Ben Stokes and Alex Hales have been named in England’s one-day squad for the five-match series against Australia in the new year.
Stokes, 26, has not played since being arrested following an incident outside a Bristol nightclub in September.
He is not available for selection until the Crown Prosecution Service (CPS) decides whether to charge him.
Once a decision has been made, the England and Wales Cricket Board will decide on disciplinary action.
Hales is facing no criminal charges for his involvement in the Bristol incident but he too could be disciplined by the ECB.
Being named in the squad does not mean either will play in Australia. Stokes remains part of England’s Ashes squad despite not travelling with the team.
Instead he is playing domestic cricket in New Zealand for Canterbury while a legal decision is made.
The first one-day international in Australia takes place on 14 January in Melbourne.
I am sure there will be scrutiny – Bayliss
Head coach Trevor Bayliss conceded that whenever Stokes returns to playing cricket for England, it will be “a circus”.
Asked if he will be happy to have Stokes and Hales back in his one-day team, he said: “It will be good. They are two quality players in a successful one-day team over the last two years.
“I am sure there will be scrutiny. We won’t know until it comes along. We have got to adjust to that at some stage.”
Only Test skipper Joe Root (sixth) is ranked higher than Hales (18th) in the one-day game, but the Notts opener is not guaranteed to play even if he is cleared by the ECB.
Eoin Morgan’s side ended the summer with Jason Roy and Jonny Bairstow as their opening pairing, with the latter scoring an unbeaten 141 in his last ODI.
“The two openers we had did very well,” said Bayliss. “We could bring him [Hales] in and drop one of those guys and someone else will be upset.
“Jonny and Jason have played well at top of the order so I can’t see any changes there.”
Analysis – ‘It’s very confusing’
Test Match Special pundit and former England captain Michael Vaughan on BBC Radio 5 live:
“It’s very confusing, but I don’t think anything has changed really.
“It’s the same situation we are in now, he’s not here playing for England because he is not deemed selectable.
“It’s a hard one for the ECB, it is very difficult for them, there will be many England fans out there saying ‘he’s playing in New Zealand, he’s playing for Canterbury, why isn’t he playing for England?’ That is the confusing fact.
“I think that by allowing him to play cricket, I get the England fans, I really do, but I also understand the ECB are in a very precarious position.
“They don’t want to prejudice any kind of case moving forward, they’d had to include him in the squad, but I would bet my bottom dollar that unless this case comes to an end very quickly, there is no chance that Ben Stokes will play cricket in Australia this winter.”