The 2019 Rugby World Cup – when typhoons interrupt the game

The recent Rugby World Cup (RWC), hosted in Japan, was not without legal intrigue. Typhoon Hagibis was the source of an important controversy, culminating in Rugby World Cup Limited (RWCL) issuing two charges against the Scottish Rugby Union (SRU) for misconduct because of comments made by, or on behalf of, SRU concerning RWCL’s management of Typhoon Hagibis.[1]

The Facts

The last pool matches of the RWC were scheduled to occur on 11-12 October 2019. Typhoon Hagibis, a level five typhoon, was forecast to make contact with Japan over those dates. It was predicted to be, and was, the largest typhoon of the season; posing a significant safety risk. RWCL cancelled two pool matches (England v France and New Zealand v Italy) and kept the other pool matches scheduled over those dates under review.

One of the matches under review, facing potential cancellation, was Japan v Scotland. This was an important match for Scotland. It needed to win to claim four match points so that it could qualify for the quarter finals over Japan.[2] If the match was cancelled the result would be a draw and Scotland would be eliminated.[3] (Ultimately, the match was not cancelled; however, Scotland lost and did not advance.)

Leading up to the match, on 10 October, a senior spokesman of SRU was reported by The Telegraph as saying that the Typhoon Hagibis situation was “shambolic” and “embarrassing” and threatened that “the Union will have no choice but to take immediate legal action”: [24]. In light of these comments, RWCL sent an official warning letter to the CEO of SRU, Mark Dodson. SRU was warned that the comments were a breach of the RWC’s Terms of Participation (Terms) governing a country’s participation in the RWC. SRU was warned that any further public comments of this nature would result in RWCL pursuing misconduct charges against SRU.

Despite this, additional public statements relating to RWCL’s management of Typhoon Hagibis were made by representatives of SRU, including by Mark Dodson and, by an English barrister engaged by SRU, Nick De Marco QC. Such comments included an allegation by Mr Dodson that the potential cancellation of their match was unfair and that if another country had been involved, for example, “an economic powerhouse” such as the All Blacks, they would have been treated differently: [6].

RWCL issued misconduct charges on 15 October 2019 against SRU claiming, broadly, that over the course of 10-12 October, SRU and its agents, made comments in relation to the “decision-making process that was taking place in respect of the possibility of playing the Japan v Scotland match … The comments included content that was unhelpful, untrue, unacceptable  […] and brought  RWLC […] into disrepute: [22].

The hearing of the charges was referred by the RWCL to the Independent Judicial Panel Chairman to appoint a Disputes Committee (Committee) to hear and determine the charges. The Committee’s ruling was delivered on 6 November 2019.

The submissions

At the hearing RWCL claimed that SRU ignored the warning letter and attempted to put pressure on RWCL via the media to ensure that the match would be played and, if not played, then relocated or postponed: [32].

SRU denied the charges. It alleged that it had been treated unfairly by RWCL and that any comments made did not amount to misconduct: [33].

Findings

The Committee considered the RWC’S regulatory framework. It noted that countries participating in the RWC are required to sign the Terms, which contain a Participation Agreement. The Committee noted that SRU had signed the Participation Agreement on 7 December 2018 and was bound by the Terms. The Terms contained various clauses including terms relating to anti-corruption and betting, anti-doping and misconduct.

After considering the meaning of “misconduct” under the Terms and in other source documents, the Committee held that conduct will be misconduct if “it does, or has the potential to, bring the sport of Rugby Union and certain identified bodies including […] World Rugby, RWCL and/or RWCL Partners into disrepute”: [41]. The Committee considered that it was a low threshold to overcome [41] and that the term ”disrepute”, which was not defined, should be given its ordinary meaning. That is, “the state of being held in low esteem by the public”: [41].

The moving party, RWCL, bore the burden of establishing the charges against SRU. The Committee would need to be satisfied on the balance of probabilities that the conduct was misconduct within the meaning of the Terms: [45]-[46] citing Re D (Secretary of State for Northern Ireland intervening) [2008] UKHL 33 (Lord Carswell) and In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 (Lord Nicholls of Birkenhead).

For the first charge, which was brought in relation to comments made by Mr Dodson, the Committee considered that the comments, individually and cumulatively, amounted to misconduct. The Committee considered that the comments were “part of a campaign wrongly played out in public designed to put pressure on RWCL to have the match played, at a time when it was properly and understandably endeavouring to plan for and deal with the consequences of a substantial imminent natural disaster”: [69] The Committee concluded that SRU, through Mr Dodson, clearly failed to act in the “best interests of the tournament” and brought the RWC 2019 and RWCL, together with World Rugby and the game, into disrepute: [69].

In relation to the second charge, particularly in respect of the comments made by Mr De Marco, the Committee was not satisfied that the evidence was sufficient to conclude that Mr De Marco’s comments were authorised or “within the jurisdiction of the SRU”: [78]. The Committee dismissed the second charge.

Sanction

The conduct was deemed to be “…egregious behaviour, sitting towards the most serious end of the misconduct spectrum”: [82]. The comments were intentional and repeated, despite the fact that SRU was issued with a warning letter, which was an aggravating feature of the conduct: [83]. The Committee concluded that there was a need to specifically deter SRU and others more generally from behaving in this way in the future, especially because SRU failed to acknowledge at any time that the comments were inappropriate: [83]-[84]. Accordingly, the Committee formally reprimanded SRU for its misconduct, directed that SRU issue in writing a public apology to be approved by the Committee and that it be fined the sum of £70,000.

A cautionary tale

That misconduct occurs both on and off the field is now a trite observation. Nonetheless, this ruling is a timely reminder that many instruments containing disrepute clauses can, and often will, bind and be enforced against not just athletes but the broader array of entities involved in sport. Those signing terms of participation should not view the exercise as a merely perfunctory activity, and should monitor the acts of their agents carefully. Depending upon the drafting and construction of the relevant instrument (including any express definition given to particular phrases), “misconduct’” and “disrepute” can be terms of broad import. Commenting on the way a tournament is being managed in the public may be construed as an attempt to influence or pressure sports organisers to take a particular course of action and this may well be misconduct.

[1] World Rugby, Judicial Decisions: 191106 RWCL v SRU Disputes Committee full decision, 7 November 2019 < https://www.world.rugby/documents/judicial-decisions?lang=en>.

[2] ‘Scotland’s Legal Threat to World Rugby: Explained’, Rugby and the Law (12 October 2019) <http://rugbyandthelaw.com/2019/10/12/scotland-sru-legal-threat-challenge-action-world-rugby-typhoon-hagibis-world-cup-japan/>.

[3] World Rugby, Judicial Decisions: 191106 RWCL v SRU Disputes Committee full decision, 7 November 2019 < https://www.world.rugby/documents/judicial-decisions?lang=en>.

 

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