The Sports Law & Policy Centre | Should Disciplinary Bans In Sports Be Extended by The Duration of The Coronavirus Lockdown?: The View
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Should Disciplinary Bans In Sports Be Extended by The Duration of The Coronavirus Lockdown?: The View

A joke in Andrew Fidel Fernando’s hilarious satirical column The Briefing led to the present debate: should players serving term bans see their terms extended due to the coronavirus lockdown? Let me explain what I mean by that. Players, across sports, who have typically committed serious infractions such as doping, outright cheating or spot/match-fixing are given bans for a period of time such as a year or two. These bans do not consider the number of matches that might be played in the term, or even if the player would/could have played those matches. Fernando pointed out that the Bangladesh all-rounder Shakib al Hasan, who is serving a one-year corruption related ban may well be a fan of the current lockdown due to the coronavirus pandemic as it means that he is missing less cricket. In the following paragraphs, I argue that we must consider extending such term bans by the period of time for which the lockdown continues.

Fernando was prescient. A controversy has started brewing that about 40 athletes, who were to miss the 2020 Tokyo Olympics due to doping bans, can now qualify for the Games which have been re-scheduled to 2021. However, regardless of whether this was an Olympic year or not, I believe that an extension on bans ought to have been considered.

Even in non-Olympic sports, I believe that players who have received term bans are unfairly benefitting from the current scenario. The current lockdown in several countries, where no sport is being played, is an effective reduction of their sentence. They are not worse placed than any other player at present. The idea of the ban was to ensure that they cannot play for a period of time for the wrong they have done. Basic theories of sentencing state that the purpose of a punishment is to denounce the person, serve as a deterrent, be reformative and also be retributive. If we truly believed that a one-year period was essential to deter other potential wrong-doers, for the banned player to reflect and reform, or as an ample retribution, this is an effective reduction in that period.

An argument that might be made against this is that the ban itself does not consider whether or not cricket is being played in that period. This argument further goes on to state that there might well be no cricket played by the banned player’s team in the period of suspension due to normal, non-covid related scheduling quirks.

There are two responses to this argument. First, term bans not only exclude players from playing organized, recognized sport but they also prevent the player from accessing facilities of their club, state and national teams. Therefore, the punishment does not need matches to be played in the period of suspension for the player to be penalized in a very material form. S. Sreesanth, the Indian pace bowler banned for spot-fixing, for instance, trains with local children on concrete pitches because he is not permitted to access official training facilities.  However, at present, no player is able to access these facilities due to complete lockdowns.

Second, term bans assume that sport shall be played during the period of suspension. The current scenario is unprecedented and, therefore, could not have been conceived of when the rules were being made. Take a look at the ICC Code of Conduct. As the seriousness of the offence increases, so does the sanction. Therefore, at one end of the spectrum are fines, while term bans are at the other end. However, term bans, even for one year, are higher on the spectrum than being suspended for 12 matches. Therefore, the Code of Conduct seems to assume that a 1 year ban is harsher than a fairly large number of suspensions. Imagine this scenario. 2 players, A and B, were awarded bans on the day before cricket was suspended by their national board. A was given a 1-year ban, while B was suspended for 3 matches. If this embargo on sports continues for a prolonged period, we could end up in the anomalous situation that A returns to the field before B. Surely, that would be most unjust.

While I have made my case so far without referring to the impact on the Olympics, it cannot be ignored as this is perhaps the most significant form our argument is taking. Even in non-Olympic sports like cricket there will be big-ticket benefits. Players such as Shakib al Hasan and Sreesanth might get to press their case for selection for the T20 World Cup, presently scheduled in October, if it is postponed as a consequence of social distancing measures. These athletes and players might thus be able avoid the harshest consequences of their terms bans. This seriously undermines the deterrent and retributive effect of their punishments. That being said, I have intentionally not relied on this fact too heavily in making my argument. The sentence never considered which tournaments/events would take place in the duration of the ban, but merely that some events surely would. A person given a year-long ban would have been given that regardless of whether it was an Olympic year or not. This argument should therefore stand or fall on principle and not on whether a player had 3 days or 3 years left on his ban or whether he was likely to miss a World Cup or not.

A second ground of opposition that I came across was that age is an important consideration in most sports given the limited time-span for which a player is at his peak. However, the clock is ticking for all players as they set at home. It has stolen several players of precious time they wanted to hone their games or even precious opportunities. Why should people who have been proven to have committed wrong-doing of the highest order in the world of sport- doping, cheating, fixing- get to cheat the timers on their bans by a few months?

A third argument was that the penological aim of denunciation, i.e., to express disapproval and mark the person for society as a wrong-doer has already been met. Essentially, the purpose of “naming and shaming” has been met. While that is true, this response fails to consider the other three goals of deterrence, retribution and reformation. If it was felt that the other three are unnecessary given that the first has been met, then why was a one-year ban given to begin with?  One could simply have maligned the player or stripped them of honours. However, in a paradigm where we believe that bans are essential (and it is worth having a conversation that they’re not, but that is for a different time), then the ban being rendered nugatory is an issue.

I admit the suggestion leaves you with an odd feeling- that it somehow doesn’t feel quite right. However, push past that feeling, and you see that punishments which had been given to players for a reason are being rendered ineffective and nugatory. Elite sportspersons who went against the very spirit of sport could potentially face a much shorter ban in effect. The only argument which persuades me that the issue should not be considered seriously is this: do we have better things to be worried about right now? Yes. Should we be wasting our time doing this when the world and sporting bodies have larger issues to grapple with? Probably not.

Read the counter view by Shubham Jain here.