07 December 2018 - Article
I was recently asked to comment on the Ben Stokes saga by the BBC – one point which we discussed (although not broadcast) was how Stokes can best handle the potential fallout in terms of managing his reputation.
The background to this inherently newsworthy piece has been rehashed throughout the media, with various theories, explanations, defences and criticisms of Stokes. At the outset, it is worth stating that he was released without charge. He was arrested on suspicion of causing actual bodily harm reportedly following a lengthy drinking session in Bristol towards the end of September.
The timing could hardly have been worse. The alleged altercation took place a few hours before the Ashes' squad was announced, throwing the ECB's preparations into total disarray. He was originally included in the squad as vice-captain as the Director of England Cricket Andrew Strauss stressed that the selectors chose 'based on form and fitness'. The ECB confirmed that he would not travel to Australia and Strauss explained: 'We have spoken to Ben and assured him that our decision in no way prejudges the outcome of the ongoing Police investigation or Cricket Discipline Commission process, as can be seen by the award of Central Contracts'.
A mere few days before the incident, Stokes gave an unfortunately timed interview to the Times where he was quizzed about his perceived temper and anger issues. At one point in the article, Stokes is quoted as saying: 'There's adrenaline there, but I'd never get close to punching someone…'.
What should Stokes be doing?
First, take legal advice from a criminal lawyer. Second, if his budget can stretch to it, also see a reputation management / media lawyer and instruct a decent PR firm to handle the aftermath and help rebuild his reputation off the field.
It's been widely reported that Stokes apologised to the ECB hours after the incident. Stokes acted sensibly by apologising swiftly, in my opinion. The timing of an apology can affect how genuine it appears to be. If it comes after weeks or months of public pressure for example, it likely will not be perceived as voluntary or sincere.
He needs to maintain a low profile and let his lawyers justify their paycheques. He is limited in terms of what he can say publicly at this time as the police are still investigating. However, this does not stop his team putting together a detailed press release for when the appropriate time comes. He also needs a coherent and consistent strategy of how to deal with the (presumably) numerous enquiries and a standard response for the time being that won't affect the investigation. He should instruct his lawyers to pressure his sponsors not to make any hasty decisions before the investigation is finished and the true story is established. However, this is easier said than done; New Balance has already decided to terminate his lucrative contract understood to be worth around £200,000 per year, stating:
'New Balance does not condone behaviour… that does not match our brand culture and values'.
This statement came just hours after a video was released of Stokes imitating Katie Price's disabled son, Harvey, triggering another apology from Stokes. It is not clear whether this influenced the decision, but one could imagine it may have swung the balance.
If he has apologised to the ECB, hasn't he admitted guilt?
It will depend on the wording of the apology, but the answer to the above question is not necessarily.
I remember being told in no uncertain terms by a well-respected professor years ago never to apologise to a client, even if you had done something wrong. I remember feeling pretty uneasy about this at the time, but my concerns were dismissed as I was told it could be seen as an admission of guilt. Not only is this questionable ethically, but it's also just plain wrong. See, for example, section 2 of the Compensation Act 2006 – 'An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty'. In defamation claims, a prompt and genuine apology can serve to mitigate some or all of the harm caused by the original libel (see also the offers of amends procedure in sections 2-4 of the Defamation Act 1996).
Of course, you should always take appropriate legal advice first, but a speedy apology can be critical. All too often, the erroneous belief that an apology equates to an admission of guilt can lead to substantial and unnecessary litigation costs when a simple 'sorry' (which costs nothing) could either mitigate some of the damage or resolve the issue completely. We have acted for a number of clients who would have accepted an early apology or retraction (saving both sides considerable time and expense). Just look at the recent Bell Pottinger PR nightmare for an example of how not to manage these situations and when an apology comes far too late.
As expected, Australia's players (both current and ex) have been quick to turn the knife although they are not immune to having 'colourful' characters in their team – think Shane Warne (banned for a year for a failed drugs-test), Michael Clarke (fined 20% of his match fee for telling James Anderson to 'get ready for a broken f****** arm') and David Warner (who punched the current England captain in the face after a night out in Walkabout). One thing is certain, whatever the outcome of the ongoing criminal investigation, there's only one winner in all this and it's the men in green caps.