More than just a storm in a Yorkshire teacup – Why banter can never be an excuse for racism

Mr Rafiq initially raised concerns in September 2020 about comments and treatment that he had received from fellow players and coaches. This led to Yorkshire commissioning an independent investigation, which made its findings earlier this year. Mr Rafiq also brought an employment tribunal claim against the club.

The full findings have not yet been made public by Yorkshire but, in late October 2021, the club issued a summary admitting that Mr Rafiq had been the victim of racial harassment and bullying. This followed criticism by Mr Rafiq in August 2021 that the club was downplaying racism after Yorkshire had earlier simply acknowledged that he was “the victim of inappropriate behaviour” and offered its “profound apologies”. Current Yorkshire player and England captain, Joe Root, has defended Yorkshire, stating that he has never witnessed any racism during his years at the club.

However, other former Yorkshire cricketers also came forward to echo the complaints raised by Mr Rafiq. For example, Rana Naved-ul-Hasan alleged that “systemic taunting” occurred at the club. Former Yorkshire academy player, Irfan Amjad, complained of treatment that included criticism of his batting style by using a racist term referencing Pakistani heritage. Tabassum Bhatti, another former academy player, recounted an incident where other players urinated on his head, desecrated another Muslim player’s prayer mat, and used racist language aimed at his Pakistani heritage. More former players are coming forward with each day that passes.

Yorkshire’s position at the end of October 2021 was that none of its staff will face disciplinary action as a result of the investigation, although last week saw the resignation of several board members including the chair, Roger Hutton, following pressure from the Department for Culture, Media and Sport (DCMS).

Sport and culture minister, Chris Philip, said that if no disciplinary action results from this then it would be “unacceptable” and that “Parliament is watching, the Government is watching, and the country is watching.” He also urged anyone else involved in the Yorkshire “regime” to resign for their part in letting this treatment persist. On Thursday, 11 November 2021, Mark Arthur, chief executive at Yorkshire, also resigned. His resignation was followed a day later by that of the Essex chairman, John Faragher. This follows an allegation he used racist language in a board meeting in 2017 and suggests that the racism problem in cricket may not be confined to a single county.

The new Yorkshire chairman, Lord Patel, started his tenure this week with a clear apology to Mr Rafiq and slightly wider publication of the report. He has also praised Mr Rafiq’s bravery for coming forward and encouraged others to speak up if they are or were ever in a similar position. To do this, he has set up a new whistleblowing hotline to offer a safe space for complainants to come forward.

Although it appears that Lord Patel is taking some steps to address the issues at the club, it is clear that there is still a long way to go and the implications for Yorkshire, and for cricket as a whole, could be long-lasting.

Implications of the findings

The immediate implications for Yorkshire are serious. In addition to the widespread damage to its reputation, the club also faces significant financial damage, with many sponsors either cutting their ties with the club immediately or informing the club that they will not renew the deals after current contracts end. Cricket’s governing body, the England and Wales Cricket Board (ECB) has suspended Yorkshire from hosting international matches, which will also have a major financial impact.

Senior Yorkshire officials, including Mr Hutton, will appear before a DCMS select committee hearing on 16 November 2021, together with Mr Rafiq, when further information will no doubt come to light.

Yorkshire has, in turn, pointed the finger at the ECB which, it says, failed to provide the club with any support with the investigation. The ECB is now conducting its own investigation and has said that further measures, such as future match allocations and financial sanctions, could follow when its investigation has concluded. The ECB will itself have to consider the lessons learned from the ‘Yorkshire crisis’ and what it needs to do differently to avoid such issues happening again.

Liability for discrimination

From a legal perspective, a number of potential breaches of the Equality Act 2010 could be raised based on the incidents complained of in the current series of allegations. These include:

• Direct discrimination – using racist language or singling someone out for detrimental treatment because of their race or religion is a clear example of direct discrimination.
• Harassment – unwanted conduct related to race or religion that has the purpose or effect of violating a person’s dignity or creating a hostile, degrading, humiliating or offensive environment would amount to unlawful harassment.
  Virtually all of the examples set out above (with particular emphasis on the urination allegation and desecration of a prayer mat) would meet this definition.
• Victimisation – if a player was subjected to a detriment (for example, not being selected for the first team or not being promoted from the academy) as a result of having raised an allegation of discrimination, then this would amount to victimisation.

While sledging  – the act of one sports player insulting another during a game in order to make them angry and put them off their game –  is prevalent in cricket as part of the sport, and a certain amount of dressing room “banter” is to be expected, these allegations go significantly further.

In this case, the original labelling of the allegations as “banter” is troubling and suggests that complaints may not have been taken seriously if or when reported. The background to the workplace and context, however, can be relevant when evaluating discrimination claims. For example, if everyone in the dressing room joins in and enjoys such banter using equally offensive terminology towards one other, that can have an impact on the strength of the complainant’s claim. 

However, from the commentary to date, it does not sound like this was an equal and welcome exchange. In particular, Lord Patel explained in his statement: “racism or discrimination in any form is not banter.” Further, the comments allegedly made by Michael Vaughan, suggesting that there were a lot of Asian players in the team and that something had to be done about that would, if true, suggest a worrying link between a senior and influential member of the team and a, perhaps institutionalised, discriminatory attitude.

A successful discrimination claim can lead to damages for injury to feelings, as well as for compensation for losses stemming from the discrimination, and awards can be significant given there is no cap. Individuals may also have a personal injury claim arising from the damage to their mental or physical health.

It has been announced this week that Yorkshire has settled Mr Rafiq’s claim for an undisclosed sum, although it is possible that other staff members who were offended by the discriminatory conduct towards Mr Rafiq may also have claims against Yorkshire.

Claims for discrimination and harassment can be brought directly against the perpetrator but are more often brought against the employer themselves, as they are likely to have deeper pockets. Employers will be vicariously liable for acts committed by their employees in the course of their employment and, while the law surrounding this is complex, this can extend to acts committed at a club social or other work event, particularly where the employer has done little to prevent the discrimination or clearly set out that this type of conduct was utterly unacceptable.

Conclusion

Although Yorkshire may have settled the employment tribunal claim against Mr Rafiq, it is clear that this issue will not be going away any time soon. The media spotlight is already on the ECB’s role in these allegations and whether it could have done more to stop the incidents from happening. The most recent allegations from Essex have only intensified this pressure, and the current spotlight on the ECB could turn into a blinding glare if players or former players come forward to speak out about similar incidents at other clubs.

Azeem Rafiq’s treatment at Yorkshire has evidently had a devastating impact and it is to be hoped that these allegations are not merely the tip of a very large iceberg threatening the sport. One thing is clear: racism in sport is once again firmly under the spotlight and, for players, clubs and governing bodies who do not act to stamp it out, the legal, financial and reputational damage could be considerable.