Date: 19th Oct 2017
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AN UPDATE FROM ECB: EFFECTS OF TRIBUNAL DECISION ON OVERSEAS CRICKETERS IN CLUB GAME

Date: 11th August 2017

Further comments are made:

From ECB:  18 08 2017

Dear all,

I am sure you are aware that last week an Appeal Tribunal of the Two Counties Cricket Championship (TCCC) gave its judgment in respect of an appeal by Frinton-on-Sea Cricket Club and Blake Reed (an Australian national who has played for Frinton-on-Sea CC this season) against a decision of the TCCC Management Sub-Committee that Mr Reed was an ineligible player.  The Appeal Tribunal ruled that the ineligibility decision, being based on Home Office confirmation that Mr Reed was ineligible to play cricket in the UK on his visa on either a paid or unpaid basis, was correct and therefore dismissed the appeal.

The ECB has received a number of enquiries from Leagues and Clubs in light of this decision.  The purpose of this short summary note is to provide an ECB update to leagues, clubs and players in light of the judgment.

1.    The Home Office (not the ECB) is responsible for issuing visas to individuals from non-EEA countries who wish to play recreational cricket in England and Wales

2.    Any person (i) who enters the UK on a Youth Mobility or Visitor visa; and (ii) who is also deemed a “professional sportsperson” under the Immigration Rules, is likely to be deemed by the Home Office to be in breach of their visa if they play any cricket in the UK during their stay (on a paid or unpaid basis).  “Professional sportsperson” is defined under the Immigration Rules as “someone, whether paid or unpaid, who (i) is providing services as a sportsperson, playing or coaching in any capacity, at a professional or semi-professional level of sport; or (ii) being a person who currently derives, who has in the past derived or seeks in the future to derive, a living from playing or coaching, is providing services as a sportsperson or coach at any level of sport, unless they are doing so as an “Amateur”.”  An “Amateur” is defined as “a person who engages in a sport or creative activity solely for personal enjoyment and who is not seeking to derive a living from the activity. This also includes a person playing or coaching in a charity game”.

3.    In January 2017, the ECB confirmed in its guidance document entitled “Non-European Economic Area (EEA) Sportspeople – Clarification, Questions and Answers” that the Home Office interpreted a “professional sportsperson” to include any player who has played cricket at above Under 17 level at state, provincial, territory or national level (paid or unpaid) in any country.  It was as a result of this Home Office interpretation that Mr Reed was deemed by the Home Office to be a “professional sportsperson” and therefore ineligible to play cricket in the UK (paid or unpaid) on his Youth Mobility visa. 

4.    The ECB continues to have constructive dialogue with the Home Office and will report any developments when appropriate prior to the majority of decisions being made by clubs on players for 2018 season.

Tessa Whieldon 

League Engagement Executive 

England and Wales Cricket Board Emirates Old Trafford Manchester, M16 0PX, England

 

 

http://www.espncricinfo.com/story/_/id/20294709/tribunal-decision-threatens-overseas-cricketers-club-game

By George Dobell

(see also http://www.lpoolcomp.co.uk/management_bulletins.php?id=2931)

Frinton On Sea Cricket Club have lost a tribunal appeal after they were penalised for fielding an overseas player deemed to be ineligible in a ruling that could have far-reaching consequences for young cricketers hoping to mix travel by playing sport in different countries.

While Frinton's case against the Two Counties League might not, at first glance, appear significant outside the cricketing environment of Essex and Suffolk (it resulted in a points reduction for Frinton and the banning of a young, Australian cricketer), it could set a precedent that will change the organisation of recreational cricket across the UK.

The decision could have immediate repercussions for around 110 cricketers currently playing in leagues across the UK. Indeed, it is understood an investigation into another Australian player in the same league has already been opened.

The crux of the Frinton case found that Blake Reed, a 22-year-old Australian, should be considered a professional player as he had represented Western Australia at U19 level.

While the Western Australia Cricket Association provided evidence that he was no longer part of their system and Frinton provided evidence that he was not employed as a sportsman - he works as a labourer both in the UK and in Australia - the appeals tribunal concluded that he should be viewed as "an aspiring" player or coach and must therefore be viewed as a professional. As such, his Youth Mobility Visa, which specifically prohibits employment as a sportsperson, was viewed as insufficient to allow him to play or coach.

The Appeals Tribunal were swayed, in part, by the fact that Reed described himself as "an aspiring" player on the website cricketmentoring.com (a website offering 'a holistic approach' to coaching) and in part by the Home Office immigration rules.

These guidelines define "professional" in sporting terms as anyone who "is providing services as a sportsperson, playing or coaching in any capacity, at a professional or semi-professional level of sport; or being a person who currently derives, who has in the past derived or seeks in the future to derive, a living from playing or coaching, is providing services as a sportsperson or coach at any level of sport, unless they are doing so as an Amateur."

Most strikingly, the tribunal also quoted Home Office guidance which states: "A person may also be considered as "seeking to derive a living" if they have played as part of a player pathway. A player may be considered to be on a "Pathway" and therefore classified as a "Professional Sportsperson", if that person has played cricket above U17 at state/province/territory level (paid or unpaid) in any country."

That definition could potentially mean that a large body of young cricketers who have tried but failed to make the grade will be denied the opportunity to follow the long tradition of mixing social cricket with travel.

Taken to its logical conclusion, it means that any player with "aspirations" will be excluded from playing league cricket. While some will be eligible for a Tier 2 visa, they will have to have played a certain amount of international cricket to do so. A six-month holiday visa might also allow overseas cricketers to play in England, but they would be prohibited from being paid either for their cricket or any other form of work during their stay.

When Frinton were originally notified of action against them, they sought to take out an injunction on the TCL to compel them to allow Reed to play. But, after the Two Counties League management board - all of whom are volunteers - called a vote of confidence from the league over the matter, threatening to resign on block if they were defeated and expel Frinton if they were backed, the club and league agreed to the appeal process as a compromise. Both parties accepted its conclusions as final and binding.

As a result, it is not thought likely that Frinton will seek further legal action.

It is understood by ESPNcricinfo, however, that Reed is pursuing action against both the TCL and the Home Office. He claims the league breached their contract by first registering him - and thereby convincing him it was worth booking a flight to England - and then deeming him ineligible, while he maintains the Home Office have discriminated against him (and other non-UK players) by defining 'professional' in terms that he alleges differ depending on whether the individual is a UK citizen or not. Reed played in Somerset in 2016 without difficulty.

There may be some sympathy for both Reed and the management of the TCL. While Reed's plans for the season are clearly ruined, officials from the league have been dragged into a complex legal situation far beyond the remit of the day-to-day running of a cricket league.

Throughout the ruling their frustration at the Home Office's lack of clarity or leadership can be felt. At one stage they refer to the "weasel words" of the Home Office spokesman and point out that, although they have "failed to give the Appeal Tribunal any real assistance" they also issued "thinly-veiled threat to Mr Reed and Frinton" over the possibility of "enforcement action".

The ECB declined to confirm or deny whether they paid for the TCL's legal costs, but the league did utilise the ECB's retained lawyers, Onside Law.

The ECB told ESPNcricinfo: "We are aware of clubs and leagues' concerns regarding this issue and will be seeking further clarification and guidance from the Home Office."

ESPNcricinfo also understands that the Immigration Department of the Australian government has requested a copy of the judgement and is currently studying it. If they respond in a tit-for-tat manner there could be repercussions for dozens - if not hundreds - of 'aspiring' young cricketers who travel to play Grade cricket each English winter.

It was reported at the end of last year how Australian authorities had clamped down on visa requirements.

Ironically, while the justification for the Home Office (and perhaps the ECB) crackdown might be presented as a worthy intention to provide further opportunities to 'homegrown' young players, the result may well be to stifle long-available opportunities for many.

 

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