HEC, PRL & Competition Law.

Who would have thought competition law would be of such interest to rugby players?

One of the features of the ongoing travails of European rugby has been intense reference to competition law (often under the title of "restraint of trade") by those involved in the discussions.

Various chairmen of the clubs in Premiership Rugby Limited (PRL), the company which runs the Aviva Premiership in England, have been waving the stick of competition law since the Fédération Francaise du Rugby (FFR), the IRB and various other unions have made it clear that the proposed breakaway tournament that PRL wish to set up, the originally-named Rugby Champions Cup, is viewed distinctly less favourably than the European Rugby Cup's (ERC) Heineken European Cup (HEC). The FFR has been reported all along as having turned its face against this newcomer, and the current position would seem to be that the French clubs have fallen into line (although in a dispute which feels as if it is approaching the length as well as complexity of the Thirty Years War, it remains to be seen how definite this is).

This positon led to club chairmen such as Nigel Wray of Saracens coming out with the comment "See you in Court, mate" to the IRB and unions he needed to persuade - which Metternich-like masterpiece of diplomacy suggests he may be somewhat confused about the operative word in the phrase "charm offensive".

There is an irony in this, of course. Sports is indeed subject to competition law (one can see a good background guide HERE); and PRL found that out when subjected to investigation by the Office of Fair Trading in the UK, and, more recently (with the RFU), when the rules about primacy of tenure in grounds as a qualification for promotion into the AP were challenged, successfully, by London Welsh via the RFU's own disciplinary systems.

The jurisprudence of the European Courts, referred to in that London Welsh decision, is clear that each incidence will be looked at on a case-by-case basis, with a recognition that, while they are subject to competition law, considerable margin of appreciation afforded to governing bodies like the unions who are looking at the benefit of the sport as a whole, as one can see in the MOTOE case about the organisation of Greek motorcycling. So, in Meca Medina, a case of the European Court of Justice (ECJ), where two athletes tried to have anti-doping rules struck down as affecting competition, the ECJ stressed that, while governing bodies are subject to competition law, purely sporting rules are not, and each case will be dealt with individually. So, it is hard to be definitive in advance about whether decisions where there is a mixed element of purely sporting organisation and the commercial side of sport will be anti-competitive, still less be so confident as to, in effect, dare the French state to back up its legislation whereby sporting bodies are bound by law by the decisions of their governing bodies.

The further irony is this: PRL has apparently contractually committed all its members to play in a new tournament which will be broadcast by BT, and to have no truck with an ERC-run competition (recently confirmed by Simon Cohen, CEO of the European and English giants, Leicester). It is an economic actor, in (by its own admission in the London Welsh decision) a dominant position in the English market - and it is restraining competition about which clubs can play what across Europe as a result of that committment. It is not a governing body, and attracts no margin of appreciation for its actions. And the recent reports from the Commission about the cartelisation of football are not what one might term sympathetic to the club side of the club-v-country arguments. Certainly, one doubts the Top14 would have relished attention being drawn to the acquisition habits of some of its clubs by being sucked into a case of this kind just as it is in the throes of negotiating a new broadcast deal of its own. This is all the more so  when litigation of this kind (involving assessment of what the relevant market is, the nature and shape of the market, and all sorts of other detailed examinations and documentation such as keep the lever-arch-file and banker's box business so buoyant) is of a length and complexity as could swallow half a playing career to resolve.

Even more pointedly, the European Commission, when examining the sale of broadcasting rights in the UEFA Champions League decision, laid down basic ground rules for the sale of exclusive broadcasting rights by an organising body to a broadcaster. These would include an open tender process - and a duration of no more than three years. BT Sport's deal with PRL to broadcast the Aviva Premiership - the foundation stone of the whole dispute, and the bread-and-butter of PRL clubs - is for four years.

On which note, one looks at the announcement (in Spanish) of some €14.5m in fines for selling exclusive broadcast rights in Spanish for four, as opposed to three, years - HERE - as well as the recent Commission announcement into the basic concept of selling exclusive territorial broadcast rights (as dealt with in THIS excellent blogpost from Blackstone Chambers), looks at that aspect of the BT Sports deal, and at the very least check wonder as to the footing of those at one stage so eager to litigate.

And it is at this point one is reminded why lawyers so rarely use phrases like "see you in Court" outside of the pages of fiction, and instead spend so much of their careers trying to settle cases outside of Court instead. Before telling someone you'll see them in Court, it it is always best to be entirely sure there's no way they could be happy to see you there, too.

HEC - Player Release Regulations, Unions and the Law

One thing that has constantly cropped up in discussions about the future of European rugby is the threat, if not naked then certainly in varying degrees of undress,  that players will be withheld from international duty by the English and/or French clubs unless their respective unions acquiesce.

It's surprising that it has been repeated so often without being critically assessed. Firstly, there are, of course, the requirements of the International Rugby Board Regulations on player release which you can read HERE (specifically, it's Regulation 9). Under IRB Bye-Law 7, there is a binding agreement between the IRB and the Rugby Football Union (RFU) to obey these and other IRB Regulations, and the RFU agrees to bind any and all rugby organisations  under its jurisdiction in like fashion. The RFU does so in its Regulations, specifically Regulation 2, which you can read HERE. Premiership Rugby Limited, and its constituent clubs, are bound to obey those regulations.

Secondly, and in a belt-and-braces approach, there is a binding agreement between Premiership Rugby Limited and the RFU that players will be released for international duty above and beyond the requirements of the IRB Regulations, details of which Long-Term Agreement you can read HERE. Notably, in all the ongoing kerfuffle, it requires that England players are rested by their teams - a plank in one's own eye ignored while pointing out the mote in others. Be that as it may, the teams cannot withhold their players from the international duty agreed under without breaking that agreement. As it is the same agreement giving them the right to sell broadcasting rights, which is the origin of most of this sorry mess, one doubts they'd be eager to see it torn up. It runs until June 30th 2016 - well after the next Rugby World Cup.

And lest there be any doubt, this point has been litigated. To no great astonishment, it was in Wales, where rugby seems on occasion to be less the national sport than a pretext for the real national sport of ferocious warfare over how rugby should be organised (a search of legal databases on rugby law turns up an entirely disproportionate number of results involving the Welsh Rugby Union (WRU) and its clubs and regions). Back in 2008, the Welsh regions were objecting to having to release players for a training session with Warren Gatland's Welsh team, Grand Slam winners of the previous Six Nations. They refused to release the players; and the WRU went to the IRB seeking a ruling. The IRB, interestingly, ruled that this was a private contractual dispute between the WRU and the regions. The WRU then sought an injunction compelling the regions to release the players on the grounds that there was a binding agreement between the regions and the WRU with which the regions had to comply.

The judge, Havelock-Allen QC, agreed in an unreported decision (the citation is [2008] EWHC 3399 (QB)), finding that each region had a participation agreement with the WRU whereby it agreed to be bound by the IRB Regulations, including player release. Applying a more stringent test than would be usual in deciding the balance of convenience for an injunction, he found that since losing players and prestige would damage the WRU in a way that money could not compensate, then he would grant an injunction directing that the players be released to attend the training sessions. The report in the Welsh media at the time can be read HERE.

In the context of the Long-Term Agreement and the RFU Regulations, the parallel can plainly be seen.

So, that's why I wonder just why this keeps being put forward as a real risk when the plain victor on this point when it came to the crunch the last time out was the union, not the clubs.

Rugby Law and the Heineken Cup

Anyone who's dived can tell you that shoals are a very effective defence. They work because a load of individual fish band together in a huge collective, swirling around, so anything targeting them doesn't know where to even start and just gives up in confusion.

Much like approaching how law and rugby interact in Europe at the moment.

Just to give a hint of the issues raised by the Heineken Cup mess at the moment, we have:

Company Law - duties of directors. Peter Wheeler of Leicester is a director of ERC Limited, the company running the Heineken Cup. He's also a director of PRL Limited, the company who are now, if we are to take their policies and statements at face value, not just trying to remove ERC's main asset but shut ERC down. Can one square a fiduciary duty as director to both?

Choice of Laws - the HEC Participation Agreement runs (or certainly ran) under Irish law. Disputes between Unions and the IRB run under English Law in the English Courts, under IRB Bye-Law 11, as a binding contract under IRB Bye-Law 7. The Unions undertake to bind all their members to the same agreement under Bye Law 7. So, if it comes to litigation about the IRB regulations under an Irish law contract involving the interpretation of those regulations under English Law, where is it heard?

Contract Law - far, far too much of this; interpretation of contract, interpretation of rules under those contract like the IRB Regulations restricting sale of broadcasting rights (Regulation 13.2, and 13.3), and cross-border tournaments (Regulation 16.2.7), get-out clauses, exemptions, and so many more. And the Contract (Rights of Third Parties) Act 1999 floating in the background, a piece of UK legislation allowing those not party to a contract to have it enforced that could cause all sorts of fun and games if things fall out right.

Tort - possibly interference with business relations, and inducement to break a contract (and one can be assured there are many more such of which we have heard nothing).

EU Law - Competition law, obviously, such as in the London Welsh decision. And enforcement of judgements, and the possibility of injunctions being enforced in other EU states.

And Sports Law itself, with the question of review by the Courts of the decisions of sporting governing bodies.

And all this just a flavour. Never before have the contents of the IRB Handbook been of such interest to so many.

Because the fate of Northern Hemisphere rugby may well be decided by Sports Law. It has become a huge element in other sports; now rugby is facing up to it. Whatever happens, the days of muddling through are drawing to an end.

Minimum Bans - Dead Again?

Last year, the IRB announced changes to the disciplinary regulation, Regulation 17. You can read the press release HERE, and the new Regulation it linked to HERE. It announced, amongst other things, that minimum bans would mean minimum (and that all parts of Regulation 17.19 were core principles of the system); the relevant portion was Regulation 17.19.6 which said:

Subject to Regulations 17.19.7 and 17.19.8, for acts of Foul Play the Disciplinary Committee or Judicial Officer cannot apply a greater reduction than 50% of the relevant entry point suspension and nor can it/he apply a reduction that would mean the suspension imposed is less than the relevant lower end entry point suspension. In assessing the percentage reduction applicable for mitigating factors, the Disciplinary Committee or Judicial Officer shall start at 0% reduction and apply the amount, if any, to be allowed as mitigation up to the maximum 50% reduction. [Emphasis added]

I wrote several blogposts on this. In November last, Adam Thomson's one-week suspension was appealed by the IRB on the basis that it was less than the minimum ban, and that appeal was successful. That was discussed HERE.

Yet, looking at the latest IRB Handbook, which you can read HERE, and which is dated July 31st, and the Regulation 17.19.6, in that, it makes no reference to the minimum-means-minimum bit. It now says:

Subject to Regulations 17.19.7 and 17.19.8, for acts of Foul Play the Disciplinary Committee or Judicial Officer cannot apply a greater reduction than 50% of the relevant entry point suspension. In assessing the percentage reduction applicable for mitigating factors, the Disciplinary Committee or Judicial Officer shall start at 0% reduction and apply the amount, if any, to be allowed as mitigation up to the maximum 50% reduction.

As you will see, the reference, bolded in the first quote, to not going below the entry level has disappeared entirely.

Looking at decisions from the IRB Junior Rugby World Championship, those seem to be working on the basis that one can go below the minimum, entry-level ban. So, in the Luan de Bruin case, which I mentioned in THIS post and which you can read HERE, it talks about a reduction not below the entry level where it was wholly disproportionate, but below 50% of the minimum.

13. In respect of sanction, I accept Mr. Swart's submission this is an appropriate case whereby the Judicial Officer could have invoked Clause 11.10.7 of the Tournament Disciplinary Programme which permits the imposition of a sanction less than 50% of the lower end entry point sanction where there are both off-field mitigating factors and the sanction would be wholly disproportionate to the level and type of offending involved. 

And that was Tim Gresson, Chief Judicial Officer of the IRB, who pretty much by definition knows the regulations. Similarly, in the Hadleigh May case, which you can read HERE, the sentence was less than the minimum. Those cases were in June. In August, Leonardo Senatore of Argentina just got nine weeks for biting Eben Etzebeth of South Africa when the entry-level - what would have been the minimum - is 12 weeks.

If the minimum ban provision was in place in November, but not in June, then if it was changed it must, logically, have been changed between November and June. Back in February, in the Webb  and O'Gara cases, which I discussed HERE, the minimum ban provision was discussed in depth by His Honour Judge Jeff Blackett, so it must have been in force then. There may well have been an announcement which I missed; but I have looked through the media section of the IRB website back to last November when Adam Thomson's decision was appealed, and have seen no announcement that a core principle of the disciplinary system was being changed under a year after it was introduced.

So, one has to ask: first, has it been officially changed? Second, if so, why? Third, why so soon after the IRB took the unprecedented step of appealing a citing decision on the basis of the core principle? And fourth, if it was changed, why on earth was so important a change not announced the way that the change to that system was announced?

It is, to say the least, odd. If I find out any more on it, I will certainly update this.

Update: Brett Gosper, whose willingness to engage and respond to queries is, as always, exemplary, has confirmed that the minimum-means-minimum change was made at the IRB Council meeting on the 28th November 2012. It would seem that the reference to wholly disproportionate in the O'Gara case in February was in this light. The only seeming reference of any kind to this at the time, one week after the IRB had appealed a citing decision for the first time to enforce this minimum ban rule, was one paragraph tucked away in THIS:

The IRB Council also approved minor revisions to Regulation 17 governing illegal and foul play. The revisions address interpretation matters following the introduction of the restructured Regulation in June of this year.  

In terms of clarity, it's a long, long way from the clear announcement of five months earlier. In fact, it actually says nothing about deleting the product of the IRB Morality Conference that had, in Thomson case, been making headlines all that week, and which had attracted a fair degree of praise in turn when the IRB stood over making its regulations against foul play meaningful. Why this coyness, so soon after standing over the change, one cannot say. So, on the list of questions above, the answers would seem to be: yes to the first, and even more head-scratching as to the rest.

Cite Them All, Let God Sort It Out.

A paraphrase of a paraphrase for a title. The origin of which title comes from the heartland of French rugby.

The Albigensian Crusade is called after the town of Albi, in the heat of l'Ovalie, the south west of France where rugby is played. It was aimed after the Albigensians, heretics from Albi (not, strictly, that being from Albi is a heresy in and of itself, despite what Castres Olympique fans think).

When the town of Beziers - where Munster played Castres in the 2002 HEC semi final, of happy memory - was attacked, Arnald Amary, a leader of the crusade was supposed to have been asked what should be done with the prisoners and to have replied, "Kill them all. God will know his own" (in fairness, there's no direct record of this, and it was only ever that he was reported to have said it).

On which note, I would like to look at a case from the Junior Rugby World Cup in France, the appeal of Luan de Bruin, tighthead prop of the Baby Boks, against his suspension for a tip-tackle. You can read the Decision HERE; significantly, it was Tim Gresson hearing it. As head of the IRB Judicial Panel, Gresson's opinions carry very considerable weight indeed as a pointer of how the IRB see things developing.

The tackle in question, as with so many tip-tackles, involved two players lifting plus the tackled player, but de Bruin was the only one cited. In the appeal, it largely turned on whether the tip was largely down to the other player. That line was rejected, and the appeal failed on that grounds. Interestingly, the case of Toby Flood, a controversial decision which, in my opinion, was out of line with the ERC and IRB approach to this, was relied upon by Counsel for de Bruin, Adv. Swart, and was implicitly if not openly distinguished by the hearing which held that the approach of leaving off the cited player who played a lesser role was not the approach to be followed.

Adv. Swart, correctly accepted in argument that it was open to hold that the tip-tackle was the fault of both players, or indeed largely of the other player, and that if this was found to be the case, then the sentence of four weeks was wholly disproportionate in the circumstances; this was accepted.

The real significance is in paragraph 12 of the judgement, which, while it is strictly a comment instead of a finding, is worth reproducing in full:

A final comment. This is yet another case which gives rise to the issue as to whether it is appropriate for Citing Commissioners to cite more than one player in respect of incidents similar to that which has occurred in this case. In my view where more than one player has contributed to a dangerous lifting situation (whether in a tackle or otherwise) Citing Commissioners could give serious consideration to reviewing the totality of the actions of all the participants in relation to the incident and then decide whether the cumulative effect of their actions warranted the awarding of a red card to any and/or all of those players involved. If the Citing Commission considers that a participant's actions in such an incident do not meet the red card threshold but another participant's actions do and such player(s) is cited than that determination should be particularised in the citing report. It follows, if there are multiple citings of players involved in the incident and they are upheld then it would be the responsibility of the Judicial Officer to assess the extent to which each of the players involved contributed to the incident of Foul Play and sanction accordingly. What is paramount is that acts of Foul Play which meet the red card threshold are cited and subject to the rigours of judicial scrutiny. [Emphasis added]

So, in other words: if there are more than one player involved in a red card incident, look at what the actions added up to and cite that if it meets the threshold - and make it clear why you're not citing all of them if you only cite one, because red card offences should be cited.

So, to give recent examples: Toby Flood would on this basis almost certainly have been done for the tackle along with his team-mate, as both contributed to an unquestionably dangerous tackle. Joint lifting tackles are now even more risky, because a coach who trains his players to do this could lose more than one player to citing. Bringing the tackled player down safely - which, somewhat paradoxically, is tricker with two players, because there are two people who can misread a situation or get it wrong - is now even more important. At a time when Dan Lydiate's remorselessly-efficient ankle-chopping style contributed in no small part to the Lions series, it would make one wonder whether, when it comes to the lifting tackle, that game is worth the candle anymore.

Be that as it may; whether coaches make that decision, it looks like we may well be in for a continued crackdown on tip-tackles at IRB level. Whether this lasts into the upcoming Rugby Championship will be interesting to watch.

James Horwill Citing.

Three minutes the first Lions test, James Horwill, the Australian captain, kicked Alun Wyn Jones in the face.

He was then cited for it. The decision came out today, and this is, I must emphasise, very much by way of a holding post, as I have not been able yet to get a copy of the decision by Nigel Hampton QC. The citing was dismissed.

However, there is a phrase quoted from the decision in reports of the decisions which gives very significant pause.

I found that I could not reject as being implausible or improbable Horwill's explanation that as he was driving forward with his right leg raised he was spun off balance through the impact of Lions players entering the ruck from the opposite side.

In an endeavour to regain his balance Horwill brought his right leg to the ground unknowing that Alun Wyn Jones' head was in that area, due to having his sight impeded by the presence of Michael Hooper and Tom Croft who were beneath him and over the top of Alun Wyn Jones. Due to these reasons I cannot uphold the citing.

Leaving aside one's view of how one squares the explanation with the action, it is the first paragraph that seems off. The standard of proof in a citing is the balance of probabilities - more likely than not. "Possible, but not in the least probable" is the classic formulation from Denning J. (as he then was, in 1948), of the much stricter test for criminal cases, of beyond reasonable doubt.

Applying a test of whether something is "implausible or improbable" is the standard for beyond reasonable doubt. Something doesn't have to be improbable to be less likely than not: if it's 49% likely, 51% unlikely, it's not at all improbable, but it hasn't met the test of the balance of probabilities. If it was dismissed on the basis of the criminal standard, that would be a clear error.

I am, expressly, reserving comment on this until I have the full judgement to hand, at which stage I will return to this. But at first glance, the use of phrases one would associate with a different standard of proof than should have been applied is one that would make one even more curious to see the decision in full.

Edit: one typo in the last paragraph fixed.

Update: The full decision is now available. You may read it HERE. However, the IRB have, in a new departure, also announced that the decision is being appealed by the IRB. It therefore seems appropriate that, lest in some small way it unfairly queer the pitch for either party, that I hold off on commenting on the decision in full until that hearing has been held, and then deal with this decision, and that of the appeal, together.

Liability of amateur referees - Australia.

A physiotherapist in Australia is suing the New South Wales Rugby Union and a referee for injuries sustained when players ran into her.

Alison Donnan, a physiotherapist with Manly, ran onto the pitch (without being invited on by the referee) to tend an injured player. In the meantime, a free kick was taken, and in the ensuing play, players ran into her and she sustained injuries including three broken vertebrae. She is now suing the NSWRU and the referee for those injuries. You can read more HERE.

The injuries are real, and I have no doubt as debilitating as made out. But the question is, liability for those injuries. As the article makes clear issues of contributory negligence (run into the middle of ongoing play, you take your own chances) and vicarious liability are very much in issue (and given Agar v. Hyde was also an Australian case, it's one whose progress I'll be watching with interest). My interest is piqued not just by this but as much by wondering about whether the Irish legislation, if transposed to Australia, would usefully cover the point.

I wrote about that legislation HERE. Manly and Penrith being (as far as I am aware, and subject to correction) semi-pro, it seems the referee is also amateur (were he an employee of the NSWRU, then then vicarious liability would not be in issue). If similar legislation were in place in Australia, then normal negligence would not be enough to attract liability; it would need gross negligence, a much higher threshold to cross. If not now, it may well be something to which NSW and other Australian states may direct their minds in future.

It's a case that I will return to as it develops, because it could be a very interesting pointer to how liability of referees will develop in the Common Law world.

H/T to Greenandgoldrugby.com for first bringing this to my notice.