Musings: In re Gabriel: Hard case … bad law?

West Indies cricket supporters, both of the born-again and the true-blue variety, are naturally feeling aggrieved at the recent decisions of the match referee in the current Test series to impose varying match bans on the captain, Mr Jason Holder and fast bowler, Mr Shannon Gabriel, for their respective infringements of the playing regulations and the Code of Conduct of the International Cricket Council [ICC].

The pique surrounding Mr Holder’s exclusion from the final test in the already-won series appeared to have been a reaction to what was perceived as the “most unkindest” cut of all, given his stellar performances in the first two matches and, especially, that the offence in question pertained to a failure to complete a required number of overs in a given period, when the match itself was completed in fewer than three days! However, as cogently argued in another section of the press last Sunday by three commentators, much of the huff here is misplaced, especially since a similar ban was previously imposed on Mr Holder when the opponents also won the match in three days. It is all about a single day’s play, not the duration of the match.

The Gabriel matter has evoked a similar disparagement of the ICC and more than a few individuals have leveled fanciful and baseless charges of some sinister plot by that governing body to weaken the regional team’s chances in the remainder of the series. Mr Gabriel was charged with an infringement of Article 2.1.4 of the ICC Code of Conduct for Players and Player Support Personnel that prohibits “using language or a gesture that is obscene, offensive or insulting to a Player, Player Support Personnel, other Match Official or Match Official Support Personnel or any other third person (including a spectator) during an International Match”.

According to the guidance notes for the offence –

Article 2.1.4 includes: (a) excessively audible or repetitious swearing; and (b) obscene gestures which are not directed at another person, such as swearing in frustration at one’s own poor play or fortune. In addition, this offence is not intended to penalise trivial behaviour. [Emphasis added]

When assessing the seriousness of the breach, the Umpire shall be required to take into account the context of the particular situation and whether the words or gesture are likely to: (a) be regarded as obscene; (b) give offence; or (c) insult another person.

This offence is not intended to cover any use of language or gestures that are likely to offend another person on the basis of their race, religion, gender, colour, descent, national or ethnic origin. Such conduct is prohibited under the ICC’s Anti-Racism Code and must be dealt with according to the procedures set out therein.

According to Mr Gabriel’s account of the matter, “The exchange occurred during a tense moment on the field. The pressure was on and England’s captain Joe Root was looking at me intensely as I prepared to bowl, which may have been the usual psychological strategy with which all Test cricketers are familiar.

“I recognize now that I was attempting to break through my own tension when I said to Joe Root: ‘Why are you smiling at me? Do you like boys?’

“His response, which was picked up by the microphone, was: ‘Don’t use it as an insult. There’s nothing wrong with being gay.’ I then responded: ‘I have no issues with that, but you should stop smiling at me.’”

Clearly, if we accept this version of events, and it has not been contradicted to my best knowledge, the charge would have been based on the premise that the language used by Mr Gabriel to Mr Root was obscene, or offensive or insulting. Arguably, at the very least, it was not obscene, and even if “offensive” is taken in an objective sense to mean “liable to be reasonably interpreted as offensive”; I am of the opinion that it would not meet that threshold, given the nature of the statement in its interrogative form. For the same reason, it could be deemed “insulting” at a stretch only, given the nature of Mr Root’s response indicating that while in his view Mr Gabriel might have intended it as such, he was not himself insulted, added to the unlikelihood of a reasonable man feeling insulted by such a query in that context.

In my view, Mr Gabriel’s question was converted into an assertion of fact and thus construed as offensive and insulting at the same time. This altered construction would have been owed substantially to Mr Root’s response that treated Mr Gabriel’s question as an allegation that he, Mr Root, was gay.

Otherwise put, Mr Gabriel’s question was transformed into one of those in Latin preceded by “Nonne” or “Num” that suggests the answer -

“The second method of forming questions in Latin is used when a specific answer is anticipated or preferred. “Nonne” is used when a yes answer is expected and “Num” is used when a no answer is expected.” The distinction is among “You like boys, don’t you?” [Nonne]“You don’t like boys, do you?”[Num] and “Do you like boys?”[Gabriel]

A perusal of the historical incidence of the use of this Article to punish offenders makes for interesting contrast. On January 9 last year, Taranjit Bharaj of Denmark, after not taking an obvious second run, shouted “F…” which was heard off the field of play… it was so loud. Then, on August 30, Bilal Khan of Oman used offensive language towards the opponent’s wicket keeper after hitting the winning run. Earlier, on March 8, our own Ashley Nurse, after a delivery of his was hit for a boundary, shouted an expletive very loudly which was picked up by the stump mike. And, for identical conduct, Rubel Hossain of Bangladesh was reprimanded on August 18 while Syed Aziz of Malaysia was even more flagrant. According to the ICC website, when bowling, Aziz ran towards the batsman and yelled an expletive- (https://www.icccricket.com/about/cricket/rules-and-regulations/code-of-c...)

From these scenarios, it can be inferred that the mischief aimed at here is the use of audible expletives on the field, whether or not directed at oneself, a player or official, an instance far removed from Mr Gabriel’s confessed infringement in this case.

It is acknowledged, nevertheless, that players, by their participation in ICC matches, agree to submit to the exclusive jurisdiction of any Match Referee, Judicial Commissioner or Appeal Panel convened under the Code of Conduct to hear and determine charges brought (and any appeals in relation thereto) pursuant to the Code of Conduct; and not to bring any proceedings in any court or other forum that are inconsistent with the foregoing submission to the jurisdiction of the Match Referee, Judicial Commissioner or Appeal Panel. – Article 1 of the Code.

More over, in any case, whether rightly or wrongly (!), Mr Gabriel pleaded guilty to the charge. So matter fix’. I would have advised him differently, though. And is a demerit point the most rehabilitative remedy in the circumstances?