APPEAL HEARING
At: Video conference
On: 17 March 2020
JUDGMENT
Club: Stourbridge Lions
Panel: Mr John Brennan (chairman), Mr Colin Baldwin and Mr John Murphy
Secretary: Rebecca Morgan
Attendance: Mr Francis Nock (head coach, Stourbridge Lions), Mr Mick Hollis (secretary, Stourbridge Lions).
Darren Clegg (secretary, North Midlands RFU Disciplinary Committee)
Mr Roger Rees (secretary, Midland Division Organising Committee), Mr Stephen Mounfield (member, Midland Division Organising Committee)
Regarding: Appeal against a deduction of 5 championship points for knowingly playing a suspended player in breach of RFU Regulation 13.4.2.
The Facts
1. Stourbridge Lions play in Midlands 1 West. Fred Morgan plays for Stourbridge Lions. On 21 December 2019, he played for Stourbridge Lions in a league match against Kidderminster. He was ordered off.
2. After the match the referee suspected that he had been hoodwinked. The other player’s face was entirely unmarked. Moreover, his account he gave of the incident was decidedly equivocal.
3. The referee attempted to circulate a match report by e-mail on Tuesday, 24 December 2019 but, as he put it in a subsequent e-mail “something went wrong.”
4. On Friday, 27 December 2019, an official of North Midlands Society of Rugby Football Referees prompted the referee to circulate his match report. It appears that he did so as a result of somebody at Stourbridge Lions drawing attention to its absence.
5. On Saturday, 28 December 2019, Alan McCreadie contacted the former secretary of the North Midlands RFU Disciplinary Committee to enquire whether the hearing would be convened by the North Midlands RFU Disciplinary Committee or the RFU. Mr McCreadie’s email stated:
“Hi Brian Freddie Morgan was sent off playing for Stourbridge Lions against Kidderminster last weekend. He is actually a Stourbridge RFC contracted player on loan to the Lions. We were wondering whether North Midlands will be dealing with the case or whether you will refer it to the RFU. Regards Alan McCreadie Stourbridge RFC.”
6. This prompted a flurry of e-mails on 29 December 2019. In the result, the referee’s report was circulated. Darren Clegg, the secretary of the North Midlands RFU Disciplinary Committee, sent an e-mail to Mr McCreadie. It stated:
“… I attach a copy of the red card report just received … There is no date set for the next meeting of the North Midlands Disciplinary Committee, but I have pencilled in Tuesday 7th January at Droitwich RFC (subject to room and panel members being available). Freddie is of course provisionally suspended from playing all rugby until the North Midlands panel has considered his case.”
7. It would appear that Mr McCreadie, an official of Stourbridge RFC, the parent club of Stourbridge Lions, did not forward that e-mail to Mick Hollis, the secretary of Stourbridge Lions or any other official at Stourbridge Lions.
8. It ought to be mentioned at this point that the North Midlands RFU Disciplinary Committee usually meet on Tuesdays. Unfortunately, the first Tuesday after Sunday 29 December 2019 fell on New Year’s Eve.
9. On Friday, 3 January 2020 Stourbridge Lions received formal notification of the hearing on Tuesday, 7 January 2020.
10. On Saturday, 4 January 2020, Fred Morgan played for Stourbridge Lions in a league match against Lichfield. The grounds of appeal submitted on behalf of Stourbridge Lions stated:
“… our club official were under the impression that whether to suspend the player pending the hearing was at the discretion of the club (as used to be the case I believe). In retrospect, we now accept that we were mistaken in this belief and should have performed better due diligence prior to fielding the player in the fixture on January 4th.”
11. At the meeting of the North Midlands RFU Disciplinary Committee on Tuesday, 7 January 2020 Fred Morgan contended that he ought not to have been ordered off. The panel agreed. The red card was rescinded.
12. On 5 February 2020, the league secretary wrote to the secretary of Stourbridge Lions in terms which are self-explanatory. His e-mail stated:
“Mick, On Saturday, 4th January 2020 your club, Stourbridge Lions, played a suspended player, Morgan, Freddie, in your league match against Lichfield. I am obliged by the Regulations to deduct 5 Championship points from the record of your club for this breach of the regulations. Any appeal against this decision must be made to the Chairman MLOC … within 14 days in accordance with Midlands Leagues Administrative Rule 15 …”.
13. Stourbridge Lions appealed against the sanction. At the forefront of its case was the contention that Fred Morgan would have been eligible to play but for the delays that attended the circulation of the referee’s match report and the hearing. Attention was drawn to regulation 19.6.1 and 19.7.3. The former stated:
“Where the Referee has ordered off a player he shall as soon as practicable, and in any event … within 48 hours from the conclusion of the match, provide a completed report to the Disciplinary Secretary of the CB and to the referee’s society”.
In this case, the player was ordered off on 21 December 2019 and the report was not provided until 29 December 2019, 8 days later. The latter stated:
“Where a Player has been ordered off … the Notice of Hearing shall be provided as soon as is reasonably practicable.”
In this case, the notice of hearing was provided on 3 January 2020, 5 days after the receipt of the match report and 13 days after the player had been ordered off. Attention was also drawn to the fact that the hearing took place 17 days after the player had been ordered off.
14. In a written decision dated 12 February 2020, the appeal was dismissed by Mr Mounfield, a member of the Midlands League Organising Committee.
The Regulations
15. The key to this appeal is to be found in a close reading of the regulatory framework.
16. The starting point is regulation 13. Subject to an exception in relation to breaches that come to light more than a week after the end of the season, it prescribes a fixed minimum penalty of at least 5 championship points for each match in which the ineligible player participates. It is to be emphasised that there is no maximum penalty. Subject to the fixed minimum penalty, the sanction is at large.
17. Regulation 13 provides:
“RFU REGULATION 13 – ADULT COMPETITIONS All matches played under the jurisdiction of the RFU and/or in RFU Competitions or any other competition, merit table or friendlies must be played in accordance with … the RFU Rules, the RFU Regulations … • Appendix 1 sets out the Sanctions Table for breaches of these regulations … 13.4.2 No Club … shall knowingly play in any match players who have been suspended or expelled by the RFU. … RFU REGULATION 13 – ADULT COMPETITIONS (APPENDIX 1) … The RFU shall be entitled to impose fixed penalties in respect of any breach of the regulations set out below and anyone in breach of such regulations shall be bound by such penalty or penalties. Breach Sanction
Ineligible player(s) – selecting or playing an ECC – Minimum deduction of 5 ineligible player (including replacement and championship points IN RESPECT OF EACH substitutes) MATCH IN WHICH ANY INELIGBLE PLAYER PARTICIPATES
Note: Where any alleged breach is brought to the attention of the Committee more than 7 days after the end of the Season, the points deduction is discretionary and may be in substitution for or in addition to any other penalty.
18. The real issue in this appeal concerns the proper construction of regulation 19.13.3 which provides:
“19.13.3 The Appeal Panel shall only depart from the application of RFU Regulation 13 in exceptional circumstances where the Appeal Panel is of the opinion that the application of RFU Regulation 13 has resulted or would result in a perverse and/or unfair outcome.”
19. In particular, does regulation 19.13.3 afford this panel the jurisdiction to decrease or waive the sanction imposed in this case if it were to conclude that the imposition of the fixed minimum penalty (i.e. the deduction of 5 championship points) resulted in a perverse and/or unfair outcome in all the circumstances?
20. At first blush, it might be thought that the language of regulation 19.13.3 afforded the panel the jurisdiction to do just that. However, that approach is subject to an important implicit qualification namely, that it is to be taken as read that the imposition of the fixed minimum penalty is fair. To do otherwise, would arrogate to this panel the right to disapply and effectively re-write the regulations. 21. In other words, this panel’s assessment of the perversity or unfairness of the outcome must proceed on the footing that the imposition of the fixed minimum penalty cannot of itself in any circumstances be held to be perverse or unfair.
22. The panel is fortified in its construction of regulation 19.3.3 by the following.
23. First, it would make no sense if, on one hand, the Midlands Division Organising Committee were bound to apply the fixed minimum penalty prescribed by regulation 13 but, on the other, this panel were not.
24. Second, if this panel were to enjoy a jurisdiction which the Midlands Division Organising Committee did not, it would be a misnomer for this panel to be described as an appeal panel.
25. Thirdly, if it were open to a club to appeal on the basis that regulation 13 ought to be disapplied or the imposition of the fixed minimum penalty ought to be waived, the same would be identified as a ground of appeal in regulation 19.13.1. It does not. It provides: “… the notice of appeal shall: (ii) set out in full which of the following grounds of appeal it is relying upon:
(a) came to a decision to which no reasonable body could have come; or (b) made an error of law in reaching its decision; or (c) failed to act fairly in a procedural sense; or (d) the sanction imposed was so excessive/lenient as to be unreasonable.”
26. Fourthly, if this panel had power to disapply regulation 13 or to waive the imposition of the fixed minimum penalty, its jurisdiction to do so would be set out in regulation 19.13.4. It does not. It provides:
“An Appeal Panel shall … have the power to (i) allow or dismiss the appeal; (ii) vary the decision appealed against in such manner as it shall think fit including the power to increase, decrease or remit any penalty imposed; (iii) remit the matter, with such directions as it thinks fit, for reconsideration; (iv) make such further orders as it considers appropriate.”
27. Fifthly, if the Midlands Division Organising Committee were to disapply regulation 13 or impose a point deduction of less than 5 championship points, it would be open to every other club in Midlands 1 West to appeal that decision pursuant to 19.13.1(ii)(b) on the grounds that the committee made an error of law. Any such appeal would be unanswerable.
28. Sixthly, the imposition of a fixed minimum penalty can readily be justified on policy grounds namely, consistency, deterrence and administrative simplicity. 29. Finally, the construction of regulation 19.13.3 preferred by the panel does not render regulation 19.3.3 nugatory. It would remain open to a panel to decrease the number of championship points deducted on the grounds of perversity and/or unfairness in any case in which the number of points deducted at first instance exceeded the fixed minimum penalty.
Decision
30. For the reasons set out above, any appeal against the imposition of the fixed minimum penalty of 5 championship points for an admitted breach of regulation 13.4.2 is bound to fail.
31. The panel acknowledge that it must be galling for Stourbridge Lions to have fallen foul of the regulations in circumstances in which the red card was ultimately rescinded. Its frustration is understandably compounded by the fact that the red card would have been rescinded before its next league fixture but for the combination of the avoidable delay that attended the provision of the match report by the referee and the unavoidable delay that attended the provision of the notice of hearing. Such are the vicissitudes of life.
32. As to the former, it is unlikely that the delay was material as it is unrealistic to suggest that the North Midlands RFU Disciplinary Committee could have met on Tuesday, 24 or 31 December 2019 or that it should be expected to hold their hearings remotely or on any other day of the week. It is arguable that the regulations expect too much of volunteers within the amateur game as it is without adding to their burden by imposing upon them obligations with which paid administrators working within the professional game often struggle to cope.
33. As to the latter, it is entirely unrealistic to suggest that the secretary of the North Midlands RFU Disciplinary Committee could have organised a hearing on or before Friday, 3 January 2020 (being the day before the first match after the match in which the player was ordered off) after having received the match report on Sunday, 29 December 2020. In the circumstances, the provision of the notice of hearing on Friday, 3 January 2020 was unobjectionable and comfortably within the meaning of “as soon as reasonably practicable” a required by regulation 19.7.3.
34. Accordingly, the appeal is dismissed and Stourbridge Lions must pay the appeal fee of £125, the receipt of which is acknowledged.
JOHN BRENNAN 18 March 2020