The CMA’s Annual Report and digital markets - a time of change
Ollie Robinson recently made his international debut for the England Cricket Team against New Zealand on 2 June 2021. However, for what should have been a memorable milestone for the 27-year-old as he took two of the three wickets on the first match of the Test series at Lord's, the occasion was instead marred by the media coverage surrounding historic racist and misogynistic posts on Robinson’s Twitter account that were unearthed that very same day.
The England and Wales Cricket Board (ECB), the governing body of cricket overseeing all levels of the sport in England and Wales, launched an investigation the following day to determine whether Robinson should be punished for the tweets. The ECB then announced on 6 June 2021 that the Sussex star had “been suspended from all international cricket pending the outcome of a disciplinary investigation”. Sussex County Cricket Club released a statement, stating that Robinson had “decided to take a short break from the game to spend time with his young family”. The statement noted that the tweets were “completely unacceptable”, but confirmed that the club would not be adding a punishment of their own.
The tweets were posted in 2012 and 2013, something that Robinson highlighted when reading out his prepared statement to press following the conclusion of what he described as the “biggest day of his career so far”. Robinson told press that he was “embarrassed by the racist and sexist tweets that [were] posted over eight years ago”. Robinson, who unreservedly apologised to anyone offended, went on to say, "I want to make it clear that I'm not racist and I'm not sexist. I deeply regret my actions, and I am ashamed of making such remarks. I was thoughtless and irresponsible… since that period, I have matured as a person and fully regret the tweets”.
Oliver Dowden, the Secretary of State for Digital, Culture, Media and Sport, had his own say on the ECB’s decision to suspend Robinson, labelling it “over the top” and called for them to “think again” in a tweet posted the day after the ECB’s statement was released. The Prime Minister, Boris Johnson, has since come out to support Dowden's remarks, drawing focus to the fact “these were comments made more than a decade ago written by someone as a teenager and for which they've rightly apologised”. To put matters into context, Robinson was aged 18 and 19 at the time the tweets were posted. So whilst young and perhaps impersonable, he was an adult who was old enough to vote and eligible for jury service.
The attention now draws to how the ECB decides to deal with Robinson moving forward. Their first task, however, is to determine whether Robinson was contracted at the time he posted the tweets. Robinson had been playing for Kent Second XI, before being released and trialling with Yorkshire. The last of the controversial tweets in question was posted before he made his professional debut with Yorkshire in July 2013. If it is found that he was a contracted professional cricketer during such period, then the Cricket Discipline Commission (CDC) will carry out the investigation instead. The CDC is an independent body under the game-wide regulatory system, which “operates at-arms-length” from the ECB and “is responsible for all aspects of cricket discipline covered by the ECB’s Rules, Regulations and Directives”. The CDC can impose penalties when considering sentencing for breaches of the ECB’s rules and regulations, ranging from a caution as to future conduct or a reprimand, to an unlimited fine or suspension or termination of registration.
Since Robinson’s international debut, further offensive tweets have resurfaced relating to fellow English international cricketers James Anderson, Jos Buttler and Eoin Morgan. Hours after Robinson’s suspension, cricket publication website, Wisden, uncovered a racist tweet relating to an unnamed player who was part of England’s squad for their second Test match of the series against New Zealand. The player’s identity was concealed because he was aged 15 at the time the tweet was posted. The ECB has confirmed they are aware of these further cases and “are committed to taking relevant and appropriate action where required”. In addition to this, Lancashire County Cricket Club have come under fire after five of their players were said to have posted offensive tweets containing racist, homophobic, anti-disability or misogynistic content. Three of the five players were also aged under 18 at the time the tweets were posted. The club has referred the matters to the ECB.
The ECB have acknowledged that this is an issue which is “clearly now broader than a single case”, however went on to confirm that "each case will be considered on an individual basis, looking at all the facts". With that in mind, it will be of particular interest to see how the ECB deals with historic offensive social media material posted where an individual was under the age of 18 at the time. Particular focus should also be drawn to the weight that is placed on the period following such material being posted, and whether any further material is found that supports such offensive views. The ECB therefore had no option but to suspend Robinson to ensure a full and fair investigation is carried out into the matter, but at the same time demonstrate a strong stance in response to the concerns. But with the list of other cricketers and historic offensive tweets being an ever-growing one, it will be interesting to see what approach the ECB adopts in further publicised cases and whether all players are dealt with in a consistent and similar manner, otherwise the decision to suspend Robinson could be seen as more of a punishment or ‘knee-jerk’ reaction by the ECB.
The tweets posted by Robinson are, without doubt, of a sexist and racist nature, but the ECB have lessons of their own to learn here. It could be considered unrealistic to expect a young and unproven cricketer to fully understand and be acquainted with the relevant codes of conduct and guidance relating to the use of social media. The ECB will certainly want to evaluate their education and training processes to increase awareness with younger players in the game as to the issues surrounding posting on social media platforms, to also avoid any repeat incidents. The ECB could then require players to sign a declaration acknowledging such education and training, whilst confirming they have not posted any material that could be deemed offensive. But what is most surprising is the absence of any social media audit by the ECB when Robinson was called up to the national team. The Professional Cricketers' Association (PCA) has confirmed that although they monitor social media posts by their members, checking historical social media posts is not something that is currently done. This is an issue that is not new. The incident serves as a reminder of the many past instances of high-profile figures who have fallen foul to similar scenarios in recent years. Having a system where historic social media posts are reviewed would not only prevent a reoccurrence of offensive content coming to light, but give the governing body the opportunity to provide any further appropriate training for players to address any underlying views they may have.
With no protocol currently in place to deal with historic offensive social media posts, the ECB has already announced that it will undertake a social media review to "address any historical issues, remind individuals of their personal responsibilities going forward, and help them learn lessons along the way". The fiasco will be seen as a setback for the governing body given the hard work that had been done to paint the sport in a more inclusive light. The ECB had asked all professional cricketers under its remit to attend online classes on unconscious bias and discrimination prior to the season starting last summer, and in November 2020 established The Independent Commission for Equity in Cricket to address inequalities and discrimination of all forms within the sport and identify the actions the ECB will need to take to tackle these issues. What made the incident even more humiliating for English cricket was the fact Robinson, along with his teammates, wore anti-racism and homophobia t-shirts during their warm-up before the game against New Zealand. The ECB are now likely to carry out due diligence checks on players’ social media history, but as Rob Lynch, the PCA Chief Executive, highlights, the ECB must ensure their “process is fair and considered and to offer support, advice, and education to all of our members” when doing so. Whilst Robinson may be the focal point of attention at present, this is a wake-up call for the ECB.
Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising regulated individuals, businesses such as clinics and care homes and students in respect of disciplinary investigations.
She is a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act. In addition Shannett has built up a significant niche in advising investors and businesses in the cannabis sector.
Tommy Dominguez is a Legal Assistant in the Regulatory team.
Tommy investigates and prepares fitness to practise cases relating to professional misconduct, conviction, ill-health, and lack of competence on behalf of the Health and Care Professions Council (HCPC), Education Workforce Council (EWC) and General Pharmaceutical Council (GPhC). During these investigations, Tommy interviews witnesses and drafts statements on their behalf, instructs experts and liaises with various other parties, such as the police, for further documentary evidence.
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