No Biff with working under any boss — Smith
Acting CEO knew about termination clause and did nothing. It has since been removed
● Cricket SA’s acting CEO Jacques Faul was aware of a contentious and conflicting termination clause in director of cricket Graeme Smith’s contract, but did not act on it.
But in yesterday’s press conference Smith didn’t refer to his contract, saying he’d be happy to work under any CEO. Faul’s secondment ends in September and the investigation and report into suspended CEO Thabang Moroe hasn’t been made public.
In a memo and a copy of Smith’s draft contract the Sunday Times has seen, Smith had a clause (9.3) that said: “Notwithstanding clause 9.1, it is specifically recorded that the contractor shall be entitled to summarily terminate this agreement on written notice to CSA if Jacques Faul is no longer the acting chief executive officer or chief executive during the term, for whatever reason.”
Concerns raised
According to the memo, CSA’s company secretary, Welsh Gwaza, raised concerns about the clause, which has since been removed in Smith’s signed two-year contract that runs until March 2022 with the option to extend for a further year.
“I know Jacques will be leaving and there will be a new board structure after the AGM, but the motive doesn’t change. Regardless of who comes into the job, we need to be able to challenge each other in many ways. I have no problem with who comes in unless that person doesn’t feel I’m the right person for the job,” Smith said.
“You have to remember how dire things were in the couple of months leading up to when I got involved. Even then, getting involved had a lot of uncertainty, so you’d want to cover your bases and make sure you’re protected.”
In the memo, Gwaza said the clause was not only unusual, it created a perception of conflict of interest where Faul is concerned.
According to the memo, Faul recused himself as CSA’s point person in the contract negotiations after the matter was raised.
“The clause on plain sight appears to create a benefit [direct or indirect] for Jacques Faul, who is mandated by CSA to negotiate the contract with Graeme Smith,” Gwaza wrote.
The memo further said the clause wasn’t accepted on the grounds that CSA’s board would have delegated its appointing authority to the contractor (Smith), who’d then have to report to that CEO, the clause was “unconscionable and made in bad faith” and it created a benefit for the acting CEO, who had continued to negotiate the contract on behalf of CSA even though he was aware or had been made aware of the clause by Smith’s lawyer David Becker and CSA members.
Faul responded to Gwaza’s comment by saying the suggestion to remove the right to terminate would not be accepted by Becker.
“I am not aware if you know that he refused to report to the suspended CEO. Graeme generates income via his IP [international profile] and he has a fear that he’ll be tainted if he’s associated with people that aren’t viewed in a positive light by the public,” Faul wrote.
“Your comments suggest that we should reopen negotiations with Smith. I can honestly not see this happening.”
On April 6, Becker told Faul that Smith agreed to remove the clause.
“If things really go downhill, or there is a massive scandal, for example, he will have to rely on the three months’ notice period,” Becker said.
Smith’s previous contracts
Contacted for comment last week, Faul said he hadn’t seen Smith’s previous contracts.
“I don’t know. I haven’t seen his previous contracts. The one I signed didn’t have it. He could have had issues previously and could have noted that he wants to be happy with the CEO. The signed contract doesn’t have that,” Faul said.
When contacted this week with a list of questions, Faul said he personally removed the clause from the contract.
“The president has already made it clear to you the board would not be prepared to accept such a clause in any staff member’s contract. I would add that I personally had the clause removed. It was the board that contracted Graeme Smith and not the acting CEO.”