Anatomy of a governance catastrophe
Crafty Counsel looks at the Yorkshire County Cricket Club racism scandal, and the lessons it holds for lawyers helping to structure internal investigations.
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.
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 and the issues raised call into question the procedures and governance of not just Yorkshire County Cricket Club, but the sport as a whole.
We do know that legal professionals were involved throughout this sad, sorry saga from Rafiq’s initial complaints in 2017, to YCCC’s investigation over 2020 and 2021, to the response of the regulator, the England and Wales Cricket Board (ECB). One member of the Crafty Counsel community emailed to say that he felt that Azeem Rafiq was “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.
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 role of the Colin Graves Trust in governance at the club. Former YCCC Chairman Roger Hutton testified that he intended to dismiss senior executives at the club, but that he had been pressured not to by the Colin Graves Trust which had previously backed YCCC with loans worth several million pounds.
- 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 England and Wales Cricket Board 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
Atik Ahmed is Head of Legal at Marco Polo Network and, in his spare time, a Council Member of the London Football Association (LFA). From his perspective, the way that YCCC dealt with the affair was dissimilar to the manner in which sports, such as football, review anti-discrimination matters. Particularly concerning to Ahmed, was the panel’s conclusion that the ‘P-word’ was used in the context of ‘friendly banter’ with a teammate and that it was not reasonable for Rafiq to have been offended as “no malice was intended by either player to the other”.
“It is not possible to say the ‘P-word’ to Azeem Rafiq, and it be considered objectively acceptable in any circumstance whatsoever,” he told Crafty Counsel. “We’ve seen similar anti-discrimination cases in football at all levels of the game, and even at the grassroots level, players and clubs have been sanctioned for proven cases of discrimination. The YCCC panel were stated to be experts in their field, three out of five were also of South Asian descent and indeed one panel member was a practising employment law barrister. For them to come to this conclusion, on this specific matter, is inexplicable to me, and ultimately 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, and 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”.
Professor Richard Moorhead of the University of Exeter, who literally wrote the book on ethics for in-house lawyers, warned that legal professionals in a case like this had to keep a tight focus on maintaining their independence.
“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. It’s a really good example of the client and now the firm being dragged into questions about their independence and propriety, because they’ve tried to manage the image rather than deal with 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.”
Since the scandal blew up, regrets have been expressed, sponsorships have been withdrawn, and Yorkshire has seen a wholesale replacement of senior executives and board members. Incoming Chair Lord Kamlesh Patel has settled the employment tribunal and 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, but the club has announced a whistleblower’s hotline and a review into club governance carried out by the Good Governance Institute in partnership with Howard Kennedy LLP, expected to report 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. It is clear that many have been failed by our leadership and how we operate as a club. We must look closely at our processes and procedures, and I am determined that we go above and beyond gold standard both on paper and in practice,” said Lord Patel in a statement on 3rd December.
Meanwhile, the ECB has published a five point plan to tackle racism while working on its own investigation, and the PCA has vowed to learn from the scandal and set up its own panel of independent barristers for players to contact about issues of racism and discrimination.
Whether this flurry of activity results in genuine systemic change for the club and the game as a whole remains to be seen.