When winning isn’t enough: how London Welsh kicked the RFU’s Minimum Standards Criteria into touch

Published 08 August 2012 By: Tomas McGarvey

When winning isn’t enough: how London Welsh kicked the RFU’s Minimum Standards Criteria into touch

As the sound of champagne corks popping slowly fades at Old Deer Park, London Welsh Rugby Football Club (also known as 'the exiles') can finally put an end to their legal nightmare and look forward to Aviva Premiership rugby in the coming season.

The position used to be a simple one; if you finish top of the league you got promoted. From the moment London Welsh looked destined for the play-offs rumours began to surface as to their eligibility to join the elite of English rugby should they gain promotion.

Independent auditors PMP Legacy were instructed by the governing body of English rugby, the Rugby Football Union ('RFU'), to conduct audits on the grounds proposed by London Welsh as being considered for use next season. The Kassam Stadium in Oxford, venue for London Welsh's home leg in the final of the Championship play-offs, was touted as the most likely contender. Although primarily a football ground the Kassam has successfully hosted two rugby European Challenge Cup Finals in the last ten years. With a capacity of 12,500 there could be no doubting it was fit for purpose (the average Premiership attendance in the 2011/12 season falling just short of 13,000).

The RFU have in place 'Minimum Standards Criteria' including a requirement that clubs have 'Primacy of Tenure'. The RFU conducted their audit and initially aimed to inform London Welsh of the success or failure of their proposed move to the Kassam Stadium on the 21st May 2012. Yet the Primacy of Tenure requirement only seems to apply to teams seeking promotion. London Irish play their home games at the home of Reading FC, Saracens at Watford FC and Wasps at Wycombe Wanderers FC to name but a few.

The RFU's independent report found that London Welsh did not satisfy the Minimum Standards Criteria. The auditors highlighted a variety of failures, with lack of Primacy of Tenure being at the fore. If this news was not bad enough, the RFU added insult to injury by making the decision public only a few hours before London Welsh were due to play the final leg of the Championship play-off final. The stark reality that night therefore was that neither team playing could be promoted, seriously calling into question the integrity of the current league set-up.

The decision did not go unnoticed. Harrow West MP Gareth Thomas appealed to the RFU to reconsider and Crystal Palace FC co-chairman Steve Parish is also said to have made contact with the powers that be at Old Deer Park offering his support should they seek to overturn the decision. Should the RFU find against London Welsh the Newcastle Falcons, who finished bottom, had a serious chance of remaining in the Premiership. Both clubs would also have to await the decision of any subsequent appeal.

London Welsh did lodge an appeal. The RFU finally settled upon an appeal hearing date of June 28th to accommodate all parties involved. The independent panel chosen to hear the appeal was comprised of QCs James Dingemans, Ian Mill and Tim Ward. The Key issue to be decided by the panel being, 'Did London Welsh meet the Minimum Standards Criteria?' The legal issue, and one likely to be explored in the courts had the appeal have been unsuccessful, being, 'Does the decision amount to an unlawful restriction of trade'? The panel had the task of leafing through the 43-page appeal document lodged by the exiles legal team Pinsent Masons. It is highly likely that London Welsh argued that the Primacy of Tenure rule breached competition laws both in the UK and Europe. Such breaches would deem the rule void and unenforceable.

The panel agreed with the exiles' appeal concluding that the Primacy of Tenure rule gave rise to "an unjustified distortion of competition". Specifically the panel stated that, "while the rule included exemptions for three particular Premiership clubs , there was insufficient justification for the narrowness of that exemption and its restrictive effect on aspirant Championship clubs". The panel agreed that the provisions that contain the Primacy of Tenure rule in the Minimum Standards Criteria were void.
This is not the first time the Minimum Standards Criteria have been found wanting when challenged. In 2002, facing a block to promotion, Rotherham took their complaint to the Office of Fair Trading (the principal competition regulator in the UK). This had the effect of changing the definition of Primacy of Tenure but the rule itself remained in place. It now seems imperative following the exile's appeal that the RFU urgently review the applicable criteria and amend accordingly.

With London Welsh finally able to concentrate on preparing for Premiership rugby, the Falcons have had their relegation confirmed and must contemplate life in the Premiership. They are devoid of appeal options to the RFU but could take the matter to the courts. We can only hope that they accept their position and start building towards promotion under the guidance of new director of rugby Dean Richards. After all, he is no stranger to promotion having led Harlequins back into the Premiership in years past.

Rugby has been the true winner here. What hope do we have for sporting endeavour if winning on the field is no longer enough? Surely the best team over the course of the season should be promoted and not held back by arbitrary standards criteria? The RFU should support and assist teams seeking rightful promotion rather than obstruct their way with bureaucratic red tape and arbitrary obstacles. Let's hope the RFU followed the esteemed panel's decision in the future for the good of rugby.

Author

Tomas McGarvey

Tomas McGarvey

Tomas is a barrister and tenant at 7 Bell Yard Chambers in Temple, London. His practice covers all aspects of Crime (including private driving matters), Family and Prison Law. He also provides advice in relation to sports law and regulatory matters. Tomas is a keen sportsman with a particular interest in Rugby. He is a QPR, Ulster and Ireland fan and can often be found on the golf course (searching for his ball).