Nick Hurley is a partner and Will Nash a solicitor in Charles Russell LLP's employment and sports group.
Reconciliation or sell out? Nick Hurley and Will Nash review the collapse of Darrell Hair's discrimination claim.
In Brief
Hair's QC argued that he was treated less favourablly because of his race and that the ICC was therefore liablie under the Race Relations Act, ss 1(1) and 3A.
The ICC is reported to have spent £250,000 defending the claim.
Hair can hope to return to top level umpiring with the added bonus of the protection under RRA 1976 up his sleeve.
The recent collapse of cricket umpire Darrell Hair's discrimination claim was as surprising as it was well publicised. Umpire Hair's high profile in the international cricketing world resulted in his tribunal claim receiving broad coverage across the international media. Cricket took a rare centre stage in the world of sport following Hair's claim that he was discriminated against by the International Cricket Council (ICC) on the grounds of his race and colour.
Hair's problems started with the forfeited test match between England and Pakistan in August 2006. Pakistan was accused of tampering with the ball by the two umpires officiating the match, Hair and Billy Doctrove, and deducted five runs as a penalty. Pakistan refused to play on. After much confusion, the umpires removed the bails and awarded a win to England. An investigation by the ICC followed and Hair was effectively barred from officiating in main Test matches. Doctrove continued to umpire at the highest level, apparently with no reprimand or sanction.
Alleged Discriminatory Pressure
Hair brought tribunal proceedings against the ICC. He contended that while he, a white Australian, had been severely punished for the episode, Doctrove, a black West Indian, had escaped all censure. Hair argued that his competence as an umpire had never been questioned, and that race discrimination was the only possible explanation for his effective suspension. The ICC stated that the reason why Hair was barred from officiating at the highest level was not his race, rather that the ICC had lost confidence in him due to concerns raised about his judgment and umpiring.
The six-day hearing of the race discrimination claim at the London Central Tribunal heard in Hair's evidence how the ICC had yielded to "racially discriminatory pressure" applied by the Pakistan Cricket Board (PCB). Hair's QC, Robert Griffiths, contended that Hair was treated less favourably by the ICC than Doctrove due to his race and the ICC was therefore liable under the Race Relations Act 1976 (RRA 1976), ss 1(1) and 3A. The PCB allegedly placed pressure on the ICC to remove Hair from umpiring elite cricket matches, while no such action was apparently taken in respect of Doctrove. The failure of Doctrove, the obvious comparator in the claim, to appear as a witness for Hair caused speculation that Doctrove had safeguarded his future career by succumbing to ICC pressure not to appear. In any event, Doctrove's non-attendance clearly can not have helped Hair's case.
Damages
Hair claimed damages for loss of earnings of $3.5m (£1.75m). Hair justified this sum on the basis of his age and lack of future prospects of suitable alternative employment. It would have been interesting to learn of the tribunal's verdict on such an argument. Hair is 55 and has been umpiring first class cricket since 1988 and umpired his first Test match in 1992. One can see merit in the argument that it would be difficult to imagine an employee in such a specific profession being able to find alternative employment with comparable remuneration.
As was widely publicised, Hair offered his resignation in exchange for $500,000 (£254,500) soon after the August 2006 Test match. However, he immediately retracted the offer following adverse publicity and it emerged that both sides were extracting themselves for a tribunal hearing. As Malcolm Speed, the ICC chief executive said "we had absolutely no alternative but to defend this vigorously". It is interesting to surmise how seriously the ICC considered settling the matter before the hearing. Cricket is a sport, unlike football for example, not blessed with unlimited riches. The estimated cost of defending the claim was reported as £250,000, almost exactly equivalent to Hair's opening offer. Confidentiality, of course, is a common condition in the settlement of discrimination claims but would seem to play little part in this case, given the amount of information already in the public domain. As Hair has apparently withdrawn all claims without compensation, prolonging his international umpiring career would now appear to be his priority.
Not Out
With this in mind, the withdrawal of Hair's claims can be seen as a possible reconciliation between Hair and the ICC, rather than simply a capitulation on the umpire's part. Hair clearly hopes to officiate at the highest level again and, furthermore, is protected by RRA 1976, s 2, which prevents him from being victimised by the ICC because he has brought a discrimination claim against it. Such protection remains even if it is found that the substantive allegations of discrimination do not stand up provided Hair brings his claim in good faith.
Hair has promised to enter into a "rehabilitation" programme to be drawn up by the ICC to improve his man-management and communication skills. It therefore seems a real possibility that despite the controversy surrounding the case, Hair's career is, metaphorically speaking, "not out". Indeed, he can move forward with the hope of a return to top level umpiring and with the added bonus of the protection under RRA 1976 up his sleeve.
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