Perhaps we should deal with it accordingly.

Ball-tampering is cricket’s version of insider trading

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Let’s imagine for a minute that a high-paid Australian CEO is caught cheating on a business deal.

The CEO is the head of a major investment banking firm. His salary earns him millions of dollars per year (not including bonuses and commissions) and the cheating gives his inner circle of insider traders an unfair advantage that other market players don’t have access to.

The corporate world has a name for this kind of behaviour. It’s called insider trading and it’s illegal.

Now let’s replicate the above scenario on a cricket pitch, in an international test match no less. The CEO in this situation is the head of the team – the captain. Imagine he earns $2.4 million per year (plus match bonuses) and the cheating gives his team an unfair advantage that the other team doesn’t know about.

Sound familiar? That’s because it’s exactly what happened when Australian Test cricket captain Steve Smith decided to tamper with the ball during play in the third Test match against South Africa in Cape Town on Saturday night.

In case you’ve been living under a rock – or your TV and iPhone were struck by lightning at the same time as your NBN connection was being set up over the weekend – Australian cricket is currently in disarray over a ball-tampering scandal caught on live TV on day three of the Test match.

West Australian batsman Cameron Bancroft was filmed using sticky yellow tape, which had debris from the pitch, as an improvised form of sandpaper to scuff the ball. Experts say this can produce what’s known as reverse-swing – it basically makes the ball spin and bounce in irregular ways and helps fast bowlers to deliver unplayable balls.

Such tampering is against the rules because fielders aren’t allowed to change the condition of the ball apart from polishing it. It also directly contravenes the International Cricket Council (ICC) Code of Conduct, which outlines that you can’t deliberately throw it on the ground to rough it up, scratch it with fingernails or other implements, or apply any artificial substance to it.

But the aspect that seems to have unleashed universal vehemence on social media via hashtags like #cricketcrisis #sandpapergate and #tapegate is the fact that the leadership group of the team, including captain Steve Smith and vice-captain David Warner, knew about and may have even encouraged Bancroft to do the tampering. The #tapegate seems to have been pre-meditated, planned and executed via a young pawn (Bancroft) who was playing just his eighth international Test.

Moreover, ball-tampering is cheating. It gives one team an unfair advantage, much like insider trading does.

How does Australian law punish insider trading?

Insider trading is a criminal offence under section 1043A of the Corporations Act and carries a maximum penalty of 10 years’ imprisonment and a $450,000 fine. When Sydney investment banker Oliver Curtis was found guilty of conspiring to commit insider trading, he was jailed for two years (but released after one on a good behaviour bond) and fined $4.3 million – about the same amount as his cheating trades earned him.

Felons like Curtis who are convicted of offences under the Corporations Act are banned from serving as company directors for five years. And while Curtis ran straight back to his father’s business to find employment when he left prison, most former convicts are not so lucky. Many will never find employment in the same industry, let alone another white-collar position in the business world.

Compare this to interim punishment that the ICC has handed to Australian cricket captain Steve Smith. Smith copped a one-match suspension, preventing him from playing the final match in South African series. Oh, and Smith and Warner both voluntarily stepped down from their captaincy positions. Unsurprisingly, commentators around the world are calling for the punishment from Cricket Australia – which is likely to be announced on Wednesday morning once the investigation into the scandal has been completed – to be much stronger.

The grey area of sports law

Whether “sports law” is a separate area of law has long been a source of debate for lawyers. Sports operate in their own quasi-legal “systems”, with private tribunals, judges and prosecutors determining guilt and punishment of those who break the “laws”. Technically, those “laws” are better described as rules and regulations and are not legally enforceable under Australian criminal or civil laws. However, punishments like match fines and bans can have the same effect as sentences handed down by a criminal court.

What we can be sure about is that cricket is a professional sport and Australian captain Steve Smith and vice-captain David Warner earn good money for showing up to work, regardless of whether they win or lose matches. They both stared down Cricket Australia in a vicious pay dispute earlier this year, each ending up with $2.4 million salaries for their efforts, a portion of which is paid for by taxpayers through government funding to Cricket Australia. Match bonuses for winning games come on top of that, which is part of the reason why, in Prime Minister Malcolm Turnbull’s words, it “beggars belief” that they would feel the need to cheat.

I’m not usually a cricket fan (in fact I would rather watch grass grow than endure a full, five-day Test match), so I won’t throw my two cents in to the already overflowing bucket of claims on how this messy situation would best be mopped up. But if we were to treat cheating in sport with the same laws that address insider trading, some Australian cricket players would be losing much more than their reputations, captaincies and a few thousand dollars in fines.

As investigations editor Michael Evans of the Sydney Morning Herald wrote after the Oliver Curtis scandal:

“Financial markets operate on trust. Investors bank on it. And right now Curtis has none of it.”

Sports operate on fairness and trust, just like financial markets. Sponsors bank on it. And if we are to judge by current outraged reactions of commentators, cricket legends and social media users to the “tapegate” scandal, the Australian cricket team has lost that trust.

The rule of law says everyone should be treated equally before the law. But when one group of people gain an unfair advantage, that becomes impossible. Perhaps that is why the ball-tampering scandal has caused a stir among The Boiling Frog team. It leaves a bad taste in the mouth. A telling reflection of what happens when a playing field becomes uneven.

Any unfair advantage – in business, sport or the law – is just not cricket.