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Spanish Rugby in the Dock Pt I: Finding Grounds for Appeal

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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.

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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 should not be replayed.

The eligibility breaches were sanctioned with points deductions, meaning Romania – who had qualified – and Spain – who were in the qualification “play-offs” – were replaced by Russia and Germany respectively. All parties have 14 days to appeal the decision.

The Committee’s decision is clearly a significant one for all the teams concerned. It is also a complex one which deals with two distinct issues. For this reason, Keep Calm Talk Law’s discussion of it will take place over the course of two articles: the first will analyse the decision from the Spanish perspective by delving into the validity of the now-infamous Belgium v Spain fixture and seeking to suggest possible grounds for appeal, while the second will examine more closely the questions of international player ineligibility raised by the decision.

The Background

The Committee’s decision is the latest twist in a very long tale. On 18 March 2018, Spain faced Belgium in a Rugby Europe Championship match (the Match) that what was supposed to be the rubber stamp on their qualification for RWC 2019. Having defeated Romania earlier in the tournament, and up against a Belgian side who had won just once in their previous ten games, Spain were in prime position to qualify.

The state of play before kick-off was simple. Win and Spain qualified automatically for RWC 2019; lose and Romania were through. In a major surprise, they did lose: 18-10.

However, the result was shrouded in controversy. The match officials were all Romanian, despite Spain’s request that they be changed for the avoidance of doubt. Yet doubts were raised as the Match ended with a penalty count in the region of 28-5 against Spain, a ratio unheard of in international rugby. Indeed, having watched the Match in full, this author can testify to the shocking extent to which decisions went against the Spanish. They may not have played well, but it was difficult for them to get any momentum due to the way the Match was refereed.

Other factors added to this air of suspicion. There was no Television Match Official – despite Spain’s request for one – and Spain were not given access to a “captain’s run”. There were even concerns raised about the dimensions of the pitch. Furthermore, the chairman of Rugby Europe – which organises the qualification tournament – is Romanian. It is little wonder, therefore, that ugly scenes followed the final whistle: five players were subsequently given bans for chasing the referee from the field, hurling abuse.

Ultimately, the scandal was taken to the highest level within the sport – World Rugby – which uncovered further wrongdoing concerning the eligibility of players. Unfortunately for Spain, they too were implicated in this such that, as it stands, they have no chance of making RWC 2019. The significance of this decision cannot be underestimated for Spanish rugby, which has just started to build a head of steam in what is a football-mad country. To be knocked back so suddenly has caused great upset, and is likely to put off many casual fans who will see this as a conspiracy against Spain.

Nonetheless, it must be said at the outset that the Committee’s decision is generally well-reasoned. The panel has clearly carried out its function professionally, and all sides have been given representation. The fact that it disagreed with World Rugby’s view that the Match should be replayed in itself reinforces the Committee’s independence. The integrity of the process cannot be questioned.

Though the two main issues are to be addressed separately, it is worth noting that an appeal would only really be a success if the eligibility point was to be overturned. If, on appeal, a replay was ordered for Belgium v Spain but the eligibility sanctions remained, Spain would still be out of RWC 2019. If they can escape the ineligibility charge, they would be back in the play-offs at least.

Belgium v Spain

Spain’s Submissions

On 20 March 2018, the Federación Española de Rugby (FER) wrote to World Rugby and Rugby Europe setting out a dispute in respect of the Match and seeking various remedies, including a declaration that the result of the Match was null and void, and that a replay be ordered. In an assertive statement, the FER said:

Firstly, there has been a violation of the principle of impartiality that must prevail in any sporting activity… The fact that the three referees belonged to the Romanian Federation, one of them with positions of responsibility in the organisation, caused distrust in their impartiality. This simple suspicion should have been enough to evaluate the request of the Spanish Federation.

They also made reference to the fact that World Rugby withdrew Assistant Referee Marius van der Westhuizen from the Six Nations game between England and Ireland, after the South African visited the English camp in the week before the match. As the FER termed it, there were “less apparent issues of partiality” in that case, and yet World Rugby intervened. The FER’s statement continued:

Secondly, there has been a breach of the code of conduct established by World Rugby [which] establishes that no conduct or activity will be adopted inside or outside the field of play that could damage public confidence in the honesty and the regular conducting of a match. In this case, there were circumstances that did not guarantee this confidence…

Moreover, Regulation 18 6.1b of World Rugby allows that, if there has been a breach of the Statutes and/or regulations, there is the possibility of cancelling the result of a match and/or the repetition of a match.

World Rugby were clearly concerned. On 5 April 2018, it announced that its Executive Committee and the Rugby World Cup Board ‘felt that a replay would be in the best interests of the game’. At this point, however, because issues of player ineligibility had arisen, World Rugby referred the issue to the Committee.

At the hearing before the Committee, World Rugby supported Spain’s position. It submitted that the Match should be set aside and replayed due to what it considered apparent bias on the part of the match officials.

The Committee's Decision

After determining that it had jurisdiction to set aside the result of the Match and to order a replay under the broad terms of the RWC 2019 Qualifier Terms of Participation, the Committee turned to the substantive issue of the dispute. At paragraph 25 of its decision, it reached the conclusion that:

The principle that “the referee’s position as sole judge of fact and law during the match is unassailable” is a core principle of rugby, as is the very limited jurisdiction of a Disciplinary Committee to overturn the decisions of referees made on the pitch after the game. We accept that if corruption or the bad faith of a referee is proved then the Panel would exercise [its] jurisdiction… to overturn the result of the game.

However, the invitation to overturn a result because of the “appearance of bias” or because of the unsatisfactory way that Rugby Europe dealt with the proper request made by Spain to remove the match officials, is in our judgment not sufficient… Further, there is no precedent for a Disputes or Disciplinary Committee to set aside the result of a match in such circumstances. Taking such a step would undermine the respect to which decisions of referees are entitled, absent corruption or bad faith.

In reaching this decision, the Committee’s Panel had regard to examples put forward by Belgium – such as an English referee taking charge of a Wales v Scotland Six Nations game – of refereeing choices that could cause conflict but happen regularly. The Committee argued that there is a limited pool of referees and it may not be possible to appoint anyone whose home Union is “wholly unaffected” by any possible permutation of a result. It added:

If the use of a Romanian referee in the Belgium v Spain match was not permissible as a matter of principle, then arguments could be made that no referee from any Six Nations Union could referee any match between any other Unions in the Six Nations… it is notable that the same referee in question in the Match also took charge of the Spain v Belgium fixture earlier in the qualification process without objection. The points won, or lost, as a result of that earlier fixture were of equivalent effect in the qualification process as those in the Match itself.

The Committee in its decision did accept that the way Rugby Europe handled the game was inadequate, but held this was a ‘very long way’ from being enough to overturn the result.

Analysis of the Committee’s Decision

It is understandable why the Committee set the bar so high for invalidating a result. There is a concern that accepting anything less than proof of “bad faith” would risk undermining the position of the referees in a way that could lead to all manner of frivolous allegations. Indeed, it is laudable that they want to discourage criticism of referees: there is already too much of that in rugby.

However, given the difficulty of proving “bad faith”, setting the bar so high serves to empty their jurisdiction to cancel/replay a match of much of its content. Furthermore, in this case, the lengths to which the governing bodies concerned have gone to try to prove actual “bad faith” appear limited. The scale of investigation needed to prove such conduct seems beyond their means. Moreover, the presumption of neutrality is such that nobody has even wanted to allege it.

While appreciating the need for such jurisdiction to be truly exceptional, it is argued that a more appropriate standard is apparent bias. It is a well-established principle of English administrative law, set out by Lord Hewart CJ in R v Sussex Justices, ex p McCarthy [1924] that:

[J]ustice should not only be done but should manifestly and undoubtedly be seen to be done.

Thus, in order to maintain confidence in the integrity of the sport, there can be no appearance of bias in the eyes of a reasonable observer. To uphold this is merely the application of the rules of “natural justice” that Regulation 18.11.3 of the World Rugby Handbook – by references to “general principles of justice and fairness” – requires decision-making bodies in rugby to follow. Furthermore, fleshing out these vague principles, Bye-Law 15(b) of the World Rugby Handbook states that the Regulations of the World Rugby Handbook shall ‘in all respects be governed by and construed in accordance with English Law’. This, surely, should see “natural justice” and – when necessary – “procedural fairness” applied in line with English jurisprudence.

The modern precedent on apparent bias in English administrative law is Porter v Magill [2001] in which Lord Hope stated that the question that should be asked by the court is:

[W]hether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision-maker] was biased.

It is argued that, in this respect, the Committee erred in its decision. It seemed to suggest that it was simply the nationality of the referee which caused the concerns over the appearance of bias. Though this did raise eyebrows, the real concern came from the referee’s performance. The facts must be considered as a whole. Indeed, had an English referee officiated as the Romanian did, similar allegations would undoubtedly have been made. Thus, while the referee’s nationality certainly does play a part – and instances of perceived partiality should be avoided at all costs – it should not be overlooked that, had the referee in question had the perfect game, there would have been no protest.

Ultimately, channelling Lord Hope’s test from Porter v Magill [2001], considering the facts as a whole, it seems clear that the fair-minded and informed observer would conclude that there was a real possibility that the referee was biased.

What Should Happen Next?

Invalidating the game merely for a referee’s nationality would go too far. This is demonstrated by the Six Nations example given by Belgium: if their point was taken to the extreme, international rugby matches would have to be refereed by extra-terrestrials because every game affects the world rankings.

Indeed, while the Committee in its decision were keen not undermine referees, they went too far by conflating the “automatic disqualification” of a referee with “apparent bias”. A ‘middle ground’ test of “apparent bias” would be more appropriate.

If this argument is not successful, the Six Nations argument made by Belgium can also be distinguished from the case at issue. In a regular Six Nations game – and indeed in Spain v Belgium in 2017 – the outcome may indirectly affect other teams. This happens all the time. However, a decisive game – the result of which would directly determine the Six Nations champion or, more significantly, RWC 2019 qualification –, is a different matter entirely. In this direct fact pattern, perhaps automatic disqualification would not be such a bad idea; it is a “bright-line rule” that would make the area much clearer.

Continuing with English administrative law principles, it is submitted that the actions Rugby Europe falls foul of the famous principle outlined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948], such that its decisions were:

[S]o unreasonable that no reasonable person acting reasonably could have made it.

This is clearly so in respect of the decision to install a Romanian referee for such a pivotal game, and their refusal to change the refereeing team at Spain’s request. In light of this, the decision should be considered null and void. This would necessitate the cancelling of the Match’s result and the replaying of the fixture.

Further weight can be added to this argument by considering Regulation 20 of the World Rugby Handbook which was not addressed in the Committee’s decision. Section 1.7 and Section 1.14 of Appendix 1 to  Regulation 20 of the World Rugby Handbook states that all Persons:

[S]hall not engage in any conduct or any activity on or off the field that may impair public confidence in the honest and orderly conduct of a Match, tour, tournament or Series of Matches [and] shall not do anything which adversely affects the Game of Rugby Football, World Rugby, any member Union or Association or any commercial partner of the Game.

It does not need much elaboration to explain why these may have been breached by Rugby Europe. The way they dealt with Spain’s request regarding the officials arguably breaches both obligations.

Given the need to preserve public confidence, it is it is also odd that the Panel disagreed with the view expressed by World Rugby. As the international governing body of rugby, World Rugby felt that the integrity of the game would best be protected by staging a replay. It is surprise that more regard was not had to this view: World Rugby is the organisation who writes the sport’s rules on upholding public confidence. Arguably, it is the organisation best placed to determine what is in the best interests of the sport.

It is therefore arguable that the Committee in its decision should have given greater deference to World Rugby as, by contradicting the organisation, a certain degree of public confidence in its decisions may be lost. This argument is not sufficient on its own to mount an appeal but could add to Spain’s case.

Finally, the lack of precedent was seen as an issue by the Committee. However, as Rugby Union continues to grow globally, the likelihood of such cases arising increases exponentially. In its professional form, the game is still very young. In light of this, for the inevitable appeal, the Committee should be brave in its use of English legal principle to do justice in this case, and to set a bold precedent. If governing bodies fear such a messy fallout, they might be more careful when deciding who they appoint to referee in future.

Conclusion: Suggested Grounds of Appeal for Spain

  • The standard of “bad faith” or actual bias is too high for quashing results. Apparent bias, following English administrative law principles, is more appropriate.
  • Cases in which the result indirectly leads to another team’s success (or failure) can be distinguished from those in which there is a direct, immediate gain (or loss) for another team. Automatically disqualifying a referee from officiating is not appropriate in an indirect situation but is in the direct instances.
  • A standard of “Wednesbury unreasonableness” should be applied to the decision of Rugby Europe to appoint Romanian officials (and not remove them when requested) and used to argue that the decision was hence irrational.
  • There were significant breaches of Regulation 20 of the World Rugby Handbook, which the Committee did not address in its decision.
  • The Committee should have shown some deference towards World Rugby, as the arbiter of what is in the best interests of the game.
  • The lack of precedent should not stop the most “just” decision being made: professional rugby is still in its infancy.

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Tagged: Administrative Law, Litigation, Public Law, Rule of Law, Sport Law

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