ENGLAND RUGBY FOOTBALL SCHOOLS UNION APPEAL
EAST INDIA CLUB, ST. JAMES' SQUARE, LONDON
14TH FEBRUARY 2008
JUDGMENT
School: St Peter’s Roman Catholic High School and Sixth Form Centre (“St Peter’s”)
Panel: Jeremy Summers (Chairman), Rob Udwin and Mark Lowe (“the Panel”)
Clerk: Nigel Orton
ERFSU Advocate: Andrew Green - Counsel
Attending: Mr. Michael Beloff QC - Counsel
Ms. Moira Woodhead – Solicitor
Mr. Lawrence Montagu (LM) – Headmaster
Mr. Jim Stenson (JS) – Chairman of Governors
Mr. David Pointon (DP) – Director of Rugby
Mr. Stuart Crabb – Head of PE
Dr. Roger Edmondson (RE) - Chairman ESRFU Comp. Comm.
Mr Chris Burns (CB) - RFU Competitions Manager
Mr. Billy Clarke (BC) - RFU Age Grade Competition Manager
To Consider: An appeal against the decision of the ERFSU Daily Mail U.18 Organising Committee, dated 6th February 2008, disqualifying St. Peter’s from the 2007/2008 U.18 Cup Tournament (“the Decision”).
PRELIMINARY ISSUES
1) St. Peter’s did not object to the composition of the Panel.
2) Prior to the hearing, the parties agreed that the central issues for the appeal were the status of St. Peter’s for the purposes of the ERFSU Knockout (Daily Mail) Competition Regulations 2007/08 (“the Regulations”), events that transpired at a hearing on 25th January 2008, and proportionality.
3) Mr. Beloff confirmed that St. Peter’s were not seeking a rehearing. In light of the fact that the Regulations were silent as to the test to be applied by the Panel, it was agreed that the Panel would need to be satisfied on the balance of probabilities that the Decision was wrong.
4) It was agreed that both parties would make opening submissions before calling evidence, and then presenting closing arguments.
5) No other preliminary issues were raised.
EVIDENCE CONSIDERED
1. The Panel considered the following documents:
I. The Appeal Bundle prepared by St. Peter’s (pages 1-87).
II. A chronology prepared by St. Peter’s
III. A written statement from Mr. Stenson, dated 13th February 2008.
IV. A written statement from Mr. Montagu, dated 14th February 2008.
V. Oral testimony from Messrs. Stenson, Edmondson, Pointon and Clark.
VI. A letter from Gloucestershire County Council, dated 14th February 2008, supporting the Appeal.
THE REGULATIONS
For ease, the relevant regulations are set out below:
4. Eligibility of Players
4.4. In the Under 18 Competitions, and with the exception of Sixth Form Colleges, only three players who have joined the School/College after 30th September 2005 are permitted to be part of the Squad of players selected.
Note: Sixth Form College status will be determined through the National League tables produced by the DfES.
4.5. A School/College that provides education for pupils up to and including 18 years of age, who feed into its Sixth Form as part of a normal transfer at this age from a local School/College or local Schools/Colleges that only educate pupils up to the age of 16 years, can select any number of such pupils to play in the U18 Competitions, providing the Organising Committee has approved their application for registration as a Collegiate School in accordance with Regulation 4.7 below.
Note: The purpose of Regulation 4.5 is to prevent teams gaining an unfair advantage through the recruitment of players. It is not intended to penalise Schools/Colleges that have an intake of students in Year 12 because the student’s previous School/College does not go beyond GCSEs.
4.6. Where pupils in two or more Schools/Colleges in the same area taking some subjects in one School/College and other subjects in a second School/College, then players from all the Schools/Colleges involved can play in the same team but the Collegiate School must be registered with the ERFSU as a Collegiate School in accordance with Regulation 4.7 below.
4.7. Any School/College that wishes to register as a Collegiate School must complete and submit the form set out in Annex I. Applications must be submitted by 30th June 2007. The Organising Committee reserves the right to decline any application for Collegiate School status.
OPENING SUBMISSIONS
St. Peter’s
2. Mr. Beloff reviewed the history of the matter and stated that it was sad that St. Peter’s and the ERFSU had come to opposing views as the meaning and purpose of the Regulations. He submitted that St. Peter’s had not deliberately breached the Regulations and, whilst it may have been guilty of some wishful thinking, it had genuinely believed that it was complying with the spirit of the Regulations.
3. To the extent that there had been an earlier assertion by LM that he had not received certain relevant correspondence, this had now been realised to have been an error on LM’s part. He had already apologised unreservedly for that error and did so again through Mr. Beloff.
4. Mr. Beloff referred the Panel to regulation 4.4 of the Regulations. He noted that although this dealt with Sixth Form Colleges, St. Peter’s were a Sixth Form Centre. This was relevant in that the Department for Education and Schools “EduBase”, which the Regulations rely upon for the purposes of the Regulations, similarly refers to Centres as opposed to Colleges. In his view a purposive as opposed to a literal view of the Regulations should be taken.
5. He stressed that St. Peter’s takes children from all over the county and not just the local catchment area. Uniquely, Gloucestershire does not have any Sixth Form Colleges, and thus there is a disproportionate unfairness in the Regulations, again militating towards a purposive interpretation. He emphasised that St. Peter’s takes on Catholic children on academic and not sporting grounds. To the extent that the Regulations serve to prevent any school recruiting players to obtain an unfair advantage in the competition, St. Peter’s did not recruit children for that purpose.
6. The anomalies in the system had been recognised by the RFU, and Mr. Beloff dealt briefly with the relevant history. In particular, he referred to the fact that in 2003 St. Peter’s had been granted a dispensation from regulation 4.4 by Mr. Ron Tennick, then the ERFSU National Education Manager.
7. Whilst a letter from Mr. Tennick, dated 28th September 2004, may have revoked that dispensation, St. Peter’s had referred the matter to Francis Baron (RFU chief Executive). By letter, dated 20th October 2004, Mr. Baron had indicated that efforts were underway to find a way forward for subsequent years. Mr. Beloff accepted that, although St. Peter’s could have been over-optimistic in construing what might happen, it had nevertheless acted entirely openly in all subsequent seasons. Indeed it had participated in, and won, the 2006 Cup Final when the Twickenham scoreboard read St. Peter’s Sixth Form Centre. At all times St. Peter’s had believed it was compliant with the Regulations and, because of the way it had openly identified its status, was entitled to do so.
8. In January 2008, an anonymous informant had come forward. Whilst ERFSU were uncomfortable with that position it had felt the matter had to be investigated. The subsequent investigation had mainly centred on a breach of Regulation 11.4 (the compilation of team sheets). However, at the relevant hearing on 25th January 2008, St. Peter’s had been found in breach of regulation 4.4.
9. Mr. Beloff referred the Panel to paragraphs 17-64 of the notes of that meeting (bundle pages 46-50). These showed that each side had expressed its view on the position. The notes were, however, inaccurate in that they did not, crucially, in St. Peter’s view, set out the agreement that it could play an unrestricted team in the next round (against Wellington). The notes had only been received after that fixture, but had immediately been corrected by LM in an e-mail from LM to BC (bundle pages 55-56).
10. All four St. Peter’s representatives present at the meeting on 25th January 2008 had the same recollection. Mr. Beloff took the Panel to Exhibit 1 of Mr. Stenson’s, being his notes of the meeting. This included a note that St. Peter’s would not be restricted to 3 players (as provided in regulation 4.4)
11. Mr Beloff conceded that it was open to the Panel to conclude that St. Peter’s had misinterpreted the position. However, it would be a very serious finding that they had proceeded deliberately to breach the Regulations. There had been no dishonesty and no intention to breach the Regulations.
12. In any event, Mr. Pointon had specifically spoken to Mr. Clark at the Wellington match and confirmed the agreement. A dispute was identified at the hearing as to this issue. Therefore, although it had not been proposed to call either witness, the Panel felt that they should be called to give evidence on this aspect.
13. If regulation 4.4 had not been knowingly breached, the Panel was entitled to review the Decision and determine the correct sanction. If the Panel were to conclude that the purpose of the Regulations was to equate a Sixth Form Centre with a Sixth Form College, then St. Peter’s was a genuine Sixth Form Centre.
14. In any event St. Peter’s should be equated to, and treated as, a Sixth Form Centre. In light of the apparent anomaly, it would be perverse and unfair to disqualify St. Peter’s for acting in breach of regulation 4.4 and the Panel was accordingly urged to reinstate the school.
ERFSU
15. As to St. Peter’s status, Mr. Green submitted that, in effect, it had been conceded that it was not a Sixth Form College. Regulation 4.4 is clear in only providing an exception to Sixth Form Colleges. If it was not a Sixth Form College then, subject to any agreement on 25th January 2008, it was in breach of that regulation.
16. St. Peter’s had not established it was a Sixth Form College. At no time had it sought to obtain such status. The fact that it had requested a dispensation demonstrated that it was aware that it was not such a College. On 25th January 2008, ERFSU had made a finding that St. Peter’s was not a Sixth Form College. That finding had not been appealed. The fact that it called itself a Sixth Form Centre, the term used by EduBase, was not relevant.
17. Mr. Green submitted that there was no evidence of any agreement being concluded on 25th January. The best evidence of what had occurred at that meeting was to be found in the notes of the meeting and the summary of findings. There was no reference to any agreement in either document. If there had been such an agreement, Mr. Green submitted that it was highly likely that St. Peter’s would have put this in writing. He referred to paragraphs 82-83 of the meeting notes that recorded the importance of committing key issues to writing. In his submission, Mr. Stenson’s note did not establish a legally binding agreement and he noted that LM’s written statement made no reference to any agreement.
18. On proportionality, St. Peter’s knew, or should have known by 25th January 2008, that it was limited in its player selection. It then proceeded to commit a further breach of the Regulations on 31st January 2008. It would be unfair to schools that abide by the Regulations (and may therefore be out of the competition) for another breach of the regulations to be excused. In this respect he submitted that the eligibility requirements are fundamental to the fairness of the competition.
19. The Regulations are present to ensure a level playing field, and the sanctions prescribed are there to ensure that participants are unable to take an improper advantage from a breach of the Regulations.
20. Mr. Green considered that dishonesty was highly material. However, irrespective of dishonesty, St. Peter’s should be deprived of any unfair benefit derived from the breach.
21. In ERFSU’s submission, the Decision should be upheld. If the Panel was not prepared to do so, St. Peter’s should be required to comply with Regulation 4.4 going forward.
ORAL TESTIMONY
22. Mr Stenson was called to give evidence as to the meeting on 25th January 2008. He adopted his written statement, and then gave evidence that can be summarised as follows:
• He has been the Chairman of the Governors since 2006.
• He is a former RAF officer and still works for the RAF.
• The notes on the lower left hand side of his exhibit had been written as RE was delivering his findings. Initially, he said that RE was reading out his findings, but on reflection he thought that RE had not read from any document.
• He believed that following the meeting on 25th January, St. Peter’s could field an unrestricted side in the next round.
• He accepted that the notes of the meeting on 25th January were detailed. Other than the failure to record the agreement, he did not think they contained any substantive inaccuracies.
• He did not agree that the agreement was so fundamental that, had it existed, St. Peter’s would have recorded it in writing.
• He accepted that St. Peter’s was not a Sixth Form College, and indicated that it was never their case that it was.
• RE had stated that he agreed the (St. Peter’s) boys should not be penalised, and in consequence therefore, St. Peter’s could field an unrestricted team against Wellington and in future rounds.
• The agreement had not resulted from any specific discussion or request from St. Peter’s for clarification, and had just been stated by RE.
• His note taken on 25th January was not verbatim, and this is why it had referred only to the Wellington fixture and not to subsequent rounds. His statement of 13th February 2008 however, correctly recorded the position and therefore referred to future rounds.
23. Dr. Edmonson then gave evidence for ERFSU. He too adopted his written statement, and his evidence can be summarised as follows:
• He had agreed that he had said that the St. Peter’s boys should not be penalised, and he had accordingly not disqualified the school on 25th January 2008.
• He did not say anything else, and had not given any indication that there was any agreement as St. Peter’s now claimed. He had spoken to CB and BC who had confirmed there had been no reference to any such agreement.
• Had St. Peter’s applied for Collegiate status at the start of the season it would have been granted. However, this would not have guaranteed St. Peter’s being allowed unrestricted player selection, as this is now determined by the Organising Committee on a case by case basis.
• Wellington had adhered to regulation 4.4, and accordingly not played its best team against St. Peter’s.
• RE was not suggesting that St. Peter’s were deliberately recruiting players, but he noted that the school did benefit from the Gloucester academy system.
• RE did not accuse St. Peter’s of dishonesty, but stated that he had been disappointed by aspects of the case and that his feelings had been well in mind when deciding to disqualify.
• He however accepted that it would have been an act of extraordinary stupidity for St. Peter’s to have picked an unrestricted team if it had genuinely believed it could not have done so.
• He had not felt he had had enough evidence to disqualify on 25th January 2008.
• He has subsequently felt that St. Peter’s had been dishonest in that it had claimed non-receipt of correspondence at that meeting, which it had subsequently found. Because of the loss of relevant records previously held at Castlecroft, he had been unable to confirm the position either way.
• He accepted that this could have elevated the breach in his mind.
24. Mr. Pointon and Mr. Clark gave evidence as to events at the Wellington fixture. In reality this did not provide material assistance to the Panel. It was common ground that Mr. Pointon spoke to Mr. Clark after the match. He told him that he was not filling in the St. Peter’s team sheet with details of the players’ previous schools (as non-Sixth Form Colleges are required to do by the Regulations) because of what had been agreed. Mr. Clark, however, disputed that in reply he had said "That’s fine", and rather had simply said words to the effect of "If that’s what you believe". He stated that he was already aware that St. Peter’s had fielded ineligible players and did not want to get drawn on the situation before discussing with others at ERFSU.
CLOSING ARGUMENTS
ERFSU
25. Mr. Green submitted that it was clear that Mr. Stenson’s evidence did not establish a binding agreement, and was vague at best. At most, St. Peter’s had a misguided belief of an agreement where none existed.
26. He pointed to the discrepancy between the content of Mr. Stenson’s note and his subsequent statement, and to the fact that Mr. Montagu’s statement did not refer to the agreement.
27. In his submission, it was simply not possible that there was a binding agreement. In his view, it was not necessary for there to have been dishonesty for disqualification to be justified. St. Peter’s was in breach of the Regulations and had secured an unfair advantage as a result. To allow them to remain on the competition would be unfair on other participants.
St. Peter’s
28. Mr. Beloff reiterated that St. Peter’s did not claim to be a Sixth Form College, but it was a Sixth Form Centre. Because EduBase referred to Centres as opposed to Colleges, the position was obscure. In his submission, St. Peter’s should, at least, be equated to a Sixth Form Centre. Alternatively, it should be treated as if it was within regulation 4.4.
29. He accepted that it might have been sensible for St. Peter’s to have applied for Collegiate status under regulation 4.5. However, the fact that it had not done so was not inconsistent with it being treated as within the regulation. What was important was not the name or description, but the reality underlying the situation.
30. LM’s statement had not been challenged, and the aspect that permeated through all the correspondence is that the relevant criteria show that St. Peter’s is a Sixth Form Centre. He re-emphasised that the particular circumstances in Gloucestershire are such that St. Peter’s would have sixth form status in any other county.
31. RE had confirmed in cross-examination that the regulation 4.5 exception could have been applied for. As such, this was no more than a classic example of a procedural irregularity.
32. Those present from St. Peter’s all had the firm impression that, as a result of the meeting on 25th January 2008, an unrestricted team could be played in the next matches. The fact that JS’s notes only referred to Wellington was not inconsistent with that belief.
33. In his view, the notes of the meeting were also not inconsistent with the agreement having been reached as St. Peter’s assert. The fact that St. Peter’s had not confirmed the agreement in writing was not relevant. It had been waiting for the notes, and once they had been received the inaccuracy had been immediately pointed out. Further JS’s note had been taken contemporaneously and it unequivocally referred to the agreement.
34. If St. Peter’s had not understood the agreement to have been in place, at its lowest, picking an unrestricted team 6 days later on 31st January 2008 would have been a kamikaze action. This underscored that St. Peter’s had believed that what it was doing was correct.
35. ERFSU had never put any allegation of dishonesty to St. Peter’s and any such allegation was denied. The evidence was quite insufficient to support dishonesty.
36. As to fairness, Mr. Beloff submitted that if St. Peter’s was considered a Sixth Form Centre it should be allowed to compete. Alternatively, if it was treated as being within regulation 4.4, it should be allowed to compete. If the Panel concluded that the 4.5 exception had always been open, it would be quite extraordinary for a team that had qualified on merit to be prevented from progressing for failing to get its paperwork in order.
FINDINGS
37. This was a difficult matter, and the Panel was conscious that whatever decision was reached, it would have a significant effect on very talented young players from both St. Peter’s and Wellington. The Panel therefore carefully considered, and over some time, the evidence, and the very helpful submissions from counsel.
38. The Panel had some sympathy with Mr. Beloff’s forceful submissions as to the way in which the Regulations should be interpreted. However, the Regulations are those that are presently in force, and to which all participants are required to agree. As such the Panel was persuaded by Mr. Green’s argument that, to disregard the Regulations, or treat St. Peter’s as being within them, would ultimately be unfair to all other participants.
39. The Panel nevertheless hopes that ERFSU will consider it appropriate to conduct a timely review of the Regulations to determine whether they should be updated in any way.
40. Mr. Green’s submission, that dishonesty was not required for St. Peter’s to be disqualified was not challenged. The Panel was persuaded by that argument, and did not make any finding that St. Peter’s had acted dishonestly. The Panel understands that this issue may be considered before a different tribunal. In all the circumstances, the Panel hopes that this will not be considered necessary.
41. The Panel was not, however, satisfied that any agreement had been reached. It noted Mr. Beloff’s comment that St. Peter’s might have been guilty of wishful thinking. Given that St. Peter’s had been severely reprimanded for a similar breach in the preceding round it had not, in all the circumstances, done all that was reasonably required to ensure that it would be fielding an eligible team for the Wellington fixture. The Panel concluded that, to disregard a second and consecutive breach, would confer an unfair advantage to the detriment of the competition’s other participants.
42. The Panel accordingly made the following findings, which were notified to the parties on 15th February 2008.
I. St. Peter’s is not a Sixth Form College, for the purposes of the Regulations.
II. St. Peter’s could have, but failed to, apply for collegiate status pursuant to regulation 4.5 of the Regulations.
III. Even if collegiate status had been in place, there would still have been restrictions on the eligibility of the players for the fixture against Wellington on 31st January 2008.
IV. The Panel did not make a positive finding that St. Peter’s knowingly breached the Regulations, or made dishonest representations to the ERFSU Organising Committee on 25th January 2008.
V. No agreement was concluded at the hearing on 25th January 2008 giving St. Peter’s unrestricted dispensation on player selection for the Wellington fixture, or any future games.
VI. To the extent that St. Peter’s may have understood such a dispensation to have been in place, that understanding was mistaken.
VII. In light in particular of the meeting on 25th January 2008, it was incumbent on St. Peter’s (as it would have been for any participant in the competition) to have ensured that its team was fully compliant with the Regulations before the fixture on 31st January 2008.
VIII. The St. Peter’s team, on 31st January 2008, was selected in breach of the Regulations.
IX. Having regard to the sanction imposed on 25th January 2008 (following a similar breach of the Regulations in a fixture played on 28th November 2007), the Panel, in all the circumstances, was not satisfied, on the balance of probabilities, that the decision appealed against was wrong.
X. The appeal against the decision of the Organising Committee of 6th February 2008 is accordingly dismissed, and the disqualification of St. Peter’s from the 2007/2008 competition is confirmed.
COSTS
No application was made for costs, and no order was made. The appeal however having been dismissed, the £100 appeal fee lodged by St. Peter’s should be retained by ERFSU.
APPEAL
The provisions for any appeal are set out in regulation 18.5 of the Regulations.
Signed: Jeremy Summers, Chairman
Date: 20th February 2008 |
