RUGBY FOOTBALL UNION (INC)

IN THE MATTER of an Inquiry into an Alleged Breach of the Football Union’s Regulations For Eligibility For Selection To Affiliated Union Senior Representative Teams For The National Provincial Championship And by the Bay of Plenty Rugby Football Union

DECISION OF THE NEW ZEALAND RUGBY FOOTBALL UNION SUB-COMMITTEE

1. Introduction

1.1. On Sunday 15 August 2004 played Bay of Plenty in a First Division National Provincial Championship match at Auckland. Also at stake in the match was the Ranfurly Shield held by Auckland. The game ended in a win for the Bay of Plenty team which took both the National Provincial Championship competition points for the match and the Ranfurly Shield. Included in the Bay of Plenty team playing squad for the match was a player by the name of Colin Bourke who the Bay of Plenty Rugby Football Union (“BOPRFU”) believed was eligible to play by reason of loan arrangements it believed it had previously concluded with the Hawkes Bay Rugby Football Union (“HBRFU”). Bourke took the field and played in the match.

1.2. Following the conclusion of the match, questions arose as to Bourke’s eligibility to play for the Bay of Plenty team. From the information that has been provided to me it is not possible to determine by whom the issue was first raised but it seems clear that within a relatively short time after the match concluded the news media became aware of it. As a result of the publicity which followed the Board of the New Zealand Rugby Football Union determined an Inquiry should be made into the matter and appointed me as a Sub-committee of the Board for that purpose. On appointment I called for submissions from the respective Unions involved, namely the BOPRFU and the HBRFU and the Auckland . Those submissions have been provided by the Unions as requested. The information contained in the submissions from the BOPRFU and the HBRFU have sufficiently crystallised

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the issue for determination by me without the need for any wider inquiry on my part. The position taken by the is essentially to abide my Decision while noting it expects the National Provincial Championship Competition Rules to be enforced. It does not, however, seek to have the Ranfurly Shield returned as it believes it would be “inappropriate”.

2. The Eligibility Issue

2.1. The eligibility of players to represent the senior representative teams of Unions playing in the National Provincial Championship Competition and the Ranfurly Shield is governed by the NZRU’s Regulations For Eligibility For Selection To Affiliated Union Senior Representative Teams For The National Provincial Championship And Ranfurly Shield (“the Regulations”). Regulation 1 of those Regulations requires that the team playing squad for the senior representative team of a Union comprising of 15 selected players and 7 reserves shall consist only of players who:

(a) are registered with a Club competing in a Club competition conducted under the control and jurisdiction of that Union; and

(b) have not:

(i) (except in a respect not applicable in this case) at or after 1 May of the current calendar year been registered with a Club competing in a competition conducted under the control and jurisdiction of another Union; or

(ii) (except in a respect also not applicable in this case) at or after 1 May of the current calendar year been registered as a member of a Club or other Rugby organisation in an overseas country.

2.2. That requirement is, however, subject to exceptions, one of which relates to what are described in the Regulations as “Outside Players”. Subject to an overall restriction of six such players, the team playing squad for the senior representative team of a Union for the National Provincial Championship round robin competition or Ranfurly Shield matches may include players who do not meet the requirements of Regulation 1(a) and (b)(i) set out above provided that certain requirements set out in Regulation 5 are met. One such requirement is that specified in paragraph (b) of Regulation 5, namely that where the Outside Player has been registered with a Club competing in a competition conducted under the control and jurisdiction of another Union, the Union wishing to include the player in its team playing squad has obtained the prior written consent of that other Union. The consent is required to be

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unconditional except to the extent that the Union granting consent may require the player to return if he will be selected in that Union’s team playing squad for its senior representative team’s next match as a result of injury to another player. There is no dispute in this case that except in relation to the requirements of Regulation 5(b) Bourke met the conditions for inclusion in the Bay of Plenty team’s playing squad for the Auckland match as an Outside Player.

2.3. Prior to the events recorded as follows, Bourke was registered with the Taradale Rugby Club in Hawkes Bay and, as a member of that Club, competed in competitions conducted by the HBRFU. In early June 2004 the HBRFU received advice, it seems of an informal kind, that Bourke would be moving to the Bay of Plenty. That was followed by a letter from the BOPRFU to the HBRFU faxed on 15 July 2004 in which the BOPRFU formally requested “the loan to transfer of the Hawkes Bay registered player Colin Bourke for the 2004 NPC Season.” The letter indicated the transfer fee of $15,000.00 would be deposited with the NZRU on 19 July and requested the Chief Executive Officer of the HBRFU “sign the transfer documents and deposit with the NZRU on the same date”. The Chief Executive Officer of the HBRFU did not respond to the letter because, as appears from the submissions, there were matters (unspecified) with Bourke which had not been resolved. Thereafter the Academy Manager of the HBRFU sent a note to Mr Craig Morris, the Bay of Plenty Team Manager in the following terms:

“Craig, so we can get this all cleared up, we require Colin to return the 2 contracts he was allocated, and for him to repay the $1,500 which he was paid under clause 4.3(ii) of his Academy contract.

Colin is obligated to repay his selection bonus under the termination clause 7.5 and clause 5.2(c) of his Academy contract.”

There is some dispute as to when the note was sent; the BOPRFU has indicated it received the note on either 16 or 18 July whereas the HBRFU has suggested the note followed a discussion between the Academy Manager and Mr Morris on 27 July. On 19 July the BOPRFU deposited the transfer fee of $15,000.00 with the NZRU as indicated in its letter of 15 July and on 11 August it deposited the $1,500.00 referred to in the Academy Manager’s letter set out above into the bank account of the HBRFU. This apparently followed involvement by a representative of the Players Association as a result of which he recommended the payment be made. It appears that although there was a telephone discussion between the Chief Executive Officer of the BOPRFU and a staff member of the HBRFU about the payment of the $1,500.00 it was not drawn to the attention of the Chief Executive Officer of the HBRFU. In his submissions to me the Chief Executive Officer of the HBRFU has confirmed that had he been aware of that payment having been

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made on 11 August, the papers relating to the “loan/transfer” of Bourke would have been signed off immediately. As events transpired, following the match on 15 August, on confirmation of the matters just outlined, the Chief Executive Officer of the HBRFU completed the loan/transfer documentation and confirmed that with the Chief Executive Officer of the BOPRFU. The only additional events requiring mention are that on 11 August the BOPRFU notified the NZRU of its NPC squad which included Bourke and that on 28 July the HBRFU sent a fax message to the BOPRFU attaching Bourke’s Rugby Academy contract and 2003 NPC contract “in an attempt to have the matter speedily resolved”. The fax message requested the copies of the contracts be destroyed by the BOPRFU once the matter had been resolved. Subsequently the originals of the contracts were returned to the HBRFU some time prior to the match on 15 August and fax copies in the possession of the BOPRFU were destroyed as requested.

2.4. Against that background, the HBRFU in its submissions contends that it had not, as at the time of the match played against Auckland on 15 August, given the prior written consent required by Regulation 5(b) to Bourke being included in the Bay of Plenty team playing squad as an Outside Player. The BOPRFU takes the contrary position. It contends the requirements of the correspondence comprising the letter of 15 July to the HBRFU, the letter from the HBRFU’s Academy Manager and the further letter of 28 July concerning Bourke’s contracts were all met by 11 August and that by the time of the match against Auckland on 15 August the consent which it says is evidenced by that documentation had become unconditional. A number of other points in support of that contention have been advanced by the BOPRFU but generally they do not address the critical issue for determination and for that reason are not repeated here.

3. Findings

3.1. The interpretation of Regulation 5(b) and what is required to meet the conditions specified in it for a player to be included as an Outside Player in the team playing squad for the senior representative team of a particular Union should not be seen as matters of difficulty. The Regulation is clear that it only applies where the player concerned, at the time he is to be included in a team playing squad as an Outside Player, has been registered with a Club competing in a Club competition conducted under the control and jurisdiction of another Union. The requirement that prior written consent of the kind specified be obtained from the other Union means that:

(i) The written consent must be in existence and have been obtained by the Union seeking to utilise the services of the Outside Player before the player is included in the team playing squad of 22 players. The Regulation is framed so as to impose the responsibility of obtaining the

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written consent within the applicable time framework on the Union seeking to include the player in its team playing squad. In this context “obtained” means more than merely receiving notification that written consent has been given. The essence of the word “obtain” is to gain possession of or acquire a particular thing or object. It follows that in order to satisfy the requirements of Regulation 5(b) the Union which carries the responsibility to obtain the prior written consent should have in its possession the actual written consent or at least a copy thereof (provided by facsimile) before inclusion of the Outside Player in its team playing squad. Anything less than that will likely result in non- compliance with the Regulation.

(ii) The consent must be to the inclusion of the player concerned in the team playing squad for the senior representative team of the Union seeking to utilise the player as an Outside Player. No particular form of words is prescribed by the Regulation, nor otherwise required provided that the form of words used in any instance clearly conveys that is what the consent given relates to. It would appear that in the past the description of the process as a “loan” of the player concerned has generally been understood to encapsulate what was required by the Regulation without difficulties occurring. Literally and conceptually, however, the process is somewhat different from what is commonly understood as a “loan” and consent given in those terms could conceivably give rise to difficulties in the future that might be best avoided. Appropriate use of the terminology of the Regulation itself should suffice to avoid difficulties as to the adequacy of consent in any given instance.

(iii) The written consent obtained must be unconditional except in the one particular respect the Regulation permits, i.e. that the player return to the Union granting the consent if he will be selected in that Union’s team playing squad for its senior representative team’s next match as a result of injury to another player. Any condition of consent other than that specified is outside the terms of what is permitted by Regulation 5(b) and means that any consent sought or given subject to any such condition will be invalid and ineffective to meet the requirements of the Regulation.

3.2. When the exchange of correspondence relied on by the BOPRFU as evidencing the prior written consent of the HBRFU to the inclusion of Bourke in the Bay of Plenty team playing squad for the match against Auckland on 15 August is examined against those requirements, it is apparent there are difficulties. Accepting that the BOPRFU’s request for the “loan to transfer” of Bourke for the 2004 season contained in its letter of 15 July encapsulated a request for the consent required by Regulation 5(b), I do not think that the responses contained in the HBRFU’s Academy Manager’s subsequent note to

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the BOPRFU or the facsimile of 28 July 2004 relating to Bourke’s contracts can properly be regarded, either alone or in combination, as written consent of the kind required by Regulation 5(b) irrespective of whether or not the conditions imposed in that correspondence were subsequently met by the BOPRFU prior to Bourke’s inclusion in its team playing squad. The note from the Academy Manager in terms indicates no more in my view than a desire to have issues regarding the “loan to transfer” request made in relation to Bourke “cleared up” and an indication as to conditions the HBRFU required to be satisfied to achieve that objective. Those conditions, it will be noted, fall outside the one condition of consent permitted by Regulation 5(b) with the result that even if the note could otherwise conceivably be regarded as providing the required written consent, the non-compliant conditions imposed would render it invalid and ineffective for that purpose. The facsimile from the HBRFU to the BOPRFU of 28 July 2004 concerning Bourke’s contract obviously on its face does not provide the prior written consent required by Regulation 5(b).

3.3. It follows that Bourke was ineligible to be included in the Bay of Plenty team playing squad for the match against Auckland on 15 August and the BOPRFU was in breach of the Regulations in including him in the squad and permitting him to play in the match.

4. Penalty

4.1. Regulation 41 of the Regulations for the National Provincial Rugby Championship (as amended) provides:

“The Board shall have jurisdiction to determine whether or not there has been any breach of these or any other NZRU Regulations and impose any penalty as it may at its discretion determine including:

1. a financial penalty; and/or

2. a deduction in points awarded to an Affiliated Union on the points table for the NPC; and/or

3. where the Board considers that there are exceptional circumstances and that a fair result requires a reallocation of points, such points deducted from an Affiliated Union may be awarded to another Affiliated or Affiliated Unions on the points table for the NPC.”

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The provision is inclusive and leaves the matter of the appropriate penalty for the breach of Regulations I have found as a matter for my discretion. In exercising that discretion, however, I have had regard to the approach taken by previous Sub-committees of the Board inquiring into similar and related breaches of the Regulations and Decisions of the Appeal Council on appeal from those Sub-committees. In those cases the approach has been that the matter of penalty should be determined by reference to the culpability involved in the breach of the Regulations concerned. A deliberate breach intended to secure for the Union in breach an advantage it would not otherwise have should properly attract a more severe penalty than one which is purely technical and inadvertent without consequent advantage. In that regard I think the following matters are of significance:

(i) It its letter of 15 July to the HBRFU the BOPRFU clearly intended to raise the issue of consent being given to Bourke being utilised by the BOPRFU as an Outside Player for the 2004 NPC season. It is not without significance, I think, that the Chief Executive Officer of the HBRFU has not claimed in his submissions to me that he was in any doubt that was one of the issues raised by the letter of 15 July.

(ii) Although I have reservations as to the extent to which the submissions of the BOPRFU concerning the correspondence relied on as evidencing what it claimed was the written consent of the HBRFU meeting the requirements of Regulation 5(b) are the product of ex post facto rationalisation on its part, it is not inconceivable that it could have formed the view of the correspondence it claimed and regarded compliance with the conditions as meeting the prerequisites for the consent perhaps implicitly conveyed by the note from the HBRFU’s Academy Manager. As against that, even a cursory reading of the applicable Regulation must have indicated that there were problems with treating the correspondence in that way and more generally I do not think that the requirements of the Regulations as they applied in this case have been dealt with by the BOPRFU with quite the care and attention to detail the situation demanded, particularly when it intended to include Bourke in its team playing squad for the Ranfurly Shield match against Auckland on 15 August. By the same token the note from the HBRFU’s Academy Manager might have been expressed in rather clearer terms than it was and no doubt contributed to the understanding of the position the BOPRFU took from it. That said, however, as I have indicated, the responsibility was on the BOPRFU to ensure there was proper and timely compliance with Regulation 5(b) and to the extent indicated, I believe it was culpable in failing to ensure there was such compliance in this case.

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(iii) The fact that the required written consent would have been provided on or about 11 August had the Chief Executive Officer of the HBRFU been aware of the payment of the $1,500.00 required by his Union is not a matter which I find to be of particular significance in excusing non-compliance with the Regulation. As I have said, the responsibility for ensuring proper compliance rested entirely with the BOPRFU and it should have been obvious from a reading of Regulation 5(b) that meeting the condition of that payment raised questions as to the validity of the consent the Union claims arose from it.

(iv) It has not been suggested to me that the BOPRFU gained any significant advantage from playing Bourke as against another player who might properly have been included in the team playing squad but obviously Bourke would not have been selected had he not been regarded as having superior qualities to other players who might otherwise have been eligible for selection. I accept that the breach of the Regulations by the BOPRFU was not deliberate but at the same time I believe it could have been avoided with greater care and attention to detail. In my view there was an unacceptable degree of carelessness by the BOPRFU in meeting what was, in the circumstances, a fundamental and important obligation.

4.2. Balancing the various considerations I have referred to as best I can and having regard to the penalties imposed by other Sub-committees for similar related breaches of the Regulations, I believe this matter can properly be dealt with by way of the imposition of a monetary penalty only. The BOPRFU will accordingly pay a fine of $3,000.00 to the NZRU together with costs of $1,000.00 to meet the costs and expenses of this Inquiry. The fine and costs are to be paid to the NZRU within ten days of this Decision.

DATED at Wellington this 19th day of August 2004.

______Bruce Squire QC