The Coronavirus pandemic has created an unprecedented crisis for sports administrators. My first article on the legal implications of the pandemic in rugby considered the wage cuts being imposed on players in the English Premiership and the question of whether playing contracts might be frustrated. This piece will deal with the issues of promotion and relegation in English rugby.

At the time of writing, the RFU has ended all rugby competitions below Premiership level – including the RFU Championship. The Premiership is presently postponed. This leaves a huge question mark over promotion and relegation. If none of the leagues – or only the Premiership – are completed, who goes up and who goes down? On 20 March 2020, the RFU stated:

We are working through the implications of ending the Season early and have instigated a thorough process to ensure fair and balanced outcomes for the game. We will communicate these outcomes by the middle of April.

This article will analyse the regulatory instruments governing the English game and will discuss how the RFU ought to go about resolving the relegation conundrum. It will conclude that there should be no promotion or relegation outside of the Premiership, where Saracens’ automatic relegation requires Newcastle to be promoted.

RFU Regulation 13 governs all adult rugby competitions under the RFU’s jurisdiction, and this is supplemented by both the Premiership Regulations and Championship Regulations. At the outset, it is important to note the language used by the RFU in their statement. It read:

the Rugby Football Union is announcing the end of the 2019/20 rugby Season

It did not state that the Season was “cancelled” or “void”, it was merely ended early. It might be argued that these are, in effect, the same thing, but it suggests an intention by the RFU not to discount the Season’s results entirely.

Are Competitions Null and Void?

The principles of promotion and relegation in RFU Competitions are set out in RFU Regulations 13.2.6 and 13.2.7. Outside of the Premiership and Championship, the general rule is that the bottom three clubs are relegated, and top three clubs are promoted “at the conclusion of Season 2019-2020”. The Championship operates a one-up one-down relegation policy (Championship Regulation 3.2). RFU Regulation 11.1 and Championship Regulation 1.1 state that the Season 2019-2020 runs from “Saturday 7 September 2019 until Monday 25 May 2020”. Further, it is a basic principle of the RFU Leagues that all clubs must play each other on a “home and away basis” (Regulation 13.6.4(e)).

RFU National Leagues 1 and 2 have at least five rounds of matches remaining, while the Championship has seven rounds remaining. Prima facie, therefore, in line with the above provisions, the Season has not been completed – clubs have not played every other club both home and away. Thus, arguably, because the regulatory requirements for the completion of competitions cannot be met, the competitions are a nullity and, consequently, there can be no winners and losers – and no promotion or relegation.

However, it is not necessarily so simple. RFU Regulation 13.1.3 gives the RFU Governance Committee the discretion to “amend or vary RFU Regulation 13…and/or make further regulations during a Season”, if it considers it to be “in the interests of rugby union football or an RFU Competition” where (RFU Regulation 13.1.3(a)):

in the view of the Committee exceptional and material circumstances have occurred during any RFU Competition which either have not been provided for or cannot be equitably dealt with under RFU Regulation 13 (particularly if promotion or relegation is likely to be materially affected), the Committee may at its own instigation introduce regulations for the current Season and/or determine the results of matches that have not been played for reasons related to the above exceptional and material circumstances and/or determine which Clubs should or should not be relegated (Emphasis Added)

This gives the RFU a broad discretion for circumstances such as those we find ourselves in. The Coronavirus pandemic and the governmental restrictions that have followed are quite clearly “exceptional and material circumstances”, given the necessary effect on the completion of all sports competitions, and RFU Regulation 13 makes no provision for such an eventuality. This power is therefore engaged and may allow the RFU to end the Competitions early. It also gives them the power to determine how such a decision will affect promotion and relegation – though Regulation 13.1.3(a) only refers to relegation, the wording of the provision as a whole implies that the power must also extend to promotion, particularly given the need to maintain the number of clubs in each league.

The existence of these provisions means that the 2019-2020 Competitions are not necessarily void, as the RFU has the power to vary the requirements for them to be completed and, in any event, to determine promotion/relegation. These provisions would also preclude an argument based on the doctrine of frustration – that the Coronavirus made the conclusion of the 2019-2020 Competitions impossible.

The above applies to all RFU Competitions, including the Championship and the Premiership. As regards the Championship, the RFU may also be required to consult with the clubs before making decisions under RFU Regulation 13.1.3. Championship Regulation 1.3 requires consultation if any variations to the Championship Regulations are to be made. As the RFU’s actions amount to a variation to the length/structure of the Season, there is a change to the Championship Regulations and, hence, the RFU ought to consult the Championship clubs on any measures taken.

Under Premiership Regulation 1.3, the RFU must allow variations to first be considered by the Professional Game Board (“PGB”) – the body created by the Professional Game Agreement between the RFU and Premiership Rugby Limited – though there is no requirement for the PGB’s consent to be obtained. Further, in these exceptional circumstances, the RFU must give the clubs “as much notice as is reasonably practicable” of the changes to be made.

Could Clubs Challenge the Decision to Cancel Competitions?

RFU Regulation 13.1.3(b) provides for an appeal against a decision made under Regulation 13.1.3(a). Any person or club affected by the decision must give notice of an appeal to the RFU Head of Discipline within 48 hours of being made aware of the decision, and the dispute will be resolved by an Appeal Panel. The fact that the Premiership has only been postponed while the rest of the RFU Competitions have been cancelled – despite the Premiership having more rounds of matches left to play – might have given grounds for a challenge.

Of course, far more than 48 hours have passed since the RFU’s decision on 20 March to cancel all competitions below the Premiership. Therefore, a club would not be able to bring a challenge under Regulation 13.1.3(b). Further, given the provision of an internal appeals process, any attempt to challenge the RFU in the courts (perhaps under the Bradley v Jockey Club supervisory jurisdiction) might struggle, owing to the exhaustion of alternative remedies principle.

That said, this principle may not necessarily be decisive. If a club was to bring a challenge, it would likely be on the grounds of irrationality or proportionality – given the difference in treatment afforded to the Premiership – or perhaps on the basis of the ignorance of relevant considerations (such as the fact that relatively few rounds of matches remained, at least in the National Leagues). An alternative angle might be to argue that the cancellation decision was ultra vires because it was not “in the interests of rugby union football or an RFU Competition”. This would be a difficult argument to make, though, in these extraordinary circumstances.

However, it must be said that, as the Coronavirus crisis intensifies, the RFU’s decision has become increasingly justifiable. The longer the pandemic lasts, the more difficult it will be to resume any competitive rugby and, thus, the more difficult it will be to argue that the RFU’s decision was irrational or disproportionate – and the less sensible it would be to bring legal action. The fact that the Premiership has only been postponed to date owes more to the financial and contractual complexity of ending the Premiership early than the likelihood that it can be completed in full.

Lastly, any claim for damages that a club might try to bring on the basis of this decision would likely be precluded by RFU Regulation 13.9.3 “Restrictions on Claims” – an extensive exclusion of liability clause.

Determining Promotion and Relegation

Having determined the power of the RFU to determine promotion and relegation, the looming question is how it will and should be exercised. There are, as I see it, four options for the RFU to consider:

1. Promotion/relegation based on current league positions

On one hand, it might be argued that, because the Season has merely been ended early, the Season has been “concluded” and, thus, clubs’ current league positions should be taken as final. Promotion/relegation could then be determined in accordance with the ordinary provisions of Regulation 13. This would certainly be a fair outcome for those clubs whose positions at the top (or bottom) of the table are already mathematically guaranteed – for example, in National League 2 North, where Caldy are already mathematically champions and Scunthorpe mathematically last.

However, in other leagues, matters are less certain. Where promotion/relegation is not already mathematically confirmed, would it be fair to take clubs’ current positions as determinative? Arguably not. In National League 1, only 7 points separate Richmond in first place and Rosslyn Park in second. In National League 2 South, only 6 points separate first and fourth. With five matches still to be played, there was every chance that promotion/relegation had not yet been settled.

That said, there is precedent for determining outcomes on the basis of an incomplete competition. RFU Regulation 13.6.7(a)(ii) provides that, if a match is abandoned due to weather conditions after 60 or more minutes have been played, the score at the moment of the abandonment will stand. This is also enshrined in the Premiership and Championship Regulations. A similar principle could be applied to the RFU Competitions now. If 75% of the Season has been completed, the league positions at 20 March shall stand, and promotion/relegation be determined on that basis.

Yet, though 75% of the Season has been played out in, for example, National Leagues 1 and 2, the Championship (and Premiership) fall short of this mark. This approach may not provide a useful solution. It is not possible to have promotion/relegation in some leagues but not all, given the way in which the leagues are structured – there will always be a knock-on effect for the leagues above and below.

And what about the third promotion place for National League 2, which is determined by way of a play-off? This could perhaps be played during the summer, but it is not clear that would be possible given the RFU’s decision to end the Season.

2. No promotion/relegation

Dispensing with promotion and relegation this Season would be one way to resolve the issue. Many clubs currently outside of first place in their league would favour this option: if the Season has not been completed fully, there should be no winner and no promotion or relegation. Many clubs would argue that the competition should be declared void, in spite of the RFU’s discretion not to do so.

Perhaps a compromise could be reached whereby those clubs that are already mathematically confirmed as champions could be awarded the league title/trophy, but promotion and relegation be suspended.

3. Promotion/relegation on the balance of probabilities

The third option would be to take a somewhat predictive approach. The RFU might consider each competition independently and assess the probability that a club would have finished in the promotion or relegation positions had the Season been completed. A club could be promoted/relegated on the balance of probabilities – i.e. if it was more likely than not that they would have been promoted/relegated.

This is the civil standard of proof and is the standard used in RFU disciplinary matters (see RFU Regulation 19.5.6). Guidance was given on its application in the case of Rugby World Cup Limited v Scottish Rugby Union [2019]. The World Rugby independent disputes committee (paras 45-46) referred to Lord Carswell’s dictum in Re D [2008] UKHL 33 which explained the balance of probabilities test as meaning where one considers that “on the evidence, the occurrence of the event was more likely than not”, but qualified this with Lord Nicholls’ dictum in Re H [1996] AC 563, that some things are inherently more likely than others. Such a standard could be applied here after considering all the circumstances/evidence.

In the Championship, for example, Yorkshire Carnegie have only two league points after 14 matches, and a points difference of -528. They are in 12^th place – the relegation zone. The club in 11^th has 24 league points and a points difference of -92. Though, mathematically, Yorkshire Carnegie are not yet assured of relegation, the statistics suggest that it would have been unlikely that they moved up the table. Further, the club’s dire financial state and lack of playing resources has ensured their lack of competitiveness this Season. On the balance of probabilities, Yorkshire Carnegie would have finished bottom of the Championship.

Similarly, at the top of the Championship, Newcastle are undefeated, with a points difference of +333 and 71 league points. Ealing, in second, have 53 points and a points difference of +238 – though they have played one game fewer than Newcastle. Newcastle were, last Season, a Premiership club – and, the Season before, made the semi-finals of the Premiership. With the extent of their resources, it would have been incredibly surprising had Newcastle not gone on to win the Championship. It is more likely than not that Newcastle would have won the Championship this Season.

The factors for the RFU to consider would include results this Season so far, league points accrued, points difference, remaining fixtures, squad depth/playing resources, injuries and, perhaps also historic performance. The RFU’s Governance Committee could apply the balance of probabilities test using these (or similar) criteria.

However, in some leagues, it might be impossible to determine what would have happened. It might not be possible to say that, on the balance of probabilities, a particular club would have finished in the relegation positions. Hence, this approach is limited in its utility.

4. A mixed approach

A final option might be to combine the above suggestions. Current league positions could be used wherever 75% of fixtures have been completed, and the balance of probabilities test applied wherever they have not. If the RFU insists on promotion/relegation taking place at all this year, this would be the fairest option.

A hard-and-fast rule has the advantage of giving certainty and making the RFU’s decision less contestable, while the balance of probabilities could be used residually to tidy up any remaining difficulties. However, it may still be impossible to relegate/promote a club on the balance of probabilities. This ‘mixed approach’ may therefore also be impracticable.

Guiding the RFU’s Discretion

In arriving at its decision, the RFU ought to be guided by the principles of good governance, and by the principles of judicial review.

The principles of good governance include independence, transparency and accountability. These ought to be incumbent on any sports governing body wielding such power as the RFU does over a sport – as discussed in an earlier article of mine, here.

The principles of judicial review apply to sports governing bodies by virtue of the jurisdiction created by the case of Bradley v Jockey Club – the so-called private law supervisory jurisdiction. In that case, Richards J held that it would be “surprising and unsatisfactory” if the approach taken to the review of a decision of a body like the Jockey Club (a sports governing body) was any different to the approach taken in judicial review (para 37). Sports governing bodies – like the RFU – are thus bound by these principles. They include the principles of natural justice (including the right to be heard and the rule against bias), procedural fairness, error of law, ultra vires, abuse of discretion, legitimate expectations, irrationality and proportionality. Failure to comply with these principles might give grounds for a legal challenge, subject to the same proviso as above about the right to an internal appeal.

Of particular importance in this context, is the right to be heard. The RFU ought to allow clubs to make submissions on the way in which promotion/relegation should be decided prior to making their decision. The RFU must also ensure that the decisions are made independently of the clubs concerned – i.e. no-one with an interest in a club’s promotion/relegation ought to be involved in the decision-making process. Transparency is also important. The RFU should make clear to clubs how it will make its decision and should publish its decision with reasons once it has been made.

Opinion

It is my view that there should be no promotion or relegation in the RFU Competitions this Season. Those mathematically assured of being champions in spite of the remaining fixtures ought to be awarded their title and trophy; but should not be promoted. The Season should not be declared void – the consequences of this would be too far-reaching and likely to cause injustice – but promotion/relegation ought to be suspended and the Competitions ended early. I believe this to be the fairest solution for all clubs.

Though some clubs are already guaranteed of their promotion/relegation positions with matches un-played, the majority are not. It would not be fair to relegate clubs simply because those in the league below them have won their competition, as they could still have played their way out of the relegation zone had the Season not been ended early. Fixture permutations might mean that some clubs have already played their toughest matches, while others have only weaker clubs left to play.

It is an important principle that the outcome of sports competitions should be determined on the field and not in the boardroom – nor the courtroom. This was recognised by a World Rugby independent judicial committee in the case of World Rugby v Federación Española de Rugby, Rugby Union of Russia, Fédération Belge de Rugby and Federatia Romana de Rugby (see para 49). If promotion/relegation cannot be settled on the field of play, it should not happen at all.

There are, of course, exceptions to this – such as where disciplinary action is necessary (see below re Saracens) – but, where possible, it ought to be upheld. Presuming what would have happened, even in these circumstances, runs contrary to the very essence of sport.

What about the Premiership?

When it comes to the Premiership, the issue is yet further complicated. On 18 January 2020, it was announced by Premiership Rugby that Saracens were to be relegated to the Championship at the end of the Season 2019-2020. This followed sanctions for breaches of the Salary Cap Regulations, and the club’s subsequent failure to become compliant. Their relegation was to be procured by way of an agreement between Saracens and Premiership Rugby. Regardless of whether the 2019-2020 Season is completed, Saracens are to play in the Championship from the start of the 2020-2021 Season.

This agreement means that a club must be promoted from the Championship to the Premiership. Premiership Regulation 3.2(d) states:

In the event that a Club shall cease to be a member of the Premiership…then, with effect from the end of the Season in which such Club shall so cease to be a member of the Premiership, such alterations and/or additions shall be made to the provisions of this Regulation 3.2 as the RFU (acting on the advice of the PGB) may think fit so as to achieve a situation where, at the beginning of the next Season, there are 12 Clubs in the Premiership, provided always that there shall be no alteration or addition pursuant to the provisions of this Regulation 3.2 which will prevent the highest placed club in the Championship being promoted to fill any vacancy…

The necessary consequence of Saracens being automatically relegated to the Championship (i.e. ceasing to be a member of the Premiership) is that alterations must be made to the Premiership Regulations to ensure that there are 12 clubs in the Premiership next Season. Further, Premiership Regulation 3.2(d) makes clear that this cannot be done in a way that prevents the highest placed club in the Championship being promoted to fill the vacancy.

When the 2019-2020 Season was ended by the RFU on 20 March, Newcastle were the highest placed club in the Championship. As such, Newcastle is the only club that can be promoted to fill the vacancy left by Saracens. Therefore, even if promotion/relegation does not take place across the RFU Competitions generally, Newcastle ought to be promoted to the Premiership and Saracens relegated to the Championship on the basis of the agreement between Saracens and Premiership Rugby, and Premiership Regulation 3.2(d).

If I am wrong and Saracens’ relegation was only to take place on the basis of the points deduction imposed, and the 2019-2020 Season was declared void, it might be that Saracens could escape. This is likely to be one reason why the RFU will not declare the Season void.