I am of the view that Gabriel was let down by his employers
Shannon Gabriel
by Philip Nicholls During the third day’s play of the recent Test between West Indies and England an incident occurred that would not have been readily apparent to observers of the game as it happened. The result of this incident is that Shannon Gabriel has been slapped with a fine of 75 per cent of his match fee and banned from four One-Day Internationals.
A guestimate as to his loss is that equates to a fine of somewhere in the vicinity of US$15 000. Worst still he has had his name tarnished as a purveyor of homophobic insults all over the international Press in this modern-day world where news is dominated by v lobby groups.
It must be galling to most rightthinking people that a man who was working at the livelihood he has chosen and while doing so did not commit any act contrary to the laws of the place where he was working has been so treated. What perhaps is worst is that in his hour of need his employer abandoned him and threw under the bus of the hysteria of certain elements of the Western Press in support of the LGBT agenda.
Absurdity of punishment
Nothing brought this home more forcibly to me than the fact that my eldest daughter who has absolutely no interest in cricket was nevertheless minded to make a comment as to the absurdity of the punishment after reading about it on her various news streams.
Let us look at the facts. Words were spoken and the microphones which only appear to pick up things at convenient times recorded a response from Joe Root, the England captain who was facing Gabriel to the effect that “there is nothing wrong with being gay”.
Overnight the British Press and sporting celebrities in the UK went gaga in the praise of Root for what was his stance for the rights of gay people. None by their explicit and in some cases implicit condemnation of Gabriel stopped to think that the rights that they were claiming also applied to Gabriel as the furore was mind boggling as no one knew what Root was responding to when he made his comment.
Even CNN, an organisation whose cricket coverage is well known got in on it. By the end of the next day’s play which turned out to be the last Gabriel had been drawn and quartered and cast adrift left to his friends to publish a statement as to what he had said while at the same time paying deference to the individuals concerned under pain of breaching the said Code that had just banished him. The sentiment was that he should have called it what the majority of West Indians felt was the equivalent of a modern day lynching.
I have been asked by many persons why did Gabriel plead guilty to the charge especially as his words that he indicated he said and which have not been disputed cannot in any form or manner being deemed offensive. My response has been the ICC Code does not encourage it. An examination of the Code will reveal that the offence that Gabriel was charged with is categorised as a Level 1 offence – namely using language or a gesture that is obscene, offensive or insulting during an international match.
Gabriel admitted asking Root if he likes boys in response to what he said was Root constantly smiling at him. Root’s comments as stated above was met by his response that I do not have any problems with that (a reference to the gay lifestyle). None of Gabriel’s comments were picked up and disseminated and I know that I am not alone in the view that the words and manner of their use could not contravene the section but yet he plead guilty on the advice of the manager of the West Indies team.
The ICC Code provides that when notice of a charge has been received by the match referee (in this case it was from the umpires) he must advise the player named and indicate they have one of three options . 1. To accept the charge and the sanction proposed by the match referee. 2. To accept the charge but dispute the proposes sanction by the match referee. 3. To deny the charge.
If there is acceptance then there is no need for a hearing, in my view this is a seriously flawed provision of the Code. If when you are presented with the charge and at the same time you are presented with the proposed sanction of the match referee it follows that he has deemed you guilty. Imagine if one appeared before a Magistrate on a speeding charge and he said you are charged with speeding I propose to fine you $500 how do you plead? He must therefore be biased if a hearing is demanded and the player and his advisors may well twice about asking for a hearings as it is possible that should he find the player guilty after a hearing then he can impose a greater penalty.
In Gabriel’s case though his charge was a Level 1 offence because he had two prior convictions (guilty pleas) in the last 24 months his punishment was as if he had committed a Level 3 offence and thus the suspension. He now faces the prospect that if he is convicted of another offence within the next two years, of being suspended for a period of time not just a game.
It is for these reasons that I am of the view that Gabriel was let down by his employers who had a duty to provide him with access to legal help to challenge what he was facing. Players are charged under the Code with the need to be familiar with it. Yes they may know that if you swear or show dissent you are in trouble but the intricacies of this document go far beyond what they are trained for.
Root could have been questioned as to whether he felt insulted and as to his response and as to his statement that it should have remained on the field . This would then open the door to ask the umpires why they delayed bringing the charge was any pressure put on them did they read the rabid English Press on the subject.
Even if it was likely that Gabriel would have be found guilty then the door was open to an appeal before a legally trained person which the match referee is not.
Legal concepts such as intent and meaning of the words could have been argued arguments which successfully overturned bans on the South African Rabada and the Indian Harbhajan Singh. But worse, as an attorney, I am of the view that Gabriel was charged under the wrong code and this could have been made I refer back to the code which says in speaking about the offence quoted above: 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.
Those procedures are very different and are removed from the match referee. As the whole hullabaloo was with respect to what was seen as a homophobic comment, surely CWI needs to take this up with the ICC as a matter of urgency as a guilty plea to a defective charge is of no account. It should be prepared to take the issue as far as the Court of Arbitration of Sport as Gabriel’s whole livelihood is on the line and the question of the administration of the Code can be determined.
• Philip Nicholls is an attortney-at-law and former secretary of the Barbados Cricket Association.
West Indies’ Shannon Gabriel (left) and England’s Joe Root shaking hands after the St Lucia Test in which the incident occurred. (FP)
Questions for Root?
