In Conversation with Sohail Ali & Gurpreet Duhra on discrimination in cricket and law - E128

In 2020, Azeem Rafiq publicly spoke about the alleged racism faced at him while he played for the Yorkshire Country Cricket Club (YCCC) between 2008-2014 and 2016-2018. Eventually, YCCC launched its own investigation and Rafiq also appeared before a UK Parliamentary Committee to elaborate on his allegations against the club. 

In November 2021, two partners at DLA Piper of South Asian descent sat down to discuss their own personal and professional reflections of the recent Azeem Rafiq testimony, together with practical guidance on how to create inclusive workplaces.

We sat down with Sohail Ali and Gurpreet Duhra to talk through their personal experiences of discrimination in both sport and law in the UK along with their professional experience for both athletes and sports organisations on dealing with discrimination. 

Sohail Ali is a partner at DLA Piper and is also a LawInSport Editorial Board Member. He is a litigation and arbitration lawyer who advises a wide range of corporate clients, including sports bodies and organisations. He's also a steering member of the firm’s race and ethnicity network, Mosaic, and co-leads the firm's client engagement on diversity and inclusion.

Gurpreet Duhra, is also a partner at DLA Piper. His practice includes a broad range of work, including workplace restructuring, senior executive issues, investigations of diversity and inclusion, collective employment issues and employment disputes more broadly. He has experience of protecting businesses against unlawful competition and misuse of confidential information by employees. 

We hope you enjoy the conversation as much as we did, and if you would like to watch the video of our conversation with Sohail and Gurpreet please click here or see below at the end of the transcript.

If you have any related questions or feedback, then please don’t hesitate to contact us. If you would like to write for LawInSport on any particular topics, please do get in contact and email us at This email address is being protected from spambots. You need JavaScript enabled to view it..

Transcript

Sean Cottrell, CEO & Manan Agrawal, Editor

The recent issue surrounding the discrimination faced by Azeem Rafiq at the Yorkshire Cricket Club has made a lot of waves across the sporting world as well as outside. But it's an issue that's close and personal for both of you. Can you explain why? 

Gupreet Duhra: I guess for me, the Azeem Rafiq account was relatable for two key reasons. First of all, I played cricket recreationally when I was young and still play now and I experienced some of the racism that Azeem referred to in his testimony. Whether that's being called the P word, being referred to terms like a ‘curry-muncher’ or being told to go back to my country. These were common occurrences when playing cricket, certainly in my younger days. It was some of those shared experiences that I could relate to, and that's why it was really powerful. 

The second reason why it was so relatable was it was because it was the first time that I've really heard anybody speak out so openly about these issues and it was groundbreaking that it was from someone within the game who played a high professional level. It was raw, unfiltered and authentic. 

Just from a personal perspective, I got used to looking the other way when I was younger, when you had these things being said when you were a minority in the group. You're so desperate to fit in that you don't call out bad behaviour so easily. You really suck it up. 

I think that's ingrained in us often as second-generation immigrants.  Our parents who came to this country as the first generation, who would often say things like, ‘look, you have to accept that in this country you are going to be treated differently because of how you look and where you come from. And to get on in Britain, you have to accept that, keep your head down, work hard and eventually opportunities will come your way.’ Now that may have been a common narrative in the 1990s, but I don’t think it’s acceptable in 2022 and I think really create a level playing field if people like Azeem are prepared to call out prejudice in whatever form it takes. 

Sohail Ali: I echo a lot of what has been said.. My experience growing up was perhaps a little different to Gurpreet’s in the sense that I went to a private school from the age of eight and then I went on and studied at Oxford. I had the benefit of playing cricket at a really good level with first class facilities and county standard pitches, really nice lunches and teas, and grounds with electronic scoreboards. And when I did play club cricket in Yorkshire, it was in the Yorkshire Central League where the standard was also really good and that’s where the Yorkshire players would be picked up from. 

For a long time, I just assumed that’s how cricket was played, and everyone had access to the same facilities. But the discord struck me when I started playing local club cricket for my cousin after I came back from university and he asked me one day to come and play for his local club in the Quaid-i-Azam League. This league was named after the founder of Pakistan and it had been set up by the Asian community in response to the fact that they knew that they were not eligible to play for Yorkshire by playing in the official central league. So, my parents’ generation could never play for Yorkshire. They weren’t born in the county, but also, they felt that they didn’t quite belong. They felt slightly out of place and yet they had a real love and passion for the game. It’s very difficult when you don’t speak English properly to go into that sort of environment. So they decided to do their own thing and created their own league. But naturally, with that, there was a complete lack of funding there. I’d turn up to play for cricket at these grounds, and often there was no changing room. You’d have to go and find some trees to go and get changed behind, or you’d have lunch or tea sat on the pitch itself, or the pitches were uncovered and the grass would be completely overgrown. 

That really opened my eyes having gone through private school, Oxford University and then finding myself playing cricket in these conditions even though the standard was very good. And that’s why I could resonate a lot with what Azeem said in terms of the lack of equity, and the cultural differences that have left a lot of people, especially from ethnic minority communities, feeling quite disenfranchised or ostracised within the game.

To what degree do you think that the cultural aspects of cricket, in the sense that it is meant to be perceived as a gentleman’s game, didn’t really allow there to be any sort of discussion around how bad that situation was? Because if someone on the outside of cricket, listening to Azeem’s account – it was horrific to literally everyone. Well, most of the many people recognised that to be the case. But it was just astonishing to me that even in recent times, that was still tolerated. And I wondered, to what degree you thought the culture of cricket allowed that to happen? 

Gurpreet Duhra: I think it’s a really good point. I guess when you look at the game specifically and you look at how it’s evolved in this country over the last 50 years or so, it has been a game unlike football, for example, which I think is quite inclusive from a sociodemographic perspective because you’ve got all sorts of kids from all sorts of backgrounds you see kicking a ball. Football is just such a natural sport for them to get involved in, and there’s no cost barriers necessarily involved, certainly at the entry level and in the youth ranks. Whereas cricket, I think naturally has been the domain historically of people from higher socioeconomic groups. And often when you look at people who make it in the professional ranks, a disproportionate number of them frankly come from a public school background and come from parts of the country where you have more affluence and parents who are actually pushing their kids and who are prepared to invest that cost to get their kids involved. 

From an outsider’s perspective looking in, I relate to what you say in that it looks as if it’s just a pleasant sport to play, and there’s no undertones that suggest that there’s anything untoward happening behind the scenes. But I think it has always had this image of being quite an exclusive club. Certainly, at an elite level. And that’s why I think it is really difficult for people from different backgrounds when they’re there to feel that they are included and to feel that they are part of that group because their experiences growing up are almost alien compared to the core group that’s already there. Whether that’s the schools they are educated in, whether that’s where they played cricket when they were younger, in terms of the communities they come from. And it’s just very, very different. And I think it’s something that often gets overlooked. 

So now you have this feeling of exclusivity, rather than inclusivity, and therefore when something really does happen, there’s this kind of, ‘I’m definitely not in the position to speak up and say something which makes a similar fix, courage to speak up, even more impressive and admirable? So you think that is the issue, is it? 

Gurpreet Duhra: Absolutely. I think if you look at it from the perspective of, let’s say, a young black cricketer or a young Asian cricketer coming into a dressing room at a club or a county within their academies, for example. If you’re the only black kid or the only Asian kid in that setup of a squad of 15, 20 people, automatically, you know that you’re different because you look different and you might talk different. When you’re in that environment, you’re so desperate to fit in and to conform to what’s expected of you within that group that often you’re quite reluctant to be authentic, actually talk about your differences and talk about your background because you’re concerned about how that will be perceived because nobody wants to be an outsider in a group. 

That’s why when then in the core group, people can be fast and loose with their language; there’s safety in numbers. If that is allowed to happen with the coaching staff there and everybody else there who don’t step in and actually make a positive effort to create an inclusive environment, you can see how outsiders coming into that group are going to feel left out. 

People who are subject to those comments will then often turn the other way because they don’t want to be pushed to one side and they’re keen to progress and get on. I think it’s probably a reflection what happened with Azeem in terms of things get said and he didn’t want to call that out because he was concerned about the ramifications it had for his career and he had nobody in that environment who was actually stepping up and showing leadership to say ‘this is what we expect.’ The ECB’s review of the dressing room culture would be very interesting as this is just one specific point they’re looking into as part of their 10-point plan. It would be interesting to see what comes out of that. 

Sohail Ali: I think you’re absolutely right that historically cricket has been seen as  the preserve of the public school-educated children. I was very lucky and fortunate to have gone to a private school and therefore had the benefit of playing cricket and being coached. But there were lots of city schools in Bradford, for example, where cricket was just not an option. You didn’t play cricket. The main sport was football, for example, whereas in our school, football wasn’t played, it was rugby and cricket. And that just demonstrated the divide between public and local schools. 

The other thing that I noticed also when I was growing up was that I benefited hugely from coaching in cricket. And what that meant was I at least looked like a “proper” player. People used to describe me as Mike Atherton in the way that I batted (probably for the way I left the ball and couldn’t get the ball of the square!). But there were other cricketers from Asian backgrounds who had learnt to play cricket on the streets. The image that I remember going through inner city Bradford in those days was kids getting milk crates and putting them on top of each other, and those were your stumps and learning to play cricket on the cobbled streets. 

And a lot of those kids were far more talented than I was or even other kids who were getting picked up by Yorkshire, but they didn’t look like “proper” cricketers because they hadn’t been coached to bat or bowl in a certain way. Their action wasn’t as smooth as it might have been. And all these types of issues made it even more difficult for them, and it led to quite a lot of talent. But I think the direction of travel in recent years has got better for various reasons. And I’m confident that with funding in the game now, especially through TV and commercial rights, the game it is benefitting as a whole and becoming a lot more accessible. 

Previously in the IPL, there was an issue where Darren Sammy, who was the West Indies captain as well, had highlighted that he had been called a derogatory term by his teammates in the IPL, but didn’t know that that term actually carried racist connotations. He thought it was just banter. Where does the line actually lie between banter and abuse, and how do you educate players about the same? 

Gurpreet Duhra: I think this is one of the hardest things for all organisations, whether sports teams, clubs or people across all sectors to try and get right, and particularly to police properly. What terms and language are acceptable can be very fluid, and different cultures have different views on this, too. 

In my experience as an employment lawyer in 20 years of handling employment litigation, not once has the defence of banter succeeded before a judge in an employment tribunal. So legally, banter is not a defence. I think it comes down to education. I always encourage clients to train their staff on unacceptable language and to think about having an inclusive language guide that’s bespoke for their organisation that everybody endorses and is clear on. Fundamentally, it’s really about getting to know the people that you work with, your colleagues and your teammates. What is their background? What are their beliefs and values and what’s socially acceptable to them? By doing that and investing that time and getting to know people who are different to you and come from different backgrounds, you’re less likely to make offensive comments in the first place. And if you do, then your colleagues are probably going to be more forgiving to you if you’ve taken the time to get to know them because people do make mistakes and that’s human nature. And again, I tend to the ECB’s review on dressing room culture because I think that’s where a lot of these problems surface, and it will be interesting to see what recommendations come out of that. 

To what extent do you think these independent investigations and then reports are effective? In this case also, there was an independent report that was carried out and we’ve got ongoing ones at the moment. Are they really as impactful as they could or should be? 

Gurpreet Duhra: I think they can only be truly impactful, if actually there’s investment in the implementation and a commitment to the implementation of whatever recommendations come out of these reports. Clearly, it’s important that you get to the root of the issues and to do that properly, you need skilled investigators who are impartial, can examine the evidence in a balanced way and provide thoughtful conclusions from a wide body of evidence. But in the end, they’re just words on a page. And what you really need to do to take the next step with any kind of investigation process or report is actually think practically about ‘how can we ingrain this within the clubs that this applies to’?  It’s not just directing people and saying, ‘look, there’s a report, you need to go and read it.’ What you need to do is bring it to life practically and actually have that investment in educating people through training programmes, through awareness raising and check people's understanding. Then you take that away for your organisation and bespoke that to what works best for you. 

Sohail Ali: Independent investigations have a really important role and place. What's really important is not only that the allegations are being properly investigated but they are seen to be being properly investigated. There cannot be any perception of bias or  affiliation to any of the parties. 

Speaking as a litigator it’s vital to ensure the process is fair and impartial so as to give credibility to the findings and recommendations.  I'd never put an expert into a witness box who I thought could be tainted in some way or his credibility could be attacked in cross examination. So when we appoint independent experts on our litigation matters, we look carefully through their CV. We try to make sure that the individual we’re putting forward is both genuinely and optically independent. 

With an investigation panel, it's really important to give really careful consideration to the selection. So:

• Who's appointing them? 
• What's their expertise? 
• Is there a balance in the skill set, in terms of gender and diversity etc.
• Crucially, will that panel be given full and unfettered access to information and cooperation? Or are they going to be given a limited amount of information? 

If done properly, these independent investigation panels can be really effective, particularly in identifying and then seeking to resolve systemic issues within organisations, which an organisation may otherwise be completely oblivious to or reluctant to address. 

Do you think this entire issue basically serves as a wakeup call for sporting organisations (and workplaces generally) to be creating more of an inclusive environment and culture as one of their main focus points? And if they don't focus on this, what do they really stand to lose now? 

Sohail Ali: Yes, absolutely. I think it is definitely a wake up call. We saw from the whistle blowing hotline after the Azeem Rafiq case in cricket, thousands of people came forward to report issues of racism. There's a real spotlight on this issue now.. 

Azeem is being seen and touted as a bit of a trailblazer, someone who's made it easier for others to speak out. Previously people may have thought these things but not necessarily have expressed them. Azeem has made it easier for people to come out and speak openly about these  issues. That is a warning shot for organisations that these issues are not simply going to go away.  People now feel empowered to speak out. 

More generally, there's a huge emphasis on ESG (environmental, social & corporate governance) at the moment and in particular, on the ‘S in the ESG, relating to social issues.. A failure to address social issues within organisations naturally brings litigation rand reputational risk for organisations.. 

This is not an issue that's specific to cricket. It affects a whole range of other sports. Football, we know, has a particular problem with racism. We saw that at the Euros and particularly after England’s defeat in the final. But even across other sports for example, golf and tennis, you can almost see that there’s a problem of elitism and lack of social mobility. If the Azeem Rafiq saga has taught us anything, it is the importance for organisations of being proactive in tackling racism and social mobility issues in sport rather than being reactive.  I think all sporting bodies and organisations should therefore use this as opportunity to undertake a thorough and critical review into workplace culture, accessibility etc.

What are the ideal steps that any organisation or a sporting organisation should take if they've received a complaint of discriminatory abuse from a member of that organisation? 

Gurpreet Duhra: I think there's a few critical steps to keep in mind at the outset when any organisation does receive a discriminatory complaint. 

The first thing is - Take it seriously. It's important that you recognise it for what it is. That doesn't mean you jump to any conclusions, of course, but you recognise and appreciate that somebody's making a complaint of discrimination on grounds of race or sex or another characteristic is a serious issue, and you need to give it the time and attention it deserves. 

Have a clear policy and a roadmap in place for dealing with complaints. Hopefully, you should already have an existing policy so everybody knows what the protocol is for dealing with it, and you're not making it up as you as you go along. But even if you don't have a clear policy in place for dealing with a complaint like that, then spend some time at the beginning working out exactly what the process should be, what the scope of the investigation should be, who should be appointed to investigate the complaint –whether you handle it in-house or externally. You need to ensure the person who's appointed has the requisite skills, independence and credibility to do that. 

Think about how you are going to approach this in terms of what's the main purpose of this – it’s to get to the bottom of the facts. And we, as lawyers, see this a lot in our practice, whereby when organisations face these complaints, often the default reaction is to get into legal defence mode, thinking about things like, ‘well, what liability does this create for us, potentially? Are we going to be sued for damages? Are we going to have to pay out compensation? How much of this can we keep under wraps in terms of confidentiality? How open can we be in our communications because we've got to think about legal privilege and who gets access to what information?’ And often you are distracted by all of these issues and lose sight of the fact that the most important thing here is to get to the bottom of the facts and understand very quickly what's happened, what's been done or not done - so you know what's in front of you, and you can take the appropriate action to address it. 

That's really, really important because frankly, if you don't get that bit right and you get distracted by all these other things, then the reputational impact of that can be potentially catastrophic where if you're not perceived to be dealing with it properly. If you're inward looking, focusing on how this may look for you internally and what ramifications it has for the people involved, actually you're going to do much more harm to the institution as a whole by taking that approach, potentially because the brand and reputational damage that you may suffer from that is something that can be very difficult to recover from. 

Are there any examples of organisations that have done a really good job with addressing the points that you’ve raised and having good policies, procedures, a really inclusive culture? 

Gurpreet Duhra: It's probably hard to comment on specific examples there because often the best investigations are the ones that you don't hear about. They’re the ones where you're focusing on the facts and you avoid all of that outside noise. 

Outside of strictly the investigation process, looking at a broader approach to D&I (diversity & inclusion), the organisations that tend to do this best are the ones that make diversity and inclusion a strategic priority and have leadership teams that take a genuine interest in it and embrace it, not just because of the benefits it brings. There's lots of hard data now on the benefits of having diverse and inclusive workforces in terms of the performance benefits it gives you. In a sporting context, for example, if you scout talent in a more diverse way rather than through traditional channels such as the academy system, then you're more likely to spot and recruit hidden talent and get a competitive edge. 

I think also it's important that leadership teams embrace this wholeheartedly as well, not just because of the performance benefits and the business benefits of it, but actually believing wholeheartedly that it is the right thing to do as a responsible and progressive organisation. 

Sohail Ali: I'm a Liverpool football fan, and I follow the club very closely. When a leader like Jurgen Klopp, who is really highly regarded leads from the front, talks up the importance and value of diversity within the  club and his dressing room it sends a very strong message. It also has wider societal benefits in terms of integration and cohesion. There was a study produced by Stanford University in the USA that found that since Mo Salah signed for Liverpool there had been an 18.9% drop in the number of hate crimes in the Merseyside area, and the number of anti-Muslim tweets posted by the club’s supporters had “halved”.  

I remember ahead of the Champions League final in 2018, questions were asked as to whether Mohamed Salah would be fasting and whether he would be asked not to so as not to impact on his performance.  Jurgen Klopp was very clear and said it would be entirely Mo Salah’s choice and it was not for him or the club to tell him what to do – he was free to practice his beliefs as he deemed appropriate. That was again a really positive display of a leading and influential figure promoting and respecting his employee’s individual intrinsic values and beliefs. So great leadership is a great way to set the right tone. 

A lot of organisations have got all the policies and procedures in place, but as you were saying, it wasn't a really heartfelt embracing of those policies or implementation of those policies and procedures. Is that something you see as well, where people get fixated on, ‘we need to get the policy in place,’ but really not embracing the underlying purpose of that policy?

Gurpreet Duhra: Yeah, absolutely. Policies and procedures only get you so far, to be honest. In our experience, what's more important is how you bring those words on the page to life and how you can ingrain that within your organization. Actually having a diverse and inclusive outlook is something that needs to be pervasive across your whole organisation to get this right and truly move the dial in this area. It's something that has to feed into your recruitment processes, operationally reward leadership –there has to be a D&I element to all of those things in order to actually be best in class in this space. 

Just in my experience, with D&I initiatives, there's a lot of focus on recruitment and getting a more diverse group of people into the organisation. And that's great. But I often that's to the detriment of thinking about what their lived experience is when they come into the organisation. And you can see that in some sectors where attrition levels are quite high amongst underrepresented groups, because it's all well and good saying we want to achieve whatever percentage of people from underrepresented groups or whatever percentage of women in leadership positions, whatever it may be. But if you just focus on that, and getting people through the door without thinking about the wider culture and what it's like for them when they're there to make sure that it's not an alien environment, to make sure that their needs are catered for and to make sure that they feel comfortable and can perform at the highest possible level. If you don't get that bit right, then actually all your efforts around recruitment are all really undermined, in our experience.

You both are now leading lawyers in your respective sectors. So now, how do you look back on the discrimination that you faced earlier in your life? And do you think things are now beginning to change?

Sohail Ali: Unfortunately, I don't get the chance to play as much cricket as I would like to. It’s the odd game here and there these days.. But my sense is, things are better than they were, particularly since the 80s and 90s. I think undeniably there is still a long way to go for the game, as shown by recent experiences of Azeem Rafiq and others but we’re moving in the right direction

There's more funding available these days to help people from underprivileged backgrounds to play the game. The same funding was not available 20, 30 years ago. 

I think it helps that most sports organisations now also have dedicated D&I teams -so they understand the issues better and are committed to creating more inclusive cultures. Times have also changed.  When my parents, for example, came to this country in the 1970s, they spoke limited English. Naturally, the culture was totally alien to them. The younger generations don’t necessarily have the same issues as our predecessors. They are second or third generation immigrants – they were born and raised in the UK – they speak English as their first language., Naturally that makes it a lot easier for them to go into a dressing room and fit in, to join in the banter than the earlier generations.  

Gurpreet Duhra: Sport is often a reflection of society and clearly we have made lots of progress, certainly since when Sohail and I were kids a very long time ago. What's refreshing is that there is a move towards understanding that actually – celebrate the fact that you are different and from a different background, rather than that being something to be embarrassed about or to hide or suppress. I've certainly seen how that can be a force for good, certainly. 

We can even look at our sector in the legal profession where historically it's been, certainly within a commercial law setting, it's been quite elitist, it's been the domain of white males and it's got that stuffy, elitist culture. When I look at my journey of the last 20 years from when I started in the firm to now, I think that nowadays we encourage all of our young graduates coming through the system to come and be their authentic selves at work, celebrate their differences, talk about their backgrounds, and it's been heartening to see that our peers now are welcoming that and having ally networks in place is something that is really important to bring that to the fore. 

What degree do you think law or lawyers work in the sport sector could learn from some of these cases? 

Gurpreet Duhra: I think it's a very good point and lawyers, and I speak in very generic terms, are not great at actually breaking things down in a way that people can truly understand and give it practical application clearly. Things like legal contracts, you need to be very precise in your wording and legalistic because they're the things that get pulled over by judges and lawyers for the benefit of hindsight. So it's really important that you get it right in those contracts. But when you start talking about things like guidance, policies, things that sporting organisations need to take away, share with their members, particularly members where English is not their first language, they need to be given the tools to actually understand at a basic level what's expected of them in terms of their behaviour, their conduct, and performance, and I think that we are probably missing a trick as far as that's concerned. 

Sohail Ali: I think there is a need for the profession generally to remove that impression of stuffiness and to remove the impression that people and lawyers need to look a certain way or speak a certain way. What we're finding is our clients are also demanding us to be much more commercial and practical. 

My view is if lawyers don't move with the times, they'll get left behind -there will be other innovative lawyers who will come along and fill the void which clients are yearning for. One On a personal note, when I was promoted to Partner recently, a lot of people on social media, LinkedIn and various other platforms approached me, and one of the things I was really touched by was the fact that they said that ‘you sound like me, you seem normal. You've come from a very similar background to me, and that's very inspiring.’  I think it’s really important to have role models and for people to visualize success. 

This will go a long way towards making the profession more accessible, therefore by default diverse. Once you do that you naturally start to reflect and represent society more fairly.   

If you are interested in further reading/listening on this topic, please see the resources below: 

• Sohail and Gurpreet’s discussion on the Azeem Rafiq issue and their own personal experiences
• The Azeem Rafiq Case: How Sports Can Better Tackle Player Discrimination
• Tackling Discrimination In Football: Are Existing Regulations Sufficient To Combat Social Media Abuse?
• LawInSport’s Football Law Conference 2021: Discrimination: How Are Football Regulations Evolving To Deal With Racism?

This interview was transcribed with the assistance of William Quaranta who is an extern at LawInSport and a student at Notre Dame Law School.

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