In a letter that was leaked to the public via a Facebook page attributable to a former USACA official, David Richardson, the ICC CEO, put forth the ICC's view that "there would be no good grounds to challenge any resolution passed by the ICC members" to expel USACA.
In a letter that was leaked to the public via a Facebook page attributable to a former USACA official, David Richardson, the ICC CEO, put forth the ICC's view that "there would be no good grounds to challenge any resolution passed by the ICC members" to expel USACA.
USACA had previously issued a release on May 2, 2017, in which
it noted its "disappoinment with ICC Executive Board decision." In its release, USACA called ICC's decision "manifestly unfair, prejudicial, unlawful, and unreasonable." USACA also alleged that "The ICC does not want a strong and unified, democratically governed, US cricket community. It wants one that the ICC will control and dominate." It warned the ICC that it would "vigorously defend its rights as an ICC member and the national governing body of cricket in USA."
In his letter, Richardson laid out the reasons that he said were "sufficient to warrant not reinstating USACA, and instead strongly support the proposed termination of its membership in the ICC."
Full letter below (the ICC letter was originally posted here
Dear Mr Dainty
Membership status of the United States of America Cricket Association ('USACA')
The ICC Chairman has asked me to write to you to let you know what the ICC Board decided at its meeting on Wednesday in relation to USACA's membership status.
For the reasons set out below, the ICC Board decided (by thirteen votes to none, with the representative of the West Indies Cricket Board abstaining) that it would be in the best interests of the ICC for the Conference at its meeting in June 2017 to consider bringing USACA’s membership of the ICC to an end with effect therefrom.
Consequently, after the Board meeting, I have received formal notice in writing from Full Members of their proposal to bring USACA’s membership of the ICC to an end in accordance with Article 2.6(B) of the ICC's Articles of Association (the 'Articles').
I will therefore cause the necessary resolution to be put to Conference for a vote at its meeting in June 2017 in accordance with the ICC’s Memorandum of Association (the ‘Memorandum’) and the Articles.
As explained below, USACA will have the opportunity to oppose the resolution to bring its ICC membership to an end, and to address the issue of its continued suspension or reinstatement in the event the resolution does not pass. That includes making a written submission to be circulated to the members in advance of the Conference, and attending the Conference to speak against the resolution, if it wishes to do so.
The grounds on which the ICC Board decided it would be in the best interests of the ICC for the Conference to consider termination of USACA’s membership include, in summary, the following:
1. Since at least the late 1990s, the ICC has repeatedly been required to deal with conflicts and deficiencies in USACA's governance of US cricket. In fact, USACA's suspension from ICC membership in 2015 was the third time it has been suspended for governance deficiencies (it was previously suspended in 2005 and then again in 2007). The ICC has also suspended funding to USACA on multiple occasions, due to USACA's failure to satisfy the conditions fixed for such funding. More generally, the ICC has been required to commit very substantial time and resources to trying to get USACA to discharge its responsibilities as the national governing body for cricket in the US.
2. The most important responsibility of a national governing body is to exercise authority over the whole of the sport in its territory. If it fails to do so, the integrity of cricket’s regulatory framework is critically undermined. USACA has clearly failed in this responsibility. The US cricket community has been severely fractured for many years, with only a small number of cricket leagues subscribing to membership of USACA, and the substantial majority choosing not to join USACA. Even accepting at face value USACA's claims about the number of leagues it currently claims to have in membership, and the number of clubs that it claims play in those leagues, the best estimate of the ICC's USA Project team is that only a small percentage of all cricket leagues in the US are members of USACA, while the rest are members of the rival American Cricket Federation (‘ACF’), or else decline to affiliate with either USACA or the ACF. It is therefore clear that, as a matter of fact, USACA does not exercise authority over the sport in the US.
3. Ultimately, it does not matter why the US cricket community has been so fractured and disunited. This state of affairs is unacceptable and must be remedied, whatever the reasons. However, it is apparent that the following have been important contributing factors:
3.1 USACA appears to have done little to extend its membership base beyond its traditional power base of leagues in New York, New Jersey and Florida;
3.2 USACA appears to have done little or nothing in terms of development programs, either at national or at regional level, whether for men's senior cricket, for youth cricket, for female cricket, for coach/umpire training, or otherwise; and
3.3 there have been allegations of serious improprieties tainting each of the past five elections to the USACA board of directors (in 2003, 2005, 2008, 2012, and 2015), including repeated and persistent allegations of granting of votes to 'ghost leagues', in order to keep the incumbents in power.
4. The allegations of election improprieties in 2012 ultimately led to the breakaway of many leagues and clubs to form the ACF later that year. And after the next election, in 2015, the ICC received allegations (including one from a USACA board director) that 11 of the 39 member leagues that were permitted to vote either did not exist at all (i.e., they were 'ghost leagues') or they did not meet the criteria set out in the USACA constitution to be eligible to vote in the election. These were obviously very serious allegations, calling directly into question the legitimacy of the current USACA board’s mandate, and so one of the conditions fixed in 2015 by the ICC Board for reinstatement of USACA to ICC membership was that it produce evidence refuting these allegations. Despite repeated requests, however, the USACA board has failed to provide any such evidence, without any good reason or excuse. In such circumstances, it is not difficult to understand why there is apparently so little trust and confidence in USACA among the US cricket community.
5. It is obvious that uniting the US cricket community behind the ICC’s member federation is the most important and urgent priority for US cricket. It is also apparent, however, that the US cricket community would not unite behind USACA as recently constituted. Therefore, since late 2015, the ICC has made considerable efforts to engage with the entire US cricket community, to try to identify what changes are required to USACA's governance to build a sustainable foundation, to reflect best practice in US sports governance, and to persuade the community to put past problems behind it, and join and unite behind USACA to work together to develop and grow the sport in the US. The conditions of reinstatement set out by the ICC Board specifically required the USACA board to engage with and support those efforts as part of a collaborative and cooperative process. However, in breach of those conditions, the USACA board did not publicly declare its support for the process, it failed to engage with and support the process, it failed to encourage its members to engage with and support the process, it failed to invite me as ICC CEO to a number of its meetings, and it failed to keep the ICC informed of negotiations with third parties on potential new commercial projects. In particular, despite repeated invitations and opportunities, for a considerable period of time the USACA board (and its nominee) failed to engage at all with the Sustainable Foundation Advisory Group (the 'SFAG'), which was charged with identifying the key principles that a new USACA constitution would have to include in order to achieve the all-important objective of uniting the US cricket community behind the ICC’s member federation. This was even though it has always been a condition of reinstatement that USACA adopt a new constitution once developed and approved by the ICC.
6. Through its various meetings, the SFAG identified the key governance principles that it felt a new constitution would need to incorporate in order to unite the community, and the ICC facilitated the development of a draft constitution that reflected those principles. This was shared with USACA in October 2016, and only then did the USACA board engage in any way with the process, raising various issues with the draft constitution, many of which were addressed by amendments that the SFAG agreed to the draft constitution. The final draft constitution ultimately proposed by the SFAG provided, among other things, for two new membership categories (clubs and individuals) alongside the league members; a nominations committee to vet candidates for election to a ten-person board, and to identify three independent people to sit on that board alongside seven directors elected by the members (two by national squad players, three by the individual members, one by the league members, and one by the club members); with ICC Americas overseeing the election, assisted by ICC Legal & Audit and an independent auditor; and with the new board being required to choose its chair from one of the three independent directors, and not from the directors elected by different membership groups.
7. At its meeting in February 2017, in furtherance of its desire to provide a path forward to unifying the US cricket community under USACA, the ICC Board considered the constitution proposed by SFAG and two further changes that the USACA board had requested: (1) that the league members elect three directors and the individual members elect only one; and (2) that the directors once elected could choose as chair a director who had been elected by one of the membership groups, rather than having an independent chair. The ICC Board concluded, however, that these changes would not serve the essential goal of uniting the US cricket community. Instead, given the history of contention and distrust, they were likely to make the new constitution unacceptable to the majority of that community, although it was willing to limit the requirement that there be an independent chair to the initial three-year transition period only. It therefore required the USACA board to circulate a further draft of the ICC-approved constitution to its members for them to adopt it by 1 April 2017, without any further changes.
8. The USACA board responded to this by:
8.1 openly disparaging the integrity of the ICC Board, myself as ICC CEO and other members of ICC management (including describing the ICC-approved constitution as 'the apartheid document', imposed by the ICC 'so they can discriminate against blacks');
8.2 failing to send USACA's members a copy of the final ICC-approved constitution for them to consider and vote upon at its Special General Meeting on 8 April 2017;
8.3 instead sending USACA's members a revised version of the constitution that included the two changes that the ICC Board had specifically rejected, as well as various other material changes that had not been approved by the ICC Board; and
8.4 urging its members to adopt the USACA version by falsely representing that doing so would satisfy the ICC's last remaining conditions for reinstatement, despite being specifically warned by the ICC that this was incorrect.
9. Consistent with previous concerns raised about the appropriateness of the USACA board assuming responsibility for determining which leagues were ‘in good standing’ and therefore eligible to vote in elections to the USACA board, the ICC also had a number of questions about the eligibility of the 41 member leagues that USACA allowed to vote on the new constitution at its 8 April SGM. I therefore wrote to USACA on 19 April, asking it to respond by 25 April with the information required to answer those questions, but I have received no response to that request.
10. As a result of the USACA board’s actions in pursuing its own version of the constitution, contrary to the express requirement of the ICC Board, the leagues that are said to constitute the current membership of USACA have now adopted a constitution that, among other things:
10.1 gives the league members the power to elect three of the ten members of the new board, and the individual members the power to elect only one, thereby favouring the incumbent USACA board’s current power base and undermining the objective of encouraging individuals to become members of USACA;
10.2 allows the new board to choose any of its members as its first chair, rather than requiring the first chair to be selected from among the independent members, which means that there is a significant risk that the new board will start its business with a highly politicised and divisive contest between rival factions, and the chosen chair will be perceived as the champion of the winning faction, rather than as an independent person who will lead the board and the organisation impartially and in the best interests of the entire membership and the sport;
10.3 puts the current USACA board in charge of the election of the new board, rather than ICC Americas, despite the obvious concerns this will raise among the wider US cricket community, given that the past five elections run by the incumbent board have all been tainted by allegations of improprieties, and in particular (despite numerous requests and the fact that it is a specific reinstatement condition) the current USACA board has failed to make any effort to refute allegations of ‘ghost leagues’ in the 2015 election that brought it to power;
10.4 delays the election of the new USACA board until March 2018, with the incumbent board remaining in power until then, even though it does not enjoy the trust and confidence of the majority of the US cricket community, rather than stepping down in favour of the new board pursuant to an election in September 2017, consistent with the ICC reinstatement conditions; and also
10.5 gives one particular membership constituency, the league members who represent the traditional USACA base, special powers to block amendments to the constitution.
11. These provisions must be set against the years of bitter controversy and contention in US cricket, which have resulted in a deeply fractured and polarised community, with USACA representing a small minority of the cricket players, clubs and leagues in the US. The ICC Board considers that the changes that USACA has made to the ICC-approved constitution seriously undermine, if not destroy altogether, USACA's chances of uniting that community. Far from offering the prospect of a fresh start under the guidance of an independent leader free from any political affiliation and history, the amended constitution will be perceived by the many disaffected members of the US cricket community as perpetuating the power andinfluence of the incumbent USACA board and current USACA members, who lost the trust and confidence of their peers many years ago. It is the view of the ICC Board that the wounds of the past will not be healed, they will be perpetuated; and the ICC Board’s imperative of uniting the US cricket community behind the ‘new’ USACA will be entirely undermined.
12. As you are well aware, the suggestion in your letter of 20 April 2017 that USACA was only suspended because of concerns about financial corruption that were later determined to be unfounded is simply incorrect. The concerns of the ICC that led to USACA's suspension extended far beyond USACA's financials. They were set out in detail in the Review Group Report of June 2015, and included (among other things) the various matters set out above. Furthermore, even though no financial corruption was identified, the investigation demonstrated that USACA used the proceeds of a loan advanced to it by the ICC in clear breach of the express terms of that loan, and there is no dispute that USACA is millions of dollars in debt and for the past several years its auditors have questioned its ability to continue as a going concern. For these reasons, in addition to the requirement to adopt a satisfactory constitution, the ICC Board fixed a number of other reinstatement conditions on a number of different topics. USACA has failed to satisfy a number of those reinstatement conditions, including requirements to provide evidence sufficient to rebut the allegations of ‘ghost leagues’ at the most recent USACA board election; to engage with and support the process of developing a new governance framework, and to encourage its members to do the same; to invite me as ICC CEO to attend a number of the USACA board meetings; and to keep the ICC fully apprised of the USACA board's efforts to negotiate commercial contracts. The USACA board also failed in a timely fashion to prevent its first Vice President bringing a lawsuit in USACA’s name in Florida, seeking to block the playing of ICC-sanctioned matches, and thereby causing the ICC to incur legal expenses in preparing to defend the lawsuit. It has also consistently failed to address frequent and flagrant breaches of confidentiality by the same first Vice-President, such that it has become impossible to communicate with the USACA Board with any degree of confidence that such communication will not be made public.
13. If USACA had adopted the ICC-approved constitution, thereby creating a sustainable governance framework that the entire US cricket community could unite behind, then perhaps USACA’s other failures, including its failure to satisfy the other reinstatement conditions, could have been forgiven. But without the ICC-approved constitution to offer hope of a new beginning, what is left is a string of unsatisfied reinstatement conditions, which are serious enough when considered in isolation, but when taken together are more than enough, in the view of the ICC Board, to warrant the proposal to bring USACA’s membership in the ICC to an end.
In your letter to the ICC Board of 20 April 2017, and in USACA counsel's email of 21 April 2017 to ICC General Counsel Iain Higgins, you sought to justify the adoption of a new constitution that was materially different to the one approved by the ICC Board. However:
A. Your counsel's suggestion that the differences are 'minor' is clearly wrong. If they were, the ICC Board would not have rejected them. I have outlined above the reasons why they are so significant. You and your counsel are well aware of those reasons, because they have for the most part been set out in detail in previous correspondence, including in the ICC Chairman's letter to you of 14 February 2017.
B. Your assertion that requiring the USACA board to choose one of the three independent directors to chair the USACA board for the crucial first term contravenes the ICC Constitution is also simply wrong:
B.1 Article 2.9 of the Articles specifically authorises a member's executive body, in this case USACA's board of directors, to appoint nominees 'from outside their members'. The provisions in the ICC approved constitution requiring the USACA board to appoint three independent directors, and to select one of the three independent directors as chairman for the initial three year term, is perfectly consistent with that authorisation.
B.2 This requirement obviously does not put the member's government in charge, or the ICC, as you suggest. In particular, the ICC-approved constitution explicitly states that no one having any professional or personal relationship, directly or indirectly, with the ICC, or who has recently been an employee of or held a governance position with the ICC, may serve as an independent director of USACA. Nor is there any suggestion that the independent directors should have any connection with the US government, let alone any suggestion that the US government could or should have any influence over the administration of USACA moving forward.
B.3 Furthermore it is simply not the case (as you claim) that the independent directors must come from 'outside the cricket community' (although it would be perfectly fine if they did). Rather, the provision on independent directors (in both versions of the constitution) is clear that players, former players, coaches, administrators and others active in the US cricket community may be appointed as independent directors, as long as they do not have any personal or professional relationship with and have not recently been employees of or held governance positions in a US governing or administrative cricket body (so as to avoid perpetuating the conflicts among such bodies that have fractured the US cricket community).
C. It is also not correct that a September transition would result 'in two separate boards of directors running the organization separately'. The ICC-approved constitution is clear that the new board would replace the old one. There is no violation of New York law in that respect, or any other. Contrary to your counsel's suggestion, New York's prohibition on board reduction resulting in shortened terms is not at issue here.
The proposed constitution works a fundamental change in the organisation by its members. It replaces the entire board, and members can provide with or without cause that any or all directors must cease serving. What is more, quite apart from the members' termination power, it was always a condition of reinstatement that there be an election of a new USACA board shortly after the adoption of the new ICC approved constitution, which was always going to be well before March 2018 (when the existing board's term would otherwise come to an end).
D. There also is no justification for having three directors elected by league members and one by individuals, rather than the other way around (as the ICC required). You agree that it is critical to expand USACA’s base beyond its traditional league membership to individuals, but argue that more time would be needed to develop a sufficient base of individual members. However, had the ICC-approved constitution been adopted, and given the dedicated and full time support and resources of ICC’s Project USA team, there was every reason to believe that subscriptions to the new individual membership category would be rapid: the US cricket community sees the benefits of uniting, and has been eager to do so, if the conditions are right. Certainly the numbers in the individual membership category would have very quickly far exceeded the 41 league members who voted (10 in person, 31 by proxy) at USACA's 8 April SGM.
E. In your correspondence on 20 and 21 April 2017, neither you nor your counsel even attempted to justify the other changes made in the constitution adopted at that SGM from the version approved by the ICC Board. Nor could you: to insist on the incumbent board of directors retaining control over the election of the new board, instead of leaving it to ICC Americas and ICC Legal & Audit to oversee that process, is clearly not justified given the sorry history of previous elections to the USACA board; while giving the league members special powers to block changes to the USACA constitution just reinforces the impression that USACA's traditional power base is being favoured and its power and influence perpetuated.
The arguments put forward in your correspondence do not justify the failure to adopt the constitution approved by the ICC. Nor do they provide any meaningful counter to the many factors warranting the proposal to end USACA's membership of the ICC, as set out above.
With the ICC Chairman's consent and support, I will circulate notice of (and the text of) the proposed resolution to
end USACA's membership of the ICC to all ICC members in accordance with, inter alia, Article 6.8(A) of the Articles.
That notice will be accompanied by a paper explaining the reasons why the resolution is being proposed. We will provide you with a copy in advance of its circulation to members. If USACA wishes to provide its own paper to be circulated to members alongside that paper, it should send it to me by 1 June 2017.
The resolution will then be put to the Conference at its meeting on 21 June 2017 at the Oval Cricket Ground in London. Notwithstanding its suspension, USACA is invited to send up to two directors or officers to attend that part of the meeting. They will be given an opportunity to speak in opposition to the proposed resolution (details to be determined, but it will be equal to the period given to those who speak in support of the proposed resolution, e.g., 20 minutes or so).
The proposed resolution will then be put to a vote. In accordance with Article 8(1)(d) of the ICC Memorandum of Association, it will not be carried unless it is supported by at least the requisite majority to carry a Special Resolution, as specified in Clause 8(2) of the ICC’s Memorandum and Article 1 and 6.12(A) of its Articles.
If the proposed resolution is not carried, the Conference will then be asked to decide, again by Special Resolution, whether USACA should continue to be suspended, and if so what conditions should be imposed for reinstatement of USACA’s membership, or else whether USACA should be reinstated with immediate effect. USACA would also be given a fair opportunity to address those issues as well.
You said in your letter of 20 April 2017 that if the ICC Board did not lift the suspension of USACA at its meeting this week, then USACA 'will have no choice but to initiate legal action to protect the US cricket community and its members'. Similarly, USACA counsel said in his email to ICC General Counsel Iain Higgins of 21 April 2017 that if the suspension is not lifted, 'USACA will have no choice but to exercise its legal rights, including instituting litigation, to regain its lawful status and to recover the economic losses the continuing suspension causes'.
As a threshold matter, any legal action at this stage would be (at best) premature. ICC members in Conference have not as yet received or considered the resolution or the supporting paper or any of USACA objections (either in writing or in person), and USACA remains a (suspended) member of the ICC until such resolution is passed by the relevant majority. Presumably USACA will be pressing the ICC members at the June meeting to reject the resolution and reinstate USACA, and unless and until the ICC members decide one way or another, this matter has not been concluded.
In any case, the ICC Board is of the view that the considerations set out above are more than sufficient to warrant not reinstating USACA, and instead strongly support the proposed termination of its membership in the ICC.
Accordingly, there would be no good grounds to challenge any resolution passed by the ICC members to that effect.
If USACA nevertheless chooses to bring such legal challenge, you should be in no doubt that the ICC will defend its position vigorously.
Finally, if by his reference to 'litigation' your attorney is suggesting that any legal challenge might be filed in the courts, you are reminded that USACA is bound, under Article 11 of the ICC Articles of Association and the Terms of Reference of the Dispute Resolution Committee, to submit any such challenge to arbitration before the Dispute Resolution Committee (as USACA did last year when it sought to challenge the original suspension decision). If
USACA ignores this and files suit in court in any event, then the ICC will take the necessary action to enforce this obligation to submit the dispute to arbitration.