Over the weekend of 28 June 2020, a public disagreement broke out between two Premiership rugby clubs over the services of coach George Skivington. Mr Skivington was, until Saturday, an assistant coach at London Irish Rugby Football Club (“London Irish”). However, on Saturday, Gloucester Rugby (“Gloucester”) announced that Mr Skivington had been appointed as its new Head Coach. It soon became clear that a dispute was brewing between the two clubs.

After Gloucester’s announcement, London Irish put out a statement saying that it was “reserving our rights to consider all our options” over the signing, as it considered Mr Skivington to still be under contract with the club until June 2021. London Irish stated that no contact had been made with it by Gloucester, formally or informally. The club thus alleged a breach of the Premiership Regulations and hinted at possible further legal action.

The allegation is that Gloucester induced Mr Skivington to leave London Irish – sometimes known as “tapping up” – which is prohibited in the Premiership and may be legally actionable. The very same issue arose in the recent case involving Gloucester, RFU v Sale Sharks, Rohan Janse van Rensburg and Matthew Ginvert [2020], discussed in detail here. Since the decision in that case, it has been reported that Gloucester are suing Sale Sharks in relation to the “tapping up” of centre van Rensburg.

Yet, on Sunday, Gloucester responded by stating that it understood Mr Skivington “was not restricted contractually from joining the club” but that it nevertheless “directly and straightforwardly sought clarification of London Irish’s position”. According to Gloucester, “clarification has not been forthcoming”. The club also expressed its disappointment that London Irish had chosen to air its concerns so publicly and urged it to “engage…through the appropriate channels”.

This article will seek to explain the regulatory position in relation to the dispute over Mr Skivington and will briefly set out the possible courses of action that might be taken, via Premiership Rugby (“PRL”), the RFU and the courts.

The Premiership Regulations

The relevant regulations are the Premiership Regulations 2019-20 (the “Regulations”), available here. The London Irish statement referred to “the Premiership Rugby Code of Conduct” and “the Premiership Rugby governance protocols”. Though a “Code of Conduct” is referred to in the Regulations (see Regulation 1.1), no such document appears online. It is assumed, therefore, that the only applicable rules are those in the Regulations.

Regulation 12.5(a) states:

Except with the prior written approval of the relevant Club, no Club, Official or Player shall, directly or indirectly, induce or attempt to induce a contracted Player, member of coaching staff or other contracted person to leave, for any purpose whatsoever, such Club for which he is registered or a member or employee, provided always that such prior written approval shall not be required in the final six months of the term of any contract.

The position is thus clear; if Mr Skivington was under contract with London Irish, and that contract had more than six months of its term remaining, Gloucester will have breached Regulation 12.5(a) if it induced him to leave London Irish, directly or indirectly.

Regulation 12.6(a) states:

Any dispute or difference in relation to Player’s [sic] contracts not otherwise expressly provided for in these Regulations between Clubs shall be referred in writing to the RFU or a Panel designated by the RFU for consideration and adjudication. The Club may request a personal hearing…

Though this provision refers to “Player’s [sic] contracts”, the intention appears to be that any contractual dispute in relation to Regulation 12 – labelled “Players Contract of Service, Discipline, Insurance”, despite the fact that it also refers to coaching staff contracts – shall be referred to the RFU.

RFU Regulation 19 (Discipline) would apply to such proceedings, given that it is the regulation under which RFU adjudicatory/disciplinary panels are appointed. No specific mention is made of Regulation 12.5(a) in RFU Regulation 19, but RFU Regulation 19.1.8 provides that:

In the event that a particular incident takes place for which there is no provision in RFU Regulation 19 including (but not limited to) procedure, jurisdiction or sanction then the Disciplinary Panel or Appeal Panel may take such action that it considers appropriate in the circumstances in accordance with general principles of natural justice and fairness.

In accordance with such principles, it is likely that an RFU-appointed panel would take an approach to mirror that taken in the van Rensburg case. In van Rensburg, the relevant disciplinary charge was brought under RFU Regulation 7.5, which is written in materially the same terms as Regulation 12.5(a), albeit that it only applies to approaches to players.

The dispute between Gloucester and London Irish is materially the same as in that case, albeit that it concerns a coach, not a player. Thus, although RFU Regulation 7 does not strictly apply, adopting a similar approach to procedure and sanctioning (i.e. using RFU Regulation 19.11) would accord with the principles of natural justice and fairness.

It is worth recalling that, in van Rensburg, Sale Sharks were fined £20,000 and given a 5-league point deduction, suspended for two years, after the club admitted breaching RFU Regulation 7.5 in relation to tapping up.

Have the Premiership Regulations been breached?

At present, it is not possible to say with certainty whether or not there has been a breach of the Regulations. However, based on the allegations made, the possibility of such a breach can be considered.

It appears to be common ground between the clubs that no “prior written approval” was given by London Irish for Gloucester to deal with Mr Skivington. Two questions thus remain to determine whether a breach of Regulation 12.5(a) has been committed: (i) was Mr Skivington under contract with London Irish, the term of which had more than six months still to run; and (ii) did Gloucester induce him to leave London Irish?

(i) Was Mr Skivington under contract with London Irish?

London Irish have stated that Mr Skivington was under contract with the club until June 2021. Their statement added that he had not served the club notice to terminate his contract, and that the club had not breached any terms of his contract (which may have allowed Mr Skivington to terminate).

On the basis of this information, there thus appears to be a contract – with more than six months of its term remaining.

Gloucester stated that it understood that Mr Skivington “was not restricted contractually from joining the club”. This would suggest that Gloucester understood that Mr Skivington was no longer under contract with London Irish – the very existence of a contract with London Irish (beyond 30 June 2020, presumably) would prevent him from immediately joining Gloucester.

Some have speculated that London Irish may have breached Mr Skivington’s contract in imposing pay cuts during the Coronavirus pandemic. If the club reduced his pay without his consent, it would have committed a repudiatory breach of contract. This would allow Mr Skivington to terminate the contract – and leave to join another club.

However, if Mr Skivington consented to the reduction – expressly or impliedly – he would have no such right to terminate. Consent may be implied where an employee raises no opposition to a variation in their contractual terms, or where they continue to work as normal under the varied terms, though such an implied acceptance would need to be unequivocal (Abrahall v Nottingham City Council [2018]). Thus, if Mr Skivington’s pay was reduced unilaterally and he did not protest, or continued to work as normal, his contract with London Irish might be deemed to subsist.

Alternatively, it could be that Mr Skivington misled Gloucester as to the status of his contract with London Irish – as Mr van Rensburg did to Sale Sharks – or that Gloucester’s statement is itself misleading as to what they truly understood at the time. If Mr Skivington did so mislead Gloucester, he might face a charge under RFU Rule 5.12 for bringing the game into disrepute, as Mr van Rensburg did.

For the purposes of determining a breach of Regulation 12.5(a), it is irrelevant that Gloucester sought clarification from London Irish. Though this would be relevant to any sanction imposed and to the civil claim, Gloucester will still have breached Regulation 12.5 despite their attempts to contact London Irish, if there was a contract in place and they did in fact induce Mr Skivington to leave the club. The ‘offence’ under Regulation 12.5(a) does not require any form of intention – it is one of strict liability.

(ii) Was there an inducement?

Even if there was a valid contract between Mr Skivington and London Irish at the relevant time, there will only be a breach of Regulation 12.5(a) if Gloucester, directly or indirectly, induced or attempted to induce Mr Skivington to leave London Irish.

If Gloucester approached Mr Skivington about the role, directly or indirectly, there would quite clearly be an inducement (or attempted inducement) of him leaving London Irish.

However, Gloucester’s statement indicated that the club had “openly advertised its Head Coach role in the usual way”. It is not entirely clear what this means, but it may well be that Mr Skivington applied for the role, rather than Gloucester approaching him. Nonetheless, I would argue that there would still be an inducement in such a scenario. Even if Mr Skivington applied, Gloucester induced him to leave London Irish by offering him the role. The act of offering Mr Skivington the job, in my view, amounts to an inducement for him to leave London Irish (if indeed he was still under contract with London Irish!).

It thus seems likely that there will have been an inducement by Gloucester.

Given that there appears to have been no “prior written approval” for Gloucester to induce Mr Skivington to leave London Irish, if he did remain under contract with London Irish, and that contract had more than six months of its term remaining, it is likely that Gloucester will have committed a breach of Regulation 12.5(a).

Sanctions and Compensation

If the matter was referred to an RFU disciplinary panel for resolution, and if a breach of Regulation 12.5(a) by Gloucester is proved by the RFU, it may impose sanctions.

Under RFU Regulation 19.11.7, the sanctions available for a breach of this nature include, though are not limited to:

(a) for a person, a reprimand, a financial penalty or suspension from playing, coaching and/or administration.

(b) for a Club, in addition to the sanction set out in RFU Regulation 19.11.7(a), financial or other compensation, deduction of league points or relegation, exclusion or disqualification from any competition…

Following the approach of the panel in van Rensburg, a panel would need to conduct an “assessment of seriousness” (RFU Regulation 19.11.8), effectively considering the aggravating and mitigating factors of the case. It would be mitigating if Gloucester had attempted to contact London Irish but the club had not engaged with them, albeit that this would not entirely excuse the breach – the Regulations specifically require “prior written approval”.

Likewise, it would be significantly mitigating if Gloucester had been told by Mr Skivington that he was not under contract, or if it had obtained legal advice to that effect. In that scenario, any breach of Regulation 12.5(a) would not have been in any way intentional.

The likely sanctions, if any, following van Rensburg, would be a fine and/or some form of points deduction – if a breach was proved. Sanctioning is, of course, hugely fact-dependent and the full facts are not yet known.

As regards compensation, the panel in van Rensburg declined to make an award, as it considered that it did not have sufficient information available to be able to properly value any losses incurred. Here, London Irish would be seeking compensation from the club to reflect the loss of its “respected” and “ambitious” assistant coach, and the cost of finding a replacement at short notice. Given the approach in van Rensburg, it seems unlikely that a panel would award compensation here unless perhaps London Irish were able to present a comprehensive expert valuation.

It is also worth noting that Mr Skivington could also be sanctioned himself, if it is considered that breaching his contract with London Irish amounts to conduct prejudicial to the interests of the Game under RFU 5.12, as in van Rensburg.

A High Court Claim?

London Irish might also consider bringing a civil claim in the courts – or at least threaten to, in order to obtain some compensation from Gloucester for the loss of Mr Skivington’s services.

As discussed in my article on van Rensburg, there are three possible claims which a club might seek to bring in the context of ‘tapping up’: (i) a claim in the tort of inducing breach of contract, (ii) a claim for breach of the Regulations and (iii) a claim for breach of contract against the player/coach.

The tort claim against Gloucester would require proof of intentional inducement and, thus, knowledge of a contract between Mr Skivington and London Irish. A claim for breach of the Regulations (breach of contract) might be more straightforward – if loss can be proved. Alternatively, London Irish might bring a claim against Mr Skivington himself for breaching his contract of employment and causing them loss.

For more detailed analysis of these causes of action, please click here.

Nonetheless, it is important to note that the effect of Regulation 12.6(a) is to make the RFU judiciary the primary forum for dispute resolution of this nature. Thus, London Irish would be best advised to pursue a course of action via PRL and the RFU before considering the civil route.

Conclusions

The dispute over George Skivington is just the latest Premiership contractual dispute to make headlines. Gloucester may well have breached the Premiership Regulations in signing its new Head Coach, and disciplinary proceedings may yet follow. Whether any sanction would be imposed depends upon the exact facts, which are not yet known, but the headlines are certainly unwanted.

Indeed, given the public nature of this dispute to date, both clubs ought to be aware of RFU Rule 5.12 (conduct prejudicial to the interests of the Game) and Premiership Regulation 16.1(a), which states that:

No Club…shall by any means whatsoever unfairly criticise, disparage, belittle or discredit any other Club…

It would be surprising, and disappointing, if this public war of words between the clubs continued.