There has been much said about the Strauss/Graves/Pietersen exclusion debacle, and we will not have heard the end of it yet. This article asks the thorny question of whether KP might have a legal claim?
A bit of background for you (which underpins our idle speculation and legal flights of fancy). Kevin Pietersen had been ‘bought’ by the Hyderabad Sunrisers at vast expense, to play in the Indian Premier League (“IPL”). Then on 1 March, Colin Graves, the incoming Chairman of the ECB, gave an interview to the Telegraph, in which he said the following:
“What happened in the past is history and there is no point talking about it. I was deputy chairman when the decision was made [to sack Pietersen] and I supported it so there is no point pulling that to bits. But if he wants to play for England then he has to play for a county. … If he does that and then comes out and scores a lot of runs they can’t ignore him I would have thought but that is up to him. You can’t pick someone when he is not playing.”
Music to the ears of the cricket-watching public, if the 91% vote in favour of Pietersen returning to the international fold is anything to go by (Telegraph online poll).
Buoyed by such words, and no doubt by the public sentiment generally, to cut a long story short, Pietersen interpreted the comment as an invitation, varied his IPL contract by mutual consent to allow him to join Surrey (taking a massive pay cut in the process), and went about his business: he has averaged 212 since his return (including an innings of 355 Not Out). Perhaps with some reason, he then waited for the phone to ring.
It didn’t. His old ‘pal’ Andrew Strauss, who was once famously overheard referring to him as an ‘absolute [INSERT EXPLETIVE]’, then took over as Director of the English Cricket Board, and in his first press conference, in no uncertain terms he ruled out the possibility of a Pietersen return. He said that there were was ‘no trust’ between Pietersen and the ECB. He then went one step further and clarified that there were ‘massive trust issues’ between himself personally, and Kevin Pietersen. Reading between the lines, he and his old mucker Alasdair Cook, both of whom amongst others had been on the receiving end of forceful opinions in Pietersen’s somewhat vitriolic autobiography, had refused to entertain the possibility of welcoming him back.
Perhaps they might have informed him of these trust issues at an earlier date, before Pietersen asked to vary the terms of his lucrative IPL contract, and paid for the privilege… The question is though, can Pietersen do anything about it, from a legal standpoint?
It has been suggested (see the article in City AM) that ‘on the face of it’ Pietersen might have an action against the ECB for breach of contract, or for deceit. I see no mileage in this: Pietersen is not one of the contracted players for the 2014/2015 season, and there is nothing to suggest that Graves’ statement could constitute a contract. An action in deceit similarly would founder: there is no basis to suggest that Graves intentionally lied to Pietersen.
What is more interesting is the claim for Negligent Misstatement. The question is ‘Was Graves negligent in suggesting to Pietersen that the door was open to him for an England return, assuming he was playing for a county side?’ This claim assumes that the door to an England return is closed, and Strauss’ words would suggest that this is the case, at least for the time being. The required elements of such a claim are that a Duty of Care be owed by Graves to Pietersen not to cause the damage suffered; that there be a breach in this Duty of Care; and that Pietersen suffered loss as a result.
Whilst a case for damage could be made out (loss of earnings under his IPL contract) and whilst he may be able to prove the damage came as a result of the breach of the duty of care (he procured the mutual termination of his agreement arguably solely as a result of Graves’ statement), the claim is likely to fall at the first hurdle. There is neither a ‘special relationship’ in place (as exists in the example of an accountant) and nor I think is there an assumption of requisite degree of responsibility towards Pietersen on the part of Graves, the principle reason being the circumstances of the statement in question. Graves made that statement in the context of an interview to the Telegraph, rather than to Pietersen personally. In seeking to rely upon that statement as an assumption of responsibility giving rise to a duty of care, Pietersen will not succeed. He ought not be entitled to rely upon that statement, at least without verification thereof. The case may be stronger were the statement an assurance from a representative of the ECB to Pietersen that the previous history was in the past and he would be duly considered on the merits of his batting form. Another nail in the coffin of this particular claim is the official comment from the ECB spokesman at the time of Graves’ statement:
"Nothing has changed - only players who are playing consistent high-quality county cricket and who are seen as a positive influence will be selected for England."
Perhaps the second half of this statement should have made Kevin check his stride, but it is clear that the ECB recognises that, whilst I would doubt that they feel vulnerable to any claim, at best this has been terribly handled, with Graves issuing a statement today denying either misleading or deceiving the batsman.
There are a couple of other interesting legal questions:
1. Does the exclusion of Pietersen constitute a de facto ban, without due process, which Pietersen is permitted to challenge, or is the ECB entitled to act without any restraint in such regard? Pietersen would argue that in effect, what is dressed up as ‘a trust issue’ is in fact a sanction for text-gate and for the fall-out from his book, and that this sanction has been imposed without due process and without the usual rights of appeal. The ECB would argue that they can select whom they choose, on many grounds, factoring in the team dynamic and whether or not the Captain wishes to play in the same team as someone. The problem is, however, Strauss did not cite an inability for Cook to play alongside Pietersen as being the reason, and at least on the basis of the reasons given in public by Strauss, there would appear to be grounds for challenging the status quo as a guised ban, of indeterminate length.
2. The ECB is a company limited by guarantee, presumably with obligations to its rightsholders. Chief amongst those obligations is the requirement to maximise profits, and in this regard, there is little question that Pietersen puts more bums on seats than anyone else, for all the controversy he brings. In this regard, it is questionable that a decision such as this, which ultimately impacts upon the bottom line, should rest with someone who has such a personal issue. If Cook’s personal feelings underpin the decision, then at least the decision could be justified on the basis that it goes to on-pitch performance. However, the lack of trust which Andrew Strauss has in Pietersen is nothing to the point, as Strauss no longer plays alongside him. We are forced then to consider the question of whether Strauss is the right person for the job, or whether he is acquitting himself of his duties, if he is unable to select arguably our greatest talent for his own personal reasons – reasons documented in expletives broadcast on air.
Unless of course that is simply the public face of it, and all Strauss is doing is protecting Cook. Rumblings suggest that this is more about Cook’s trust issues than those of Strauss, with rumours abound that Cook had threatened to resign if Pietersen returned to the fold.
Why Andrew Strauss felt the need to state that Pietersen was presently excluded – rather than simply omitting him from the squad in due course - is hard to fathom. Then at least the question of legal remedy, for all Pietersen’s appropriate indignation, would not even be entertained. Rather an avoidable mess then, all things considered.