Mr Kochhar, a man Mr Peacock adjudged to be in his late 50s or 60s, as a father figure, a mentor.More backgroundIn January, 2007, the West Indies team was on tour in India. The team played an ODI at Nagpur on Sunday January 21, 2007. On the previous night of Saturday January 20, 2007 at 23:45 hrs, Mr Kochhar called Mr Samuels who was then alone in his hotel room. Unknown to Mr Samuels and to Mr Kochhar at the time, all of the latter’s telephone calls were being intercepted legally and covertly by the Indian police. The call to Mr Samuels was recorded. The tape was turned over to Mr Peacock. The Committee was able to listen to the recording of the entire call. It lasted for about six minutes. On the tape, Mr Kochhar and Mr Samuels exchanged pleasantries as old friends might and then they spoke about the match to be played the next day. Mr Samuels is encouraged to play well, not to give catches, not to get run out and to consolidate his position in the team. The conversation also encompasses team information. Mr Kolchhar asks, inter alia, whether “Chris” is in form; who will open the bowling for the West Indies; when will Mr Samuels come on to bowl. Mr Samuels gives an answer to each of these questions. He informs Mr Kolchhar that the opening bowlers would be (Jerome) Taylor and (Ian) Bradshaw.In his remarkably frank and candid interview with Mr Peacock, recounting this telephone call, Mr Kochhar said:”During our conversation we talked about the fact that the ball moves around in the morning and slows down in the afternoon. I asked him who the opening bowlers would be and he told me Taylor and Bradshaw. We discussed that Marlon would be third bowler and Chris Gayle would be fourth or fifth bowler. He told me there would be new faces in the team, making a debut. I gave him words of encouragement and told him to consolidate his play”Some of the information that was given to Mr Kochhar by Mr Samuels turned out to be accurate. Taylor and Bradshaw did open the bowling for the West Indies the following day and Samuels did bowl first change. It may be sheer coincidence but that bowling order had never previously been employed by a West Indies captain nor has it ever been employed since. Some of the information given to Mr. Kochhar turned out to be false. No player made his debut during that match and we were unable to determine whether any debutant was in the squad named from which the final 11 was chosen.In June, 2007, Mr Peacock interviewed Mr Henderson Springer, the West Indies assistant coach on that tour to India. Mr Springer could not remember any of the details of the team meeting the night before the match at Nagpur but he confirmed that there definitely would have been one. He stated that at such team meetings the usual format would be to discuss the other team’s weak points and the tactics of how to do well themselves. During the meeting the players would learn who was in the team the next day and usually who the opening bowlers would be. They hardly ever discussed who the third bowler would be. Mr Springer could not remember if any of these points was actually covered in the meeting the night before the Nagpur match, and he could not remember if there was any discussion about when the likely debutant would actually be making his debut.Mr Kochhar admitted to Mr Peacock that he bets heavily on cricket. He has always done so. He denied, however, that he was a cricket bookmaker and Mr Peacock turned up no evidence to disprove that denial. Mr Kochhar also admitted that he did place bets on the West Indies/India match at Nagpur on January 21, 2007. He told Mr Peacock that he could not remember what the bets were or whether he had won or lost because he had placed bets on so many matches. He told Mr Peacock, off the record as he was worried about the police in the UAE and the tax authorities in India, that he regularly gambled between 3-5 lakhs a time i.e. approximately US$7,000-$12,000.Towards the end of his interview with Mr Peacock, Mr Kochhar noted: “I have never actually discussed my cricket betting with Marlon, he has never asked me to put a bet on for him, but maybe he knows I bet because of Sharjah.” It must be said, however, that no further evidence was presented to the Committee that Mr. Samuels was ever aware of Mr. Kochhar’s betting activities and therefore the Committee makes no finding that he was aware of them.At the end of that 2007 India tour, Mr Samuels and Mr Chris Gayle spent a few extra days in Mumbai. The pair had arranged to be participants in a television or video production from which they expected to earn US$2,000 each. The arrangements fell through. The players went to the site prepared to do the shoot. From bitter experience, they saw it fit to demand payment in advance. When payment was not forthcoming they declined ultimately to participate in the production.Like Mr Gayle, Mr Samuels became personally responsible for defraying his hotel and accommodation expenses for the extra days he had stayed on in Mumbai. Mr Gayle paid his bill with a credit card. Mr Samuels attempted to do likewise but his card was declined. He had spent that morning shopping. He therefore needed money to pay his hotel bill. He called Mr Kochhar from the hotel lobby and asked him to settle the unpaid hotel expenses. Mr Kochhar there and then arranged to have someone immediately go to the hotel and settle Mr Samuels’ bill. The bill came up to 50,486.70 Rupees or US$1,238.Mr Samuels stated in his interview with Mr Peacock that this was the first time he had ever asked Mr Kochhar to do anything of the sort and that he had every intention of repaying him the funds. Mr Kochhar, in his interview with Mr Peacock, confirmed that Mr Samuels had indicated to him (Kochhar) that he (Samuels) would give the money back when he returned to the West Indies but Mr Kochhar said that he told him that it was unnecessary and that there was no need to repay him.The funds were never repaid. Mr Samuels explained that as soon as he returned to Jamaica he was required to go off to the West Indies’ World Cup training camp and then, shortly after that, the news of this matter hit the international press. A transcript of the Kochhar/Samuels telephone call the night before the Nagpur ODI was leaked to the Indian Press and Cricinfo published the transcript for all the world to see. In light of the enormous international controversy that ensued following this publication, Mr Samuels’ lawyers stated that Mr Samuels did not think it prudent further to communicate with Mr Kochhar.Comments on affidavits given on Samuels character. (including Tony Becca and Michael Holding)Mr Michael Holding, who needs no introduction in cricketing circles, said in his affidavit that he came to know Marlon Samuels from the latter’s childhood as a member of the Melbourne Cricket Club. He deposed that “as a result of the nature of the academic side of his time at Kingston College, Marlon received extra lessons from my mother for a considerable period”. Mr Holding described Marlon as “naive and, quite unfortunately, seriously lacking in judgment and discernment, but he is by no means a dishonest person nor one who would in the slightest be given to the kind of corrupt activity now alleged against him”.The charge related to divulging confidential team information.After the legal submissions had been made, the Committee continued to have grave doubts not merely about whether the second charge, as amended by the Committee, had been proved but also about the propriety of the very charge itself. The essence of the charge relates to the divulging of confidential team information. The charge in question is set out at para 5 above. The particulars of the charge describe conduct which is said to be contrary to Part C 4 (xiv) of the Code of Conduct. What is prohibited by Part C 4 (xiv) is conduct prejudicial to the interests of the game of cricket and which conduct “relates directly or indirectly to any of the above paragraphs (i) to (xiii)”.When we deliberated among ourselves, we sought in vain to locate the impugned conduct of Mr. Samuels within Part C 4 (i) to (xiii) of the Code of Conduct. We recalled counsel and sought assistance from Mr Jones. We did not find his answers convincing either as to the aspects of Part C 4 (i) to (xiv) to which the alleged conduct relates or as to whether there was any evidence in favour of his submission that “team” or “dressing room” decisions had been divulged.The only aspects of Part C 4 (i) to (xiii) of the Code of Conduct that could conceivably relate to the particulars described in the second charge are those referred to at C 4 (viii) and C 4 (xi). Part C 4 (viii) prohibits a person from “[receiving] from another person any money, benefit or other reward (whether financial or otherwise) for the provision of any information concerning the weather, the teams, the state of the ground, the status of, or the outcome of, any match or the occurrence of any event unless such information has been provided to a newspaper or other form of media in accordance with an obligation entered into in the normal course and disclosed in advance to the Cricket Authority of the relevant member country”.The difficulty with treating Part C 4 (viii) as related to Samuels’ conduct is that the whole emphasis in C 4 (viii) is placed on the giving of confidential information for reward. But there is no evidence before us that Samuels exchanged or had any intention of exchanging for reward the information he shared with Mr. Kochhar. If anything, the evidence is quite to the contrary. Part C 4 (viii) is therefore of no help in determining exactly what is the conduct of Mr Samuels that “relates directly or indirectly to any of the above paragraphs (i) to (xiii)”.Part C 4 (xi) is equally unhelpful. That part speaks to a person who has “received any approaches from another person to engage in conduct such as that described in any of the above paragraphs (i) to (x) and has failed to disclose the same to his captain or to his team manager, or to a senior Board official or to the Anti-Corruption and Security Unit”.The problem here is immediately obvious. To use Part C 4 (xi) in this manner would suggest that there is described in the Code, somewhere between paragraphs (i) to (x), some conduct that is akin or “related directly or indirectly” to the conduct particularised in the second charge laid against Mr Samuels. But there is no such conduct so described between paragraphs (i) to (x). In short, it did not appear to us that the Code, as it is currently worded, prohibits per se the improper divulging even of confidential team information in circumstances where the person giving out the information does not himself: bet on matches (i), or encourage others to bet on matches (ii), or gamble (iii), or encourage others to gamble (iv), or become a party to match fixing (v), or underperform (vi), or encourage some other to underperform (vii), or trade the information for reward (viii).This may or may not have been an oversight on the part of the ICC but in light of these circumstances, we felt unanimously that the charge related to divulging confidential team information should be dismissed and we did so.The charge related to receiving a benefitThe Committee was divided on this charge. A majority thought the charge proved. Prof Bishop, for reasons he has given in the appended dissent, thought otherwise.The majority considered that the gravamen of this charge is the receipt of any money, benefit or other reward (whether financial or otherwise) which could bring the person receiving the benefit or the game of cricket into disrepute.What did the majority consider to be the circumstances at play here? By 2007, Mr Samuels was an experienced, well travelled international cricketer. He must have been aware of the work of the Anti-Corruption Unit. …The benefit received by him was obtained from someone with whom he had been discussing on the telephone team tactics and information concerning a match scheduled to take place just hours after the phone discussion. There is no evidence to suggest that the receipt of the benefit was directly linked to the telephone discussion as suggesting a quid pro quo. But the majority considers that the telephone conversation provides an important part of the context which must be taken into account in order to determine whether, in the eyes of an objective by-stander, the receipt of the benefit could bring the game into disrepute.The penalty to be imposedThe Committee as a whole was extremely disappointed to note that the prescribed penalty to be imposed for commission of the offence the majority found proved is a minimum ban for a period of two years. The apparent mandatory nature of this minimum penalty does not at all sit well with the Committee. While we appreciate the need to be firm in wiping out every vestige of corruption in international cricket, we have serious reservations about the propriety of a Code that prescribes mandatory minimum punishments generally and particularly for the offence the majority found proved.From the standpoint of both the offence concerned and the person who might commit the same, an enormous range in character and in culpability is possible. The circumstances in which this particular offence may be committed and the personal background and motive of the offender may vary radically from one accused person to another. As indicated before, the offence does not only target the corrupt and the dishonest. It is therefore wholly unreasonable and unfair to visit upon all who are caught within its reach a uniform and very severe penalty of a mandatory two-year ban. Indeed, the distinguished ex-West Indies captain, Mr Richie Richardson, a member of the Committee, could not bring himself to sign the Minute of our decision without expressing the reservation that, “based on the evidence during the hearing, the applicable two-year ban is excessive, harsh and unfair”. The entire Committee shares these sentiments. We consider a minimum two-year ban to be entirely disproportionate in the circumstances.We were of the view that given the circumstances that attended Mr Samuels’ commission of the offence and in light of the unchallenged evidence we received as to his character and judgment and his complete cooperation in this investigation, if we had the power so to recommend we would have recommended that Mr Samuels be bound over to be of good behaviour for a period not exceeding two years.Recommendations to the BoardThe Committee recommends to the WICB that it should use its good offices to have the ICC re-visit the Code of Conduct. This Report has drawn attention to certain anomalies in the Code. There may well be others that exist quite apart from the matter of mandatory penalties generally and in particular for some of the specific offences laid out in the Code.Finally, and further to what is stated at paragraph 51 above, the WICB need to take up with the ICC as a matter of urgency the prospect that Mr Samuels could be banned from playing cricket for two years when it has not been proven by the Committee that he did anything dishonestly or for a corrupt purpose.