It is election time for World Rugby. The elections for both the Chairman/Vice-Chairman and Executive Committee of rugby’s international governing body are underway, with the result to be formally announced on 12 May 2020, and there has already been plenty of controversy. Most notable was the media storm over the nomination of Fiji’s Francis Kean for a position on the Executive Committee (“ExCo”), seconded by the Fédération Française de Rugby.

Kean, who has previously been convicted of manslaughter and is the brother-in-law of Fiji’s Prime Minister, is the Fiji Rugby Union (“FRU”) chairman and, until last week, was Fiji’s representative on the World Rugby Council (the “Council”). On 21 April 2020, following the publication of an article in the Sunday Times that revealed allegations of homophobia and discrimination, Kean resigned from his position on the Council, thus withdrawing his candidature for election to ExCo.

Adding to the pressure on Kean was a damning letter published by Pacific Rugby Players Welfare, the Pacific Island players group, written by former Samoa international Dan Leo to the Council. The letter detailed the violent past of the man colloquially referred to as ‘Killer Kean’ and the corruption that allowed Kean to assume his role in the FRU. It also alleged involvement by Kean in the intimidation of judges connected to his criminal proceedings and the abuse of those working, or seeking to work, within Fijian rugby, as well as noting the culture of violence engendered in Fiji’s prison service under Kean’s leadership as Commissioner of Prisons. Indeed, Kean (and Fiji’s regime) has previously been criticised by Amnesty International, who praised Pacific Rugby Players Welfare’s actions. The full letter can be read here, and the Sunday Times report here. Both are well worth reading.

World Rugby responded by saying that “World Rugby does not make the decision as to who stands. It is a matter for the Union.” Such an attitude prompted Leo, quite rightly, to ask:

[W]hy does World Rugby have some of the most elaborate and exhaustive eligibility checks for those who play the game but apparently no checks for someone wanting to run the game[?]

It is a pertinent question, highlighting an inexcusable imbalance – and one which must be swiftly corrected. The situation has been brought into focus by Kean’s run for a position on ExCo, but Kean has been a member of the Council since 2019. Both candidates for the role of World Rugby Chairman – Sir Bill Beaumont and Agustín Pichot – have promised wide-ranging governance reviews if elected, and this is one area that must be addressed.

This article will set out World Rugby’s existing regulatory framework before comparing the systems used by the international governing bodies of other major sports in relation to eligibility for officials. Ultimately, it will conclude that World Rugby’s governance standards in this area are totally deficient and will propose that a model akin to that used by World Athletics ought to be adopted. On such a model, there are other current representatives on the Council who ought not to be there.

World Rugby’s Regulations on the Eligibility of Officials

As Leo rightly points out, World Rugby has no eligibility criteria for representatives on the Council, or ExCo. Furthermore, World Rugby has no regulations on who is or isn’t eligible for official roles within Unions or Associations.

The Council is effectively the ‘legislature’ of World Rugby. It votes on matters such as changes to Regulations and the Law of the Game, determines the host Union for the Rugby World Cup and, among other things, elects the Chair/Vice-Chair and ExCo. The composition of the Council is governed by World Rugby Bye-Law 9.1, and is somewhat complex. However, for the purposes of this article, the relevant provision is that the Representatives (i.e. natural persons appointed to sit on the Council) “shall be elected by their Member Unions or Member Associations”. Thus, World Rugby leaves the eligibility of Representatives as a matter for the Unions/Associations to determine. There are no provisions on how these Representatives should be appointed.

Nonetheless, World Rugby does have some control over rugby officials, by virtue of World Rugby Regulation 20 (Misconduct) and World Rugby Regulation 6 (Anti-Corruption and Betting). Under Regulation 20.2, individuals and Unions may be sanctioned in disciplinary proceedings for acts of “Misconduct”. This is defined, in Regulation 20.3, as:

any conduct, behaviour, statements and/or practices on or off the playing enclosure during or in connection with a Match or otherwise, that is unsporting and/or cheating and/or insulting and/or unruly and/or ill-disciplined and/or that brings or has the potential to bring the Game and/or any of its constituent bodies, World Rugby and/or its appointed personnel or commercial partners and/or Match Officials and/or judicial personnel into disrepute…

Specific examples of such conduct are given in Regulation 20.4 and include disparaging comments and discriminatory, abusive, intimidating or offensive conduct.

This affords World Rugby some control over its officials, and those of the Unions, and the available sanctions include “suspension from involvement in…administration of the Game” (Regulation 20.10.1(f)). However, this only allows officials to be prevented from continuing in their roles – there is little specifically in place to stop disreputable individuals from taking such positions in the first place, to the detriment of the sport’s integrity. World Rugby could theoretically charge a Union with Misconduct if it appointed a Representative of such character that their very appointment brought the game into disrepute, but it has not shown any intention of doing so to date. It was reported on 21 April that no formal investigation had yet been launched by World Rugby into the allegations into Francis Kean.

Under World Rugby Regulation 6.4, a judicial officer may declare any person who is or is seeking to become a “Connected Person” (including administrators, directors and executives) an “Unsuitable Person”, where they have reasonable grounds to believe that the person may be and/or may have been involved in any corruption, or conduct involving dishonesty or fraud. This would prevent them from associating with other persons connected to the game entirely. However, this appears to be a somewhat narrow power that does not cover all forms of disreputable conduct, largely aimed at preventing match-fixing. “Corruption” is not defined. Further, though it might arguably have application to someone like Francis Kean, it did not prevent him from taking his position on the Council.

There is thus a glaring hole in World Rugby’s integrity and good governance policies.

Comparative Approaches to Official Eligibility

1. World Athletics

Article 65 of the World Athletics Constitution sets out the rules on the eligibility of World Athletics Officials, which are particularly clear and comprehensive. To be eligible every applicant and existing official must be approved by the “Vetting Panel” to have satisfied an “Integrity Check” and “not be Ineligible” (Art.65.2). The Vetting Panel is an independent panel of three persons, at least one of whom must be a lawyer.

According to the World Athletics Vetting Rules, an Integrity Check is an assessment by the Vetting Panel of all available “relevant information concerning the person”, including disclosures on a Vetting Disclosure Form or disclosures made by existing officials in compliance with their duties in the Integrity Code of Conduct. Indeed, World Athletics has specific Conflicts, Disclosures and Gift Rules.

According to Vetting Rule 8.2, to satisfy an Integrity Check, the Vetting Panel must decide, on the balance of probabilities, that the person:

8.2.1 is able to meet the high standards of conduct and integrity required of an Official or Specified Staff Member; and

8.2.2 is of good character and reputation; and

8.2.3 is physically and mentally fit to perform the position being sought or the position they hold; and

8.2.4 has fully disclosed all Significant Interests; and

8.2.5 is free of any actual Conflict of Interest

As regards Rules 8.2.1 and 8.2.2, the Vetting Panel will, under Rule 8.3, take into account whether the person:

8.3.1 is, or has been, the subject of an investigation or disciplinary action…resulting in adverse findings being made about the person’s credibility, integrity, honesty or reputation; or

8.3.2 has at any time not complied with the law; or

8.3.3 is or has been the subject of any public controversy, which has so undermined that person’s credibility, integrity, honesty or reputation or has brought the person into such disrepute, that their association, or continued association, with World Athletics has or is likely to adversely affect the reputation or interests of the sport of Athletics or World Athletics; or

8.3.4 is unwilling or unable to deal with any potential actual Conflict of Interest.

This element of the process is somewhat subjective, as the Vetting Panel is entitled to find that an individual satisfied the Integrity Check even though one or more of the matters specific in Rule 8.3 exists (Rule 8.4).

However, under Art.65.4 of the Constitution, individuals will be automatically ineligible for an official position in various circumstances, including where the individual is bankrupt, serving a suspension for breaches of the Integrity Code of Conduct, has committed an anti-doping rule violation (at any time) or has been legally disqualified from being a director of a company. Art.65.4(c) also provides that a person will be ineligible if:

the person has been convicted by a Relevant Authority of any offence punishable by a term of imprisonment of two (2) or more years (whether or not a term of imprisonment is imposed) unless that person has obtained a pardon or has served the sentence imposed on them

This suggests that convicted criminals will not automatically be ineligible if they have served their sentence, which is somewhat surprising; though, of course, the individual might still fail the Integrity Check on this basis.

World Athletics’ two-stage eligibility test, is thorough and well structured, incorporating both objective and subjective elements. The procedures by which they are administered (not rehearsed here for reasons of space) are also explained clearly in the Vetting Rules, and decisions finding an individual ineligible can be appealed to the Court of Arbitration for Sport (Rule 4.4).

2. International Olympic Committee (IOC)

The approach of the IOC is somewhat more fluid, and less certain. Eligibility for IOC membership is determined in accordance with the Bye-law to Rule 16 (“BLR 16”) of the Olympic Charter. While there are no clear integrity-based eligibility rules as such, BLR 16.2.3 states that:

the IOC Members Election Commission is charged with preparing profiles and proposing candidates in order to achieve a diverse and balanced membership of the IOC. To this end, the IOC Members Election Commission is to examine and evaluate all candidatures for election to IOC membership…and, for each candidature, provide a written report to the IOC Executive Board…

In accordance with BLR 16.2.3, the IOC Members Election Commission gathers “all useful information on the candidates” and verifies their “eligibility, origin and admissibility”. Of note, the IOC Members Election Commission must include “at least one representative of the IOC Ethics Commission” (BLR 16.2.3.5), and the online guidance suggests that the IOC Ethics Commission “will be consulted on the integrity of the candidates”.

This implies that there will be a vetting of candidate in line with the IOC Code of Ethics, but there is no formal test applied to prospective IOC members, unlike in World Athletics.

However, the Code of Ethics, as it applies to existing IOC members and other Olympic parties, is extensive. Indeed, IOC members may be expelled for failing to comply with it (Olympic Charter Rule 16.3.8). The Code’s fundamental principles (Art.1) include respect of “political neutrality”, while Art.2 requires Olympic parties to act with the “highest degree of integrity” and with “impartiality, objectivity, independence and professionalism”. Art.2 continues by requiring parties to “refrain from any act involving fraud or corruption”. Section D of the Code also requires parties to respect the “Basic Universal Principles of Good Governance of the Olympic and Sports Movement”, as well as detailing various financial ‘best practice’ obligations.

Of relevance to World Rugby, is the scope of application of the Code of Ethics. The Introduction to the Code states:

…the International Federations…undertake to adopt, for their internal activities, a code of ethics based on the principles and rules of the IOC Code of Ethics, or in a written declaration to adopt the IOC Code of Ethics.

As an International Federation recognised by the IOC, World Rugby are bound by this undertaking. It, therefore, ought to have a code of ethics in line with the IOC Code to ensure the highest standards of integrity, including political neutrality. That Francis Kean was able to become a Representative on the Council is a damning indictment of World Rugby’s failure in this regard. There are also wider questions about political involvement in the Unions which need to be addressed, as the Chairman of both the Fiji and Samoa Rugby Union is the country’s Prime Minister. World Rugby is not fully compliant with its IOC obligations, underlining the case for reform.

3. International Cricket Council (ICC)

The ICC, despite not being an IOC-recognised International Federation, has a strong Code of Ethics of its own. Article 1.1.1 states:

Cricket is renowned for strong ethical values of fair play and sportsmanship and the International Cricket Council (ICC) aspires to the highest ethical standards in its governance and administration of the sport. This is essential to safeguard the integrity and the reputation of cricket, to maintain confidence in the ICC as the custodian of the sport, and to allow it to secure the long-term health and vitality of cricket at all levels. The ICC has therefore adopted this Code of Ethics for Officials (the Code of Ethics), establishing clear ethical standards to govern the activities of persons directing and supporting the ICC as the international governing body of the sport.

Given the importance rugby places on its values, this statement could be lifted word for word and transposed into a World Rugby code of ethics. The case for one is set out perfectly in this ICC introductory provision.

The ICC Code applies to all “Officials”, including all those holding roles in the ICC leadership, and anyone employed by the ICC, as well as representatives of National Cricket Federations in their dealings with the ICC (Art.1.2). Crucially, the ICC Code also requires each National Cricket Federation to adopt a national-level code of ethics (Art.1.3.1).

Article 2 of the ICC Code sets out the obligations of Officials, and requires them to act “honestly, fairly, impartially and in accordance with the highest ethical standards of integrity and transparency” (Art.2.1.1). It requires them to avoid “any conduct that is inconsistent with or which undermines in any way the objectives of this Code of Ethics”. Arts.2.1.2-3 prohibit harassment of any kind, as well as intimidation and discrimination.

Importantly, Art.2.2 sets out the ICC’s positions on avoiding conflict of interests – something notably lacking in World Rugby’s governance policies. Art.2.2.2 provides that an Official:

must not seek to advance any conflicting interests, such as (without limitation) the interests of a third party (such as a governmental or political body) (an ‘institutional’ conflict of interest) or his own personal interests (a ‘personal’ conflict of interest). He must avoid any situation that could lead to any actual or apparent conflict of such interests. (Emphasis Added)

Francis Kean being so closely connected to the government of Fiji is a significant conflict of interest – at least apparent, if not actual.

With respect specifically to eligibility for official positions, the ICC’s regime is somewhat thin. However, Art.4.2(B) ICC’s Constitution sets out “Director Eligibility Criteria” for those who wish to join the Board of Directors (the ICC’s equivalent of ExCo):

An individual may only be appointed or elected as a member of the Board of Directors of the ICC if he/she does not currently hold a position of employment with a Member and (in the opinion of the Board of Directors) his/her appointment or election will not reflect badly on or bring the ICC into disrepute, and if he/she meets any further objective and non-discriminatory criteria specified by the Board of Directors

While these are not the most comprehensive criteria, it at least gives some scope for the ICC to prevent the appointment/election of unscrupulous individuals; unlike World Rugby. Furthermore, Art.4.11 of the ICC Constitution provides that a Director shall automatically cease to be a Director in various circumstances, including if they become prohibited by law from being a director, becomes bankrupt, is convicted of any criminal offence in any jurisdiction (unless it is deemed “minor”), or has failed to comply with the Code of Ethics.

4. FIFA

FIFA’s processes are more robust and are not dissimilar to those of World Athletics. The FIFA Statutes and the FIFA Governance Regulations (“FGR”) require candidates for the FIFA Council (equivalent to World Rugby’s ExCo), Audit and Compliance Committee, judicial bodies, and standing committees as well as for the positions of FIFA President, chairperson/deputy chairperson and Secretary General, to pass an “eligibility check” carried out by the “Review Committee”. Those on the Review Committee, part of the Governance Committee, must pass an eligibility check carried out by the investigatory chamber of the Ethics Committee.

The eligibility check is detailed in Annexe 1 to the FGR and, though the Review Committee may conduct independent research/investigations, the focus of the check is a self-disclosure form. Set out in Art.3 of Annexe 1, the form asks questions relating to convictions, violations of the FIFA Code of Ethics, sporting sanctions, and conflicts of interest. The Review Committee then has a “wide margin of appreciation in evaluating and weighing the information gathered” (Annexe 1, Art.1.4). However, the check shall be deemed as failed if “the individual concerned is found to have committed misconduct that has a direct material connection to the position he holds or is a candidate for”.

The FIFA Internal Working Document no.3 ‘Informative note on the eligibility checks’, provides clear guidance on how the checks are applied. It also makes clear that FIFA recommends similar checks are carried out at national and confederation level.

The note explains the guidelines established by the Court of Arbitration for Sport (“CAS”) in interpreting FIFA’s eligibility rules. The following dictum from the arbitration panel in Adamu v FIFA (CAS 2011/A/2426) is particularly poignant. At paragraph 129, the panel held that a high-ranking official must:

under any circumstance appear as completely honest and beyond any suspicion. In the absence of such clean and transparent appearance by top football officials, there would be serious doubts in the mind of the football stakeholders and of the public at large as to the rectitude and integrity of football organizations as a whole. This public distrust would rapidly extend to the general perception of the authenticity of the sporting results and would destroy the essence of the sport.

Mere allegations may ground a refusal of eligibility, as long as they are “of a certain severity and should not be based on mere speculation” (Bility v FIFA, CAS 2015/A/4311). CAS has, however, upheld the wide margin of appreciation of the Review Committee to determine suitability (see Derrick v FIFA (CAS 2016/A/4579). The FIFA system is, ultimately, discretionary.

The Review Committee has established various “general standards”. Criminal convictions or disciplinary sanctions relating to offences of a financial nature have been considered incompatible with the function of FIFA committees and have thus made individuals ineligible.  As regards other types of offending, the Review Committee will consider the nature of the behaviour and the severity of sanctions imposed. A strong stance has been taken on political neutrality, upholding the obligation imposed by Art.14 of the FIFA Code of Ethics for officials to remain politically neutral. In the main, government positions at national level shall make a candidate ineligible.

Dan Leo was not strictly right to say that Francis Kean’s violent criminal record would “disqualify him automatically” under the FIFA rules, given the wide margin of appreciation, but it is likely that, on either criminal or political grounds, he would have been deemed ineligible for a position on the FIFA Council.

5. English Premier League (EPL)

The EPL and, indeed, the English Football League (“EFL”), employ what is known as the “fit and proper person test” in relation to the prospective owners and directors of its member clubs. As Richard Barham explained in the LawInSport article ‘A guide to the Owners’ and Directors’ Test in English football’, there is little transparency in the application of these rules, but they do appear to have been used to good effect.

The EPL rules are, as Barham puts it, “essentially a “pass/fail” test”, as they set out certain disqualifying events. Of relevance to the wider discussion, EPL owners/directors will not be considered “fit and proper” – and thus will be barred from holding such positions – if they are disqualified by law from being a director, have committed certain types of criminal offence, are bankrupt, are banned/suspended by any recognised sporting or professional body, have breached betting integrity rules or are prohibited from entry to the UK. As regards criminal convictions, an individual will be disqualified where an unsuspended sentence of at least 12 months’ imprisonment was imposed, for any offence involving dishonesty, specific football offences, orif they are a registered sex offender.

Of course, the disqualification categories are “detailed and developed” (Barham) and this exposition is very much a simplification. However, it is important to highlight the lack of subjectivity in the EPL rules, in contrast, to those of, for example, FIFA.

Proposals for Reform

The above analysis demonstrates that World Rugby’s governance integrity checks are totally deficient. The international governing bodies of football, athletics and cricket, as well as the IOC, have far superior policies and regulations in place to ensure the integrity of those in charge of running the respective sports. It would be remiss not to mention the fact that, to date, rugby has had a far better record as regards corruption than some of these other sports and that, perhaps, World Rugby has not felt the need to implement such policies. However, to take such an approach is to be reactive rather than proactive, and is incredibly short-sighted. Indeed, it places World Rugby in breach of its Olympic obligations.

This approach also ignores the fact that there are parts of the rugby-playing world in which the integrity of off-field matters is far from guaranteed. Corruption in the Pacific Islands is a real problem for rugby, as the Kean incident, and Samoa’s plight previously, has shown. It is a bar to their development as international rugby powers, as other Unions and sponsors will inevitably be sceptical about engaging with them in sporting and commercial ventures. Governance reforms, such as those concerning officials, would be a strong step towards protecting the place of these Unions in the modern era.

The procedures of the international governing bodies discussed above vary somewhat, with some organisations preferring an objective, automatic disqualification test and others a more subjective approach. I would propose that World Rugby looks to the World Athletics model as its starting point. Its two-stage test, with an objective and subjective element seems most appropriate, as it suggests there are certain core values on which the organisation is not willing to compromise but also recognises that there will always be some grey areas in which value judgments will be necessary. A more subjective approach, such as that used by the IOC, lacks clarity.

The automatic disqualifying criteria employed by World Athletics seem generally appropriate, but I would advocate a more stringent approach to criminal convictions (more akin to that used by the English Premier League) and those holding governmental positions, to uphold sport’s political neutrality. With respect to the more subjective element, the wording of World Athletics’ Vetting Rules again seems a good starting point, while guidance can be taken from the approach of FIFA’s Review Committee, as developed by CAS decisions. Promoting independence and avoiding conflicts of interest must be at the core.

I would advocate these rules applying to anyone wishing to be a Representative of the Council and, of course, for ExCo and World Rugby’s other committees. Although some governing bodies may only apply the requirements to their executive branch, I see no reason why they should not be extended to the Council. Unions and Associations at national/regional level should also be required to adopt equivalent procedures.

This proposal would require the creation of an independent ‘vetting panel’, along with clear eligibility rules. The vetting process should be based primarily on a disclosure form, though the panel ought to be able to do its own investigations, too. To protect the rights of individual applicants and to further guarantee due process, the vetting panels’ decision should also be subject to an appeal – first internally, to World Rugby’s judiciary, and perhaps subsequently to CAS.

On this model, Francis Kean would never have been appointed to the World Rugby Council, and Samoa’s current representative (Samoa Prime Minister Tuilaepa Malielegaoi) would no longer be eligible. Other existing representatives might also come under close scrutiny.

Furthermore, World Rugby ought to adopt a code of ethics. From the above analysis, it is clear that World Rugby is out of line with modern sports governance standards by failing to have one. World Rugby Regulation 20 alone is insufficient. The IOC Code of Ethics should certainly be the starting point, given that World Rugby’s Olympic obligations, but the codes of FIFA and the ICC are also worthy of consideration. Discussing the content of such a code could easily make another article of its own but, from the above analysis, areas of focus ought to include political neutrality, conflicts of interest and independence, as well as financial integrity and compliance with the “highest ethical standards”. The IOC’s Basic Universal Principles of Good Governance of the Olympic and Sports Movement should be implemented as far as possible.

High standards of governance are crucial not only from a ‘moral’ perspective, but also on a practical level. The public’s interest in the game of rugby will be severely damaged if its reputation is allowed to be tarnished by individuals at the heart of its international governing body which, in turn, will be prejudicial to the game’s growth. Failing to encourage the highest standards of governance and integrity at all levels of the game will only inhibit its development.

One senses that this is a crucial time for rugby. The sport must capitalise on the success of the first Rugby World Cup in Asia, and on the opportunities in other emerging markets, if it is to become a truly global sport. The challenges created by the Coronavirus pandemic only accentuate this need. Ensuring that those in charge of the game are held to the same high standards as those playing the game is one important step that the winner of this year’s World Rugby election must take.

That Francis Kean was on the Council, and was nominated for ExCo, is an embarrassment for World Rugby. It must ensure that this never happens again.