David Teeger, Cricket SA and freedom of speech — what a tangled web we weave

The decision by Cricket South Africa (CSA) to relieve David Teeger of his captaincy of the South African Under-19 cricket team, ostensibly because of a risk that protests about the Israeli war on Gaza could “result in conflict or even violence” at the Under-19 World Cup tournament starting on Friday has been widely (but wrongly) condemned as a flagrant and outrageous breach of Mr Teeger’s right to freedom of expression.

Controversy erupted late last year after Teeger – then still a schoolboy – in off-the-cuff remarks at the Jewish Achiever Awards ceremony dedicated his “Rising Star” award to “the state of Israel and to every single soldier fighting so that we can live and thrive in the diaspora”, saying that the “true rising stars are the young soldiers in Israel”.

Wim Trengove, an independent arbiter appointed by CSA to deal with complaints made against Mr Teeger, later found that Mr Teeger’s statements were not in breach of the relevant provisions of the CSA and Lions Codes of Conduct that prohibits cricketers – among others – from making statements “that are detrimental to the game of cricket in general”, notably because the remarks were not made on a “cricket platform” and thus did not purport “to associate and align the game of cricket with a divisive cause”.

I am rather sceptical about the claim by CSA that Teeger was relieved of the captaincy because of concerns about security at the Under-19 World Cup tournament, and am willing to assume (without making a definitive claim) that Mr Teeger was in fact removed as captain because of his controversial statements in support of Israel and its soldiers fighting in Gaza, and thus that freedom of expression does come into play in this case.

But while CSA deserves criticism for the manner in which it has handled the matter, many of those who criticised CSA’s decision on free speech grounds entirely missed the point, often by making sweeping claims about freedom of expression whose consistent application they themselves could not possibly support – although some might very well not realise how flawed their reasoning is.

What this case illustrates is just how difficult it is to devise (and consistently apply) a clear set of free speech principles to ensure the fair and consistent regulation of controversial statements made by members and captains of national sporting teams in accordance with democratic values of dignity, freedom and equality (similar issues also arise in the workplace.)

Read more in Daily Maverick: Cricket SA never took a principled stance on Teeger situation, and it backfired

Members of national sporting teams are usually required to abide by a code of conduct that invariably places limits on what they can and cannot say and do, thus limiting their right to freedom of expression. Any restrictions on speech imposed by such a code as well as the manner in which the code is enforced must also be constitutionally compliant.

In practical terms this means that such restrictions must be reasonable and justifiable, weighing up the importance of the purpose of the restriction against the seriousness of the limitation. There must also be a rational connection between the limitation and its purpose. Moreover, where restrictions on speech are overbroad, the code (or a specific application of the code) might not pass constitutional muster.

Such codes often contain entirely uncontroversial general clauses prohibiting players, for example, from saying or doing anything that would bring the sport or the team into disrepute. It is the application of such clauses that creates difficulties.

From this, it must be clear that claims that members of national sporting teams have (or should have) an absolute right to say what they wished as long as the speech did not fall foul of the prohibition on hate speech (as some have claimed with regards to Mr Teeger), is obvious nonsense, both as a matter of constitutional law and as a matter of common sense.

Let me provide a few examples to illustrate my point.

A Springbok rugby captain who calls the Hamas militants who – on 7 October 2023 – killed Israeli civilians, including children, “true heroes”; expresses admiration for his heroes, Adolf Hitler or HF Verwoerd; or is caught on video using the “k” word with reference to the president of the country or the leader of an opposition party, would – in my view – rightly be in trouble. Removing him as captain (and as a team member) in line with the relevant code of conduct would constitute an entirely permissible limitation on his right to freedom of expression.

As a citizen, the specific rugby player would continue to have a right to express these views, but as a captain of the Springboks – representing the sport of rugby, the team, and the entire nation – he would not.

On the other extreme are those who argue that there is no place for politics in sport and that it would (or should) be entirely permissible to prohibit members of national sporting teams from doing or saying anything “political” in public.

This view, too, is nothing more than nonsense on stilts, not only because such a sweeping prohibition would unjustifiably limit the right to freedom of expression, but also because national sport is political and it is therefore impossible to maintain an absolute separation between sport and politics.

Any South African who had paid any attention to the Springbok World Cup campaign would be hard-pressed to disagree with this claim.

The assessment of whether a specific statement or act of a captain or other member of a national sporting team had brought the sport or team into disrepute, taking into account freedom of expression concerns, would often be difficult to make. How an individual viewed the particular statement or conduct may well influence their view on whether action against the individual would be warranted or not.

One of the benefits of playing the freedom of expression card is that it allows one to defend shocking or highly unpopular statements with which one has sympathy without having to admit to it.

Blind support for the Israeli army and its soldiers… could no longer be said to fall within the range of opinions on which reasonable people in South Africa could differ.