This summer has seen promotion and relegation in Rugby Union move from being determined on the pitch to by a specially convened panel or Judge. Remarkably, arguments by legal counsel have ultimately carried more weight that finishing positions in the league.
This comment piece will summarise the two key recent decisions and highlight key points for the future.
London Welsh v. RFU & Newcastle Falcons
On 29 July 2012 an independent panel (comprising three QCs) overturned the RFU’s decision to refuse London Welsh promotion to the Premiership.
At the heart of this dispute was the Primacy of Tenure (“PoT”) requirement set out in the Professional Game Board (“PGB”) Minimum Standards Criteria (“MSC”).
In summary, the PoT required that a club promoted to the Premiership had control of its home ground so that games could be scheduled on a range of given days and times. Three clubs in the Premiership were, though, expressly exempt from action as a result of not meeting the PoT: Wasps, Saracens and London Irish.
London Welsh argued that the PoT and the three-club exception amounted to an unjustified restriction on competition for the purposes of UK and EU law.
Whilst the panel found that the PoT was a hybrid rule with commercial and sporting purposes, it was no longer justified by 2011 since the PoT could be safely relaxed without imperilling either the fixture list or the value of broadcasting rights.
The panel also found that the RFU should have given anxious consideration to the justification of limiting the PoT exemption to the three clubs and, had it done so, would have concluded that there was insufficient justification to the current rule.
Following the decision, London Welsh gained promotion, Newcastle (who intervened as an interested party) were relegated and the PoT requirement was left to be reconsidered by the RFU – all just about in time for the new fixture list published on 4 July 2012.
Pontypool v. Welsh Rugby Union
Hot on the heels of the London Welsh decision, on 11 July 2012 the High Court (Sir Raymond Jack) rejected Pontypool’s claim for breach of contract or breach of duty by the Welsh RU in a re-organisation of the Welsh Premier Division, resulting in Pontypool only being eligible to play in the Championship, the next division down.
Pontypool argued that there should have been an independent survey of spectator facilities as there were other clubs which did not have the required covered facilities for 1000 standing spectators.
Putting to one side where Pontypool was positioned on playing merit, the club would have gone up the rankings if other clubs may have been ineligible for the Premier Division due to their spectator facilities
Not without some reluctance, the High Court concluded that it could not conduct an enquiry into whether other clubs had in fact satisfied the facilities requirement. The case had had to be listed and determined quickly. The High Court was, though, concerned about what may be the true situation. Nevertheless, Pontypool’s claim was dismissed and would have to play next season in the Championship.
Key points for the future
(i) Governing rules give rise to both sporting and commercial issues. This “hybrid” situation must be right when it comes to fixture lists and television requirements, as identified in London Welsh;
(ii) Governing bodies need to review and retain a flexible approach to rules that give rise to a restriction of competition. As London Welsh demonstrates what was justifiable in 2001/2002 in the case of Rotherham was no longer justifiable in 2012/13 for London Welsh;
(iii) The courts and independent panels will be prepared to overturn decisions impacting on promotion and relegation even though it was accepted in both cases that issues of promotion and relegation should be determined, so far as possible, by performance on the pitch;
(iv) Where inconsistency of treatment is alleged evidence is key. In London Welsh the three-club exception was clear and express. In Pontypool the Court was unable to investigate, due to lack of evidence and time-constraints, whether the spectator facility requirement had been abused by other clubs; and,