ENGLAND’S MATCHES IN ZIMBABWE

Fiduciary duty could always cause a potential conflict of interest for MCC’s nominee as a director of ECB, which I had been since 1997. Perhaps the most difficult decisions arose twice over the question of whether England should tour Zimbabwe.

 

The first occasion was a match scheduled to be played in Harare in the ICC World Cup in 2003. Because of political pressure and safety concerns, both England and New Zealand declined to play in Zimbabwe. England’s players, backed by the ECB, refused to travel to Zimbabwe because of serious security concerns. The ECB had hoped that the death-threat letter they received from an organisation called Sons and Daughters of Zimbabwe would act as the key evidence to support their case, but the ICC technical committee ruled against the ECB after considering a legal submission from them in a seven-hour meeting. The ruling was a huge blow to England’s chances in the competition as they went forward having effectively lost the fixture against Zimbabwe, who had been awarded all four points. They still had to face defending champions Australia, Pakistan and India with just three teams set to qualify for the Super Sixes stage. As well as missing out on vital points, the ECB risked a huge claim for compensation for cancelling the match.

 

The second moment arose in 2004 when England were due to play five one-day matches in Zimbabwe in October and November, as scheduled in the ICC Future Tours Programme Agreement (FTPA), which had been accepted by all the ICC Full Members. Robert Mugabe’s regime was at its worst, and safety was not guaranteed. Several Zimbabwe cricketers had been sacked by their Board. The Australian Board was considering not playing a Test series there in May of the same year. The debate in the media and within the MCC Committee was intense, and opinions were split about honouring the fixtures. This issue was one of the most difficult for me as a director of ECB. I was present on the Management Board and was expected to put forward MCC’s view, which was not a united one. My own inclination was that England should not travel to Harare, and yet I had to take a decision bearing in mind my fiduciary duties as a director of the governing body. Legal advice had been sought by ECB. Failure to proceed with the tour without an acceptably valid reason would result in ECB being found noncompliant under the FTPA. If ECB were to decide to proceed with the tour, the Board would not suffer any adverse financial consequences. Taking this decision, however, the risks would be commercial, political and of a public relations nature. The FTPA permitted a country to withdraw from a tour only on safety or security grounds or if its Government directed it not to tour.

 

The legal advice received made it clear that there were currently no grounds for noncompliance with the FTPA acceptable to ICC. The lawyers concluded that the current Government advice did not constitute a valid force majeure. In addition, failure to comply with any ICC Regulation or Resolution could lead to suspension from membership of ICC, which could mean the immediate cancellation of incoming tours to England. This would potentially be a financial disaster, leading to insolvency. The lawyers emphasised that: ‘A Director’s principal fiduciary duty is to act in good faith in the best interest of the Company. When the Company is solvent the best interests of the Company equates with the best interests of the Company’s shareholders as a general body. If the Company faces insolvency then those best interests equate with the best interests of the Company’s creditors as a general body.’

 

It was confirmed that individual Board members were not obliged to vote either for or against the tour and were free to determine subjectively what they believed to be the best interests of the ECB, having considered all the issues, facts and advice. However, the legal advice taken on behalf of the ECB recommended that directors should honour an oral contract with ZCU by the ECB Chairman, David Morgan, who had said in Harare that, provided Zimbabwe toured England in the summer of 2003, England would tour Zimbabwe in October 2004, barring any safety or security concerns.

 

It remained unclear when the ECB Management Board would need to make a final decision. The Chairman was expecting to call for a vote on 8 June, but the ICC Executive Board was due to debate the Zimbabwe tour at the Conference in early July and the ICC President, Ehsan Mani, had asked David Morgan to delay any vote until after that meeting. Unless ICC decided to omit Zimbabwe from the Future Tours Programme or to suspend the country’s membership from ICC, the One-Day Internationals between Zimbabwe and England would remain in the list of fixtures to be played in October/November. The Management Board was to meet Jack Straw, the Foreign Secretary, who it was hoped would clarify the government’s thinking and possibly direct the tour not to go ahead, and so it was likely that the debate at Board level would be delayed again. With other Full Members of ICC not supportive of ECB’s withdrawal from the tour and having recently introduced the FTPA, the sanction of suspension was a realistic possibility. Seven out of the ten Full Members would have to vote in favour of a suspension and a reliable friend, who attended the ICC Executive meetings, confirmed that only New Zealand was likely to support England.

 

MCC debated the matter on more than one occasion, and views were being forcibly expressed by Members. At the MCC Committee meeting on 10 December 2003, the Committee was firmly of the opinion that the tour should not go ahead as a matter of principle. No public statement was made, but ECB was informed. A second discussion at the Committee meeting on 21 April 2004 resulted in a change of opinion amongst those same Committee members. A vote on this occasion took the more pragmatic decision that MCC should support the ECB view that the tour was becoming inevitable in order to avoid a sanction being imposed by ICC, which might lead ECB into a financially unsustainable position. This decision led to the resignation of Robert Griffiths from the Committee, stating that he believed that ICC would be acting unlawfully if they suspended England. In his view as a QC it might be legally argued that it was an ‘abuse of a dominant position’.

 

At the MCC Committee meeting immediately preceding the AGM on 5 May, there was a strong feeling that the Members at the AGM should be told of the Committee’s recent thinking and that there should be a debate in the AGM. However, it was eventually decided that there would not be a vote or even a straw poll. Although it was clear that the situation changed on an almost daily basis, the MCC Committee was moving against the views expressed by the membership at the AGM, which were clearly that it was a matter of principle and that England should not tour Zimbabwe. Since that discussion the Zimbabwe versus Australia Test series had been postponed, although Cricket Australia had made it clear that it was unlikely to be able to reschedule the matches in the next four years. The One-Day Internationals were played, but the Zimbabwe team, without many of the contracted players who had been sacked, was extremely weak, making it a ridiculously one-sided series.

 

In the circumstances I requested assurance from the MCC Committee that I was free to make an appropriate decision, with which I felt comfortable, at the time that any vote was taken within ECB. A mandated decision does not fit easily with the fiduciary duty of a director, as was highlighted at that time in the Carpenter Report reviewing ECB’s corporate governance. Equally, I was personally unwilling to vote in favour of the tour going ahead when all three main political parties, our membership and public opinion were firmly against England playing in Zimbabwe.

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There were strong arguments for making a stand against a regime that had been heavily criticised and which constantly made threats against any opponents, of which England, as the former colonial power, was seen as one. There was little doubt that the integrity of cricket at the highest level was being compromised after the sacking of the contracted players by ZCU, which was seen as a racist move. Also there could be no guarantee that the cricketers, the officials, the supporters and the media would be safe in Zimbabwe. In fact, journalists had been expelled quite recently from the country.

 

As could be seen from the two conflicting votes in the MCC Committee, the views expressed at the AGM and the diversity of opinion put forward in the media, this was not an easy decision to make. As a member of the ECB Management Board, I would have to bear in mind my fiduciary duty and also my duty of care to the players and then decide how to react if the other directors voted differently from me. I was conscious that any actions that I took would be taken as an ECB Management Board director but, as Secretary & Chief Executive of MCC, I did have to consider carefully my position and any major steps, which might affect the relationship between MCC and ECB.

 

There were a number of aspects that I needed to address. First the moral question. I believe that cricket should be played in nearly all circumstances as a means of building bridges between people. Occasionally, however, there are circumstances which make it unpalatable for a national team to play in another country. Personally, I did not accept that England should play in Zimbabwe where there were clearly many instances of appalling intimidation, political interference, rape, torture and murder being reported. Robert Mugabe had recently been quoted as saying: “Our opponents already smell their demise. They now fear elections and are giving all sorts of lame excuses for boycotting elections. We dare them. Boycott or no boycott, they are ripe for burial and we will put them to eternal sleep in March next year.” I believed that general sanctions should be applied against the Zimbabwean regime. Zimbabwe had resigned from the Commonwealth, had banned prominent Englishmen and Europeans from entering the country, in response to the ban on its own Government members from visiting Europe. The European Community had asked member countries to avoid sporting contacts with Zimbabwe. Zimbabwe had lost the support of the IMF and had been severely criticised by Amnesty International. Britain, other EU members, the United States, New Zealand and Australia had in the past imposed sanctions on senior government and Zanu PF officials as well as businessmen and bankers considered to have links with the ruling Party. All UK political parties were opposed to the tour, though the Government was not prepared to ban the team from touring. The media were for once united on an issue. The issues at stake were much greater than a cricket tour. I have never taken a decision not to play a fixture lightly. The ZCU brought their team to England the previous summer, and I was happy to stage a Test match at Lord’s. I would have been happy for England to play matches against Zimbabwe on neutral territory, because the world had no quarrel with the Zimbabwean cricket team, even though their Board was politically influenced. As I was not personally prepared to travel to Zimbabwe in the current circumstances, I was not prepared to say that an England Team should travel there. If others wished to take that decision, it was up to them. I thought the ECB Management Board would be wrong to make the decision to tour and effectively leave the individual players to make their own decisions based on morality and conscience. The players might have been prepared to go to Zimbabwe, but I questioned whether it was entirely safe for players, officials, spectators and the media if they expressed their own views. I asked Peter Chingoka, the Chairman of the Zimbabwe Cricket Union, this question at the ECB Management Board meeting and did not receive a satisfactory reply.

 

The second consideration was the threat to the integrity of cricket. The Zimbabwe cricket decision to sack players was based ostensibly on racist policies, unacceptable in the game and not dissimilar to the South African apartheid position before South Africa was excluded from international competition. Political interference in the affairs of the national cricket boards was not acceptable to ICC. Already some England players had said they would not join the tour for personal reasons. It did not help that the London Olympic bid for 2012 made it more difficult because the government needed the votes of the African nations and also the relationship between ECB and the other ICC Boards was at its lowest ebb. It was a great pity that any commitment had been given to reciprocate and play in Zimbabwe if that team played in England in 2003.

 

The most distressing feature of this sorry saga, though, was the way that an excellent paper produced by Des Wilson was mishandled. He had been elected as chairman of the ECB’s marketing and communications advisory committee on the recommendation of MCC in June 2003, having joined the ECB in the autumn before. This was after England’s shambolic boycott of its World Cup fixture in Harare, when ECB had delayed and not worked closely with the England players over the decision whether to play the match in Zimbabwe, before pulling out. He was asked to take responsibility for the board’s approach towards Zimbabwe in an attempt to avoid a repeat of that episode, with a brief to form a strategy that would allow the ECB to set its own course on overseas tours and provide English cricket with a viable get-out clause to avoid the impending tour to that country. His paper was a serious attempt to fulfil that responsibility.

 

Des, who played an increasingly central role on the issue, argued that the ICC would never have carried out a threat to ‘ban’ England because it would have been internationally criticised as a moral loser and also an equal financial loser, but he argued also that, if ECB directors cancelled the tour, the Board would not necessarily be ignoring its ‘fiduciary duty’. His point was that the best interest ‘of any Company’ did not always lie with financial issues alone but included the value of its ongoing relationships, reputation, and many other factors. He also argued that there was never a threat of insolvency as, should England be denied a year or so of international cricket, activities could have been organised to reduce at least part of the loss. Des Wilson’s paper was widely praised within the MCC Committee, within the game and in the media as being well balanced. He spoke to the England team on the issue, and ECB director Dennis Amiss, who was present, told the ECB Board that in no way did Des seek to force his views but simply presented the players with both sides of the question. His paper identified the six points he believed should be considered in such situations and ended there. He would rightly argue that those six issues led to only one conclusion, but he did not take the opportunity to say so, allowing them to speak for themselves.

 

I was concerned about my position, but I felt sympathetic towards the ECB Chief Executive when he resigned. I did not always agree with the policies being implemented by Tim Lamb, on behalf of the Board, but he was a man with whom I had a good working relationship. I did not know whether this episode brought about his resignation, but the article by Matthew Engel in the Financial Times on Friday 28 May 2004 raised that possibility. The article summarised the situation very accurately, as one might expect from a writer with his finger on the pulse and a genuine love of cricket. It also gave me hope that there might actually be a sound reason to vote against the tour going ahead.

 

As MCC Secretary & Chief Executive I now had a changed mandate to support the ECB Management Board majority decision, instead of the earlier decision in the MCC Committee to vote against. As an ECB Director, I was being told that legally the tour should go ahead. Should

I abstain? Even if I voted against the tour, once a decision was made I was bound by collective responsibility for that decision. Personally I was not prepared to accept that situation and so I thought that I should resign from the Board before the vote. Looking back, I think that I should have done that, even though there would have been repercussions within MCC.

 

When Des Wilson resigned from the ECB Board, he wrote to David Morgan stating that he had presented a report to the board earlier in the year saying moral considerations should be taken into account before touring and said he could no longer share the board’s collective responsibility should they decide to tour. ‘My differences lie with where we go from here,’ he wrote in the letter that was reprinted in the Guardian. ‘I do not claim superiority of judgement or greater moral virtue – we just differ, but the differences are so profound that my position is I believe untenable.’

The media were full of the story. He was quoted: ‘I am unable to share collective responsibility for the ongoing strategy in relation to the Zimbabwe tour. I have no desire to offer succour or support to the ECB’s critics at a difficult time. This is not an ‘I’m right, you’re wrong, I’m off resignation’. We simply differ, but the differences are profound. It is right, therefore, that I should go and thus enable the board to unite around the course it believes to be right.’ He added: ‘The fact is the ECB has been placed in an intolerable position by the ICC’s inflexible and, in my view, malevolent enforcement of its international tours programme with draconian penalties that would devastate the English game, forcing the ECB into insolvency and bankrupting up to a third of the first-class counties. In the short term, I believe the ECB should make such a tour only under protest. Even if this tour goes ahead, I believe the ECB should commit itself to fight for as many years as it takes to change the protocol so that no other country can be coerced in this way. Alas, there appears no appetite for that course of action, either.’ Writing in the Guardian, he described the ECB management as ‘buffoons’, their counterparts on the International Cricket Council as ‘charlatans’ and said, ‘Whatever happens now, it is clear this tour should have been called off a year ago.’ ‘In the paper I wrote for the ECB at the beginning of the year I identified six justifications for abandoning an international sporting tour,’ he wrote. ‘At least five of the six have come to pass. The ECB did not even discuss my paper. The ICC rubbished it.’ The ICC response to the paper was: ‘Mr Wilson’s attempts to pressure people were naive and ill-considered. The paper he leaked at the outset of this issue highlighted the fact that while he sought to force his own view of the world on others, he lacked the ability or willingness to listen and understand the views of people who did not share his perceptions. His comments today will only reinforce this perception among other boards.’

 

As mentioned above, the paper Des Wilson produced did not, in any way, seek to impose his personal views on the ECB Board. The media coverage made the point that the ECB would avoid punishment if the Government ordered it not to tour, but senior Foreign Office sources had ruled out any hardening of the existing line, which was that the Government had no power to prevent the tour taking place, prompting criticism from the Conservative party. At the Management Board meeting Des proposed that, if the tour went ahead it should be completed ‘under protest’ to signal disapproval of the Mugabe regime, that the ECB should campaign to change ICC regulations, which take no account of political or human rights conditions in its members’ countries, and that it should address his proposal that moral considerations should be taken into account when considering where to tour. All three of these proposals were rejected, prompting his resignation. One article continued: ‘The ECB was set to adopt his proposals, but in March the ICC president, Ehsan Mani, persuaded Mr Morgan to hold off ahead of the ICC annual general meeting in March. Instead of helping Mr Morgan find a solution, however, the ICC passed a new regulation under which the ECB would face a one-year ban from international cricket if it did not fulfil the tour. This prompted Mr Wilson’s most stinging criticism yesterday: “No one should have the power to force anyone else ... to suspend their moral judgment. The proposition that maintenance of an international programme of cricket tours matters more than any other consideration has to be contested.”’

 

Eventually, on the eve of England’s Champions Trophy match versus Zimbabwe being staged at Edgbaston, the ECB decided that the tour must go ahead, subject to it being safe and secure to do so and in the absence of firm instruction from the government not to tour. The fear of financial loss and suspension was too great. Whether Peter Chingoka’s letter to all the first-class county chief executives was instrumental in persuading the Board to vote in this way is doubtful, but the counties were definitely concerned about possible loss of revenue from ECB. His letter made strong arguments: the commitment from the ECB chairman David Morgan would be viewed by the ZCU’s lawyers as legally binding; Zimbabwean cricket would be compromised by the loss of TV rights and other commercial contracts, foreign currency and ticket sales, for which he would seek compensation; faith, respect and trust had been severely undermined in the ECB Chairman and Chief Executive, as ECB was considering reneging on the agreement without the courtesy of ZCU being given notice or consulted in any way whatsoever; England were currently very unpopular within the world game, as there was lingering resentment among several Boards by the way ECB had disrupted the World Cup the year before, which cost the ECB £1.5 million in revenue.

 

Michael Ancram, the shadow foreign secretary, called for the foreign secretary to step in, saying: “The ECB has been left in an impossible position over the tour to Zimbabwe. Jack Straw knew what was required of him but he failed to be sufficiently robust. The government must now make its views absolutely clear.” Richard Caborn, the sports minister, said the government would prefer that the tour did not go ahead but that the decision was down to the ECB. “Obviously, they’ve had advice that England men are unlikely to opt out. We don’t think it’s in the benefit of cricket to tour, but at the end of the day it’s a decision for the governing body to make.” Ultimately there were a couple of players who opted not to tour and ECB omitted a couple of others, but the tour went ahead.

 

It was not long afterwards, in 2006, that Zimbabwe decided that it would not play Test cricket. Peter Chingoka, chairman of Zimbabwe Cricket’s new interim board, said the decision to withdraw from Test cricket was made after “consideration of the recent performances by the national and A teams”. This was the second time in 20 months that the country had been forced to cancel its Test commitments. Stuart Carlisle, the former Zimbabwe captain, said: “The whole situation could have been avoided with action a year and a half ago. In April 2004, ICC chief executive Malcolm Speed travelled to Zimbabwe to talk to the country’s cricket chiefs about a boycott by the country’s top white players. He was forced to return home after the Zimbabwean officials refused to meet him. Instead of sending Speed, they should have sent a committee. They should have sent a three-man research team and spoken to players and administrators. They always get one side of the story. They could have sorted this out a long time ago. Zimbabwe will not be able to return to the Test arena until deep-seated problems are resolved.”

 

In July 2019 Zimbabwe was suspended and funding was stopped by ICC as the actions of the Sports and Recreation Commission were deemed to constitute government interference in Zimbabwe Cricket’s affairs. ICC Chairman Shashank Manohar said: “We do not take the decision to suspend a Member lightly, but we must keep our sport free from political interference. What has happened in Zimbabwe is a serious breach of the ICC Constitution and we cannot allow it to continue unchecked.” This was the first time that a Full Member had been suspended by ICC. It was an extremely divisive period and might so easily have been better managed if the ECB Management Board had been given Des Wilson’s paper and the opportunity to discuss it at length. If ICC had been more understanding and supportive this situation might and should not have arisen.

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