Disputes from Rugby World Cup 2019 Qualifying: ‘Biased’ referees & ineligible playersGraham Gilbert
On 10 May 2018, in the plush surroundings of the Royal Garden Hotel in Kensington, London, the Judicial and Disputes Committee of World Rugby met to consider a number of complaints made by participating Unions in the Rugby World Cup 2019 Qualifying Competition. This had run alongside and as part of the Rugby Europe Championship (the Championship).
The Committee had two main areas of dispute to adjudicate upon.
Firstly, those arising from a match played as part of the final round of the Championship, following which a number of complaints had been made by Federacion Espanola de Rugby (FER) relating to, among other things, the independence of the referee (see below).
Secondly, the Committee was convened to consider issues of player eligibility relating to players fielded by a number of countries in the Championship: Belgium, Spain, Romania, Russia and Germany. By the time of the substantive hearings, the concerns regarding those players fielded by Russia and Germany had been resolved, meaning that the Committee was only required to consider possible transgressions on the part of the first three Unions.
These two issues are dealt with in turn. The Committee’s full written decision on the complaints is available to download here.1 References to paragraph numbers throughout are references to the written decision.
Spain’s complaints against the referee
On 18 March 2018, Belgium had played Spain as part of the Championship. At stake was qualification for the Rugby World Cup 2019. If Spain won the match, they would qualify for the World Cup; if they lost, Romania would qualify. A Romanian official was appointed to referee the match. Perhaps unsurprisingly, the Spanish asked for a different official to be appointed, a request Rugby Europe (the tournament’s governing body) declined after speaking with the referee and his confirming he was content to officiate. The match went ahead - Spain lost 18-102.
The Parties’ Positions
Following the match, the FER made a number of complainants. These concerned:
the neutrality of the officials;
the manner in which Rugby Europe addressed the concerns raised by Spain about the officials;
the dimensions of the pitch;
the failure to provide for Spain to practise on the match pitch prior to the game (the so-called "Captain’s Run"); and
the referee’s performance.
The appropriate remedy, Spain contended, was that the match be replayed. This was a suggestion supported by World Rugby, which argued that this was necessary to protect “the integrity of rugby” [Paragraph 18].
In support of this position, World Rugby directed the Committee’s attention to the poor performance of the referee. This had been deemed such by a post-match analysis, the like of which is carried out on all referees following international matches by an independent official. This indicated that the referee’s performance had been below his usual standard and that he had allowed Belgium a great deal more leeway during the game than Spain.
For its part, the FER also relied on this review of the referee’s performance, whilst also highlighting a comment purportedly made by an official from Rugby Europe that the referee had “betrayed the trust that Rugby Europe had shown in him” when allowing him to referee the match [Paragraph 22].
Against these submissions, Belgium contended that the result accurately reflected the performances of the two teams during the match and that there was no proper basis for the remedy demanded.
The Relevant Rules
A preliminary consideration for the Committee was whether it did in fact have the power to order a replay of the match. To establish the answer, the Committee considered various parts of Section 13 of the Rugby World Cup Terms of Participation (an agreement signed by all Unions seeking to qualify for the tournament).
Section 13 governs the resolution of disputes arising during the tournament. In particular, Section 13.3.5 outlines the sanctions a Committee may choose to impose. These include the power to cancel or vary the result of a match or the points awarded for it (13.3.5(a)(v)) and “to impose such other punishment, penalty, restriction or other terms as it considers to be an appropriate sanction in the circumstances” (13.3.5(a)(vii)).
The Committee’s Decision
Having considered the contents of the sections outlined, the Committee concluded that it did have the power to order a replay but declined to do so.
In reaching this decision, the Committee noted that the powers given to it to decide on the appropriate sanction were very wide, including as they did the power to alter the result of any match and to impose any penalty that was considered appropriate.
However, it decided that ordering a replay was not appropriate in this instance. The Committee was particularly concerned by World Rugby Regulation 17.17.2, which conveys near immunity on referees and their decisions by stipulating that: “the referee’s position as sole judge of fact and law during the Match is unassailable. With the sole exception of Regulation 17.19.7 (which deals with sanctions imposed on a player), the referee’s decisions on the field of play and their sporting consequences shall not be altered or overturned by a ruling of a Disciplinary Committee or Judicial Officer”.
The Committee referred to the sentiment enshrined by the Regulation as “a core principle of rugby” [Paragraph 25] and ruled that it prevented any committee from interfering with a refereeing decision made during a game in the absence of corruption or bad faith. As it noted, this meant that the possibility of apparent bias, as suggested by World Rugby and the FER, provided insufficient grounds for overturning the result of the Belgium v Spain match. Similarly, a failure to remove an official at the request of one nation also failed to trigger the power.
In support of this conclusion, the Committee noted that there was no precedent it could find which would support a contradictory result and that to decide otherwise may set a difficult precedent in any event, given the limited pool from which suitably qualified referees may be drawn [Paragraph 26].
However, it is plain that the Committee were sufficiently concerned (a) about the manner in which Spain’s request to switch officials had been handled, and (b) the pressure placed on the referee by asking for his opinion on the matter, to comment on the issues forcefully. The process was described as “not adequate” and it was suggested that “it would have been much better for the game if Rugby Europe had, once the mathematics of the final matches became clear, changed the match officials” [Paragraph 27].
World Rugby identified a number of potential player eligibility breaches by several of the competing teams. Before assessing the cases, the Panel considered the relevant regulations for eligibility. [Paragraph 28].
The Relevant Regulations
The eligibility of a player to represent a country in international rugby is governed by World Rugby Regulation 8.3 Although frequently ridiculed in the popular press for the way in which national teams seek to take advantage of (or exploit) the rule4, the “Explanatory Guidelines on the Implementation of Regulation 8” underscore the significance with which the governing body views this rule. Guideline 1 notes that the Regulation exists to ensure “that there is a genuine, credible and established national link with the country of the Union for which they have been selected. Such a national link is essential to maintain the unique characteristics and culture of elite international sporting competition between the Unions.” It is partly as a result of the desire to protect these characteristics and cultures that the eligibility rules are soon to be tightened.5
Regulation 8.1 provides that a player may only represent any of a Unions’ first two senior fifteen-a-side or sevens team if:
he was born in that country;
one parent or grandparent was born in that country; or
he has completed 36 months of consecutive residence in the country immediately preceding the time of playing.
However, these provisions cease to apply if a player has already represented certain teams of another Union. Regulation 8.2 notes that a player who has represented:
the senior fifteen-a-side National Representative Team;
the next senior fifteen-a-side National Representative Team; or
the national Representative Sevens Team
will not be eligible to play for any of those teams of another Union (this process is often referred to as a player being "captured" by the Union). A player is deemed to have represented such teams if he is selected to appear for a match (whether or not he actually gets on to the field), if he is selected for a touring squad, or if he is selected “to represent the Under 20s National Representative Team of a Union which has been pre-designated as that Union’s next senior fifteen-a-side National Representative Team” and the player is part of a team when it takes part in certain specified tournaments (Regulation 8.3).
The imposition of sanctions for a breach of Regulation 8.1 is governed by Regulation 8.5. This sets a minimum fine for each breach by a Union of:
£100,000 for a Union that is on the Council; and
£25,000 for all other World Rugby Member Unions.
Regulation 8.5 also notes that other sanctions, as allowed by Regulation 18.6, may be imposed, depending on the facts of the individual breach.
However, as is often the case, there is an exception to the mandatory imposition of sanctions. This is provided by Regulation 8.5.2, which provides that:
“In exceptional circumstances, a Union in breach of Regulation 8 may make submissions to the relevant disciplinary body….as to why the Union should not be subject to the applicable minimum fixed fine.”
The Regulation goes on to stipulate that the exception will only be made when “the Union is able to provide clear and indisputable evidence that truly exceptional circumstances exist and that the Union has taken all necessary steps to comply with Regulation 8” (emphasis added).
The position regarding Belgium was quite straightforward: it was accepted by all parties that the country had fielded ineligible players on several occasions throughout the tournament. The sole point of contention came from the submissions on what, if any, sanction should be imposed.
World Rugby contended that there should be a financial penalty and a 5-point penalty deduction for each occasion that Belgium had fielded an ineligible player. For its part, the Belgian Union apologised for the breaches and sought sanctuary in noting that it was a small union with a correspondingly small budget of €675,000, meaning that any financial sanction imposed would have disproportionately weighty consequences on it. To mitigate this, the Belgians requested that any financial penalty be suspended.
Romania accepted that it had fielded an ineligible player on a number of occasions. The player in question was Sione Faka’silea who had previously played for Tonga’s sevens team and had been "captured" by the Polynesian state. However, Romania sought to argue that it had made all the inquiries that might reasonably be expected of it to establish whether the player was able to play for it and that the exceptional circumstances envisaged by Regulation 8.5.2. applied.
Romania submitted that it had:
explained the provisions of Regulation 8 to Mr Faka’silea and asked him whether he had been "captured" under them;
checked databases on ESPN and Wikipedia to see if Mr Faka’silea was listed as having played for Tonga (he did not appear on either);
attempted, unsuccessfully, to contact Tonga to ask about the player. When they eventually managed to get an email address for the Union, they received a response from Mr Fe’ao Vunipola, Chairman of the Tongan Rugby Union, which stated that Mr Faka’silea “still qualify for Romania as requested” (sic) [Paragraph 42];
sent team sheets to World Rugby prior to the matches and no eligibility issues had been raised; and
not breached the provision before and had made proper inquiries about other players in the past.
World Rugby responded to each point raised by Romania and submitted that whatever inquiries had been made, they were plainly not enough to engage the exceptional circumstances defence because:
whatever explanation given to Mr Faka’silea of Regulation 8 must have been insufficient. As the Panel drily noted, “the player could not have forgotten the he played Sevens for Tonga” ;
proper enquiries would have revealed that Mr Faka’silea had played for Tonga. If doubt remained, enquiries could have been made with World Rugby itself;
the email from Mr Vunipola did not deal with Tonga’s Sevens team and the information provided was inaccurate, albeit honestly intended;
the team sheets submitted by Romania were for media distribution purposes, not to check the eligibility of those listed. Furthermore, the governing body had not been asked to make any eligibility checks; and
previous adherence to the Regulation did not provide an excuse for present failures.
The Panel noted that Mr Faka’silea had provided a witness statement for the proceedings in which he stated, “I was never informed by the Rugby Union of Tonga that I will not be able to play for another national team due to my participation with the Tonga Sevens”. From this the Panel inferred that whatever explanation given to the player by Romania about Regulation 8 was plainly insufficient as it should have made reference to playing Sevens, particularly in light of Tonga’s strength in this form of the game [Paragraph 44].
The Panel came to similar conclusions regarding the email sent by Romania to Tonga, noting that “the direct question should have been asked about whether the player had played Sevens for Tonga. Mr Vunipola would then have had to report that the player had played for the Tonga Sevens team” . Lastly, and perhaps most obviously, the Panel suggested that Romania should have asked World Rugby for clarification of the player’s eligibility [Paragraph 46].
As a result, the Panel concluded that Romania was not able to satisfy the stringent requirements of Regulation 8.5.2 and demonstrate truly exceptional circumstances. In coming to this conclusion, the Panel “recognised that Romania had made inquiries and taken some steps to ensure that it could select the player” but it had not taken all necessary steps such that reliance could be placed on Regulation 8.5.2 [Paragraph 47].
There were two players who provided the focus of the dispute between Spain and World Rugby: Mathieu Belie and Bastien Fuster. It was common ground between the FER and World Rugby that both players had the necessary family connections to Spain; the dispute centred around whether one or both players had been "captured" by another Union.
In both players’ cases, the other Union was France: Mr Belie had represented France U20 v Wales U20 in March 2008 and Mr Fuster had represented the same team in the corresponding 2012 fixture. World Rugby contended that both players had been "captured" by France, and were thus ineligible to play for Spain, as a result of playing in these fixtures. Spain argued that the players had not been so "captured" because France had “failed to follow the procedure for nominating their ‘next senior fifteen-a-side national representative team’ because they had altered the nominations, when they had no power to do so” [Paragraph 34].
Spain’s argument on this point ran as follows: once a Union had nominated its next senior representative team, that nomination lasted for four years and could not be altered during that period, following Guideline 6 of Regulation 8.
The Guideline provides that:
“There should be no uncertainty over which team constitutes a Union’s next fifteen-a-side senior National Representative Team since, as from January 1 2000, Unions are required to notify the IRB of the name of its nominated next senior fifteen-a-side National Representative Team. The team nominated remains the Union’s next fifteen-a-side senior National Representative team for a period of 4 years. The identity of a Union’s next senior fifteen-a-side National Representative Team can be verified with the Union concerned and/or the IRB”
At the hearing, Spain produced evidence (which it appears was accepted [Paragraph 36]) which demonstrated that France had nominated its U20 team as its "next senior fifteen-a-side National Representative Team" on 1 January 2008 and 2012. However, France had also nominated France A in 2003 until 2006, France U21 in 2007 and France A again in 2010. The end result of this, Spain submitted, was that France’s nominations of its U20 team in 2008 and 2012 were invalid, as there was no power for a Union to change its "next senior fifteen-a-side National Representative Team" during the four-year period specified by the Guideline, meaning that neither Mr Belie or Mr Fuster had played for France’s next senior team and had not been "captured". The Panel was urged to adopt a literal interpretation of Guideline 6 in support of this argument.
World Rugby contended that the Committee should adopt a less strict reading of the Guideline and find that nominations could be changed within the four-year period. The governing body noted that other Unions had changed their nominated teams within the four-year period; that France U21 had ceased to exist in 2007 and so a change had to be made; and that a list of each nominated next senior team was freely available on the World Rugby website.
Having assessed both arguments, the Panel concluded that the literal interpretation urged upon it by Spain “made no rugby sense (or indeed common sense)” [Paragraph 39] as teams may cease to exist during the four-year period. Disallowing a change of nomination in those circumstances would be ridiculous. As a result, the Committee considered it “was implicit in Explanatory Guideline 6 that the nomination would last four years, unless another nomination was made by the Union in the interim” (emphasis added) [Paragraph 39]. The Committee found support for this conclusion in the fact that both the International Rugby Board and World Rugby had accepted such changes of nomination in the past.
The Sanctions Imposed
In relation to all the Unions, the Panel concluded that a deduction of 5 points for each game in which an ineligible player was fielded was commensurate with the breach of the Rules but considered that the points should not be deducted in respect of the concluded Championship but rather imposed for the 2018 edition of the Championship. The effect of this is that each of the three countries who breached the Regulations surrounding player eligibility in the 2017 tournament will start this year’s competition at a substantial disadvantage.
The Panel considered whether the fines suggested by World Rugby (£100k for Romania, £125k for Belgium and £50k for Spain) should be imposed immediately or suspended, as had been suggested by some of the Unions. It concluded that a suspension as was suggested could be imposed and decided that a suspension of the fines for a 5-year period was appropriate in all instances. The fines will only be activated in the event of a further breach of Regulation 8 [Paragraph 55].
In reaching the decision in respect of each Union, the Panel noted the financial hardship a cash-strapped Union such as Belgium would suffer if the full weight of the fine was felt straight away, as well as the financial impact that missing the World Cup would have on Spain and Romania. It also highlighted the case of Tahiti Rugby Union,6 which provides a precedent for such a course of suspension.
In the main, the decisions appear to have been the correct ones, in this author’s opinion: Romania’s attempted reliance on Wikipedia to satisfy the exception provided by Regulation 8.5.2. was plainly insufficient and a literal reading of Guideline 6 would have led to the absurd situations envisaged by the Tribunal.
However, there must be some concern over the Panel’s reticence to concede that there was not the appearance of bias in a Romanian referee officiating a crucial match involving his home nation and that the match should be replayed as a result. Clearly, it regarded the situation that had arisen as deeply unsatisfactory, as the comments expressed about it make clear. Part of this dissatisfaction must have centred around the fact that a referee of a nation was officiating a game of such significance for that nation: there were concerns that it did not appear entirely fair. However, despite expressing these concerns, the Panel was still content to uphold the result of the match. Either these concerns should have been acted on, and the match be ordered to be replayed, or no such concerns should be expressed. By upholding the result but making the comments it did, the Panel ended up being in the unfortunate position of undermining its own judgment. If such a situation arises again (and it is to be hoped it does not), a future tribunal must be bolder and act on situations it considers unsatisfactory.
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- Tags: Belgium | Eligibility | Employment | Federacion Espanola de Rugby (FER) | Regulation 8 | Romania | Rugby Europe Championship | Rugby Union | Rugby World Cup 2019 | Spain | World Rugby | World Rugby Handbook
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About the Author
Graham is a barrister at 3PB. Having gained a wealth of knowledge in other areas, Graham has most recently begun accepting instructions in sports law matters and has a keen interest in regulatory and disciplinary aspects of the area, both domestically and internationally. He regularly prosecutes in prohibited substance matters for the British Horseracing Authority, as well as assisting with other disciplinary matters on the Authority's behalf.