Is Vodafone on a sticky wicket over Zimbabwe?

The Times, Tuesday Octoeber 14, 2003

So Vodafone may withdraw its 3 million-a-year sponsorship if England decide to go ahead and tour in Zimbabwe in November 2004. At least, that was the intimation from company chairman and erstwhile head of the England and Wales Cricket Board (ECB) Lord MacLaurin of Knebworth, whose outright condemnation of Robert Mugabe's regime came just as the English county season wended its way to a close.

The prospect of England touring in Zimbabwe under the present regime was, said Lord MacLaurin, "abhorrent." The man widely credited with a great deal of innovative thinking in connection with domestic cricket over the past few years who joined Vodafone in May 2000 did not pull his punches: "We do not want to support a side that plays in a country with the sort of regime that is reviled not just by this company but by many in the country. To do so would be good for the brand image neither of Vodafone nor England cricket."

There are many who would endorse Lord MacLaurin's comments, among them, it is widely believed, the majority of the England players. Disquiet over what the players' representative union the Professional Cricketers' Association (PCA) described as "a range of weighty moral, political and contractual issues" led to the announcement in February this year that the England team would not play their opening World Cup fixture in Zimbabwe. A similar disquiet is likely to be all too evident now, even if the tour of Zimbabwe is a year away. But leaving aside the players' concerns and Lord MacLaurin's own clarification of his initial remarks (he has since insisted that Vodafone is "an honourable company," which has no intention of "withdrawing sponsorship with the ECB if England do go"), just how could the company have sought to renege from a signed and sealed sponsorship deal?

Fraser Reid, a member of Addleshaw Goddard's sports group, says that much will depend on the way in which the original sponsorship contract was drafted. "There is a need to be creative in drafting so that problems such as the dilution of the brand can be anticipated. If this were the case, there could be an argument for Vodafone to withdraw if it could be argued that the company's sponsorship of an England team playing in Zimbabwe would diminish the value of its brand. This comes down to the nature of the agreement struck by Vodafone and the clauses incorporated in the contract."

But Ian Smith, head of sport at Clarke Willmott and legal advisor to the PCA, has significant doubts about Vodafone's arguments in law. "Lord MacLaurin was making known his, and Vodafone's, moral objections to the regime in Zimbabwe," he says. "But to argue that moral objections can give rise to a breach of contract is tenuous, to say the least."

Under English law, the parties to a contract are free to make their own bargain, and generally the courts will not interfere or question whether the terms are unreasonable. Smith points out that there are exceptions: "There is a body of law aimed at enforcing public morality," he says, "so that, for example, a contract might be voidable for immorality. But disliking an overseas regime is not likely to be one of them." A well-known example came in 1866, when a coach owner who hired his coach to a prostitute lost his claim for unpaid hire charges, because he knew that she would be using it not merely as a roof over her head. So, too, does public policy ensure that a bet with a UK bookmaker is 'binding in honour only.'

But if morality and the law do sometimes collide, Smith cautions that on this occasion, the clash would not be helpful. "The law is only a very small part of this controversy," he says. "The reality is that this is a commercial and political decision. If the safety of the players was threatened, that might give rise to grounds for them to refuse to go to Zimbabwe, but the impact of the tour not going ahead would be huge."

It is difficult not to disagree with this view given the ramifications of England's refusal to play in Harare last February. Cricket's worldwide governing body, the International Cricket Council (ICC), has refused to distribute the full $3.5 million participation fee from the World Cup fund to England, and has also withheld $2.0 million from New Zealand following its non-appearance at a fixture in Kenya, also on account of security fears. The ICC needs to withhold the money pending resolution of a claim for compensation brought by the broadcast rights holders to the event, Rupert Murdoch's Global Cricket Corporation.

The net effect is that less money filters down to the counties and cricket's grass roots. For all the glory of winning their first county championship this year, Sussex received less prize money than last year's winners, Surrey. In a sport dependent on centralised funding, which is facing a number of financial challenges, cricket fans will have been cheered by Lord MacLaurin's clarification of his original comments. Cricket can ill afford the disappearance of a major sponsor and consequential litigation. Nor, though, can the players be expected to take unnecessary risks. Perhaps this is one case where there is, for once, a consensus in favour of regime change.