West Indies: The Legal Problems of Fitness in West Indies Cricket
By Dr Jason Haynes, Attorney-at-Law, Deputy Dean of the Faculty of Law, University of the West Indies, Cave Hill Campus, Bridgetown, Barbados
Overview
Over the last decade, Cricket West Indies has been embroiled in a number of disputes, but perhaps none more contentious than player selection. Although Cricket West Indies adopted, in 2019, a supposedly rigorous selection policy, disputes regarding player selection have not abated.
In fact, over the last six months alone, despite credible form and performances, Evin Lewis, Roston Chase and Shimron Hetmyer have either been not selected or deselected as a result of their alleged low level of physical fitness. The selection decisions in respect of these players have drawn consternation in some quarters, and simultaneously commendation in other quarters, the latter camp arguing that this can only serve as a wake-up call.
The dilemma that arises in this context is the need to maintain a system of accountability on the part of players on the one hand, and the need to protect athletes’ rights to work, particularly where their objective form and performance warrant selection, on the other hand.
This note briefly addresses the fairness and legality of the decision not to select or deselect players on the basis of their fitness.
Cricket West Indies’ Selection Policy
Cricket West Indies’ selection policy contemplates selection decisions will be made by a Selection Committee that is comprised of the Executive Selector (lead selector), a selector and Head Coach, and a Selection Analyst. The criteria used by the Committee are multifaceted, and include:
- Form and performance;
- Fitness (based on a new approved fitness and conditioning policy);
- Team balance;
- Mental capacity;
- Technical ability; and
- Commitment
Under the extant policy, the playing XIs are selected by the Executive Selector, Head Coach and the Captain.
Problematic Features of Fitness as a Selection Criterion
The criteria stipulated above clearly contemplate that both objective and subjective considerations will be taken into account when making selection decisions. It is apposite to note, however, that it is problematic to give primacy to only one of these conditions, although some criteria, having regard to the nature of the sport in question, are obviously more important than others, namely form and performance, since these are objectively measurable and impact team outcomes in significant ways.
The question of fitness is contentious in the cricketing context, because, whilst it is often conceived as an objective criterion, there are always outliers who, because of their individual circumstances, are simply unable to meet this condition. Take, for instance, Rakeem Cornwall, the West Indian Cricketer, who was, for a long time, despite excellent regional/domestic performances, unable to secure a place in the international team because of his challenges with fitness. Of course, wisdom prevailed, and he was ultimately selected to represent the West Indies Cricket Team at the international level, but not before he endured the indignity of not having been selected because of a seemingly immutable physical circumstance.
In the recent past, Cricket West Indies, along with many other national cricket teams, have resorted to the Yo-Yo test, in order to imbue objective elements into their assessment of fitness.
This test is now a compulsory fitness test for West Indian players, which measures players’ stamina and endurance level. The test involves players shuttling between two cones that are set 20 metres apart. After the first beep, players start running towards the second cone and should reach the second cone before the second beep and then return to the starting point, the first cone, before the third beep. This is one shuttle. Speed level 5, the starting level, has one shuttle, speed level 9, the next one, has one, 11 has 2, 12 has 3, 13 has 4. From level 14, each level has 8 shuttles. Level 23 being the highest speed level. A player gets 10 seconds between each shuttle for recovery. If he fails to reach the cone at any point, he gets a first warning. 3 warnings indicate the end of the test. As a player moves up the levels, the time available to complete each shuttle diminishes, which means he needs to run quicker to reach the next cone before the beep. West Indies’ qualifying marks are 19.
Whilst this test improves players’ aptitude, responsiveness and overall commitment to the game, it can nonetheless operate unfairly in individual cases, should appropriate discretion and flexibility not be exercised, as Rakeem Cornwall’s case illustrates. Another problem with adopting an exclusive or near-ubiquitous focus on fitness as one of the main bases for selection is that it may be given a privileged place above other equally or more important criteria, such as performance and form. In other words, why should a player not be selected where he fails the Yo-Yo test by a couple points, but has demonstrated commitment in other ways to the game, and has performed credibly over a prolonged period? Not being fit does not necessarily equate to a lack of commitment to the game, and this must, therefore, factor into selectors’ decisions.
The need to avoid bias and the invocation of personal views in selection decisions was raised in Thema Williams v Trinidad and Tobago Gymnastics Federation CV2016- 02608.
In this case, the High Court of Trinidad and Tobago expressed that:
“Far too often, at every level of this society, persons charged with decision-making authority allow their personal views and biases to cloud and affect the exercise of their discretion. In adopting such a toxic approach to the discharge of decision-making responsibility, grave injustice is usually occasioned, as the best possible decision may not be effected. Persons in positions of authority must always be acutely aware of their entrenched and/or inherent biases and they must conscientiously endeavour to exclude bias from the decision-making process. Decisions must always be made objectively, in accordance with the evidence and by the impartial application of all the relevant criteria and considerations.”
In a practical sense, fitness should not be used as a cover for selectors’ personal views and biases about a player. This point was illustrated in successful arbitrations brought against Cricket West Indies several years ago by Ramnaresh Sarwan and Narsingh Deonarine.
Other cases such as Chiba v Japanese Amateur Swimming Federation (JASF) CAS 2000/A/278, award of 24 October 2000 make it clear that, although sporting federations have extensive discretion in fixing selection criteria, they must apply these criteria fairly and without discrimination. Their approach to selection must also be transparent and open and the same criteria must be applied equally to all players. However, as intimated above, discretion should not be inflexibly applied, as there are often outliers, whose personal circumstances must be accounted for in selection policies.
In the final analysis, should there be evidence that selection criteria, especially that which relate to fitness, have been unfairly or irrationally applied to a particular player rendering him or her unavailable for selection, it may very well be that the player, who has been prejudiced, may claim a breach of contract or an unlawful restraint of trade.
Dr Jason Haynes may be contacted by e-mail at ‘
