The Jeff Cumberbatch Column – In re Gabriel: hard case…. bad law?

West Indies cricket supporters, both of the born-again and the true-blue variety, are naturally feeling aggrieved at the recent decisions of the match referee in the current Test series to impose varying match bans on the captain, Mr Jason Holder and fast bowler, Mr Shannon Gabriel, for their respective infringements of the playing regulations and the Code of Conduct of the International Cricket Council [ICC].

The pique surrounding Mr Holder’s exclusion from the final test in the already-won series appeared to have been a reaction to what was perceived as the “most unkindest” cut of all, given his stellar performances in the first two matches and, especially, that the offence in question pertained to a failure to complete a required number of overs in a given period, when the match itself was completed in fewer than three days! However, as cogently argued in another section of the press last Sunday by three commentators, much of the huff here is misplaced, especially since a similar ban was previously imposed on Mr Holder when the opponents also won the match in three days. It is all about a single day’s play, not the duration of the match.

The Gabriel matter has evoked a similar disparagement of the ICC and more than a few individuals have levelled fanciful and baseless charges of some sinister plot by that governing body to weaken the regional team’s chances in the remainder of the series. Mr Gabriel was charged with an infringement of Article 2.1.4 of the ICC Code of Conduct for Players and Player Support Personnel that prohibits “using language or a gesture that is obscene, offensive or insulting to a Player, Player Support Personnel, other Match Official or Match Official Support Personnel or any other third person (including a spectator) during an International Match

According to the guidance notes for the offence –

Article 2.1.4 includes: (a) excessively audible or repetitious swearing; and (b) obscene gestures which are not directed at another person, such as swearing in frustration at one’s own poor play or fortune. In addition, this offence is not intended to penalise trivial behaviour. [Emphasis added]

When assessing the seriousness of the breach, the Umpire shall be required to take into account the context of the particular situation and whether the words or gesture are likely to: (a) be regarded as obscene; (b) give offence; or (c) insult another person.

This offence is not intended to cover any use of language or gestures that are likely to offend another person on the basis of their race, religion, gender, colour, descent, national or ethnic origin. Such conduct is prohibited under the ICC’s Anti-Racism Code and must be dealt with according to the procedures set out therein.

According to Mr Gabriel’s account of the matter, “The exchange occurred during a tense moment on the field. The pressure was on and England’s captain Joe Root was looking at me intensely as I prepared to bowl, which may have been the usual psychological strategy with which all Test cricketers are familiar.

“I recognize now that I was attempting to break through my own tension when I said to Joe Root: ‘Why are you smiling at me? Do you like boys?’

“His response, which was picked up by the microphone, was: ‘Don’t use it as an insult. There’s nothing wrong with being gay.’ I then responded: ‘I have no issues with that, but you should stop smiling at me.'”

Clearly, if we accept this version of events, and it has not been contradicted to my best knowledge, the charge would have been based on the premise that the language used by Mr Gabriel to Mr Root was obscene, or offensive or insulting. Arguably, at the very least, it was not obscene, and even if “offensive” is taken in an objective sense to mean “liable to be reasonably interpreted as offensive”; I am of the opinion that it would not meet that threshold, given the nature of the statement in its interrogative form. For the same reason, it could be deemed “insulting” at a stretch only, given the nature of Mr Root’s response indicating that while in his view Mr Gabriel might have intended it as such, he was not himself insulted, added to the unlikelihood of a reasonable man feeling insulted by such a query in that context.

In my view, Mr Gabriel’s question was converted into an assertion of fact and thus construed as offensive and insulting at the same time. This altered construction would have been owed substantially to Mr Root’s response that treated Mr Gabriel’s question as an allegation that he, Mr Root, was gay.

Otherwise put, Mr Gabriel’s question was transformed into one of those in Latin preceded by “Nonne” or “Num” that suggests the answer –

The second method of forming questions in Latin is used when a specific answer is anticipated or preferred. “Nonne” is used when a yes answer is expected and “Num” is used when a no answer is expected.” The distinction is among “You like boys, don’t you?” [Nonne]“You don’t like boys, do you?”[Num] and “Do you like boys?”[Gabriel]

A perusal of the historical incidence of the use of this Article to punish offenders makes for interesting contrast. On January 9 last year, Taranjit Bharaj of Denmark, after not taking an obvious second run, shouted “F…” which was heard off the field of play… it was so loud. Then, on August 30, Bilal Khan of Oman used offensive language towards the opponent’s wicket keeper after hitting the winning run. Earlier, on March 8, our own Ashley Nurse, after a delivery of his was hit for a boundary, shouted an expletive very loudly which was picked up by the stump mike. And, for identical conduct, Rubel Hossain of Bangladesh was reprimanded on August 18 while Syed Aziz of Malaysia was even more flagrant. According to the ICC website, when bowling, Aziz ran towards the batsman and yelled an expletive-

From these scenarios, it can be inferred that the mischief aimed at here is the use of audible expletives on the field, whether or not directed at oneself, a player or official, an instance far removed from Mr Gabriel’s confessed infringement in this case.

It is acknowledged, nevertheless, that players, by their participation in ICC matches, agree to submit to the exclusive jurisdiction of any Match Referee, Judicial Commissioner or Appeal Panel convened under the Code of Conduct to hear and determine charges brought (and any appeals in relation thereto) pursuant to the Code of Conduct; and not to bring any proceedings in any court or other forum that are inconsistent with the foregoing submission to the jurisdiction of the Match Referee, Judicial Commissioner or Appeal Panel. –Article 1 of the Code.

More over, in any case, whether rightly or wrongly (!), Mr Gabriel pleaded guilty to the charge. So matter fix’. I would have advised him differently, though. And is a demerit point the most rehabilitative remedy in the circumstances?

50 thoughts on “The Jeff Cumberbatch Column – In re Gabriel: hard case…. bad law?

  1. Big strong Shannon Gabriel
    Who delivers thunderbolts like an angel.
    Found himself near the Mike!
    Asking Joe; Is boys ya like?

    Why you looking at me so?
    Thats not the way that I does go
    Then came the quip from ” smart man” Joe
    Nothing wrong with being gay ya know.

    Apparently the crowing match referee.
    Found this exchange not so “funny”.
    Based on hearing Joe’s response
    He found Shannon guilty at once!

    His “bro” Martin would probably agree
    That was an appropriate penalty
    He’s had his days of making calls
    To protect certain bats and balls!

    But how could this thing be fair
    “Big Shannon” had to clear the air.
    But no one can deny the fact.
    It seems that “gay” is the new black!

  2. It is quite obvious that Mr. Gabriel is very thin-skinned; he assumed that Mr. Root was looking at him intensely, and like a child he asked if Mr. Root like boys…

    In my view … Mr. Gabriel’s statement was indicative of the negative connotation associated with being homosexual though he claimed that there was nothing wrong with being homosexual … but had Mr. Root been a female would Mr. Gabriel reaction would be the same?

    So therefore, if Mr. Gabriel’s statement wasn’t meant to insulted Mr. Root then I don’t know what was … but whether or not it violated the Code of Conduct was a matter for those charged to deliberated the issue.

    • @Lexicon

      You do not have to comment on a matter if you are not aware of the facts. In the cut and thrust of the game these things will happen. What we are discussing is how the code of conduct rule was applied?

  3. @ David

    It’s obvious Lexicon is an idiot.

    He pretends he is versed in EVERY topic. He usually introduce some irrelevant nonsense into the topic so he could discuss it extensively and make it appear as though he is intelligent.

    How is Gabriel too thin skinned?

    • If we are as fair minded as being a WI supporter allows , let us accept that the ICC attempted to address situations where teams deliberately slowed the game down to gain an advantage. In the case of the West Indies Versus England all agree it was entertaining and riveting for spectators (all).

      The blogmaster sides with Jeff that the 4 match fine against Gabriel is not an equitable penalty given what we know. Why would The West Indies Cricket persuade him to apologize? What does WIPA have to say ?

  4. David

    The NBA has Code of Conduct as well … and I am not quite sure if you watched the game of basketball in the 1990s…? But it was tendency of Mutombo to waved his finger whenever he blocks a player shot … and on numerous occasions some referees would allowed Mutombo to get away with it and others wouldn’t … the same thing applies here in my opinion…

  5. Robert Goren

    I confident that I can speak on more topics that you can … so carry on with your insults they don’t bother me one iota…

  6. David

    Isn’t it true that a judge can rule between the maximum or the minimum as the law allows? So whether Gabriel’s statement violated the Code of Conduct is a matter for his lawyer and those determining his punishment … In my view his response to Root was condescending…though he claimed he meant nothing by it …

    • @Lexicon

      You have made a point give others a chance to respond. It is useless have an exchange with yourself, nothing to be learned that way.

  7. @ Jeff,

    It is often said that the wheels of justice turns very slowly in Barbados and within the Caribbean region.
    Are you not astounded by the haste in which these two individual cases have been concluded? This must be unprecedented in world cricket. Did the WICB have any say in these matters? Did they try to defend Holder and Gabriel? Or did they just capitulate?

  8. “Isn’t it true that a judge can rule between the maximum or the minimum as the law allows? So whether Gabriel’s statement violated the Code of Conduct is a matter for his lawyer and those determining his punishment …”

    Mr. Lexicon

    I believe you should consider David BU’s suggestion re “you do not have to comment on a matter if you are not aware of the facts.”

    And judging from your comments you are definitely not aware of the facts.

    Perhaps before commenting any further, it may be better if (1) you read in the information found on the following website:

    ………..and (2) you should consider not using what occurs in the USA as a benchmark against which ALL situations can be measured.

  9. Are you not astounded by the haste in which these two individual cases have been concluded? This must be unprecedented in world cricket. Did the WICB have any say in these matters? Did they try to defend Holder and Gabriel? Or did they just capitulate?

    @TLSN, Holder’s case was not justiciable. It was a plain question of fact. In Gabriel’s case, he immediately pleaded guilty. I get the impression that being found guilty after a claim of innocence may be more punitive for an offender.

  10. As recent as last month, Pakistan’s cricket team captain Sarfraz Ahmed was banned under the ICC Anti-Racial Code for 4 matches, after the ground microphone picked up him racially slurring South African cricketer Andile Lucky Phehlukwayo.

    According to media reports, Sarfraz, speaking in his native dialect, taunted Phehlukwayo and said “Hey Black, where is your mother sitting? What is the story today?”

    I can understand banning players for racially slurring other players. However, if Gabriel’s account of what transpired is correct, then I don’t see any harm in the silly banter.

    But…… I’m not the ICC.

    Over the past few years the ICC has banned several cricketers……..most of whom were from Pakistan and Sri Lanka.

  11. A next post where I am unable to contribute, but I will contribute in the mode of Lexicon.

    “Do you like boys?’
    I will move this to my fuzzy column since I cannot get any audio of Gabriel. If you have some, please share,

    Meanwhile, I doubt if any West Indian man in front of group of 11 West Indian men would ask…
    “I say old chap, do you like boys?’

    I will suspend mu judgement until until audio is provided.
    I gone from here

  12. In Holder’s case adjustments have to be made for stoppages. How are these adjustments made? Is every little stoppage timed? If a batsman takes longer than average time to settle at the crease that too can affect a bowling sides over rate. This thing is not exact. They were found to be TWO OVERS SHORT. I STILL question this ruling. I don’t give a damn what cricket pundits in Barbados think based on the Barbadian predisposition to kiss white man butt. One Barry Wilkinson told me that “umpires don’t cheat they make mistakes”.I guess this propensity to kiss white butt is what got him on ESPN. We were unfaired for ages! They have changed rules more than once to blunt our attacks. I have been watching cricket since the early 70 s and one cannot deny that even close on field decisions almost always go against us. Holder has recently made that observation. Why would you doubt this? Is this not our everyday experience in ALL OTHER SPHERES of life? Why would we think that cricket is any different???????? And if this rule was meant to punish deliberate time wasting could you tell me exactly when the West Indies deliberately wasted time? Seems to me some discretion should be exercised to accommodate the context of the game.

    As for Gabriel’s “infraction” – I told my son the exact same thing that Jeff just said. Nonsense ruling!

    I gather the rules have changed since McGrath asked Sarwan, ” How does Lara’s c**k taste?” and Sarwan replied, “I don’t know. You would have to ask your wife?” Whereupon the white man got vexed and wanted to fight. Not home in Australia but here in our own backyard. He thought he could start a fight and get away with it!

    I remember Ridley Jacobs being suspended for not calling back a batsman who had mistakenly been given out caught behind by the umpire. He was said to have “brought the game into disrepute”. Jacobs had not even appealed. I remember the Dinesh Ramdhin being vilified by match referee Chris Broad of all people and condemned worldwide for a similar “offence”. I had to fix Richie Benaud on Twuitter and remind him about “Ian Stealey” and co. When we complain we are told that the umpire is there to do his job and that bad decisions even out in the end.
    I remember Kieron Pollard being harshly penalized for throwing a bat at Mitchell Johnson who had just followed him with a high speed ball AFTER HE PULLED AWAY FROM THE CREASE. The ball had a greater chance of reaching the batsman and causing damage or even death but who cared?

    We have to learn to stand up for ourselves. We have to learn to stop bending over backwards to appear liberated when really it shows how brainwashed and obsequious we are.

    How do we talk about how unfair the white man system is and how it is designed to keep us down and then give cricket administration a clean bill of health???????? Does it operate on Mars? Is it administered by Martians????
    The fact is that we won when we were just too good for them to stop us! We have somehow assembled a team with some signs of promise. A social media post recently stated, It’s time to change the rules again! West Indies are starting to beat England!”

    A word to the wise.

  13. @ Jeff,
    I repeat it is the haste of the judgement from the ICB that has shocked me. Would judgement still be pending if it were an English man in the docks? I believe that race has played a part in the decision making process. But I’m loathed to for fear of upsetting some of the green naive utopians who appear to crowding out the pragmatists on BU.

  14. @Dean Jeff, it may have been a ‘bad decision’ but as you noted Mr Gabriel pled guilty…one may surmise whether he did so for strategic reasons considering he already had enough demerit points that placed him in at the point of being banned for a number of matches. Yet, based on the ICC process that can’t be it…

    You also noted that you would have counselled him differently but it appears Senor Gabriel works himself into ‘ferocious grizzly bear’ mode in his bowling stints but then reverts to his inherent mild mannered gentlemanly role off the field…thus its about him being counselled on being just a tad less ‘grizzly’ from the onset!

    To take up your (and the Blogmaster’s) point on the demerit/code of conduct process I would ask you how else you perceive some effective regulatory system would work if not with this or similiar incremental punishment ?

    Mr Gabriel has been caught on the ICC radar speed gun – so to label it – previously and alas not because of his blistering speed… he already had five demerit points. Based on their system when a player receives a total of four (eight or 12) demerit points within a 24-month period, he is suspended thus Gabriel was so duly sanctioned year when after the Pakistan Ahmed incident he hit four demerits…and points are actively on record for 24 months from the date of first sanctioning.

    Thus Gabriel is liable for further suspensions if he transgresses into grizzly mode before April 2019 – and of course these latest three demerits will stay with him into 2021 February!

    But all this can be BLAMED 😁 on the prevalence of social media and the creeping, intrusive nature of fans into sports, entertain, political life…everything. ..why are stump mics even out there and turned on if not to provide more texture and inches of twitter or instagram feed to incite the rabid fan interest that fuels the major bucks that makes other grizzlies like Gabriel millionaires!

    Banter/picong or its bad cousin sledging is inseparable from sports or life so why victimize otherwise decent and quiet fellas like Shannon Gabriel who are working their highly trained skill set to be aggressive but fair fast blowers by capturing and censoring spur of the moment banter which in this case the opponent dismissed and handled perfectly…back then before the ICC was so enamoured with the power of the mic, Sarwan handled McGrath perfectly too but there was no ‘official’ read out of that spat…but boy could you imagine that verbal volley on a Twitter feed… good heavens! Reminds me (unfortunately) of very rough school boy banter about mothers, fromage and turgidity that really are not suitable for decent public discourse…but such is life.

    There is no way to control the current intrusive, always on nature of life’s missteps so the other counsel for the Gabriels of our life is to control yourself as best as possible when frustrated after hard hours of toil and when your indiscretions are obviously mild and misconstued as hateful to fight the matter purposefully…it’s not always right to “admit the offence and accept the sanction” sometimes let there by a “formal hearing”.

    I gone.

  15. Oh yes @Dean Jeff I agree re your different counsel to Gabriel as noted at end of my palaver. He should have fought this charge ..if for no other reason to reduce the demerits if he did not get it dismissed completely.

  16. I suspect had these “rules” been in effect back in the 70’s, all the BCA/BCL matches would have been indefinitely postponed for Clubs inability to field teams due to the lack of players. Add in the slams between players on the same team, and to opposing spectators, and the disciplinary bodies would have been busier than Oistins on a Friday night.

  17. Roy Gilchrist is happily on the other side of the river.He was an arch sledger of the most frightening variety.Root would be batting at square leg if he had the demon bowling at him.A thunder bolt is one thing but the tongue ragging that followed with the pretty French words would be excoriatious.

  18. fyi Jeff

    CJ misdirected herself
    By Staff Reporter –
    February 17, 2019×456.jpg

    FORMER Judge of the Caribbean Court of Justice (CCJ), Professor Duke Pollard, has asserted that President David Granger’s government is in full compliance with the constitution of Guyana and charged that Chief Justice (ag), Roxane George-Wiltshire misdirected herself in ruling that the Cabinet ought to have resigned immediately after the passage of the no-confidence motion.

    Attorney General Basil Williams has since applied to the Court of Appeal for an interim stay to halt the decision of the High Court, and to preserve the status quo of the Cabinet. The court will hear the application for a stay on Wednesday.

    Justice Pollard who was also Director of the CARICOM Legislative Drafting facility for some two years, made the comments in an interview with the Guyana Chronicle on Saturday.

    Political leaders and newspaper commentators have been arguing that the government was acting unconstitutionally and that Cabinet ought not to meet and must resign. Some of these commentators have even gone as far as suggesting that the country was heading into its worst constitutional crisis since independence. “Firstly, I wish to make it quite clear that up to this point in time in my respectful submission, the government has acted in full compliance with the constitution of Guyana,” Justice Pollard stated, adding “ the learned chief justice in my respectful opinion has misdirected herself in some important particulars.”×197.jpg
    Chief Justice (ag) , Roxane George-Wiltshire

    Professor Pollard advanced that as concerning the alleged requirement for the government to resign, “this is clearly not consistent with the language of commitment employed by the drafters of the constitution.” He said the relevant provisions of article 106 (6) of the constitution require the government to resign if it is ‘defeated’ by the vote of a majority of all the elected members of the National Assembly on a vote of confidence. However, Justice Pollard said the timeline and procedure to effect such resignation are set out in Article 106 (7), which states: “Notwithstanding its defeat, the government shall remain in office and shall hold an election within three months, or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine, and shall resign after the President takes the oath of office following the election.”

    Consequently, Professor Pollard stated, “Articles 106 (6) and 106 (7) must be construed conjunctively and not disjunctively as the learned chief justice did.” Justice Pollard said in this context, the chief justice’s ruling that the Cabinet should have resigned on the night of December 21, 2018 immediately on the passage of the motion of confidence is misdirected.

    He told this newspaper that “If this is what the draftsman intended he would have said “the government shall be deemed to have resigned on the passage of the confidence motion.” “Clearly, the draftsman did not intend this since his intention was definitively set out in article 106 (7).

    According to Justice Pollard, in the result, there is no requirement of automaticity or resignation by the operation of law and further argued that “in the premises it is respectfully submitted that the government’s continuance in office is entirely consistent with the language of commitment employed by the draftsman and the conditions required for demitting office have not yet been satisfied.”

    Justice Pollard also weighed in on the chief justice not granting the interim stay of her decision, saying “in the normal course of events, it is expected that the Court of Appeal will grant a stay and conservatory order to properly ventilate the issues in the chief justice’s decision. He stated however that it is “in the nature of a curious curiosity that the learned chief justice was reluctant to grant a stay of her judgement, given that it was taken for granted that the plaintiffs would have appealed her decision right up to the Caribbean Court of Justice if necessary.”

    The chief justice had ruled that the no-confidence motion was validly passed with the opposition securing a majority (33) over the government (32). Justice George-Wiltshire had also ruled that with the government being defeated, the Cabinet, including the President, ought to have resigned with immediate effect. She handed down the judgements in the cases– The Attorney General v The Speaker and Leader of the Opposition, and Christopher Ram v The Attorney General and the Opposition Leader.

    The attorney general has filed appeals in both cases; however, in the interim, he is asking the Appellate Court to issue an order for an interim stay of the effect of the judgements and orders of the chief justice, and a conservatory order preserving the status quo ante of the Cabinet. He wants the President, Cabinet and all ministers of the government to remain in office until the hearing and determination of the appeal in the matter.

    Subsequent to the ruling, the AG had maintained that the chief justice’s assessments failed to comprehend the difference between a simple majority and an absolute majority; the latter would have required the motion to secure 34 votes to be carried. The argument is based on the sitting members of the National Assembly being 65, an odd number; half of the House would be equal to 32.5 members.

    Considering there can be no “half of a person”, the legal minds had contended that 33, therefore, represents half of the House, while 34 would then constitute an absolute majority. Williams reminded the media that former CCJ President, Sir Charles Byron, had similarly determined Guyana’s Assembly to have both a simple and absolute majority. The legal affairs minister stated further, that similar rulings on the simple and absolute majority in other jurisdictions have been pronounced upon by current President of the CCJ, Justice Adrian Saunders.

  19. @ David, I have no difficulty with the view that the Government does not have to resign immediately on the passage of the no-confidence motion, The text of the Constitution is clearly directed in Article 106 (7)to having the defeated administration manage the required electoral process. Generalia non specialibus derogant A general provision [[Article106(6) does not override a specific provision [Article 106(7). However, the notion of absolute and simple majorities seeks to import words into the Constitution that are not there or not therein defined.

  20. “Smack” is part of just about every sport! It’s not like were in church, or parliament! See no reason for any suspension. As far as slow play wasn’t the match a five day test, finished in four. Come on, or is it a way to give credence to the England drubbing.

  21. No racist remarks
    No sexist remarks
    No homophobic remarks
    No religious remarks
    No nationalistic remarks.


  22. SirSimpleSimonPresidentForLife
    February 17, 2019 11:18 PM

    No racist remarks
    No sexist remarks
    No homophobic remarks
    No religious remarks
    No nationalistic remarks.


    Just play the game and enjoy it regardless!!

    Excellence based on skill will drive your opponent mad or illicit his/her appreciation.

    Kusal Perera, South Africa v Sri Lanka!!

    • @John

      It makes sense players should concentrate on playing the game. In the cases where the extra curricular activity occurs do you agree penalties should be equatable? What is your opinion in this case based on your experience?

  23. David/Artax

    It rather amusing how you and Artax have arrived at the conclusion that I was not aware of all of the facts surrounding Gabriel’s remarks towards Root … When Jeff spelled them out crystal clear …do you all read? And those remarks by the way were homophobic and warranted some sort of disciplinary action…

    • If you read Jeff’s essay with comprehension you see he started by saying ‘according to Gabriel’s accunt of the matter….?

  24. David

    You are talking about fairness but that is not the issue here … yes we have all agreed that many have gotten away with worse … but unfortunately… for Gabriel the book was thrown at him so does it makes wrong …? Of course not … Referees and umpires used discretion based on their judgment … and some do not …

  25. David

    And according the Gabriel’s account of the matter he got what he rightfully deserved … for the lack of his better judgment assuming he has one…

  26. David

    Gabriel, was cognizant of the Code of Conduct, but yet still allowed his emotions to get the best of him … So it doesn’t matter who has gotten a slapped on the wrist for less commentary … because you know as well as I do that a judge can rule between the maximum or the minimum for the same offence …

  27. ” Consider this exchange – perhaps apocryphal – between Ian Botham and Rodney Marsh, among cricket’s most celebrated sledges.

    Marsh: “How’s your wife and my kids?”
    Botham: “The wife’s fine, but the kids are retarded.”

  28. Hants

    Sledging is acceptable, but not abuse!!!

    In fact, it is enjoyable!!

    Sledging requires a brain which Gabriel was lacking.

    To his credit he admitted culpability and accepted his punishment!!

  29. The supreme example of how to respond to verbal intimidation is of course, the response of the WI team to the word “Grovel”.

    In those days we had the skill and ability to let our actions do our talking.

    That’s what cricket is all about, skill, ability, discipline and hard work!!

    Gabriel like the other quicks, the captain included need to concentrate on bowling the requisite number of overs in a day, forget the talking and just deliver the goods!!

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