The Tom Arscott Case - players' duties of confidentiality & the RFU's rules on leaking "inside information"

Published 15 March 2017 | Authored by: Phil Bonner

Confidential leaks and allegations of espionage have abounded in recent months in both sporting and political contexts. We’ve witnessed the furore surrounding alleged hacking relating to the US presidential election,[1] the shadowy Fancy Bears gaining access to the databases[2] of both the World Anti-Doping Agency and the United States Anti-Doping Agency, and even cases of cyber-espionage in Major League Baseball.[3] And now, allegations of espionage or, at the very least, “loose lips”, have arisen in the context of Rugby Union.

This article examines the Tom Arscott case and the issues arising out of it. Whilst Sale Sharks’ sacking of Tom Arscott[4] for allegedly leaking information to his elder brother Luke does not, admittedly, have the same geo-political ramifications as the incidents above, it does shine a spotlight on a number of issues.

The first half of the article looks at the obligations of confidentiality that an employee owes to his employer, the categories of “business information” that commonly arise, and the measures that employers can take to protect information provided to employees during the course of their employment. Specifically: 

  • A summary of events leading to the sacking of Arscott;

  • Players (employees) duties of confidentiality towards their team (employer);

  • Enforcement rights of an employer;

The second half the moves on to examine the RFU’s investigation into the incident, looking at:

  • The RFU’s key findings;

  • The duties of connected persons to report suspicious incidents;

  • Why did Sale Sharks make a complaint to the RFU under Regulation 17 (which sets out the RFU’s rules on anti-corruption and betting)?

  • What does the RFU’s decision reveal about the scope of Regulation 17?

 

Sacking of Arscott – A summary of events

To summarise the events that led to Sale Sharks terminating their erstwhile winger’s employment:

  • 1 January 2017 – Sale Sharks lose a keenly-contested clash[5] against fellow Aviva Premiership Rugby strugglers Bristol 23-24 at their home ground, with Bristol fighting back from 15 points down to emerge as winners by a single point.

  • 4 January 2017 – members of Sale Sharks’ squad approach[6] their director of rugby, Steve Diamond, with allegations that Tom Arscott had passed “information” to Bristol in advance of the game (with newspaper reports later claiming the information related to a number of Sale’s line-out moves[7]). Without it being made public, Tom Arscott is suspended by Sale Sharks whilst internal investigations commence.

  • 16 January 2017 – news emerges that the Rugby Football Union (“RFU”) is investigating a complaint raised by Sale Sharks that “information” was leaked to their opponents in advance of the fixture and that Tom Arscott met his brother Luke (who plays for Bristol) at Bristol’s team hotel the night before the game.

  • 19 January 2017 – Sale Sharks confirm that Tom Arscott has been sacked[8] following the conclusion of a disciplinary investigation and hearing.

Diamond made it clear that there was no suggestion Bristol’s management had asked Luke to elicit information from his younger brother. Neither brother actually played in the match itself (with Tom not making the squad at all and Luke an unused replacement) and Bristol’s acting head coach, Mark Tainton, was at pains to stress that no information was “passed to the Bristol coaches of any sporting value, nor did it change the strategy in which we approached the game in any way, shape or form“.[9]

However, notwithstanding Diamond’s comments, Bristol’s response was understandable given the RFU’s ongoing investigation and its power to discipline members. Under the RFU’s Rules and Regulations, its disciplinary powers include the ability to impose fines; deduct league points; and/or disqualify the member from any competition (Rule 5.12 of the RFU Rules[10]; Regulations 19.6.5[11] & 19.11.7(b)[12] of RFU Regulation 19).

 

Employees’ duties of confidentiality

The Courts have identified four kinds of business information:

  1. Trade secrets;

  2. Confidential information;

  3. Information that amounts to the skill and knowledge of the employee; and

  4. Public information.

Where appropriate, Courts will seek to protect the first two categories of information, with “trade secrets” attracting a higher level of protection than information that is found to be merely “confidential”. Indeed, if an employee obtains information amounting to a trade secret during the course of their employment (which is determined on a case-by-case basis) they have an implied duty of confidentiality to their employer to keep that information confidential, even after their employment terminates. In contrast, the position in respect of information that is regarded as confidential is slightly different. Whilst the information must still be treated as confidential during the course of an individual’s employment, this obligation does not survive the end of their employment relationship if it has, in the words of one Judge, been “inevitably carried away in the employee’s head”.

In the case of tactics or moves devised and practised by teams during training, with the intention that they can be successfully deployed in competitive fixtures; it is likely that such information would be classified as “confidential”. Employees who obtain that information during the course of their employment have an implied duty to handle any such information in good faith and not use it to benefit either themselves (rather than, in this case, the team as a whole) or a third party (in this case, an opponent).

Consequently, information that Arscott obtained during the course of his employment relating to his side’s line-out moves is likely to fall under the category of confidential information.

However, most employers ensure that employees are under an express duty to keep any information that they receive during the course of employment as confidential, most commonly via an express term in their employment contract and/or via a specifically tailored confidentiality agreement. In such cases, an unauthorised disclosure of confidential information by an employee can allow an employer to summarily dismiss the guilty party (albeit, the employer is still obliged to follow a fair procedure before doing so).

Arscott’s contract with Sale Sharks is likely to have contained such a clause. Diamond suggested as much when he stated that “I think when you sign a professional contract, team information is sacrosanct to the team’s performance and that can’t be discussed, certainly with opposition teams…I think it’s worded [in contracts], words to that effect, that the passing of information is forbidden”.[13]

Indeed, the RFU’s Standard Form Player Contract for 2016 states, at clause 6.11, that one of the player’s obligations to his club is that they must:

not at any time (whether during the Term of this Agreement or after its expiry) disclose any privileged or confidential information obtained during his employment save to professional advisers or the Salary Cap Manager. For the purposes of this clause confidential information is information however recorded relating to the affairs and finances of the Club for the time being confidential to the Club and trade secrets including without limitation know-how relating to the business of the Club” (emphasis added).

By introducing an express duty of confidentiality, the Standard Form Player Contract ensures that employees have a duty to keep information confidential, not only during their employment (as per their implied duty), but also after it. However difficult it may be to enforce in practice, the logic behind the clause is understandable, given the chaos that could ensue in a sport where players regularly move clubs for numerous reasons.

 

Enforcement rights of an employer

Should an employer wish to hold their employee to account for any breach of their implied or express duties, they can consider civil action against both the employee (as the original recipient of the information) and any third-party recipient (if they were either aware of/or become aware of its confidential nature).

Indeed, if a recipient were to misuse that confidential information whilst employed by a third party (i.e. at a player’s next club), the third party can still be liable for a breach of confidence, even if they were unaware that the confidential information is being misused by their new recruit.

 

What could happen next? 

Returning to Sale Sharks, any civil action being brought by the club against either Tom Arscott or Bristol seems remote at best. Not only have Sale exonerated Bristol from any blame (by confirming that they were not accusing Bristol of an act of sporting espionage), bit Diamond also acknowledged that the information allegedly leaked from one brother to the other did not lead to Sale’s narrow defeat, stating that “I think if you do your own analysis, you probably don’t need the information, because teams do the same most weeks“.[14]

Given the very nature of sport and the various permutations that impact upon the final score, this confirms how difficult mounting any legitimate civil claim would be in a sporting context (namely, proving that the leak of confidential information was the cause of a defeat). Interestingly, Diamond’s statement also potentially calls into question just how “confidential” the information is, if it could be deciphered by analysis.

 

The RFU’s key findings

The RFU recently confirmed[15] the outcome of its investigation in a statement released earlier this week. Whilst it was unclear from media reports at the time, it is now apparent from the statement that Sale Sharks lodged their complaint to the RFU on the basis that the leaked “confidential tactical information” had been passed to coaches and players at Bristol Rugby and had subsequently been used by their opponents for their own benefit during the New Year’s Day fixture.

Moreover, the RFU’s statement confirms that this leak was alleged to have amounted to a breach of Regulation 17[16] of the RFU’s Rules and Regulations[17], which relates specifically to Anti-Corruption and Betting.

The RFU’s key findings were as follows:

  • Tom Arscott was found to have discussed tactical information with his brother ahead of the match. More specifically, this information related to Sale Sharks’ plans to occasionally use some backs in their lineout and that another back would be defending in a different position at certain times.
  • Pursuant to Regulation 17.2, the RFU determined that the “non-public information” provided by Tom to Luke fell within the definition of “Inside Information”, which expressly refers to “tactic(s) and/or strategy(ies)” but also includes information relating to selection and injuries.
  • Inside Information which related to the proposed defensive structure in the Sale backline was provided to two Bristol Rugby coaches. However, the RFU found that there was no evidence to demonstrate that Bristol Rugby “changed any of their game strategy to deal with Sale’s defensive positional changes”.
  • In addition, having made inquiries with various betting operators and having found no evidence of any betting or fixing, it came to the decision there had been no breach of RFU Regulation 17 by either Tom Arscott or anyone who was provided with the Inside Information in question.
  • Moreover, the absence of any evidence of any suspicion of any fixing or betting by anyone involved in the incident, meant that Bristol Rugby had not failed to comply with the relevant reporting requirements in relation to the Inside Information that the club received.
  • However, the RFU did deem Tom Arscott’s behaviour to be “inappropriate” and issued him with a written warning for his conduct, as well as requiring him to undertake “a relevant World Rugby education module”.

Under Regulation 17.4, the RFU has extensive investigatory powers, which include the ability to:

  1. request copies or access to all records relating to the alleged breach, including telephone records; bank accounts; credit card and transaction details; emails; and betting account records; and

  2. request written statements from those involved.

In order to reach its decision, the RFU appears to have utilised its investigatory powers to good effect, interviewing 25 individuals from the respective clubs and making the afore-mentioned inquiries with various betting operators.

 

Duties of Connected Persons to report 

The RFU’s statement raises interesting questions about the purpose of Regulation 17; the reasons why Sale Sharks submitted a complaint to the RFU; and reasoning behind the decision that was reached.

In particular, reference is made in the RFU’s statement to Bristol Rugby having not failed to comply with the “relevant reporting requirements”.[18] These requirements are found in Regulation 17.3.5(a) and state that a report must be made to the designated Anti-Corruption Officer:

  • by any Connected Person – the definition of which includes (amongst others) players, match officials, coaches, selectors and team officials – who has knowledge of various behaviours (i.e., approaches, invitations, inducements etc) to any other Connected Person;

  • which relates to:

    • Prohibited Betting (defined in Regulation 17.3.1) and/or Fixing (defined in Regulation 17.3.2) and the provision of Inside Information for such purposes; and/or

    • any other conduct, information and/or credible suspicion in relation to any conduct which may breach any provision of and/or be relevant with respect to Regulation 17; and/or

    • any other conduct, information and/or credible suspicion in relation to any conduct which “may otherwise pose a threat to the integrity of the Game”.

Regulation 17.3.5(b) goes on to confirm that, if a Connected Person fails to fulfil their reporting obligations, they will receive the same sanction as if they had committed the Anti-Corruption Breach themselves.

 

Why did Sale Sharks make a complaint to the RFU under Regulation 17? 

The RFU’s press release confirms that the basis of Sale Sharks’ complaint was that the leaked tactical information had been used by Bristol Rugby to its benefit during the game and that this, in itself, constituted a breach of Regulation 17.

At first blush, this seems intriguing, given that Regulation 17 does not set out to deal with instances where Inside Information is used to a participant’s sporting advantage. Instead it seeks to prohibit, prevent, and provide sanctions for, situations where Inside Information could be, or has been, used to participate in Prohibited Betting and/or Fixing.

However, Sale Sharks may have submitted their complaint for fear of falling foul of Regulation 17.3.5(b), on the basis that the passing of Inside Information by Tom Arscott to his brother constituted behaviour that posed a “threat to the integrity of the game”,[19] particularly if they believed it influenced the final result. Indeed, this seems to have been reflected in Steve Diamond’s comments to the media at the time the news first broke, when he stated that “under the regulations, we have to report it”. [20]

 

What does the RFU’s decision reveal about the scope of Regulation 17?

Despite Sale Sharks complaint, the RFU’s investigation clearly led it to the conclusion that:

  1. no Prohibited Betting and/or Fixing, or attempts to do the same, had taken place – this conclusion is likely to have been reached after the enquires that were made with various betting operators confirmed that no Prohibited Betting and/or Fixing had taken place; and

  2. that the provision of the Inside Information did not influence the outcome of the game in any way, given that the RFU was satisfied that Bristol Rugby had not “changed any of their game strategy” after receiving the tactical details – this no doubt assuaged any concerns that the more nebulous concept of the “integrity of the game” had, in some way, been threatened.

These findings will be a relief to Bristol Rugby, who published a brief statement[21] expressing their disappointment at being “wrongly accused” and “that the complaint was made public at such an early stage in the process”.

For his part, Tom Arscott has since confirmed that he never intended any harm to Sale Sharks, that informing his brother about a “a new move that I thought we would score off” amounted to “banter” and, rather than sporting espionage, it was more an expression of “sibling rivalry”.[22]

Arscott will now be keen to find a new club and resume his playing career as soon as possible. Indeed, when explaining the decision to only issue Arscott with a written warning, the RFU’s head of discipline, Gerard McEvilly, stated that they had “taken into account that Tom Arscott has already paid a heavy price for his conduct in having been dismissed from his employment by Sale Sharks”.[23] 

McEvilly went on to note that the RFU had strongly recommended that both clubs remind their players of their “contractual and ethical obligations to their employing clubs”.[24] This seems to be the salutary lesson of this affair, with Tom Arscott stating that, when he was engaging in sibling “banter” with his brother Luke, he “didn’t realise I was saying anything that I shouldn’t have been saying”.[25]

The RFU’s advice to Sale Sharks and Bristol Rugby, along with the headlines the incident has garnered, should also be heeded by other rugby clubs, with their staff reminded of their contractual and ethical obligations, to avoid further stories of confidential leaks relating to “Inside Information” distracting them from their efforts on the pitch.


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About the Author

Phil Bonner

Phil Bonner

Phil Bonner is an associate at Centrefield LLP, a sports and media law boutique based in Manchester, England.

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