*302 Greig and Others v Insole and Others 1977 G. No. 22461977 J ...

[1978] 1 W.L.R. 302 Page 47
[1978] 1 W.L.R. 302 [1978] 3 All E.R. 449 (1978) 122 S.J. 162 [1978] 1 W.L.R. 302 [1978] 3 All E.R. 449 (1978)
122 S.J. 162
(Cite as: [1978] 1 W.L.R. 302)
tion than those who had not and would thus have
been able to play county cricket, whereas those who
had not yet signed would not have been. I think I
said that this could create in the close-knit world of
cricket — which is essentially a game where you
have to play as a team and live together — a reasonably
certain amount of friction which could not
at all be in the best interests of either county or test
cricket, had there not been a retroactive ban.”
I appreciate the force of the point that if
the ICC ban was to be introduced at all, it might
have been thought desirable to make it retrospective,
in the sense already indicated, in order to lend
credibility to the deterrent afforded by it and to
make that deterrent appear equitable as between the
players involved. However, this particular possible
*354 advantage of introducing a
ban in retrospective form had to be set against what
are, in my judgment, an overwhelming number of
factors going the other way.
First and foremost, to deprive, by a form of retrospective
legislation, a professional cricketer of the
opportunity of making his living in a very important
field of his professional life, is in my judgment
prima facie both a serious and unjust step to take.
Though many persons on the defendants' side have
taken a contrary view, I have already indicated the
reasons why I do not think that, on any fair and objective
basis, players who had already contracted
with World Series Cricket can be said to have deserved
the sanction that was imposed against them,
and if they did not deserve it, it is no answer to say
that many of them may have expected it.
Secondly, the public will be deprived of a great
deal of pleasure, if it is to be deprived of the opportunity
of watching these talented cricketers play in
those many official Test Matches which do not
clash with World Series Cricket matches, and for
which they would otherwise be available. Of the 13
Test series planned for the next three years, it is
probable that seven will not clash with World
Series Cricket matches at all, so that World Series
cricketers will be available to play in them. The
ICC ban by disqualifying them from playing even
in these matches would be aggravating any deprivation
that World Series Cricket might already be
causing the public in the various Test-playing countries.
Thirdly, if, as is implicity alleged in the defendants'
pleadings, the absence of such players from official
Test and other first class matches will affect gate
receipts, a rigid rule preventing the selectors of a
particular country from selecting a particular player
who is available to play in a Test Match, merely because
he has played for World Series Cricket, is
likely to result in an actual diminution of the receipts
of such Test Matches. The plaintiffs' counsel
expressly recognised that Test selectors, in exercise
of their discretionary functions, will always be entitled
to prefer a player who has not elected to play
for a private promoter to one who has. No one suggested
that a cricketer's involvement with World
Series Cricket would be an improper factor for such
selectors to take into account. This, however, is a
very different matter from placing the selectors under
inflexible restrictions in regard to their field of
selection. Mr. Short of the West Indies, a frank and
excellent witness, agreed under cross-examination
that the West Indies would be making a
“considerable sacrifice” in denying themselves the
opportunity of playing World Series Cricket players,
when they were available. All the other Testplaying
countries would be making a similar sacrifice.
Mr. Short said, in effect, that it was necessary
to make that sacrifice to safeguard the present and
long term interests of international cricket. With all
respect to him and the other witnesses called on behalf
of the defendants who said much the same
thing, I do not think that they had given sufficient
thought to the specific positive benefits, if any, to
be derived from a ban. In my judgment the positive
benefits that might follow from a retrospective ban
of the nature introduced by the ICC at its meeting
of July 26, 1977, are, at most, speculative and not
nearly sufficient to outweigh the certain injustices
to the players involved and the certain detriment to
the world public interested in cricket, which would
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