Rotherham Titans Agent: (2) Richard Emms

RFU DISCIPLINARY HEARING

Venue: Holiday Inn Brighouse-Leeds Date: 30 August 2018 JUDGMENT Panel: Samantha Hillas; Antony Davies; John Greenwood Club/ (1) Rotherham Titans Agent: (2) Richard Emms

In attendance at the hearing: For the RFU: Steven Flynn (Counsel) Stuart Tennant David Barnes

For the Club: Martin Jenkinson - Director of Rugby, Rotherham Titans

For the Agent: Laura Gould (Counsel)

Observing: Matthew Lewis – Director, TSMC Martyn Wood – Director of Rugby, Hull Ionians

Secretary: Brian Stott ______

The Charges

The Club was charged as follows:

STATEMENT OF OFFENCE Directly and/or indirectly approaching and/or accepting an approach by or on behalf of William Dennis (RFU ID: 01232397) who was under contract with Hull Ionians RFC to induce or attempt to induce him to leave Hull Ionians RFC and join Rotherham Titans without the written consent of Hull Ionians RFC, Yorkshire RFU or the RFU and not in the final six months of his contract with Hull Ionians, contrary to RFU Regulation 7.1 and RFU Rule 5.12.

PARTICULARS OF OFFENCE Rotherham Titans have breached RFU Regulation 7.1 as follows:

1. William Dennis was under contract with Hull Ionians RFC for the period 1 July 2017 to 31 May 2018;

2. William Dennis signed a contract with Hull Ionians RFC on 26 February 2018 which commenced on 1 July 2018 and has a termination date of 31 May 2019;

3. On or around 22 June 2018, Rotherham Titans accepted an approach by or on behalf of William Dennis to induce or attempt to induce him to leave Hull Ionians RFC and join Rotherham Titans;

4. On 26 June 2018, William Dennis entered into a contract with Rotherham Titans for the period 1 July 2018 to 30 April 2019;

5. Hull Ionians RFC did not give Rotherham Titans consent to accept an approach by William Dennis; and

6. William Dennis was not in the final six months of his contract with Hull Ionians RFC.

The Club denied the charge.

The Agent was charged as follows:-

STATEMENT OF OFFENCE As a Registered Agent, taking steps intended to induce a person to act in breach of his written agreement with a club contrary to RFU Regulation 8.8.1 and RFU Rule 5.12.

PARTICULARS OF OFFENCE Registered Agent Richard Emms has breached RFU Regulation 8.8.1 as follows:

1. William Dennis signed a contract (i.e. a written agreement) with Hull Ionians RFC on 26 February 2018;

2. This written agreement stipulated (i) an agreed period for the contract of 1 July 2018 to 31 May 2019 (clause 1), (ii) that “the registration of the Player may be transferred by mutual consent” (clause 3) and (iii) that “the Player agrees that he shall not train with or play Rugby Union for any team” other than Hull Ionians RFC “without the written consent of the Director of Rugby” (clause 6).

3. On 18 June 2018, Richard Emms and William Dennis signed an agency and management agreement;

4. On or around 22 June 2018, Richard Emms, acting on behalf of William Dennis, approached Rotherham Titans for the purposes of inducing William Dennis to act in breach of his written agreement with Hull Ionians RFC and join Rotherham Titans;

5. On 26 June 2018, William Dennis entered into a contract with Rotherham Titans for the period 1 July 2018 to 30 April 2019; and

6. William Dennis was training with Rotherham Titans until 3 July 2018.

The Agent admitted the charge.

Preliminary matters

1. The Panel and all parties were provided with a bundle comprising 248 pages including the charges, various email exchanges, statements, judgments in previous, similar cases and the relevant regulations.

2. A number of statements and emails in support had been filed by both the Club and the Player. The authors of those emails and statements were not in attendance to give evidence to the Panel and their evidence was not relied upon by any party, with one exception.

3. Both the Club and the Agent had provided statements from the player, William Dennis (WD) and his father, Ian Dennis (ID). WD and ID did not attend the hearing, but it was not clear whether any party had requested that they should. All parties agreed that the hearing should proceed in the absence of WD and ID. All parties made reference to matters set out in the statements of WD and ID.

4. The Panel were provided with written submissions from Mr Flynn on behalf of the RFU [119-138] and Miss Gould on behalf of the Agent (at the hearing).

5. Prior to the hearing, it was understood that the Agent denied the charge, but it was admitted when put to him at the hearing. He is not criticised for this: it is understood he was only able to meet with his counsel shortly prior to the hearing.

6. Martin Jenkinson (MJ) on behalf of the Club denied the charge both prior to and at the hearing. However, he qualified this by saying that (a) he was not a lawyer, (b) his response would depend on the definition of a ‘contract’, and (c) if the Panel told him the charge was made out, then he would admit it.

7. Although the Panel accepts the RFU’s primary submission that Regulation 7.1 creates disciplinary offence of strict liability, MJ had filed a number of documents in support of Rotherham’s case, was anxious to speak and, in any event, much of what he had to say would be relevant to the issue of sanctions (the Agent already having admitted the charge). In the circumstances, the Panel proceeded to hear the matter on the basis the charge was denied.

8. The Panel agreed to delay the start of the hearing to 7.45pm to allow discussions between the parties and for them to refine the issues. The hearing concluded at 11.30pm.

9. The Panel heard evidence from only MJ and the Agent.

The facts

10. WD is a 20-year old tight head prop currently registered with Hull Ionians (HI) [21].

11. WD was under contract with HI for the 2017/2018 season [41] and on 26 February 2018, he signed a further contract with HI for the 2018/2019 season [38].

12. At some point thereafter (it is not clear when), Martyn Wood (MW), HI’s DOR, told WD that he may be released from his contract in certain circumstances. MW and WD dispute what those circumstances were. MW says he told WD that he would release him to a full time professional club on the basis his (MW’s) prior consent was obtained. WD’s position as set out in the written materials is that it was a ‘verbal release’ which enabled him to be released at any time without further discussion, to play for any higher level club.

13. Rotherham were relegated from the Championship at the end of the 2017/2018 season, lost a number of players and were looking to recruit. On 11 June 2018 MJ sent an email to all registered agents confirming they were still looking for two props [105].

14. Around this time the Agent had received a call from WD, following a recommendation from an England County coach. WD was looking to play at a higher level. WD and the Agent were aware that WD was under contract to HI, but WD advised him his contract was subject to a ‘verbal release clause’ that enabled him to be released to play for a higher level club. This was confirmed to the Agent by WD’s father. The Agent did not seek any further clarification of the terms of the ‘verbal release clause’.

15. A telephone conversation took place some time after 11 June 2018 but before 20 June 2018, when the Agent advised MJ of a possible prop. MJ says that the Agent did not want to disclose the player’s name until he had him signed up to an agency agreement. The Agent says that he gave MJ the player’s details and told him he was under contract to HI, subject to a verbal release clause.

16. On 18 June 2018 WD signed an agency agreement with TSMC [66].

17. On 20 June 2018 MJ emailed the Agent [106] asking if there was “Any news on the Prop you mentioned?”. On 22 June 2018 the Agent responded by email [107] saying “Martin, As promised, we have a very exciting Tight Head for you. He’s not only EQP but a Yorkshireman also.” The email then set out WD’s details and playing career and attached WD’s CV with a link to one of his England Counties’ games.

18. MJ says he spoke to the Agent following receipt of this email as the Club had a number of former HI players, he had had run ins in the past with HI’s DOR, Martyn Wood (MW) and he wanted to know the contractual position. MJ says he was told by the Agent that he was out of contract. The Agent maintains that he had already told MJ on an earlier occasion that WD was under contract but subject to the verbal release clause (see paragraph 15 above).

19. On 25 June 2018 the Club sent a contract to the Agent by way of offer. The Agent forwarded it to WD and asked him to read it thoroughly.

20. On 26 June 2018 WD spoke to MW. MW told WD that he would not be released from his HI contract. WD advised the Agent of this. The Agent subsequently spoke to MW himself and was told the same thing. Nonetheless, WD signed the contract and it was returned to the Club via the Agent. The Agent did not advise the Club that MW had told WD he would not release him from his HI contract.

21. WD spoke to David Barnes (DB) by telephone on 12 July 2018. DB emailed WD on 12 July 2018 setting out the matters discussed during that conversation and asking him to confirm the same, which WD duly did the same day [44]. WD says that he was telephoned on 28 June 2018 by MJ to ask him to attend training. WD also says that he attended a ‘meet and greet’ at the Club on 30 June 2018 and sat down with MJ to discuss the situation. MJ says that he did not telephone WD on 28 June 2018 and that he was telephoned by the team manager, Tony Jenkinson (TJ). TJ provided a letter “to whom it may concern” dated 31 July 2018 [92] stating that he was made aware WD was contracted to the Club from 26 June 2018 and added his name to the squad list. TJ says he telephoned WD on 28 June 2018 advising him of a squad meeting followed by a medical screening on 30 June 2018. MJ also says that he did not have any one-to-one conversations with any players at the meeting on 30 June 2018. He spent the first part of the meeting in separate discussions with the coaches and team manager, then introduced himself to the players before leaving for a pre-arranged family event. His account was confirmed in a letter from the head coach, Joe Barker dated 31 July 2018 [96]. MJ maintains he was not made aware by either the Agent or WD that there was any issue with WD’s contract.

22. WD began pre-season training with the Club. On 4 July 2018 the Club announced via Twitter that WD had joined the club as tight head prop [62]. Either that day or the following day, MW telephoned MJ and confirmed that WD was under contract to HI and would not be released. This was followed up by email from Chris Taylor, HI’s club secretary, on 6 July 2018 [37]. The email confirmed that HI expected WD to honour his contract with them.

23. MJ phoned Warren Collier at the RFU on 5 July 2018. He left a message and they spoke the next day. An email from Mr Collier dated 6 July 2018 [60] confirms that MJ advised him the Agent told him WD had no contractual obligations to HI, that WD was training with the Club and that he was uncomfortable about this.

24. MJ told WD that he should not train with the Club until the matter was resolved and WD has not trained with either club since 3 July 2018. At the hearing, MJ went further and said he had advised WD that he is contracted to HI, cannot play for the Club and is not under contract with them. That said, on 23 July 2018 MJ emailed MW to say that he advised WD “that the only avenue (should he wish to do so) is to pursue a legal route” and the Panel were told at a late stage during the hearing that WD has sent a solicitor’s letter to HI referring to possible legal action. No-one at the hearing was aware of the nature of that legal action as it was between WD and HI’s chairman and MW was not involved in it.

25. David Barnes at RFU discipline was made aware of the issue and a number of emails were sent to the individuals concerned (MJ, MW, WD and the Agent) to ascertain what had happened. This inquiry led to the RFU issuing charges against the Club for breach of Regulation 7.1 and against the Agent for breach of Regulation 8.8.1.

26. The Club now has a full complement of more senior and experienced props. MJ stated it was unlikely WD would start for the Club regularly or at all, even if registered with them. As far as MJ is concerned, the Club has no contract with WD and he can play where he chooses, including HI.

27. MW says that HI do not have sufficient props, have not had sufficient props during pre-season and still need to recruit a tight head prop for the start of the season which is just days away. He told the RFU in an email dated 24 August 2018 [247] that it may cost HI £15,000 to recruit a player of WD’s ability at such a late stage. MJ disputes that it would cost anything like that amount to replace WD.

The Panel’s findings

28. The findings of the Panel set out below are in the context of:-

a. The Agent admitting the charge against him; b. The RFU’s submission (which the Panel accepts) that Regulation 7.1 creates a disciplinary offence of strict liability.

29. The Charge against the Club is proven. Contrary to Regulation 7.1 the Club accepted an approach by the Agent on behalf of WD at a time when WD was under contract with HI, without having sought HI’s written consent nor in the final six months of WD’s contract.

30. As to the disputed facts set out in the preceding section and other findings necessary to resolve this matter, the Panel’s findings are:-

a. Although not relevant in the context of a strict liability disciplinary offence, and it is impossible on the evidence to make a firm finding as to exactly what was said and when between MW and WD in respect of the ‘verbal release clause’, it was more likely that the terms were more restrictive than WD conveyed to the Agent on the basis that:- i. HI were already short of props, one prop already having left HI to join Rotherham; ii. WD was an integral member of HI’s squad for the 2018/2019 season; iii. Pre-season training was about to start; iv. It is inherently improbable that any DOR would advise a valued player under contract that they could leave at any time without prior notice: indeed, HI’s standard form of contract includes a clause (clause 9) which provides for a four-week period of discussions and improvements in the event either party to the contract is dissatisfied with the ‘contribution’ of the other. This was the clause invoked by the other prop who left HI to play at Rotherham at paragraph (i) above; b. It would have been reasonable for the Agent to make independent checks with either HI directly or the RFU to ascertain WD’s contractual status. DB confirmed that if any RFU-registered agent contacted the RFU to clarify a player’s contractual status, he would permit the RFU to confirm the position to that agent; c. MJ’s account is preferred in terms of when he first became aware of WD’s contractual status, on the basis that:- i. There is no mention of WD’s contractual status in any of the emails passing between MJ and the Agent; ii. The Agent did not advise MJ upon being made aware by WD on 26 June 2018 that HI had said they would not release WD from his contract; iii. Upon being made aware of the issue following his telephone conversation with MW on 4 July 2018, MJ almost immediately thereafter (a) contacted the RFU to make them aware of the issue and (b) advised WD that he could not train with the Club; iv. The Panel accepts MJ’s account of the meeting on 30 June 2018: whilst the Panel accepts that WD confirmed to DB on 12 July 2018 that he discussed the situation with MJ on that date, WD has subsequently sought to distance himself from that statement and did not attend the hearing. No party challenged the statement from Joe Barker [96] which confirmed MJ’s account of the meeting on 30 June 2018, nor considered it necessary to adjourn the hearing to enable Mr Barker to attend for cross examination; d. Contrary to MJ’s assertion that WD has been told he has no contract with - and cannot play for - the Club, WD is under the impression that this is yet to be decided. He has not returned to HI to train, is apparently contemplating legal action against HI and he texted MJ at some point during the hearing to ask MJ what was happening. It would appear that WD still believes there is a possibility of him playing for the Club this season.

The parties’ submissions as to sanctions

31. As against the Agent, Mr Flynn on behalf of the RFU submitted the sanction should be:-

a. A reprimand to remain on his record for five years; b. A fine of £2,500 suspended for two years; c. Voluntary engagement with an RFU-based agents’ education programme; d. Costs of £125.

32. As against the Club, the RFU submitted the sanction should be:-

a. An immediate points deduction or alternatively, a suspended points deduction; b. A fine of £5,000, as per the Chester decision of 28 September 2016 [68] and the Rochford decision of 8 August 2018 [139], such fine to be suspended if points are to be deducted, or imposed immediately if no points are to be deducted; c. Compensation paid to HI towards the higher end of the bracket of £3,500 (the difference between the potential value to WD of the two contracts if he plays all 30 games) and £15,000 (being MW’s asserted replacement cost of an alternative prop at this late stage); d. Costs of £125.

33. On behalf of the Agent, Miss Gould agreed that the Agent would be content with the sanctions proposed on behalf of the RFU. She expressed the Agent’s sincere contrition and that he had reflected on his failings and naiveté throughout this matter, was anxious to learn from his experience and keen to engage with an education programme. The Agent also confirmed that he had not sought any payment from WD.

34. The Panel did not ask MJ on behalf of the Club to address them on the issue of points deduction. It was the Panel’s firm view that the circumstances of this case did not warrant a points deduction.

35. As to the RFU’s submissions in respect of a fine and compensation, MJ’s position on behalf of the Club was that:-

a. Any fine needs to proportionate. The Club could not afford to spend money on legal representation for the hearing; b. As to compensation, the sum of £15,000 is wholly disproportionate to replace a young prop who is paid £150 per game by HI, who is still signed to HI and who can play for them if he chooses. When pressed, MJ indicated a fine of £1,500 might be more appropriate.

36. Additionally MJ submitted that the Club is saddened and despondent about the whole process. He has tried to resolve this matter directly and the whole situation could have been avoided had the clubs maintained a good relationship.

37. MJ reiterated that WD’s contract with the Club was subject to him being registered with the Club, which cannot happen as WD remains under contract with HI.

38. The Panel asked the RFU to clarify their powers to require HI to release WD from his contract. After consideration, the RFU confirmed the Panel had no power to require HI to release WD from his contract and should therefore consider the issue of compensation on an alternative basis, namely that if WD does not return to play for HI, the compensation should be as already submitted (towards the higher end of the £3,500 to £15,000 bracket) or some lower sum in the event that WD returns to play for HI, to compensate for the inconvenience caused. The Panel were referred to the Gloucester decision of 23 August 2011, which ordered compensation of £2,500 for “disruption” in circumstances when the approached player remained with his existing club.

Sanctions

39. As against the Agent, the Panel (with one addition and one subsequent amendment) accepted the RFU’s submissions, bearing in mind that the Agent was in agreement with those submissions as to reprimand, fine and engagement with an education programme.

40. As against the Club, as already set out above, the Panel was not persuaded that this was a case, which merited a points deduction. Points were not deducted in any of the authorities provided to the Panel, even in circumstances in which a club had approached a player and continued to allow him to train whilst knowing he was under contract with another club.

41. As to a fine, whilst the Panel were mindful of the Chester decision and the fact that it involved a club playing one level lower, the Panel also took into account their findings as to the Club’s lack of knowledge about WD’s contractual status until 4 July 2018 and the fact that, at all times prior to WD signing his contract with the Club, the Club’s discussions throughout had been with an RFU-registered agent.

42. The Panel also considered that, having preferred MJ’s evidence to that of the Agent with regard to the Club’s date of knowledge, it would be inequitable for the Club to be fined a greater amount than the Agent, for whom the RFU proposed a fine of £2,500, suspended for two years.

43. In terms of compensation, the Panel took the view that:-

a. WD remains under contract with HI and is able to play for them if he wishes; b. It may be open to WD to invoke ‘clause 9’ of his contract with HI if he is dissatisfied with HI’s ‘contribution’ but this would require him to allow HI a four week opportunity to put matters right. If HI were unable to put matters right, they would have to find another prop in any event; c. This would therefore be a case of compensation for disruption (per the Gloucester decision) rather than replacement value (as per the Chester decision); d. The Club plays at a lower level than the clubs involved in the Gloucester decision; e. In the context of the findings made, it would be equitable for the compensation to be shared between the Club and the Agent.

44. As to the length of time the reprimand should remain on the Agent’s registration, whilst the Panel initially indicated that it would accept the submissions of the RFU as to the sanction against the Agent in full (subject to the additional shared compensation), this would mean the reprimand remains on the Agent’s record for five years. Upon subsequent reflection, the Panel took the view that, with the additional compensation payment ordered, this would be disproportionate and in the circumstances reduced that period to two years.

45. The Panel was invited by the RFU to offer some guidance to both clubs as to the necessity to try and resolve between themselves the issue of WD, given that he was currently not training with either club. The Panel agreed that the clubs should speak constructively to achieve an agreed way forward for this player. He is a young man with a promising rugby career who has spent the summer not knowing where he is playing come the start of the season. Whilst this is a problem for which he also bears responsibility, it is an unfortunate situation all round and everybody agreed that WD should have some certainty and start playing as soon as possible. However, the issue of possible legal action by WD against the Club is unfortunate and, against that backdrop, the Panel were not in a position to provide formal guidance to either club as to how they resolve the issue of where WD will play.

46. No contrary submissions were received from the Club or the Agent as to the submissions on costs made by the RFU.

47. The sanctions are therefore as follows:-

a. As against the Agent:-

i. A reprimand to remain on his record for two years; ii. A fine of £2,500, suspended for two years; iii. A requirement to attend an education programme with the RFU during the next 12 months; iv. A £1,000 contribution to the compensation to be paid to HI, to be paid within 14 days; v. Costs of £125.

b. As against the Club:-

i. A fine of £2,500, suspended for two years; ii. A £1,000 contribution to the compensation to be paid to HI, to be paid within 14 days; iii. Costs of £125.

48. All parties were advised of their right to appeal.

Samantha Hillas 31 August 2018