The Case of 13 Barbarians
On 8 December 2020, an independent RFU disciplinary panel (the “Panel”) chaired by Phillip Evans QC handed down its decision (the “Decision”) in the case of the 13 Barbarians players charged with breaching COVID-19 protocols. The players’ actions had resulted in the cancellation of the club’s match against England, which was due to be played on 25 October. The incident caused uproar on social media and the players were subsequently charged by the RFU with conduct prejudicial to the interest of the Union and/or Game.[1]
Each player admitted the offence, and each was sanctioned according to their own specific involvement in the rule breaches. Overall, the sanctions imposed seem fair and proportionate to the actions of the players. The Decision can be read here, and the summary of the sanctions imposed here.
The case is significant insofar as it is among the first to deal with disciplinary issues related to COVID-19 and was particularly complex owing to the number of players involved. This article will explain and analyse the Decision and will offer some suggestions as to the lessons that can be learned from it.
1. The Facts
The Barbarians squad to face England assembled on Monday 19 October. Prior to joining the camp, players were given and were required to sign a Code of Conduct (the “Code of Conduct”).[2] This required the players to comply with government/public health authority requirements regarding COVID-19 and specifically stated:[3]
Attending bars, public houses, night clubs and the like is prohibited at all times.
Please note that you will be unable to leave the hotel for any reason unless authorised by the COVID-19 Medical Lead and COVID-19 Manager.
The players were addressed shortly after their arrival into camp on the importance of the fixture and the importance of adhering to the COVID-19 compliance guidance, by the Barbarians’ management team (“Management”).[4]
On Tuesday, Chris Robshaw, Jackson Wray and Richard Wigglesworth agreed to go out for a drink in the afternoon. Mr Robshaw said that they knew this was “not technically permitted”, so they left via a fire exit, corroborated by CCTV. They initially bought some takeaway drinks from a pub before later moving inside, where they were joined by Alex Lewington, Juan Pablo Socino, Fergus McFadden and Simon Kerrod.[5]
The players returned to the hotel in two groups, between 19:15 and 19:30. None of the seven players made Management aware of their trip, and it remained undiscovered until Thursday.[6]
On Wednesday, Jackson Wray asked Management if they might be able to take over the floor of “Sergio’s” (a restaurant he knew well) but it was made clear to him that this was not allowed. Nonetheless, at around 16:45, 12 players – Chris Robshaw, Jackson Wray, Richard Wigglesworth, Alex Lewington, Juan Pablo Socino, Fergus McFadden, Sean Maitland, Tim Swinson, Calum Clark, Manu Vunipola, Tom de Glanville and Joel Kpoku – went to a bar in Mayfair and, subsequently, Sergio’s.[7]
After noticing that a number of players had not come to dinner, Management contacted Robshaw. He eventually messaged to say that they were “drinking in the suit[e], see you in the morning”.[8]
However, Manu Vunipola was intercepted by Management on his return to the hotel, visibly drunk. The other players returned via the fire exit (opened by Simon Kerrod).[9]
The next morning, Robshaw told Management that the players had left the hotel to eat at McDonald’s and had sat in Berkeley Square drinking takeaways from a nearby pub. He declined to identify the players involved. Tim Swinson and Joel Kpoku gave a similar story via WhatsApp. Kpoku told the Panel that this story had been circulated to the players on a (subsequently deleted) WhatsApp group. The plan to lie about their actions was reaffirmed later in the day during a gathering of the players in Robshaw’s hotel room.[10]
The 12 players were then interviewed by the RFU on Thursday afternoon, and each gave broadly the same story as Robshaw. None of them admitted to having been drinking inside a pub, nor dining at Sergio’s.[11]
However, that evening, Robshaw emailed a statement to the RFU on behalf of the 12 players, apologising for their actions and for “offering misleading statements”.[12] They then set out the true version of the events of Wednesday evening. No mention was made of the outing on Tuesday evening.
Further RFU investigations raised the possibility of the players having been out on Tuesday evening, so Chris Robshaw was re-interviewed on Friday morning. He then confirmed that a number of players had been out on Tuesday evening. Simon Kerrod was immediately isolated and was later interviewed, confirming his involvement. The other 12 players were re-interviewed and confirmed having given a false account.[13]
During a meeting at midday on Friday, the expert medical advice was that it was not possible to ensure that all players in the Barbarians squad were COVID-19 free and so none of them could be considered for the match on Sunday. It was thus concluded that, because it was not possible to replace the entire squad, the fixture had to be cancelled.[14]
The cancellation resulted in significant financial loss to the RFU, including wasted costs on the England training camp, lost broadcast revenue etc. It has been reported that the RFU are pursuing the Barbarians’ promoters for compensation. The Panel also noted that individuals had lost out – for example, casual workers were due to earn £15,000 collectively from the match. The Saracens players in the group of 13 Barbarians, and Mr Wigglesworth, had agreed to repay this amount.[15]
The Panel also noted that the England team had lost an opportunity to play a warm-up game prior to their competitive Autumn fixtures, and that the players’ behaviour had attracted extensive negative publicity in the national press and on social media.[16] It also highlighted the fact that tribute was to be paid to Sergeant Matt Ratana, the Metropolitan Police officer killed in the line of duty earlier this year prior to kick-off.[17]
Nonetheless, the Panel also drew attention to the fact that the players had tried to atone for their actions by giving “a great deal of their time and effort” to helping the Matt Ratana foundation.[18] Some of the players’ clubs had also taken action against them.[19]
2. The Charges
The 13 players were charged by the RFU for disciplinary offences. There were three central charges.
(1) Breaching Rule 5.12 (“conduct prejudicial to the interests of the Union and/or Game”) by visiting a pub on Tuesday 20 October with at least six other players, in breach of the Code of Conduct and the ‘Rule of Six’ established by the Health Protection (Coronavirus, Restrictions) (No.2) (England) (Amendment) Regulations 2020 (the “Government Regulations”).[20]
(2) Breaching RFU Rule 5.12 by visiting one or more bars/restaurants on Wednesday 21 October with at least six other players, in breach of the Code of Conduct and the Government Regulations.[21]
(3) Breaching RFU Rule 5.12, and/or RFU Regulation 2.4 (failing to act in good faith), and/or RFU Regulation 19.1.4 (failure to co-operate with an RFU Disciplinary Investigation) by agreeing with other players to provide the RFU with a false account of their actions on 21 October, and/or providing such a false account.[22]
The first charge applied to the seven players who left the hotel on the evening of Tuesday 20 October. The second and third charge applied to the 12 players who left the hotel on the evening of Wednesday 21 October. Mr Kerrod faced only the first charge.
Several charges were also brought against individual players for other isolated breaches of the Code of Conduct.[23]
3. Jurisdiction & Procedure
Owing to the complexity of the case, a preliminary hearing was held on 2 November, at which all parties urged the Panel to have the case dealt with as soon as reasonably practicable and following which all players (except Fergus McFadden) made clear their intention to accept the charges against them.[24]
Fergus McFadden indicated that he wished to challenge the RFU’s jurisdiction to bring proceedings against him. A separate hearing was held on that issue, on 17 November, at which the Panel concluded that the RFU did have jurisdiction.[25] That decision has not been made public, but jurisdiction will likely have been found under RFU Rule 5.12, which gives the RFU the power to discipline any:
(a) Member;
(b) Rugby Body;
(c) non-voting member of the Union;
(d) any player, official, member or employee of a Member or a Rugby Body; or
(e) any other person or body that submits to Union’s jurisdiction to discipline them.
“Rugby Body” is defined in RFU Rule 34.46 as
any association of unions, counties, clubs, players, agents, match officials, coaches or other persons or organisations connected or associated with the playing of the Game undertaken in England whether or not and/or howsoever incorporated and whether or not authorised or approved by the Union
Barbarian Football Club Limited is a Registered Society under the Co-operative and Community Benefit Societies Act 2014, with its registered address at 82 St John Street, London. The club is thus connected or associated with the playing of the Game in England and therefore fulfils the definition of a Rugby Body.
As such, the players fall under the jurisdiction of the RFU by virtue of RFU Rule 5.12(e). Whether this should be considered a legitimate basis for the imposition of sanctions, in the apparent absence of meaningful consent by the players, is a question for another day.
4. The Sanctions
The Sanctioning Process
The sanctioning process for the 13 players was particularly complicated because of the differing involvements of the players in the events in question, and because of the application of mitigating factors specific to the individuals.
The starting point was Rule 5.12, which provides that the Panel may impose “any…appropriate punishment”. RFU Regulation 19.11.7 then specifies that such punishment includes, but is not limited to “a reprimand, a financial penalty or suspension from playing”. The Panel thus had a broad discretion.
The Panel further made use of the “Return to Play Disciplinary Framework” (the “Framework”) which had been agreed by the Professional Game Board (which includes representatives from Premiership Rugby, the Championship, the RPA and the RFU) to deal with breaches of the minimum operating standards introduced into club rugby when the sport re-started after first the COVID-19 lockdown.[26]
This required the Panel to consider first whether the offending was “Intentional, Reckless or Careless” and, second, whether the consequences of the player’s actions were “High, Medium or Low”, as defined by the Framework.[27] It then directs the Panel to RFU Regulation 19.[28]
The Panel emphasised that the Framework was “just guidance”[29] and that, given the unusual nature of the case, “this judgment is not intended to be binding in relation to other Covid cases in the future”.[30] It will thus be interesting to see the extent to which this judgment is relied upon in any future cases.
Nonetheless, in arriving at an appropriate sanction, the Panel also had regard to RFU Regulation 19.11.8 which sets out the assessment of seriousness which disciplinary panels must carry out to determine the appropriate “entry point” for Foul Play sanctions.[31] The Panel considered that the sanctioning structure in Regulation 19 should be used as guidance for cases under RFU Rule 5.12, as this “allows for transparency and a consistent approach”.[32]
In relation to the appropriate “entry point” for a playing suspension, the Panel looked to Appendix 2 to RFU Regulation 19 which sets out the sanctioning guidelines for acts of Foul Play. It considered that paragraph 9.27 of Appendix 2 (a player must not “do anything that is against the spirit of good sportsmanship”) applied. Although Appendix 2 deals only with Foul Play (i.e. on-field actions), the Panel applied it here, following RFU v van Rensburg, where charges were also brought under Rule 5.12.[33]
Paragraph 9.27 provides, under its broad category of “Other” (i.e. acts contrary to good sportsmanship other than hair pulling, spitting or grabbing the genitals), for the following suspensions:
Low-end: 4 weeks
Mid-range: 8 weeks
Top-end: 12+ weeks
Max: 52 weeks
The Panel considered these starting points to be “sensible and appropriate”, though they adjusted them to “take account of totality”.[34]
Mitigation was then to be considered in accordance with RFU Regulation 19.11.11, taking factors such as the players’ admissions of guilt, remorse, hearing conduct and past disciplinary records.[35] The players’ “very compelling personal mitigation”[36] was also taken into account, as well as the notable contribution to the game of several players (particularly Chris Robshaw and Richard Wigglesworth).[37] The players’ actions since their wrongdoing were also given weight, such as the compensation paid to the casual workers, the players’ contributions to the Matt Ratana foundation, and their public apologies.[38]
In exercising their discretion, the Panel explicitly considered the principles of “totality of sanction” and proportionality.[39] It also noted that it had the flexibility to impose sanctions concurrently or consecutively,[40] and to suspend the effect of any sanction.[41]
Overall, the panel “tried to strike a proper balance between the serious nature of what these Players did and its consequences” against the mitigating factors.[42]
The Sanctions
The Panel found that the players’ conduct was clearly prejudicial to the interests of the RFU and/or the Game as it had attracted “widespread adverse publicity” and “undermined the core values of the game”. The outings “potentially put other members of the squad at risk of COVID-19” and ultimately led to the cancellation of the match, which itself had various consequences, as noted above.[43]
The Wednesday outing was considered more serious as it involved visiting multiple prohibited venues over a longer period and a number of players became intoxicated.[44] Nonetheless, the Panel noted that none of the players actually had COVID-19, nor were suspected of having it.[45]
In assessing the seriousness of the players’ misconduct, the Panel decided that there were “clear demarcation[s]”[46] to be made and divided the 13 players into four groups.
Group 1 – Alex Lewington, Chris Robshaw, Fergus McFadden, Jackson Wray, Richard Wigglesworth and Juan Pablo Socino (those who went out on both nights and gave a false account)
This group’s breach of the COVID-19 protocols was found to be “intentional or deliberate” and the consequences “high”.[47] The appropriate starting point was deemed to be a 10-week ban in respect of each of the prohibited outings, to run concurrently.[48]
This was then reduced to five weeks as a result of mitigation, three weeks of which were suspended for a year. However, the suspended sanction was conditional upon the players committing no further off-field offence, and the conduct of 50 hours of unpaid rugby community work (60 hours in the case of Juan Pablo Socino and Fergus McFadden due to their previous on-field disciplinary records).[49]
This group was also ordered to pay a total fine of four weeks’ wages, reduced to two weeks as a result of mitigation. However, this did not apply to Fergus McFadden as he is no longer a professional rugby player and is in the process of transitioning into a new career.[50]
In relation to the charge of providing a false account, the Panel pointed out that this was a “serious offence”. Nonetheless, “accepting that the primary motive for lying may have been a misguided attempt to keep the game being played” it considered the appropriate starting point for this offence to be a four-week suspension, reduced to two weeks after mitigation. This sanction is to be served “consecutively” to the sanctions for breaching the COVID-19 protocols.[51]
Group 1’s total immediate sanction was therefore: a four-week ban; a fine of two weeks’ wages; and 50/60 hours of community work.
Group 2 – Calum Clark, Sean Maitland and Tim Swinson (those who only went out on Wednesday night and gave a false account)
Again, these players were found to have acted intentionally, and the consequences of their actions high. The appropriate starting point for their (slightly less serious) offending was an eight-week suspension, reduced to four weeks after mitigation. Three weeks of that suspension were suspended, as above, with Sean Maitland and Tim Swinson ordered to conduct 50 hours of unpaid rugby community work, and Mr Clark 60 hours (owing to his previous disciplinary record).[52]
This group was ordered to pay a total fine of three weeks’ wages, reduced to 1.5 after mitigation,[53] and were banned for a further two weeks for providing a false account to the RFU.
Group 2’s total immediate sanction was: a three-week ban; a fine of 1.5 weeks’ wages; and 50/60 hours’ of community work.
Group 3 – Joel Kpoku, Manu Vunipola and Tom de Glanville (the players who went out on Wednesday night and gave a false account but were significantly younger than the players they went out with)
This group of players’ offending was considered less serious due to their age and position within the wider group of players. The appropriate starting point was deemed six weeks, reduced to three weeks after mitigation. All three weeks were suspended, as above. Each player was ordered to conduct 50 hours of unpaid rugby community work.[54]
The three were also fined two weeks’ wages, reduced to one week due to mitigation,[55] and were banned for a further two weeks for providing a false account to the RFU.
Group 3’s total immediate sanction was thus: a two-week ban; a fine of one weeks’ wages; and 50 hours of community work.
Group 4 – Simon Kerrod (the only player who went out on Tuesday night but did not provide a false account)
Finally, Simon Kerrod was found to have deliberately breached the Code of Conduct, with “high” consequences – albeit that his culpability was less. The Panel concluded that his culpability sat “between an intentional act and a reckless one”.[56]
The appropriate starting point for a playing suspension was considered four weeks, reduced to two by way of mitigation. He was also fined two weeks’ wages, reduced to one as a result of mitigation.[57]
Individual Charges
The players facing additional, individual charges for breaching the Code of Conduct were handed a further one-week suspension. However, this was held to run concurrently to the other sanctions, so does not add to the length of immediate suspension.[58]
Staggered Sanctions?
A final point of note was that raised by Counsel for the eight Saracens players: the question of whether the suspensions imposed on Saracens players could be staggered due to the disproportionately prejudicial impact that the unavailability of the players would have. The point was made that the suspension of eight players at once would “seriously prejudice” the Club’s chance of gaining promotion to the Premiership next season, which would itself have further consequences for the Players themselves.[59]
While the Panel found this “superficially attractive”, it found that RFU Regulation 19.11.16 did not allow such an approach.[60] Regulation 19.11.16 provides that a panel shall “not allow the suspended person to avoid the full consequences of their actions”[61] and shall “be effective immediately”.[62] Regulation 19.11.17(b) permits the commencement of a ban to be deferred but only where the player is “not scheduled to play (and will not be permitted to play)” – for example, “where a player is injured”.[63]
5. Analysis
Overall, the Panel appears to have handled an incredibly complex case in a fair, just and proportionate manner. The Decision highlights the broad power of the RFU to charge individuals under RFU Rule 5.12, as well as the broad discretion disciplinary panels have when dealing with such charges. It also demonstrates how panels can, and should, handle cases involving large numbers of charged individuals.
As regards the sanctions, some might feel that the players should have been banned for longer, or fined more extensively, but the Panel’s emphasis on community service seems appropriate in these circumstances – particularly given the needs of community rugby at this difficult time.
The overarching considerations of proportionality and totality were key to the Panel’s decision. For example, though they referred to paragraph 9.27 of Appendix 2 to RFU Regulation 19, the Panel did not strictly apply the entry points it sets out. It might be argued that such an approach departs from the Regulations but, in such an unprecedented case which, in any event, was not one of Foul Play, the Panel’s flexible, principle-driven approach seems appropriate. The Decision serves to underline the importance of the principles of proportionality and totality in sports disciplinary decision-making.
Nonetheless, the regulatory process for dealing with charges under RFU Rule 5.12 is open to criticism. The sanctioning process outlined by the Panel referred expressly to parts of RFU Regulation 19 which are primarily designed to deal with issues of (on-field) Foul Play, including Appendix 2. Whilst adopting the same approach in misconduct cases is desirable in the interests of transparency and consistency, as the Panel identified, it nonetheless sits somewhat uncomfortably with the wording of the regulations.
It is my view that the RFU ought to create a separate set of regulations to deal more squarely with off-field misconduct. The FA, for example, does so[64] and also has sanctioning guidelines for certain types of misconduct.[65] This reduces the uncertainty and unpredictability of a discretionary system and may also save time (and costs) during disciplinary proceedings.
A final lesson to be taken from the Decision is that the Framework ought to be published. Though the Panel referenced it throughout the Decision, the RFU has not published it. To do so would be in the interests of good governance, whilst it would also ensure predictability and certainty for players and other rugby stakeholders.
However, that such a Framework exists is a good thing. COVID-19 has created so many unusual circumstances, that it seems appropriate to have specific guidance on the relevant considerations for disciplinary matters that arise out of them. It will be interesting to see whether the Decision is cited in future COVID-19 disciplinary cases, inside and out of rugby.
Article by Ben Cisneros. Ben is a Trainee Solicitor at Morgan Sports Law. Please email ben.cisneros@morgansl.com for any legal or media enquiries.
[2] RFU v Alexander Lewington and others (8 December 2020), para 18
[3] Ibid. para 20
[4] Ibid. para 22
[5] Ibid. para 27
[6] Ibid. para 29
[7] Ibid. paras 30-32
[8] Ibid. para 34
[9] Ibid. para 35
[10] Ibid. paras 37-41
[11] Ibid. para 42
[12] Ibid. para 47
[13] Ibid. paras 49-50 and 52
[14] Ibid. para 51
[15] Ibid. paras 54-56
[16] Ibid. paras 57-58
[17] Ibid. para 108
[18] Ibid.
[19] Ibid. para 109
[20] Ibid. para 60
[21] Ibid. para 62
[22] Ibid. para 65
[23] Ibid. paras 68-72
[24] Ibid. para 2
[25] Ibid. para 3
[26] Ibid. paras 79-81
[27] Ibid. para 82
[28] Ibid. para 85
[29] Ibid. para 83
[30] Ibid. para 84
[31] Ibid. para 86
[32] Ibid. para 87
[33] Ibid. paras 88-89
[34] Ibid. para 89
[35] Ibid. paras 103-110
[36] Ibid. para 76
[37] Ibid. para 106
[38] Ibid. para 108
[39] Ibid. para 90
[40] Ibid. para 91
[41] Ibid. paras 93-94
[42] Ibid. para 76
[43] Ibid. para 97
[44] Ibid. para 98
[45] Ibid. para 99
[46] Ibid. para 100
[47] Ibid. para 111
[48] Ibid. para 112
[49] Ibid.
[50] Ibid. para 113
[51] Ibid. para 121
[52] Ibid. paras 114-116
[53] Ibid. para 117
[54] Ibid. paras 118-119
[55] Ibid. para 120
[56] Ibid. para 122
[57] Ibid. paras 122-123
[58] Ibid. para 124
[59] Ibid. para 126
[60] Ibid. para 127
[63] RFU v Lewington and others, para 128
[64] The FA Handbook, Fast Track 2, pp.213-217
[65] For example, Standard Penalty Guidelines (Offence: FA Rule E3) and Standard Sanctions and Guidelines for Aggravated Breaches
