By SB Tang
On Thursday 31 May 2012, Kevin Pietersen retired from international limited-overs cricket, just four months before England defend the World T20 crown which Pietersen, more than any other individual player, helped them to win in 2010.
It appears that Pietersen wanted to retire from one-day internationals (“ODIs”) and play on in T20 internationals (“T20Is”): “For the record, were the selection criteria not in place, I would have readily played for England in the upcoming World Twenty20”.
However, according to the ECB website, such a choice was prohibited by the “terms of the central contract [which] state that any player making himself unavailable for either of the one-day formats automatically rules himself out of consideration for both formats of the game as planning for both formats is closely linked.” (emphasis added)
All or Nothing: A Clause in the Central Player Contracts of the ECB
The ECB’s stated reason for the all or nothing clause does not tally with their work practices over the past several, very successful years for English cricket.
At no point since March 2009 have England even had the same captain in both limited overs formats. They have also made liberal use of T20 specialists like Michael Lumb and Craig Kieswetter in their T20I side and non-T20I players like Jonathan Trott and Alastair Cook in their ODI side. Incidentally, during this period, England have won their first, and to date only, limited-overs world cup in the 2010 T20 World Cup and have finally made some progress in ODIs, a format in which they have chronically underachieved for the better part of the last two decades.
A distinction has been drawn between the cases of Andrew Strauss and Alastair Cook, who were not selected for one of England’s limited-overs sides on the basis that they were not good enough in that format of the game, and Kevin Pietersen, who wants to retire from one of England’s limited-overs sides despite being one of the best batsmen in the world in both limited-overs formats.
The ECB is effectively saying to its player-employees: if you’re not good enough to be picked for both limited-overs teams, we reserve the right to choose for you; but if you are good enough to be picked for both limited-overs teams, then we will not allow you to choose between them.
That sounds like a dangerously one-way street in a world where more and more opportunities are available for freelancers in domestic T20 leagues around the world.
Derek Pringle explained that the ECB’s underlying rationale for introducing the all or nothing clause into player contracts last October was to prevent talented limited-overs players, like Eoin Morgan and Stuart Broad, quitting ODIs in order to play in lucrative domestic T20 tournaments around the world. This rationale makes little sense, managing to employ not one but two well-established fallacies: a slippery slope and a weak analogy.
The slippery slope fallacy inherent in the ECB’s rationale is the assumption that, if England players are not contractually prohibited from choosing between the two international limited-overs formats, then England’s most talented young limited-overs players, like Eoin Morgan and Stuart Broad, will choose to retire from one of them in order to play in lucrative domestic T20 tournaments around the world.
There is no empirical evidence to support this assumption and, indeed, what empirical evidence exists directly contradicts it.
Ricky Ponting retired from T20Is and played on in ODIs and Tests. As did Sachin Tendulkar. As has Michael Clarke. Accordingly, it appears that there is no all or nothing clause in the central contracts of Cricket Australia or the Board of Control for Cricket in India (“BCCI”). The apparent absence of any such clause has not led to a rash of retirements from one of the two international limited-overs formats by their young guns. The likes of David Warner, Shaun Marsh, Steve Smith, James Pattinson, Virat Kohli and Suresh Raina remain available for their countries in all three forms of the game.
The weak analogy in the ECB’s rationale is the comparison of Pietersen with players such as Morgan and Broad. Pietersen has been a world-beater across all three forms of the game for England for the better part of a decade, whereas Morgan and Broad are 20-something players who are just beginning their England careers.
In Pietersen’s case, the relevant analogy, if one is to be made, is surely to some of the modern game’s other great batsmen who have chosen to retire from one of the international limited-overs formats whilst playing on in the other.
Ponting. Tendulkar. Clarke. All three retired from T20Is and played on in ODIs and Tests. Clarke and Tendulkar have even played in the IPL during their international T20 retirements. Neither has been subjected to the kind of criticism from their national fans and media that Pietersen is now being forced to endure. And Pietersen has not actually played in the IPL whilst being retired from T20Is!
Players like Ponting, Clarke, Tendulkar and Pietersen have arguably earned the (moral) right to choose to retire from one of the international limited-overs formats by scoring a truckload of Test runs for their country over the course of many years. Twenty-something players with brief, mediocre Test records such as Morgan clearly have not. They may well do so in the future, but not now.
One might argue that such an approach involves unequal treatment of players.
It most certainly does. But differential treatment is not necessarily unfair in a professional environment. It can be justified by reference to differential experience, achievements and expertise. For example, in a typical professional services firm, a senior equity partner will have much more professional freedom and choice as to working hours, clients and types of cases taken on, than a junior associate. This is not considered unfair or unlawful.
Because the senior equity partner has, to date, achieved much more in his career and is of much more value to the firm than the junior associate.
The same distinction can and should be made between Pietersen and young players such as Morgan.
International cricketers are, at the end of the day, professionals and the kind of inflexible attitude taken by the ECB towards one of its best-performing and most valuable employees would, at the very least, be open to question in any other profession.
As England Team Director Andy Flower made clear in a great interview in the June 2012 issue of All Out Cricket, England’s recent rise to the top of world cricket has been built on a healthy respect for the players as individual human beings and responsible professionals: “We have to release the reins a little; their [ie the players’] side of the bargain is that they have to accept responsibility for their decisions. It might sound perfectly obvious, but trying to get that balance between that freedom and then the acceptance of responsibility is not quite that easy.”
It would be the very height of irony if a lack of respect for a high-achieving individual who was instrumental to ending England’s 16 year Ashes drought and winning England’s first ever limited-overs World Cup, ended up being the cause of England’s downfall from its current perch at the top of Test and T20 cricket.
The Principle of Consistency
One of the arguments in favour of the ECB’s failure to make an exception from the all or nothing clause for one of their best-performing employees is consistency — all their employees signed the same contract with the same clause in it and no exceptions should be made for any one individual.
However, if a principle of consistency is to be invoked, it must, at risk of sounding tautologous, be applied consistently.
In Pietersen’s case, that has not always been so. He has, on occasion, been treated more harshly than his colleagues who have committed similar, if not, worse offences.
On 23 May 2012, the ECB announced that, following a disciplinary hearing, Pietersen had been fined an undisclosed sum, part of which was suspended for 12 months, in accordance with the terms and conditions of his England central contract because the hearing considered recent comments made by Pietersen on Twitter to be prejudicial to the interests of the ECB and a breach of the England player conditions of employment in relation to clauses regarding public statements.
Pietersen’s offending tweet read: “Can somebody PLEASE tell me how Nick Knight has worked his way into the commentary box for Home Tests?? RIDICULOUS!!”
Without seeing a copy of Pietersen’s England central contract, it is impossible to determine for certain how his tweet breached his conditions of employment. Presumably, it has something to do with maintaining good relations with Sky who employ Knight as one of their cricket commentators and currently have a reported £280 million deal with the ECB to televise live international and county cricket. David Hopps explained: “The justification is said to be that that [sic] Pietersen sinned for making a sweeping generalisation about Knight’s ability as a commentator rather than attacking a specific comment.”
However, some of Pietersen’s England colleagues have gotten away with sweeping generalisations about the professional abilities of the cricket media without so much as a slap on the wrist.
Stuart Broad, England’s boyish-faced and golden-haired T20I captain, tweeted: “And it was 2 mins not 1 from me as I apparently had an ‘outburst’ according to our media! #liars #muppets #jobsworth”. Making a sweeping generalisation about all members of the cricket media (which includes Sky and all their many cricket commentators and writers) seems just as likely to damage the ECB’s relations with Sky as a sweeping generalisation about one particular Sky commentator.
Jimmy Anderson, the leader of the Test bowling attack rightly rated the best in the world at the moment, wrote in a magazine column: “Cricket commentary must be one of the hardest jobs in the world. It is the only way I can make sense of how many of them talk such absolute guff.” Cricket commentators include Sky’s commentators and it appears that Anderson is making a sweeping generalisation about “many” of them.
Yet neither Anderson nor Broad have been reprimanded by the ECB for their comments.
The common law is, along with cricket, one of England’s gifts to the world and one of the fundamental rights bestowed upon citizens by the common law is freedom of speech. All people — yes, even professional sportsmen — are generally free to speak their minds provided that their words are not unlawful in some way. That is a good thing.
However, an employer can, of course, curtail their employees’ freedom of speech by contract and it appears that there is such a restrictive clause in the ECB central player contracts. But such clauses ought to be consistently interpreted and evenly enforced with respect to all contracted employees. It appears that the ECB has not done that — the restrictive clause has been strictly enforced with respect to Pietersen, but not Anderson and Broad.
Bread and Butter Pudding
The reaction from a significant proportion of English fans and the English cricket media towards Pietersen following his international retirement has been predictably negative. This attitude was best summed up by a poll on The Telegraph’s website which provocatively asked: “Has Kevin Pietersen put his own interests ahead of England?” As of 15:41 on 2 June 2012, 64.59 per cent of the 1525 respondents voted “yes”.
One of the first things I noticed when I moved to London in March 2009 is the ambivalence towards Pietersen which, although by no means universal, is certainly widespread in England. As an Australian, I have never understood it and I don’t think I ever shall.
This ambivalence towards Pietersen is by no means restricted to tabloid newspapers and alcohol-soaked fans. Take, for example, the bread and butter pudding episode which started with the following paragraph from Mike Atherton’s glowing review in The Times of Ed Cowan’s excellent book, In the Firing Line: Diary of a Season (2011) (emphasis added):
There are some also delightful anecdotes. My favourite concerns Kevin Pietersen, who, during the Australia A match, was heard to exclaim, as he cast his gaze over the lunch buffet: “What the f*** is this?” Cowan told him that since he was staring at bread and butter pudding, an English dish, KP ought to recognise it. “I’m not f***ing English, Eddie,” our hero said. “I am South African; I just work here!” Lovely.
This anecdote was picked up and widely disseminated in the national broadsheets. In The Guardian, David Hopps wrote (emphasis added):
Keen observers among you will recognise that this sits somewhat at odds with KP’s endless protestations of love for his adopted country. It could be wit and repartee, it could be something else. Only Pietersen really knows. But if the anecdote does not make you feel a little uncomfortable then perhaps your idealism has long since given way to something more sinister.
In The Telegraph, Steve James wrote (emphasis added):
The book has already found some publicity with the report of a quote by Kevin Pietersen during that match at Hobart. Eyeing the lunch desserts Pietersen asked, with expletive inserted, what one of them was. Cowan told him that, as it was the very English bread and butter pudding, he should really know. “I’m not ——- English, Eddie,” replied Pietersen. “I am South African, I just work here.”
Here’s the passage containing the bread and butter pudding anecdote from Cowan’s In the Firing Line: Diary of a Season (2011) (emphasis added):
We [ie Australia A] predictably lost today [to England], but the contagious attitude of individuality meant that no one really minded. My highlight for the day included a lunchtime quip from Kevin Pietersen, who in his high-pitched mixed accent (which could not be less suited to a man of his stature) asked “What the fuck is this?” as he cast his gaze over the lunch buffet. I mentioned that it was bread and butter pudding and being English he should surely know what that was. “I am not fucking English Eddie’, he joked. “I am South African, I just work here!” Touché Kevin, touché.
Atherton, Hopps and James are three of the finest cricket writers in England; however, the written evidence set out above demonstrates that, in this particular instance, they have not been fair to Pietersen.
Cowan’s actual written words clearly portray Pietersen’s bread and butter pudding remark as a tongue-in-cheek joke and a damn good one at that — Cowan introduces Pietersen’s remark as a “quip”, deliberately uses the verb “joked” when presenting the remark, and concludes his telling of the anecdote with the words: “Touché Kevin, touché.”
By contrast, when Atherton, Hopps and James re-tell Cowan’s anecdote, the crucial characterising verb “joked” does not appear. Instead, Pietersen’s remark is presented using the neutral verbs “replied” or “said”. Moreover, they omit both Cowan’s description of Pietersen’s remark as a “quip” and Cowan’s three word conclusion to his telling of the bread and butter pudding anecdote.
Such changes in diction introduce an element of doubt as to the nature of Pietersen’s remark when, in the original source for the anecdote, there was none.
For the avoidance of doubt, here’s what Cowan himself had to say after learning of the bread and butter pudding episode in the English media:
I was really disappointed because this [ie Pietersen] was a guy who lived in my house for a month when he lived in Australia. I didn’t tell him that I’d written it because I didn’t really feel the need to because it was a joke and it was bloody funny at the time.
South Africans Abroad
What is the root cause of England’s ambivalence towards Pietersen?
The obvious answer: he is South African.
But this cannot be the whole answer because the same is true of his prolific England batting colleague Jonathan Trott, yet Trott does not suffer from the same ambivalent attitude from his adopted homeland.
Both Trott and Pietersen grew up in South Africa. They both learnt their trade there. They both played cricket for South African schools. Indeed, Trott went one step further than Pietersen by representing South Africa at under-15 and under-19 level. They both made their first-class debuts in South Africa for domestic South African sides. They both speak with South African accents.
Trott is no more or less South African than Pietersen but perhaps the salient difference between the two world-class Test batsmen is this: Pietersen is more un-English than Trott.
Pietersen’s batting is brash, aggressive and utterly unconventional. He does not so much stroke the ball as bludgeon it. His batting technique is heavily bottom-hand and he favours the on-side. His footwork is minimal at times. He scores quickly. He has an appetite for risk. He pioneered the switch-hit.
By contrast, Trott’s batting is boring, risk-adverse and aesthetically displeasing, but very, very effective. He does not smash the ball — he manoeuvres it along the ground into gaps. He accumulates runs the way a Vietnamese coffee filter produces coffee: in a slow but steady drip. If his infamously elaborate guard-marking routine is any guide, he shares with the English a peculiar obsession with outdoor gardening in a green and pleasant land where the sun spends most of the year hidden behind an infinite array of clouds.
Pietersen’s public statements are blunt, relevant and truthful.
But his very Antipodean directness makes many uncomfortable in a nation which is, as The Economist wryly observed, home to “an ingrained cult of euphemistic understatement”. Take, for example, Pietersen’s remarks on 31 December 2010 after England won the Fourth Test of the 2010–11 Ashes series at the MCG to go 2-1 up in the five Test series and in so doing, retained the Ashes for the first time in 24 years:
There is no way in this world that we would have succeeded under that regime [ie with Peter Moores as England coach and Pietersen as England captain] and won the Ashes again in Australia after 24 years.
To Antipodeans such as myself Pietersen’s remarks were entirely uncontroversial, constituting a true statement of fact — for all of Peter Moores’ undoubted qualities as a county and national academy coach, his position as England coach had become unworkable and Pietersen was not the first England captain to not rate him as England coach, with Michael Vaughan criticising what he viewed as Moores’ over-controlling methods — coupled with unequivocal praise for his captain and coach in their hour of triumph.
But, Pietersen’s remarks didn’t go down too well in England where they were viewed by some as a spot of immodest and improper credit-taking.
If Pietersen were truly English he probably would have said something like this:
Strauss and Andy Flower deserve all the credit for this win. They have prepared us unbelievably well and they are the right leadership for this team.
Looking back, my loss of the captaincy was a good thing for English cricket.
I am just happy to have played my part in this victory as a batsman by scoring some runs for England.
Perhaps, now people can appreciate why I did what I did as captain and hopefully see that I have always had English cricket’s best interests at heart.
Both the real and the hypothetical Pietersen remarks set out above say substantially the same thing. The only difference is that the latter wraps itself in the English cloak of euphemistic understatement and (false?) humility, whereas the former does not.
By contrast, Trott’s statements, when he does speak to the media, are no less truthful but rather more diplomatic and prosaic. A recent interview with the BBC canvasses such exciting topics as his guard-taking routine (“I find … that the scratching helps me clear my mind”) and cricket statistics (he prefers “series wins” and “big partnerships” to his own individual statistics).
Pietersen has over 640,000 followers on Twitter. Trott, as far as I can tell, isn’t even officially on Twitter, although a fake-looking account in his name does have over 1,200 followers.
Pietersen has a string of sponsorships from world-leading consumer brands such as adidas, Oakley and Citizen. He appears in primetime TV ads alongside the likes of David Beckham and Derrick Rose.
It is not Pietersen’s fault that he is eligible to play for England and was chosen by the ECB to play for England, despite being a born-and-bred South African.
Personally, I don’t like the rules which allow cricketers to switch their national allegiances with the same ease with which Joseph Conrad once acquired new languages. But if one disapproves of those rules, surely the blame should be directed towards the bodies which make them, not the individual players who are bound to abide by them.
The International Cricket Council (“ICC”) Player Eligibility Regulations make it remarkably easy for a cricketer to not only qualify to play for a particular country, but to play for more than one country during their career.
A cricketer qualifies to play for a particular country so long as he can satisfy at least one of the following three low-threshold requirements:
- he was born in the relevant country;
- he is able to demonstrate (by his possession of a valid passport) that he is a national of the relevant country; or
- he resided in the relevant country for a minimum of 183 days in each of the immediately preceding four years.
Both Pietersen and Trott met the second of these three disjunctive threshold requirements — Pietersen qualified for a British passport via his English mother and Trott qualified for a British passport via his father who was born in England.
The ICC Player Eligibility Regulations impose a few additional requirements upon cricketers who seek to play for more than one country during their career, but they are not unduly onerous.
These additional requirements only apply if a cricketer has played in an “International Match” (which is defined to include the U-19 Cricket World Cup and its qualifiers) for their original country. Since Pietersen never played for South Africa, these additional requirements did not apply to him; however, they did apply to Trott because he represented South Africa at the Under-19 World Cup in Sri Lanka in early 2000.
The additional requirements effectively impose a four-year qualification period for those who switch countries:
- if a cricketer is seeking to qualify to play for a “Full Member” (ie a Test-playing nation), he must not have participated in an International Match for any other Full Member during the immediately preceding four years; and
- if a cricketer is seeking to qualify to play for an Associate or Affiliate Member (ie a non-Test-playing nation), he must not have participated in an International Match for any other National Cricket Federation (irrespective of its membership status) during the immediately preceding four years.
A four-year qualification period is hardly onerous in a modern age where most international batsmen play until their mid-30s.
Notably, the additional requirements impose no restrictions whatsoever upon cricketers who, having already played for a non-Test-playing nation (for example, Ireland or the Netherlands), seek to play for a Test-playing nation such as England. Which is why Ireland’s best cricketers such as Ed Joyce, Eoin Morgan and, most recently, Boyd Rankin have found it so easy to switch their allegiance to England.
This odd lacuna in the ICC Player Eligibility Regulations creates a perverse incentive for the best cricketers from the non-Test-playing nations to abandon their native countries. This regulatory incentive to trade-up is particularly strange given that the ICC’s official mission statement includes “[p]romoting the global game” and, according to the Strategic Plan 2011–15 that the ICC spent two years developing in consultation with the game’s stakeholders, including Members, players, media and supporters, the ICC’s vision is to create “A Bigger, Better, Global Game” (capitalisation in original) aimed at “[t]argeting more players, more fans, more competitive teams.”
How can the best non-Test-playing nations ever develop to become Test-playing-nations if the game’s international governing body makes regulations which allow them to be continuously stripped of their best talent by the existing Test playing nations?
In addition to satisfying the ICC Player Eligibility Regulations, a cricketer seeking to switch his allegiance to a different country must also satisfy any eligibility requirements imposed by that country’s national governing body for cricket.
Back when Pietersen and Trott jumped into England’s broad-keeled ship, the ECB regulations imposed a four-year qualification period during which the switching-cricketer had to reside in England and Wales and not play cricket for another Test-playing nation at under-17 level or above. On 30 April 2012, the ECB amended their regulations to increase this qualification period to seven years.
This is a commendable move by the ECB, but it does not go far enough.
The amendments did not touch the ECB regulation which continues to treat Irish citizenship as equivalent to British citizenship for the purposes of qualifying to play cricket for England. Ireland gained independence from the United Kingdom of Great Britain and Northern Ireland on 6 December 1921. Accordingly, this ECB regulation might charitably be described as anachronistic. A cynic would call it self-serving.
Moreover, the amendments contain a broad exception in favour of “any … Cricketer who was born in, or who was previously a citizen of, a country other than an ICC Full Member [ie a Test-playing nation]” for whom the ECB reserves the discretion to reduce the qualification period to four years, lest England miss out on any other Test-grade Danish fast bowlers.
One suspects that the ECB’s selection panel would happily pick a Bavarian half-man-half-chamois to play cricket for England if they honestly believed that he formed part of England’s best XI and satisfied the ICC and ECB eligibility requirements.
Perhaps, instead of neglecting to fully embrace Kevin Pietersen — one of England’s greatest modern batsmen who complied fully with the relevant ICC and ECB regulations in order to qualify to play for his adopted country — England should direct any resentment towards the body which has, in the past five years alone, merrily picked two South Africans, two Australians, an Irishman and even a Dane to play Test cricket for England: the England and Wales Cricket Board.