On 21 April 2020, the RFU published the decision of an independent disciplinary panel (the “Panel”) in the matter of RFU v Rohan Janse van Rensburg, Sale Sharks and Matthew Ginvert (the “Decision”). The case, involving charges against a player, his club and his agent, concerned “tapping up” – the practice of persuading a player to leave one club for another before the end of their contract, without his club’s knowledge. This is prohibited under the RFU’s Regulations until the last 6 months of a player’s contract. It may also be actionable at common law.

It was found that Sale Sharks (“Sale”) had approached van Rensburg (the “Player”) when the South African centre was already under contract with Gloucester and convinced him to join Sale, with the help of agent Matthew Ginvert. Charges were brought after Gloucester complained to the RFU.

Each party admitted the relevant charges and, thus the Panel was focused on sanctioning, though this required a thorough examination of what had actually happened. The Player was fined £32,500 and banned for two matches; Sale were fined £20,000 and given a points deduction of 5 points suspended for two seasons; and Mr Ginvert was fined £3,750, reprimanded, and required to undertake the Agent’s Education programme.

The case was factually complex, and, in truth, no one comes out of it well. It serves as an important reminder of the rules on tapping up and of the need for players to be properly advised. Indeed, the case may not be over, as it is possible that Gloucester will now pursue a claim for damages in the courts.

This article will explain the charges brought by the RFU and the factual matrix behind them, before assessing the Panel’s approach to sanctioning and considering Gloucester’s prospects of a successful High Court challenge.

1. The Charges

For his part in the dispute, the Player was charged under RFU Rule 5.12 (conduct prejudicial to the interests of the game), something of a catch-all provision typically used to sanction off-field misconduct. The Player admitted the charge.

Sale, meanwhile, were charged under RFU Regulation 7.1 (now 7.5), which, at the relevant time, read:

No Club or Constituent Body may directly or indirectly, approach (or accept an approach by or on behalf of) any Player who is under Contract with a Club, Constituent Body or Union to induce or attempt to induce such Player to leave that Club, Constituent Body or Union unless such approach or inducement is made with the written consent of that Club, Constituent Body or Union, or is made in the final six months of the term of that Player’s Contract…

Sale admitted to breaching this provision, and Gloucester sought compensation from the club.

Mr Ginvert, the agent, was charged under RFU Regulation 8.5.2:

Registered agents must at all times conduct themselves in an ethical manner and shall observe the highest standards of integrity and fair dealing.

He admitted the charges and his part of the case was dealt with on the papers, by agreement with the RFU and the other parties.

2. The Facts

Given that each of the parties admitted the charges against them, one might have thought that the case would be a straightforward one. However, the exact circumstances were important for determining the appropriate sanction, and these were substantially in dispute.

Various witnesses were called by the RFU, including Johan Ackermann (Gloucester Head Coach) and Stephen Vaughan (Gloucester Chief Executive), while Sale called Steve Diamond (Director of Rugby) and Simon Orange (joint owner). The Player gave evidence on his own behalf. There were also various documents including emails, Whatsapp messages, contracts and transcripts of interviews in a bundle of about 1,000 pages.

The Player’s 3-Year Deal with Gloucester

On 10 October 2017, the Player signed a contract with Gloucester to play for the club from 1 November 2018 to 30 June 2021. At that time, the Player was contracted to the Golden Lions RFC (the “Lions”) – a South African Super Rugby franchise – but he sought a move to England at the end of his deal with the Lions (31 October 2018). Upon signing the Gloucester contract, he was paid an advance on his salary of £25,000.

Mr Ackermann was instrumental in securing the services of the Player for Gloucester, as he had been the coach of the Lions until August 2017 and enjoyed a “close personal relationship” with the Player (para 23 of the Decision).

This agreement was made in breach of the Player’s contract with the Lions. It was a term of his Lions contract that he should not, without the prior written agreement of the Lions, enter into discussions with other rugby clubs until four months (120 days) before the expiry of his contract – i.e. explicit provision against ‘tapping up’. That the Player signed the Gloucester contract more than a year before the expiry of his Lions contract was a clearly in breach of this provision.

The Panel also found that Mr Ackerman was aware of the 120-day rule when he secured the Player’s services for Gloucester and encouraged the Player not to alert the Lions to the existence of the deal (para 27). The Player later became aware through his agent that he had breached his Lions contract.

As explained below, the Player never played for Gloucester; but by the time of the hearing had not repaid the £25,000 advance.

The Player’s Loan Agreement with Sale

After signing for Gloucester in October 2017, the Player was contacted by Sale after an injury to one of Sale’s centres, with a view to joining the club on loan in the South African off season. The Lions were contacted and agreed to the loan. The Player signed a loan contract with Sale to play from 18 November 2017 to 18 February 2018.

These arrangements were made by Mr Ginvert – the agent of Faf de Klerk, the Player’s former Lions teammate – who later became the Player’s agent, on 10 January 2018.

The Player’s January 3-Year Deal with Sale

Having seen his potential during the loan spell, Sale became interested in signing the Player more permanently, ahead of the 2018-19 season. The Player did not disclose his contract with Gloucester at this time, having been told to keep it quiet (para 32).

The Player then stayed with Mr Ackermann over New Year’s Eve (2017) and they discussed the Player’s career. The Player spoke about how much he was enjoying his time at Sale, and Mr Ackermann made a comment about wanting players at Gloucester “who wanted to play for him” (para 33). From this, the Player understood that Mr Ackermann gave a “blessing to me that he would allow me to not join Gloucester” (para 33). However, as the Panel pointed out, even if this is what the Player understood, it “did not come near to anything approaching a legal waiver or release” (para 33).

On 2 January 2018, Mr Orange rang to Mr Vaughan and asked whether Gloucester had signed the Player. Mr Vaughan confirmed that they had but asked that the matter be kept quiet (para 34). However, after this conversation, there was a discussion between Mr Orange, Mr Diamond, Mr Ginvert and the Player on 2 January 2018 during which the Player said that nothing had been agreed with Gloucester. The Player accepted that he had lied (para 36). The Panel found that this was probably because the contract offered by Sale was for a higher sum than that he had signed with Gloucester (para 36).

The Player signed a contract with Sale on 11 January to play for the club from 1 July 2018 to 30 June 2021. Notably, this was agreed in breach not only of the 120-day provision in the Lions contract, but also in breach of his agreement to play exclusively for the Lions until 31 October 2018, his contract with Gloucester and RFU Regulation 7.1.

Sale tried to argue that there was no contract with the Player until he was in the “last three months of his Lions deal” (para 38), but this conflicted with screenshots sent between the parties, and with later communications with Gloucester. The Panel noted that this was largely irrelevant because RFU Regulation 7.1 prevents approaches to players regardless of whether a new contract results (para 39). It also recorded its dissatisfaction with comments by Mr Diamond that he would agree to sign a player but then pick one of “three or four contracts” in his desk to be binding (para 38). The Panel described this as “not a straight forward approach to making contracts with players” (para 39) – which is legal speak for “BS”.

Attempts to Settle the Dispute

In March 2018, the Player told Mr Ginvert, and thus Sale, about the contract with Gloucester. Around the same time, he came clean to Mr Ackerman about the contract with Sale. Neither club was particularly happy, and both believed that the Player was theirs. The Player claimed to both clubs that he wanted to play for them and, in fact, spoke to Mr Ackermann in February 2018 about other players wanting to join him at Gloucester (para 41).

Attempts were then made to settle the conflict, and Gloucester asked Sale (via Mr Ginvert) for an offer of compensation. In response, Mr Diamond told Mr Ginvert to ask Gloucester for compensation. Neither club was willing to concede.

The Player sought legal advice from PSB Attorneys in South Africa. They advised him that the contract with Gloucester was void, because it was entered into in breach of the 120-day provision in his Lions contract. Sale said that they were advised by JMW Solicitors LLP to the same effect.

This advice was quite clearly wrong as a matter of English law – a contract will never be void merely because one party broke another contract to make it. Such a position would run contrary to the fundamental principle of freedom of contract and would stifle competition. Remedies might lie for breaching the Lions contract, but the Player’s contract with Gloucester was perfectly valid and enforceable.

There was also an allegation made by Mr Orange that the signature on the Player’s contract with Gloucester was a forgery. The Panel deemed this “inaccurate” (para 49) and held that such an allegation was not consistent with the respect for others that is a “core value of rugby”, reflected in RFU Rule 3.2. This was a common theme throughout the Decision (see also paras 11 and 61).

In any event, the Panel pointed to RFU Regulation 1 which, for the purposes of its Regulations, defined “contract” as:

any agreement, arrangements or understanding whether formal or informal and technically whether legally enforceable or not

This broad definition is intended to ensure “contractual stability” (para 50) and means that clubs can easily find themselves in breach of Regulation 7.1. The Panel suggested that there is a need for greater information to be provided to clubs on these provisions.

The Player’s June 3-Year Deal with Sale

Despite the Player’s contract with Gloucester now being common knowledge, Sale attempted to secure a further contract with the Player, facilitated by Mr Ginvert.

The Player was continuing to play for the Lions but suffered an injury and, in discussions with the Lions, the Player made clear that he wanted a move to Sale. The Lions agreed to release the Player from the final four months of his contract, for a fee of £25,000.

On 25 June 2018, the Player signed a second 3-year deal with Sale, to play for the club from 1 July 2018 to 30 June 2021. This second contract reflected a “substantial increase” (para 52) on the sums he was offered at Gloucester, and an increase on the sums originally offered by Sale under the January contract.

By offering the Player this second contract, Sale was clearly trying to persuade him to ignore his contract with Gloucester and to play for them instead; a flagrant further breach of Regulation 7.1. Indeed, the Player began playing for Sale from the start of the 2018/19 Premiership season.

Gloucester complained about the actions of the Player, Sale and Mr Ginvert to the RFU on 8 October 2018.

World Rugby Proceedings against Gloucester

The South Africa Rugby Union subsequently complained to World Rugby on behalf of the Lions about Gloucester’s conduct, alleging that it was in breach of World Rugby Regulation 4.9.

In a decision dated 16 August 2019, the complaint was dismissed on the basis that Regulation 4.9 only prevented clubs from inducing players to leave another club before the expiry of the contract period – not afterwards. The World Rugby decision did not address the issue of Gloucester’s potential tortious liability to the Lions for inducing a breach of contract; nor did the Lions pursue the Player himself.

Notably, World Rugby has since amended Regulation 4.9 to make it clear that players may only be approached in the final six months of a player’s contract.

3. Sanctioning

The Player

There is no precedent for a breach of RFU Rule 5.12 by a player signing for two clubs. The Panel referred to Appendix 2 of RFU Regulation 19 as providing for “sanctions for breaches of RFU Rule 5.12” at paragraph 9.27 (para 57); but that is not strictly true. Paragraph 9.27 refers to sanctions for breaches of World Rugby Law 9.27 (A player must not do anything that is against the spirit of good sportsmanship), which only applies to on-field misconduct. Appendix 2 does not, therefore, strictly apply to charges under RFU Rule 5.12 and, thus, an “assessment of seriousness” to determine the “entry point” is not necessary, in accordance with RFU Regulation 19.11.8.

Nonetheless, the Panel used paragraph 9.27 Appendix 2 to guide its discretion and followed the sanctioning methodology used in foul play hearings (discussed here). In the absence of any other precedent or guidance, this does not seem inappropriate, even though they were not strictly bound by it.

Under the category of “other” misconduct under paragraph 9.27, the range of playing suspensions is “low-end 4 weeks; mid-range 8 weeks; top-end 12 plus weeks, up to a maximum of 52 weeks”.

In assessing the seriousness of the Player’s misconduct, the Panel emphasised that he deliberately entered a contract with Sale despite having signed for Gloucester, with financial motivation; that he lied to Sale when asked about his contract with Gloucester; that he claimed he wanted to play for both clubs, which “significantly contributed to the rancour” between the parties (para 59); and that he had not paid back the £25,000 salary advance from Gloucester despite abandoning the contract.

In mitigation, the Panel noted that the Player had suffered three “serious setbacks” in 2017: the death of his mother, a serious injury and an armed robbery (para 60). These were the “catalyst for his desire to move from South Africa”. It also pointed to the fact the Player had been asked to keep the contract with Gloucester quiet, that he was young and “did not appear to be commercially sophisticated” (para 60).

The Panel decided that a playing suspension was appropriate because the Player had “undermined the core values of the game” by signing for two clubs at once. It held that this was “only just” a low-end offence (i.e. it could have been more serious), when considering all the circumstances, so the starting point was a 4-week ban (para 61). The Panel then followed the approach of disciplinary panels in foul play cases (under RFU Regulation 19.11.12), reducing the sanction by 50% due to his full co-operation with the disciplinary process and his admission of guilt (para 62).

However, a financial punishment was also deemed appropriate. The Panel held that this should include the £25,000 paid to the Player by Gloucester, which had not been repaid, and a sum to reflect the fact that the Player profited from his wrongdoing (para 64). It decided that a fine of £32,500 should be imposed, of which £25,000 should be paid to Gloucester.

Sale Sharks – Sanctions

In relation to Sale, the RFU argued that a points deduction and financial penalty be imposed.

In assessing the seriousness of the breach of RFU Regulation 7.1, the Panel held that Sale “should have made some attempt to find out the truth of the situation by making further inquiries” after being given conflicting information from Gloucester and the Player about the existence of a contract with Gloucester (para 67). It was mitigating that the Player had lied to Sale and that Sale admitted their wrongdoing but, in June 2018, Sale clearly contracted with the Player in full knowledge of his deal with Gloucester.

On the question of a points deduction, the Panel noted that this jurisdiction “should always be carefully exercised” because it “distorts the results of the rugby competition on the field” and thus “increases incentives for clubs to seek points deductions from one another” and “devalue[s] competitions for supporters” (para 73). It therefore held that points sanctions should be used only where the effect of the regulatory breach has been to “distort competition on the field”. Such a distortion had happened here, as Sale did obtain a “competitive advantage” by getting the Player to play for them and not Gloucester, a rival club (para 74).

The Panel decided on a 5-point deduction suspended for two seasons on the condition that Sale does not act in breach of RFU Regulation 7, and a fine of £20,000 was also imposed.

Sale Sharks – Compensation to Gloucester?

Aside from the question of sanction, Gloucester argued that Sale should be ordered to pay Gloucester compensation. Regulation 19.11.17(b) gives the Panel the power to include compensation in any disciplinary sanction.

Here, the question related to the sum Sale would have had to pay Gloucester for them to release the Player from his contract – i.e. a transfer fee. Gloucester presented evidence of a “developing practice for transfer fees to be paid by a club to obtain the services of a player before the end of his contract with the other club” (para 70), and that these sums depend upon the perceived strengths of the player, the need of a club to obtain a player in a particular position, the length of time left on the contract, the buying club’s financial resources, and whether the player had been developed by the selling club. In other words, a rugby transfer market is beginning to emerge. Indeed, Sale had paid a fee to the Lions to release the Player from his contract with them.

However, the Panel declined to award compensation. First, it considered that it did not have “sufficient information to make an award which would be fair” and, second, it noted that previous awards of compensation in RFU disciplinary cases have all been under £20,000 (para 71). Here, Gloucester claimed over £400,000. For an award of such a sum, the Panel said that greater proof of loss is required. On the basis of the information available, the Panel would only have been able to make an “educated guess” (para 71).

Gloucester pointed to the approach taken by the Football Association in similar cases, but the Panel emphasised football’s “relatively sophisticated regulatory structure” governing awards of such transfer fees. The Panel suggested that “awards of any significant size merit their own proceedings”, and thus left Gloucester free to pursue a claim for compensation against Sale in the High Court.

This seems to me an appropriate stance to take, although perhaps the Panel could have sought greater information from the parties, in order to make a valuation of its own.

Mr Ginvert

Mr Ginvert and the RFU made agreed submissions on the sanction to be imposed upon him, as he accepted that his conduct after discovering the Player’s contract with Gloucester “did not reflect the highest standards of fair dealing” (para 78). In particular, he was part of the strategy to broker a deal between Sale and the Player in June 2018, ignoring the Player’s deal with Gloucester.

The Panel accepted that a reprimand, a fine of £3,750 and requiring Mr Ginvert to undertake the Agent’s Education programme was a necessary and proportionate sanction.

4. A High Court Challenge?

Given that Gloucester’s claim for compensation failed in front of the Panel, it may pursue a claim in the High Court. Several causes of action may arise – (i) a claim for breach of contract against the Player; (ii) a claim in the tort of inducing a breach of contract, against Sale (and Mr Ginvert); and (iii) a claim against Sale (and Mr Ginvert) for breach of contract (the contract being the RFU Regulations).

(i) Breach of Contract by the Player

The first and most straightforward claim would be for Gloucester to sue the Player for breach of contract. The Player had agreed to play exclusively for Gloucester from 1 November 2018 to 30 June 2021 and failed to do so. This is a straightforward breach of contract, and Gloucester would be able to claim damages if they could prove that the breach caused them loss.

The loss would be the value of the Player to Gloucester. This would be reduced by the amount Gloucester saved by not having to pay the Player’s wages, but perhaps increased for any expenses Gloucester incurred in finding and paying a replacement player. Indeed, the losses may be limited by the fact that the club was able to sign Scotland international centre Chris Harris in June 2019, taking the place in the squad that the Player would presumably have otherwise filled.

As the Panel observed, calculating a rugby player’s value is not straightforward and would require a thorough and detailed analysis of similar deals and of the emerging rugby transfer market itself. The fact that the transfer fee paid by Sale to the Lions was arrived at without “any particular science to the calculation” (para 51) shows that this could be difficult. Gloucester claimed a sum in excess of £400,000, but this was disputed by Sale.

Such disputes are more common in football, and Art.17(1) of FIFA’s Regulations on the Status and Transfer of Players provides that:

compensation…shall be calculated with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria. These criteria shall include, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the former club

In FC Shaktar Donetsk v Matuzalem [2008], the Court of Arbitration for sport, interpreting this regulation, held that the value of the player’s services to the club, his status and standing at the club, his behaviour and the timing of the breach should all be taken into account, and that the sum should then be reduced by the sum saved by the club in not having to pay the player.

These factors and those cited by the Panel in the instant case would certainly be relevant to any valuation of damages, but a court decision on this matter would be breaking new ground for rugby.

However, the sums claimed may not be readily recoverable from the Player. The club is more likely to have the resources to pay or an insurance policy to cover the liability, and thus a claim would likely be brought against Sale as well, or in the alternative.

(ii) Inducing Breach of Contract

The second possible claim would be an action in tort for inducing a breach of contract. This tort is committed where the defendant intentionally induces a breach of contract between the claimant and a third party, with knowledge of the contract – though they need not have intended to cause damage to the claimant (Lumley v Gye (1853) 118 ER 749; OBG v Allan [2007] UKHL 21).

By entering a contract with the Player in January 2018, Sale induced the Player to break his contract with Gloucester. Though they may not have known about the Gloucester contract at first, Sale’s conduct nonetheless persuaded or encouraged (OBG v Allan, para 36) the Player to breach his contract with Gloucester – he never fulfilled any of his obligations under that contract.

The key issue is whether Sale knew about the existence of the Gloucester contract and intended to induce the breach. The two questions are clearly intertwined. Sale cannot have intended to induce the breach if they did not know there was a contract. Importantly, the test for determining whether the defendant had the requisite knowledge is a subjective one. In other words, Gloucester would have to prove that Sale actually knew about the Gloucester contract (Mainstream Properties v Young) at the time of inducing the breach, or was recklessly indifferent to the existence of the contract – honest doubt as to the existence of the contract is insufficient.

Sale would likely be able to argue that it did not have “knowledge” of the contract with Gloucester in January 2018 because although Mr Vaughan had said there was a contract, the Player assured them that the deal had not been done. They may thus have honestly doubted that there was a contract – presumably, Sale thought Mr Vaughan was gaming them in an attempt to beat them to the Player’s signature. Sale may thus be able to show there was “honest doubt” as to the existence of a contract at that time.

However, in March 2018, Mr Ginvert and Sale became aware of the Gloucester contract. The recent High Court case of The Beans Group Ltd v MyUnidays Ltd [2019] decided that liability may arise where a transaction inconsistent with another contract is continued knowingly. In other words, even if liability would not arise at first because the defendant did not know of the other contract, liability may arise later if they are made aware of the contract’s existence. This principle is somewhat novel and un-tested but, on this basis, Sale may be liable.

Alternatively, Sale may be liable because they further induced the Player to breach his contract with Gloucester by offering him an even higher salary under a new contract in June 2018, once they knew about the Gloucester contract. This would be a more straightforward route to establishing liability.

Nonetheless, Sale might still argue that they had an honest doubt about the existence of a contract, or that they did not intend to procure a breach, because they had been told by legal advisers that the Gloucester contract was invalid. The Court of Appeal judgments in both Allen v Dodd & Co Ltd and Meretz Investments v ACP suggest that relying on legal advice in good faith will typically protect a defendant from liability for inducing a breach of contract. As Lewison LJ put it in Allen v Dodd (para 37):

If the defendant honestly believes that the act that he procures will not amount to a breach of contract, he is not liable in tort even if his belief is mistaken in law.

Of course, Sale will still have to prove that they genuinely and honestly believed there was no binding contract and would need to give detailed evidence of the advice they were given. The fact that they offered the Player an enhanced salary in June 2018 would tend to suggest a belief in the Gloucester contract being binding, as they seemed to be convincing the Player to abandon the deal with Gloucester.

It is thus suggested that Gloucester have a reasonable prospect of succeeding in a claim for inducing breach of contract. If successful, the club would be able to claim damages, as above.

This claim could also be brought against Mr Ginvert, owing to his role in procuring the breach of contract by facilitating the June 2018 deal.

(iii) Breach of Contract by Sale

A third route to damages may lie in an action for breach of contract against Sale, by construing RFU Regulation 7.1 as a contractual obligation between Gloucester and Sale.

Sports regulations are readily construed as contracts by the courts and, though they primarily form a contract between each club and the RFU, there is judicial authority to suggest that such arrangements can also be construed as a contract between the participant clubs themselves.

The Satanita [1897] AC 59 was a case involving a yacht race where the Court of Appeal held that by entering a competition, each participant had undertaken to every other participant that they would abide by the competition rules.

Three recent cases have considered this scenario and have each given varying formulations of the test to be applied. Davies v Nottingham Forest FC [2017] EWHC 2095 applied the Satanita principle in its original form, while Bony v Kacou [2017] confined it to cases where it was “necessary” to imply a contract between the participants. The subsequent decision in Mercato Sports (UK) Limited & McKay v Everton FC [2018] found a middle way, holding that a horizontal contract could be implied in the appropriate circumstances, depending on the “nature of their dealings with the other parties” on a “careful and fact sensitive analysis”. The court in Mercato also suggested that it is less likely for there to be a contract “the further removed the activity in question is from the actual playing of sport”.

However, as Shane Sibbel has pointed out in an insightful article on this issue, the Mercato middle ground is far from satisfactory. Indeed, the distinction between on-field and off-field activities seems flawed as a matter of principle. The Satanita is not based upon implication but rests on the multilateral nature of the contract in question. As such, the factual inquiry premised in Bony and Mercato is misplaced: wherever a party agrees to a set of rules which are expressed to be multilateral, in the knowledge that other parties are agreeing to be so bound, a contract will exist between each of the participant parties.

This view is also supported on authority – The Satanita was a Court of Appeal decision affirmed by the House of Lords and has been applied to the modern sporting context in Australia (Raguz v Sullivan (2000) 50 NSWLR 236). It was also accepted by the arbitration panel in Sheffield United FC Ltd v West Ham United FC plc [2009] ISLR SLR 25.

The nature of RFU Regulation 7.1 is, to me, multilateral and, therefore, I would argue that it can be considered contractual as between Gloucester and Sale.

Of course, Sale has admitted breaching RFU Regulation 7.1 – so it has already admitted a breach of contract. The Panel merely declined to award compensation as it did not feel competent to do so. A court would be able to award damages on the same basis as discussed at (i) above.

That there is no need to prove knowledge or intent for this breach of contract claim would make it significantly more straightforward than the tort claim – as long as the existence of a contract is accepted!

Lastly, a breach of contract claim could also be brought against Mr Ginvert – though it might be more difficult to show that RFU Regulation 8.5.2 on the conduct of agents is multilateral.

5. Conclusions

The van Rensburg case is a fascinating one. It gives insight into the murky world of contract negotiations and player transfers and highlights an emerging rugby transfer market. It also highlights the need for all those involved in the professional game to be more aware of the rules and regulations governing player movement and, in particular, the practice of tapping up.

The case is also fascinating because it is the first of its kind in rugby, and because it may yet yield a seminal court decision. As rugby becomes increasingly professional and commercialised, these sorts of dispute may become more common. The sport’s authorities should perhaps give some thought to creating a set of principles and/or a forum for the full resolution of transfer disputes so that it is able to resolve these disputes properly without the parties having to resort to alternative and potentially more expensive means of dispute resolution.

Nonetheless, as Daniel Geey points out in his book ‘Done Deal’, tapping up is, in practice, “difficult to police because formal complaints are rarely lodged”. Indeed, this only came to light because Gloucester made a complaint. Whether this case encourages others to come forward in future remains to be seen.

There are also important principles to be taken out of the Decision, as it illustrates the breadth of RFU Rule 5.12, suggests that the sanctioning process in RFU misconduct cases should typically mirror the process used in foul play disciplinary decisions, and makes some useful comments about the use of points deductions. It was also interesting to see the Panel refer frequently to the “values” of rugby. Though this is important for rugby, as a sport that prides itself on its values, such an approach may become more difficult to sustain as the game becomes more commercial.

Finally, the sanctions imposed by the Panel seem appropriate and proportionate, and the financial penalties will be felt more keenly by the parties given the current economic situation. Indeed, none of them emerge from this episode particularly well. Gloucester were fortunate not to be sanctioned by World Rugby and, along with Sale, could yet face a civil claim of their own from the Lions.