RWC Part XV - Eliota Fuimaono-Sapolu Decision.

It's hard not to feel sorry for Gloucester Rugby.

They have done everything right. They have a policy on social media, put in place after controversial Twitter posts. You can read the announcement on it HERE. And who do they have smiling happily at top left?

Yup. Eliota Fuimaono-Sapolu. As most Shedheads have learnt over the last few years; when your luck's out, your luck's out.

The decision on Fuimaono-Sapolu's citing for bringing the game into disrepute is now out, and can be read HERE. What I want to deal with in this post is the effect of this on the player's employers, especially the question of defamation.

I raised this issue in a previous post. It turned out to be pretty on the money. To quote from paragraph 23 of the decision:

The suggestion that this is an exercise of free speech is specious – there are limits to what one may say about others and those who are maligned without justification can seek relief through defamation proceedings – the statements used here cross those limits.

Now, let's pause here and think who said this; His Honour, Judge Jeff Blackett. Judges do not use words like "can seek relief through defamation proceedings" lightly. Now, I may be putting two and two together and making five; if I am, I apologise to the learned judge. But it's highly significant, because it's bringing the spectre of a player being sued for defaming a referee into sharp focus.

And for a player's employer, that's a nightmare. Because, this is the issue I raised the other day - the issue of vicarious liability, an employer being held liable for the actions of an employee. This is what the learned judge had to say on the topic:

I have no doubt that they have acted responsibly and done all that they could to control their players... In this case the Player was intent on speaking out and I do not believe that the SRU could have done anything else to prevent his misconduct. Nevertheless the Union is vicariously liable for the acts of its players and I must mark that relationship with a sanction. 

So, an union - or, presumably, a club - is, in rugby terms at least, liable for what its players do. There's now a precedent, from a judge - again, not a man who would lightly use terms of art like "vicarious liability" -  that Twitter use is close enough to the job of being a rugby player to make an employer liable for what the player tweets.

At which stage, if you're running a club or union, you should start getting worried. Not only is it enough to have a social media policy - there was one at the RWC, as one can see from the decision - not only is it enough to do one's best - Samoa did, everyone agrees - if it happens, one can be liable.

Ex-Harlequins player Sam Stitcher passed THIS article onto me. While I have no link to AIG - nor, so far as I know, does Sam - it strikes me as a good idea. Social media insurance now seems to be a very prudent investment for a club with players who can get them into trouble. It's a belt-and-braces approach; but, if a club or union is vicariously liable for what's tweeted, then the whole reason for belt-and-braces comes to the fore. It's to prevent being caught with your pants down. Samoa don't have a lot of money; they could well have ended up being fined a lot of it due to Eliota Fuimanoa-Sapolu's tweets. At that point, you're either glad you have, or wish to God you had, insurance.

This is an area that is developing fast. But no club can afford to take lightly the combination of vicarious liability, defamation, and "ambassadors" losing the run of themselves on Twitter; until this becomes more certain, it would seem prudent not to risk having to pay out if a player lands you in the unpleasantness.

Meantime, poor Gloucester are waiting to see if their "ambassador" will ever play rugby again, or even turn up to training [update; from his Twitter feed, he has]. As I said; it's hard not to feel sorry for them.

But I suspect they won't be the last dealing with these problems.