On 11 February, Jonathan Joseph, Elliott Stooke and Gabriel Oghre were sanctioned by the RFU for breaching the UK Government’s COVID-19 regulations and rugby’s COVID-19 Minimum Operating Standards.

In what is now rugby’s second COVID-19 disciplinary case (see previously the Barbarians case), the RFU charged the players under RFU Rule 5.12 for “conduct which is prejudicial to the interests of the Union or the Game”, and the players admitted all charges. The hearing before an independent RFU Disciplinary Panel thus dealt only with the issue of sanction.

Joseph, of Bath Rugby, was banned for two weeks, while Stooke and Oghre, of Bath Rugby and Wasps respectively, were banned for three weeks. These sanctions were imposed in addition to sanctions imposed by the players’ clubs.

The players appealed against the Disciplinary Panel’s decision (the “Decision”), and there was a subsequent hearing before an independent RFU Appeal Panel. However, the Decision was upheld.

This article will briefly explain the case and will analyse both the Decision and the Appeal Panel’s decision (the “Appeal Decision”). On balance, though the sanctions might be considered somewhat harsh (particularly in the cases of Stooke and Oghre), they are not clearly disproportionate to the players’ conduct, and send a strong message to all players in England that such breaches will not be tolerated.

1. The Facts

On the evening of 23 January 2021, the day after the England Six Nations squad had been announced, the three players met at Joseph’s home, where they socialized, ate, played cards and drank alcohol.[1]

Oghre was in Bath visiting (or staying with, it was not clear) his mother and that he went to Joseph’s house in the late afternoon. Stooke joined the pair later.

At approximately 3am on 24 January, Stooke and Oghre left Joseph’s home in Stooke’s car. Stooke dropped Oghre in the centre of Bath, after travelling for about 3 miles, before subsequently becoming involved in a minor road traffic accident. The police attended and Stooke was found to have been over the alcohol driving limit.

Having first been taken to hospital as a precaution, Stooke was then arrested and interviewed by the police.  He has been charged with an offence of Driving with Excess Alcohol and is due to appear before Bath Magistrates’ Court on 24^th February.

It was only because of Stooke’s arrest that Bath Rugby came to be aware of the COVID-19-related breaches. Bath then informed Wasps of Oghre’s involvement.

2. The Rules

At the time of these events there was (and still is) a National Lockdown in place in England. The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 make clear that people cannot leave their home except where necessary for a permitted reason and that people cannot meet other people they do not live with, or have not formed a support bubble with, unless for a permitted reason. Socialising is not a permitted reason.

To enable professional rugby to return, as required by Government, Premiership Rugby, together with the RFU and the RPA developed Minimum Operating Standards (the “MOS”). This is supported by the latest guidance from Government, Public Health England, the World Health Organisation and World Rugby. Though the MOS have not be made publicly available, the relevant section was cited in the Decision.[2]

Paragraph 1.6 of Stage 2 of the MOS provides that:

“All players and staff must adhere to UK government guidance at all times outside of the training environment. The extent to which players and staff adhere to guidelines and standards both inside and outside of the training environment has a direct impact on the risk of COVID-19 transmission to themselves and the close contacts around them.” (Emphasis added)

The players’ actions, as set out above, quite clearly breached the National Lockdown rules, and the MOS.

3. The Club Disciplinary Procedures

Upon discovering the breaches, each club held their own disciplinary process.[3]

Wasps held a hearing for Oghre’s case on 29 January, where the player accepted that he had broken the governmental lockdown rules. He was given a one-week suspension by the club, fined two weeks’ wages and ordered to undertake 10 hours of community service.

Bath held their disciplinary hearings on 2 February, where Joseph and Stooke were both suspended for one week and were fined two weeks’ wages. Stooke was also given a first written warning and ordered to do 15 hours of community service.

4. The RFU Charges

As noted above, the RFU charged the players under the very broad RFU Rule 5.12 (conduct prejudicial to the interests of the Union or the Game).[4]

Joseph with charged with one offence under Rule 5.12, for hosting a social gathering with two other players, from two different households, in breach of Governmental guidance and paragraph 1.6 of the Stage 2 of the MOS.

Stooke and Oghre were charged with two offences under Rule 5.12: (i) attending a social gathering with two other players, from two different households, and (ii) sharing a car with another player, from a different household, in breach of Governmental guidance and paragraph 1.6 of Stage 2 of the MOS.

The Disciplinary Panel noted that although Stooke and Oghre could have been charged also for simply leaving their homes to attend the gathering, this was merely a matter for the RFU.[5]

5. The Interim Suspensions

The hearing before the Disciplinary Panel was first convened on 4 February. However, certain documentation had been redacted to eliminate from consideration the circumstances surrounding Mr Stooke’s road traffic accident. Though the RFU had supported the player’s approach, the Disciplinary Panel considered that this unredacted information was necessary for a proper hearing to be held and thus adjourned the hearing, to allow the parties to further prepare.[6]

Consequently, an Interim Suspension Order[7] was imposed on Joseph and Stooke until the date of the adjourned hearing (6 days later). This meant that they were unable to play the following weekend – though they had already been suspended by their clubs such that they would not have played in any event.

No Interim Suspension Order was imposed on Oghre because he had already served the one-match suspension imposed by his club. It was thus considered unfair to suspend him further, presumably given that it was plausible that the final ban might not exceed one week.

6. The RFU Disciplinary Panel Decision

6.1 The Approach to Sanctioning

The Disciplinary Panel adopted the same approach as the panel in the Barbarians COVID-19 disciplinary case (discussed in detail here).[8]

The starting point is Rule 5.12, but this simply provides that a panel may impose “any…appropriate punishment”. The panel’s discretion is thus very broad indeed. However, the Professional Game Board has created a Return to Play Disciplinary Framework (the “Framework”) to deal with breaches of the MOS. The approach set out by the Barbarians panel thus considered the Framework, which contains various factors for consideration, but also the provisions of RFU Regulation 19 typically used in Foul Play cases.[9]

The key parts of the Framework ask whether the conduct was intentional, reckless or careless,[10] and whether the consequences of the breach were low, medium or high.[11]

When assessing the consequences, the Framework lists factors such as the harm caused to any individual, the impact on the competition or any clubs, and the “reputational damage to the game”.[12] Relevant factors in Regulation 19.11.8 include whether the offending was intentional or reckless, the gravity of the player’s actions, and the level of participation and premeditation.

The Framework (which has been published since the Barbarians case) also sets out the entry points for sanctioning,[13] and the usual approach of applying aggravating or mitigating factors to increase or reduce the sanction (see Regulation 19.11.10) is then applied.

6.2 The Sanctions

The players accepted that their conduct had been intentional. The primary question for the Disciplinary Panel was thus whether the consequences of their offending had been low, medium or high (akin to the assessment of seriousness in Foul Play cases).

The players, and indeed the RFU, submitted that the consequences were “low”.[14] However, the Disciplinary Panel rejected that submission and held that the consequences were “at least medium”.[15] In so finding, the Disciplinary Panel held that the players’ actions had a “direct impact on the risk of COVID-19 transmission to themselves and the close contacts around them”[16] and that the case “will undoubtedly cause reputational damage to the game”.[17]

The Disciplinary Panel was also influenced by the fact that these events had taken place during a National Lockdown, describing this element of the context as a “highly important one”.[18] The Decision emphasised the devastating impact that the COVID-19 pandemic has had, noting:

“At the time of this judgment, over 115,000 people have lost their lives in this country alone; 2,600,000 people have died worldwide. The National Health Service is under immense pressure. Businesses have been ruined. Millions of lives have been affected. People have not been able to attend funerals of loved ones or share last moments before their relatives die.”[19]

The Disciplinary Panel added that the “ability to play professional sport is not to be taken for granted”[20] and that “[p]rofessional rugby players are not exempt from the sacrifices that every other member of the country has to make at this moment”.[21] It thus seems that the Disciplinary Panel was keen to remind the players of the privileged position that they enjoy.

The Decision also distinguished the Barbarians case, highlighting that the country was only subject to the “Rule of Six” at that time, compared to full National Lockdown currently in force, due to the heightened transmission rate.[22]

Given that all breaches were intentional, and the consequences “medium”, the entry point for the sanctions, directed by the Framework, was a four-week ban. The Decision noted that they would have imposed financial penalties, too, if they had not already been imposed by the clubs.[23]

As regards mitigating factors, the Disciplinary Panel accepted that Jonathan Joseph had been deeply disappointed by his exclusion from the England Six Nations squad but found the submission that he was “depressed” and that his mental wellbeing was affected to be “unsupported by any evidence”.[24] The Disciplinary Panel went on to say:

“Indeed, as became apparent, Elliot Stooke recalled he had been enjoying a game on a PlayStation (remotely) with Jonathan Joseph when he agreed to attend at Jonathan Joseph’s house.

We reject as without foundation the suggestion that the attendance at Jonathan Joseph’s home address came out of a “good place”.”[25]

It may well be that, on consideration of the totality of the evidence, there was nothing to support the suggestion that Joseph’s mental wellbeing had been affected. However, the implication that this cannot have been the case because he was playing on his PlayStation with Stooke is spurious. Nonetheless, this issue does not appear to have been advanced on appeal.

The Disciplinary Panel did take into account the players’ swift acknowledgments of guilt, excellent character and genuine remorse.[26] In Joseph’s case, there was a “glowing testimonial” from Bath coach Neil Hatley, while all players offered sincere apologies. Stooke’s apology was particularly impactful.

In light of these considerations, the entry point for the sanction was reduced by 50% (in accordance with Regulation 19), meaning that a two-week suspension was appropriate.

As regards the additional offences committed by Stooke and Oghre (for being in a car together), the starting point for sanctioning was for another four-week suspension, to run consecutively. However, the Disciplinary Panel exercised its discretion, having “full regard to the principle of totality”,[27] reducing the entry point for the second offence to two weeks and subsequently applying a 50% reduction for mitigation, such that the sanction for the second offence was only one week.

Thus, Joseph was banned for two weeks, and Stooke and Oghre were banned for three weeks. All players were given credit for the suspensions they had served prior to the hearing.[28]

7. The RFU Appeal Panel Decision

All of the players appealed against the Decision.

Such appeals can only be brought on narrow grounds,[29] and here the players relied upon the sole ground that the sanctions imposed were so excessive as to be unreasonable, pursuant to Regulation 19.12.1(d).

In so doing, the players argued[30] that the Disciplinary Panel had been wrong to find that the consequences were “at least medium” and thus the starting point for sanctioning in respect of each of the charges was wrong. They argued that the appropriate starting point was two weeks, such that the final sanction should have been one week, not two, for each charge. They suggested that the sanctions imposed were inconsistent with the Barbarians case.

Stooke and Oghre argued that the Disciplinary Panel had erred in ordering the sanction for the second offences to run consecutively, as opposed to concurrently, to the sanction for the first offence.

In the alternative, the players argued that the Disciplinary Panel was wrong not to suspend all or part of the sanctions imposed.

The players emphasised that any breach of the MOS inevitably exposes people to some risk, and that the breach here was of a modest level – three people in a house, and two people in a car. The players noted that it was not a party, nor were the breaches on the same scale as in the Barbarians case. There was also “no identifiable reputational damage” to the game.

Stooke and Oghre further argued that although it was proper to charge them separately in respect of the car journey, it was inappropriate to impose consecutive sanctions because the offences arose from the same facts.

This author has sympathy for the players’ arguments. Most of the Barbarians players charged for COVID-19 breaches were given immediate bans of three or four weeks. Given that those players not only went out in public, in a large group, but also lied to the RFU during the investigation, the sanctions imposed here do seem harsh. Joseph, Stooke and Oghre had all recently tested negative for COVID-19[31] and gathered only in a small group.

This author has particular sympathy for the argument that Stooke and Oghre’s second suspensions should have run concurrently, as it is clear that the car journey formed part of the same course of conduct. The idea that the risk of transmission was heightened by a 3-mile car journey (likely less than 10 minutes in duration), after the two players had already spent several hours socialising, eating and drinking together seems somewhat artificial.

Given that no adverse consequences were caused to their clubs or close contacts (albeit perhaps fortunately), this author is inclined to agree that the consequences of their breaches were “low”. The incident will inevitably cause some reputational damage to the game, but this does not appear significant. In this author’s view, the sanctions imposed by the clubs were sufficient.

Nonetheless, it is important to note that although the immediate sanctions in the Barbarians case were not dissimilar to this case, further sanctions were suspended. The Appeal Panel highlighted that the Barbarians case was “fact specific” and held that the Disciplinary Panel was entitled to conclude that offending during a National Lockdown was “significantly more serious than a breach of the ‘Rule of 6’”.[32]

The Appeal Decision emphasised (rightly) that the “overriding principle is that the overall sanction must be just and proportionate”.[33] There is no clear rule as to when sanctions should be imposed concurrently or consecutively, so the Disciplinary Panel was entitled to act as it did. In other words, the decision on sanction was not unreasonable.

8. Conclusion

While this author considers the sanctions imposed on Joseph, Stooke and Oghre to be somewhat harsh, it is not clear that they are necessarily disproportionate or unjust. Reasonable people can reasonably disagree on the outcome of a case. Disciplinary panels inevitably (and necessarily) have a degree of discretion in determining cases such as these, so while this author might have given less weight to the circumstances of the National Lockdown, and more weight to the minor impact of the players’ actions, that the Disciplinary Panel took the opposite approach does not necessarily make the Decision unreasonable.

The sanctions imposed here will send a reminder to players across the Premiership that breaches of the COVID-19 rules will not be tolerated, while the decisions serve as a useful reminder of the importance of the principles of totality and proportionality when determining disciplinary sanctions.

However, this may not be the end of the story. The Disciplinary Panel noted that the RFU will “review matters further” upon the conclusion of the criminal proceedings against Elliott Stooke.[34] He may yet find himself subject to a further charge under RFU Rule 5.12. Notably, RFU Regulation 19.4.4 explicitly gives the RFU to sanction players who have been “cautioned or convicted of a criminal offence which directly or indirectly relates to the playing, administration or image of the Game”. Watch this space.

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. 

 

References

[1] See paragraphs 63 to 77 of the Decision.

[2] See paragraph 41 of the Decision.

[3] See paragraphs 78 to 81 of the Decision.

[4] See paragraphs 19 and 20 of the Decision.

[5] Paragraph 21 of the Decision.

[6] See paragraphs 12 to 17 of the Decision.

[7] See RFU Regulation 19.4.1

[8] Curiously, the panel in the Barbarians case, had said that their judgment was “not intended to be binding in relation to other Covid cases in the future” (see paragraph 84 of that decision). In this author’s view, it was always likely to have authoritative effect, so it is no surprise that the Disciplinary Panel here cited the Barbarians judgment significantly.

[9] The author’s opinion on that approach was explained in detail here.

[10] Section 3 of the Framework

[11] Section 4 of the Framework

[12] Ibid.

[13] See Appendix 1 to the Framework

[14] Paragraph 53 of the Decision.

[15] Paragraph 96

[16] Paragraph 91

[17] Paragraph 92

[18] Paragraph 94

[19] Paragraph 36

[20] Paragraph 38

[21] Paragraph 82

[22] Ibid.

[23] Paragraph 103

[24] Paragraph 65

[25] Paragraphs 66 to 67

[26] See paragraphs 84 to 88

[27] Paragraph 99

[28] Paragraph 101

[29] See RFU Regulation 19.12.1

[30] See paragraphs 20 to 25 of the Appeal Decision.

[31] Paragraph 65 of the Decision

[32] Paragraph 38 of the Appeal Decision.

[33] Ibid.

[34] Paragraph 35 of the Decision. See also paragraph 23.