Sandpapergate: In quest for a non-existent moral high ground, Cricket Australia has destroyed three fine careers

The punishments handed out to Steve Smith, David Warner and Cameron Bancroft seem excessive to me. It appears to be an exercise in regaining a mythical moral high ground — and not merely because moral high grounds are generally a ruse, especially when self-conferred. It is just that Australia’s opponents have rarely regarded their cricketers in the same esteem.

Don’t get me wrong. There isn’t a cricket fan anywhere in the world that regards Australia as anything other than a premier cricketing power through the history of the sport. Simply put, Australia have been better than everyone else for longer stretches of time than any other nation can claim.

Australia's David Warner and Steve Smith (right). AFP

But they have been the “Ugly Aussies”, the purveyors of “mental disintegration”, who bowled under-arm, had physical confrontations with opponents, who took it to be a part of their cricketing duty to rain down abuse on the vulnerable without regard to the personal nature of their vulnerability, written a “Spirit of Cricket” document that they’ve willy-nilly torn asunder — all in the name of playing cricket “hard, but fair”.

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The latest ball-tampering episode ought to have indicated to the powers that be that a descent to the level of the rest of us mere mortal cricketing nations wasn’t so much required, as an obvious reality staring back from the cracked mirror. Far too many times “hard, but fair” has proved to be cricket’s version of the “boys will be boys” anthem that every man ever accused of sexual aggression has sung.

But none of this rhetoric justifies the punishment meted out to Steve Smith, David Warner and Cameron Bancroft because the punishment simply does not fit the crime. First and foremost, James Sutherland, Cricket Australia’s Chief Executive, has clarified that the bans aren’t for ball-tampering per se, rather they are for the larger violation of the spirit of the game. Penal punishments need to be based on specific rules within a clarion code so that the perpetrator is clear about the repercussions that his/her actions may entail.

To set up a hitherto uncodified punishment based on such a nebulous charge sets a dangerous precedent. Is ball-tampering more egregious in Australia than it is in the eyes of the ICC? It would certainly seem so, because while the ICC’s punishments have seemed meagre to many, they have been perfectly in line with their code. Are they suggesting that the ICC, the custodian of the game, has an erroneous view of what constitutes cheating within the sport? What of future Australian cricketers? Which code are they to follow — the ICC’s or the code of Cricket Australia, which blatantly appears to be an imprecise barometer of public angst?

In any event, the spirit of cricket is far more resilient than many will admit to. And was it not in keeping with the spirit of the game for Smith and Bancroft to have fronted up and admitted to what happened? It would surely have been easier to have Bancroft take it all on his head, suffer the ICC’s punishment and walk away unscathed as many before have for exactly the same offence. I’m afraid Cricket Australia’s precedent means there is no longer any incentive to confess to any wrongdoing. That, to me, is a larger threat to the spirit of the game. Uncodified punishments can have many unintended consequences, which among other reasons of fairness are why they are illegal in general law.

Next, it is important to assess the status of ball-tampering in the sport. There is no rule that says that the fielding team can’t polish the ball, but there is one that says they can’t use artificial substances for that purpose. Shining one side of the ball, as all teams do, while waiting, without the use of unfair means as described in Law 41.3.2, for the other side to scruff up is manifestly a form of “tampering”.

It’s just that it is considered legal because that is how things have always been. Modern cricket has a new way of swinging the ball and many experts hold the view that the bowling team must have the final call on the state of the ball. Maybe it is time that the ICC reviewed its strict definition of what it considers tampering.

But the larger point to be made here is that “tampering” with the ball is a natural act for a fielding team to undertake and the line drawn to determine what constitutes tampering is saved from arbitrariness only in being based on tradition. Well, traditions can evolve and sometimes change altogether. And we’re witnessing two opposing incentives at play, viz, bowlers are selected on their ability to generate reverse swing but the laws want to make it harder to execute that skill. I would submit that it is the law that needs to be brought in line with the tactics that professionals playing the game day in and day out have evolved rather than to have matters dictated to them.

For what it’s worth, the actions of Bancroft would have fallen afoul of the most charitable definition of ball-tampering because he used an external object to, hilariously enough, completely fail to change the condition of the ball. The umpires will testify to this — we’re told they checked the ball 11 times after they got wind that something might be brewing!

Tampering therefore is a grey area and not entirely outside either the experience or the spirit of the game. The use of an external object is, and therefore, undoubtedly a wrongdoing has been committed. But what Cricket Australia has done in meting out a year-long ban to Smith and Warner with a further two-year captaincy ban (for Smith) is to somewhat equate ball-tampering with match-fixing or consuming banned substances.

There is no other circumstance in which such a hefty punishment is doled out. It beggars belief that these matters can be equated or even remotely treated on the same spectrum. Let me explain why I hold this view.

Match-fixing involves deliberate under-performance at the behest of an external agent for a fee, thus making the whole spectacle a farce, a falsehood before our very eyes. It is therefore an act of cheating perpetrated against all concerned — teammates, opponents, administrators, sponsors, and most importantly, the viewing public who invest their hard earned money to watch a competitive sport. The match-fixer cares not a jot for the sport; his only concern is to do his master’s bidding at the expense of the competitive element of the sport.

Ball-tampering actually stems from the opposite instinct, i.e., the instinct to play the sport better. Undoubtedly it is a way of gaining an unfair (because the rules are what they are) advantage against your opponent but the intent is to win and to do so by playing better cricket than one is capable of, and to thus produce a better sporting spectacle all round. And the act itself is an overstretching of actions that are otherwise perfectly legal within the sport. The ball-tamperer does not wish to damn the game the way in which a match-fixer does. This is probably why the ICC sees ball-tampering as a Level 2 offence. They understand these instincts.

Smith, Warner and Bancroft have acted in concert to secure an advantage for their team through foul means, no doubt. But their conspiracy nonetheless related only to ball-tampering. A tampered ball does not in and of itself guarantees results, as poor Mitchell Starc will testify. And an untampered ball can wreak havoc, as Kagiso Rabada has so brilliantly displayed during the course of the series.

And what kind of conspiracy to secure a bowling advantage does not bother to include any of the bowlers! The crime of stupidity doesn’t deserve such a harsh punishment.

This brings me back to all the rhetoric surrounding this incident. Cricket Australia self admittedly have acted to elevate the game. They are making the same mistake all over again. They see Australian cricket as above that of the rest of the world. It’s time they took a closer look because they will sooner find Atlantis than any moral high ground. They have never had this moral high ground in the eyes of the global cricket watching public, and they most certainly won’t even after this charade is played out.

Ironically, it is this hubristic approach to the game that created the win-at-all-costs attitude that has brought SandpaperGate to pass. In this doomed quest to re-establish a non-existent moral superiority they have all but destroyed three very fine careers.

The writer is a lawyer practising before the courts in New Delhi and a self-avowed cricket fanatic.