APPEAL HEARING
At: Puckrup Hotel, Tewksbury
On: 12 June 2019
JUDGMENT
Club: Shipston on Stour
Panel: Mr John Brennan (Chairman), Mr Nick Dark and Mr John Vale.
Secretary: Rebecca Morgan
Attendance: Mr Dan Scobie, Chairman of Shipston on Stour.
Mr Roger Rees, Secretary Midland Division Organising Committee
Regarding: Appeal against a level transfer at level 7 from the Midlands 3 West (South) league to the South West Southern Counties (North) league in the 2019-2020 season.
1. Shipston on Stour RFC (“the Club”) were the league champions of the Midlands 3 West (South) league in the 2018-2019 season.
2. The Club expected to play at level 7 in the Midlands 2 West (South) league in the 2019-2020 season.
3. In the event, the Club were subjected to a level transfer to the South West Southern Counties (North) league. The prospect fills the Club with dread. One can well understand why. Only one away fixture involves a round trip of less than an hour. Two involve a round trip of almost two hours. Eight involve a round trip of around three hours or more. The prospect is so grim that the Club considers the better course would be to withdraw from competitive league matches before the start of next season so as to avoid the disruption that would follow if it were to fail to honour all their fixtures; a prospect which the Club Chairman considered to be unavoidable. Their playing members, all of whom are amateur and many of whom work on Saturdays, would prefer to play for another club or not at all than spend so long on the road in the 2019-2020 season.
4. The Club appealed against the level transfer. It submitted that the decision of the Midland Division Organising Committee (“the Committee”) ought to be set aside because it was vitiated for two reasons: first, because the relevant regulation was unenforceable; and, secondly, because the Committee misdirected itself when it invited the Club and two others to volunteer for a level transfer based on only one criterion namely, lowest total mileage.
The Facts 5. By letter dated 29 April 2019, the Club and 2 other prospective members of the Midlands 2 West (South) league in the 2019-2020 season - Southam RFC and Stratford upon Avon RFC - were informed that in order to re-balance the number of teams one club would have to be transferred from the Midlands 2 West (South) league to play in the South West Southern Counties (North) league in the 2019-2020 season and invited one of them to volunteer for a level transfer.
6. By a joint letter dated 3 May 2019, all three clubs refused to entertain the prospect of one of their number being subject to a level transfer to the South West Southern Counties (North) league in the 2019-2020 season.
7. The Committee proceeded to analyse the lowest total mileage of five prospective members of the Midlands 2 West (South) league including the Club and the other two clubs invited to volunteer. The analysis was conducted strictly in accordance with the regulations which prescribe the manner in which the exercise is to be conducted (see regulation 13.2.11(e) and the definition of lowest total mileage at regulation 1). The Club had the lowest total mileage.
8. The Committee did not invoke exercise its powers to disapply the strict application of the lowest total mileage test on the basis of exceptional circumstances etc. (i.e. invoke regulation 13.2.11(g)).
9. By reason of the fact that the Club had the lowest total mileage, it was selected for a level transfer.
10. By letter dated 20 May 2019, Midland Division Organising Committee informed the Club that it would be transferred from the Midlands 2 West (South) league to the South West Southern Counties (North) league in the 2019-2020 season.
11. By letter dated 26 May 2019, the Club appealed the level transfer.
Ground One
12. The Club invited the Panel to set aside the level transfer on the basis that the Regulations were unenforceable. It pointed to the fact that the 2018-2019 handbook stated at regulation 13.2.11: “Level Transfer Regulations to be applied at the end of the 2018-19 Season to determine the Level Transfers for the 2018-19 Season …” (sic).
13. Read literally, regulation 13.2.11 was nonsensical. But the issue is not what the regulation says: the real issue is what it means. In the Panel’s opinion, a reasonable man would, without hesitation, have concluded that the second reference to 2018-19 should be read as if it had referred to 2019-20 instead. The regulation in question must be understood to mean something and no other interpretation is consistent with common sense. Moreover, that interpretation is consistent with previous editions of the handbook.
Ground Two
14. The Club invited the Panel to set aside the level transfer on the basis that it and the other two clubs had been invited to volunteer for a level transfer in the first instance without regard to anything other than lowest total mileage test. In particular, the Club submitted that in doing so the Committee had misdirected itself with regard to the proper application of regulation 13.2.11(e)(i) which provided: “The following procedure will be utilised in deciding which Club(s) is (are) Level Transferred: (i) The Organising Committee(s) will determined the number of moves required to satisfy the overall imbalance which causes the least inconvenience to all Clubs affected. Thereafter it will identify all the Clubs that could reasonably make the required move(s) who will initially be invited to make the Level Transfer(s) voluntarily.”
15. The Panel disagreed. The task for the Committee was to “identify all the Clubs that could reasonably make the required move(s) …”. The Committee was afforded a discretion as to the manner in which it did so. The manner in which the Committee had done so was firmly within the proper exercise of its discretion. The purpose of regulation 13.2.11(e)(i) was to short-circuit the process of selecting the club that would be subject to a level transfer by inviting the most promising candidates for a level transfer to volunteer for one. If none did so, it fell to the Committee to select the club in accordance with the procedure prescribed by regulation 13.2.11(e)(ii) subject to regulations 13.2.11(f) and (g). In those circumstances, in the absence of any good reason to suggest that the application of the lowest total mileage test would not ultimately be dispositive (i.e. a good reason to suggest that the Committee would exercise its discretion under regulation 13.2.11(g) to disapply the strict application of the lowest total mileage test), it was sensible to use the lowest total mileage test in order to identify “all the clubs that could reasonably make the required move(s) …”.
16. The Panel was fortified in that view by the following. First, the fact that some clubs had previously been invited to volunteer for a level transfer pursuant to regulation 13.2.11(e)(i) was irrelevant to the application of the procedure for selecting a club to be subject to level transfer pursuant to regulation 13.2.11(e)(ii). Secondly, the fact that the Club conceded that there were no grounds to contend that the Committee ought to have invoked regulation 13.2.11(g) to disapply the strict application of the lowest total mileage test in this instance.
17. It might well be thought, therefore, that the only circumstance in which a club could be prejudiced by the misapplication of regulation 13.2.11(e)(i) was in the unlikely event that it had not been selected for a level transfer in circumstances in which it would have volunteered to be subject to a level transfer if it had been invited to do so pursuant to regulation 13.2.11(e)(i).
18. The Club’s complaint was that the lowest total mileage test overlooked the fact that mileage was not necessarily an accurate indicator of inconvenience. In that regard it pointed to the fact that whereas its total mileage was lower than Leamington RFC’s, it would actually spend marginally longer on the road over the course of the 2019-2020 season than Leamington. However, absent any evidence to suggest that Leamington would have volunteered for a level transfer if it had been invited to do so the complaint was without substance.
19. The appeal having been dismissed, the appeal fee paid by the club to the RFU in the sum of £125 is forfeit.
20. There is no further right to appeal.
JOHN BRENNAN 13 June 2019