REPUBLIC OF TRINIDAD AND TOBAGO IN THE MATTER OF AN ARBITRATION UNDER THE ARBITRATION ACT CHAP 5:01 AND IN THE MATTER

OF AN ARBITRATION BETWEEN THE WEST INDIES PLAYERS ASSOCIATION (“WIPA”) AND THE WEST INDIES CRICKET BOARD (“WICB”) IN ACCORDANCE WITH THE DISPUTE RESOLUTION PROCESS CONTAINED IN ARTICLE XI OF THE COLLECTIVE BARGAINING AGREEMENT AND IN THE MATTER OF A JOINT LETTER OF REFERRAL DATED MARCH 29, 2011 BETWEEN THE WIPA AND WICB CONCERNING LENDL SIMMONS. BETWEEN LENDL SIMMONS Claimant AND THE WEST INDIES CRICKET BOARD Respondent

FINAL AWARD

[1.0]

I, SEENATH JAIRAM, S.C., LL.M was appointed arbitrator by a joint letter dated March 29, 2011 from the Claimant‟s representative, West Indies Players‟ Association (“WIPA) and the Respondent, West Indies Cricket Board (“WICB or “the Respondent”). The said letter was signed by Dr. Ernest Hilaire, Chief Executive Officer on behalf of the WICB and by Mr. Dinanath Ramnarine on behalf of WIPA. Thereafter, with the parties‟ consent I issued draft directions for consideration by the parties at the first hearing/preliminary meeting next mentioned. Mr. Lendl Simmons is referred to as “Lendl Simmons”; “Mr. Simmons”, or “the Claimant” herein.

[1.1]

On May 3, 2011 following a directions hearing at which the parties were represented by Counsel, I issued a number of directions regarding pleadings and other matters.

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[1.2]

Subsequently, I had email communications with the parties and their respective Counsel. As a consequence, a further directions hearing was held on July 6, 2011 when I issued Further Directions.

[1.3]

I continued communicating with the parties and their Counsel by email and the Terms of Appointment and matters connected therewith were agreed in writing on September 5, 2011 with retroactive effect from March 29, 2011.

[1.4]

There was also a directions hearing on September 2, 2011 when further directions were issued and dates for hearing which were fixed on July 6, 2011 were confirmed on September 2, 2011 but had to be adjourned due to the unavailability of a witness of one of the parties.

[1.5]

As a result of the earlier directions which I gave, WIPA submitted its Points of Claim with supporting documents on June 3, 2011. On July 14, 2011 WICB submitted its Points of Defence and supporting documents. Subsequent to the Points of Defence, WIPA, on August 5, 2011, submitted its Points of Reply and supporting documents.

[1.6]

I had also ordered that the parties submit a Statement of Agreed Facts and Skeleton Arguments (in point form) together with supporting authorities, etc but they failed to comply. The parties were also directed to prepare and submit an Agreed Bundle of Documents but this too was not supplied.

[1.7]

Pursuant to my directions I received two (2) witness statements, from WIPA, one from Mr. Daren Ganga, a professional cricketer dated September 9, 2011 and the other from WICB in the person of Mr. Lendl Simmons, the Claimant dated September 9, 2011. On behalf of the WICB, I received a witness statement from Mr. Clyde Butts, Chairman of Selectors for the WICB dated September 8, 2011.

[1.8]

On September 12, 2011 the hearing of this matter commenced at the Caribbean Court of Justice Building (“CCJ”) in Port of Spain and continued on the 13th, for the entire two days. Both Messrs. Simmons and Ganga testified on behalf of the Claimant and Mr. Clyde Butts testified on behalf of the WICB. Mr. Butts was

2

examined in chief by Mr. Derek Ali, Counsel for WICB and cross-examined by Ms. Donna Symmonds, Counsel for the Claimant; there was no re-examination. Mr. Daren Ganga was examined by Ms. Symmonds and cross-examined by Mr. Ali; there was no re-examination. I had asked a number of questions of Mr. Ganga and thereafter invited Counsel to cross-examine on the answers provided by Mr. Ganga. With their usual alacrity, both Counsel further cross-examined Mr. Ganga. This was of course in the interest of fairness or natural justice. When Mr. Simmons took the witness stand he was examined in chief by Ms. Symmonds and cross-examined by Mr. Ali. There was no re-examination of Mr. Simmons.

[1.9]

At the close of the evidence I invited both sides to make oral submissions which was again embraced by both sides. These oral submissions were supplemented by written submissions. In the case of WIPA, by written submissions dated September 27, 2011 and in the case of the WICB by written submissions dated October 11, 2011. On October 18, 2011 WIPA submitted its closing Reply to the WICB‟s written submissions.

[1.10] I now set out in default the pleadings, evidence, arguments and my decision in that order.

POINTS OF CLAIM

[2.0]

The case for the Claimant, Lendl Simmons is that the Claimant is a professional cricketer who was retained by the WICB pursuant to a Retainer Contract for the period 2009-2010 („the Contract‟). The Claimant has elected to be represented by WIPA in accordance with Article IX (b) (ii) of the said Retainer Contract. This Arbitration arose out of a “complaint” from the Claimant that the Respondent had breached certain aspects of a subsisting agreement (the Contract) between them and is made pursuant to Article IX thereof. The said agreement expired on September 30, 2010. The complaint is dated October 1, 2010.

[2.1]

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[2.2]

The Collective Bargaining Agreement („CBA‟) is designed to inter alia, promote orderly collective bargaining relations between the WICB and WIPA. The Memorandum of Understanding („MOU‟) is designed to strengthen and regulate the relationship between the parties and ultimately to strengthen the governance of West Indies Cricket, as indicated in Article II. The specific clauses thereof which relate to this complaint are: Article VII (e) (i) of the MOU; Article VII (e) (ii) of the MOU; and Article VII (a) inclusive of Schedule „F‟ of the MOU. [Emphasis supplied.]

Facts:

[3.0]

By virtue of Article II (d) of the Contract, retained players agree to render their services as a cricket player during the Contract Year subject to the provisions of the contract and the MOU, which the parties acknowledge are expressly incorporated by reference into the Contract. [My emphasis.]

[3.1]

By virtue of the Contract, the Claimant was engaged by the Respondent to render skilled services as a cricket player for the period October 1, 2009 to September 30, 2010 and the provision of these services represented a full time occupation for the Claimant. The Claimant has not been selected for an extended period of time, including but not limited to the following: March 2010 - One-Day Tour against Zimbabwe, April 2010 - World Cup, April 2010 - A Team Series against Zimbabwe, May 2010 - A Team Series against Bangladesh, May-June 2010 - South Africa Series, and June-July 2010 - A Team tour of England and Ireland.

[3.2]

By letter dated April 15, 2010, WIPA wrote to the WICB on behalf of the Claimant as a result of media reports alleging that the Claimant was the subject of disciplinary proceedings. By the said letter, WIPA requested the exact particulars of any charges or allegations against the Claimant and any investigative report done by the WICB in relation to the said Claimant to which the Claimant would be required to respond.

[3.3]

On April 16, 2010 WICB responded to WIPA by letter and confirmed that there was no report on the Claimant nor any investigative report done by the WICB and

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accordingly no information regarding any complaints or investigations against the Claimant was provided. On or about the 29th day of May, 2010, in a media release to the Caribbean Media Corporation, and reported in www.jamaicaobserver.com, entitled “’Issues’ keep Simmons out of selection says Butts”, the Chairman of the Selection Committee, Mr. Clyde Butts cited „issues‟ as the reason for the Claimant‟s omission from the tournament squad. Mr. Butts was reported as saying that factors other than

[3.4]

performance played a role in selection. Mr. Butts also apparently made the following comments: “Lendl has had some issues, not only now. If you remember when Lendl was in England a few years ago, there were some issues as well, during the World Cup there were some issues with him as well and his tour of Australia.” “There is no doubt in my mind he‟s a talented person, but there is some work to be done with him.” “The criteria [are] not only performance as everybody would tend to think it‟s just performance. It‟s the way how you play the game, your discipline – not only on the field but off the field as well.” [3.5] According to the comments aforementioned, the Claimant‟s exclusion from the aforesaid matches was due to issues, other than performance. WIPA therefore pleaded that the Claimant was excluded due to “issues” of which he had no notice and/or particulars, and in respect of which he was not given an opportunity to be heard. Further, according to WIPA, the Selection Committee of the WICB has failed and/or refused to inform the Claimant on exactly what rule or regulation, if any, was alleged to have been breached and the facts which disclosed any alleged breach and the precise nature of the issues which prevented him from being selected. According to WIPA, the appraisal process was not followed.

[3.6]

WIPA further pleaded that as a consequence of the above, the principles of natural justice have been breached and as a result, the Claimant‟s standard of living and livelihood have suffered. Further, WIPA claimed that the Claimant has been denied a fair opportunity to be considered for the 2010-2011 contractual period. This, WIPA

5

said, has severely damaged the Claimant‟s professional reputation and has hampered his ability to procure and exploit other commercial and business ventures and future employment. As a consequence, WIPA pleaded that the Claimant was not allowed to avail himself of the principles of natural justice, the effect of which was his omission from the various tournament squads for this contractual period, and this has adversely impacted on his standard of living and his livelihood.

[3.7]

WIPA, pursuant to Article IX (b) (ii) of the Retainer Contract and to instructions from the Claimant, wrote on behalf of the Claimant, to the Respondent on September 16, 2010 invoking the Grievance Procedure in accordance with the Retainer Contract, by virtue of which, the WICB was required to meet with WIPA with a view to resolving all the issues complained of in respect of the Claimant.

[3.8]

The Respondent wrote to WIPA on September 22, 2010 stating that the Claimant was not entitled to invoke the Grievance Procedure and refused to meet under the said procedure. In response to the Respondent‟s letter of September 22, WIPA wrote, highlighting the reach of Article IX of the Retainer Contract and referred the matter to mediation and submitted its request to the Dispute Resolution Centre, Trinidad (“DRC”) on November 2, 2010 after writing to the WICB several times and without receiving a response. See in this regard exhibit “H” to the Points of Claim herein.

[3.9]

[3.10] By letter dated November 4, 2010, the Respondent wrote to WIPA agreeing to mediate the matter at the DRC and indicated that it would submit its request for mediation to the DRC as WIPA had already done. The Respondent wrote to WIPA on December 6, 2010 stating that it had submitted its request to the DRC; however, inquiries to the DRC by WIPA revealed that this was not done until January 11, 2011. As a consequence, the DRC became unavailable as previously advised and the matter was consequently referred to arbitration. The particulars of breach supplied by WIPA are as follows:

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Natural Justice The Selection Committee of the WICB is in direct beach of the principles of natural justice in: a. its public statement in respect of the Claimant that he had “issues” which were responsible for his non-selection; b. its refusal to inform the Claimant of the nature of any complaints made against him; and c. to allow an opportunity to be heard before any decision was taken to omit him from the various tournament squads. The rules of natural justice require that the WICB having alleged that the exclusion of the Claimant was due to the fact that he had issues, provide the Claimant with notice as to the exact nature of these issues and a proper opportunity to be heard.

[3.11] The grievance procedure at Article XIII of the CBA and Article IX of the Retainer Contract are identical and both provide that if the Player claims that the WICB has breached his contract or the CBA then the parties must submit to the process set out at Clause (b) therein [or in the case of the CBA, Section 2 under Article XIII thereof]. The CBA by Article IV incorporates the MOU. Accordingly breaches of the MOU allow the grievance procedure to be invoked.

[3.11.1]It is clear to me that by Article VI of the CBA, the MOU, the Retainer Contract, the WICM Match/Tour Contract and the Territorial Match Contract are incorporated into and should be read together with the CBA. That much is clear and is not susceptible to arguments to the contrary.

[3.11.2]For the sake of completeness I set out hereunder the text of Article VII (e) (i) of the MOU which provides: “The WIPA agrees that the issue of selection of a Player on a WICB team or a Territorial Team is the sole responsibility of the Selection Panel of the WICB and the Player‟s Territorial Board respectively. In this regard however the WICB undertakes to ensure that the selection process will be done in a fair and transparent manner and that a person‟s race, religion, colour, descent, or national or ethnic origin will not be in any way a factor in a player‟s consideration for selection.” [My emphasis.] [3.11.3]Further, Article VII (e) (ii) of the MOU provides:

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The WICB recognizes that in seeking to ensure the integrity of the selection process, members of the Selection Panel will not make public comments that denigrate a player, other members of the selection committee or West Indies Cricket.” [Emphasis supplied.] [3.12] WIPA has averred on behalf of the Claimant that the Chairman of the Selection Committee, Mr. Clyde Butts has publicly made adverse comments about the Claimant as hereinabove stated in direct breach of the above provision (Article VII (e) (ii) of the MOU). According to WIPA, these comments also undermined the integrity, fairness and transparency of the selection process and constitute a breach of the above-mentioned articles of the MOU.

[3.13] The contracting process is embodied in Article VII (a) of the MOU which provides thus: “During the Contract Year, the WICB will review the performance of each Player following agreed guidelines and procedures as set out in Schedule F of the Memorandum of Understanding, and will determine before 31st August in each year of the Contract Year whether the Player will be offered a new contract commencing on the 1st October. The Head Coach is responsible for appraising the performance of the Player on a continuous basis and specifically at the end of the Contract Year. He may consult, where appropriate, other members of the West Indies support team and the West Indies captain. The appraisal will then be submitted to the Manager for final sign off.” [Emphasis given.] [3.14] The issue of performance appraisals is contained in Schedule „F‟ to the MOU which states: “Appraisal of a Player‟s performance is an on-going process which will be conducted by the West Indies Head Coach with the Player on a strictly personal basis throughout, and specifically at the end, of the Contract Period. Other members of the West Indies Management team (such as the West Indies physiotherapist or strength and conditioning coach) and the West Indies Captain may be consulted if their particular advice can contribute to the appraisal. These appraisals are a two-way process with a strong element of

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self-review, thereby ensuring that the Player has a major role in determining his own development. They are also forward looking, focusing on giving and receiving constructive feedback on performance, setting future objectives, identifying appropriate personal coaching, training and development opportunities and finding other ways to improve performance.” [Emphasis given.] [3.15] WIPA has averred that the WICB, in breach of the articles of the MOU set out above and in breach of the principles of natural justice, failed to inform the Claimant of any matters or charges against him, and failed to consult with the Claimant so that he could have been given the opportunity for self-review and improvement of his development in accordance with the MOU.

[3.15.1]I pause here to add my own comment. It is a fundamental principle in industrial relations that someone in the employ of another person would be given a reasonable opportunity to improve on his/her performance wherever there is a short-coming. In this context the short-comings are drawn to the attention of the employee and suggestions may be made as to how improvement may be achieved and a reasonable opportunity is given to the employee in order to rectify or eliminate his/her short-comings. If this wasn‟t done in the case of the Claimant, then that is a matter of serious concern to all the parties. The language of the Article is pellucid; when Article VII (a) of the MOU states inter alia “the appraisal will then be submitted to the Manager for final sign off”, that can only mean in its context that the parties contemplated that such an appraisal must be in writing. It cannot mean an informal appraisal.

[3.16] As a result of the alleged breaches, the Claimant claims:

1. Damages for breach of contract 2. Damages for loss of opportunity 3. Special Damages for loss of earnings 4. Costs and interest; and 5. Such further and or other relief the Arbitrator deems fit in the circumstances.

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POINTS OF DEFENCE

[4.0]

The WICB by its defence has accepted that WIPA is recognized by the WICB as the collective bargaining representative of Cricketers, who are employed by the WICB. Further, the WICB has averred that the relationship between the WICB and WIPA is governed principally by the CBA and the MOU referred to hereinabove and the relationship between WICB and the Cricketer is governed by the Retainer Contract, also referred to hereinabove.

[4.1]

By its defence, the WICB says that selection of the West Indies Cricket Team is the sole responsibility of the Selection Panel, which is defined in the MOU, the CA and the Retainer Contract as "the panel of selectors nominated from time to time by the WICB".

[4.1.1]I pause here to state that this plea seems to me to be eminently sensible and is indeed in accordance with Article VII (e) (i) of the MOU.

[4.2]

Further, Retainer Contracts are issued by the WICB on an annual basis, to players identified by the Selection Panel to receive such contracts. In the same way that a player who is not a party to a Retainer Contract can be selected to be part of the West Indies Team, a player who is a party to a Retainer Contract is not guaranteed to be selected to be a part of the West Indies Team. In short, possession of a WICB Retainer Contract does not guarantee a player's selection.

[4.2.1]I pause here again to state that as a matter of common sense this plea seems to be eminently reasonable as there may be a myriad of reasons as to why a contracted player may/may not be selected or why a non-contracted player may be selected on the West Indies Cricket Team. It is so obvious to me that I need not state the reasons.

[4.3]

The WICB has contended that: (i) (ii) a player has no right to selection; a player does not have a right to be heard on his non-selection; and

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(iii) [4.4]

a player has no right of challenge to his non-selection.

The WICB has averred that as the sole body charged with the administration of West Indies cricket, it must be responsible for the selection of the players who will comprise the West Indies Cricket Team. According to WICB‟s defence, Article IX(c) (c) of the Retainer Contract and Article VII (e) of the MOU when read together are understood to mean unambiguously and unequivocally that the issue of player selection is the sole responsibility of the WICB.

[4.4.1]I interject to state that this plea seems to be in accordance with common sense, logic and experience. According to the WICB‟s defence, this is consistent with the international position on selection of national representative teams; the European Court of Justice (ECJ), in accepting that only a limited number of players can participate at any one time, has stated that it is for sports federations to lay down appropriate rules and make selections accordingly.

[4.5]

[4.6]

The WICB further submitted that all fellow International Cricket Council ("ICC") Members apply the same principles to the selection of their players and that this is accepted by the Federation of International Cricketing Associations ("FICA") of which WIPA is a member.

[4.6.1] Insofar as these averments are concerned no evidence has been adduced before me to support these pleas and they can only be accepted if WIPA accepts the veracity of them, but at the end of the day they may be irrelevant because I am constrained to give effect to the MOU, the CBA and the Retainer Contract. I am bound by the language used and I cannot allow such extraneous matters to influence my award.

[4.7]

By its defence, the WICB did not admit to the truth and/or veracity and/or integrity of any media reports relied upon by the Claimant in aid of his claim and requested that the same must be struck out as hearsay and inadmissible in these proceedings. The

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Claimant was put to strict proof of each and every allegation contained in those reports that he intends to rely upon in aid of his claim.

[4.7.1] I pause here to state that during the cross-examination of Mr. Butts he accepted the veracity of this report so that it seems to me that this plea falls flat on the ground.

[4.8]

I return to the defence. The WICB further averred that the reason why Article IX (c) (c) of the Claimant's Retainer Contract and Article VII (e) of the MOU exists, is to give effect to a most basic principle of Sport Law, that is, the selection of players to serve on national teams is the sole purview of the selectors of that team, barring any offensive and/or objectionable considerations such as race, religion, colour, descent, national or ethnic origin. The underlying reason for the principle is simply because there are only a limited number of players who can participate on a team at any one time because a team is limited to a specific number of participants depending on the sporting discipline, and you may have thousands of players vying for selection, hence the selection rules. According the WICB‟s defence, selection rules have the effect of limiting the number of players eligible to participate as a member of a team, and that limitation is inherent in the conduct of international high-level sports events. Selection rules for high-level sports tournaments may be based on a large number of considerations unconnected to the personal situation of any player, such as money issues; or security concerns, among others.

[4.9]

[4.9.1] I have to say that I agree with the plea contained in para [4.9] above.

[4.10] The WICB submitted in its Points of Defence that all fellow ICC nations apply the same principles to the selection of their players and that this is accepted by the FICA of which WIPA is a member. If the position that is articulated by WIPA is correct, then every player has a right to be heard on his selection or non-selection save and apart from any offensive considerations as previously outlined, which will have the effect of usurping the function and authority of the selectors and place the task of selecting players in the hands ultimately of Arbitrators and/or Judges. This is not

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contemplated by the WICB and WIPA in the selection of the West Indies Cricket Team.

[4.11] The WICB denied that there were ever any disciplinary issues surrounding the player during the 2009-2010 contract period and put the player to strict proof thereof.

[4.11.1]My comment on this plea is that in the normal course of things and all things being equal, the Claimant would have been eligible for a selection, since no disciplinary issues were in existence against him.

[4.12] The WICB in its defence maintained that in any event it arranged for the Claimant to meet the Chairman of Selectors and the Team Coach on May 31, 2010 at the West Indies Team Hotel in Trinidad to discuss the issues raised herein by the Claimant but the Claimant did not attend the meeting nor did he offer an excuse for his nonattendance.

[4.12.1]With the benefit of hindsight, it would seem to be that this plea does not chime with the facts at the end of the day.

[4.13] The WICB denied that any of its servants and/or agents made denigrating remarks about the Claimant and the Claimant is out to strict proof thereof. (See my

comments under paragraph 4.7 hereof.) The WICB contended that the Claimant did not avail himself of the opportunity to meet with his Coach and the Chairman of Selectors and is therefore estopped from complaining about having had no opportunity to be heard or not given any information to assist him in his development and/or improvement and/or review. [My emphasis.]

[4.14] The WICB contended in its defence that if the Claimant has a right to selection, that inherently implies that another player ought not to have been selected ahead of him, and the WICB will welcome the Claimant identifying which of his teammates ought not to have been selected, or had no right to have been selected. The WICB denied that the Claimant has suffered any loss at all or as alleged or otherwise howsoever

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and asked that the claim be dismissed with costs and such further or other orders as the Arbitrator may deem fit.

CLAIMANT’S REPLY TO THE POINTS OF DEFENCE The Claimant‟s Points of Reply is set out fully herein. The Claimant agreed with paragraphs 1 to 6 of the WICB‟s Points of Defence. The Claimant agreed that a player has no right to selection but did not agree that a player does not have a right to be heard on his non-selection and that a player has no right to challenge his nonselection as stated equivocally by the WICB at paragraph 8 of its Points of Defence. The Claimant has averred that in certain circumstances the player may challenge his non-selection and has a right to be heard on his non-selection. [5.1] The Claimant further agreed that the WICB is the sole body charged with the administration of West Indies cricket, and that the issue of selection of a player on a WICB team or territorial team is the sole responsibility of the selection panel, as contended by the WICB at paragraph 9 of its Points of Defence. However, the Claimant asserted that under Article VII (e) (i), the WICB, having undertaken therein to ensure that the selection process will be done in a fair and transparent manner, must do so. [5.2] The WICB‟s comments in a media release to the Caribbean Media Corporation and reported in the online version of the Jamaica Observer (attached to the Points of Claim and marked “E”), in respect of the Claimant‟s non-selection and the reasons therefor, and in respect of the selection process, reflect the fact that the said process is not conducted in a fair and transparent manner. The Claimant was never advised of the “issues” of which the WICB spoke, and in fact only knew of the existence of these when the WICB‟s comments were published in the media. Given that transparency refers to a lack of hidden agendas and conditions, and to the availability of full information and a high level of disclosure, and given that the WICB vaguely alluded to the reasons for not selecting the Claimant, without being clear and specific, it appears that the selection process was not done in a fair and

[5.0]

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transparent manner and accordingly the WICB is in breach of Article VII (e) (i) of the MOU. [5.3] Further, the Claimant was himself never provided with details in respect of the “issues”, either before or after the WICB made its comments to the media. Further still, the WICB, in breach of Article VII (a) of the MOU, did not perform any performance appraisals and engaged in the selection process without following the procedures and guidelines set out in the MOU. Article VII (a) was therefore breached and the selection process proceeded on an unknown basis which lacked the requisite transparency. [My emphasis.] [5.4] By reason of the foregoing the fairness of the selection process was compromised. Further, the procedure for appraisals as part of the renewal of contracts, which is set out in the MOU as part of the contracting process( Article VII (a) ) was breached in that the said appraisal was not followed. Accordingly, the fairness of the selection process was further compromised and there was breach of Article VII (a) of the MOU. [Emphasis supplied.] The WICB‟s comments also are in clear breach of Article VII (e) (ii) of the MOU, which provides that in seeking to ensure the integrity of the selection process the selection panel will not make public comments that denigrate a player, other members of the Selection Panel or West Indies cricket. The comments made in respect of The Claimant were public comments which denigrated him. [Emphasis given.] [5.6] The Claimant averred that although a player is not entitled to be selected, in circumstances such as those set out above, where there has been clear breach of the MOU, the player has a right to avail himself of the dispute resolution procedure as set out in the Retainer Contract. Further, it is not the Claimant‟s case that a player is entitled to be selected but rather that there have been breaches of the MOU and the Retainer Contract by the WICB and that the said breaches have caused loss and damage to the player, his reputation and livelihood. [Emphasis added.]

[5.5]

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[5.6.1] This seems to me to be the nub of the Claimant‟s case.

[5.7]

Further still, the rules of natural justice cannot be and are not supplanted by the MOU and/or the Retainer Contract, and these rules ensure that the player has a right to be heard on allegations made about his performance as a cricketer, and to challenge a process which has been conducted in a manner that is unjust and that fails to follow the procedure agreed to by the parties for the execution of the said process. Further the player has a right to be provided with particulars so that he may properly consider and answer the allegations made against him. The Claimant was neither given particulars of the allegations made against him, nor was he provided with an opportunity to be heard. Further still, it appears that the said allegations formed the basis for the player‟s non-selection and as such the WICB further breached the rules of natural justice by imposing a penalty or punishment without giving the Claimant an opportunity to be heard. [My emphasis.] In respect of paragraph 13 of the WICB‟s Points of Claim, the Claimant denied that the media reports which are referred to and exhibited to its Points of Claim are hearsay, and further denied that they are inadmissible and should be struck out. The said report arises from a WICB media release, and it is passing strange to ask that the player prove the allegations made in the reports as they are made by the WICB, and in fact form part of the basis for the player‟s complaint in this Arbitration.

[5.8]

[5.8.1] As it turned out the media report was accepted by Mr. Butts when he was crossexamined before me. [5.9] In respect of paragraph 14 of the WICB‟s Points of Defence, while the Claimant agreed that selection of players is the sole purview of the selectors, the Claimant asserted that the selectors must act in accordance within the terms of the MOU, the Retainer Contract and the rules of natural justice. The Claimant disagreed that the only reason for the existence of Article IX (c) (c) of the player‟s contract and Article VII (e) of the MOU is to give effect to the principle that selection is the sole purview

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of the selectors. Article VII (e) of the MOU also has as its basis a principle which balances that power given to the selectors; that fairness and transparency must prevail in respect of the selection process, and that a player‟s reputation and livelihood, which are among his most valuable assets, must not be damaged by a selector who publicly denigrates him by way of comments. Indeed the prohibition against such public denigration is also designed to safeguard the integrity of the selection process. [5.10] The Claimant also disagreed with the statements contained in paragraphs 15 and 16 of the WICB‟s Points of Defence and asserted that in respect of paragraph 17 of the Points of Defence, the WICB publicly stated the reason for its decision not to offer the Claimant a retainer contract, and accordingly refuted any contention that the said decision was based on security issues or money issues or any other issues. [5.11] In respect of paragraph 19 of the WICB‟s Points of Defence the Claimant disagreed that the effect of its arguments is that every player would have the right to be heard on his selection or non-selection. The Claimant‟s position is that Article VII (e) (i) and (ii) have been breached by the WICB as have Article VII (a) and the principles of natural justice and these breaches give rise to the present Arbitration. [Emphasis given.] [5.12] In respect of paragraph 20 of the WICB‟s points of Defence, the Claimant referred to media reports in this regard, to WIPA‟s letter of April 15th 2010 and to the WICB‟s response thereto, dated April 16th 2010. The Claimant further noted the WICB‟s admission that there were never any disciplinary issues concerning the said Claimant during the 2009-2010 contract period. [5.13] The Claimant denied that the WICB made proper arrangements for the player to meet the Chairman of Selectors or the Team Coach on May 31 2010 as asserted by the WICB at paragraph 21 of the WICB‟s points of Defence. The Claimant asserted that although the WICB may have arranged for the player to meet the Chairman of Selectors or the Team Coach on May 31 2010, any such arrangements were neither proper nor reasonable in that the player was not given reasonable notice nor was he

17

properly briefed on the nature and agenda of the meeting. The Claimant denied that he did not offer a reason for his non-attendance and asserted that he did offer a reason of his inability to attend. [My emphasis.] [5.14] In respect of paragraph 23 of the WICB‟s points of Defence, the Claimant denied that he did not avail himself of the opportunity to meet with the coach and the chairman of selectors. The Claimant was not given a proper and fair opportunity to be heard, not given any information to assist him in his development and/or appraisal and/or review. [5.15] Further and in the alternative, the Claimant submitted that the WICB‟s Points of Defence disclose no reasonable grounds for defending the claim and that the WICB has no real prospect of succeeding on the defence as filed. The Claimant accordingly asked that the Points of Defence be struck out, damages assessed and costs awarded.

[5.16] Save and except as is hereinbefore expressly admitted or otherwise pleaded, each and every allegation contained in the Points of Defence was denied by the Claimant as though the same were herein set out and specifically traversed seriatim. The foregoing sets out fully the Claimant‟s Reply to the Respondent‟s Points of Defence.

WITNESS STATEMENT OF MR. LENDL SIMMONS

[6.0]

The Claimant testified that he is a professional cricketer and was retained by the WICB for the period 2009-2010 under a Retainer Contract. The period of the Contract expired on September 30, 2010. He stated that he was also retained by the WICB for a few years consecutively prior to the 2009-2010 contract year. It is undisputed that WIPA is the Claimant‟s representative and negotiating agent with full authority to represent his interests in cricket and to negotiate the best terms and conditions on his behalf.

[6.1]

18

The Appraisal Process:

[6.2]

The Claimant in his witness statement stated that he understood, Article VII (a) of the MOU provides that the WICB must assess his performance following agreed guidelines and procedures as set out in Schedule F of the MOU, with a view to determining whether his contract would be renewed. This appraisal process is intended to be a two-way process with a strong element of self-review, so as to ensure that he has a major role in determining his development and improving his performance. This appraisal process was not conducted, and he was deprived of the opportunity to be properly and fairly evaluated. Any evaluation which may be alleged to have been made would have been made without his knowledge and any results of such an evaluation would not have been shared with him. To use such evaluations as a basis for selection would be to fail to conduct the selection process in a fair and transparent manner, as it ought to be under the MOU. He has never been privy to the result of any evaluation or any report on his performance so as to be in a position to make any adjustments and improvements that were needed and that would improve his game and his chances of being considered for and offered a renewal of his Retainer Contract for the 2010-2011 contract period, the value of which was USD$24,000.00.

[6.3]

In the years that he was retained prior to the 2009-2010 contract period the appraisal process would be conducted as a collaborative exercise. He would know at the very least that it had been conducted and the results would be discussed with him so that he could use them to make any adjustments needed to optimise his chances of having the Retainer Contract renewed. The appraisals were a part of the renewal process. However in the 2009-2010 year the appraisals were not done. emphasis.] [My

19

WICB Makes Public Statements:

[6.4]

During the period of the 2009-2010 Retainer Contract he was not selected for an extended period of time and the WICB publicly made comments about him alleging that he was the subject of disciplinary matters in early 2010. Up to the time he testified, he stated that this comment has not been clarified or amplified despite many requests. Some of the matches in which he did not have the opportunity to participate include: March 2010 - One-Day Tour against Zimbabwe; April 2010 World Cup; April 2010 - WI vs. Canada; April 2010 - WI vs. Ireland; April 2010 - A Team Series against Zimbabwe; May 2010 - A Team Series against Bangladesh; May-June 2010 - South Africa Series; June-July 2010 - A Team tour of England and Ireland; Nov - Dec 2010 - WI vs. Sri Lanka; Jan - Feb 2011 - WI vs. Sri Lanka; Feb April 2011 - ICC CWC. He was keenly aware of the impact that such comments could have on his career and was concerned that the selectors, the WICB, and the public would hold a view of him as a cricketer that was false. [Emphasis added.]

[6.5]

As a consequence, WIPA wrote on his behalf to the WICB to ascertain the accuracy of the reports, as well as the specific nature of the alleged disciplinary problems, and to provide them with the findings of any investigative report done on him.

[6.6]

The WICB responded to WIPA on April 16, 2010 and stated it did not receive any request from him and that it was not aware of any report concerning him. The letter also stated that the Chairman of Selectors would be apprised of his matter and would contact him.

[6.7]

He also testified that even after the WICB stated that there was no report or disciplinary matters concerning him, he remained available but was not selected to play for the West Indies Team. Moreover, the Chairman of the WICB Selection Committee, Mr. Clyde Butts cited „issues‟ as the reason for his omission from the tournament squad. This was reported in a media release dated May 29, 2010 in www.jamaicaobserver.com, entitled “‟Issues‟ keep Simmons out of selection says Butts”. [Emphasis added.]

20

[6.8]

In that media report Mr. Butts was reported to have said that factors other than performance caused him to be omitted from the squad. He stated: “Lendl has had some issues, not only now. If you remember when Lendl was in England a few years ago, there were some issues as well, during the World Cup there were some issues with him as well and his tour of Australia.” “There is no doubt in my mind he‟s [the Claimant] a talented person, but there is some work to be done with him.” “The criteria is not only performance as everybody would tend to think it‟s just performance. It‟s the way how you play the game, your discipline – not only on the field but off the field as well.”

[6.9]

Based on these reports, he understood that he was excluded due to “issues”, however, he was not informed of what these issues were so that he could address them nor was he afforded the opportunity to be heard on these issues of which the WICB spoke. The fairness and transparency of the selection process, which is guaranteed by virtue of the MOU, had been erased by the WICB‟s refusal to provide him with clarification and amplification on these issues. Moreover by making these statements he has been deprived of the protection afforded by the MOU which prevents the selectors from publicly making comments which denigrate players. [Emphasis supplied.]

[6.10] Mr. Simmons claimed that he lost the opportunity to be fairly considered for selection for approximately one year, and has lost earnings as a result. As a professional cricketer, it is difficult to explore other options to earn a living. Cricketers are paid additional sums on a match by match basis, in addition to any sum paid as a retainer. By not being selected he did not earn these sums and his standard of living suffered. He also felt deprived of the opportunity to respond to the WICB simply because he was not aware of what he was expected to respond to and felt helpless especially since he was continuously being omitted from the squad. [My emphasis.]

[6.11] He further testified that the statements made by the WICB have damaged his professional reputation and have hampered his ability to procure and exploit other commercial and business ventures and future employment, inclusive of the S.F. gear contract. He was offered the contract by S.F., and accepted the terms, however, this

21

offer was revoked, and the reason given to him by S.F. was that he was not playing for the West Indies. The value of the contract was USD$3,000.00 plus participation fees. After he was selected for the West Indies Team for the Pakistan Series, he was offered another contract with S.F. as he was now playing again.

[6.12] After WIPA wrote to the WICB it would appear that the WICB refused to meet under the Grievance Procedure as it was of the opinion that he was not entitled to invoke it.1 Eventually, the matter was referred to mediation on November 2, 2010 after writing to the WICB several times and without receiving a response. [Emphasis given.]

[6.13] On or about October 28, 2010 at around 3:00 p.m. he received a phone call from Mr. Clyde Butts, Chairman of the WICB Selection Committee requesting to meet with him at 5:00 p.m. on the same day. Unfortunately, he had a pressing family commitment and could not meet at that time and informed Mr. Butts of the situation. He also enquired if they could meet at 7:00 p.m. instead. Mr. Butts however stated that he was due to leave his hotel at 6:00 p.m. and could not meet at 7:00 p.m. The meeting did not take place.

[6.14] It would appear that on November 4, 2010, the WICB wrote to WIPA agreeing to mediate the matter and again wrote on December 6, 2010 stating that it had submitted its request for mediation. WIPA made enquiries at the mediation centre, which revealed that the WICB did not submit its request until January 11, 2011. As a consequence, the mediation centre became unavailable and given the conduct of the WICB, WIPA, on his instructions and on his behalf, referred the matter to Arbitration.

Meeting with the Selectors:

[6.15] On January 20, 2011 at 2:41 p.m. at the Golden Sands Hotel, Barbados, he met with Mr. Clyde Butts, Mr. Courtney Browne and Mr. Robert Haynes. Mr. Daren Ganga
1

I remind myself of the provisions of Article IX of the Retainer Contract and in particular (a) (iv) and the Process set out under (b).

22

accompanied him to the meeting. At the meeting, he spoke with the selectors and informed them that he had been hearing for several months that there were certain issues concerning him which prevented him from being selected. He indicated to them that he had no idea what these issues were and would like to know so that he could address them and ascertain the areas in which he needed to improve, if any. Mr. Browne stated that the main concern is the game of cricket and expressed his desire to have the best team represent the West Indies. The selectors started out by being as vague as they had been before. It was only after he kept saying that he did not know of what they spoke that they began to speak of specific times and places. Even so, he was puzzled as they were referring to his body language rather than to his results or to any “disciplinary issues”. He claimed that he racked his brain to recall instances which could support what they were saying but he could not recall any. As a cricketer in a match situation he is constantly thinking about his performance, and about what is required in any particular situation, what his approach should be, what areas of vulnerability he had noticed in the other side that he could use to his advantage, where he should try to hit the ball and how he should score his runs. This mental exercise is obviously internal and if he “looks” “don‟tcareish” to use the words of one of the selectors on that day, it was not something he was aware of. Mr. Daren Ganga who has captained teams on which he has played, also made that point to the selectors: that he knows that he may be quiet but that it is because he is thinking and preparing to give 100% when he goes out to bat. [My emphasis.]

[6.16] The Selectors also referred to his refusal to meet with Mr Butts.

He was quite

alarmed at this as they seemed to be saying that he could be called on very short notice to meet and if he had prior commitments these should be cancelled. Further to view this as a disciplinary issue was not correct in his opinion. [Emphasis added.]

[6.17] The meeting with the selectors also alarmed him as they seemed to suggest that he should keep in close contact with them and should ask them for their numbers if he wanted to talk to them. He began to wonder if they were really basing their decisions on his performance or on his attempts (or lack of attempts) to be in close contact

23

with them. He had always let his bat do the talking for him and give his best in training. He always thought that would be enough. [My emphasis.] [6.18] As a result of the WICB‟s actions, he has suffered loss and damage. The WICB has wrongfully damaged his professional reputation, and has deprived him of the opportunity to be heard on matters affecting his selection, a result of which, he was not selected for a period of one year.

EVIDENCE OF DAREN GANGA

[7.0]

Mr. Daren Ganga testified that he is a professional cricketer and the captain of the Trinidad and Tobago National Cricket Team and has been playing cricket professional cricket for the past 15 years, during which time, he represented his country, Trinidad and Tobago Cricket Team and the West Indies Cricket Team.

[7.1]

In the early months of 2009, he learnt through the media that the WICB had certain issues with the Claimant. Being the captain of the Trinidad and Tobago National Team, he contacted the Claimant to find out what was the matter. However, the Claimant informed him that he had no idea what these issues were.

[7.2]

On January 20, 2011 at 2:41p.m at the Golden Sands Hotel, Barbados, he accompanied the Claimant in his capacity as Captain of the Trinidad and Tobago National Team, to a meeting with Mr. Clyde Butts, Mr. Courtney Browne and Mr. Robert Haynes. At the meeting, the Claimant sought clarification from these Selectors on the issues concerning him which hampered his selection on the West Indies Team. The Claimant reiterated that he was not aware of what issues there were, he was not aware what, if anything he had done. The Selectors then spoke of certain mannerisms of the Claimant and asked that he show them that he wants to play cricket. The Selectors also suggested to the Claimant that he maintain close contact with them. They also referred to a meeting requested by Mr. Butts which the Claimant was not able to attend. He heard the Claimant say that the request for the meeting came a few hours before the proposed meeting and that he could not attend at the time proposed due to a family commitment. He also stated that he suggested

24

a later time to meet with Mr. Butts on the same day, however Mr. Butts was unavailable. Throughout the meeting, nothing was said about the Claimant‟s

performance as a cricketer. At the meeting, Mr. Browne stated that the main concern is the game of cricket and expressed his desire to have the best team represent the West Indies. He had an opportunity to address the meeting and stated that he knew the Claimant as a player and that he was quiet and dedicated to the game. He knew and he also communicated to the Selectors that the Claimant plays with heart and soul and is very committed to the game. [My emphasis.]

EVIDENCE OF CLYDE BUTTS

[8.0]

Mr. Clyde Butts testified that the WICB appoints a Selection Panel which has responsibility for selecting players to comprise various representative West Indies teams from time to time and those to receive Retainer Contracts in any given contract year and that at all material times he was Chairman of the Selection Panel. The Selection Panel makes its decisions for team selection based on the members' of the panel's observations of and interactions with players from time to time as well as information provided from members of the Management Team who interact with the players on a daily basis.

[8.1]

The Management Team continuously appraises the performance of the Player. This is not a formal process that is required to be done in writing. It must be taken in the context of assessing professional athletes in a live environment that includes training, game day performance, and conduct on and off the field. It is a process that is fluid on a daily basis once the Player is part of a team. For example, the Head Coach will have constant exchanges with the members of the squad on an individual basis as often as they continue to be members of the squad and in training. The views and opinions of the Management Team are often communicated to the Selection Panel in respect of any particular player. It is the Selection Panel which identifies players to be offered Retainer Contracts in any given year by reviewing the player's performance, and how that player measures up to the criteria set out in the WICB's Selection Criteria.

25

[8.2]

This review is not a formal written process, but is based on members' of the Panel's own interactions with players and information provided from members of the various management teams who would have interacted with the players over the past year. [My emphasis.]

[8.3]

Mr. Butts however, stated that he was aware that the management team had directly engaged the Player with respect to his performance on a very regular basis. I note that this statement is not supported by any other evidence in this matter. I continue with Mr. Butts‟ evidence. The player in this context refers to the Claimant. The Claimant was given every opportunity to improve. He personally spoke to him in May 2010 and invited him to meet him at the Hyatt Hotel in Port-of-Spain Trinidad. The Claimant accepted the invitation, but never turned up for the meeting.

[8.4]

He eventually met with the Claimant in May 2011, but both Mr. Simmons and Mr. Ganga testified that it was in January, 2011 where they discussed his career as a West Indies cricketer and suffice it to say he was selected for the West Indies 2011 Home Series against Pakistan, subsequent to that meeting. Mr. Butts was always available to discuss with players reasons for their selection or non-selection. Mr. Butts also stated that he had always discussed with players forthrightly and directly the reasons for their selection or non-selection and that these discussions are not formally recorded by either party but are confidential, (given the nature of what is being discussed), casual face to face conversations intended to enlighten the player as to what he must do in order to be considered for selection or why he has not been selected.

[8.5]

Mr. Butts also said during the course of his evidence that appraisal is continuously conducted and is not done in any formal way that is required to be in writing; it is done in a context of assessing in a live environment including training, game day performance and conduct on and off the field with the views and opinions of the management team being communicated to the Selection Panel. [Emphasis supplied.]

26

[8.5.1] On my assessment of the totality of the evidence, having seen the witnesses and looking at the documentary evidence, I find that the Claimant did not deliberately avoid meeting Mr. Butts but by reason of a concatenation of circumstances the meeting never came off at 5:00 p.m. on the date requested by Mr. Butts and that a later time was inconvenient to Mr. Butts. I also find that the Head Coach, Mr. Otis Gibson who was given the Claimant‟s contact information by Mr. Butts did not contact Mr. Simmons. I also find as a fact that Mr. Butts had never seen Article VII (a) of the MOU and was unaware of Schedule F of the Retainer Contract, through no fault of his own. There seems to have been a disconnect between the management of West Indies Cricket (assuming that Mr. Butts was not part of the management) and the people in the position like Mr. Butts. The findings I make herein are not adverse to any of the persons who testified before me because I was left with a distinct impression that they were all witnesses of truth and spoke with refreshing candour and openness as one would expect of sportsmen and women the world over. There was one little apparent conflict regarding the date of the meeting in Barbados between the Claimant and the Selection Panel. Mr. Butts said the meeting was in May 2011 while both Mr. Ganga and Mr. Simmons said the meeting was in January 2011 as it coincided with a match which they were playing in Barbados at the time. This latter version seems to me more plausible as there was some event by which the memory could be jogged but nothing really turns on this apparent conflict.

SKELETON ARGUMENTS OF THE CLAIMANT

[9.0]

In addition to the oral submissions made before me on September 13, 2011, the Claimant made Closing Submissions which are to be read in conjunction with the List and Bundle of Authorities provided to me. The gist of the Claimant‟s

submissions is set out hereunder. I have also heard oral submissions.

[9.1]

The Claimant has not been selected for an extended period of time, including but not limited to the following:

27

     

March 2010 - One-Day Tour against Zimbabwe April 2010 - World Cup April 2010 - A Team Series against Zimbabwe May 2010 - A Team Series against Bangladesh May-June 2010 - South Africa Series June-July 2010 - A Team tour of England and Ireland

[9.2]

Under cross-examination Mr. Butts confirmed (or admitted) that he had made the comments referred to earlier during an interview on “Line and Length” which was broadcast during the lunch period of the match being played by the West Indies against South Africa in Dominica. [My emphasis.]

[9.2.1] I find as a fact that Mr. Butts did make the statements/comments attributed to him.

[9.3]

WIPA submitted that at the time that the comments were made neither Mr. Butts nor any of the selectors nor the coach or trainer, nor indeed anyone from the WICB had spoken to Mr. Simmons in respect of these issues or had provided any explanation in respect of his non-selection. Mr. Simmons had not been afforded a hearing on any disciplinary issues or charges by the WICB‟s Disciplinary Committee or by any other Committee. In the circumstances, the rules of natural justice had been breached since Mr. Simmons had not been provided with any reasons for his non-selection and had not been given an opportunity to be heard on any alleged reasons for his non-selection and/or any disciplinary matters. Further, the WICB had taken the decision to exclude Mr. Simmons from the team on the basis of this allegation that he had “issues”, and had never communicated with Mr. Simmons on these or given him an opportunity to be heard on them. It was said that Article VII (e) (i) of the MOU had also been breached as the selection process had not been conducted in a fair and transparent manner. Further still, Article VII (e) (ii) of the MOU had also been breached as Mr. Butts had made public statements which denigrated Mr. Simmons. Finally, Article VII (a) of the MOU had also been breached by the WICB as the appraisal process set out under this sub-article and under Schedule F of the MOU had not been performed. Pursuant to Article VII (a) of the MOU, the WICB must review the performance of each player following agreed guidelines and procedures as set out in Schedule F of the MOU (the Appraisal Process). This

28

process is conducted for the purpose of determining whether to renew a player‟s retainer contract. The process is an ongoing two-way process and, by virtue of the fact that it is provided for in Article VII(a) of the MOU and that sub-article is entitled “Appraisal Process (Renewal of Contracts)”, the exercise is expressly designed to be executed for the purpose of determining whether a player‟s retainer contract will be renewed. However, in the 2009-2010 contract period, the appraisals were not conducted in respect of Mr. Simmons as an ongoing two-way process or at all. [My emphasis.]

[9.4]

As a result of the aforementioned breaches Mr. Simmons suffered loss and damages and seeks damages as follows: (a) damages for breach of contract; (b) damages for loss of opportunity; (c) special damages for loss of earnings; (e) interest thereon; (f) such further and other relief as the arbitrator may deem fit in the circumstances.

[9.5]

The Claimant in his Reply to the Respondent‟s Points of Defence agreed that a player had no right to selection but did not agree that a player did not have a right to be heard on non-selection or that a player could not challenge non-selection. The Claimant asserted that in certain circumstances the player may challenge his nonselection and has a right to be heard on his non-selection. The Claimant agreed that the WICB is the sole body charged with the administration of West Indies cricket, and that the issue of selection of a player on a WICB team or territorial team is the sole responsibility of the Selection Panel, as contended by the WICB at paragraph 9 of its Points of Defence. However, the Claimant asserted that under Article VII (e) (i), the WICB, having undertaken therein to ensure that the selection process will be done in a fair and transparent manner, must do so. [Emphasis added.] The Claimant also asserted that the WICB‟s comments in a media release to the Caribbean Media Corporation and reported in the online version of the Jamaica Observer, in respect of the Claimant‟s non-selection and the reasons therefor, and in respect of the selection process, reflect the fact that the said process was not

[9.6]

29

conducted in a fair and transparent manner. The Claimant was never advised of the “issues” of which the WICB spoke, and in fact only knew of the existence of these when the WICB‟s comments were published in the media. Given that transparency refers to a lack of hidden agendas and conditions, and to the availability of full information and a high level of disclosure, and given that the WICB vaguely alluded to the reasons for not selecting the Claimant, without being clear and specific, it appears that the selection process was not done in a fair and transparent manner and accordingly the WICB is in breach of Article VII (e) (i) of the MOU and its Retainer Contract with Mr. Simmons. [Emphasis given.]

[9.7]

The Claimant was never provided with details in respect of the issues, either before the WICB made its comments to the media or before the WICB decided to exclude him from various squads and teams. Further, the WICB did not perform appraisals as they must do under the terms of the MOU and this meant that not only did the WICB breach Article VII (a) but that they also breached Article VII (e) (i) which requires that the selection process be carried out in a fair and transparent manner. The Claimant contended that although a player is not entitled to be selected, in circumstances such as those set out above, where there has been clear breach of the MOU and his Retainer Contract, the player has a right to avail himself of the dispute resolution procedure as set out in the Retainer Contract. Further, it is not the Claimant‟s case that a player is entitled to be selected but rather that there have been breaches of the MOU and the Retainer Contract by the WICB and that the said breaches have caused loss and damage to the player, his reputation and livelihood. [Emphasis supplied.]

[9.8]

Further still, the rules of natural justice cannot be and are not supplanted by the MOU and/or the Retainer Contract, and these rules ensure that the player has a right to be heard on allegations made about his performance as a cricketer, and to challenge a process which has been conducted in a manner that is unjust and that fails to follow the procedure agreed to by the parties for the execution of the said process. Further, the player has a right to be provided with particulars so that he may properly consider and answer the allegations made against him. The Claimant was neither given particulars of the allegations made against him, nor was he

30

provided with an opportunity to be heard. Further still, it appears that the said allegations formed the basis for the player‟s non-selection and as such the WICB further breached the rules of natural justice by imposing a penalty or punishment without giving the Claimant an opportunity to be heard. [My emphasis.]

[9.9]

The Claimant agreed that selection is the sole purview of the selectors, but reiterated that the selectors must act in accordance with the terms of the MOU, Retainer Contract and the rules of natural justice. The Claimant refuted the WICB‟s assertion that the decision not to select him was due to security issues as the WICB had publicly stated the reason for its decision not to select the Claimant and had not said that security issues were a factor. The Claimant denied that any proper

arrangements were made for him to meet with the Chairman of Selectors or the Coach on May 31, 2010 as asserted by the WICB. The Claimant asserted that any arrangements made were neither proper nor reasonable in that he was not given reasonable notice nor was he properly briefed on the nature and agenda of the meeting. The Claimant further denied that he did not offer a reason for his inability to attend. [My emphasis.] The Claimant’s written submissions on the Evidence

[9.10] The evidence as elicited under examination in chief and cross-examination is to the following effect:

i.

Though granted a retainer contract with the WICB for 2009-2010, The Claimant was not selected to play for the West Indies after the Australian Tour of 2009-2010 and had not been given any reasons for his continued non-selection or any issues or disciplinary matters that might be or were an impediment for his being considered for selection to a West Indies team. [My emphasis.]

ii.

The Claimant said that he had been at his home watching TV in 2010 when he heard on the news that he had disciplinary issues. He said that he was bothered psychologically by this as he knew nothing about it and he saw his

31

career become uncertain over something he did not understand or know anything about. The Claimant said that people started to call his home to ask what he had done and he became very disturbed by the news item and the allegations contained therein. He said that he was never given anything to read by the WICB, that he had no report to help him understand the issues.

iii.

The Claimant said that after the 2009 Australia tour he did not play for the West Indies or for any other country. During that time he was still on retainer but no coaches or managers called him. The Claimant said that the alleged issues did not affect him playing for Trinidad and Tobago. He said that he had learnt that his retainer was not being renewed when the other players received contracts and he received none. He received no letter from the WICB. The Claimant said that he had had no other contracts because he had lost his retainer. The Claimant stated that he had lost his S.F. contract because he had no retainer.

iv.

Under cross-examination the Claimant stated that Mr. Butts had called the night before the proposed meeting (on May 31, 2010, after the comments on him had been publicly made and the reasons for his non-selection had been made public) and had left a voice mail indicating that he was coming to Trinidad and that he would call the Claimant at 2.00 p.m. to advise whether he could meet with him that day. The Claimant, just before 3.00 p.m., having received no call from Mr. Butts, agreed to a family engagement. Mr. Butts subsequently called at 3.00 p.m. and advised that he wished to meet with the Claimant at 5.00 p.m. The Claimant indicated that he could not meet at that time and offered to meet at 7.00 p.m. Mr. Butts advised that he was leaving the hotel at 6.00 p.m. and that he would leave the Claimant‟s contact details with the coach. However, the coach never called. The Claimant also said that while he was in Guyana playing for the Trinidad and Tobago team, later that year, the selectors were in Guyana and asked to meet with other players but did not ask to meet with him. In fact it was not until January 2011 in Barbados that the selectors asked the Claimant to meet with them and he did so. [My emphasis.]

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v.

The Claimant‟s evidence under examination and under cross-examination was that during the meeting in January 2011 the Selectors persisted in being vague and in speaking of “issues” without giving further clarification. The Claimant said that It was only when he insisted that he did not know what the issues were that the selectors went on to speak of his body language and to say that he needed to look as if he wanted to play cricket. The Claimant said that there were no other issues that were spoken of and no disciplinary issues were discussed. There was no discussion about non-cricket issues or conduct off the field. The Claimant said that the coach was said to have been angry that he did not come to the meeting in May 2010. The Claimant also said that the selectors discussed the way in which he got out in Australia but that there was no talk of disciplinary issues. [Emphasis supplied.]

vi.

Under cross-examination the Claimant stated that he accepted that even when selected for a retainer contract that he would not play in all of the matches for the year but also said that he only played in a few matches in 2009-2010 and was not selected for the majority. The Claimant said that when he was retained and was not selected he lost the match fee and that because he had not been playing he would not have been eligible to play county cricket. The Claimant said that he had got back his S.F. contract in July 2011. The Claimant also said that his highest earning year was when he played in the World Cup in 2007 when he earned close to $232,000.00 US and had been selected from time to time since the meeting in January 2011. [My emphasis.]

vii.

Under cross examination Mr. Butts did not explain what the issues were. He merely said that he would rather not go into them. Mr. Butts also referred to tours prior to the 2009-2010 period and said that the Claimant had had these “issues” from that time. This highlights the fact that the Claimant had been selected on many occasions and had been given a retainer contract even when there were “issues”. [My emphasis.]

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viii.

Both in his witness statement and his viva voce evidence Mr. Ganga was supportive of the Claimant‟s case. In January 2011 in Barbados, he was the Captain of the Trinidad and Tobago team, and the team was in Barbados at the time. Mr. Ganga‟s evidence was that the Selectors spoke of nothing specific in terms of the “issues” that Mr. Simmons had been alleged to have had. Mr. Ganga said that the Selectors spoke of mannerisms of Mr. Simmons‟ which were apparently displeasing to them and said that he told the Selectors that as Captain of the Trinidad and Tobago team he knew that when Mr. Simmons was quiet it was because he was preparing to give 100%. Having heard on television and read in the newspaper that Mr. Simmons was not being selected for the West Indies Team because he had issues and disciplinary problems, he called Mr. Simmons to ask what the issues were as he was Captain of the Trinidad and Tobago team and was concerned. [Emphasis given.]

ix.

Mr. Ganga also said that as Captain of the Trinidad and Tobago team he had no disciplinary or other issues at all with the Claimant, save for time-keeping issues which was common to many members of the team because they lived in east Trinidad and that practice sessions were being held in Central Trinidad.

x.

Mr. Ganga also remarked that the Selectors had not asked to meet with Mr. Simmons prior to January 2011, for example when they were in Guyana. Mr. Ganga said that he noted that the Selectors had asked to speak with other team members such as Mr. Adrian Bharath while the team was in Guyana but had not asked to speak to Mr. Simmons. Mr. Ganga expressed his view that the Selectors had finally asked to meet with Mr. Simmons as a result of public pressure, since the public repeatedly demanded to know the reasons for Mr. Simmons‟ exclusion from teams selected by them since he was performing well and indeed was the Most Valuable Player of the Caribbean T/20 tournament. He described the Claimant as an introverted person but one whom he consulted when he as Captain needed to bounce off an idea and also said that Mr. Simmons gave his all on the field. [My emphasis.]

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The Claimant’s written submissions on the Respondent’s case: [9.11] The Claimant then set out the Respondent‟s case in point form in eight (8) subparagraphs but I need not regurgitate them as the Respondent‟s Defence has been fully set out above. The Claimant’s submissions on jurisdiction of the Claimant to bring proceedings:

[9.12] It was submitted on behalf of the Claimant that the Respondent at the beginning of the hearing argued that the grievance procedure provisions of the Retainer Contract explicitly do not apply to selection of a player in a team, squad or touring party and cited Article IX (c), sub-sub-article(c) of the Retainer Contract in support of this argument. This was a point raised in limine by the Respondent. In answer thereto the Claimant submitted that:

(a) Article IX (c) of the Retainer Contract also provides as follows: “For the avoidance of doubt (c) above shall not be inconsistent with Article VII (e) of the Memorandum of Understanding.” (i) Article VII (e) of the MOU speaks to the integrity of the selection process and provides, inter alia, that the WICB undertakes to ensure that the selection process will be done in a fair and transparent manner, and that in seeking to ensure the integrity of the selection process members of the Selection Panel will not make public comments that denigrate a player, other members of the Selection Panel or West Indies cricket. The general question of selection may in fact be the subject of a complaint by the player when Article VII (e) of the MOU is at issue, as it is in the instant matter. [My emphasis.]

(b) The Claimant‟s case is not about selection per se, but about breach of contract in
respect of the selection process.

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The Claimant’s submissions on the point in limine: [9.13] The Claimant submitted that the WICB‟s Points of Defence disclose no reasonable grounds for defending the claim and asked that the Defence be struck out, damages assessed and costs awarded because the WICB breached the MOU, which is incorporated into the Retainer Contract by virtue of Article II (d) of the Retainer Contract. Further, the WICB breached the rules of natural justice and the WICB‟s Defence does not respond to or address the breaches of contract set out and alleged in the Points of Claim and the Defence in fact replies to arguments not made by the Claimant or to a case that was not made by the Claimant. the WICB‟s Points of Defence. [My emphasis.] The Claimant’s submissions on breach of contract: Neither the

breaches of contract nor the breach of the rules of natural justice are addressed in

[9.14] It was submitted on behalf of the Claimant that the WICB has breached Article VII (a) of the MOU, the provisions whereof set out the process to be followed in determining whether a contract will be renewed or not. Article VII (a) in turn refers to Schedule F of the MOU where the procedures and guidelines for conducting the appraisal are set out. The procedure as set out at Article VII (a) of the MOU (and by extension at Schedule F [at p. 37 of the MOU] of the MOU) was not followed in determining whether to renew the Claimant‟s Retainer Contract for the period 2010-2011. By reason of the fact that the Claimant was not selected for an extended period of time while on retainer and had little or no communication with the WICB during this time, the appraisal process could not have been followed and no appraisal could have been performed. The Claimant gave uncontradicted evidence that no appraisal as set out and required under the Retainer Contract was carried out and that he had no conversations with any Head Coach and mentioned that he had never been spoken to by the trainer about his fitness. [Emphasis added.]

[9.14.1]I interject to state that I accept and find as a fact that the matters set out in this last sentence of the above para are correct.

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[9.14.2]I accept what Mr. Butts said in his overall evidence to the effect that there was no adherence to the process as set out in Article VII (a) and Schedule F of the MOU; that he had never seen the provisions of the MOU in respect of the appraisal process; that a review carried out by the Selectors was not the procedure for appraisal as set out in the MOU.

[9.15] It was also submitted that the language of Article VII (a) of the MOU requires a written appraisal and/or an appraisal of a far greater scope and specifically at the end of the retainer contract and Mr. Butts testified of an informal, oral process of which he was not a part as he was not part of the Management Team. Mr. Butts only spoke about performance while on the team and not the other elements that make up the appraisal for renewal of Retainer Contracts. The Claimant further submitted that Mr. Butts‟ evidence in respect of this appraisal was not relevant to this process as he was not even aware of the appraisal process under consideration. Further, according to the Claimant, it must also be noted that while the Claimant, as one of the persons who would by necessity have taken part in any appraisal as referred to in his retainer contract, gave evidence, the WICB did not present the other principal witnesses to speak to the arguments made by the Claimant. It was also submitted that Mr. David Williams, a former coach for the Australia tour and for part of 2010 was in Trinidad and Tobago at the time of the hearing on September 12th and 13th 2011 (as evidenced by his picture taken with the Trinidad and Tobago team in the Guardian of September 13, 2011); Mr. Otis Gibson, the coach at the material time (in 2010 after Mr. Williams) was in Barbados at the camp which Mr. Sarwan attended and could have given evidence by the same means as Mr. Sarwan. However, neither Mr. Williams nor Mr. Gibson was presented as witnesses. Neither were the Team Managers for 2009 - 2010 tendered as witnesses. [Emphasis given.]

[9.16] The Claimant submitted that during cross-examination Mr. Butts admitted giving an interview to the Line and Length Network reported in the Jamaica Observer on the 28th May 2010 and admitted the details reported by that network. He also admitted that he had never seen the description of the appraisal process and in giving evidence Mr. Butts did not disclose that any two-way appraisal process was carried

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out at the material time. The Claimant argued that Mr. Simmons‟ evidence was unchallenged and not contradicted under cross-examination and that his evidence should stand. [My emphasis.]

[9.17] It was also argued for the Claimant that Article VII (e) (i) of the MOU acknowledges that selection is the sole responsibility of the WICB‟s Selection Panel and that the WICB must ensure that the selection process is done in a fair and transparent manner. By failing to carry out the appraisal process, which process is part of the renewal of contracts, the WICB did not ensure that the selection process was carried out in a fair and transparent manner and breached the terms of Article VII (e) (i). [My emphasis.]

[9.17.1]I pause here to observe that based on the totality of the evidence adduced before me and having regard to the provisions of the MOU, the CBA and the Retainer Contract I am left in no doubt that the selection process was not fair and transparent and this conclusion is further supported by the principles and practices of good industrial relations. Of course the question of damages is another matter.

[9.18] I return to the submissions made on behalf of the Claimant. It was also submitted that Article VII (e) (ii) of the MOU provides that members of the Selection Panel will not make public comments that denigrate a player, other members of the Selection Panel or West Indies cricket. Evidence of such denigration was provided. The release also said that the criterion is not only performance, as everyone tends to think but it is also discipline on and off the field. This comment suggests that Mr. Simmons had problems with discipline and other “issues” which prevent him from being selected. Mr. Butts under cross-examination admitted that the said words

denigrated the Claimant whose evidence was that when he spoke to the selectors in January 2011 there was no mention of any disciplinary issues and no discussion on anything that transpired off the field. Further, the WICB did not provide any reports that could provide a basis for the statement made in respect of Mr. Simmons, and even Mr. Butts did not shed any light on what the issues were. The said words clearly denigrated the Claimant as a sportsman and an individual as they implied that in some area other than performance; he did not measure up to the required

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standard. The allusion to discipline cast him in a negative light and suggested that his “issues” may have been in respect of discipline or “off-the field” behaviour. [Emphasis given.] The Claimant’s submissions on the breach of the rules of natural justice:

[9.19] The Claimant submitted that the rules of natural justice require that the Claimant be provided with the basis for the allegations/charges made against him and that the Claimant be given an opportunity to be heard on these allegations/charges. These rules also provide that any allegations or charges should not be treated as findings and acted on without giving an opportunity to be heard. This breach is more egregious if committed in the context of an employer-employee relationship. Pett v Greyhound Racing Association Ltd [1968] 2 All E.R. 545. See

The Claimant

further submitted that the rules of natural justice, as set out in Ridge v Baldwin [1964] AC 40 at 132 and followed in a line of cases such as Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte [2000] 1AC at 119 and 147 are applicable and in circumstances as these there is a right to be heard by an unbiased tribunal, the right to have notice of charges of misconduct and the right to be heard in answer to those charges. In matters where there is no misconduct in the

traditional sense or set out in a code of conduct, there is still a duty imposed on anyone deciding anything to do so fairly and there is a minimum standard to be observed "by anyone who decides anything" (See Board of Education v. Rice [1911] AC 179). The Claimant therefore submitted that no such procedure(s) were followed by the WICB causing Mr. Simmons loss and damage. [My emphasis.] The Claimant’s submissions on whether the WICB was the employer of Mr. Simmons:

[9.20] WIPA further submitted that the WICB, in paragraph 1 of its Points of Defence states that it is the employer of Mr. Simmons. The Claimant made no objection to this statement in its Reply. However the position is not a simple one. It was submitted that while under retainer, Mr. Simmons may be considered to be an employee of the WICB although the language of the retainer contract in parts suggests otherwise. For

example, the contract is a retainer contract and not a contract of employment. One

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may also note that by Article II (d) of the contract the player agrees to render skilled services as a cricket player and that by Article II (e) the player acknowledges that the provision of services constitutes a full time occupation. When one employs the

standard tests used to determine the issue of whether a person is an employee or an independent contractor (control; integration; mutuality of obligation and economic reality, (see Deakin & Morris (4th ed.) at pp. 149-162) one may well conclude that the retained player is a hybrid of an employee and an independent contractor, or what is referred to as “quasi dependent labour” by Deakin & Morris. WIPA further submitted that the Claimant accepts that while under retainer he may be considered to be an employee of the WICB. However, a player who is not under retainer is not an

employee of the WICB, but an independent contractor. At any given time therefore a West Indies team will be made up of players who may be deemed to be employees of the WICB and persons who are independent contractors. [Emphasis added.] The Claimant’s submissions on damages:

[9.21] The standard remedy sought for breach of contract is damages. These are meant to compensate for the loss occasioned by the breach. principles: (a) Damages are measured by reference to the Claimant‟s expectation loss. The Claimant must be put in the position he would be in if the contract had been performed (See Smith and Thomas on Contract 12th ed. at p. 471). There are two guiding

(b) Where a contract has been broken the damages awarded should be such as would fairly and reasonably arise naturally from the breach (See McGregor on Damages 18th ed. at para 6-157 citing Hadley v Baxendale).

[9.22] Further the damage claimed to have been suffered must not be too remote and consequential losses must therefore not be indirect or unlikely or beyond the Respondent‟s reasonable contemplation (See Smith and Thomas op. cit. at p. 471). Where however, the breach occasions no tangible loss the measure of damages awarded is nominal. It was further submitted that under the first guiding principle set

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out above, damages may be sought for loss of publicity (or loss of reputation), under the court‟s decision in Mahmud v Bank of Credit and Commerce International SA [1998] A.C. 20, which overruled the decision in Withers v General Theatre Corp [1933] 2 K.B. 536 C.A. In Withers the argument was made that in engaging the services of an artiste the owner of a theatre was promising two things: a salary for his services and an opportunity to play in public which would attract attention (today this is referred to as “exposure”). An argument was made for damages on the basis of loss of reputation (also referred to as loss of publicity). However the Court of Appeal held that no damages could be awarded for loss of an already existing reputation. In Mahmud v Bank of Credit and Commerce supra, Withers was Earlier decisions also support an award of

however, overruled on that point.

damages on this basis (see McGregor on Damages (18th ed.) at para 28-025). The basis for damages under this head is that in retaining Mr. Simmons the WICB was promising two things: a salary for his services and the opportunity to play in public which would attract attention and help to develop his reputation and/or provide exposure (McGregor on Damages (18th ed.) at paras 28-024; 28-027). The value of such exposure is that Mr. Simmons‟ ability to attract new endorsements would be enhanced. Further still damages must be awarded for loss of Provident Fund

contributions (which are awarded on the basis of match or tour fees paid to a player when selected for a match or series) and for loss of ICC fees for the World Cup squad. Both of these are consequential losses which flow from the breach and would have been in the contemplation of the parties when the retainer contract was signed.

[9.23] The Claimant therefore claimed damages flowing from the breach of the rules of natural justice and for breach of Article VII (e) (i) and (ii) of the MOU (fairness of the selection process and denigration) incorporated into his Retainer Contract as well as damages for breach of Article VII (a) (appraisal process) in respect of the renewal of his contract and Article VII (e) (i) (fair and transparent selection process). In the circumstances and in light of the preceding it was submitted that the Claimant may claim damages as follows:

[1]

Special Damages for lost earnings as follows:

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(a) Retainer contract payment of US$24,000.00; (b) Loss of ICC fees for world cup squad of US$69,500.00 (Mr.
Simmons made US$232,000.00 from World Cup in 2007. The 2010 payment figure to players is still to be finalized. However, the gross figure would be approximately US$139,000.00 given Mr. Simmons player classification in 2010. When this figure is

discounted by 50% for loss of form/injury the sum of US$69,500.00 results.) ;

(c) Loss of match fees for 2010 of $US 245,845.94 (as per exhibit L.S.
2 of the Witness Statement of Lendl Simmons discounted to $122,922.27 for possibility of loss of form/injury);

(d) Loss of provident fund contributions (which are made whenever a
player is paid match fees or retainer fees. The player pays 5% and the WICB pays 10% of the fee, so that a total of 15% goes to the player‟s provident fund) (US$18,438.44 after 50% discount is applied);

(e) Loss of bat contract (S.F.) US$18,000.00 (payment per match as
per contract discounted by 50%);

(f) Damages for loss of (publicity) reputation under Mahmud v Bank
of Credit and Commerce International SA [1998] A.C. 20 discussed at para 28-027 of McGregor on Damages (18th ed.) US$50,000.00

(g) Damages for breach of contract (failure to ensure fair and
transparent selection process and denigration) US$40,000.00 [My emphasis.]

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The Claimant’s Submissions on the points raised in the closing arguments for the Respondent:

Acquiescence

[9.24] WIPA submitted that Counsel for the WICB raised an argument which was not on the pleadings namely, acquiescence.

[9.24.1]On this matter as all other matters touching and concerning this dispute I need to be scrupulously fair and whilst acquiescence per se has not been raised in the defence, estoppel was pleaded in paragraph 23 thereof so I will proceed to consider the arguments in their entirety before finally ruling on the matter. acquiescence As is well known

is no more than an instance of the law of estoppel by words or

conduct – see 16 (2) Halsbury’s Laws of England (5th ed.) (Reissue) para 909 and the cases cited in footnote 5 thereof.

[9.25] The Claimant therefore submitted that the purpose of filing pleadings is to give fair notice of the case which has to be met by the other side (see 36(1) Halsbury’s Laws of England (4th ed.) para. 5). This may I add is an elementary principle of law. But I return to the argument. In raising an issue in closing which issue had not formerly been raised on the pleadings the Respondent is subverting the very function of pleading and in so doing causing prejudice to the Claimant by not giving him fair notice of his case. The WICB disclosed one case on its Points of Defence and through examination of its witness and in the course of oral closing arguments, after the Claimant had already made its closing address to the Arbitrator, made entirely different and new arguments. It was submitted that in the circumstances this

argument should not be considered. [Emphasis added.] [9.26]On the issue of acquiescence the Claimant‟s submission was that this issue does not arise in respect of Mr. Simmons as the Retainer Contract for the 2009-2010 was his first and only retainer contract. The basis of acquiescence being a habit or course of dealing which is allowed to develop, there can be no argument of acquiescence in respect of the Claimant and has contended that Article XVII (b) of the MOU is a

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complete answer because it provides that the failure by any party to enforce any of its powers, remedies or rights under that agreement shall not constitute a waiver of, or affect that party‟s rights to enforce those powers, remedies or rights at any time. [My emphasis.]

[9.27] I accept this submission as the parties were entitled to so stipulate and in light of such a stipulation in their contractual agreement or arrangements it is not open to either party to allege or claim acquiescence, waiver or estoppel. This in my opinion will be a complete answer as well to paragraph 23 of the defence - pacta sunt servanda (contracts are to be kept).

Submissions of the Claimant on Denigration:

[9.28]It was also submitted on behalf of the Claimant that Counsel for the WICB also sought to submit in his closing address that denigration was not proved and repeats a part of the submission above in respect of denigration. It was therefore submitted that there is no legal definition of denigration and no legal requirements in respect of proof thereof. The denigration is self-evident and evidence of it and its effects was led and Mr. Butts agreed under cross-examination that the remarks made in the WICB media release in respect of the Claimant are remarks which denigrate him. [9.28.1]I accept Mr. Butts‟ evidence as he was being forthright, candid and absolutely professional. Claimant’s Conclusion [9.29] In conclusion, the Claimant‟s case was that:

(i)The Respondent‟s Points of Defence disclosed no defence to the Points of Claim
submitted by the Claimant and asked that the Defence be struck out and costs and damages awarded.

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(ii)The Claimant‟s case was not that he has a right to be selected; that the WICB breached Article VII (a), (e) (i), and (e)(ii) of the MOU and also breached the rules of natural justice. Consequently the Claimant claims damages, which flow from these breaches, which are set out above. [Added emphasis.]

(iii)In respect of any mitigation of damage and loss suffered, the Claimant, after he learnt that his contract would not be renewed, sought other opportunities to play professional cricket but could not play county cricket because he had not been selected to play for the West Indies in that year, although he was on retainer. It was submitted that Mr. Simmons cannot therefore be said not to have mitigated his loss. (iii)(a) According to McGregor on Damages (18th ed.) (2009) para 7-019 the onus of proof on the issue of mitigation is on the defendant (the WICB in this case) and the Respondent has not proved otherwise or discharged this onus. I also find as a fact that the Claimant mitigated (or attempted to mitigate his loss). (iv)With respect to the Respondent‟s submission that the Claimant is excluded from invoking the jurisdiction procedure because of Article IX (c) (c), the Claimant submitted that the said sub-article provide that Article IX (c) must not be inconsistent with Article VII of the MOU, which is in fact the Article on which the Claimant‟s claim is based. The Claimant accordingly may invoke the grievance procedure and has done so.

(v)The Claimant therefore asked that a finding in his favour be made as set out hereunder:

(a) Damages for loss of retainer (value of US$24,000.00); (b) Damages for loss of ICC World Cup fee (US$69,500.00); (c) Damages for lost match fees (US$122,922.97); (d) Damages for loss of contributions to the provident fund (US$18,438.44); (e) Damages for loss of publicity/reputation( exposure) (US$50,000.00); (f) Damages for loss of S.F. contract (US$18,000.00); 45

(g) Damages for breach of contract (denigration and failure to ensure fair and
transparent selection process) (US$40,000.00)

(h) Costs (i) Interest on total award at 6% from date of decision to payment.
TOTAL US$ 342,861.41 plus interest and costs

These are the damages set out under para. [9.25] of this award. RESPONDENT’S CLOSING SUBMISSIONS

[10.0] Having set out its introduction and background it was submitted on behalf of the WICB that the Dispute Resolution Centre (“DRC”) was subsequently unable to hear the matter in January 2011, with the result that the Claimant then sought to refer the matter to arbitration. The Claimant subsequently met with Mr. Butts, Mr. Courtney Browne and Mr. Robert Haynes on 20 January 2011. Mr. Daren Ganga accompanied the Claimant at the meeting. At that meeting the parties discussed the Claimant's career with the West Indies cricket team. The Respondent’s Submissions on Jurisdiction

[10.1] It had been made clear by the Respondent since 6 October 2010 that the grievance procedure that initiated this arbitration cannot be applied in these circumstances. Article IX(c)(c) of the Retainer Contract signed by the Claimant makes clear that where there is a grievance relating to the “selection of a player in a team, squad or touring party,” the grievance procedure set out in that Article does not apply. The Claimant has not sought to argue that this exception does not apply to issues of selection for retainer contracts. The Claimant has also not sought to explain what situations Article XI(c) (c) is designed to exclude. The Claimant, by the tone and flavour of his submissions suggests that it excludes nothing. This leads to an absurdity which could not have been intended by the parties.

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[10.2] The Respondent submitted that the plain and ordinary meaning of Article IX(c)(c) is to expressly exclude the issue of player selection from the dispute resolution procedure by agreement between the player and the Respondent and to make it clear that player selection is the sole responsibility of the Respondent. If players are entitled to challenge the decision of selectors, this would have the effect of usurping the function and authority of the Respondent and ultimately placing the task of selecting players in the hands of arbitrators and/or judges. It was also submitted by the WICB that the Claimant attempted to address the exclusion of player selection from the grievance procedure by relying in the following statement in Article IX(c)(c), “For the avoidance of doubt (c) above shall not be inconsistent with Article VII(e) of the Memorandum of Understanding”. Article VII (e) of the MOU, refers to “Integrity of the Selection process” and consists of two clauses: a. Article VII (e) (i) of the MOU provides that “the WICB undertakes to ensure that the selection process will be done in a fair and transparent manner and that a person‟s race, religion, colour, descent and national or ethnic origin will not be in any way a factor in a player‟s consideration for selection. [My emphasis.] b. Article VII (e) (ii) provides that “members of the Selection Panel will not make public comments that denigrate a player, other members of the Selection Panel or West Indies cricket”. [My emphasis.] [10.3] Against that background, it was the Respondent‟s case that on a correct interpretation of Article VII (e) of the MOU the Respondent undertakes to ensure that the selection process must be carried out in a way that ensures that there is no discrimination against any player based on the various offensive and/or objectionable criteria set out in that Article, and that selection must be based on proper cricketing reasons, including form, fitness, attitude and commitment. In this way the selection process can be said to be fair and transparent. The Respondent accepted that members of the Selection Panel must also refrain from making denigrating comments about players in order to preserve the integrity of the selection process under Article VII (e) (ii). However, submitted the Respondent, there is a

47

qualitative difference between this provision and Article VII (e) (i) referred to above; where the Respondent releases a statement about a player before or after the selection process has been completed, it does not follow that the integrity of the selection process itself has been brought into question, unlike the situation if the Selection Panel made a selection or non-selection on discriminatory grounds (as provided for by Article VII (e) (i)). Therefore, in the event that the Arbitrator finds that “the Claimant” is in breach of Article VII (e) (ii) (which is denied), it is denied that such a breach is inconsistent with Article IX(c) (c), or that that Article does not apply. I take it that the expression in the last sentence, “the Claimant” was a mistake and should read the Respondent. [My emphasis.]

[10.3.1]I pause here to observe that I accept that selection must be based on the criteria set out above but in my view “fairness and transparency” must necessarily include the rules of natural justice or fairness, openness (and not secrecy) and contextually, selection based on objective criteria (although some level of subjectivity may be involved), not subjective criteria otherwise the twin concept of fairness and transparency will be reduced to a farce, not even worth the paper on which it is written.

[10.4] The Respondent's case was that it has contravened neither of the provisions within Article VII (e), or taken any other steps to bring the integrity of the selection process into question. The Respondent has therefore not engaged in any conduct that can be said to be inconsistent with Article VII (e) regarding the integrity of the selection process. As a consequence, the exception provided for by Article IX (c) (c) should apply. The grievance procedure cannot be invoked, and therefore the Claimant was not permitted to challenge the Respondent's decision not to select him or award him a further Retainer Contract. Insofar as the Claimant‟s case was "not about selection per se, but about breach of contract in respect of the selection process", the Respondent submitted that in reality the Claimant's case was clearly about the fact that he was not selected to represent the Respondent's cricket teams or awarded a Retainer Contract. The pith and gravamen of the complaint is that he was not offered a retainer contract for the period 2010-2011 and that his claim for damages is predicated on the basis that had the Respondent not breached its contractual

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obligations under the Retainer Contract, the Claimant would have been selected for more matches and awarded a further retainer contract. This was why the Claimant is seeking, inter alia, match fees and the retainer fee that he would have been paid had he been awarded a retainer contract for the 2010-2011 season. For this reason, the Respondent submitted that the Claimant's claim was not a matter that should be the subject of any legal procedure. It is clear that the dispute between the parties is one relating to team selection, and I was invited to recognise this as such by ruling that this dispute does not fall within the permitted scope of the grievance procedure in Article IX of the Retainer Contract and to accordingly dismiss the claim with costs and such further or other orders as I may deem fit. [My emphasis.] The Respondent’s Submissions on “the Complaint”

[10.5] Without prejudice to the foregoing contentions regarding jurisdiction the Respondent submitted that the Player accepted that he had no right to selection and so no right to a Retainer Contract. The Player nonetheless complained that the Respondent has failed to comply with Article VII (a) and (e) of the MOU (which is incorporated into the Retainer Contract), and refers to Article VII (a), VII (e) (i) and VII (e) (ii) of the MOU and the gist of the Claimant‟s allegations regarding his claim as well as the alleged breach of the principles of natural justice. The Respondent’s Submissions on the Evidence

[10.6] On the assumption, but without admitting that I have jurisdiction, the Respondent denied that it has breached Article VII(a) of the MOU and said that this provision relates to the Performance Appraisal that is to be carried out for each player under a Retainer Contract, whereby the Respondent reviews the performance of each player using the agreed guidelines and procedures set out in Schedule F of the MOU with a view to deciding whether the Respondent wishes to renew each player's Retainer Contract. Further, the MOU does not prescribe a formal process. It does not set out how often the West Indies' Head Coach is to meet with the Claimant, or the level of detail and/or information required when any such discussions are held. Schedule F simply provides that performances will be appraised on an ongoing basis throughout,

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and at the end of, the Retainer Contract. There is nothing about producing or providing written reports, either for the benefit of the Claimant or the Respondent. If this had been envisaged, the parties would have included this in the Retainer Contract given the way the previous appraisals had been carried out on a similar basis by the Respondent. When giving evidence, the Claimant accepted that he had conversations with the Head Coach and trainer about improving his performance, including matters of strength and endurance, during the duration of his Retainer Contract. [10.7] It was the Respondent‟s contention that the players (including the Claimant) would have been undergoing constant appraisal, and receiving continuous advice, comments, feedback etc from the Respondent‟s management team and Head Coach as the players were training with the squad, be it fitness training, nets practice etc. It is clearly not the case that the Respondent‟s team simply ignored the players and watched them in silence as they went about trying to impress with their performances. Mr Butts' evidence also confirms that the Head Coach and his management team communicated and engaged with the Claimant with respect to his performance. The Head Coach would have constant exchanges with players, at least when they training as part of the West Indies cricket squad. This would include giving constructive feedback on the Claimant's performance, setting future objectives, identifying appropriate personal coaching, training and development opportunities and finding other ways to improve performance, as required by the MOU. The players were being reviewed and appraised continually. The fact that it was done on a more informal basis did not make the advice and/or feedback received any less valid or relevant to the Claimant. [My emphasis.] [10.8] It was the Respondent‟s contention that the lack of a formal written appraisal at the end of the Retainer Contract did not affect the Claimant's chances of getting a further contract; the appraisal process was ongoing throughout the year, and it was the views and opinions that had been formed by the management team as a result of their dealings with the Claimant over the duration of the Retainer Contract that were relevant when it came to deciding whether to offer the Claimant a further Retainer Contract.

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[10.9] The Respondent referred to the Claimant‟s submissions that Mr Butts' evidence in respect of the appraisal process is not relevant because he was not aware of the appraisal process under consideration and submitted that it refuted that statement. As Chairman of the Selection Panel, Mr Butts was in regular contact with the Head Coach and his management team, and therefore often spoke with them about their views and opinions on players, and any communications that they had had with such players. In this way he was able to monitor the performances of each player. Mr Butts is therefore well placed to comment on the steps taken by the Head Coach when appraising the performance of the players. Schedule F of the MOU refers to the fact that the Performance Appraisals were a "two-way process with a strong element of self-review, therefore ensuring that the [Claimant] has a major role in determining his own development". The Respondent therefore had a reasonable expectation that the Claimant would approach the Head Coach (and/or the Management Team) if he had questions or queries about his performance, or wished to seek comments or advice about ways in which he could improve. This was the case whether the Claimant had been selected to play for the West Indies cricket team or not, and irrespective of whether he was training with the squad. At no stage did the Claimant approach the Respondent about such concerns, nor does he claim to have done so. [Emphasis supplied.]

[10.10] It was further submitted that, in the event that I find that the Respondent was in breach of Article VII (a) of the MOU (which is denied for the reasons set out above), it is the Respondent's case that the Claimant acquiesced to the Respondent's course of conduct during the period of the Retainer Contract. The Claimant had received Retainer Contracts before. He was therefore aware of how appraisals had been carried out previously. If he had concerns that these appraisals were not being carried out satisfactorily during the period of the Retainer Contract, he could and should have raised these with the Respondent. Indeed, as a two-way process he would be expected. [Emphasis given.]

[10.10.1]I have already ruled that a plea such as acquiescence, waiver or estoppel is not available to either party having regard to the provisions of the contract. Therefore

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the further argument of estoppel by the Respondent raised in paragraph 49 of its written submissions is a non-starter and I so rule.

[10.11] It is to be noted however that the Respondent strenuously argued that even in the event that I find that the Respondent was in breach of Article VII (a) of the MOU and that he is not estopped from raising this issued (both of which are denied by the Respondent), the Respondent denied that any such breach caused the loss claimed by the Claimant, or indeed any loss at all. According to the Respondent it is not clear from the Claimant's pleadings, evidence or Closing Submissions how the Respondent's alleged breach is said to have caused the Claimant loss. The Claimant himself has suggested that he may have been aware of what at least some of the concerns that the Respondent had about his discipline, for example. However, the Claimant did not address these issues, or make any attempt to discuss how these could be addressed. It follows that even if he had been provided with written reports and appraisals as he suggested, there is no evidence that these documents would have made any difference to the Claimant‟s performance.

[10.12] The Respondent further submitted that even if the Respondent had not provided an adequate Performance Appraisal, the Claimant does not allege that other players on Retainer Contracts at the same time as him received Performance Appraisals in accordance with the MOU. Some of these players had their Retainer Contracts renewed for the 2010-2011 season. It is therefore incorrect to imply that the Claimant was denied the opportunity of obtaining a further Retainer Contract by the failure to provide the Performance Appraisal. [My emphasis.]

[10.12.1]I pause here to make the observation that as a matter of contract it is strictly speaking a matter between the contracting parties, namely, the WICB and the Claimant and the fact that what may or may not have happened in relation to other players on retainer contracts, seems to be of little, if any, relevance to the issues at hand. I therefore fail to see how this point is relevant to this matter.

[10.13] It was also submitted by the Respondent that the Claimant has sought to argue that he had a legitimate expectation that if he had received the Performance Appraisal

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and met all the demands made of him he would have had his Retainer Contract renewed. However, he cannot, and has not attempted to provide evidence that even if this were the case the Claimant's Retainer Contract would have been renewed.

[10.14] It was also submitted that the Respondent is only able to award a limited number of retainer contracts each year. There are numerous criteria that the Respondent is required to take into account when deciding whom to award Retainer Contracts. Of course, submitted the Respondent, performance and/or technical merits are two such criteria, and the Claimant must accept that there is always the possibility that no matter how hard he tried, there were other cricketers who were performing better and more worthy of selection than him. However, there are numerous other legitimate criteria that the selectors will need to consider: form, fitness and attitude to name but three. However, it is also important to remember that the Selection Panel must also strive to achieve a balance of retained players between young and experienced players, batsmen and bowlers etc, to name but a few. Individual players and their performances must be balanced against the broader need to consider the wider picture in that the Selection Panel must also safeguard the best interests of West Indies cricket as a whole. [My emphasis.]

[10.14.1]I interject here to state that the points made in paragraph [11.14] seem to be logical to me and I would need to consider them in the context of the claims being advanced on behalf of the Claimant.

[10.15] The Respondent also made the point that the Selection Panel is given the responsibility of selecting the players to whom the Respondent offers Retainer Contracts. The members of the Selection Panel consider and weigh up all of the different factors referred to above before arriving at what they consider to be an appropriate decision. By their very nature the decisions made by the Selection Panel are based on subjective opinion. There can be no right or wrong answer. This is why it is an inherent and basic principle in sports law that the Selection Panel retains the sole discretion to select the players. Save for where the Respondent or Selection Panel has acted in breach of its own rules or unlawfully, the Selection Panel's

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decision is not subject to review, and cannot be challenged by players who disagree with the outcome.

[10.15.1]Again, I interject to state that the last two sentences seem very attractive to me.

[10.16] It is therefore impossible for the Claimant to say that he would have had his Retainer contract renewed, or that any alleged breach by the Respondent caused his nonselection. The Claimant has not sought to adduce evidence that he should have been awarded a retainer contract over any another player who was chosen, presumably because he is aware that that is ultimately a matter of the Respondent's absolute discretion, save for the obligation to ensure that the Selection Panel did not make decisions based on discriminatory or other prohibited grounds. [Emphasis supplied.]

[10.17] The Respondent denied that the Claimant is entitled to any damages for loss of opportunity or chance and relies on the case of Lavarack v Woods of Colchester [1966] 3 ALL ER 683 in which the Court of Appeal found that the defendant was not liable for damages arising from the claimant not being awarded a bonus where payment of the bonus was at the discretion of the defendant. The Respondent therefore submitted that where a claim relates to a loss of chance that is dependent on the defendant's actions (such as this case), the relevant legal principle is that damages will be assessed on the assumption that the defendant would have performed the contract in the way least beneficial to the claimant (see, for example, Mustill J (as he then was) in Paula Lee Limited v Robert Zehil & Co. Limited [1983] 2 All ER 390. Therefore, given that the Respondent had complete discretion to select whom it saw fit, it must be assumed that the Claimant would not have been selected. The Respondent has argued that the Claimant has failed to properly particularise the loss that he claims he has suffered and that the Claimant has also failed to produce evidence of his attempts to mitigate his alleged loss in the way he has suggested. [My emphasis.]

[10.18] In summary, the Respondent submitted that:

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(a) The Respondent provided the necessary Performance Appraisal to the Claimant, and he was provided with appropriate feedback and advice throughout the course of the Retainer Contract.

(b) The Claimant did not require further information or advice to understand the concerns that the Respondent had raised with them. They were clearly communicated to him, and in any event should have been apparent to him as a professional sportsman and cricketer.

(c) If the Claimant did have questions or queries about his performance or improvements to his game, the Respondent had a reasonable expectation that the Claimant would raise them. However, the Claimant never approached the Respondent directly about this.

(d) Even if the Respondent failed to provide the Performance Appraisal (which is denied), this breach did not cause the Claimant any loss. The Claimant was not entitled to be selected or to be awarded a further Retainer Contract and cannot demonstrate that he would have been selected but for the Respondent's alleged breach as his selection was a matter for the sole discretion of the Selection Panel.

(e) The Claimant has also failed to properly particularise the losses that he alleged that he suffered as a result of the Respondent's breach, or to demonstrate that he attempted to mitigate such loss.

[10.19]The Respondent denied that it was in breach of Article VII (e) (i) of the MOU. According to the Respondent this provision relates to the selection process involved when the Selection Panel are selecting players to represent the West Indies. To the extent that the Claimant's case relates to the non-award of a Retainer Contract, the Claimant has failed to make any case that Article VII (e) (i) applies. The Respondent‟s position was that Mr. Butts attempted to meet with the Claimant, at Mr. Butts' instigation, on 31 May 2010, shortly after his comments were published in the media. That the meeting did not go ahead was through no fault of Mr. Butts or the Respondent. (From the evidence before me it was equally not the fault of the

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Claimant.) Therefore it is untrue to allege that the Respondent made no attempts to discuss Mr. Butts' comments with the Claimant, or give the Claimant a chance to address them. [Emphasis added.]

[10.19.1]Again I interject to state that this submission strikes me as somewhat unrealistic since Mr. Butts was very clear in his evidence during cross-examination that he called the Claimant on 27 October 2010 informing him that he would be in Trinidad the following day and he (Mr. Butts) would like to meet with the Claimant at the Hyatt Regency Hotel where Mr. Butts would be staying. Mr. Butts also said that he would call the Claimant around 2:00 p.m. on the day of his arrival to let the Claimant know what time the meeting was to be held. Mr. Simmons testified that he received a call not at 2:00 but at 3:00 p.m. and Mr. Butts agreed that that was possible because upon his arrival in Trinidad they had an urgent meeting to attend. I accept on the totality of the evidence that Mr. Butts did not and indeed could not have specified a time for the meeting and therefore Mr. Simmons had no particular time with which to work. What Mr. Butts did tell him was that he was going to be in Trinidad on that day and would be leaving in the evening and whether it was possible for them to meet. Mr. Butts said that he arrived in Trinidad at around 11:00 or 12:00 o‟ clock or probably after as well and I accept his testimony as being truthful, honest and sincere. In the circumstances, paragraph 64 of the Respondent‟s written

submissions is an argument which I do not find attractive.

[10.20]The evidence was that the parties subsequently met on 11 January 2011. However, it was submitted that these events are irrelevant for the purposes of these proceedings, as the Respondent owed no contractual duty to the Claimant by this time, the Retainer Contract having expired on 30 September 2010.

[10.21] The WICB further submitted that Article VII (e) (i) prevents the Respondent (and specifically the Selection Panel) from taking a player's race, religion, colour, descent, national or ethnic origins into account when making their decision. In this way, the Respondent is seeking to ensure that every player retained or not, is assessed on a legitimate cricketing basis, therefore ensuring that the selection process is carried out in a fair and transparent matter. The Claimant does not allege that the

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Respondent discriminated against him or took prohibited criteria into account when they failed to select him, and therefore the Respondent denies that it is in breach of this provision. The Respondent denied that Article VII (e) (i) gives the Claimant the right to challenge his non-selection simply on the basis that he has not been picked for the team. According to the Respondent, the Claimant appears to agree with the Respondent‟s interpretation in this respect. This, submitted the Respondent, would be an extremely dangerous development, with the effect that every player could challenge his non-selection every time a team was picked. It would effectively usurp the function and authority of the Selection Panel and place the task of selecting players in the hands of arbitrators and/or judges. [My emphasis.]

[10.22]The Respondent denied that the Claimant is entitled to challenge his non-selection where the Respondent makes statements directly to a player or by way of press release without the Claimant being given notice and/or further information about the nature or contents of the statement, and/or discussing the statement with the Claimant after it has been released. There is nothing in the Retainer Contract to this effect, and it is denied that this further measure is required to make the selection process fair and transparent in the way envisaged in the MOU. In effect, the Claimant is alleging that a term should be implied into the Retainer Contract, but fails to specify the grounds on which such a term can be implied, or the precise extent of this term. In the circumstances, the Respondent denied the assertion that the

selection process was not carried out in a fair and transparent manner, or that further steps were required before it could be said that the Respondent was compliant with these principles.

[10.23] In any event, submitted the Respondent, should I find that the Respondent was in breach of Article VII (e) (i) of the MOU in that it failed to carry out the selection process in a fair and transparent manner, the Respondent denied that this breach has caused the loss claimed by the Claimant, or any loss at all. Even if the

Respondent had explained its comments to the Claimant and/or given the Claimant the opportunity to address these concerns, it does not follow that the Claimant was guaranteed to be selected by the Selection Panel.

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[10.23.1]I interject here to remind myself of the well-known words2 of Megarry J (as he then was) in John v Rees [1970] 1 Ch 345, 402 C-E.

[10.24] The Respondent is only able to select 11 players for a match. As for when the Selection Panel is considering which players to select for retainer contracts, the Selection Panel will consider a huge range of criteria when deciding who it wishes to select for its teams. Relevant factors will include, but are not limited to, form, fitness, attitude, the opposition, the venue for the match(es) and tour(s) concerned, the player's temperament and their relationship with the other players and captain. These are all subjective criteria upon which individuals may disagree or have different views. Nevertheless, it is the Selection Panel which is given the responsibility for choosing the team, and the Claimant accepts that he, like every other eligible West Indies cricket player, has no right to be selected to play for any West Indies team, squad or touring party. For the same reasons it is incorrect for the Claimant to assert that he has been penalised or punished by his non-selection. The selection of players is a discretionary benefit that can only be conferred by the Respondent. A player cannot be "penalised" by non-selection when he has no entitlement to begin with. [My emphasis.]

[10.25] It therefore cannot be said that the Respondent's alleged failure to explain the reasons behind Mr. Butts‟ statement of 28 May 2010, or the subsequent alleged failure to allow the Claimant to explain his case, was the cause of, or the reason behind, the Claimant's non-selection for West Indies cricket team matches. This reason for the Respondent's failure to be selected for the team by the Selection Panel was that it deemed there were other players it considered more appropriate to be selected at that time. There are only a limited number of places available in each
2

In John v Rees (supra) Megarry J had this to say at 402 C-E: “It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.” Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”

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team. If the Claimant alleges that he should have been awarded such a contract or place, it must follow that another player would be deprived of one. However, the Claimant has not sought to adduce evidence that he should have been selected over another player, presumably because he is aware that is ultimately a matter of the Respondent's discretion. [Emphasis given.]

[10.26] The Respondent has therefore relied on the principle enunciated in Lavarack v Woods of Colchester (supra).

[10.27] The Respondent submitted that it was not in breach of Article VII (e) (ii) of the MOU and that that article differs from Article VII (e) (i) in the sense that it does not relate to the integrity of the selection process itself. It does not relate to how the decisions are made, or on what grounds the selectors may base such decisions. It is therefore not inconsistent with the principle that the Selection Panel should have sole discretion to decide matters of selection, and that such decisions are not to be subjected to legal proceedings.

[10.28] It was submitted by the Respondent that it denied that the Respondent issued any press statement or release on or before 15 April 2010 relating to any supposed disciplinary proceedings involving the Claimant. To the extent that the Claimant continues to attribute such rumours and/or comments to the Respondent, the Claimant has failed to prove this to be the case. Surprisingly, the Respondent

denied that the comments made by Mr. Butts on 28 May 2010 were public comments that denigrated the Claimant.

[10.28.1]Again I interject to state that the statements made by Mr. Butts are clearly not complimentary but appear to be uncomplimentary of the Claimant because a sportsperson such as a cricketer is generally held in high esteem and is revered in the West Indies and even beyond the region. To the ordinary man such statements are a clear indictment on the Claimant and I therefore do not agree with the Respondent that the statements or public comments do not denigrate the Claimant.

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[10.29]The Respondent submitted, with justification, that as the Arbitrator is no doubt aware, the general public in the West Indies take a great interest and pride in cricket. They demand that the Respondent justifies the selections it makes, both in terms of selection and non-selection of players, and these decisions are discussed and reviewed in great depth by the media and the public generally. It is therefore in the public interest that the Respondent releases statements from time to time about individual players, or groups of players, and the reasons why they have or have not been selected for the team.

[10.29.1]With this statement I agree but elementary principles of fairness demand that if there are any shortcomings with respect to any player then those shortcomings should be discussed with the player first, who should be given a reasonable opportunity to answer the alleged shortcomings or somehow to lessen the impact of the alleged shortcomings on the selectors or indeed the Respondent before the shortcomings are made public. It cannot be in this day and age business as usual. What was acceptable in a by-gone era is now heresy because of the twin principles which have enriched our lives, namely, the principles of transparency and accountability, which have impacted every sphere of human activity be it government, business, sports, public affairs, etc.

[10.30] The Respondent argued that the Claimant was a well remunerated player on a Retainer Contract who had not represented the West Indies for several months, including at the Twenty20 World Cup. The public were justified in wanting to know the reasons behind this non-selection. Further, submitted the Respondent, there is no obligation on the Respondent, contractual or otherwise, to discuss any statements it wishes to make with the players first. Indeed, the public may become sceptical at best, and angry or upset at worst, if they thought that each statement had been vetted and approved by the relevant player and/or one of his representatives before it was released. The public would not be able to rely on the fact that it represented the actual views of the Respondent, or the genuine reasons for the decisions that had been made. At the same time, it is clear from the

statements released by the Respondent that they represent the opinion(s) of one of more of the Respondent's representatives. They cannot be taken as facts, because

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by their very nature they are subjective views on the merits of the relevant player(s). [My emphasis.]

[10.30.1]This seems to me to be a little strange as Mr. Butts was not speaking in his personal capacity but was speaking as someone who played (and perhaps still does) a critical role in West Indies cricket, that is to say, he was the Chairman of the Panel of Selectors for the West Indies Cricket Board; he was not a John Doe on a frolic of his own. Whilst I have considerable sympathy for the WICB these submissions seem to be somewhat impractical, divorced from the realities of the situation.

[10.31] The WICB in its written submissions in paragraph 88 thereof forcefully submitted that it was difficult to see how the statement made by Mr Butts on 28 May 2010 could be said to have denigrated the Claimant in any way; it simply highlighted the fact that there were other "issues", not necessarily related to the Claimant's performances on the field, which were causing the Respondent concern; this is a valid and acceptable consideration for selectors. Indeed, argued the WICB, mere reference to "issues" is a generic comment that is non-specific and non-degrading; if Mr Butts had sought to denigrate the Claimant, he could have done so by going into detail about what those "issues" behind his non-selection were. However, in order to protect the Claimant, but also to satisfy public demand as to the reasons for the omission of the Claimant from the West Indies team, Mr Butts made his statement in the form reported in the media. Furthermore, argued the Respondent, the Claimant has failed to

demonstrate why he believes the comments made by the Respondent were denigrating, or how they are alleged to have affected the Claimant's reputation and/or character.

[10.32]It was also submitted by the WICB that there is no legal definition as to what amounts to a denigrating statement, nor is it defined in the Retainer Contract. The fact that the Claimant, who may or may not know the reasons behind the statement, finds the statement denigrating does not make it so. Similarly the fact that Mr Butts may have accepted in cross-examination that such comments may be considered denigrating does not necessarily prove this to be the case. [My emphasis.]

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[10.33] The Respondent also submitted that the Claimant has adduced no evidence that his character was disparaged and/or that he was belittled or brought into public scandal, ridicule or contempt in the minds of reasonable members of the public. It is therefore denied that the Claimant has sufficient grounds on which to base a claim for breach of contract in this respect.

[10.34] According to the WICB, the West Indies public demands reasons why players have not been selected. However, the Claimant seems to be suggesting that all such comments will invariably be denigrating, given the very nature of explaining why someone has been dropped or not selected will often involve explaining deficiencies or shortcomings in the player's performance and this type of censorship is not what was envisaged by the parties when they entered into the Retainer Contract. The Respondent submitted that it is entitled to state its views on players without it inevitably following that such comments are denigrating.

[10.35] WICB argued that should I find that the Respondent was in breach of Article VII(e)(ii) of the MOU, then it is denied that such comments have caused the Claimant loss of the nature alleged or at all.

[10.36]Furthermore the Claimant's claim is for breach of contract and/or principles of natural justice. No damages may be awarded for loss of reputation and/or denigration resulting from such a breach.

[10.36.1]I again pause here to interject that the law has marched on and in Mahmud v BCCI [1998] AC 20, the House of Lords has held that in principle damages may be awarded for loss of reputation caused by breach of a contract of employment where the breach is of the implied term of trust and confidence. See also Johnson v Unisys [2003] 1 AC 518; McGregor on Damages 18th ed. (2009) paras 2-028; 28-023; Burrows, Andrew; Remedies for Torts and Breach of Contract 3rd ed. (2004) pp 312324.

[10.37]Finally, submitted the Respondent, even in the event that the Arbitrator considers that such damages are payable by the Respondent under the Retainer Contract, the

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Claimant has completely failed to disclose the basis on which this head of damages has been calculated.

[11.38]The Respondent submitted that the Claimant has continually referred to the Respondent's alleged breaches of natural justice throughout these proceedings. The Respondent denies that the principles of natural justice apply in these circumstances, or that it has breached them if they do apply. The Claimant's claim effectively amounts to an application for judicial review of the Respondent's decision not to select the Claimant for a Retainer Contract and/or for West Indies teams, squads or touring parties. The Claimant is seeking to question the Respondent's selection process, in order to challenge his non-selection.

[10.39] The WICB has submitted that it is well-established law that decisions of sports governing bodies cannot be subject to judicial review where the body is a private one exercising private powers, and the relationship between the parties is solely governed by the contract between them (R v Disciplinary Committee of the Jockey Club ex parte Aga Khan [1993] 2 All ER 853). For the avoidance of doubt, the Respondent is not a public authority. It is a company incorporated in the British Virgin Islands. It is governed by its own incorporation documents, not by statute. It does not, I take it exercise a judicial or quasi-judicial function when selecting players to represent its team. It therefore cannot be subject to judicial review.

[10.39.1]I accept that judicial review would be a most unwholesome intrusion in sports and in any event I do not have jurisdiction.

[10.40]It was submitted by the WICB that the principles of "natural justice" are also principles that usually applies to public authorities (including tribunals) to ensure that their powers are exercised fairly. However, the Respondent accepts that in limited circumstances private bodies may be required to observe substantial principles of public law such as "natural justice", notwithstanding that the private body is not amenable to judicial review. However, the Claimant has failed to demonstrate why any such principles should apply here. The case of McInnes v Onslow Fane [1978] All ER 211 saw the court consider the extent to which natural justice applied to a

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decision of the British Boxing Board of Control not to award the claimant a boxers' manager's licence. The court drew a distinction between "forfeiture" or disciplinary cases, where the applicant is being deprived of a right or position and/or is being subjected to disciplinary sanction, and "application" cases, where the decision simply refuses to grant the applicant a right or position that he seeks.

[10.40.1]I again interject to state that having carefully considered all the submissions together with the evidence and the applicable law it is my view that elementary principles of fairness demand that the WICB comply with or observe the agreed contractual provisions and in that sense the principles of natural justice or fairness would apply.

[10.41]The Respondent argued that the only case cited by the Claimant in his submissions as to breaches of the rules of natural justice that does not relate to a public body is Pett v Greyhound Racing Association Limited [1968] 2 All ER 545. However, this case falls into the former category, as it involved charges against a greyhound owner which could have seen his licence suspended or not renewed. The latter position applies to the Claimant's case. On his own admission, he has no entitlement to be selected or to have his Retainer Contract renewed. The Respondent has simply chosen other cricketers over the Claimant for a Retainer Contract and/or team place. In this way the Claimant has not been granted the position that he seeks. In the McInnes case, Megarry VC (as he then was) had the following comments about "application" cases (at 223):

"I think that the courts must be slow to allow any implied obligation to be fair to be used as a means of bringing before the courts for review honest decisions of bodies exercising jurisdiction over sporting and other activities which those bodies are far better fitted to judge than the courts. This is so even where those bodies are concerned with the means of livelihood of those who take part in those activities. The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens. Bodies such as the board which promote a public interest by seeking to maintain high standards in a field of activity which otherwise might easily become degraded and corrupt ought not to be hampered in their work without good cause. Such bodies should not be tempted or coerced into granting licences that otherwise

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they would refuse by reason of the courts having imposed on them a procedure for refusal which facilitates litigation against them." [10.42]According to the Respondent the judgment in the McInnes case makes clear that in cases such as this, the Claimant is not entitled to seek to invoke the principles of natural justice to seek to impose additional burdens or obligations on the Respondent in circumstances where it is exercising a discretion in making a decision where there is no suggestion that that decision has been made unlawfully. The selection process is a matter solely for the Selection Panel and, as acknowledged by the courts, it is in a far better position to do so than judges or arbitrators. The Respondent is entitled to make its decisions on whatever basis it so chooses, provided that it acts within its own rules and in accordance with the law. Save for the alleged breaches of the MOU referred to, the Claimant has not alleged that the Respondent's selection process itself was unlawful in such a way. The law is clear that the courts should not encourage review of bona fide decisions of bodies controlling sporting activities such as the Respondent. The reference throughout the Claimant's proceedings to the requirements of natural justice are therefore fundamentally flawed and misplaced. Should the Claimant be successful in this arbitration, it will invariably follow that other players will subsequently seek to challenge their non-inclusion in the West Indies team based on this decision, with the result that the courts will increasingly be called upon to review the decisions of the Selection Panel. [My emphasis.]

[10.42.1]The last sentence in the above paragraph has given me serious thought for concern and in my view it cannot be right for players to be selected through the legal process. Players have to be selected on their ability, application, dedication to the sport, fitness, reputation, willingness to co-operate, obedience and such other matters as are considered appropriate. It would be most inappropriate and

repugnant for a player to attempt to be selected on a particular team through arbitration or legal proceedings and to that extent I agree with the WICB.

[10.43]The Respondent made the point that the question of the Claimant's employment status with the Respondent also arose during the arbitration. However, the Claimant

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has failed to produce any evidence in the hearing or Closing Submissions to suggest that the Claimant is employed by the Respondent under the Retainer Contract. Furthermore, neither party's case is based on any assumption as to the Claimant's employment status. It is therefore denied that such a relationship exists between the parties, at least for the purposes of this arbitration, or that the Respondent has any obligations towards the Claimant under employment law and/or standard industry employment practices (and vice versa).

[10.43.1]I interject to state that this submission seems somewhat confusing given the fact that in the points of defence, it had been unequivocally pleaded that the Respondent is the employer of cricketers, who from time to time represent the West Indies cricket team (see paragraph 1 of the Points of Defence).

[10.44]The Respondent has submitted that in the event that I decide that the principles of natural justice do apply to this claim the Respondent denies that it is in breach of any such rules or principles. It is unclear what, if anything, such a claim adds to the Claimant's claim under Article VII(e)(i) in the sense that the Claimant alleges that he was not provided with an explanation for the comments made by the Respondent on 28 May 2010, and that he was not given the opportunity to address such concerns. Further, the Respondent submitted that the Claimant has also failed to produce any evidence to suggest that damages are a permitted remedy for breaches of natural justice. The Claimant's own case is that the Selection Panel failed to follow the correct procedures, rather than he has an entitlement to selection. If this is the case, then the appropriate remedy would be to have the Selection Panel's decision suspended or revoked, followed by a reconsideration of the Claimant's case for selection for a Retainer Contract. However, in this case as there is no allegation that the decision taken by the Selection Panel was based on improper grounds, it is denied that submitting the matter back to the Selection Panel would serve any purpose. Their decision not to award a Retainer Contract to the Claimant was a valid and legitimate decision, and therefore the Selection Panel would be entitled to make the same decision again now.

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[10.45] The Respondent submitted that this dispute is, at its core, a dispute about the nonselection of the Claimant by the Respondent for the West Indies cricket team, and its decision not to award him a Retainer Contract for the 2010-2011 cricket season. Nothing should be allowed to disguise the fact that this is a challenge to the Claimant's non-selection.

[10.46]In that regard the Respondent firstly submitted that the selection, or non-selection, of players is not a matter for arbitration or the courts. This is expressly dealt with by Article IX(c) (c) of the Retainer Contract. The contract makes clear that these decisions are subject to the sole discretion of the Respondent, save for where such decisions are made unlawfully. The Claimant does not make such allegations in his claim. Furthermore there is no inconsistency with the provisions relating to the need for a fair and transparent selection process. The Respondent therefore believes that this is not a dispute that should be the subject of legal proceedings. The Respondent has submitted that in the event that I find in the Claimant's favour, this will represent a dangerous development, encouraging players to challenge the decision of the Respondent every time they do not receive a favourable selection decision from the Selection Panel. [My emphasis.]

[10.47]Furthermore, there is also a danger that if the Arbitrator does find in favour of the Claimant it will inhibit the Selection Panel from being able to carry out its selection to the best of its abilities, and in the best interests of West Indies cricket. The Selection Panel would have little choice but to maintain the status quo. Rather than allowing younger players to come up through the ranks and gain international experience, the Selection Panel would have to continue to award Retainer Contracts and team places to those already holding them for fear of the substantial claims that may be brought against the Respondent by older, substantially more well-remunerated, players where they have not been selected, even if their form and performance levels suggested that such decisions were justified. This in turn could have a huge impact on the Selection Panel's ability to bring through the next generation of West Indies cricketers, and the future of the sport generally.

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[10.47.1]I feel compelled to state here that is not how I understand the Claimant‟s case. As far as I am aware the Claimant does not suggest that he must be selected on the team or given a Retainer Contract, the Claimant‟s case is that the agreed procedure has not been complied with thereby impacting negatively the principles of fairness and transparency, which, had they been complied with would have resulted in the Claimant being selected and given a new Retainer Contract. It must be remembered that the Claimant‟s case is that he was not aware that the Claimant‟s case is that he was not aware of any “issue” he had with the WICB; he had no disciplinary matter with them and only became aware of “issues” when Mr. Butts gave the media interview in Jamaica. I dare say that if I were to find in favour of the Claimant, it cannot be construed as somehow fettering the Selection Panel.

[10.48]The Respondent argued that in these proceedings the Claimant claims that the Respondent has breached both its contractual obligations and principles of natural justice during the course of its selection process, in that it:

a. failed to conduct the Performance Appraisal in the manner set out in the MOU;

b. failed to ensure that the selection process for cricket teams was carried out in a fair and transparent manner; and

c. made public comments that denigrated the Claimant.

[10.49]Furthermore, submitted the Respondent, even if the Claimant is found to be correct on the facts, in that the Respondent has committed the breaches alleged, the Respondent has been unable to show:

a. That he would have been awarded another Retainer Contract for the 2010-2011 season; or

b. That he would have been selected to represent any West Indies team, squad or touring party, especially in circumstances where the Respondent can select from any player it chooses, retained or non-retained, and it chose not to select the Claimant.

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[10.49.1]That argument seems to me to be misconceived for the reasons I have set out in para. [10.47.1] hereof.

[10.50]The Respondent submitted that in terms of the Performance Appraisal, the Respondent denied that the Claimant was not provided with advice and feedback by the Respondent's management team. It was carried out on a continuous informal basis the whole time the Claimant was training with the West Indies team. Furthermore, the Performance Appraisal was a two-way process. The Respondent had a reasonable expectation that the Claimant would raise any questions or issues with it if the need arose. However, no such concerns were ever raised, despite the various opportunities extended to the Claimant to do so. The requirement that the selection process be carried out in a fair and transparent manner means that the Respondent is not permitted to discriminate against players on grounds of religion, race, colour etc when making player selections, and must make decisions based on legitimate grounds. The Claimant has not alleged that he was discriminated against or that his non-selection was based on prohibited grounds, and therefore there has been no breach of Article VII (e) (i) of the MOU. However, the Claimant insists that the requirement for fairness and transparency goes further. He states that the Respondent is required to provide details of any concerns previously raised with him about his performance, and that he be given the opportunity to address those concerns before any selection process took place. The Respondent denied that there are any such obligations. There is no provision for this in the Retainer Contract. The Claimant is therefore effectively arguing that a term should be implied to this effect, and the principles of "natural justice" do not apply in cases where the Respondent is not a public authority or exercising a judicial or quasi-judicial function.

[10.51]The Respondent submitted that furthermore, the principles of "natural justice", which the Claimant relies on heavily throughout, do not apply in this case. This is not a situation where the Claimant is facing disciplinary sanctions or is being penalised in some way. The courts have made clear that in "application" claims such as this, where the Claimant is simply seeking a right or benefit that he is not entitled to, there should be great reluctance to interfere in matters of which they have little or no

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expertise. The discretion to select players for Retainer Contracts and/or team places should therefore be left to the discretion of the Respondent. The Respondent also denied that Mr. Butts made denigrating comments about the Claimant through the media in May 2010. It is in the public interest that the Respondent provides reasons for the selection and non-selection of players. It invariably follows that reasons for non-selection of players may not be always be complimentary. However, the purpose of the statement was to clarify the reasons for the Claimant's non-selection, and also to try and motivate him to improve his fitness levels when other methods had failed. However, the Claimant cannot allege that the Respondent has not been fair and transparent with the selection process, and then criticise the Respondent when it provides reasons as to why the Claimant was not selected. [My emphasis.]

[10.52]The Respondent argued that even if the Claimant satisfied the Arbitrator that the Respondent was in breach of the Retainer Contract or the principles of natural justice (both of which were denied), the Claimant has failed to, and cannot, show how such a breach, or breaches, have caused him loss. The Claimant has been unable to demonstrate that he would have been selected for the West Indies cricket team and/or awarded another Retainer Contract but for the Respondent's alleged breaches. This is because selection is a discretionary and subjective process where a whole range of factors must be considered by the Selection Panel. It is impossible to predict what will be decided. No player is guaranteed to be selected, and therefore no player is able to prove that he should have been selected in the West Indies team over another player as he has no control or influence as to how that decision is made.

[10.53]The Respondent further submitted that finally the Claimant has failed to particularise the alleged losses he (has allegedly) sustained as a result of the Respondent's alleged breaches and the Claimant's subsequent non-selection and/or lack of retainer contract. The Claimant has submitted figures without any further evidence as to how such loss is calculated. He has also failed to prove that he attempted to mitigate his loss in the way that he claims.

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The Respondent’s Submissions on the Claimant’s bundle of authorities [10.54]It was argued by the WICB that the Claimant‟s bundle of authorities made no reference to professional athletes and/or their responsibilities to team management. They do not support any contention with respect to a right to be heard on a nonselection for a professional sports team. They do not assist with what amounts to denigration of a player. They made no reference nor offer any guide as to what is required on an assessment for professional athletes and the responsibilities of those athletes in return. And lastly, they do not provide any aid to interpretation or construction of Article IX(c)(c) in relation to Article VII ( e). The WICB denied that the player has suffered any loss at all or as alleged or otherwise howsoever and asked that this dispute be dismissed with costs and such further or other orders as the Arbitrator may deem fit.

CLOSING REPLY OF THE CLAIMANT

Submissions by the Claimant on Points of Law

[11.0] In its closing submissions, WIPA submitted that the rule in Browne v Dunn (1894) 6 R. 67, HL is a rule of professional practice that is essential to fair play and fair dealing with witnesses. According to this rule a party is not allowed in his address to the Court to rely on an argument that a witness‟ evidence is challenged or not accepted unless the party‟s cross-examination of the witness made it plain that the witness‟ evidence was challenged or not accepted. I accept this submission as

sound in law. The Claimant submitted that Counsel for the Respondent failed to adhere to this rule as he failed to challenge the Claimant‟s testimony on the following points yet included those points in the Respondent‟s written submissions:

i. There was no performance appraisal. The Respondent brought no witnesses who were capable of challenging the Claimant‟s evidence that no performance appraisal was performed in the 2009-2010 contract period. The persons who could have done so (the Head Coach and/or the Manager) were

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not brought as witnesses. The Claimant‟s evidence therefore stands unchallenged in respect of this fact. Further in cross-examination Counsel for the Respondent Mr. Ali did not make it plain that he was not accepting the Claimant„s evidence in respect of the fact that the appraisals were not performed. However at paragraph 60(a) of the Respondent‟s Closing Submissions, the Respondent challenged the Claimant‟s assertion that the performance appraisal was not conducted during the 2009-2010 contract period.

ii. The Respondent in its written submissions asserted that the Claimant having acceded to the procedures adopted by the Respondent is estopped from now arguing that the performance appraisal was not conducted at the material time. No evidence was led or adduced on the Claimant acceding to any procedures adopted by the Respondent. It is to be noted that I have already dealt with the issue of estoppel. iii. Counsel for WICB did not cross-examine the Claimant on the latter‟s assertion that the Respondent failed to ensure that the selection process had been carried out in a fair and transparent manner and therefore never made it clear that he was challenging this aspect of the Claimant‟s case. Yet in the Respondent‟s written submissions, the assertion that there was a breach of Article VII (e) (i) is challenged. iv. The Respondent‟s Counsel also did not challenge the Claimant‟s claim that the comments made about him denigrated him, but says in his submissions that there was no denigration in the comments made (at paragraphs 84, 88 et seq of the Respondent‟s Submissions). Mr. Butts‟ evidence was that the comments were negative and probably denigrated the Claimant. The Respondent brought no other witnesses to refute the claim that the comments denigrated the Claimant. [My emphasis.]

v. Similarly in neither the pleadings nor in cross-examination did the Respondent challenge the Claimant‟s assertion that the breaches of the MOU

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caused him loss. Yet throughout the written submissions this assertion is challenged.

vi. Further in cross-examination no questions were put nor was any evidence adduced which showed that the Claimant failed to particularise his loss. In several paragraphs of its written submission the Respondent alleged that the Claimant failed to particularise his loss.

vii. The Respondent also did not challenge any of the evidence led in respect of the Claimant's efforts to mitigate his loss, yet throughout the written submissions asserts that the Claimant failed to mitigate his loss. In this regard reference is made to the Claimant‟s evidence that he tried to get a county cricket contract but could not get one as he was ineligible, not having played cricket in that calendar year.

[12.1] The Claimant referred to its own submissions and submitted that the point made therein is that submissions must be based on the case as pleaded and as adduced in evidence. The Claimant‟s position was that the oral submissions made by Counsel for the Respondent contained arguments that were not part of the Respondent‟s case as it was set out in the pleadings, and that no evidence was adduced in order to mount those arguments. In the circumstances, the submission was made that those arguments which were not part of the Respondent‟s case ought to be struck out or ought not to be considered by the Arbitrator. [Emphasis supplied.]

[12.1.1]I agree that if a particular case was not pleaded and there is no evidential foundation for an argument then where an argument is mounted in such a situation it cannot be sustained. This is an elementary principle of fairness and justice. [12.2] The Claimant then referred to the well-known passage of Lord Normand‟s opinion in Esso Petroleum Co Ltd and Another v Southport Corpn. [1953] All E.R. at 868 that: “The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed

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by them....To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.” The Claimant’s Submissions in Reply on the Distortions of the Factual Matrix [12.3] The Claimant then stated that submission is repeated in respect of the Respondent‟s written submissions which are rife with distortions of the factual matrix, and with arguments not based on evidence or the Respondent's Defence as pleaded which change the Respondent‟s case. The Claimant further argued that the Respondent has distorted the facts in respect of the Claimant‟s case at paragraphs 1, 2, 30, 36(a), 36(b), 36(c), 52, 53, 62, 68, 73, 97, 108 and 109 of its written submissions. In these paragraphs the Claimant submitted that the Respondent misrepresented the Claimant‟s case by stating that: a) the Claimant‟s case is about non-selection or not being awarded a Retainer Contract; b) the Claimant‟s case is that if the appraisals had been performed the Claimant would have been awarded a Retainer Contract;

c) the Claimant alleges breach of contract in respect of failure to ensure that performance appraisals were carried out ; d) the Claimant‟s case is that the selection process was not carried out in a fair and transparent manner as a result of the Respondent‟s alleged failure to provide the Claimant with reasons as to why he had not been selected, to provide the Claimant with an opportunity to address these concerns and as a result of the Respondent making denigrating comments in public about the Claimant; e) the Claimant‟s case is that the selection process has been compromised;

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f) the Claimant‟s case is that the denigrating comments undermined the requirements of fairness and transparency; g) the Claimant‟s case is that the Claimant is entitled to challenge his nonselection where the Respondent makes statements directly to a player or by way of press release;

h) the Claimant has asserted that he has been penalised or punished by his non-selection; i) the Claimant‟s claim is for judicial review; j) the Claimant‟s case is that the Selection Panel failed to follow the correct procedures;

k) The Claimant had a legitimate expectation that if he had received the performance appraisal and met all the demands made of him he would have had his Retainer Contract renewed. [12.4] The Claimant then urged that contrary to the above assertions the Claimant‟s case is as set out at paragraph 1 of the Claimant‟s written submissions and that the Respondent has also distorted the factual matrix by misstating and/or

misrepresenting the evidence led and adduced by asserting the following in its written submissions:

a) The Claimant had received Retainer Contracts before and was therefore aware of how appraisals had been carried out previously (paragraph 48 of the Respondent‟s submission). In fact Mr. Simmons stated that he had never had any Retainer Contracts before or after 2009-2010 and this fact was not contradicted by any other evidence led or adduced.) b) The first the Respondent learned of the Claimant‟s alleged concerns was when the Notice of Dispute was served on September 30th 2010 (paragraph

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49 of the Respondent‟s submissions). (A letter was written on April 15th 2010 to the WICB and is exhibited to the Points of Claim as “C”.)

c) The Claimant himself has suggested that he may have been aware of what some of the Respondent‟s concerns were in respect of his discipline (paragraph 51 of the Respondent‟s submissions). (This was not adduced in evidence and in fact the exact opposite was led and adduced in evidence). d) Mr. Butts‟ evidence was that the Head Coach and his management team communicated and engaged with the Claimant with respect to his performance (paragraph 44 of the Respondent‟s submissions). (This was not adduced in evidence in respect of Mr. Simmons in total and was denied by Mr. Simmons). [My emphasis.]

[12.4.1]I accept without equivocation the sentences underlined in sub-paras (a), (b), (c) and (d) above and find as a fact the matters as stated.

[12.5] The Claimant further submitted that the Respondent has also misrepresented the facts by claiming the following:

a) that it had raised concerns with the Claimant and that these were clearly communicated to him( paragraph 60 b of the Respondent‟s submissions). No evidence was led or adduced to this effect and it is not contained in any of the pleadings.

b) that the WICB had provided the necessary performance appraisals to the Claimant (paragraphs 41-44 of the Respondent‟s submissions). This was not pleaded nor was any evidence led or adduced to show that the performance appraisals, as set out in Article VII(a) and Schedule F of the MOU, were conducted ;

c) that the Respondent is not the employer of the Claimant (paragraph 106 of the Respondent‟s submissions). At paragraph 1 of the Points of Defence the

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Respondent asserts that it is the employer of cricketers who represent the West Indies Cricket Team and the Claimant, in its reply, agreed.

d) The Respondent asserts at paragraph 114 of the written submissions that feedback and advice were provided by the Respondent‟s Management Team and that these constituted performance of the appraisal process. This fact was never pleaded or established by the evidence.

e) that the Performance Appraisal was carried out on a continuous informal basis for the entire time that the Claimant was training with the team. (paragraph 114 of the Respondent‟s submissions). (Mr. Simmons did not “train with the team” after the Australia tour as he was not selected.)

f) that the MOU does not prescribe a formal process (paragraph 41 of the Respondent‟s submissions). (Article VII (a) and Schedule F of the MOU clearly prescribe a formal process including submission of the appraisal to the manager for sign off).

[12.5.1]Again, having heard the evidence, reviewed my notes and the voluminous transcripts together with the pleadings I have come to the irresistible conclusion that the sentences underlined in sub-paras (a), (b), (c), (d), (e) and (f) above as being factual, correct and wholly consistent with the case. I must confess that I was somewhat taken aback by several of the Respondent‟s Written Submissions and that is a significant reason why this, my final award has been delayed because I was compelled to carefully review the voluminous documents which were given to me by both sides in this case. It cannot be right and just for a party to advance esoteric arguments which are not based on the pleaded case and/or the evidence adduced. The Respondent‟s arguments are interesting but as identified by the Claimant they bear no relevance or relationship to the pleaded case as presented.

[12.6] Additionally it was submitted by the Claimant that the Respondent has also misrepresented the facts in the following:

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g) The Respondent at paragraphs 13-20 of its submissions distorts the factual background leading up to the arbitration. Further, it is the Claimant‟s submission that having submitted to the jurisdiction of the arbitrator the background is of little or no consequence. Submissions by the Claimant on Changes to the Respondent’s case

[12.7] The Claimant argued that in its written submissions that the Respondent changed its case. On the pleadings the Respondent‟s case is as set out in the Claimant‟s written submissions at Section B, paragraphs 3 and 4 (which I have alluded to in para [9.0] hereof). However it was submitted by the Claimant that in the Respondent‟s written submissions the following changes appear: i. It was never the Respondent‟s case that Mr. Simmons ought to have tried to call Mr. Butts before accepting a family engagement on May 31, 2010 (as put at paragraph 9 of the Respondent‟s written submissions). This was not pleaded nor was it put to Mr. Simmons (or to Mr. Butts) in evidence. It therefore cannot be said that it was not done. ii. It was also not part of the Respondent‟s case that Mr. Simmons ought to have contacted the Head Coach after being told by Mr. Butts that he would not be available at 7.00 p.m. (as put at paragraph 10 of the Respondent‟s written submissions). Mr. Butts‟ evidence is that he told Mr. Simmons that he would leave his contact information with the coach. The question was not put to Mr. Simmons in cross-examination, as to whether he attempted to contact the coach or why he did not do so. This was never an issue and cannot now be made one after the fact. iii. It was never the Respondent‟s case that the MOU does not prescribe that the appraisal process be a formal process (as stated at paragraph 41 of the Respondent‟s submissions). There was no evidence led or adduced to this effect and any such argument or conclusion is mere conjecture on the

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Respondent‟s part. Further no witnesses were brought who could give evidence on this process. iv. Paragraph 42 of the Respondent‟s written submissions stated that Mr. Simmons accepted that he had conversations with the Head coach. No such evidence was led or adduced. This assertion is repeated at paragraph 44 of the Respondent‟s submissions. However, Mr. Simmons never said this in evidence. Neither did Mr. Butts. Mr. Butts spoke in a general way about the usual pattern of interaction between the coach, the management team and the players but Mr. Butts cannot and did not give specific evidence as to who communicated with Mr. Simmons at the material time. No evidence on the assertions made at paragraph 44 of the Respondent‟s submissions was led and these assertions were not made in the pleadings. In any event the only conversation with the coach which Mr. Simmons may have given evidence of having was in respect to the meeting which took place in January 2011 in Barbados, long after any appraisal ought to have been done. In fact Mr. Ganga‟s evidence is that there was opportunity to speak with Mr. Simmons prior to January 2011 but there was never any request for any conversation before January 2011.

v. The appraisal being a two-way process does not mean that Mr. Simmons had any obligation to contact the coach, trainer or manager, as alleged by the Respondent at paragraph 47 of the Respondent‟s submissions. The Respondent offered no witnesses who could attest as to the nature and manner of the appraisal process and cannot now offer an interpretation in its written submissions.

vi. Similarly, the Respondent cannot now make assertions as to the nature of the appraisal process (paragraphs 43 of the Respondent‟s submissions) when such was not part of his case on the pleadings or in terms of evidence led or adduced. Further at paragraph 45 the Respondent claims that lack of a formal appraisal process did not affect Mr. Simmons‟ chances of getting a further contract. However, no evidence was led to this effect. The WICB

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brought no witness who could give valid evidence to this effect and this was not put to Mr. Simmons or to Mr. Ganga in cross-examination.

vii. The Respondent persists in arguing that Mr. Simmons acquiesced in the lack of appraisal. However, Mr. Simmons never had a Retainer Contract before or after the 2009-2010 period and therefore cannot be said to have acquiesced. The Claimant reiterated his written submissions on this point and argued that acquiescence3 was not a part of the case as pleaded by the Respondent and the elements were not led in evidence or adduced. viii. At paragraph 60(d) of the Respondent‟s submissions, the Respondent answers an argument which was never made as part of the Claimant‟s case.

ix. The interpretation of Article VII (e) (i) was never an issue on the pleadings or raised in the evidence. While the Claimant‟s submission is that this argument cannot now be raised (paragraph 79(a) of the Respondent‟s written submissions), it must be said that if it is considered, the submission of the Claimant is that the interpretation as set out at paragraph 79(a) and elsewhere in the Respondent‟s submissions is incorrect. The issue of interpretation of this sub article is addressed below. x. The Respondent‟s freedom to make comments on players and the issue of whether the remarks complained of are denigrating, were never issues raised in the pleadings or led or adduced in evidence. It is accordingly submitted that the Respondent cannot now (as it purports to do at paragraph 92 of the Respondent‟s submissions) raise and argue that issue. xi. At paragraph 106 of the Respondent‟s written submissions, the Respondent alleges that the Claimant has failed to produce any evidence to suggest that the Claimant is employed by the Respondent and also denies that such a relationship exists between the parties, and that the Respondent
3

I have already dealt with the acquiescence point.

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has any obligations towards the Claimant under employment law and/or standard industry employment practices. However, at paragraph [1] of the Respondent‟s Points of Defence, the Respondent asserts that it is the employer of cricketers who from time to time represent the West Indies Cricket Team. The Claimant, in its Reply accepted paragraph 1 of the Points of Defence. The Claimant therefore did not need to produce any evidence of this at the hearing.

xii. The Respondent at paragraph 49 of its written submissions, asserts that the Claimant, having acceded to the procedures adopted by the Respondent is estopped from now arguing that the performance appraisal was not conducted at the material time. Apart from the fact that there was no accession to any procedures since Mr. Simmons did not have a Retainer Contract before the 2009-2010 period and was not a team member after the Australia tour, this is the first occasion on which the argument of estoppel is raised in respect of this issue. It is accordingly submitted that this argument should not be considered. In the Respondent‟s Points of Defence estoppel is pleaded at paragraph 23 in respect of another issue: that of the Claimant‟s assertion that he had not been given an opportunity to be heard.

[12.7.1]For the reasons set out in paras. [12.4.1] and [12.5.1] hereof I accept as being accurate the phrases and/or sentences underlined in the various sub-paragraphs above. The Claimant’s submission on the Evidence

[12.8] It was submitted by the Claimant that in general the rules of evidence are binding upon arbitrators unless the arbitration agreement indicates otherwise or the parties consent (17 Halsbury’s Laws of England (4th ed.) para 2). In the instant proceedings the rules of evidence are taken to apply as there is nothing in the arbitration agreement that indicates otherwise and the parties have not consented to disregard these rules.

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[12.9] The basic rule of evidence is that cases are tried solely on the evidence adduced by the parties (Henderson v Henry E. Jenkins & Sons [1970] A.C. 282; 1969 3 All E.R. 756 HL). Valid evidence must be relevant (17 Halsbury’s Laws of England op. cit. at para 5 and footnote 1), must not be speculation, opinion (except by expert witnesses) or hearsay (Halsbury’s supra, at paras 11 and 53) (save for the recognised exceptions thereto). Consequently, paragraphs 43, 44, 45, 47, 48, 49 of the Respondent's Submissions breach this fundamental rule since they do not deal with any evidence given in the Arbitration and are mostly speculation, conjecture, opinion and so irrelevant to the consideration of this matter. [12.10] With regard to paragraph 44 of the Respondent‟s submissions specifically, the statement that "Mr. Butts CONFIRMED that the Head Coach and his management team communicated and engaged with the Claimant with respect to his performance", is untrue since there was no evidence presented to the hearing that the Head Coach and Management team did this during the contract period or at all and certainly no evidence led by the Respondent that the Head Coach and/or any other member of the Management team conducted any appraisal of the Claimant pursuant to the requirements of the Retainer Contract the Claimant had with the Respondent. [My emphasis.]

[12.11] Not only did the Respondent not seek to put the best evidence before the Arbitrator (by not offering witnesses who could give valid evidence about the appraisal process, such as the Head Coach and the Manager) in its attempts to prove that some type of appraisal as required was conducted, but no evidence was led at all .In this regard, and since "he who asserts must prove", the Respondent has failed completely by all legal measure and provided no proof whatsoever that the Respondent's Head Coach and/or Management team conducted the performance appraisals mandated by the terms of the Claimant‟s Retainer Contract orally, informally, formally or in writing or at all or that the Manager had signed off orally or in writing or in any other manner. [Emphasis added.]

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The Claimant’s submissions on new information purporting to be evidence being given on submissions [12.12] At paragraph 51 of the Respondent‟s submissions the Claimant never gave the evidence as alleged and so the conclusions drawn and suppositions made are erroneous and irrelevant; paragraph 53 of the Respondent‟s submissions is untrue, information set out in paragraphs 54, 55, and 56 thereof were never led in evidence and is not relevant to the matter. Respondent‟s written submissions, At paragraphs 54, 55, 56 and 57 of the the Respondent attempts to introduce

information as facts before the Arbitrator but which were never given in evidence on the selection process and purports to answer a case that was not put by the Claimant. This evidence was not led or adduced during the proceedings and the pleadings contained no such allegation or assertion. [My emphasis.]

The Claimant’s submissions on hearsay

[12.13] The rules of hearsay prevent Mr Butts from giving any evidence as to what the Coach and Manager may have said to the Claimant since Mr Butts tendered this evidence and it is offered in the submissions as evidence of the truth of what was said and not as evidence that it was said (17 Halsbury’s Laws of England op. cit. at para 53). There are no exceptions to the hearsay rule which would allow Mr Buts to give this evidence. Accordingly paragraphs 43 and 44 of the Respondent‟s submissions cannot be accepted. No coach, manager or trainer having been offered as witnesses the assertions contained in these paragraphs fall and the Claimant‟s evidence in this respect stands uncontradicted. [12.13.1]I prefer the Claimant‟s evidence in this regard as Mr. Butts‟ evidence was lacking in particularity. See paragraphs 7 and 8 of Mr. Simmons‟ witness statement and paragraphs 5-12 of Mr. Butts‟ witness statement.

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The Claimant’s submissions on Natural Justice

[12.14] The Claimant's case is not an application for judicial review nor does it amount to such. Judicial review is sought in the area of public law and the remedies available are: Quashing order; Prohibiting order; Mandatory order; Declaration; Injunction; Damages in limited circumstances

[12.15] In the case of damages on judicial review, these are available as a remedy in judicial review in limited circumstances. Compensation is not available merely because a public authority has acted unlawfully. For damages to be available there must be either: (a) A recognised „private‟ law cause of action such as negligence or (b) breach of statutory duty.

[12.16] The principles of natural justice are also applied to private bodies and private law remedies are available such as declarations, injunctions and damages- see Pett v Greyhound Racing Association Ltd [1968] 2 AE 545. In R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 2 All E.R. 853 Sir Thomas Bingham MR.‟s words [at 867 c-f] are instructive:

"I would accept that those who agree to be bound by the Rules of Racing have no effective alternative to doing so if they want to take part in racing in this country. It also seems likely to me that if, instead of Rules of Racing administered by the Jockey Club, there were a statutory code administered by a public body, the rights and obligations conferred and imposed by the code would probably approximate to those conferred and imposed by the Rules of Racing. But this does not, as it seems to me, alter the fact, however anomalous it may be, that the powers which the Jockey Club exercises over those who (like the applicant) agree to be bound by the Rules of Racing derive from the agreement of the parties and give rise to private rights on which effective action for a declaration, an injunction and damages can be based without resort to judicial review. It would in my opinion be contrary to

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sound and long-standing principle to extend the remedy of judicial review to such a case." The Claimant submitted that the words of Hoffman LJ [at p. 876 a – c] also support the Claimant‟s position:

"In the present case, however, the remedies in private law available to the Aga Khan seem to me entirely adequate. He has a contract with the Jockey club, both as a registered owner and by virtue of having entered his horse in the Oaks. The Club has an implied obligation under the contract to conduct its disciplinary proceedings fairly. If it has not done so, the Aga Khan can obtain a declaration that the decision was ineffective (I would avoid the slippery word void) and, if necessary an injunction to restrain the Jockey club from doing anything to implement it.... " And so too, the following from the judgment of Farquharson L.J. [at 873 d – e]:

"In the present appeal there is no hardship to the applicant in his being denied judicial review. If his complaint that the disciplinary committee acted unfairly is well-founded there is no reason why he should not proceed by writ seeking a declaration and an injunction. Having regard to the issues involved it may be a more convenient process." [My emphasis in all three passages.] [12.17] The Claimant next submitted that as set out in Rice v Board of Education supra decision makers have a duty to act fairly and as stated by Hoffman LJ in the Aga Khan case the Respondent had an implied obligation under the Retainer Contract with the Claimant to act fairly when it makes decisions relating to the Claimant. Additionally, argued the Claimant, the Respondent had an express obligation under the Retainer Contract with the Claimant to ensure that " the selection process will be done in a fair and transparent manner and that a person's race, religion, colour, descent or national ethnic origin will not be in any way a factor in a player's consideration for selection ".

[12.18] The Claimant has claimed breach of contract of the above- mentioned obligations for the Respondent's failure and omission to act fairly and apply the principles of natural justice and is entitled to do so in a private law matter contrary to the assertions of the Respondent who the Claimant says is wrong in law on this issue.

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[12.18.1]I agree.

The parties have agreed a process/procedure – mediation, then

arbitration. Indeed, at common law, where there is a right, there is a remedy – ubi jus ibi remedium.

[12.19] The Claimant argued that in McInnes v Onslow Fane [1978] All ER 211 cited by the Respondent the distinction is sought to be made with regard to "application cases" and "forfeiture/ disciplinary cases". The instant case falls squarely in the category of a loss of a right or disciplinary matter since the Chairman of Selectors' gave evidence on cross-examination to say that the Claimant's "issues" and disciplinary matters were the reasons he was not considered for selection but that there were never any disciplinary hearings -the absence of not only disciplinary proceedings but reports, complaints or investigations against the Claimant was attested to by the Respondent's CEO as well at Exhibit D of the Claimant‟s Points of Claim, yet issues and disciplinary matters were used against the Claimant in the selection process.

[12.20] According to the Claimant, there was also no performance appraisal as set out and required under the Retainer Contract whereby any "issues" (if other than disciplinary issues) were communicated to the Claimant and dealt with in that manner or through a disciplinary process contrary to the assertions of the Respondent. The Claimant is not seeking review of any decision but for damages for breach of contract. The Claimant is not seeking to impose additional burdens or obligations on the Respondent but claims (and believes has adduced compelling evidence) that the Respondent did not adhere to existing obligations under the terms of the Retainer Contract to which the Respondent agreed with the Claimant and so the McInnes case is not on point and may be distinguished. The Claimant’s Submissions on Acquiescence and Estoppel [12.21] At paragraph 48 of the Respondent‟s submissions it is asserted that the Claimant acquiesced to the Respondent‟s course of conduct during the period of the Retainer Contract and that since he had Retainer Contracts previously, he was aware of how

86

appraisals had been carried out. However, it has been repeatedly pointed out that the Claimant did not have any Retainer Contracts prior to the 2009-2010 period and cannot be said to have acquiesced. Further, acquiescence is defined as quiescence under such circumstances that assent may reasonably be inferred from it (16(2) Halsbury’s Laws of England (5th ed.) (REISSUE), para 909) and is said to be no more than an instance of estoppel by words or conduct. However since Mr. Simmons had never had a Retainer Contract before he cannot be said to have known that any rights of his were being violated and any argument based on acquiescence cannot succeed. He never had the requisite knowledge to support an argument that he acquiesced in the Respondent‟s omissions. a pleading in the submissions. [My emphasis.] Further still,

acquiescence was not pleaded by the Respondent and cannot now be introduced as

[12.21.1]I beg to differ on this point as an estoppel has been pleaded in paragraph 23 but I have expressed my views on this aspect of the case already.

[12.22]It was next submitted by the Claimant that the Respondent asserted at paragraph 23 of the Points of Defence that since Mr. Simmons did not avail himself of the opportunity to meet with the Chairman of Selectors and Coach, he is estopped from complaining that he had no opportunity to be heard, or that he was not given any information to assist him in his development and/or improvement and/or review [sic]. No evidence was ever led as to the nature of the issues or other matters and whether such a meeting would constitute a “hearing” or what the exact nature of the proposed meeting was to be.. No foundation was laid by the Respondent for any such claim to be made. However, in the course of the arbitration the elements of this or any other estoppel were not raised and/or proved. The Respondent in its submissions, at paragraph 49 thereof, sought to assert that Mr. Simmons is estopped from raising an argument because he acceded to the procedures adopted by the Respondent. It is unclear which procedures are in question. However, this particular argument on estoppel was not raised in the pleadings and cannot now be introduced. Further, the legal elements necessary for estoppel were not raised and/or proved during the course of the hearing.

87

The Claimant’s Submissions on the Interpretation of Article VII (e) (i) of the MOU [12.23]The Claimant submitted that at paragraphs 26 and 27 of the Respondent‟s submissions (and also at paragraph 66 thereof) it is asserted that the correct interpretation of Article VII (e) (i) that fairness and transparency of the selection is achieved once a person‟s race, national or ethnic origin, colour or descent is not a factor in a player‟s consideration for selection. It was submitted by the Claimant that this is in fact the incorrect interpretation of the sub-article. The exact words used in Article VII (e) (i) of the MOU are as follows: “ the WICB undertakes to ensure that the selection process will be done in a fair and transparent manner and that a person‟s race, religion, colour, descent and national or ethnic origin will not in any way be a factor in a player‟s consideration for selection.” The use of the word “and” highlighted above means that the WICB undertakes to ensure two things: a. that the selection process will be done in a fair and transparent manner and; b. that a person‟s race, descent etc. will not be a factor in a player‟s consideration for selection. [12.25]The Claimant argued that to suggest that fairness and transparency are achieved by ensuring that race and colour are not a factor when a person is being considered for selection is to ignore the inclusion of the word “transparent”, which has no connection to race and colour, and to ignore the use of the word “and”. The interpretation of this sub-article suggested by the Respondent results in absurdity which is always to be avoided in interpretation. The Respondent's argument also ignores the rules of construction and interpretation in not giving the words "fair", "transparent " and "and" their natural and ordinary meanings which produces an interpretation that flies in the face of the English language. Further, this interpretation of the contract was never pleaded as part of the Respondent‟s case and was not supported or even raised by evidence adduced during the proceedings.

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The Claimant’s Submissions on the Authorities presented by the Respondent

[12.26] The Claimant argued that the authorities submitted by the Respondent are not on point and the decisions therein are peculiar to the facts which are not on all fours with the facts in the instant matter. The Claimant’s Submissions on the Assessment of Damages

[12.27] The Respondent erroneously concludes that the Claimant‟s case is about the award of a Retainer Contract because the damages are set out by reference to the Retainer Contract. However, the value of the retainer is set out so as to assist in assessing the loss of a chance (Chaplin v Hicks).

Conclusion

[13.0] In my view the selection process was not done in a fair and transparent manner in breach of Article VII (e) (i) of the MOU. Further, the integrity of the selection process has not been kept or maintained since public comments have been made which denigrated the Claimant. I also hold that the appraisal process has not been

complied with in accordance with Article VII (a) of the MOU and there has been a clear and unmistakable breach of the requirements set out in Schedule “F” thereof. If necessary, it is my view that the Retainer Contract contains similar provisions and in the circumstances the provisions thereof have also been breached. In all respects I accept the evidence of the Claimant and hold that he has suffered loss and damage. Support for my conclusion is found in Their Lordships judgments in R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 2 All E.R. 853 as quoted above.

[13.1] Now I, the said Seenath Jairam, S.C., LL.M. having heard and duly weighed and considered the several allegations of the parties hereto, their evidence and all their arguments, both oral and written do hereby make and publish this my award of and

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concerning the matters so referred to me as aforesaid in the manner following, that is to say:4

1.

Special damages for loss of earnings as follows: (a) I award and adjudge that the Claimant is entitled to the sum of US $24,000.00 as damages for loss of retainer (the claim was for the sum of US $24,000.00). (b) I award and adjudge that the Claimant is entitled to the sum of US $34,750.00 as damages for loss of ICC World Cup Fee (the claim was for the sum of US $69,500.00). (c) I award and adjudge that the Claimant is entitled to the sum of US $40,974.09 being loss of match fees (the claim was for the sum of US $122,922.27). (d) I award and adjudge that the Claimant is entitled to the sum of US $7,479.31 being loss of provident fund contributions (the claim was for the sum of US $18,438.44). (e) I decline to make an order or award regarding the loss of bat contracts on the basis that this is speculative and too uncertain and remote (the claim was for the sum of US $18,000.00) (f) I award and adjudge that the Claimant is entitled to the sum of US $10,000.00 as damages for loss of publicity/reputation (the claim was for the sum of US $50,000.00). (g) I decline to make an award for damages for breach of contract as this would amount to double recovery (the claim was for the sum of US $40,000.00). (h) I award, direct and determine that the WICB do pay 2/3 of the full costs of the arbitration and of this my award and to refund the WIPA 8/10 of all fees paid to the Arbitrator for this arbitration and award, such costs to be taxed by me or by the Registrar of the Supreme Court of Judicature of Trinidad and Tobago, in default of agreement.

4

I itemize the heads of claim in the same order in which the relief are claimed by WIPA.

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From: Seenath Jairam, S.C. [mailto:sjairam@tstt.net.tt] Sent: Friday, April 27, 2012 11:24 AM To: Dinanath Ramnarine; Ernest Hilaire; Derek Ali; Alanna Medford; Donna Symmonds; Sushilla Jadoonanan; DENISE HAYNES Subject: Final Award in Arbitration matter between Lendl Simmons v WICB

Ladies and Gentlemen, I wish to advise that in perusing my Final Award dated the 26th day of March, 2012 I have discovered that I have made an error in calculating the total sum payable. I have erroneously stated the sum to be US $107,203.40 instead of US $117,203.40. In accordance with section 15(b) of the Arbitration Act Chapter 5:01 I have accordingly made the corrections thereto which I have published in an addendum dated the 27th day of April, 2012. A soft copy of same is attached for your records and information and a hard copy is available at my chambers for collection. Yours respectfully, Seenath Jairam, S.C., LL.M. Arbitrator
-****************************************************************************** ************************ "Victoria Chambers" 24 Victoria Square West Port-of-Spain Trinidad, W.I. TELEPHONE NUMBERS: (868)-625-0438/4044 FAX NO: (868)-625-9992 E-MAIL: sjairam@tstt.net.tt This electronic mail transmission has been sent by an Attorney/Barrister-at-Law. It may be Attorney-Client privileged and confidential, and may be exempt from disclosure. It is intended only for the use of the addressee and should not be read by or delivered to anyone in any circumstances. If you are not an addressee or intended recipient, you are not authorised to read, print, retain, copy or use this message or any attachments. If you have received this message in error, please notify the sender by return e-mail and delete the entire message from your system without reading the content. Any unauthorised dissemination, distribution, retention, reading or copying of this message or any part thereof is strictly prohibited.

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