In retrospect, cricket board hangs Paine out to dry

Tim Paine at a Tasmanian Second XI match on Tuesday. Picture: Eddie Safarik

There is something rotten going on at Cricket Australia. The new broom of managers and board members was determined to fix the culture of Test cricket after Sandpapergate.

Instead, the current mob’s attempt to be holier than thou, effectively ditching Tim Paine over private and consensual texts, has backfired.

And mob is the word. CA has abandoned its cricketers to unknowable mob rule, creating a mess for players to navigate. Our top sports administrators have also chosen a wretched path for the rest of us, bolstering a dangerous trip-wire society already in motion in some places.

It’s bad enough that codes of conduct within workplaces, including sporting codes, can be highly ambiguous and therefore discretionary and unclear in their application. It’s far worse when an employer, here CA, decides there are effectively two courts of law: one set down by a legally enforceable code of conduct and, when it doesn’t like that outcome, then it defers to another court – the front-page headline of a tabloid newspaper – where re-prosecutions can be launched retrospectively, pronouncements made, also retrospectively, and careers ended.

This is what happened to Paine. Two courts of law. One mostly fair, but not always. The other, entirely wicked and bogus.

The 36-year-old cricketer is entitled to be disappointed that he was hung out to dry by CA. His union, the Australian Cricketers Association, should be outraged.

Paine’s racy consensual text exchange was in 2017. The former female employee at Cricket Tasmania seems to have complained when she faced termination. She is facing criminal charges, and she tried but failed to flog her story to a current affairs show. This has ex post facto revenge written all over it.

Each investigation, first by Cricket Tasmania and then by Cricket Australia, found Paine had not breached the relevant codes of conduct. The investigations were not made public for that reason.

So far, so fair. And then CA’s new management panicked about a front-page story that regurgitated a private story, with new chairman Richard Freudenstein publicly flaying Paine, saying his new board would have sacked Paine as skipper.

Cricket insiders have told The Australian that’s because Paine, though not guilty of breaching the code of conduct, was found guilty by that different court – readers of a newspaper.

Let me politely suggest that the progressive corporate men running CA have no idea about the pulse of the nation here.

Many people will surely be staggered that CA has decided no investigation into an issue is ever final; it can be reopened, re-prosecuted later by a nervous board. In other words, the board will hold the Sword of Damocles over innocent people and decide when, in the future, to let it fall, offering no clue about when or how. Double jeopardy has been ditched, due process cast aside too, as relics of a bygone age.

There is nothing remotely progressive about CA’s new workplace rules that change at whim depending on an inscrutable mob. This is the epitome of a dark age: regressive, intolerant, unforgiving and unjust.

Alas, CA is doing what many other employers do today: kowtowing to a roaming self-appointed morality mob. Executives in HR and corporate communications departments, even some lawyers, increasingly are telling companies to abandon principles and deliberately keep the Sword of Damocles hanging over employees just in case “community expectations” (also known as mob sentiment) changes.

Cricket Tasmania did the right thing on Monday standing up for principles that history has shown best ensure just outcomes. But why is the players’ union missing in action? And where are the Law Society and the Law Council, not to mention our civil liberties lawyers? Do they believe in punishing someone for something over which, after due process, they have been acquitted? Do they believe in retrospective punishment, scrapping double jeopardy for mob rule? Will they point out that the growing puritanism in the 21st century means our private lives are shrinking at the hands of people who insist that everything is public?

Or will they all surrender to mob rule because that is the easiest thing to do?

CA has discarded another important principle. “Let he who is without sin cast the first stone” is not some fuddy-duddy churchy statement that we can live without in our secular society. It goes to the heart of a decent and just society in which we recognise that human beings are fallible and we ensure that punishments fit the crime.

It’s true that Paine was brought in as a cleanskin to improve the reputation of Test cricket after the disastrous South African tour in 2018. Clearly, Steve Smith deserved to lose the captaincy for enabling an on-field culture in which a player scratched up a cricket ball with sandpaper.

But now CA has retrospectively deemed that consensual private sexting by Paine is equally bad.

This isn’t just bonkers. It’s deeply unfair. When CA decides to punish someone who has been cleared by two investigations, which is what the body did on the weekend, it creates an unknowable morality code for its players. What will CA next deem verboten retrospectively? Certain types of sex between consenting adults?

Give players a clue so they can try to navigate this unholy and unjust mess where CA has assumed the role of unforgiving and unpredictable morality police to re-prosecute a private consensual sexual exchange.

Paine’s wife, Bonnie Paine, forgave him for his private indiscretion four years ago. What business is it of CA or, for that matter, any of us?

CA has been disingenuous in its handling of this saga, first suggesting the 2018 investigation was comprehensive, then suggesting it wasn’t, and deferring to the media’s court of judgments in which killing careers has become a daily sport. It is crystal clear from the subtext of Freudenstein’s statements that Paine was caught in a nasty fight between past and present board members trying to prove their worth.

The upshot is that CA’s new broom has failed dismally. Knowable, predictable rules and final judgments arising from workplace investigations are essential to justice. After this botched attempt to clean up cricket, CA looks entirely out of its depth, imposing changeable rules that, by their lack of clarity and finality, are inherently unjust to players, and woefully confusing to the public.

Yes, Australian Test cricket needs to fix its culture. Start at the top, with the cricket administrators, so that basic values of justice are returned to the workplace of our players.