On 11 December 2019, a Judicial Committee (the “Committee”) appointed by the Welsh Rugby Union (“WRU”) handed down its decision in the case of WRU v Robert Howley (the “Decision”). The Committee found that Howley had breached World Rugby Regulation 6 (the “Regulations”) in relation to “prohibited betting” and sanctioned him with an 18-month ban, half of which are suspended for two years.

The Decision follows Howley’s suspension from the senior management of the Welsh national team in the days prior to the 2019 Rugby World Cup (“RWC”) in Japan. In an earlier article, I explained the regulatory framework and considered the disciplinary process that would be followed – see here. This article will explain the Decision and will seek to draw out the salient points within.

Overall, it appears to be a well-reasoned and balanced decision which understands the importance of protecting rugby’s integrity but also shows empathy towards an individual who has clearly been struggling with their mental health. However, it sounds a warning to all those involved in the sport and suggests that there is still some way to go in establishing an effective anti-betting framework in sport.

The Charge

Mr Howley was charged with:

Betting on the outcome and/or any aspect of an event by a Connected Person and receiving part or all of the proceeds of such Betting [(the “Charge”)]

The particulars of charge read:

During the period of 13th November 2015 and 7th September 2019, as the Welsh Rugby Union National Squad Assistant Coach, you placed 364 bets on rugby union, featuring 1,163 matches in total…and received the proceeds (or part of the proceeds) of the successful bets.

At this juncture, it is worth noting that the Charge is expressed in terminology differing from that of the Regulations. As explained in my earlier article, the Regulations create two separate offences depending on whether the event bet on was one with which the individual was connected. Regulation 6.3.1(a) sets out the offence of “betting by a Connected Person on a Connected Event”, while Regulation 6.3.1(c) creates the offence of “betting by a Contract Player or Contract Player Support Personnel on an Event”.

In this case, the WRU have treated Howley’s offending as a single offence, despite the fact that it concerned betting on both Connected Events and unconnected Events. This follows the general scheme found in the sanctioning section of the Regulations at 6.10.2.

The Facts

On 9 December 2019, Mr Howley appeared in person before the three-person Committee and was represented by Mr David Williams QC. He accepted the charge in full, with most of the hearing therefore focusing on the appropriate sanction.

The Committee heard how on 10 September 2019, the WRU received information from an employee of the betting company Betway that Mr Howley had placed bets on matches involving the Welsh national teams, prompting an immediate formal investigation.

On 16 September, representatives of the WRU met with Howley in Japan, where he was with the national squad preparing for the RWC. He immediately acknowledged that he had breached the Regulations “without being prompted”, whereupon he was suspended with immediate effect by the team manager.  Mr Howley left Japan on 17 September.

A second meeting was held on 23 September to explain the investigation process, and the Committee heard that Mr Howley had been “visibly upset throughout”. He was recorded as having said “I’m putting my hands up” and “If I was being evasive, I wouldn’t have used my works mobile phone and email account”.

On 4 October, a further, formal meeting was held to elicit more detailed information. During the meeting, Mr Howley admitted that he had placed a bet upon the Welsh team and upon an individual within the team to be the first try scorer in the match against Ireland in March 2019, as part of a “treble”. This was “part and parcel of his normal recreational betting activity”, and also admitted that he knew that it was a breach of the Regulations to bet on Wales, and on other rugby matches.

The Committee noted that, under interview, Mr Howley answered every question put to him:

He did not seek to avoid responsibility for what he had done. He was clearly remorseful and very anxious about the effect his actions was having on his family. (Paragraph 14)

Mr Howley then complied with a WRU request to make available his bank statements and betting account details and electronic devices including a WRU laptop, a WRU mobile phone and other personal devices.

On 7 October, Howley was provisionally suspended in accordance with Regulation 6.8.

The investigation revealed that, during the period specified in the charge, Mr Howley had placed 200 bets with William Hill, 150 bets with Betway and 13 bets with Ladbrokes. These bets were sometimes placed as single bets (168 occasions) but on the other occasions they were placed as parts of “doubles”, “trebles” and “accumulators”. In total, bets had been placed upon 1,163 matches. Of the 363 bets, 24 were placed on “connected events” as defined in the Regulations, and two bets were placed upon two individuals representing Wales.

As regards the individuals, the WRU were keen to ensure that there was not a wider match-fixing or corrupt scheme. However, it was found that neither player had any knowledge of the bets and that there was “no reason to think that their denials are not genuine”. The stake in each of these instances was “no more than a few pounds”.

The WRU found no further incriminating material on any of Howley’s other devices, allowing them to conclude that:

the breach is limited to prohibited betting and that there is no evidence to suggest that [Mr Howley] has supplied, sourced or misused any information pertaining to Rugby Union. (Paragraph 19)

In turn, the Committee concluded (at paragraph 20) that Mr Howley “placed a very significant number of prohibited bets during a period of about 5 years”. Of those bets, “a comparatively small percentage was placed upon matches involving Wales”. Moreover, the Committee added, Mr Howley made no gain from this betting and, in fact, made a total loss of approximately £4,000. It was purely for “recreational” purposes. However, the Committee then observed:

it seems that a trigger for Mr Howley’s betting activity was a family tragedy involving the death of his sister

No intention to pervert the integrity of the game was found. Howley confirmed that he had not bet since his suspension and had seen a psychologist, with whose help he was confident he would not bet again.

Mr Howley emphasised his remorse, and the feelings he had of letting down the WRU, his colleagues and his family. The Committee had “no doubt that Mr Howley was entirely genuine about his feelings”.

The Decision

In light of Mr Howley’s admissions, all that remained for the Committee was to determine the appropriate sanction. The starting point was that:

Every bet he placed on rugby matches during the period of the charge (363 in total) constituted a breach of the regulation (Paragraph 22)

The range of sanctions applicable to “prohibited betting” can be found at Regulation 6.10.2:

Minimum:

(i) reprimand and/or warning where single Bet not placed on a Connected Event; or

(ii) 6-month Suspension where Bet(s) placed, directly or indirectly, on a Connected Event

Maximum:

5-year Suspension

The commentary to the Regulations states that:

where multiple bets are placed on non-Connected Events a period of suspension ought to be imposed, which ordinarily will be for at least 6 months

Therefore, the range applicable to Mr Howley’s case was 6 months to 5 years. The exact sanction is determined by the “seriousness of the offence” (6.10.1), which itself is determined with regard to the relevant aggravating and mitigating features.

The WRU contended that there was a “high degree” of fault – an aggravating feature (6.10.3(a)). Mr Williams QC, meanwhile, argued that, though there was not a “low degree” of fault, nor was there a “high degree” of fault.

The Committee considered a wide range of mitigating factors:

• Mr Howley’s immediate admission;
• His “deep felt and genuine remorse”;
• His “exemplary character and an exemplary disciplinary record (both as a player and coach)”, supported by “very powerful” evidence from Sir Ian McGeechan, Warren Gatland and current Welsh international Jonathan Davies;
• There was no damage to the commercial value and/or the public interest in any match or tournament;
• The breach did not affect the result of any match;
• Mr Howley had already suffered the penalty of being suspended for the RWC;
• Mr Howley made no gain;
• There was “no suggestion of dishonesty or misuse of confidential information”;
• The press intrusion upon his family;
• Mr Howley had sought help from a psychologist who had diagnosed the trigger for his betting as a family tragedy; and
• Mr Howley had since refrained from betting.

Ultimately, the Committee held that Mr Howley’s degree of fault was high, in spite of these mitigating factors, because he was “fully aware of his duties and responsibilities” under the Regulations, was part of the senior management of the national squad, and placed a very significant number of bets over the course of five years. The Committee added that:

While we are prepared to accept that the trigger for Mr Howley’s betting on sporting events has its seeds in personal family tragedy it is much more difficult to understand why he chose to bet on rugby which he knew was prohibited rather than other sports exclusively which, of course, was perfectly permissible (Paragraph 33)

As such, the Committee deemed the “proper and proportionate” period of suspension to be 18 months, taking account of all of the circumstances as well as the need to ensure public confidence both in the integrity of sport and its judicial processes.

However, Mr Williams QC argued that this punishment ought to be suspended. He emphasised that Mr Howley has already suffered “a very significant punishment” in being excluded from the RWC and noted that the process has put “very significant strain upon the health of Mr Howley”. It was his submission that further immediate suspension would be “unduly punitive” and would likely “impact adversely on Mr Howley’s well-being”.

The Committee did not think that suspending the ban entirely was appropriate but held that Mr Howley should serve 9 months of the ban – back-dated to the start of his suspension on 16 September – with the second 9 months suspended for two years. The second 9 months will only be served in the event that he commits any further breach.

Thus, until 16 June 2020:

Mr Howley is suspended from playing, training as part of any team or squad officiating, coaching, selecting, administering and/or otherwise participating or being involved in any capacity in the game of rugby or participating in any function event or activity that is authorised, organised sanctioned, recognised or supported in any way by World Rugby, an Association, a Union or Rugby Body (Paragraph 40)

Comment

This is a well-reasoned and balanced decision. It carefully balances the need to preserves the integrity of sport against some very significant mitigating circumstances in a way which upholds the purpose of the Regulations whilst interpreting them with humanity. Mr Howley’s is a genuinely sad case, and it is proper that his well-being strongly influenced the Decision.

At paragraph 23, the Committee set out the primary aim of the Regulations as:

the preservation of the fundamental character of sporting competition as an honest test of skill and ability and the prevention of corrupt gambling practices from undermining the integrity of the game of rugby

Moreover, it explicitly referred to the fundamental imperative found in the Regulations at 6.1.3 that “public confidence in the authenticity and integrity of the sporting contest is of paramount importance”.

This serves as an important statement of why the Regulations exist, and why it is essential to enforce them properly. It also reinforces the fact that breaches shall not be taken lightly. This should be taken as a reminder to all those involved in rugby – particularly at elite level – that betting on the sport is prohibited, and that the consequences of doing so can be severe.

Plurality of Offences

With respect to legal principle, it is worth noting that although each of the 363 bets placed by Mr Howley constituted a separate breach of the Regulations, they were treated as a single course of conduct for the purposes of sanctioning. They were not sanctioned separately to form a cumulative total.

This is in keeping with the Regulations, as well as English law. Regulation 6.10.2 treats “prohibited betting” as a single offence and references “bet(s)” – plural – in determining the appropriate minimum suspension. Similarly, 6.10.5 states that where someone is found guilty of two breaches in relation to the same set of facts, and sanctioned separately, these sanctions “should run concurrently” – not cumulatively. The Committee’s approach is in keeping with this principle.

Furthermore, English law employs the “principle of totality” in determining criminal sentences. This ensures that the total sentence reflects all of the offending behaviour, so that it is just and proportionate. As the Sentencing Council explains, if individual sentences were added together, there is a risk that the total sentence would be disproportionately high. The same applies here. Therefore, sanctioning the 363 breaches in this way is clearly most appropriate.

Suspended Sanctions

Lastly, the Committee spent some time considering whether they had the power to suspend a sanction. There is no express provision for it in the Regulations, nor in World Rugby’s disciplinary and judicial regulations (Regulation 18). However, the power is not expressly excluded.

The Committee referred to the general power in Regulation 18.6.1 for rugby judiciaries to “impose such sanction as it thinks fit” when imposing disciplinary penalties. It held that this was intended to give a broad discretion and that such an approach could be read into Regulation 6. As such, the Committee considered that the sanctioning powers in the Regulations were non-exhaustive and, thus, that it could impose a suspended sanction.

This, too, seems appropriate. Many sporting bodies have the power to impose suspended sanctions – for example, the FA, ECB and ITF, and they are also provided for (in certain circumstances) in the World Anti-Doping Code. Indeed, within rugby, the RFU makes provision for such sanctions in its Regulation 19 and, just this week, EPCR handed Munster doctor a suspended 3-week touchline ban. Given that these bodies derive their rules from those of World Rugby, this implies that World Rugby’s regulations do permit suspended sanctions.

Thus, the Committee was right, in my view, to conclude that it had the power to impose a suspended sanction.

An Effective Anti-Corruption Framework

The fact that Mr Howley’s betting only came to light in September 2019 suggests that there is not yet a fully effective anti-betting framework in place within rugby. Mr Howley had been betting through accounts with Betway, William Hill and Ladbrokes – registered in his own name and on his work devices – since November 2015. He placed a total of 363 bets. That this was not identified until September 2019 is a glaring indictment of the sport’s anti-corruption framework.

This is not the place to advance an alternative solution, and it must be recognised that sport relies in large part upon the co-operation of betting companies to identify prohibited conduct, but this case highlights a need for the existing procedures to be reviewed. Strengthening the framework will reinforce the aims of Regulation 6, and will also help those individuals who, like Mr Howley, are struggling to regulate their own betting activities.