Anna-Lisa Paul and Bobie-Lee Dixon
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Sarwan hits WICB for ‘six’
Saturday, July 21, 2012
Guyanese batsman Ramnaresh Sarwan has been cleared of certain charges levelled against him by WICB CEO Ernest Hilaire regarding his fitness and attitude, after arbitrator Seenath Jairam SC, LLM, ruled in favour of the right hander in an arbitration brought by the West Indies Players Association (WIPA) on his behalf against the West Indies Cricket Board. The arbitrator found the WICB guilty of all charges brought against it by WIPA on behalf of Sarwan. The ruling of the arbitrator was released on June 18, 2012. Sarwan was kept out of the regional team because authorities had issues with his attitude and approach to physical preparation. In his ruling, the arbitrator found that the selection process was not done in a fair and transparent manner and that the WICB was in breach of Article VII (e) (i) of the MOU. That the integrity of the selection process had not been kept or maintained since public comments had been made which denigrated Sarwan. He also ruled that the appraisal process has not been complied with in accordance with Article VII (a) of the MOU and there had been a clear and unmistakable breach of the requirements set out in Schedule “F” thereof, which as a result led to Sarwan suffering severe loss and damages. This is the 15th dispute registered between WIPA and the WICB. So far, WIPA has been vindicated and has won all. There are another ten outstanding matters. In addition, the Sarwan ruling opens the door to about six more similar matters which is in addition to the ten outstanding. The cost of the WICB’s losses and legal fees cannot at this time be estimated but are reputed to be in the tens of millions of dollars.
WICB was represented by Derek Ali and WIPA was represented by Donna Symmonds, Denise Haynes, Sushilla Jadoonanan and its president and CEO at the time Dinanath Ramnarine.
THE CASE IN SUMMARY:
i. Mr Sarwan is a professional cricketer who was contracted by the WICB for the period 2009-2010.
ii. The MOU between the WICB and WIPA is incorporated into the Retainer Contract.
iii. On January 11, 2010 the CEO of the WICB, Hilaire, wrote to Mr Sarwan indicating that the WICB had conducted a review following the Australia tour and had concerns about Mr Sarwan’s attitude and approach to physical preparation.
iv. The WICB asked Mr Sarwan to take this concern as a desire for a higher level of commitment from Mr Sarwan as a contracted player on the West Indies Cricket Team.
v. Mr Sarwan instructed WIPA through its president and CEO Mr Dinanath Ramnarine to write to the WICB. Mr Ramnarine did so and made it clear that the statements made about Mr Sarwan were made without having provided Mr Sarwan with any copies of reports and without providing him with an opportunity to consider, explain or rebut any findings contained therein.
vi. Mr Ramnarine further stated that Mr Sarwan should be given an opportunity to be heard requesting a meeting and objected to any influence that these concerns would have on the determination of the selection of Sarwan in any team or review for retainer.
vii. There was no response from Hilaire to WIPA’s letter and request to meet.
viii. Mr Sarwan was not offered a retainer contract for the 2010-2011 contract period which ended on 30th September 2010. The basis for not renewing the contract was not formally communicated to Mr Sarwan, no appraisal process was conducted as required by the MOU and Mr Sarwan was never informed of the particulars of any complaints against him or negative reports that would cause the WICB not to renew his contract. Also, Mr Sarwan was not given any opportunity to remedy the situation. This means that Article VII (e) (ii) of the MOU was breached as the selection process was not conducted in a fair and transparent manner. Mr Sarwan was not given an opportunity to be heard and the principles of natural justice had therefore been breached (as well as Article VII (a) and (e) (i)).
ix. On or about September 2, 2010 the WICB in a media release stated that its selection committee had some concerns about Mr Sarwan’s “extremely indifferent attitude and sporadic approach towards fitness, the effect of which prevented him from being offered a contract for the 2010-2011 contractual period.” The WICB further stated that Mr Sarwan’s “less than satisfactory and fluctuating levels (of fitness) had directly contributed to multiple injuries thereby causing him to be unavailable for selection and that Mr. Sarwan was available for only two Test matches and a total of 13 international matches for the West Indies in the 2009-2010 contract year.”
x. These negative statements about Mr Sarwan’s fitness and attitude were widely printed and or broadcast in the local and worldwide media and threatened Mr Sarwan’s credibility and ability to earn a livelihood as a professional cricketer. His professional reputation and marketability were severely damaged. These comments were also in breach of Article VII (e) (ii) of the MOU which provides that the selectors would not make any public comments which denigrate a player.
xi. WIPA responded to the WICB in the press and on the instructions of Mr Sarwan invoked the Grievance Procedure which requires a process of good faith negotiations, mediation, and then arbitration or litigation. Hilaire also refused to have good faith negotiations as requested and as required under the Grievance Procedure of the Collective Agreement.
xii. In his reply, Hilaire denied that the WICB had damaged Mr Sarwan’s credibility or livelihood and said that reference to their own media reports were “hearsay” and “should be struck out.” On November 2, 2010 WIPA wrote to the WICB indicating that it had submitted its request for mediation of the matter to the Dispute Resolution Foundation, Trinidad (‘DRC’).
xiii. Hilaire wrote to WIPA on December 6, 2010 stating that it had submitted its request to mediate the issue, however, inquiries to the DRC by WIPA revealed that this was not done until December 13, 2010. As a consequence, the DRC became unavailable and WIPA referred the matter to Arbitration.
xiv. Mr Sarwan reiterated that his case is not that he has a right to selection for a Retainer Contract but rather that the WICB has breached various sub-articles of Article VII of the MOU in respect of the selection process (by not conducting appraisals; by not conducting the selection process in a fair and transparent manner; by making comments which denigrate Mr. Sarwan) and has also breached the rules of natural justice.
xv. It was always clear that although selection is the sole purview of the selectors, the selectors must act in accordance with the selection process as set out in the MOU as incorporated in the Contract.
xvi. Mr Sarwan reiterated that he suffered loss as a result of the WICB’s actions.