A detailed look at the salary cap in Rugby Union 2015/16Christopher Stoner QC
The Rugby Union World Cup is upon us. The sport will hope this will focus more attention on the superbly competitive Premiership, which itself will only commence in mid-October for the 2015/2016 season, namely after the World Cup group stages have been completed. It will then run in tandem with European competition week on week without a single break (to compensate for lost time) until the end of the season in May 2016.
In a previous article, “The Salary Cap in Rugby Union”,1 the author explored how the salary cap works in practice in the English Premiership. This article builds on that piece (which it is suggested is read first) and updates readers on changes made for the 2015/2016 season, before taking a deeper look at the operation of the regulations, in particular the role of the Salary Cap Manager, what happens on suspicion of a breach and the sanctions that may be applied.
In the immediate context of the World Cup starting, the prospect of the world’s best players competing in the World Cup has inevitably raised questions about which of those players, especially from the southern hemisphere, will remain either in England or in Europe to ply their trade in club rugby once the international competition has ended.
With players such as Dan Carter of New Zealand, who has agreed a 3 year contract with Racing 92 in Paris and Duane Vermeulen of South Africa having agreed a 3 year contract with now three time European Champions Toulon, inevitably questions are asked whether the salary cap applied in the English Premiership since 1999 is a good thing or whether it prevents the greatest talent from playing in the English Premiership, although given that a salary cap is (contrary to common understanding) also imposed in the Top 14 in France, albeit at a much higher level, I would suggest the question is more properly focussed at the level of the cap.
Any informed discussion about the merits of the cap will inevitably include issues relating to compliance. If the cap is not enforced, what is the point of having it? Indeed the RPA’s Chief Executive Damian Hopley was reported as having said: “We’ve had comments from leading players in the Premiership that breaking the salary cap is akin to being on the field with someone who is taking performance enhancing supplements”.2
It has been disturbing to see press reports this year suggesting that Premiership clubs had voted in favour of suspending investigations into potential breaches,3 albeit the reports have been denied by Premiership Rugby which has stated there will be no amnesty for any club accused of breaching the rules. Further, as recently as this last weekend it has been reported that “the investigation into three leading clubs breaching the salary cap regulations is back on.”4
But how does the salary cap work? What are the sanctions for breaching the rules? And will the legality of the cap ever be challenged? These are questions I will address below.
The essentials of the cap
This author addressed the essentials of Premiership Rugby’s Salary Capping Regulations (“the Regulations”) his previous article5 and so will not repeat them here. That article should be revisited for the general overview.
At the time of writing, however, the rules for the 2015/2016 season are not yet available on the Premiership Rugby website, although the principal changes for the 2015/2016 season were announced as long ago as September 2014.
In such circumstances the author will assume for the purposes of this article that the 2014/2015 Salary Capping Regulations6 are simply updated to incorporate the announced changes for the 2015/2016 season. Whether any other changes will be made to the Regulations we shall have to wait and see.
The important changes to the Regulations for the 2015-2016 season can be distilled as follows:
- The ‘Senior Salary Cap’ (or ‘Senior Ceiling’) for 2015/2016 will be £5.1 million for each Club, rising from the £4.76 million for the 2014/2015 season which itself had increased from £4.26 million for the 2013/2014 season. In addition each club will be able to claim up to £400,000 in ‘Home Grown Player Credits’, giving a potential senior ceiling of £5.5m.
- It appears that when reference is made to clubs for the 2015/2016 season being entitled to £400,000 for ‘Home Grown Player Credits’ this was what previously was referred to as “Academy Credits”, the previous limit being £240,000. As a move to plainly encourage the development of young talent through to the first team, so important for the continued development of the game at both club and national level, the academy credit system entitled each Club to claim up to eight £30,000 credits for Senior Players who joined the club before their 18th birthday, but who were under the age of 24 at the start of the season, and who earned more than £30,000. These credits were then applied to the senior salary cap: thus if a Player who falls with the aforementioned criteria is paid a salary of £40,000, only £10,000 will be applied to the senior salary cap with the remainder of his salary being one of the £30,000 “Academy Credits”. Whilst it would appear the ‘Home Grown Player Credits’ will operate on the same principle, the detail, such as whether, for example, it will be up to 10 credits of £40,000 each or an alternative is not clear at the time of writing.
- Each Club is entitled to two “Excluded Players” whose salary is not taken into account in the Club’s salary cap calculations. This involves a significant change from the rules for previous seasons, as previously only one ‘Excluded Player’ was permissible. The change is designed to ensure that so called ‘marquee signings’ can be made to encourage the best possible world talent to play in the Premiership. The second ‘Excluded Player’ will be a Player who is either new to the competition or who has not played in it for the previous 12 months. The first ‘Excluded Player’, falling within the definition as it applied before the 2015/16 season, could be nominated from a Club’s current squad, thereby encompassing the aim of being able to ensure that the best talent stays in the Premiership in so far as possible. The detail of the regulations applicable to an ‘Excluded Player’ is extensive.
Operation of the Salary Cap Regulations
The Regulations, which are very well drafted, are necessarily detailed and equally necessarily require a degree of self-regulation, with each Club is required to submit to a central Salary Cap Manager appointed by Premier Rugby Limited extensive documentation (as more fully identified below).
The definition of “Salary” is very wide ranging and includes, purely by way of example, salary, bonuses (including match, win and year-end), certain insurance or assurance premiums, national insurance, accommodation costs, holiday costs, child support or maintenance payments, certain loans, pension contributions, image rights payments, payments in connection with promotional, media or endorsement work, signing-on fees, certain payments in kind, payments for off-field activities for the club and agents fees.
Sums which are excluded for the purpose of determining the total Salary for a particular club, include payments or benefits in kind in connection with individual sponsorship, endorsement, merchandising, employment or other individual agreements between a player and a third party or ‘Connected Party’ (as defined), provided that the Salary Cap Manager concludes on the balance of probabilities that the monies should not be considered part of the club’s ‘Salary’.
Other sums such as international match fees, ‘legitimate and reasonable expenses’ (whatever that means) incurred by a Player which is paid, payable or reimbursed by a Club, insurance premiums payable in respect of the personal private medical insurance of a player, education fees (e.g. university tuition fees for a player) and sums referable to a Player’s Benefit Year (as defined) are also excluded.
The pivotal figure in the operation of the Salary Cap Regulations is the ‘Salary Cap Manager’ who is “responsible for all aspects of the operation of the Regulations, including without limitation, monitoring compliance with the Regulations and overseeing the audit process.”
Whilst if a Club or a Player has any questions relating to the operation of the Salary Cap Regulations it can ask the Salary Cap Manager (who, if he thinks the point raised by a Club is one that all Clubs should be aware of, may disseminate his answer widely – albeit without revealing the name of any Player involved or the terms of his contract), the majority of the Salary Cap Manager’s role is as an ‘enforcer’ or ‘policeman’ as opposed to a help-desk.
It is to the Salary Cap Manager that the clubs have to deliver in September of each year a copy of:
- A declaration, in a specified form, signed on behalf of the club by its Chairman, CEO and Financial Director certifying what those individuals, having made full and proper enquires, expect the club to pay during the current Salary Cap Year by way of ‘Salary’;
- The total amounts paid or payable provided or to be provided as Salary in that Salary Cap Year by the Club or a Connected Party in respect of both Senior Players and Academy Players (or indeed any Connected Party of the Players); and
- Minutes, in a prescribed form, of the meeting of the board of directors of the Club at which the declaration was formally approved.
During the same period, but for the Salary Cap Year which has just closed, the Clubs also have to deliver to the Salary Cap Manager a copy of:
- A certificate, in a prescribed form, signed on behalf of the Club by its Chairman, CEO and Financial Director which includes:
- the total amounts paid or payable, provided or to be provided as Salary in the previous salary cap year by or on behalf of the Club or a Connected Party in respect of its Senior Players and Academy Players or any Connected Party of those Players;
- the name or names of any Third Parties or Connected Parties that have provided payments or benefits in kind to Players or Connected Parties of the Players;
- lists of related parties of the Club identified by the board of directors and of all transactions between the Club and those related parties to an International Auditing Standard; and
- a statement as to whether the Club has or has not complied with the Senior and Academy Ceilings for the relevant Salary Cap Year.
- Minutes in a prescribed form of the meeting of the board of directors at which the certificate is formally approved.
- In so far as it has not already done so, copies of all written contracts the Club has entered into with its Players and with any Company or other entity which provides or procures the provision of non-playing services by a Player to a Club;
- Details of the residential addresses of all Players;
- Details of the Club’s Group (as defined); and
- In so far as reasonably practicable details of each body corporate in relation to which any director and/or shareholder of the Club is interested to a level in excess of 10% of equity share capital or voting power.
These obligations, allied to that of supplying to the Salary Cap Manager within 28 days of when they are entered into, full copies of all contracts and arrangements the Club enters into with any Player or any entity which agrees to provide or procure the provision of non-playing services by a Player, all documentation relating to loans between a Club and a Player, contracts with scouting agents, contracts evidencing payments to player agents, injury certificates and rugby league contracts in the event of employing a code convert, illustrate not only the breadth of the Regulations but the clear window the Salary Cap Manager will have into any Club’s salary structure and financial affairs.
As a matter of course all Clubs are audited by nominated accountants from 1 September following the end of a Salary Cap year on 30th June. The scope of the audit will be at the accountants’ sole discretion and the Club has an obligation of co-operation and assistance. The audit is then supplied to the Salary Cap Manager by 31st January, so within a maximum period of 5 months.
If that is not sufficient information for the Salary Cap Manager he is also obliged to monitor Club and Player activity and he can interview, at his sole discretion, a Player to discuss that Player’s remuneration.
Essentially all conceivable information the Salary Cap Manager could want is to be provided either automatically pursuant to the operation of the Regulations, or, alternatively, upon his request.
A suspicion of a breach
Aside from what might be called administrative breaches, which are actually termed ‘other breaches’ in the Regulations (which are mentioned below) there are 3 principal routes for the Salary Cap Manager to adopt if he is of the view that a breach of the Regulations has or may have occurred.
Firstly, and in circumstances where the Salary Cap Manager has suspicions but needs more evidence, the Regulations provide for what are called ‘Open Book Powers’.
Essentially, if at any time the Salary Cap Manager ‘reasonably suspects’ that a breach of the Regulations has occurred, he may instruct nominated persons, who are usually accountants and/or solicitors, to carry out an ‘Investigatory Audit’.
The Club, unsurprisingly, is obliged to provide assistance and co-operation to those conducting the investigatory audit, but to maintain a degree of independence, the Salary Cap Manager is not entitled, at that stage, to access to what are called ‘Relevant Records’ which will be seen by those conducting the Investigatory Audit, those records being ‘Contracts, financial records, bank records, tax returns and other tax records, insurance records, email records and telephone records’ which the Salary Cap Manager considers are relevant to a suspected breach of the Cap (and which, presumably, he will identify in initiating an Investigatory Audit).
Equally unsurprisingly, the Salary Cap Manager is entitled to see copies of any ‘Relevant Records’ that the investigators reasonably determine to be relevant to a breach of the Regulations, namely when they report with their audit.
In the event the Salary Cap Manager concludes that a breach has been identified, he can then proceed pursuant to the second or third method of dealing with a potential breach, as identified in the following paragraphs.
Secondly, the Salary Cap Manager may summarily deal with any matter where the alleged breach of the Senior Ceiling or the Academy Ceiling does not exceed £20,000 and he is of the view the matter is capable of being dealt with summarily.
The Regulations provided that a Club which receives and accepts a summary charge will be fined on the scale applicable to all breaches of the ceilings namely:
- If there was no breach of the relevant salary cap (namely the senior or academy cap) in the previous 2 salary cap years, the sum of £3 for every £1 over the cap;
- If there was on breach of the relevant salary cap in the previous 2 salary cap years, the sum of £5 for every £1 over the cap; and
- If there have been 2 breaches of the relevant salary cap in the previous 2 salary cap years, the sum of £10 for every £1 over the cap.
If the Club do not accept the charge then a full disciplinary process will be adopted.
Thirdly, the Salary Cap Manager can lay a charge on a Club if he is of the view:
- The Club has exceeded the ceiling applicable to the Senior Cap or the Academy Cap. Thus, in 2015/2016, if the Salary Cap Manager is of the view (ignoring Home Grown Credits) that the Club has spent more than £5.1m on its ‘Salary’, or more specifically if it has spent more than £5,120,000 (as if it were below that amount the matter would be likely to be dealt with summarily).
- The Club has submitted a ‘False Declaration’; or
- The Club is guilty of a ‘Failure to Co-operate’.
The forms of breach
The manner in which the Regulations can be breached are also closely prescribed, namely as:
- Breaches of the Salary Ceiling (whether that be for the Senior Ceiling and/or the Academy Ceiling);
- False Declarations;
- Failure to Co-Operate; and
- Other Breaches (which are dealt with by means of a fixed and escalating fine, so that 1 ‘other breach’ which may be something such as failing to provide copies of Player agreements, will result in a fine of £100, increasing to £200 for a 2nd breach, £400 for a 3rd breach and £800 for a 4th and each subsequent breach).
A breach of the ceiling is self – explanatory. A charge on that basis will assert that the Club has exceeded the particular ceiling either by a particular amount, or, as there is no requirement to state the exact sum (which may not be clear) by a sum of at least £x (namely the sum the Salary Cap Manager feels will be the minimum breach proven).
A ‘False Declaration’ will be charged where the Salary Cap Manager concludes the Club have either recklessly or deliberately submitted false and/or misleading information to him.
Potentially this could be difficult for the Clubs. If, for example, the Salary Cap Manager is of the view a particular Club is not paying a particular Player his commercial worth or he is not satisfied that an arrangement between the Club and another Club, Third Party or Connected Party is at a commercial value and he is not satisfied by the Club’s explanation, he is entitled to appoint an Independent Expert to determine a range of market values. Where a material difference exists between the range determined by the Independent Expert and the terms declared by the Club, the Salary Cap Manager is then entitled to deem a False Declaration.
Thus if a Club has struck a particularly favourable deal with a particular Player or Third Party, it will be critical for the Club to persuade the Salary Cap Manager of the fact it has just struck a good deal. If that is not accepted and assuming the fact of the good deal is evidenced by the range of values determined by the Independent Valuer, the Club will be deemed to be in breach and will be subject to disciplinary process, where I would suggest it will be very difficult to prove the negative that the deal really was just a good one and that payments have not been hidden. Essentially, it would seem, the burden on the Club becomes one of proving a negative.
A ‘failure to co-operate’ arises if the Club, in the view of the Salary Cap Manager, does not provide the required level of co-operation and assistance to any Investigators that the Salary Cap Manager has appointed to undertake an ‘Investigatory Audit’ (namely, as previously stated, an audit by independent persons where the Salary Cap Manager suspects a breach of the Regulations).
The Disciplinary Process
Any charge alleging a breach of the amount of the Cap (save for a breach of under £20,000 which is dealt with summarily), alleging a ‘false declaration’ or alleging a ‘failure to co-operate’ is commenced by delivering a charge to the relevant Club and Sports Resolutions (who are tasked with appointing the Disciplinary Panel, which will comprise of 3 people).
The document which forms the charge must identify the Regulation alleged to have been breached, describe the nature of the alleged misconduct, provide a statement of the facts relied upon and include all documents or other evidence relied upon or referred to in the charge.
The Disciplinary Panel is to be appointed within 5 working days of receipt of the charge and the Club must serve a response on Sports Resolutions within 14 days of receipt of the charge which includes an admission or denial of the charge, a statement describing the reasons for and the circumstances of any denial and copies of all documents or other evidence relied upon or referred to in the response.
The Disciplinary Panel will determine all procedural and evidential matters, save that the Salary Cap Manager and the relevant Club can agree that the matter can be determined on paper without the need for a hearing, and a final decision must be made and communicated by the panel within 60 days of its appointment.
The burden is on the Salary Cap Manager to prove a breach, on the balance of probabilities, save in the case of a False Declaration where, as previously stated, it is deemed the Club is in breach because the Salary Cap Manager, having taken independent advice on the range of values, is of the view that a particular arrangement with a Player, another Club, a Connected Party or a Third Party is below appropriate commercial terms, when the burden is on the Club to prove that it is a genuine and valid arrangement.
The sanctions that may be applied
The sanction to be applied is determined by the Disciplinary Panel that has concluded that a breach has occurred. This will ensure a welcome degree of independence in the sanctioning process.
Whilst the Disciplinary Panel are expressly mandated to apply a penalty less than those prescribed if in the view of the panel the application of the prescribed penalties “would lead to the Club being unfairly punished or treated under the Regulations or would lead to a result not within the spirit and underlying purpose of the Regulations” the expectation must be that the prescribed penalties will be the starting point for consideration and will be applied unless there is a good reason why they should not.
The prescribed sanctions for a breach of the Senior Ceiling are as follows:
- Payment of all reasonable costs incurred by Premiership Rugby Limited in connection with the breach;
- A fine on the tariff mentioned previously (such that if the Club has not breached the Salary Cap in the two previous Salary Cap Years, then a fine will be applied at the rate of £3 for each £1 over the Cap et cetera);
- A points deduction to a specified tariff, namely
- In the case of a breach between £0 and £75,000 4 points;
- In the case of a breach between £75,000.01 and £125,000 10 points;
- In the case of a breach between £125,000.01 and £175,000 20 points;
- In the case of a breach between £175,000.01 and £250,000 30 points; and
- In the case of a breach over £250,000 40 points.
- (It is worth mentioning the Regulations specifically identify this tariff as the starting point with the Disciplinary Panel being free to reduce or increase the points deduction as they consider appropriate, taking into account certain specified factors).
- If the Disciplinary Panel are of the view that the club recklessly or deliberately breached the senior ceiling, it can at its sole discretion in addition to the foregoing:
- Impose any financial penalty on the Club; and
- Decide that the Club will have its Senior Ceiling for the subsequent salary cap year reduced by an amount they deem appropriate.
In the case of a breach of the Academy Ceiling the same sanctions apply save that there shall be no point deduction.
The sanctions identified in the Regulations for a breach because of a ‘False Declaration’ are:
- A warning as to future conduct;
- A fine of up to £100,000; and/or
- A ‘fine’ of up to 6 points.
- Payment of the costs incurred by Premiership Rugby Limited in connection with the breach.
If a Club is found to have made ‘False Declarations’ in relation to more than one Player, the Disciplinary Panel also has the power:
- To impose a multiple of the penalties mentioned above;
- To impose an additional financial penalty of up to £200,000; and
- To decide that the Club will have its Senior Ceiling for the subsequent Salary Cap Year reduced by an amount they consider appropriate.
Finally, the sanctions applicable in the event of a breach amounting to a ‘Failure to Co-Operate’ are the same as those for a single breach which is a ‘False Declaration’.
Other notable aspects of the Regulations
A few other aspects of the Regulations are worth noting.
Firstly, whilst the press reports mentioned in opening have made reference to an alleged agreement to suspend investigations, even if such an agreement had been reached (which, as stated, has been denied) it would have little impact as pursuant to the Regulations the Salary Cap Manager can serve a charge on a Club within 5 years of the end of the Salary Cap Year in which the breach arose.
Therefore if there was a suspicion of breaches in the 2014-2015 season, the end of the Salary Cap Year was 30th June 2015 so a valid charge could still be laid at any time before 30th June 2020.
Secondly, the Regulations include a formal ‘Whistle Blowing’ policy. The Regulations provide that individuals are encouraged to approach the Salary Cap Manager with relevant information and that the identity of the whistle blower will not be disclosed, save with that whistle blowers’ prior approval.
Thirdly, the obligations on a Club are so extensive they extend to informing the Salary Cap Manager of “any potential loopholes, lacunae or errors in the Regulations” as well as any potential breaches they may become aware of.
However, it must be said that if a Club identifies a loophole and does not report it, there would appear to be a good argument it would not be a breach of the Regulations which fell into a category other than the residual category of ‘other breaches’ resulting in a £100 fine (assuming that is the only breach), which commercially is likely to favour a decision to pursue and exploit the loophole.
Lastly, the Regulations include a formal ‘plea-bargaining’ policy. Sensibly, to save costs and in the interests of the sport as a whole, if identified criteria are met it may be possible if a Club wishes to admit its guilt to plea bargain, with the protection that an independent QC must approve any approved bargain (or recommend an alternative sanction).
Salary Caps and their enforcement can have a real impact. Whilst I am unaware of any proven example of a breach of the Regulations in the English Premiership to date, if the rumoured breaches of the salary cap by ‘leading clubs’, as referred to in the opening paragraphs, are true the effect of breaches being proven will potentially be seismic within the sport, especially with the RPA Chief Executive saying senior players equate a breach of the salary cap with doping.
Australia appears to have a particular proficiency in enforcing salary caps (unless, of course, one subscribes to the view the clubs there simply lack proficiency in applying the caps): in 2010, for example, the Melbourne Storm were found to have breached the NRL’s salary cap rules and were stripped of 2 premiership titles, fined AUS$500,000 and ordered to return AUS$1.1m in prize money after having been found to have breached the rules to the extent of AUS$1.7m over a period of 5 years. They were also stripped of a World Club title.
Earlier this year the NRL’s salary cap rules were again found to have been breached with the Parramatta Eels being fined AUS$465,000 whilst also earlier this year the Football Federation of Australia required Perth Glory to miss finals and pay a fine of AUS$269,000 for a breach of the cap reported to be in the region of AUS$400,000.
Imagining such events in the English Premiership is not a happy experience.
In my previous article I suggested, in answer to the rhetorical question of whether the Salary Cap was legal, I concluded that until someone decides to the contrary the answer is yes. I also commented, and remain of the view, that if a legal challenge is made the most important and fertile area for debate will be the level of the salary cap, as distinct from the principle of a salary cap itself and in this regard the further increase in the Salary Cap for the 2015/2016 season, allied to the introduction of a second ‘Excluded Player’ is highly relevant.
The European rugby competitions have now successfully been remodelled, but if the top English clubs cannot compete on that front because they perceive restrictions on funding prevent them from assembling the type of squads seen at the French powerhouses that may act as a catalyst for a challenge, as might a charge being laid against a Club that it has breached the terms of the Regulations.
The debate regarding the merits and demerits of Salary Cap’s generally will undoubtedly continue to rage. In the context of Rugby Union I remain of the view that the reasons for the introduction of the Regulations, identified on Premiership Rugby’s website and stated in my previous article, remain valid and important arguments. The superb level of competition in the Premiership (apart, sadly, from London Welsh last season) must owe something to the level playing field brought about by the Regulations, as distinct from allowing a few clubs to dominate. Arguably, Toulon’s dominance of Europe over the last 3 seasons is a good example of what would happen if a Club is able to spend without restriction (albeit that Toulon have been ‘limited’ by the French Cap, but set at the very high level of 10m Euros).
Opponents of the cap will unquestionably argue that other sports manage without a salary cap. Against that I would suggest that not only does each and every sport have to be considered in isolation, but in any event the obvious comparator of football is hardly a good one. Financial Fair Play and limits on the numbers of players in a squad have the same effect as a Salary Cap. They simply achieve similar aims in a different way, which more comfortably co-locate with the administration of that sport.
The reality is that having regard to the fact salary caps are really only applicable to team sports, the other teams sports where there is no salary cap are historically sports where the level of finance is low.
The fact the Regulations are inherently restrictive will hurt some individuals and clubs. Some players, who currently play in the English Premiership, will argue that they could earn more money if they were to play in France, but they wish to remain in England to ensure their selection possibilities for the national team remain open. It may also be suggested that the Salary Cap has a depressive effect on salaries generally, although realistically, given the way the Salary Cap is structured (such as providing for Excluded Players and thereby catering for the very best paid players), the difficulty in proving that an individual has actually lost out due to the Salary Cap and the cost to an individual of challenging the effect of the Cap relative to the anticipated gain, it is difficult to imagine any individual Player challenging either the principle or the level of the Salary Cap.
Clubs may argue that they are unduly restricted, as the Salary Cap prevents them from employing individuals they would otherwise seek to employ, although of course they have all agreed the current Regulations. Inherently however as the Regulations are Club facing, if a challenge to the legality of the Salary Cap is forthcoming it is most likely it will be from a Club and, most probably, it will be in the circumstance of that Club being alleged to have breached the Regulations.
Arguments as to the merits and legality of the cap aside, the foregoing paragraphs illustrate that the administration of the Salary Cap is a substantial undertaking, both for Premiership Rugby but also for the Clubs. The detail of the information that has to be regularly provided is substantial and invasive, although the rationale for its provision is clear. Equally the need for precision is clear given that in event of a breach the sanctions could be ruinous.
Furthermore, it is worth noting that pivotal to the operation of the Regulations is the Salary Cap Manager, who may well be one of the most important people in the English game. Yet I wonder how many people reading this know who he is?7
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