by sussexpob » Fri Nov 02, 2018 10:42 am
Alfie,
Smith has remained silent so far, which seems to me (and to the Sydney Morning Herald, who currently carry an article on the matter) that his silence speaks volumes on what his opinions or hopes are. Smith has the nuke button at his disposal here, if he was to come out and indicate he would subject himself to his original ban and remove himself from selection regardless of any subsequent outcomes, the whole issue could go away.And the whole issue going away is really good for Australia, because the battle raging at the moment has the potential to really separate different factions of fans, and no one is truly winning...... so I am not too sure we can really take Smith's original comments in March as any gospel. He might decide in the next week to come out, but until he does (and 3 days in the current environment feels like a long time to stay silent if he was going to) Id have to assume he wants to come back asap.
As for the ACA and CA, I subject myself to the Aussies on the board here as to the specific detail of their legal system, but most legal systems based on the UKs common law systems place tremendously tight limitations on bringing actions of unfair treatment by employees. A quick check suggests that Australia law is unbelievably strict, with legal actions having a 21 day time limit (jee wizz, I thought three months in England was ridiculous, this takes the biscuit!!!)..... the ACA pledged to fight the fairness of these rulings, but they have almost certainly refrained from action inside the appropriate time period (unless such a right exists in general law of contract, but as I said, generally in common law systems its specifically defined inside Employment Law). So any pledge, despite it being repeated, seems to be for window dressing than any truthful willingness to take this matter to the appropriate forum. If it was truthful, this probably should have ended up in court straight away. Waiting for any external report, while appearing sensible, also renders your attempts at subsequent legal action completely impotent.
You might say Smith et al's refusal to appeal the bans would be the reason for that, but the ACA is a trade union. They have a right and a duty to bring forward actions in the benefit not only of those accused, but of their membership in general. Having an established precedent of such lengthy bans, while ICC regulations governing the same matches (and established punishment precedent) falls greatly below that being given, would on appearance be quite a carbon copy case for a TU to act on behalf of its members, regardless of the environment of the decision. In fact, one could argue that not bringing this matter to court in the appropriate legal time limitation has left cricketers in Australia facing bans of dubious merit in the future, and that in itself is a failure of the ACA to act in the interests of its members. The fact that CA also chose to technically ban them under the spirit of the laws, when a specific charge of ball tampering existed and the guidelines pretty indicative (and ironically, the choice is used dubiously by the CA to underline why their bans were fair), leaves another precedent that the ACA should have a field day on in courts. If the CA ignored its own policy, it should be (a) very easy for the ACA to act regardless of the players in questions desire (b) it would appear on the detail available, they would probably have been successful.
The timing also seems rather dubious. When England got thumped in the 2006-07 Ashes, I believe the ECB's independent review that essentially had no limitations set as to improving the game on all levels, started after the tour ended (mid-feb?) and was concluded in full by the start of the international summer. This was a deep report, I think Schofield even set up public Q&A forums, spoke to counties, grassroots representatives, pretty much everything he possibly could. This report has taken about 7 months to reach a conclusion, and has more limited scope. It came straight after a test thumping, and very close to a marquee series. It doesnt feel like this is an accident, it feels like the report has been held back to hit the public at the right time. Key batting replacements failing in UAE, big series on the way, the passing of significant time from the incident for it to die down.
Put it all together, and it does feel like its been a conscious gearing towards getting to the position now where all relevant parties wanted to test the water on the bans. Had the ACA gone and overturned the bans in April like they could have by challenging the bans in court, the results would have been rejected by the public. I think personally thats why its been held back and the ACA didnt do it......
Rather than being "frankly ludicrious or nutty", Id say its likely all parties involved have geared themselves up to get to this point before the home international summer starts, and then tip their toes in the water and see what the public appetite was like to overturn the bans.
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And a hat and bra to you too, my good sirs!