Time for conclusive ruling on Clause 5

"The repercussions of the latest dispute between the West Indies Cricket Board (WICB) and the West Indies Players Association (WIPA) are damaging enough for the two organisations to seek the early intervention of a mutually accepted arbiter.

"It is increasingly clear that the divide between the two has become so wide and acrimonious that it is unlikely to be bridged by further bilateral negotiations."

Those were the introductory paragraphs in this column last November 11, the day after the WIPA told its members not to accept the WICB's invitations to be available for the tour of Australia in January on the specified contract terms, charging they represented "an attempt to exploit the players for commercial purposes".

It took no special skills in logic to come to such a conclusion and, with no essential change in the situation in the intervening eight months, it takes none now to realise that arbitration, final and binding, is necessary to save West Indies cricket from the ultimate disaster of the head-on collision for which the two bodies charged with sustaining it have long since been heading.

It is an indictment on both that they remain at loggerheads over a matter that could have been so quickly settled with a little common sense and goodwill.

Since it first surfaced prior to the trip to Australia for the VB Series, hundreds of thousands of words have been written on the impasse, hours upon hours have been spent in tiresome and futile discussions and accusations, insults and outright abuse have left the air as pungent as Emmerton.

Two foreign telecommunications companies, bitter rivals, each with more capital than many small Caribbean nations, have fought over ownership of the West Indies team and the best West Indian players with a fury once associated with Mike Tyson.

If they could have, each would have bitten off the other's ear.

Granted, there has been concerned intervention, from no less a body than Caricom's sub-committee on cricket, headed by Grenada's prime minister Keith Mitchell, and even arbitration by Justice Adrian Saunders of the Organisation of Eastern Caribbean States (OECS).

But they have been limited in scope and have simply bought time so that the WICB could fulfil its obligations under the International Cricket Council (ICC) schedule.

It was inevitable that the argument would reach the point where the procrastination and pussy-footing would have to end.

That moment arrived last week when ten of the 13 players chosen for the upcoming tour of Sri Lanka declined to sign the WICB contracts, objecting, as they did back in November, to clause 5, and the WICB responded to the WIPA's proposal for final, binding arbitration of their differences with a rejection of its own.

It now seems as if the WICB is prepared to chose a new team from whoever is prepared to sign the contract, clause 5 and all.

That would leave not only the objecting players to consider their future-and there are likely to be many more outside the chosen group- but West Indies cricket as a whole.

The WICB's position from the start is that clause 5 is non-negotiable as it seeks to safeguard the interests of the new sponsor, Digicel, which has put up $20 million for the right.

Its relevant parts state: "(a) The player acknowledges that the WICB has the sole and exclusive right to permit any person to represent that they, or their goods or services, have the sponsorship or approval of, or are in any way endorsed with the WICB or any WICB team.

(b) the player agrees that at all times whilst representing the WICB (including whilst playing, training, attending official functions, attending media conferences and being present at a match venue) he will not do anything that constitutes a player endorsement in relation to a competitor of a WICB major sponsor unless he has a pre-existing agreement with such a competitor that has been approved in writing by the WICB under this contract or the player's previous player contract with the WICB or the player's agreement with such a competitor pre-dates any contract he has had with the WICB."

Such conditions seem reasonable enough. Any team sponsor would seek to protect itself against competitive promotion from a player within the team.

On those grounds, the WICB stuck to its position prior to the recent home series with South Africa and deemed players with conflicting personal endorsement agreements with Cable and Wireless ineligible for selection.

The consequence was that several of those affected withdrew from their contracts and returned to the team.

But legal consultants to the WIPA and its members hold the view that the clause is too restrictive and has advised that they should not sign any contract containing it.

Equally, the WICB's legal counsel is certain that it is on solid ground to insert such a clause as a safeguard of the sponsor's exclusivity.

With such utter divergence, settlement can only be achieved by mediation, either through an independent individual, such as Justice Saunders, or through the law courts.

In rebuffing the WIPA's proposal for a conclusive ruling on the clause 5 issue from Saunders, the WICB could well have been emboldened by the earlier decision of the Cable and Wireless players to give up their contracts to return to the team, even though all of them are now among those who have rejected their Sri Lanka contract.

The WICB might also have been fed up with the threats of a player pullout that have so frequently shrouded recent series in doubt almost up to the time the plane takes off or the first ball is bowled.

Yet, seeing that it is confident of its position and even at this late stage, the WICB would be well advised to accept the WIPA's proposal for a conclusive ruling by Justice Saunders, acceptable to all parties, including Digicel, on every aspect of its match/tour contract.

It would put the issue to rest, once and for all, so that we won't have the same chaos and confusion before the Australian series in November and every one after that.

It would let all and sundry know where they stand, not least the players.

The alternative is likely to be litigation in the law courts with the players' lawyers claiming restraint of trade. It represents a potentially long, bitter and costly exercise.

In this regard, the WICB's officers would do well to read transcripts of the judgment in the case Kerry Packer's World Series Cricket brought against the International Cricket Conference (ICC) on the same grounds in 1977.

The ICC then stated: "No player who, after October 1, 1977 has played or made himself available to play in a match previously disapproved by the Conference shall thereafter be eligible to play in any Test match."

WICB representatives, president Jeffrey Stollmeyer and vice-president Allan Rae, the vaunted opening pair of the 1950s, saw the dangers implicit in such a stipulation and argued strongly but in vain against it.

The upshot was that Justice Slade found in favour of Packer and the ICC and its member boards (including the WICB) had to fork out more than 200,000 pounds in costs and compensation.

Not that the court, Caribbean or Privy Council, would find against the WICB in this case but it is a chance neither necessary nor worth taking.

Let Justice Saunders, on his own, settle matters now so that West Indies can, in this case at least, be free of the chains of conflict that have bound it and be able to move on.