A declaration of liability?

The Guardian (Media), Monday February 17, 2003

So it didn't happen. After days of hotel-room negotiations so protracted that Michael Vaughan, for one, wondered if he would remember what a cricket ball looked like, the England and Wales Cricket Board announced that England would not play their opening World Cup fixture in Zimbabwe. At last, the England players' disquiet over a range of "moral, political and contractual" issues had got through to their employers.

The ECB's 11th hour lumberings were played out next to one of the most courageous gestures sport has seen. Risking any number of reprisals, two Zimbabwe players Andy Flower and Henry Olonga - took to the field against Namibia wearing black armbands to protest at the Mugabe regime. In a statement all the more powerful for its dignity, they mourned the "death of democracy" in Zimbabwe and pleaded for an end to human rights abuses.

Their actions were unreservedly applauded. Not so, the ECB's decision least of all among executives at Rupert Murdoch's Global Cricket Corporation. It is only now that the full import of the players' reference to "contractual" concerns is apparent.

GCC acquired full financial control of the commercial rights to the cricket World Cup in June 2002, paying an estimated US$550m (343m) to the International Cricket Council for rights to major cricket tournaments up to the 2007 World Cup. Sponsors have been signed up, among them Pepsi, LG Electronics, Hero Honda and South African Airways. Those sponsors expect airtime, and in accordance with its agreement with the ICC (the ultimate rights holder to the Cricket World Cup), GCC will have guaranteed exposure for the 52 competitive matches in South Africa and Zimbabwe.

For England's aborted 13 February fixture at Harare Sports Ground, GCC will also have allotted satellite space, booked commentators, arranged for technicians and local fixers; in short, committed all the time and expense associated with broadcasting a major sports event. The ECB's decision not only means that this is money thrown away it also left a great big hole of hours of scheduled programming to fill.

All this gives an idea of the contractual issues that weighed on the players' minds. The players have signed playing agreements with the ECB, which, in turn, has a participation agreement with the ICC. And it, of course, contracted with GCC. On top of all that, there are agreements between Ali Bacher's World Cup organising committee and the Harare Sports Ground, as well as local concessions such as stall-holders and fast-food outlets.

But to what extent are the players or the ECB liable for what is conservatively estimated to be over 1m of lost revenue among the GCC, its sponsors and local interests in Harare?

Ian Smith, head of sport at Clarke Wilmott & Clarke, and lawyer to the Professional Cricketers' Association, says that it is unlikely the players will be held individually liable. "The ECB has had the good grace to let the players off the hook by taking responsibility for the decision not to play," says Smith, who adds: "Had it been the players' decision to boycott the game, they would have been able to argue to that the death threats brought them into a 'force majeure' situation." A force majeure clause is standard in commercial agreements and enables either side to walk away without liability if events beyond their control mean that something contracted for does not happen. However, not playing the game could nevertheless mean that the players are obliged to forfeit their match fees.

For the ECB, the position is less clear. It as the players' employer, and a collective legal entity, did not receive death threats, and so might find it hard to rely on a force majeure clause. The GCC may be entitled to claim that the ECB is in breach of contract, pure and simple. If so, arguably the ECB should foot the bill for all of GCC's loss of revenue consequential to the decision to pull out of the game.

Had the game been played in South Africa, on the same day and time originally scheduled, so that agreements with sponsors could be honoured, this would have significantly reduced any compensation payable and the players would still have got their match fees.

As it is, it seems that the understandably irate executives at GCC may have an axe to grind, not to mention the Harare Sports Ground and local concessions.

Perhaps, though, the GCC and other contractually aggrieved parties should study the conduct of Flower and Olonga both of whom won plaudits not merely from the press but other players in the tournament, including the England captain, Nasser Hussain. For them, there was a moral issue at stake that dwarfed the political and contractual machinations. No matter what the fallout, they were not prepared to take to the cricket pitch without making clear their objections to a regime discredited the world over. This, in a country where an individual needs a 'licence' to demonstrate.

No doubt "contractual" issues played their part in the ECB's decision. Ultimately, though, the players took a moral stance. As Richard Bevan, the managing director of the PCA, says, "the bottom line is that players did not want to see anyone in Zimbabwe hurt." Bevan says that though security officials may have been able to guarantee the players' safety, this was not enough. "The Zimbabwe police insisted they would clamp down on any disorder using maximum force. The players did not want to be party to an event that could have left innocent people covered in blood."

The aggrieved parties may ponder whether following the moral high ground adopted by Olonga, Flower and, belatedly, the ECB, will leave a nicer aftertaste than a long and costly action for breach of contract.