Pakistan Cricket Board (PCB), Umar Akmal v. Anti-Corruption Tribunal, Independent Adjudicator on the Appeals, Pakistan Cricket Board (PCB), Umar Akmal

Arbitrations CAS 2020/A/7358 Pakistan Cricket Board (PCB) v. Umar Akmal & CAS 2020/A/7366 Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

Panel: Mr James Drake QC (United Kingdom), Sole Arbitrator

Cricket Corruption Standard of proof

The standard of proof required under the PCB Anti-Corruption Code is that an offence must be proved to the “comfortable satisfaction” of the tribunal, being greater than on the balance of probabilities but less than proof beyond reasonable doubt.

I. INTRODUCTION

1. As the case caption suggests, there are two sets of proceedings on appeal, CAS/2020/A/7358 (the “First Appeal”) and CAS/2020/A/7366 (the “Second Appeal”). In the circumstances described below, these proceedings have been consolidated with the result that there will be just the one award.

II. THE PARTIES

2. Mr Umar Akmal (“Mr Akmal”) is an international cricketer representing Pakistan in Test cricket and in limited over cricket (both 50 and 20 over forms of the game). He has also played in various domestic limited over tournaments, in and out of Pakistan. He is 30 years old.

3. Mr Akmal is the Respondent in the First Appeal and the Appellant in the Second Appeal.

4. The Appellant in the First Appeal and the First Respondent in the Second Appeal is the Pakistan Cricket Board (the “PCB”). The PCB is the governing body for the game of cricket in Pakistan, with exclusive authority for the regulation, administration, management, and promotion of cricket in Pakistan.

5. The Second Respondent in the Second Appeal is the Independent Adjudicator on the Appeals, Mr Justice (Retired) Faqir Muhammad Khokhar (the “Second Respondent” or “Independent Adjudicator”).

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

6. The Third Respondent in the Second Appeal is the Anti-Corruption Tribunal (the “Third Respondent” or the “Anti-Corruption Tribunal”). The Anti-Corruption Tribunal was composed (in this instance) of Mr Justice (Retired) Fazal-E-Miran Chauhan.

7. In this award, collective references to the “Respondents” shall mean the three Respondents in the Second Appeal, namely the PCB, the Independent Adjudicator, and the Anti- Corruption Tribunal.

III. THE FACTUAL BACKGROUND

8. Mr Akmal played cricket in the PCB’s domestic competition, the 2019 Quaid-E-Azam Trophy. He played for Central Punjab, which team played in, and won, the final, which was played from 27-31 December 2019.

9. Mr Akmal was also a member of the squad for the Quetta Gladiators for the 2020 season of the PSL. The first game of the season was in Karachi against Islamabad United on 20 February 2020. Mr Akmal was in Karachi at that time, staying with the squad at the Mövenpick Hotel.

10. At 12.30 am on 20 February 2020 (ie, half-past midnight), Mr Akmal was summoned to a meeting with representatives of the VSD (a division of the PCB Anti-Corruption Unit) in a meeting room in the hotel. The meeting took place in Urdu. It was video-recorded and that video-recording is an exhibit in these appeals. An English transcript has also been provided (the Sole Arbitrator does not speak Urdu). In the interview, Mr Akmal was asked whether he had anything to report to the VSD. He said he did not, but when pressed he gave particulars of two matters. Because the PCB relies on what Mr Akmal said and did not say during the course of this interview it will be necessary to return to the conversation in some detail.

11. Following the meeting, by letter to Mr Akmal dated 20 February 2020 (ie the same day), citing the two matters disclosed by Mr Akmal in the interview, the PCB suspended Mr Akmal on a provisional basis “with immediate effect pending the Ant-Corruption Tribunal’s determination of whether you have committed an offence under the Code”.

12. On 17 March 2020, the PCB issued a “Notice of Disciplinary Charges Being Brought Against You for Breaches of the PCB Anti-Corruption Code” (the “Notice of Charge”) by which the PCB gave notice to Mr Akmal that he was charged with two offences under Article 2.4.4 of the PCB Anti-Corruption Code (set out above). It will be necessary to return to the Notice of Charge in some detail below.

13. The Notice of Charge called for a formal response within 14 days. Mr Akmal responded by letter dated 22 March 2020 (“Mr Akmal’s Reply”). In that letter, Mr Akmal said (inter alia) that he did “not understand the basis” of Charge No.1, and asked for it to be “dismissed with immediate effect”. As to Charge No.2, Mr Akmal sought to explain the position and, among other

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

things, asked for “a compassionate view of the practical implications is taken here”. Once again, it will be necessary to address what was said in Mr Akmal’s Reply in some detail.

14. While Mr Akmal did respond to the Notice of Charge, he did not, in terms, request a hearing before the Anti-Corruption Tribunal (as is provided for in the PCB Anti-Corruption Code). In those circumstances, Article 4.8 of the PCB Anti-Corruption Code provides that the Participant is deemed: (a) to have waived their entitlement to a hearing; (b) to have admitted the offences set forth in the Notice of Charge; and (c) acceded to the range of sanctions outlined in the Notice of Charge.

A. The Decision of the Anti-Corruption Tribunal

15. In the event, however, the Chairman of the Anti-Corruption Tribunal did hold a hearing, and did so out of his (stated) concern that that he regarded it proper to do so “in the interest of justice … and keeping in view Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973”. (That provision of Pakistan’s Constitution provides that “For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process”.) The hearing was attended by both Mr Akmal (in person and unrepresented) and the PCB (by Mr Tuffazal Haider Rizvi, Advocate; Mr Haider Ali Khan, Advocate; and Mr Daniyal Imam, Assistant Manager, Legal, PCB). It is not clear when the hearing took place but what is called the ‘judgment’ is dated 27 April 2020. The Chairman of the Anti-Corruption Tribunal found the charges proven and imposed a sanction in respect of each charge of a period of ineligibility of three years, with the periods to run concurrently from 20 February 2020.

B. The Decision of the Independent Adjudicator

16. Mr Akmal appealed against that decision. As he was entitled to do pursuant to Article 7 of the PCB Anti-Corruption Code (and also the PCB Constitution), Mr Akmal appealed to the Independent Adjudicator. The appeal was heard on 13 July 2020. Mr Akmal was this time represented by counsel, Mr Shabbir Ahmad Lali, Ms Tayyab H Rizvi, Mr Assad Buttar, and Mr Khawaja Ayaz; and the PCB was represented by the same legal representatives that appeared before the Chairman of the Anti-Corruption Tribunal.

17. The Independent Adjudicator issued his decision on 29 July 2020. By the decision, the Independent Adjudicator reduced the sanction in respect of each count to one year and six months, to be served concurrently from 20 February 2020. The decision was released to the parties and was received by the PCB on 29 July 2020 and by Mr Akmal on 30 July 2020.

18. It is this decision that both Mr Akmal and the PCB appeal against to the Court of Arbitration for Sport.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

IV. THE PROCEEDINGS BEFORE THE CAS

19. As noted, there are two appeals here.

20. The procedural history of the First Appeal is as follows:

a. The PCB filed its Statement of Appeal on 13 August 2020 against Mr Akmal with the Court of Arbitration for Sport (the “CAS”) in accordance with Article R47 et seq. of the Code of Sports-related Arbitration (the “CAS Code”). In its statement of appeal, the PCB requested that this procedure be referred to a Sole Arbitrator.

b. The PCB filed its Appeal Brief on 27 August 2020 in accordance with Article R51 of the CAS Code.

c. Mr Akmal filed his Answer on 28 September 2020 in accordance with Article R55 of the CAS Code.

d. The PCB and Mr Akmal agreed and sign an Order of Procedure dated 20 November 2020.

21. The procedural history of the Second Appeal is as follows:

a. Mr Akmal filed his Statement of Appeal and his Appeal Brief on 18 August 2020 against the PCB and The Independent Adjudicator and The Anti-Corruption Tribunal with the CAS in accordance with Article R47 et seq. of the CAS Code. In his statement of appeal, Mr Akmal requested that this procedure be referred to a Sole Arbitrator (suggesting Mr Reto Annen) and filed a request for provisional measures.

b. The PCB filed its Answer on 22 September 2020 in accordance with Article R55 of the CAS Code.

c. The Second and Third Respondents did not file an Answer (or otherwise respond) and took no part at all in the proceedings.

d. The President of the Appeals Arbitration Division denied Mr Akmal’s request for provisional relief on 12 October 2020.

e. Mr Akmal and the PCB agreed and sign an Order of Procedure dated 20 November 2020.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

22. In respect of both appeals:

a. On 5 October 2020, the CAS asked the parties to inform the CAS as to “whether they prefer a hearing to be held in this matter or for the Sole Arbitrator to issue an award based solely on the parties’ submissions”.

b. On 9 October 2020, the PCB informed the CAS that “since the Appeal pertains solely to the determination of two points of law; there is no factual dispute involved; and all material related to the appeal is already on record, the Sole Arbitrator may decide the appeal without holding any hearing and on the basis of the Parties’ written submissions”.

c. On 14 October 2020, the CAS informed the parties that Mr James Drake Q.C., Barrister, London, United Kingdom had been appointed Sole Arbitrator in both cases in accordance with Article R54 of the CAS Code.

d. On 17 October 2020, Mr Akmal informed the CAS that “we would prefer a public hearing of the averments raised in both statements of appeal”.

e. On 20 October 2020, the CAS informed the parties that the Sole Arbitrator “considers that there should be an oral hearing of these appeals. In accordance with Article R57 of the CA S code, these hearings shall take place in camera unless one of the parties requests a public hearing and it is noted that Mr Akmal does make such a request. In light, however, of the current pandemic and related travel restrictions in Switzerland and beyond, the parties are advised that it will not be possible to conduct an in-person hearing in the usual way such that the hearing of these appeals will take place virtually. … In light of this, Mr Akmal is invited to state by 23 October 2020 whether he maintains his request for a public hearing”.

f. On 3 November 2020, Mr Akmal (by his representatives) informed the CAS that “I have observed the ongoing current situation regarding pandemic COVID-19 so in order to move on I am ready to argue the above titled case and my availability will be on any of the dates suitable to the Pakistan Cricket Board”.

g. A hearing took place in respect of both appeals on 1 December 2020, conducted remotely by video-link. The Sole Arbitrator was assisted by Mr Brent J. Nowicki, Managing Counsel, CAS, and joined by video-link by the following legal counsel or party representatives.

i. Mr Akmal, who attended the hearing alongside his counsel, was represented by Mr Khawaja Umaiz.

ii. The PCB was represented by Mr Taffazul Haider Rizvi and Mr Haider Ali Khan, Advocates, and by Mr Salman Naseer, COO for the PCB, Ms Areeba

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

Khalil, Senior Manager Legal Affairs, and Mr Daniel Imam, Assistant Manager Legal Affairs.

h. The Second and Third Respondents did not appear and were not represented.

i. During the course of the hearing, the following things were agreed as to the conduct of the proceedings: (a) Mr Akmal agreed that he would forego his claims against the Second and Third Respondents and that he was content that the PCB remain as the single respondent in his appeal; and (b) the PCB and Mr Akmal agreed that the two appeals should be consolidated and that one award should be rendered.

23. At the conclusion of the hearing, each of the parties confirmed that: (a) they had no objection to the appointment of the Sole Arbitrator; (b) they had no objection to the Sole Arbitrator proceeding to decide this dispute; (c) they had no objection to the jurisdiction of CAS in this dispute; and (d) their right to be heard had been fully and fairly respected.

V. THE SUBMISSIONS OF THE PARTIES ON THE APPEAL

24. Both the PCB and Mr Akmal appeal from the decision of the Independent Adjudicator. On the face of his appeal, Mr Akmal also appeared to appeal the judgment of the Anti-Corruption Tribunal but, during the course of the hearing, Mr Akmal, by his counsel, accepted that his appeal to CAS lay solely against the decision of the Independent Adjudicator and that neither CAS nor the Sole Arbitrator enjoyed any jurisdiction to hear an appeal from the Anti- Corruption Tribunal. Accordingly, any complaints on the part of Mr Akmal in respect of the judgment of the Anti-Corruption Tribunal can be set to one side.

A. The PCB’s Submissions and Requests for Relief

25. In its appeal, the PCB appeals against the decision of the Independent Adjudicator. There are five grounds of appeal, as follows.

a. The Independent Adjudicator concluded that the two charges were “proved to the hilt” and yet he reduced the sanctions. “It should be noted the sentence awarded by the Chairman of the Disciplinary Panel in the first instance could only be reduced if the mitigating factors as enumerated under Article 6.1.2 of the Anti-Corruption Code which prima face remained non-existent throughout. Whereas, to the contrary, various aggravating factors as outlined under Article 6.1.2 of the Anti-Corruption Code were attracted. Hence, the reduction in periods of ineligibility of [Mr Akmal] as decided by the Independent Adjudicator on ‘compassionate grounds’ deserves to be set aside”.

b. “The Independent Adjudicator while imposing the sanctions under the Anti-Corruption Code arbitrarily and capriciously reduced the periods of ineligibility prima facie on the basis of

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

compassion. Moreover, for multiple and distinct offences having no nexus with each other, the Independent Adjudicator misdirected himself by ordering for the periods of ineligibility to run concurrently, instead of cumulatively as enumerated in the Anti-Corruption Code”.

c. In holding that the periods of ineligibility were to run concurrently, instead of cumulatively, acted “against the spirit of the Anti-Corruption Code”. The Anti-Corruption Code provides, by Article 6.3.2, that multiple periods of ineligibility shall run concurrently and not cumulatively “only where the Participant has been found guilty of two offences in relation to the same incident or set of facts”. These offences alleged against Mr Akmal were separate and distinct offences.

d. By reducing the periods of ineligibility, the Independent Adjudicator “acted ultra vires of the Anti-Corruption Code and exercised powers which he never possessed in the first place”.

e. The Independent Adjudicator has treated Mr Akmal’s conduct “as merely a peccadillo or aberration whereas … [Mr Akmal] is culpable and deserves to be dealt with within the demesne of the Anti-Corruption Code and … the reduction in the periods of ineligibility merits to be set aside”.

26. It is on those grounds that the PCB requests the following relief:

i. the reduction in the periods of ineligibility as determined by the Independent Adjudicator be declared ultra vires and be set aside.

ii. the mandatory provisions of the Anti-Corruption Code be applied and it be ordered that the periods of ineligibility for each breach of Article 2.4.4 of the Anti-Corruption Code committed by the Respondent shall run concurrently.

iii. the costs of the proceedings be awarded to the Pakistan Cricket Board.

27. The PCB seeks the same relief qua Respondent in the Second Appeal.

B. Mr Akmal’s Submissions and Requests for Relief

28. As the Appellant in the Second Appeal, Mr Akmal also appeals against the decision of the Independent Adjudicator. There are 21 grounds of appeal, as follows.

a. The Independent Adjudicator and the Anti-Corruption Tribunal made their respective orders “in a hasty manner overlooking the grounds in defence raised by the Appellant and without provision of reasonable hearing to the Appellant hence the … orders are not sustainable and … are liable to be set aside”.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

b. Mr Akmal “was not even provided an opportunity to hire counsel who could have presented the stance of the Appellant”.

c. On 10 February 2020, Mr Akmal approached the Chairman and CEO of the PCB “to apprise them of the approaches made to him in relation to match fixing in the [PSL]. However, their respective secretaries failed to arrange a meeting …”. The Anti-Corruption Tribunal failed to “take heed” of this and the Independent Adjudicator failed “to remedy this defect”.

d. Mr Akmal “directly approached” the CEO and Chairman of the PCB because the circumstances surrounding Count No.2 concerned a “personal family matter” and Mr Akmal wished to avoid any leak to the media.

e. The PCB was required to prove three “constituent ingredients” in respect of each alleged offence: (i) “receipt of invitations/ approaches by the Participant Akmal, (ii) failure of the Participant to disclose to the PCB such approaches and (iii) unnecessary delay. Instead, the [Independent Adjudicator] solely focused on the audio message of the Appellant”.

f. The Independent Adjudicator “failed to consider the legal points agitated by the Appellant”.

g. The Independent Adjudicator was obliged to decide the matter on the balance of probabilities but instead “decided on the basis of so called confession of the Appellant recorded by way of an audio message without ascertaining its veracity and authenticity”.

h. The proceedings before the Anti-Corruption Tribunal and the Independent Adjudicator “suffered from material irregularities”.

i. The orders made by the Anti-Corruption Tribunal and the Independent Adjudicator are “discriminatory”. Other players, namely Muhammad Irfan and Muhammad Nawaz, were awarded lower sanctions in respect of the same offences.

j. The PCB bears a “grudge” against the Appellant, evidenced by the failure to return his mobile telephones despite the fact that the proceedings before the Anti- Corruption Tribunal and the Independent Adjudicator have been concluded.

k. The PCB “even went on tampering and misusing the personal family related information of the Appellant even removing him out of his personal WhatsApp family groups”.

l. “Nothing is borne from the record regarding any commitment, undertaking struck by the Appellant in lieu of financial bargain on any occasion”. Despite this, the Independent Adjudicator maintained the finding of the Anti-Corruption Tribunal

m. The PCB produced no “record in relation to any approach made to the Appellant by the bookies nor was any transaction ever produced before [the Independent Adjudicator] by [the PCB].

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

Furthermore, no kind of nexus was proved between the Appellant and the alleged bookies for unlawful gain”.

n. The PCB had “no information or proof against the Appellant, instead it was the Appellant’s own information which was made the basis of his own conviction by [the Independent Adjudicator]”.

o. “No independent witness or evidence was produced against the Appellant during the proceedings before [the Independent Adjudicator]”.

p. “During the two approaches made to the Appellant, his conduct remained clean as he instantly left the venue on sensing foul play on behalf of the alleged bookies”.

q. The charges against Mr Akmal are “absolutely vexatious” and are based on “uncorroborated assumptions and presumptions”.

r. “No legal or criminal proceedings were ever initiated against the bookies that had approached the Appellant …. This shows that the Appellant has been singled out”.

s. The Anti-Corruption Tribunal and the Independent Adjudicator have made their respective orders “in a slipshod manner, overlooking the material on record, hence warranting interference of this Honorable Court”.

t. The sentence imposed on Mr Akmal is “extremely harsh which shall deprive him of his sole livelihood and shall result in ruining his [sic] rest of the [sic] cricketing career”.

u. If the appeal is not allowed and the sanction imposed by the Independent Adjudicator set aside, Mr Akmal “shall suffer an irreparable loss and injury”.

29. As the Appellant in the Second Appeal, Mr Akmal seeks the following relief:

I. Set aside the Order dated 27-04-2020 passed by the Respondent No. 3 whereby the Appellant was declared ineligible for a period of three years and the Order dated 29-07-2020 passed by the Respondent No. 2 whereby the appeal of the Appellant was only partially allowed and the Ban on the Appellant was reduced to 1.5 years,

II. Directed the Respondent No. 1 to return the two mobile phones model IPhone 8 Plus to the Appellant illegally confiscated from the Appellant and which have now been illegally detained by the Respondent No. 1 and

III. Additionally award the costs of the Instant Appeal.

Any other relief which this Honorable Court may deem fit and appropriate in the circumstance of the case may also be allowed.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

30. Mr Akmal requests the same relief as the Respondent in the First Appeal (save for the order in respect of his telephones, which is not repeated).

31. It is to be noted that, at the hearing, there were two important changes to this requested relief.

a. First, as noted above it was accepted by Mr Akmal that his appeal was against the decision of the Independent Adjudicator and that the Sole Arbitrator did not have jurisdiction to grant any relief in respect of the judgment of the Anti-Corruption Tribunal.

b. Second, Mr Akmal made oral application for compensation in respect of the period that he has been kept out of cricket by reason of the imposition of the periods of ineligibility. It was said that such relief was open to the Sole Arbitrator under the catch-all request for ‘any other relief deemed fit and appropriate’.

c. On the above basis, the Parties agreed to consolidate these two appeals and for the Sole Arbitrator to issue one award.

VI. JURISDICTION

32. It is common ground between the PCB and Mr Akmal that the CAS has jurisdiction in respect of this appeal. That jurisdiction derives from the CAS Code and the PCB Anti-Corruption Code in the following way.

33. Article R27 of the CAS Code provides as follows:

“These Procedural Rules apply whenever the parties have agreed to refer a sports-related dispute to CAS. Such reference may arise out of an arbitration clause contained in a contract or regulations or by reason of a later arbitration agreement (ordinary arbitration proceedings) or may involve an appeal against a decision rendered by a federation or sports-related body where the statutes or regulations of such bodies, or a specific agreement provide for an appeal to CAS (appeal arbitration proceedings)”.

34. Pursuant to Article R47 of the CAS Code:

“[a]n appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body”.

35. In turn, the PCB Anti-Corruption Code provides, by Article 7.5.4, that “An appeal against the decision of the Independent Adjudicator shall lie exclusively before the CAS”.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

36. The jurisdiction of CAS is further confirmed by the Orders of Procedure duly signed by the Parties.

37. It follows that CAS has jurisdiction to decide the present appeal.

VII. ADMISSIBILITY OF THE APPEAL

38. Article R49 of the CAS Code provides in part as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against…”.

39. The PCB Anti-Corruption Code does not impose a time limit on appeals to the CAS.

40. It, therefore, follows that the applicable time limit for each of these appeals is 21 days from the date of receipt of the decision of the Independent Adjudicator.

41. The timetable was as follows:

a. The Independent Adjudicator issued his decision on 29 July 2020. It was received by the PCB the same date and by Mr Akmal the following date.

b. The PCB filed its Statement of Appeal in the First Appeal on 13 August 2020.

c. Mr Akmal filed his Statement of Appeal in the Second Appeal on 18 August 2020.

42. The 21-day period thus expired for the PCB on 19 August 2020 and for Mr Akmal on 20 August 2020. It follows, therefore, that both appeals are in time and admissible.

43. This too is understood to be common ground.

VIII. APPLICABLE LAW

44. Article R58 of the CAS Code provides as follows: “R58 … The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

45. This is underscored by Article 187 of the Swiss Private International Law Act, which provides that “the arbitral tribunal shall rule according to the law chosen by the parties”.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

46. The ‘applicable regulations’ here are the regulations contained within the PCB Anti- Corruption Code and, as such, this dispute shall be decided according to the provisions of the PCB Anti-Corruption Code. This is common ground. The salient provisions of the PCB Anti- Corruption Code are set out below. The parties have chosen, by Article 11.5 of the PCB Anti- Corruption Code, that the provisions of the code are “governed by and shall be construed in accordance with the laws of the Islamic Republic of Pakistan”. That being so, those laws shall apply to this dispute subsidiarily.

47. The PCB Anti-Corruption Code (the “PCB Anti-Corruption Code” or the “Code”) is dated as from 28 July 2017 and applies to the matters at hand. For present purposes, it is to be noted that the following matters are not in dispute:

• The PCB Anti-Corruption Code was promulgated by the PCB in an effort to prevent corrupt practices in cricket in Pakistan.

• The PCB Anti-Corruption Code gives jurisdiction to the PCB to take action against any “Participant” (as defined therein) in respect of “Corrupt Conduct” taking place in any domestic cricket match sanctioned or approved by the PCB.

• Mr Akmal was at all relevant times a Participant under the Code and, therefore, subject to the PCB Anti-Corruption Code and the jurisdiction of the PCB.

• “Corrupt Conduct” under the Code is defined as “Any act or omission that would amount to an offence under Article 2 of this Anti-Corruption Code or the equivalent provisions of the anti- corruption rules of the ICC”.

• Article 2.4.4 of the PCB Anti-Corruption Code provides that “The Participant shall be in breach of these Rules if he/she … fail[s] to disclose to the PCB Vigilance and Security Department (without unnecessary delay) full details of any approaches or invitations received by the Participant to engage in Corrupt Conduct under this Anti-Corruption Code”.

• The PCB Anti-Corruption Code establishes: (a) an Anti-Corruption Tribunal as a panel of three persons appointed by the Chairman of the PCB and charged with the responsibility to hear and determine (a) any allegation that a Participant has committed “Corrupt Conduct” under the PCB Anti-Corruption Code; and (b) a “PCB Vigilance and Security Department” (or “VSD”) to which any allegation or suspicion of a breach of the Anti-Corruption Code is to be referred for investigation.

48. Article 1 of the PCB Anti-Corruption Code identifies a number of “fundamental sporting imperatives”:

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

a. Art 1.1.1: “All cricket matches are to be contested on a level playing-field, with the outcome to be determined solely by the respective merits of the competing teams and to remain uncertain until the cricket match is completed. This is the essential characteristic that gives sport its unique appeal”.

b. Art 1.1.2: “Public confidence in the authenticity and integrity of the sporting contest is therefore vital. If that confidence is undermined, then the very essence of cricket will be shaken to the core”.

c. Art 1.1.3: “Advancing technology and increasing popularity have led to a substantial increase in the amount, and the sophistication, of betting on cricket matches worldwide. The development of new betting products, including spread-betting and betting exchanges, as well as internet and phone accounts that allow people to place a bet at any time and from any place, even after a cricket match has started, have all increased the potential for the development of corrupt betting practices. That, in turn, increases the risk that attempts will be made to involve participants in such corrupt practices”.

d. Art 1.1.4: “Furthermore, the nature of this type of misconduct is such that it is carried out under cover and in secret, thereby creating significant challenges for the PCB in the enforcement of rules of conduct. As a consequence, the PCB needs to be empowered to seek information from and share information with competent authorities and other relevant third parties, and to require Participants to cooperate fully with all investigations and requests for information”.

e. Art 1.1.5: “The PCB is committed to taking every step in its power (a) to prevent corrupt practices undermining the integrity of the sport of cricket, including any efforts to influence improperly the outcome or any other aspect of any Match; and (b) to preserve public confidence in the readiness, willingness and ability of the PCB, the ICC and all other National Cricket Federations to protect the sport from such corrupt practices”.

49. Article 1.2 of the PCB Anti-Corruption Code provides that the provisions of the Code are to be interpreted and applied by reference to these fundamental sporting imperatives and that such interpretation and application shall take precedence over any strict legal or technical interpretations.

50. Article 1.4 provides that the Code shall apply to all “Participants”. It is common ground that Mr Akmal was at all times a Participant under the terms of the Code and that it applies to him.

51. Article 1.5 provides as follows:

1.5 Each Participant is automatically bound by this Anti-Corruption Code as soon as he/she becomes a Participant. From that point, he/she shall be deemed to have agreed:

1.5.1 not to engage in Corrupt Conduct in respect of any Match, wherever it is held and whether or not he/she is personally participating or involved in any way with it;

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

1.5.2 that it is his/her personal responsibility to familiarise him/herself with all of the requirements of this Anti-Corruption Code, and to comply with those requirements (where applicable);

1.5.3 to submit to the jurisdiction of the PCB to investigate apparent or suspected Corrupt Conduct that would amount to a violation of this Anti-Corruption Code;

1.5.4 to submit to the jurisdiction of any Anti-Corruption Tribunal convened under this Anti- Corruption Code to hear and determine, (a) any allegation by the PCB that the Participant has committed Corrupt Conduct under this Anti-Corruption Code; and (b) any related issue (e.g. any challenge to the validity of the charges or to the jurisdiction of the PCB or the Anti-Corruption Tribunal, as applicable);

1.5.5 to submit to the exclusive jurisdiction of the Anti-Corruption Tribunal, PCB‟s Independent Adjudicator and/or CAS to hear and determine appeals made pursuant to this Anti-Corruption Code;

1.5.6 not to bring any proceedings in any court or other forum, without first submitting to the jurisdiction of the aforementioned tribunal and the CAS as a condition precedent; and

1.5.7 for the purposes of applicable data protection and other laws and for all other purposes, to the collection, processing, disclosure and use of information relating to him/herself and his/her activities, including personal information relating to him/herself and his/her activities, to the extent expressly permitted under the terms of this Anti-Corruption Code (and that he/she shall confirm such agreement in writing upon demand).

52. Article 2 sets forth the offences under the Code. For present purposes, it is sufficient to note the following language:

ARTICLE 2 OFFENCES UNDER THIS ANTI-CORRUPTION CODE

The conduct described in the sub-Articles set out in Articles 2.1 – 2.4, if committed by a Participant, shall amount to an offence by such Participant under this Anti-Corruption Code:

2.4 General:

The Participant shall be in breach of these Rules if he/she commits any of the following acts/omissions:

…

2.4.4 Failing to disclose to the PCB Vigilance and Security Department (without unnecessary delay) full details of any approaches or invitations received by the Participant to engage in Corrupt Conduct under this Anti-Corruption Code.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

NOTE: It is acknowledged that the fight against corruption requires prompt reporting of all such approaches and any unnecessary delay in doing so may undermine the effectiveness with which the PCB and other relevant anti-corruption bodies can protect the integrity of the sport. It is acknowledged that the assessment of whether there had been “unnecessary delay” in each case will depend on its own circumstances, but it is always unacceptable (and will therefore constitute “unnecessary delay”) for a Participant to wait until after the match in respect of which he/she was invited to engage in Corrupt Conduct before reporting that approach to the PCB Vigilance and Security Department.

NOTE: A Participant shall not discharge his burden under this Article unless and until the required disclosure has been made directly to the PCB Vigilance and Security Department by such Participant. It is not sufficient for such disclosure to be made instead to any other third party, including any player, club or team official, or National Cricket Federation representative.

53. The PCB Anti-Corruption Code also makes provision in respect of both the burden and the standard of proof required under the Code. The burden of proof in respect of any given alleged offence is on the PCB and the offence must be proved to the “comfortable satisfaction” of the tribunal – this standard being greater than on the balance of probabilities but less than proof beyond reasonable doubt.

“ARTICLE 3 STANDARD OF PROOF AND EVIDENCE

3.1 Unless otherwise stated elsewhere in this Anti-Corruption Code, the burden of proof shall be on the PCB in all cases brought under this Anti-Corruption Code and the standard of proof shall be whether the Anti- Corruption Tribunal is comfortably satisfied that the alleged offence has been committed, bearing in mind the seriousness of the allegation that is being made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt.

3.2 The following rules of proof shall be applicable at hearings and in the proceedings generally:

3.2.1 The Anti-Corruption Tribunal shall not be bound by rules governing the admissibility of evidence in judicial or other proceedings. Instead, facts may be established by any reliable means, including admissions and circumstantial evidence.

3.2.2 The Anti-Corruption Tribunal shall have discretion to accept any facts established by a decision of a court or professional disciplinary tribunal of competent jurisdiction that is not the subject of a pending appeal and in which certain facts are established as irrebuttable evidence of those facts as against the Participant to whom the decision pertained, unless the Participant establishes that the decision violated principles of natural justice.

3.2.3 The Anti-Corruption Tribunal may draw an adverse inference against the Participant who is asserted to have committed an offence under this Anti-Corruption Code based on his/her failure or refusal, without compelling justification, after a request made in a reasonable time in advance of any hearing, to appear at the

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

hearing (either in person or by video or telephone link, as directed by the Anti-Corruption Tribunal) and to answer any relevant questions”.

54. By Article 4 of the Code, provision is made for the conduct of an investigation by the PCB’s “Vigilance and Security Department” (defined above as the VSD) and for the issuance by the PCB of a Notice of Charge. And for the “provisional suspension” of a Participant in certain circumstances.

ARTICLE 4 INVESTIGATIONS AND NOTICE OF CHARGE

4.1 Any allegation or suspicion of a breach of this Anti-Corruption Code, whatever the source, shall be referred to the PCB Vigilance and Security Department for investigation.

4.2 The PCB Vigilance and Security Department may, at any time, conduct an investigation into the activities of any Participant who he/she believes may have committed an offence under this Anti-Corruption Code. …

4.3 As part of any investigation, the PCB Vigilance and Security Department may at any time (including after a Notice of Charge has been provided to a relevant Participant) make a written demand to any Participant (a “Demand”) to provide the PCB Vigilance and Security Department, in writing and/or by answering questions in person at an interview (as the PCB Vigilance and Security Department elects), with any information that the PCB Vigilance and Security Department reasonably believes may be relevant to the investigation, including (without limitation) (a) copies or access to all relevant records (such as current or historic telephone records, bank statements, Internet services records and/or other records stored on computer hard drives or other information storage equipment or any consent forms relating thereto); and/or (b) all of the facts and circumstances of which the Participant is aware with respect to the matter being investigated. Provided that any such Demand has been issued in accordance with this Article 4.3, the Participant shall cooperate fully with such Demand, including by furnishing such information within such reasonable period of time as may be determined by the PCB Vigilance and Security Department (but, save in exceptional circumstances, no earlier than fourteen days after the Participants receipt of the Demand). Where appropriate, the Participant may seek an extension of such deadline by providing the PCB Vigilance and Security Department with cogent reasons to support an extension, provided that the decision to grant or deny such extension shall be at the discretion of the PCB Vigilance and Security Department, acting reasonably at all times.

4.4 Any information furnished to the PCB Vigilance and Security Department (whether pursuant to a specific Demand or otherwise as part of an investigation) will not be used for any purpose other than in accordance with this Anti-Corruption Code and will be kept strictly confidential except when:

…

4.6 If, at any time, the PCB determines that there is a case to answer under Article 2, then the Participant shall be sent written notice of the following (the “Notice of Charge”), which, where applicable, will be copied to the CEO of the National Cricket Federation to which the Participant is affiliated:

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

4.6.1 that the Participant has a case to answer under Article 2;

4.6.2 the specific offence(s) that the Participant is alleged to have committed;

4.6.3 details of the alleged acts and/or omissions relied upon in support of the charge;

4.6.4 the range of sanctions applicable under this Anti-Corruption Code if the charge is admitted or upheld;

4.6.5 (where applicable) the matters relating to Provisional Suspension specified at Article 4.7; and

4.6.6 that if the Participant wishes to exercise his/her right to a hearing before the Anti-Corruption Tribunal (whether to contest liability or sanction or both), he/she must submit a written request for a hearing that explains how the Participant responds to the charge(s) and (in summary form) the basis for such response. To be effective, the request must be received by the PCB Vigilance and Security Department as soon as possible, but in any event within fourteen (14) days of the Participant’s receipt of the Notice of Charge. A copy of any such notice will be sent by the PCB Vigilance and Security Department to the ICC, and, where applicable, the National Cricket Federation to which the Participant is affiliated, without unnecessary delay.

4.7 Provisional Suspension

4.7.1 Where either (a) the PCB decides to charge a Participant with an offence under this Anti-Corruption Code; or (b) the PCB considers that there are other exceptional circumstances relevant to a Participant (for example, where any relevant police authority has arrested and/or charged a Participant with an offence under any relevant criminal law in respect of facts or circumstances that may also constitute an offence under this Anti-Corruption Code), it, shall have the discretion, in circumstances where it considers that the integrity of the sport could otherwise be seriously undermined, to Provisionally Suspend the Participant pending the Anti- Corruption Tribunal’s determination of whether he/she has committed an offence. …

4.8 Responding to a Notice of Charge

4.8.1 If the Participant fails or refuses to file a written request for a hearing before the Anti-Corruption Tribunal in accordance with Article 4.6.6 (or by any extended deadline that the PCB Vigilance and Security Department deems appropriate), then he/she shall be deemed to have:

4.8.1.1 waived his/her entitlement to a hearing;

4.8.1.2 admitted that he/she has committed the offence(s) under this Anti-Corruption Code specified in the Notice of Charge; and

4.8.1.3 acceded to the range of applicable sanctions specified in the Notice of Charge.

In such circumstances, a hearing before the Anti-Corruption Tribunal shall not be required. Instead, the Chairman of the Disciplinary Panel (sitting alone) shall issue a public decision confirming the offence(s) under this Anti-Corruption Code specified in the Notice of Charge and the imposition of an applicable sanction

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

within the range specified in the Notice of Charge. Before issuing that public decision, the Chairman of the Disciplinary Panel will provide written notice of that decision to the National Cricket Federation to which the Participant is affiliated, the PCB Vigilance and Security Department and the ICC.

4.8.2 Where the Participant does request a hearing in accordance with Article 4.6.6, the matter shall proceed to a hearing in accordance with Article 5.

55. Article 5 of the PCB Anti-Corruption Code makes provision for the conduct of a hearing before a three-member Anti-Corruption Tribunal in circumstances where the Participant has requested, in writing, such a hearing to take place pursuant to the terms of Article 4.6.6 (see above).

56. Article 6 deals with sanctions. Article 6.1 provides that “Where a breach of this Anti-Corruption Code is admitted by the Participant or upheld by the Anti-Corruption Tribunal, the Anti-Corruption Tribunal will be required to impose an appropriate sanction upon the Participant from the range of permissible sanctions described in Article 6.2. In order to determine the appropriate sanction that is to be imposed in each case, the Anti-Corruption Tribunal must first determine the relative seriousness of the offence, including identifying all relevant factors” that (a) aggravate and (b) mitigate the nature of the offence.

57. The aggravating factors to be brought to account are as follows:

a. a lack of remorse on the part of the Participant;

b. the Participant’s bad previous disciplinary record (including where the Participant has previously been found guilty of another offence under this Anti-Corruption Code and/or any predecessor regulations of the PCB and/or any anti-corruption rules/code of the ICC or any other National Cricket Federation);

c. where the amount of any profits, winnings or other Reward, directly or indirectly received by the Participant as a result of the offence(s), is substantial and/or where the sums of money otherwise involved in the offence(s) are substantial;

d. where the offence substantially damaged (or had the potential to damage substantially) the commercial value and/or the public interest in the relevant Domestic Match(es);

e. where the offence affected (or had the potential to affect) the result of the relevant Domestic Match(es);

f. where the welfare of a Participant other than the Participant who has committed the offence or any other person has been endangered as a result of the offence;

g. where the offence involved more than one Participant or other persons; and/or

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

h. any other aggravating factor(s) that the Anti-Corruption Tribunal considers relevant and appropriate.

58. The mitigating to be brought to account are as follows:

a. any admission of guilt (the mitigating value of which may depend upon its timing);

b. the Participant’s good previous disciplinary record;

c. the youth and/or lack of experience of the Participant;

d. where the Participant renounced the attempt or agreement prior to it being discovered by a third party not involved in the attempt or agreement;

e. where the Participant has cooperated with the PCB Vigilance and Security Department and any investigation or Demand carried out by him/her;

f. where the offence did not substantially damage (or have the potential to substantially damage) the commercial value, integrity of results and/or the public interest in the relevant Domestic Match(es);

g. where the offence did not affect (or have the potential to affect) the result of the relevant Domestic Match(es);

h. where the Participant provides Substantial Assistance to the PCB Vigilance and Security Department, the ICC, any other National Cricket Federation, a criminal justice authority or a professional disciplinary body;

i. where the Participant has already suffered penalties under other laws and/or regulations for the same offence; and/or

j. any other mitigating factor(s) that the Anti-Corruption Tribunal considers relevant and appropriate

59. There follows in Article 6 a table which sets forth the applicable penalties for the various offences under the PCB Anti-Corruption Code. For present purposes, it is to be noted that the penalties attaching to a breach of Article 2.4.4 is a period of ineligibility of between “a minimum of six (6) months and a maximum of a lifetime” together with what is said to be an “additional discretion to impose a fine” in addition to any period of ineligibility “of such amount as the Anti- Corruption Tribunal deems appropriate”.

60. Article 6 also speaks to sanctions where multiple offences have been committed:

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

For the avoidance of doubt:

…

6.3.2 where a Participant is found guilty of committing two offences under the Anti-Corruption Code in relation to the same incident or set of facts, then (save where ordered otherwise by the Anti-Corruption Tribunal for good cause shown) any multiple periods of Ineligibility imposed should run concurrently (and not cumulatively); and

…

6.4 Any period of Ineligibility imposed on a Participant shall commence on the date that the decision imposing the period of Ineligibility is issued; provided that any period of Provisional Suspension served by the Participant shall be credited against the total period of Ineligibility to be served.

IX. THE SCOPE OF THE REVIEW ON APPEAL

61. Article 57 of the CAS Code provides as follows: “The Panel has full power to review the facts and the law. It may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance”.

62. The PCB Anti-Corruption Code makes provision for the appeals to the Independent Adjudicator (see Article 7.5.4) but make no provision pertaining to the scope of review of an appeal from the Independent Adjudicator to CAS.

63. It follows, therefore, that the CAS Code is applicable and that, accordingly, the scope of these appeals is not restricted to deciding whether the decision under appeal is wrong; instead, these appeals are a de novo hearing of the merits of the case.

X. THE MERITS OF THE APPEAL

64. As noted above, the parties assert an array of grounds of appeal. Before addressing the merits, therefore, it is necessary to distil what is being asserted by the Parties on this appeal.

65. The PCB propounds five grounds of appeal, but they overlap to a great extent. In essence, the PCB’s grounds of appeal amount to two complaints:

a. The Independent Adjudicator’s reduction of the sanctions was wrong and outwith the PCB Anti-Corruption Code.

b. The PCB Anti-Corruption Code by Article 6.3.2 provides that where offences arise from the same incident or set of facts then any periods of ineligibility imposed in

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

respect of the offences are to run concurrently and not cumulatively. The offences at issue here, however, do not arise from the same incident or set of facts but are separate and distinct. In those circumstances, the Code requires the any periods of ineligibility imposed in respect of the offences to run cumulatively. As a result, the Independent Adjudicator fell into error when he ordered that the periods of ineligibility imposed by him were to run concurrently.

66. In the event, the PCB asks for the restoration of the sanctions imposed by the Anti- Corruption Tribunal and an order that the periods of ineligibility are to run cumulatively and not concurrently.

67. Mr Akmal has articulated 21 separate grounds of appeal but, once again, there is a great deal of overlap and inter-relation and many relate not to the decision of the Independent Adjudicator but to the judgment of the Anti-Corruption Tribunal, all of which may be set to one side (as accepted by Mr Akmal). In all, Mr Akmal’s complaints in respect of the decision of the Independent Adjudicator may be summarised as follows:

a. One, it is a matter for the PCB to discharge its burden of proof in respect of each of the offences set forth in the Notice of Charge. In order to do so, the PCB must establish each of the elements of the offence as set forth in Article 2.4.4. The PCB did not do so. It adduced no evidence of its own and relied solely on the record of interview and Mr Akmal’s Reply, yet this material is insufficient to sustain the charges.

b. Two, the sanctions imposed by the Independent Adjudicator on Mr Akmal were inconsistent (and much more severe) with those imposed on other players for the same offence (namely Mr Khalid Latif and Mr Sharjeel Khan).

c. Three, the sanctions imposed on Mr Akmal were unduly harsh and will cause him “irreparable harm”.

68. In the event, Mr Akmal asks this tribunal to set aside the order of the Independent Adjudicator whereby a period of ineligibility of 18 months was imposed on Mr Akmal and (articulated for the first time orally at the hearing) seeks an order that the PCB pay compensation to Mr Akmal in respect of the period of time he has been - wrongfully - kept out of cricket and thus precluded from earning a living.

69. Turning to the merits, a number of general points need to be made.

70. It is plain that, under the PCB Anti-Corruption Code, there is no right of appeal to CAS from the decision of the Anti-Corruption Tribunal. The right of appeal from that tribunal is to the Independent Adjudicator, a right which Mr Akmal has exercised. Accordingly, insofar as Mr

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

Akmal frames his grounds of appeal as complaints against the decision of the Anti-Corruption Tribunal, these can be set to one side. Mr Akmal recognised this during the hearing.

71. As is common ground, these appeals are not limited to a review of the decision of the Independent Adjudicator. The Sole Arbitrator has the power to review the facts and the applicable law and come to a ‘new decision’. In that sense, the appeals are conducted as a de novo hearing.

72. In order to sustain an offence under Article 2.4.4, the PCB must show:

a. One, that a Participant has been approached or invited by a third party.

b. Two, that the approach or invitation by the third party was an approach or invitation for the Participant to engage in Corrupt Conduct as defined in the PCB Anti-Corruption Code – namely any act or omission that would amount to an offence under Article 2 (or the equivalent provisions of the anti-corruption rules of the ICC).

c. Three, that there has been a failure on the part of the Participant to give prompt disclosure (ie to disclose without unnecessary delay) to the VSD of such an approach or invitation.

73. In this regard, it is to be noted that, in oral argument the PCB argued for the first time that, if it came to pass that it did not discharge its burden in respect of the elements of the offence with which it charged Mr Akmal, then it was entitled to rely on Article 4.8.1 by which, so it was said, because Mr Akmal did not make an express request for a hearing it is to be “deemed” that Mr Akmal has admitted the offences and has acceded to the range of sanctions promulgated within the Code. In these circumstances, the PCB argued that it was “relieved” of its burden of proving the elements of the offence charged.

74. That submission is misconceived.

75. It is right to say that the Code provides that, in the absence of a request by the player for a hearing before the Anti-Corruption Tribunal, then the player is to be deemed to have waived his entitlement to a hearing and admitted the offences with which he has been charged and acceded to the applicable range of sanctions. The process that then follows is that no hearing takes place before the Anti-Corruption Tribunal and, instead, the Chairman of the PCB’s Disciplinary Panel issues a decision confirming the offences and imposing the “applicable sanction”. This is an altogether different process, and there is no appeal from that public decision.

76. The difficulty for the PCB is that this did not happen. The Chairman of the Anti-Corruption Tribunal in effect dis-applied the operation of Article 4.8 in this respect and he and the parties

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

proceeded with a hearing before the Anti-Corruption Tribunal in the ordinary way (that is, in accordance with Art 5 of the Code). It appears that the Chairman of the Anti-Corruption Tribunal did so because he regarded it proper to do so in light of the constitutional protection in the Pakistan Constitution of the right to a fair trial and due process. The PCB participated in that hearing (by counsel) and no objection was taken by the PCB at this juncture to such a course. There was therefore, as a matter of fact, a hearing before the Anti-Corruption Tribunal, at which hearing the PCB was required to prove the elements of the charges and Mr Akmal was at liberty to challenge the charges; and it is from the judgment rendered in this hearing that Mr Akmal appealed to the Independent Adjudicator. It is simply too late for the PCB to take this point now; if it had any efficacy at all any such objection should have been made at the time at which the Chairman of the Anti-Corruption Tribunal decided against the imposition of Article 4.8 and in favour of a full – and defended – hearing. Having allowed the matter to progress to a hearing before the Chairman of the Anti-Corruption Tribunal and, in turn, to the Independent Adjudicator, it is not open to the PCB to take this point now (It should be added that the point was not taken in any of the PCB’s written submissions, in any event).

77. In the result, it remains a matter for the PCB to discharge its burden of proof (to the required standard) in respect of these offences with which it has charged Mr Akmal.

78. These are the charges rendered against Mr Akmal, as per the Notice of Charge dated 17 March 2020. (As is clear from its contents, the sole basis for the charges was what had been said by Mr Akmal in the interview.)

a. Charge No.1:

“Charge No.1 (breach of Code Article 2.4.4 by failing to disclose to the PCB Vigilance and Security Department (without unnecessary delay) full details of the approaches and invitations received by you to engage in Corrupt Conduct under the Code.

PCB hereby asserts that you have a case to answer for breach of Code Article 2.4.4 in that you failed to disclose to the PCB Vigilance and Security Department without unnecessary delay full details of the approach and invitations received by you to engage in Corrupt Conduct in relation to an approach duly admitted by you during the interview with the undersigned and other PCB personnel, conducted at Karachi on 20 February 2020.

PCB relies on the following facts (in summary only) in support of this charge:

During PCB’s investigation into Corrupt Conduct as defined under the Code, you have now disclosed that during a dinner hosted by your friend Chaudhry Yasin at Lahore, you met a guy whose name you did not disclose, made an offer to you. At the interview, you stated that you felt “uncomfortable” with his conversation and left the venue. You failed to disclose these facts to the PCB Anti-Corruption Unit without unnecessary delay.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

Reliance is placed on your statements made during the interview conducted thus far”.

b. Charge No.2:

“Charge No.2 (breach of Code Article 2.4.4 by failing to disclose to the PCB Vigilance and Security Department (without unnecessary delay) full details of the approaches and invitations received by you to engage in Corrupt Conduct in respect to Matches in PSL 2020).

PCB hereby asserts that you have a case to answer for breach of Code Article 2.4.4 in that you failed to disclose to the PCB Vigilance and Security Department without unnecessary delay full details of the approach and invitations received by you to engage in Corrupt Conduct in relation to a Match of PSL 2020.

PCB relies on the following facts (in summary only) in support of this charge:

During PCB’s investigation, you have now disclosed that you met with a bookie/ fixer by the name of Maya at Defence, Lahore. Maya approached you to engage in corrupt conduct. You failed to disclose these facts to the PCB Anti-Corruption Unit without unnecessary delay.

Reliance is also placed on your statements made during the investigations and interviews conducted thus far”.

79. The question to be determined in respect of each charge is: Has the PCB sustained the burden of proving the elements of each charge, recalling that the standard of proof required under the PCB Anti-Corruption Code is that an offence must be proved to the “comfortable satisfaction” of the tribunal, being greater than on the balance of probabilities but less than proof beyond reasonable doubt. This must be answered against the evidence adduced by the PCB.

80. By way of evidence, the PCB relies on the information provided by Mr Akmal in an interview on 20 February 2020 and on the contents of Mr Akmal’s Reply. There is no other material relied upon – the PCB has not adduced any witness statement or any other independent corroborative evidence of the matters alleged. All that being so, it is necessary to assess, with some care: (a) the record of the interview with Mr Akmal in the early hours of 20 February 2020; and (b) Mr Akmal’s Reply (ie his reply dated 22 March 2020 to the Notice of Charge(s)).

a. The 20 February 2020 Interview

81. As noted above, at 12.30 am on 20 February 2020 (ie, half-past midnight), Mr Akmal was summoned to a meeting in the Mövenpick Hotel in Lahore with representatives of the PCB’s “Vigilance and Security Department” (defined above as the “VSD”). It was “an Anti-Corruption investigation interview” and it took place under caution. The meeting was conducted in Urdu but it is accepted that the English translation that is in evidence is an accurate account of the interview. The meeting ran for 37 minutes, concluding at 1:07 am the same morning.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

82. The VSD was represented by Lt. Colonel Asif Mahmood, the head of the VSD, and Colonel Usman, together with various representatives of the PCB including the CEO, Waseem Khan Sahib, and members of the PCB legal department, Mr Salman Naseer and Mr Saad Imram. Mr Akmal attended alone, without assistance or representation.

83. It seems that the VSD wished to ask questions of Mr Akmal in relation in particular to individuals named (a) ‘Faisal’ and (b) ‘Chitta’, and the interview eventually addressed Mr Akmal’s contacts with them. Before, however, any questions were asked in respect of these men, Mr Akmal was provided with “one chance that if you want to tell us something voluntarily … about any corrupt conduct or any violation of the code, any approach”.

84. It was in the course of responding to this general inquiry that Mr Akmal gave an account of the two offences with which he has now been charged. Nothing, it seems, came of the questioning in relation to the two men of interest to the VSD. It is not necessary to set out the entire transcript of the interview but it will be necessary to discern what was said by Mr Akmal in respect of the two offences with which he has now been charged.

85. As to the events surrounding Charge No.1, the interview went as follows:

Naseer: Let me tell you again, if there is anything, tell completely, as there is an obligation on you, don’t hide anything.

Akmal: As I know, there was a friend of mine, he has come and … .

Naseer: Please think it over again and tell in detail.

Akmal: Yes I am saying, he is my friend. My friend’s friend has talked to me like this way, he didn’t say anything to me clearly, he was taking the conversation that I did not like in a way that I stood up and went to the other side. And I have told my friend that I did not want to meet him again.

Asif: Please mention the name.

Akmal: I don’t his name, friend’s friend name.

Asif: Friend name.

Akmal: My friend name is Chaudhary Yasin. Chaudhary Yasin.

Naseer: Okay Umar, do one thing, refresh everything in your mind and please tell in more detail. When did it happened, where happened, what it was, what time it was.

Akmal: Honestly

Naseer: Which day it was. How long ago. Think for one time.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

Akmal: I am telling you.

Naseer: Tell us complete thing from your side.

Akmal: Let say, when our domestic season was concluded, after the final. After that we had gone over a food, there we had talked about it. And I moved to one side.

Naseer: Which city?

Akmal: Lahore.

Naseer: Tell the complete thing, what was talked about.

Akmal: Nothing, he had tried to talk 19-20 (suspicious).

Naseer: What

…

Akmal: Like it is, to introduce that I am this and that, and I work this. So I had a little bit of feelings, so I stood up and went to the other side. And told my friend I don’t want to meet him again. There were many other people present as well, I didn’t meet anyone, I left my food any went away. And I have refused them, that no.

Asif: What Chaudhary Yasin does.

…

Akmal: He lives in Switzerland.

Asif: What did you feel, what bad thing occurred to you …

Akmal: The bad thing was that which is considered bad in cricket point of view.

Asif: What?

Akmal: That he will say me something 19-20 (suspicious).

Naseer: Umar let us stop this incident here for a second. Tell us something other than this.

Akmal: There is nothing except this.

…

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

Naseer: What conversation took place there. Why you got uncomfortable, as you were saying, and why did you move to another side. Why did you tell your friend that don’t introduced me to such people?

Akmal: See, every person get to know about it. We also have the experience. . He has invited over food, he has met me, he has started to talk about cricket with me. That you are a very good player, you should make a comeback, your PSL is coming, you prepare for it. I said … I am preparing for it. From which team are you playing? I said I played for Quetta last year and we won. Okay, what are your thoughts this time? I said whatever will happen, Allah will do good. We will give our full effort. He said, you must have prepared something special. … I said excuse me …

Naseer: Special preparation, that was his words?

Akmal, Yes, these were the words; it is something, … some special preparation with a smile. I thought he was taking this talk to some other way. I didn’t let him go that way, and I changed my direction. And then I told my friend, don’t introduce me to such kind of people.

86. As to the events surrounding Charge No.2, the interview went as follows:

Akmal: Okay, I have given a work to my friend that was related to my Bhabbi’s ongoing incident in my family. I have given him the responsibility that our Bhabbi was going down the track. (Derailing from the righteous path.)

Naseer: This is a sensitive matter, you don’t have to tell.

Akmal: No, I will tell you as you are inquiring whether someone has met me recently, I am telling you that. I have told him (my friend) And he referred me to this person saying that this person will do all your work. I told him that I want to know who it is with whom my Bhabbi might have an affair with because we have some name (reputation), our family. If we get any proof, we will disassociate with our Bhabbi so name doesn't get bad. Okay … he met me and told me only one thing that if you will compromise with me on this then I will be able to help you out. I have replied him Bhai I don't want to do this compromise.

Salman Naseer: What was that compromise?

Umar Akmal: Compromise was that if you do this work, whether you would indulge in match fixing with me. I replied that neither I have done this work nor I will do ever. The day I do it, I will voluntarily leave cricket. And voluntarily I will tell PCB about it. You don't want to do my Bhabbi’s work. If you want to do it with this work (match fixing), I will never want it.

Wasim Khan: Umar you have said you were introduced by a friend … who is your friend?

Umar Akmal: I have told him, he is Chaudhry Yasin.

Colonel Asif: The one who introduced you, what was his name?

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

Uma Akmal: Maya

…

Salman Naseer: Is he from Lahore?

Umar Akmal: Yes

Salman Naseer: Did he talk about any particular match?

Umar Akmal: No

Salman Naseer: Did he talk generally?

Umar Akmal: Yes, he talked generally. I refused I am not that kind, and with Allah’s blessing wherever around the world I play league, Pakistan Cricket Board knows that if anyone approaches Umar, he informed us firstly.

Salman Naseer: Umar then why didn't you tell us about these two approaches made to you?

Umar Akmal : Because, honestly my opinion was that firstly, I thought he said it candidly and he didn't speak openly and secondly, honestly I am requesting you on camera that please make sure this thing does not go out …

…

Umar Akmal: See, I am telling you that. I also know at the time there was no tournament going on. Okay. Nor there was any domestic going on. Nothing was going on. Even club cricket was not going on neither any tournament matches. Sir please listen for a moment, and going forward I shall do whatever you want to do, I have no issues . Had I been playing any PCB’s tournaments, playing any leagues, or I am in the camp then I understand. At that time, Quetta team had any camp. …

87. The Sole Arbitrator makes the following findings of fact as a sensible synthesis of the contemporaneous record.

88. In respect of Charge No.1:

a. Mr Akmal played cricket in the PCB’s domestic competition, the 2019 Quaid-E- Azam Trophy. He played for Central Punjab, which team played in, and won, the final, which was played from 27-31 December 2019.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

b. After the final, on a date unknown (but likely between 1 January and 10 February, 20201), Mr Akmal attended a celebratory party hosted by his friend, one Chaudhary Yasin (resident of Switzerland), for the winning team. It is not clear where the party took place. It may have been at Mr Yasin’s home or hosted by him in a hotel (or the like), but nothing turns on that.

c. At that party, while Mr Akmal was eating some food, he was approached by an unnamed man. The man was not known to Mr Akmal. This man sought to strike up a conversation with Mr Akmal about general matters but also about the coming PSL cricket season, asking Mr Akmal how he was planning to prepare for it.

d. The man said, with a smile on his face, that Mr Akmal “must have prepared something special” for the new PSL season. Mr Akmal characterised what was being said as “19-20”, an idiomatic expression meaning suspicious.

e. Mr Akmal did not feel comfortable with that conversation, and he walked away.

f. He told Mr Yasin that he, Mr Akmal, felt uncomfortable and did not want to meet the man again.

g. Mr Akmal then left the party.

89. And as to Charge No.2:

a. Mr Akmal’s sister-in-law was, so it seems, having an extra-marital affair of some sort (the reference in the interview to Bhabbi is a reference to Mr Akmal’s sister- in-law).

b. At some unidentified time between 1 January and 10 February, 2020, Mr Akmal asked Mr Chaudhary Yasin for assistance with respect to this delicate private matter. Mr Yasin referred Mr Akmal to a man named Maya, a man from or living in Lahore.

c. Mr Akmal arranged to meet Maya and Mr Akmal asked for Maya’s assistance. What sort of assistance is not at all clear.

d. Maya responded by saying that he would be able to assist if Mr Akmal “indulged” in match-fixing with Maya. Maya did not talk about any particular match or matches.

1 10 February 2020 is the end date because it was the date on which, according to Mr Akmal but denied by the PCB, Mr

Akmal visited the PCB offices in an (unsuccessful) attempt to report the matters that were behind Charges 1 and 2. On any view therefore the events must have taken place by this date.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

e. At the time, no cricket was being played; ie, there were no current domestic or international fixtures, and nor was Mr Akmal in training with Quetta Gladiators or any other team.

f. Mr Akmal declined, saying that he has never done such a thing and would never do so.

b. Mr Akmal’s Reply

90. As noted above, Mr Akmal replied to the Notice of Charge on 22 March 2020. The following additional matters are to be noted.

91. In relation to Charge No.1, Mr Akmal said this:

“Given the reliance placed upon the interview conducted thus far, I respectfully highlight an error in the description … I further respectfully highlight that the demeanour of the individual in question made me feel uncomfortable (purely due to my intuition) and it is not the purported invitation or approach as defined under the code. My lack of comfort stemmed from the fact that a general conversation regarding cricket was taking place. During this conversation, I was asked by the individual how I was planning to prepare for the PSL. Thereafter, I quickly distanced myself from the individual and exited relevant venue”.

92. Mr Akmal said that: (a) given that there was nothing to report, he hoped the PCB would drop the charge and (b) requested in any event for it to be dismissed with immediate effect.

93. In relation to Charge No.2, Mr Akmal said this in his reply:

“I now turn to address Charge 2 in full and request that my explanation of the same is noted and stored as being strictly confidential and sensitive as it relates to the reputation of not only me, but also my uninvolved family members. Maya was a friend of someone I know and whom I contacted regarding the sensitive family issue disclosed and explained in detail during the interview. I was introduced to Maya solely for the reasons and intention of resolving the family issue as I felt an obligation towards my family. At no time did I know or had any reasons to believe that Maya is a bookie/ match fixer. Nature of my meeting through a friend was solely for the purposes of resolving my family issue as stated above. Unfortunately, upon my disclosure of the sensitive information to Maya, Maya sought to take advantage of the situation. Maya stated that he would be willing to help me in exchange for some favours which I understood could be related to match fixing (even though it was not very clear what exactly he wanted me to do in exchange). I instantly rejected this proposition and left the meeting.

94. Mr Akmal accepted, however, that he should have reported this approach. He said in one place that that “the delay may also seem unnecessary” and in another that his delay “was reasonable and not unnecessary”. In any event, he made a plea for “compassionate” treatment. This is what was said:

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

I acknowledge that I was incorrect in not reporting this approach by Maya to the PCB immediately and the delay may also seem unnecessary. However, I request that a compassionate view of the practical implications is taken here. Given the previous disclosure of sensitive information by unauthorised parties, I hesitated in reporting this issue immediately because this approach was directly related to my personal and sensitive family issue and without a doubt I had to explain the reason for my meeting with Maya to the PCB which included my family matter. My immediate and main concern was that if my related family issue was leaked to the media, my families reputation would have been at grave risk. Nevertheless, I disclosed every single detail of my meeting with Maya at the beginning of my interview with the PCB . It is also important to note that this information was disclosed voluntarily at the start of the interview when first opportunity was provided by the PCB officials conducting the interview and most importantly, before PCB raised any issue regarding the above mentioned charges brought against me. This clearly shows that I had no intention of hiding this information from the PCB but was waiting for the right time due to the sensitivity of the matter. …

However, I respectfully ask that my reservation and or hesitation is considered as a reason for the delay which I believe was reasonable and not unnecessary. …

Based on the factors set out above I request that the charges against me are dismissed. If a decision is made not to dismiss the charge, I request that my explanation above be considered as mitigation and any period of ineligibility and fine be suspended or kept at the minimum. …”.

95. One then returns to the question of whether or not the PCB has met its burden of proof to the required standard of proof (to the comfortable satisfaction of this tribunal) of the elements of each alleged offence.

96. By way of reminder, the PCB must show:

a. that Mr Akmal was approached or invited by a third party;

b. that the approach or invitation by the third party was for Mr Akmal to engage in Corrupt Conduct as defined in the PCB Anti-Corruption Code – namely any act or omission that would amount to an offence under Article 2 (or the equivalent provisions of the anti-corruption rules of the ICC); and

c. that Mr Akmal had not given prompt disclosure (ie without unnecessary delay) of such approach or invitation to the VSD.

97. The Sole Arbitrator considers Charge No.1, and each element in turn.

98. In light of the facts as just found, has there been an approach or invitation by a third party to Mr Akmal for Mr Akmal to engage in Corrupt Conduct?

99. In the Sole Arbitrator’s view, on the facts as just found this charge must fail at the threshold. It is not at all clear on the evidence, and certainly not clear to the comfortable satisfaction of this tribunal, that the conversation that took place between Mr Akmal and the unnamed man

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

(and unknown to Mr Akmal) at the party hosted by Mr Yasin after the final was an approach or invitation by that man to Mr Akmal to engage in Corrupt Conduct (as that term is defined in the Code). The approach was too vague, the conversation too uncertain, too attenuated. There is no evidence of this man asking Mr Akmal to do anything at all, let-alone engage in a Corrupt Conduct. The statement by the man that Mr Akmal “must have prepared something special” may have been sinister but it is impossible to say. And even if it were, it is so unrelated to any particular act of corruption whether by the man or by Mr Akmal as to be meaningless.

100. There being no other evidence on which the PCB relies, there is no evidence that there was an unlawful approach and, accordingly, no obligation on Mr Akmal to report the matter to the VSD, and no breach of Article 2.4.4 of the PCB Anti-Corruption Code. This was, in fact, conceded by the PCB during the oral hearing. Indeed, it was conceded, in terms, that the evidence did not establish that the approach or invitation was for Mr Akmal to engage in Corrupt Conduct. It was in this context that the PCB sought to rely instead on the provisions of Article 4.8 so as to relieve it of its burden of proving the elements of the offence. As noted above, this was misconceived.

101. It follows that the Sole Arbitrator differs from the Independent Adjudicator in this respect and, rather than the PCB having proved the offences “to the hilt”, this offence has not been proved to the comfortable satisfaction of this tribunal.

102. It follows therefore that the sanctions in respect of Charge 1 must be set aside.

103. The Sole Arbitrator now turns to Count No.2.

104. To ask the question again: In light of the facts as just found, has there been an approach or invitation by a third party to Mr Akmal for Mr Akmal to engage in Corrupt Conduct?

105. The facts surrounding this alleged offence are more compelling and in the Sole Arbitrator’s view, the PCB has met its burden to the required standard in respect of this charge, for the following reasons.

106. It is plain enough that there has been an approach by the man named Maya. He told Mr Akmal that if Mr Akmal was prepared “to compromise” then he, Maya, would be able to help Mr Akmal out in respect of Mr Akmal’s family difficulty. As Mr Akmal explained (and no doubt perfectly understood), the compromise was that if Maya did this work for Mr Akmal then Mr Akmal was to “indulge in match fixing” with Maya. On any view of the language of Article 2.4.4, that was an approach or invitation to Mr Akmal to engage in Corrupt Conduct. There was no talk of any particular match, to be sure, but that does not render the approach innocent.

107. That being so, Mr Akmal was obliged to report the matter to the VSD and he was obliged to do so promptly and without unnecessary delay. Mr Akmal did not report the matter until he was interviewed on 20 February 2020. The date of the approach or invitation is unclear but it

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

can be dated as sometime between 1 January 2020 and 10 February 2020, the latter date being the day on which Mr Akmal says that he visited the offices of the PCB in order to report this matter to the PCB’s CEO.

108. In those circumstances, there has, in the Sole Arbitrator’s view been a failure to report the approach / invitation promptly and, as a result, the offence has been made out. Indeed, this is all admitted by Mr Akmal in his Reply to the Notice of Charge.

109. It is the Sole Arbitrator’s view, therefore, that Count No.2 has been sustained against Mr Akmal: it is plain that Mr Akmal acted in breach of Article 2.4.4 and is liable to be sanctioned.

110. This leads to a consideration of the sanctions applicable to Count No.2.

111. Article 6 of the PCB Anti-Corruption Code makes provision for sanctions (see above). As can be seen, the first step in the assessment of sanctions is for the tribunal to determine the “relative seriousness” of the offence(s) according to various factors to be taken into account, in aggravation and in mitigation. Once that has been done, it is a matter for the tribunal to determine “what the appropriate sanction(s) should be” given the prescribed range for the period of ineligibility of between a minimum of six months and a maximum of a lifetime, together with the additional discretion to impose a fine of such amount as the tribunal deems appropriate.

112. The Independent Adjudicator took the view that “the case calls for modification and mollification” and, taking into account various mitigating factors overlooked by the Anti-Corruption Tribunal, reduced the sanction in respect of Charge No.2 from period of ineligibility from three years to 18 months commencing from 20 February 2020.

113. The parties appeal against this sanction:

a. The PCB complains that the Independent Adjudicator did not have the power to do so under the Code. It was said that there were no mitigating factors to be brought to account, leaving only various aggravating factors, with the result that the Independent Adjudicator should not have reduced the sanction on ‘compassionate grounds’ as he did.

b. Mr Akmal complains that this sanction is “extremely harsh which shall deprive him of his sole livelihood and shall result in ruining his [sic] rest of the [sic] cricketing career” and that if not set aside he “shall suffer an irreparable loss and injury”. It is said that it is entirely out of kilter with more egregious cases of player corruption where a sanction of six months was imposed (Khan and Latif).

114. As for the PCB, Article 6 sets for the a number of mitigating and aggravating factors to be considered and the Independent Adjudicator was perfectly entitled to form the view that there were mitigating factors here and he was right to identify the following factors: (a) Mr Akmal’s

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

admission of the charge, (b) Mr Akmal’s cooperation at the interview on 20 February 2020, and (c) the fact that no action had been taken against any third party in some way related to Mr Akmal. By taking these factors into account the Independent Adjudicator acted within and not without his power pursuant to the Code.

115. Indeed, there are further mitigating factors to be brought to account here, namely: (d) there is no suggestion that Mr Akmal did anything at all in response to the approach or invitation from Maya; (e) there is no evidence of any financial gain on the part of Mr Akmal; (f) there is no evidence that the result of any game of cricket was affected one way or the other; and (g) there is no suggestion that there has been any damage to any commercial value of anything. In this sense, there is something in the complaint by Mr Akmal that the sanction imposed is harsh and inconsistent with other sanctions in other circumstances.

116. Taking these further mitigating matters into account, it is the Sole Arbitrator’s view that the appropriate sanction in these circumstances in respect of Charge No. 2 is the imposition of (a) a period of ineligibility of 12 months (commencing 20 February 2020) and (b) a fine in the sum of PKR 4,250,000.

117. Two things follow from this determination:

a. One, there is no need to consider the proper application of Article 6.3.3 in light of the fact that, in the result, there is only the one offence to be sanctioned.

b. Two, there is no room for any award of compensation to Mr Akmal in respect of any ‘wrongful’ imposition of a period of ineligibility, and his request for relief in this respect is dismissed.

118. In the event, save where otherwise appears, all further grounds of appeal are dismissed.

119. The remaining matter is Mr Akmal’s request for an order that the PCB returns Mr Akmal’s mobile telephones. It is said by Mr Akmal that these telephones were “illegally confiscated” and “illegally detained” by the PCB, and that they should be returned at once.

120. The PCB argues that Mr Akmal “is under investigation in some different matter under the PCB Santi- Corruption Code wherein he is not cooperating. The PCB’s Notice of Demand and his replies have already been placed on record of CAS, hence the mobile phones which were handed over by [Mr Akmal] will be returned … after he provides valid passwords enabling the forensic analysis to be conducted by the Punjab Forensic Science Agency”.

121. It seems that the position is as follows:

a. During the interview on 20 February 2020, Mr Akmal was asked for and duly provided his two mobile telephones. As both the video recording and transcript of

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

the hearing show, Mr Akmal did hand over his telephones and wrote down on a piece of paper what he said were the passcodes.

b. The PCB contends that the passcodes were incorrect and that they have not been able to obtain access to the telephones.

c. The PCB has issued a “Demand” pursuant to Article 4.3 of the Code (set forth in paragraph [54] above) calling upon Mr Akmal to appear before the VSD at an interview on 3 July 2020 “and to provide any information that may be relevant to its investigation”.

d. Mr Akmal responded to the Demand on 30 June 2020, but the reply is not in evidence.

e. The PCB replied on 2 July 2020 saying to Mr Akmal that the Demand relates to another “ongoing investigation” which had “no nexus” with the investigation that is the subject of this appeal.

f. Mr Akmal attended on 3 July 2020 and was interviewed.

g. By letter dated 3 July 2020, the PCB issued a formal request to Mr Akmal to provide the passwords to the two mobile telephones.

h. Despite further PCB requests, the last of which dated 24 August 2020 (headed “Last Reminder”), it appears that Mr Akmal has not provided such passwords.

122. It is apparent from the above account that the telephones were neither “illegally confiscated” nor “illegally detained” by the PCB. To the contrary, Mr Akmal gave the telephones to the PCB and, implicitly by providing what he said were his passwords, gave the PCB permission to ‘interrogate’ the telephones for information. There is no doubt that the PCB has the power to do so under the Code.

123. The question of the return of Mr Akmal’s telephones was not a matter that was before the Independent Adjudicator (or the Anti-Corruption Tribunal for that matter) and therefore does not properly arise on this appeal. In event, and taking particular regard to the fact that a formal Demand has been issued in respect of these telephones and that it is said by the PCB that the Demand relates not to the matters in issue in this appeal but to a different investigation altogether, the prudent course is to make no order at all with respect to the telephones.

124. Mr Akmal’s request for relief in this respect is, therefore, declined.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

XI. CONCLUSION

125. For the reasons set out above:

a. Mr Akmal’s appeal seeking to set aside the Independent Adjudicator’s decision in respect of Count No.1 is allowed and the sanction imposed by the Independent Adjudicator is set aside.

b. The PCB’s appeal seeking to set aside the Independent Adjudicator’s reduction in sanctions in respect of both counts is dismissed.

c. Mr Akmal’s appeal seeking to set aside the Independent Adjudicator’s decision in respect of Count No. 2 is allowed in part and dismissed in part.

i. The determination by the Independent Adjudicator that Mr Akmal is guilty of an offence under Article 2.4.4 in failing promptly to report the approach and/or invitation by one Maya in January/February 2020 to the VSD is confirmed.

ii. The Independent Adjudicator’s sanction on Mr Akmal in respect of Charge No. 2 is set aside and in its place the following sanction is imposed: (1) a period of ineligibility of 12 months and (2) a fine in the sum of PKR 4,250,000.

d. Mr Akmal’s request for an order that the PCB return his two mobile telephones is declined.

e. All other grounds of appeal and requests for relief are hereby dismissed.

Umar Akmal v. PCB & The Independent Adjudicator on the Appeals & The Anti-Corruption Tribunal, award of 24 February 2021

ON THESE GROUNDS

The Court of Arbitration for Sport rules that:

1. For the reasons set out above:

a. The appeal filed by the Pakistan Cricket Board against Mr Umar Akmal (CAS 2020/A/7358) with respect to the decision rendered by the Independent Adjudicator’s dated 29 July 2020 is dismissed.

b. The appeal filed by Mr Akmal against the Pakistan Cricket Board (CAS 2020/A/7366) with respect to the decision rendered by the Independent Adjudicator’s dated 29 July 2020 is partially upheld.

c. The determination by the Independent Adjudicator that Mr Akmal is guilty of an offence under Article 2.4.4 in failing to promptly report the approach and/or invitation by one Maya in January/February 2020 to the PCB Vigilance and Security Department is hereby confirmed.

d. The sanction imposed by the Independent Adjudicator in respect of this offence is modified: Mr Akmal is sanctioned with a period of ineligibility of 12 months, together with a fine equal to PKR 4,250,000 Pakistani rupee. The period of ineligibility shall commence on 20 February 2020 (ie the date of provisional suspension).

2. (…).

3. (…).

4. All other motions or prayers for relief are dismissed.