RUGBY FOOTBALL UNION COMPETITIONS APPEAL DECISION

Transcription

1 RUGBY FOOTBALL UNION COMPETITIONS APPEAL DECISION 1. This is an appeal against the decision of the London & SE Divisional Organising Committee ( the DOC ), to uphold the decision of the Intermediate Cup Administrator, confirming that Hampstead RFC ( the Club ) (a) shall pay a withdrawal fee of 100, and (b) shall not be invited to participate in any RFU knock-out competition for a period of two years, as a consequence of the failure to honour its fixture against Rochford Hundred RFC ( Rochford ), scheduled to take place on 18 November This appeal is made pursuant to RFU Regulations, and Hearing Venue: Bloomsbury Hotel, London Date of Hearing: 29 January Appeal Panel Members: Aidan O Brien, Roger King & Leon Pickering ( the Panel ). Judicial Secretary: John Crate, Surrey CB Discipline Secretary. Participants: Mr Jon Boyle, Club President. Mr Peter Breen, Club Head Coach. Mr David Williams, DOC Chairman. SUMMARY OF DETERMINATION 2. The Panel concluded that the Club s appeal should be dismissed. The appeal fee is to be retained. Subject to RFU Regulation , the Panel s determination is final and binding, as per RFU Regulation PRELIMINARY MATTERS 3. The participants confirmed that no objections were taken as to the composition of the Panel. In addition to the hearing bundle, the Panel had the benefit of submissions from each of the above listed participants. 1

2 4. Prior the Appeal hearing, the Panel was also provided with a document entitled RFU National Knock-Out Competitions : Regulations relating to withdrawal from a Cup Competition after the initial draw is made, issued by the Cup Administrator, dated 8 July 2014 ( the Directive ). It was confirmed that (a) the Club had at all material times been aware of the Directive, and (b) the Directive (and/or one to the same effect) remained effective for the season. BACKGROUND FACTS 5. On 18 November 2017, the Club were scheduled to play a home fixture against Rochford, in the second round of the Intermediate Cup ( the Fixture ). The Intermediate Cup is a knock-out competition, exclusively for clubs at Level 7 of the game. The Club participates in the London 2 North West league. Rochford participates in the parallel London 2 North East league. 6. By dated 14 November 2017, the Club notified the Cup Administrator that they would be withdrawing from the Fixture, on the basis that: Our coach has been liaising with a club that he has worked at before in Rochford's league and been advised that they have 8 salaried players from Southend playing for them, and Rochford are paying for these services. If true, then we are not prepared to risk our players' safety playing against a number of players who are used to playing a significantly higher level and risk our players picking up injuries. A team in our league had a similar set up with Saracens last year and in that game several of our players received injuries which kept them out of a number of games and impacted on the rest of our season. We do not want a repeat of this. Whilst I offer my apologies for this, and appreciate that it is not what you want to hear, we feel that if clubs act in this manner in amateur rugby it spoils it for those who want to play this level of rugby for their own enjoyment and pushing 2

3 themselves at this level and do not wish to come up against superior players playing for cash, regardless of the possible injuries. We await your decision on the penalty that we will receive for our withdrawal, but would like the above to be taken into consideration by the relevant committee. We are not withdrawing due to lack of players or the travel (as this is a home game in any case), but due to a genuine concern for our players' safety. This decision has been made by the first team captain and coach with the full support of the relevant executive members. 7. By dated 23 November 2017, the Cup Administrator replied, inter alia, confirming that: I note the contents of your below and your request therein that I take into account your submissions before applying a sanction. There are no Contracted, i.e. salaried, players registered at Southend who are currently playing at Rochford and there are no connections either financial or in terms of loans or dual registrations between the two clubs. I can confirm, therefore, that every player selected by Rochford is solely and exclusively registered at that club and all are entirely in accord with both League and Cup Regulations and RFU Regulations with regard to the Registration of Players. As a consequence; it must follow that any submissions based on inaccuracies cannot, in fact, be considered as mitigation I am satisfied that the sanctions laid down in Cup Regulation relating to withdrawal are applicable and a Penalty Notice is, therefore, attached. 3

4 8. The Penalty Notice confirmed that the Club (a) must pay a withdrawal fee of 100, and (b) would not be invited to participate in any RFU knock-out competition for a period of two years, following receipt of payment. 9. By dated 30 November 2017, Mr Jon Boyle requested a formal review of the aforementioned Penalty Notice ( the Review Request ). The Review Request clarified that: (a) The Club accepted that Rochford did not field players contracted to Southend RFC, nor was there any financial and/or formal relationship between the said clubs (in respect of loans, dual registration or otherwise). (b) The Club had withdrawn from the Fixture due to legitimate concerns regarding player safety. This concern was borne from the belief that Rochford could field a significant number of players with National 2 (Level 4) or National 3 (Level 5) experience (potentially up to eleven), and could not, therefore, be considered a Level 7 team. The Club was also aware that Rochford s league results and average points difference demonstrated a marked mismatch in skill and performance when playing Level 7 opposition. (c) The Club accepted that they expected teams to have the odd player with experience at a higher level. In fact, the Club had two and had previously had three such players. The inclusion of the odd player from leagues above is welcome and healthy however, it felt that the Rochford case was unprecedented and dangerous. (d) The Club requested that the Penalty Notice be set-aside in toto. 10. Following receipt of the Review Request, some confusion appears to have arisen as to the Club s intentions, given that the review fee cheque was sent to the Divisional Administrator without accompanying explanation. In any event, by dated 4 December 2017, the Cup Administrator, enquired as follows: Do I now understand from your that you are not alleging that Rochford Hundred have breached any Regulations whatsoever? If this is so, would you not agree with me that you, Hampstead RFC, are the ones who are in breach of 4

5 Regulation from which it would logically follow that you are liable for the sanction? 11. On 8 December 2017, the DOC convened a three-member panel, chaired by Mr Williams, in order to consider the Review Request. The DOC produced a written decision, confirming that the submissions within the Review Request had been considered and concluding that: The Panel considered all the evidence at its disposal. The Panel notes that Hampstead has withdrawn its allegation of dual registration or other financial connection between Rochford Hundred and Southend. The Panel understands that the sole reason for withdrawal was the probably disparity of strength and experience between the two Clubs. The Panel points out that the Intermediate Cup is a competition for Clubs at level 7 only. Entry is purely voluntary and the penalties for subsequent withdrawal from the competition are clearly set out at the time of entry. Clubs cannot pick and choose their opposition. However, it within their right to withdraw, but unless the circumstances are exceptional (usually involving non-rugby reasons), the specified sections will be applied. The Panel rules that Hampstead failed to honour the fixture for reasons that are not acceptable to the Panel and it confirms the Cup Administrator s decision GROUNDS OF APPEAL 12. On 20 December 2017, the Club notified the RFU of its intention to appeal the DOC s decision. By dated 24 December 2017, the Club submitted formal grounds of appeal ( the Grounds of Appeal ), reiterating the contents of the Review Request and, inter alia, adding: In respect of the specific grounds for appeal, we believe the relevant regulations are (ii) (a), (c) and (d): 5

6 (a) came to a decision to which no reasonable body could have come; or (c) failed to act fairly in a procedural sense; or (d) the sanction imposed was so excessive/lenient as to be unreasonable In summary this is because: The Cup administrator and the initial appeal body failed to address in any way the substance of our concern about player safety The original decision to penalise the club appeared based on a misunderstanding of what we were saying Subsequent correspondence with the Cup administrator on Dec. 4 was unhelpful, did not address the substance of our case or make the correct procedures easy to understand Hampstead was not informed that an Appeal hearing had been a) agreed to b) called c) the Club was not to give evidence and d) the Club was informed of the result only after the fact Given that the substance of our case has not been given a proper airing or addressed, it seems to us improper to impose a fine or ban. 1/ Let me say from the outset that our original letter informing the Cup administrator of our decision to withdraw was perhaps a little clumsily phrased: we have no actual evidence that any Rochford players is salaried and we were only suggesting that they USED to play for Southend, not that they were still registered there. I think it is not difficult to understand why the Administrator might initially have misapprehended that part of our case. However, he did not contest that a large number of Rochford players had very recent experience playing in superior leagues; nor did he address the safety issues that follow from this. Indeed, he used those misunderstandings as a justification to throw out the entire case:...it must follow that any submissions based on inaccuracies cannot, in fact, be considered as mitigation 6

7 So there was no acknowledgement of the substance of our case a concern for player safety from the start. My response of Dec. 6 sent chapter and verse on the payment and asked for the substance of our case to be addressed by someone involved with the Cup. Otherwise we asked for someone to whom we could refer our concerns. However, the next contact I received was notification of the RESULT of an appeal hearing. We were not invited to the hearing, asked to give evidence, informed that it was taking place or even told who was hearing the matter. This is wrong on every level. When a player in our league is red carded, Middlesex calls a formal hearing, the player and club officials are asked to attend and give evidence, and clubs are given a formal response in writing. The Cup administrators seem to have taken no account of the basic demands of natural justice. It must not only be done but seen to be done. Finally, the wording of the Appeal Panel s final ruling is telling: The Panel understands that the sole reason for withdrawal was the probably disparity of strength and experience between the two Clubs. Understands' and probably' are simply not good enough, especially when we have not been asked to attend the hearing. Again, there is no reference at all in the decision to our substantive point about player safety. There is suggestion the point was discussed or, if it were, that it was dismissed as a complaint and on what grounds that decision was reached. This rather suggests to us that it was not seriously considered at all. I think that given the recent focus on player safety by the RFU, the issue at least warrants a direct response. At no stage, however, have our safety concerns been addressed. It seems to Hampstead RFU, therefore, that is indeed unreasonable to impose a two year ban and fine on the Club. Faced with our concerns about player safety, we have had a disheartening response full of proceduralism and a failure to ensure the needs of natural justice are adhered to. We wanted the player safety 7

8 issue openly addressed and for the Cup administrators to take a clear stance on the matter. However, they have repeatedly declined to do so. We do not think this is right or proper these young men all have careers and jobs outside of rugby and their safety is of paramount importance to us. APPLICABLE REGULATIONS 13. RFU Regulation 13 applies to Adult Competitions. The following extracts were reviewed and considered potentially relevant to the present case: Delegation by RFU The Committee may delegate to the committees set out below such powers as it deems appropriate in relation to the day to day operation and administration of the RFU Leagues, RFU Cups and/or such other leagues and competitions: (ii) the appropriate Divisional Organising Committee as the Organising Committee in relation to Levels 5 and below; Subject to the approval of the Committee, the powers delegated pursuant to Regulation above may be further delegated to any Division, Constituent Body or other person, firm or company, media agency or competition administrator. Such delegated bodies may also produce Administrative Instructions for the operation and administration of RFU Competitions for which they are responsible provided that any such Administrative Instructions are approved by the Committee. Power to vary, disapply, amend or make further regulations during the season In the event that the Committee considers it is in the interests of rugby union football or an RFU Competition, it may amend or vary RFU Regulation 13 and the Appendices and/or make further regulations during a Season: 1 (a) where in the view of the Committee exceptional and material circumstances have occurred during any RFU Competition which either have not been provided for or cannot be equitably dealt with under RFU Regulation 13 (particularly if 8

9 promotion or relegation is likely to be materially affected), the Committee may at its own instigation introduce regulations for the current Season and/or determine the results of matches that have not been played for reasons related to the above exceptional and material circumstances and/or determine which Clubs should or should not be relegated) Conditions on Membership or Participation The Committee shall have the power at any time prior to or during the Season to impose conditions upon the membership or continued participation of any Club or Constituent Body in any RFU Competition (excluding Premiership and Championship). Any Club or Constituent Body failing to comply with such conditions shall not be entitled to enter the RFU Competition or to continue to participate in it. Conditions on Membership or Participation In respect of Cup Competitions (excluding the Anglo-Welsh Cup and British & Irish Cup), the Committee: (b) determine that any Club which failed to honour a fixture in any RFU Cup Competition in the previous Season (or which withdrew from such competition subsequent to 1 August 2017 having previously agreed to take part) or any other Club which in its opinion should not be permitted to take part in the Competition shall not be eligible to participate in any RFU Cup Competition. 14. The Cup Administrator s Directive, inter alia, states: The London Divisional Organising Committee has become increasingly disappointed over the years by the apparent lack of concern that has been shown by some clubs in fulfilling Cup fixtures Hitherto the penalty for withdrawal from the Cup has been largely a token gesture of not receiving an invite to enter the following season but the London DOC, at its annual meeting in May 2013, decided that they would institute more meaningful 9

10 strictures Accordingly; from August 1 st 2014 when the draws are announced and for the duration of the competitions the sanction for withdrawing from the competitions will be: 1. The charge of a withdrawal fee of ONE HUNDRED POUNDS. 2. The withdrawal of any further invitation to enter any National Cup competition until a period of two full calendar years has elapsed AFTER the date of receipt of payment of the withdrawal fee This notice is issued with, and forms part of, the conditions and invitation to enter the relevant National Cup competition and is referenced on the entry form for that competition Discipline and Dispute Resolution Disciplinary Powers (a) Specifically and without prejudice to such other powers as may have been granted or referred to elsewhere in RFU Regulation 13 and subject always to a right of appeal to an Appeal Panel by any Club or affected person, the Committee shall have power to discipline any Club for breach of any of these Regulations. (b) The Committee shall have the right to delegate disciplinary powers (other than the power to expel or suspend from membership of the League Competition) for any breach of RFU Regulation 13 to an Organising Committee (which can in turn delegate all or part of its powers to a person acting as a League Secretary or to a sub- committee) subject to the rights of appeal as hereinafter provided. Review by Organising Committee If the Club or Player (in respect of above), or either party to the complaint or dispute or any other person or Club (in respect of above) is dissatisfied with any ruling made under Regulations or above there shall be a right to request a review of the decision. (b) in the Anglo-Welsh Cup, the British & Irish Cup and the Semi-Finals and Final of the Intermediate Cup, Senior Vase and Junior Vase a right to request a review 10

11 shall lie from RFU Rugby Events and Competitions Department to the Competitions Sub-Committee (or its delegate) If the Club or Player (in respect of above) or either the complaining Club, or the other party to the complaint or dispute, or the Club or Player against whom the complaint is made (in respect of above), wishes an oral hearing, it must be requested in writing at the time the application under Regulation is made (or in the case of the other party within 5 days of being made aware of the application under Regulation being made). If the Committee considers (in its absolute discretion) an oral hearing to be appropriate, the Committee shall, within five days of receiving notice of such request, appoint a time, date and place for the hearing of such 1 review. The person who has given a ruling shall not be entitled to take any part in the review of a ruling he has given other than to explain the reasons for his ruling. 15. RFU Regulation dictates that appeals from decisions made under Regulation 13 shall be made in accordance with Regulation RFU Regulation further provides that the Panel: shall only depart from the application of RFU Regulation 13 in exceptional circumstances where the Appeal Panel is of the opinion that the application of RFU Regulation 13 has resulted or would result in a perverse and/or unfair outcome. SUBMISSIONS 16. The Panel heard submission from both Messrs Boyle and Breen on behalf of the Club. In summary, the Club s position remained as enunciated within the detailed Grounds of Appeal. 17. The following further points were of particular note: (a) The Club acknowledged (a) the power of the DOC to issue the Directive, (b) the applicability of the Directive to the Fixture, (c) the legitimacy of the Directive, and (d) its prior knowledge of the Directive at all material 11

12 times. Notwithstanding this, the Club considered the strict application of the Directive to be unfair in the present circumstances. (b) The Club considered the DOC s decision-making process to have been procedurally unfair. It was submitted that the Club was provided with little or no guidance as to the applicable Regulations governing the Review Request and/or the conduct of the DOC s consideration of the same. The Club confirmed that it was unaware of the need to request an oral hearing, if so desired, under Regulation (c) The Club accepted that its initial withdrawal notification submitted to the Cup Administrator had raised a series of erroneous concerns regarding financial and/or other links between Rochford and Southend RFC. Notwithstanding this, the Club argued that the Cup Administrator failed to give any or any due regard to the central thrust of its concerns player safety and welfare. (d) The Club contended that the present case represented exceptional circumstances, permitting and/or requiring the Cup Administrator and/or DOC to depart from the strict application of the Directive. The Club accepted that the participation of some players with recent playing experience in higher leagues could be positive for the game, however, the participation of as many as eleven in one team represented a risk to player safety. (e) The Club confirmed that at the time of the Fixture, it was in a promotion battle within its League and a number of its first IV were carrying niggles and would need to be rested. The Club considered the available players to have insufficient skills, experience and/or physical attributes to safely compete against the Rochford team. (f) The Club acknowledged that the referee officiating the Fixture would have an overriding obligation to take action if the game became an unreasonable risk to player safety. Despite this, the Club made the decision to withdraw before the date of the Fixture to avoid disappointing the various attendees. (g) The Club accepted that it had no relevant and/or recent experience of playing against Rochford, but argued that its concerns were reasonable in light of anecdotal accounts from members of teams who did have such experience. 12

13 (h) The Club invited the Panel to consider suspending the sanction as provided under the Directive for a period of two years. It was submitted that the sanction was excessive in these circumstances, notwithstanding the terms of the Directive. 18. In addition to the Club s submissions, the Panel was assisted by further evidence from Mr Williams, in respect of the information provided to clubs before participating in Cup competitions and the possible routes by which a club may communicate general concerns as to the composition of competition compositions and/or issues of player welfare to the DOC. APPEAL PANEL S DETERMINATION 19. Following submissions, the Panel took time to deliberate and concluded that the Club s appeal should be dismissed. 20. The Panel did not consider that the Club Administrator and/or DOC had acted in a manner that was procedurally unfair. The Panel acknowledges that the Club s initial interactions with the Cup Administrator would have been aided if the Club had been directed to the applicable RFU Regulations. Notwithstanding this, the RFU Regulations are published and readily available to clubs. It is the obligation of all clubs to familiarise themselves with the Regulations and no basis of appeal to argue ignorance of the same. 21. The Club failed to appreciate that it was required to request an oral hearing at the time of requesting the Review Request (if one was desired). The Club did not request an oral hearing and the DOC therefore appropriately proceeded to consider the matter on the papers and in the absence of the Club. 22. The Panel recognised that the Club s initially cited reasons for withdrawal could have distracted from its overarching concern, regarding player welfare (which was unaffected by any supposed financial and/or formal links between Rochford and Southend RFC). Despite this, it was apparent that the Cup Administrator imposed the Penalty Notice following consideration of the Club s full submissions, which 13

14 included clear reference to player safety concerns (contained in the , dated 14 November 2017). Moreover, the DOC s decision clearly cited, considered and rejected the Club s revised submissions contained within the Review Request, which again made clear that player safety was the reason for withdrawal. The Panel therefore determined that the imposition of the Penalty Notice and the rejection of the Review Request were decisions that a reasonable body could make. 23. The Panel accepted that the Club s withdrawal from the Fixture was well meaning, however, in the circumstances it was not reasonably justifiable. The Panel noted that: (a) The Club unilaterally made the decision to withdraw without seeking to raise its concerns with the Cup s administrators and/or referee. If the Club had concerns regarding player welfare it was incumbent upon it to raise the same through such channels rather than withdrawing from the Fixture 4-days beforehand. (b) The Club had no direct experience of recent games against Rochford and therefore based its decision to withdraw on anecdotal reports from other teams. The Club s decision was therefore based on an assumption that it would be dangerously mismatched. (c) Rochford had played a number of league games before the Fixture. Whilst Rochford consistently won these games, and often by a significant margin (averaging around 53 points difference), it remained a fact that all its (Level 7) opposition had honoured the fixtures. (d) The Club had beaten an opposing team within its own League (both home and away) by >80 points. This demonstrates that there will be some fixtures within most leagues, which involve significant mismatches in skill, ability and physical prowess. This does not necessarily render such games an undue risk to player welfare. (e) The Club did not consider the participation of players with higher league experience to be dangerous per se. The Club considered some such participation to be a positive thing (and did in fact field some such players itself). It is not uncommon for teams to recruit from above and seek rapid promotion through the league structures. The Club was unable to identify the 14

15 number of higher league experience players that it was acceptable to field before a game became a danger to player safety. (f) The referee scheduled to officiate the Fixture was well placed to adjudge the safety of its participants. If the Fixture had become an unreasonable danger to the Club s players the Panel would expect action to have been taken by the referee. 24. In conclusion, the Panel did not find that the consideration of the Club s withdrawal by the Club Administrator and/or DOC involved any procedural unfairness. The Club Administrator and DOC came to decisions, which were within the range of reasonable determinations open to them. The applicable sanction for withdrawal, and rationale underpinning the same, is set out within the Directive. There were no exceptional circumstances warranting a departure from the Directive in the present instance. The appeal is hereby dismissed. Aidan O Brien Roger King Leon Pickering POSTSCRIPT 2 February The Panel would like to express its gratitude to all participants for the clarity of their submissions and assistance during the hearing. The Club s representatives are clearly passionate about the integrity of our game and the safety of their players. This is to be commended, irrespective of whether withdrawal in this instance was justified. In future, the Club may wish to raise their concerns, regarding mismatched teams, in other forums. 15