Cricket fans all over the Australia have been divided about Chris Gayle’s interview with Mel McLaughlin on January 4 2016. The Jamaican Joke Maker’s off the cuff comments to Mel McLaughlin have spread like wildfire and created legal issues unforeseen by all the parties involved.
Sexual Harassment in the Workplace
The viewer, straight away, needs to realise that sport is no longer an amateur pastime, cricket’s Big Bash League and the cricket ground is Gayle’s and McLaughlin’s place of work. Consider whether if you said the same thing to an office colleague would you be liable under sexual harassment?
Under Cricket Australia’s Anti-Harassment Policy, unwelcome remarks, jokes or innuendo about a person’s sex or looks are types of behaviour which constitute harassment. Most sporting anti-harassment policies take their definitions from the Commonwealth Sex Discrimination Act (1984) which defines sexual harassment as “any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated.” It’s pretty clear cut that Gayle’s comments breached both these policies and perhaps explains his $10,000 sanction.
Bringing the Game Into Disrepute
The majority of sporting codes have a clause that prohibits any actions, whether on or off the field, that bring the sport into disrepute. The International Cricket Council is no exception.
Defining actions that bring the sport into disrepute is largely discretionary and varies depending on the sport. For example, violent off field behaviour such as that instance when Australian Swimmer Nick D’Arcy thought it was a wonderful idea to punch fellow swimmer Simon Cowley in the face constituted behaviour that brought swimming into disrepute. As a result, D’Arcy received a ban from the competing in the 2008 Olympics. A harsh penalty indeed!
Arguably, Gayle’s behaviour brings Cricket into disrepute especially taking into account the image in which the Big Bash League advocates towards women and children, who are rapidly overtaking men in terms of sporting consumption both at events and through merchandise sales.
Restraint of Trade
Without the sensationalised response by the Australian media Gayle’s sanction would have stopped at the $10,000 fine issued by Cricket Australia. However, there is now talk of Gayle being banned from the Big Bash. Chris Gayle’s trade is cricket. If a sanction includes banning Gayle from the Big Bash this could be, in a legal sense, an unreasonable restraint of trade and create a ‘sticky wicket’ for Cricket Australia.
If a restraint is unreasonable both the parties concerned and not in the legitimate interest of the public, it is not lawful. This is one issue in which Cricket Australia ought to consider very carefully!
One of the added fall outs from the ‘Gayle Gate’ came when Fairfax brought to light allegations that Gayle indecently exposed himself to a teenage girl. Gayle has sought legal advice from a high profile media lawyer who suggested that Fairfax has engaged in defamatory action through publishing false material. Whilst the result of the dispute is up in the air, Fairfax could potentially incur liabilities unless of course the allegations are true!
3 Lessons from ‘Gayle Gate’
It is important for businesses to have legal documents, including robust anti-harassment policies that stamp out sexual harassment in the workplace.
Have your anti-harassment policy reviewed by experienced lawyers to ensure workplace harassment does not find its way into your office.
If you’re operating a sports club be sure to have policies that protect the reputation of your club just in case you find yourself with a star batsman who has an interesting way with words.
Let us know your thoughts on the legal issues surrounding Chris Gayle’s Interview by tagging us #lawpath or @lawpath.