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Spanish Rugby in the Dock Part III: The End of the Line?

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About The Author

Ben Cisneros (Regular Writer)

Ben is a third-year law student at Selwyn College, Cambridge, currently spending this year studying law at the Universidad Autónoma de Madrid as part of the Erasmus scheme. He has a keen interest in Sports law, and is a future trainee of boutique firm, Morgan Sports Law. Outside of academia, Ben is a keen singer and actor with a unflinching love of Wasps and England rugby.

©World Rugby: YouTube

This article is part of the 'RWC Qualification Saga' series, edited by Ben Cisneros.

The decision of World Rugby’s Independent Judicial & Disputes Committee regarding the European Qualification Tournament for the Rugby World Cup 2019 has drastic implications for all the nations concerned. The decision, which can be appealed, leaves both Romania and Spain out of the qualification process. In a two-part series, Ben Cisneros examines the Committee's reasoning and suggests ways in which the Spanish Rugby Federation might look to appeal.

Other articles from this series are listed at the end of this article.

On 15 May 2018, World Rugby published the decision of its Independent Judicial & Disputes Committee (the Committee) relating to the European qualification tournament for the Rugby World Cup 2019 (RWC 2019). The findings of the Committee were that Belgium, Spain and Romania each fielded ineligible players during the qualification tournament, and that the controversial Belgium v Spain match (the Match) should not be replayed.

The first article in this three-part Keep Calm Talk Law series examined the Committee’s refusal to order a replay of the Match, while the second article discussed the player ineligibility issues facing the Spanish Rugby Federation (FER). In both pieces, this author suggested that there were legitimate grounds for FER to challenge the Committee’s decision at an appeal.

However, on 1 June 2018, World Rugby’s Appeals Committee (the AC) published its decision, in which it confirmed that the initial findings of the Committee were correct. As such, the heavy sanctions were left intact and the Match is not to be replayed. Spain will not be going to RWC 2019.

This article analyses the AC’s decision and critiques the disciplinary system that has been put in place by World Rugby. It also considers whether there are any further legal options that might be open to the FER in the English courts.

Spain’s Appeal Submissions

In its appeal to the AC, the FER challenged three aspects of the Committee’s initial decision

  • The decision not to set aside the result of the Match and order a replay;
  • The finding of ineligibility in relation to Mathieu Belie and Bastien Fuster;
  • The heavy sanctions imposed on Spain.

On the first issue – the decision not to replay the Match – the FER argued all the evidence showed the existence of bad faith by the match referee and, as this author has suggested previously in this series, that the Committee had erred by:

  • Placing excessive emphasis on a) World Rugby’s submission that there was no actual bias on the match referee’s part, and b) the Belgium team’s subjective assertion that their team had played better than Spain;
  • Making a false comparison with officiating in the Six Nations;
  • Failing to give sufficient weight to World Rugby’s contention that ‘the integrity of the RWC Qualification Process will be damaged [if] a replay is not ordered’.

On the second issue of player ineligibility, the FER maintained an argument – previously scrutinised by this author in this seriesthat it had initially advanced before the Committee: that Belie and Fuster had not actually been ‘captured’ by France because the nomination of France’s ‘Next Representative Team’ was void. To strengthen this, Spain relied on new evidence of correspondence between the-then International Rugby Board and the Welsh and French governing bodies that discussed their obligations to notify young players of ‘capture’.

The FER developed this argument further, submitting that the Committee had failed to have regard to several mitigating factors, including:

  • Fuster had played only six minutes in one France under-20s match and was an unused replacement in another;
  • World Rugby had failed to maintain proper records as to which teams were Next Representative Teams when Belie represented France under-20s in 2008;
  • New evidence suggested World Rugby was not actually in possession of information which it had told the Committee was readily available at the material time;
  • Neither player had been told he was captured and were both under 20 years of age at the material time.

The Appeals Committee Decision

The AC began its decision by restating the importance of Regulation 8 of the World Rugby Handbook to the integrity of international rugby. In particular, it emphasised its ‘strict liability’ nature, thereby highlighting that this would be a difficult case for Spain to win.

The AC explained that – pursuant to Appendix 1 to Regulation 18 of the World Rugby Handbook  – this was not a de novo hearing, but ‘an appeal essentially by way of review’. Thus, the appeal threshold was not ‘whether the [AC] would have reached a different decision than the first instance decision-making tribunal’; instead, the FER must establish, in line with Section 4.5 of Appendix 1 to Regulation 18 of the World Rugby Handbook, that:

  • The Committee’s decision was in error (either as to central factual findings or in law);
  • In the interests of justice, the Committee’s decision should be overturned; and/or
  • The sanction imposed was manifestly excessive or wrong in principle;

The AC was also quick to confirm the existence of a significant “margin of appreciation” that must be accorded to the Committee’s initial decision. Thus, the burden on Spain was not simply to prove their case, but to also show that the Committee’s decision was so unjust that it could not possibly stand: a threshold that is ‘high, and deliberately so’.

The Eligibility Question

The AC agreed with the Committee’s initial decision to dismiss a “literal interpretation” of the Explanatory Guidelines for Regulation 8 of the World Rugby Handbook which meant that the nomination of France’s ‘Next Representative Team’ was not void. The AC emphasised that the Explanatory Guidelines do not expressly remove the right to make an alternative nomination in the four-year period; rather, a nomination would last for four years unless another nomination was made in the interim.

Furthermore, the AC also noted that the “literal interpretation” would lead to absurd consequences, as it would leave it impossible to change a nomination if – as with the under-21s sides in 2007 – a ‘Next Representative Team’ was disbanded. Accordingly, the AC reached the conclusion that the Committee was correct to conclude that Belie and Fuster were ineligible to represent Spain.

The Imposed Sanctions

The AC confirmed that the FER needed to show that the heavy points deduction which the Committee had initially applied to Spain was either wrong in principle and/or manifestly excessive. It also observed that the Committee has the discretion to impose such a penalty ‘as they think fit’, so long as any sanction is ‘proportionate… by reference to the culpability’. In examining this, the AC held it was appropriate to have regard to:

  • The factual circumstances of the individual breaches;
  • The aggravating and mitigating factors relevant to those beaches;
  • Parity and consistency of approach and sanction as between ‘offending’ Unions;
  • The fact the breaches came in a tournament situation, rather than a one-off test match or ’a competition long since concluded’.

In determining whether the points deduction was ‘wrong in principle’, the AC considered a number of previous cases involving Regulation 8 of the World Rugby Handbook – some of which were previously examined by this author in this Keep Calm Talk Law series – involving teams such as Russia in 2003, Tahiti in 2018 and Japan in 2007. Though it noted there is no doctrine of precedent in rugby, the AC held that such cases were illustrative for testing the Committee’s approach.

The AC thus found that these cases showed the Committee’s decision to make a points deduction was entirely consistent with past sanctioning of breaches of Regulation 8 of the World Rugby Handbook. It found that the points deduction protected the integrity of the RWC 2019 and did not result in unfairness as between Unions; it was thus correct in principle.

The AC also concluded that the mitigating factors advanced by FER were not sufficient to show that the sanction was ‘manifestly excessive’. It noted the obligation to warn players of capture came after Fuster had played for France and that it was Fuster’s sole responsibility to ensure he knew the implications of every match in which he played, no matter how limited his participation.

Replay of the Match

Though its conclusions on player eligibility left the point moot, the AC felt the concepts behind the issue of the replay of the Match still required consideration.

The AC set out the core principles that it considered relevant. These included the ‘unassailable’ idea that the referee was the ‘sole judge of fact and law during the match’; the Committee’s limited jurisdiction, in instances of corruption or bad faith, to overturn the decisions of referees made on the pitch; and the essential need for the ‘appointment of neutral match officials’ and the ‘appearance of neutrality’.

Crucially, however, the AC then went on to say that it was:

[N]ot prepared to say there may never be circumstances where the ‘appearance of bias’ is sufficient basis for [the Committee] to intervene and to order a match to be replayed. To the extent [the Committee] expressed a contrary view we, with respect, disagree.

For the case at hand, the AC held that the way Rugby Europe dealt with Spain’s request for a change of match officials was ’inadequate’ but ultimately decided the evidence did not establish ‘actual bias or bad faith’. It therefore refused to overturn the Committee’s decision.

Analysis of the AC Decision

Appeal or Review?

At common law, the distinction between “appeal” and “review” is an essential one. It is therefore concerning that Appendix 1 to Regulation 18 of the World Rugby Handbook seems to conflate them entirely.

In English law, a de novo hearing (a full re-hearing) is rare. Instead, an appeal court will ask whether it considers the lower court’s decision or sanction to be ‘wrong’ by focusing on the merits of the decision and ultimately considering whether it would have decided the case in the same way. There is no ‘margin of appreciation’ or high ‘threshold’ to overcome: it is either right or wrong.

In contrast, a “review” is an analysis of the process by which the decision was reached. The focus is on legality: a reviewing court considers whether the decision-maker made any errors of law or fact, whether there were any breaches of procedural fairness or natural justice. Furthermore, regard is had to whether the decision was so unreasonable that no reasonable person could have reached it (though some deference is shown to the original decision-maker’s expertise).

It is both regrettable and concerning that it was this final point of “review” that was followed by the AC: the Committee was given a ‘margin of appreciation’, such that its decision is only be overturned if ‘manifestly excessive’. In short, the so-called “appeal” that Spain was offered was, in fact, a review and not an appeal at all.

This distinction is significant, because of the burden it places on the appellants. Rather than simply arguing that the Committee should have decided the case differently, the FER had to prove the decision was entirely ‘unreasonable’, to the extent that the Committee was not ‘entitled to come to’ it or that it was ‘manifestly wrong’. This illustrates the AC’s reluctance to interfere with the Committee’s decision – something uncharacteristic of an “appeal” in English law.

It is also significant because it is likely Spain never made detailed submissions to the Committee on appropriate sanctions or on mitigating circumstances, as they considered their original case to be strong. A true appeal would have given them the chance to do this. Instead, the starting point for Spain was showing that the sanction imposed was ‘manifestly excessive’ – a very different proposition.

A true “appeal” would ensure justice was fully served. For example, the matters in dispute were not clear-cut: a different AC panel could quite feasibly have reached a different decision. This is demonstrated by one member of the AC stating that they would have halved Romania’s sanction, and another stating they would have awarded a replay of the Match.

Furthermore, because World Rugby does not submit disciplinary disputes to the Court of Arbitration for Sport (CAS), its internal process is the only way to seek recourse against a decision. In cases of this magnitude, having such a weak appeals process is – to this author – unacceptable. In the absence of a CAS appeal, World Rugby should have a thorough system of its own to ensure the rights of all its members are properly upheld. This could feasibly be an internal procedure but – given the growth of the game worldwide and the complexity of its rules – submitting to the CAS jurisdiction would arguably be more appropriate.

At common law, allowing a “review” as opposed to an “appeal” is usually because the reviewing court does not have the same institutional competence or expertise as the original decision-maker. Here, however, this did not apply: there is nothing to suggest that the AC could not have the same level of expertise as those on the Committee. Indeed, it is odd that while the Committee comprised three judges, the AC consisted merely of lawyers with rugby experience. A combination of legal and rugby expertise at both stages would surely be preferable. 

In addition, a “review” is normally favoured in circumstances to protect legitimacy and to avoid fettering the discretion of the decision-maker. Again, this is of no real concern here. The AC is part of the same independent disciplinary arm of World Rugby as the Committee. There is no reason as to why the “appeal” should not be just that.

Different Rules for Different Tiers

The AC’s analysis of the imposed sanctions is characterised by inconsistent treatment of ‘Tier 1’ and ‘Tier 2’ rugby nations. Though the cases of Russia and Tahiti were used as guidance, no explicit mention was given to the ‘Grannygate’ case that was discussed previously by this author in this series. Instead, the AC simply noted that:

[O]ther cases where there has been no points deduction do not set a precedent for that to be the appropriate sanction in every case. Where there has been no points deduction it is invariably because the breach was discovered a long time after the relevant match and not within the context of a qualifying process. Accordingly, a points deduction would be meaningless or impracticable.

This reasoning is unsatisfactory. In the ‘Grannygate’ case, Wales and Scotland fielded ineligible players in RWC 1999 which ultimately served as a qualifying process for the next tournament: the RWC 1999 quarter-finalists automatically qualified for RWC 2003. Furthermore, the breaches were discovered the following season and the soft financial penalty handed out in May 2000; a full three years before the next RWC and four months before the qualification process for the remaining places started. Thus, the reasons for ignoring this case do not hold up. The AC should have given greater weight to this relevant consideration.

There was also a lack of clarity surrounding the treatment of Spain’s mitigating circumstances. While the decision noted Fuster’s circumstances – and explained why they should be disregarded – there was no mention of Belie’s case. The AC seemingly failed to consider the ‘recently disclosed correspondence’ which showed that World Rugby was not in possession of the material it had told the Committee was readily available at the time. They also did not take account of Belie’s reported efforts to contact the FFR, or Spain’s attempt to seek confirmation of his eligibility from World Rugby. This is, again, a deeply unsatisfactory failure to consider more relevant considerations.

Apparent or Actual Bias?

The AC’s treatment of “apparent bias” is also concerning. Despite discussing the viability of using “apparent bias” as a ground to order a replay, the AC did not then explain why using such a standard would  be inappropriate in this case. Rather, it seemed to proceed based as if the FER had failed to establish “actual bias or bad faith”.

In fact, the AC’s discussion is largely inconclusive: the only thing it established is that, one day, it might be possible to order a replay based on apparent bias. Given the rarity of these cases, it is argued that now would have been the perfect opportunity to bring clarity by discussing the circumstances in greater detail. It seems the AC shied away from discussing the most alarming element of this sorry saga.

An English Legal Challenge?

Having exhausted World Rugby’s internal appeals system exhausted and with no option of a CAS appeal, the only remaining option for Spain – should they wish to challenge the AC’s decision – is to pursue a case in the English courts under Bye-Law 15(b) of the World Rugby Handbook. There are a number of potential avenues through which this challenge could be brought.

Judicial Review?

The availability of judicial review against sporting governing bodies is highly limited but, as this author has explained previously for Keep Calm Talk Law, there is a strong case to be made that World Rugby is the sort of institution which should fall within its scope.

Should permission for judicial review be granted, the FER could advance a case asking the court to quash the Committee’s decision on the following grounds:

  • Error of law: “apparent bias” was the standard that should have been applied in the Belgium v Spain case.
  • Failure to take account of relevant considerations: the lack of consideration given to Spain’s mitigating circumstances, and unsatisfactory consideration of ‘Grannygate’.
  • Proportionality: the sanction imposed was disproportionate – World Rugby’s own failings and the other mitigating circumstances demand a lesser sanction.

Breach of Contract?

Alternatively, Spain could use the same grounds to bring a case in contract law and take advantage of the court’s ‘supervisory jurisdiction’ established in Bradley v Jockey Club [2004]. This would involving the FER contending that terms incorporating these basic procedural and substantive requirements are implied into the World Rugby Handbook (which ultimately constitute the contract between Spain and World Rugby) on the grounds of necessity.

However, it is doubtful whether this would see Spain reinstalled into the RWC 2019 qualification process: quashing orders do not exist in contract law, and an injunction preventing the imposition of the sanctions may come too late. To this end, the best option for Spain would be to seek damages for World Rugby’s procedural failings and its breach of its obligation to maintain a database of all ‘captured’ players.

The likelihood of success for these claims may be low, however. Spain’s losses are almost impossible to quantify and there are causation issues: Spain arguably broke the chain of causation between World Rugby’s breach and the loss through its administrative errors and its breach of its obligations under Regulation 8 of the World Rugby Handbook.


In all, prospects of successful legal action appear slim for Spain. While World Rugby and Rugby Europe certainly made errors throughout this lamentable debacle, Spain are ultimately culpable too; their efforts to clarify the eligibility of their players were evidently insufficient and though the rules are complex, they should have been more diligent.

Two wrongs, of course, do not make a right. Yet, it is argued that the sanction imposed remains too severe. Had World Rugby’s disciplinary process allowed for an appeal in the true sense of the word, the outcome might have been different. This would also be true if the mitigating circumstances and Tier 1 precedents had been given greater consideration and had “apparent bias” been the standard applied.

Whether the short-comings of the AC’s decision are enough to mount a legal challenge remains to be seen, but what this case does clearly show that World Rugby needs to reconsider its processes. Providing for a proper appeal – either internally or to CAS – and establishing a comprehensive database of players must be of the utmost priority.

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Tagged: Sport Law

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