On Friday 25 March 2022, Gloucester Rugby (“Gloucester”) was scheduled to host Worcester Warriors (“Worcester”) in the Gallagher Premiership (the “Match”). However, the Match was cancelled that afternoon because Worcester was unable to field six fit and able front row players, as required by the Premiership Regulations 2021-22 (the “Regulations”).
Following the cancellation of the Match, the matter was referred by Premiership Rugby to an independent panel (the “Panel”) to determine the result of the Match and the allocation of league points.
Ultimately, after a hearing on 8 April 2022, the Panel decided that the Match be declared a 20-0 win to Gloucester, with five league points awarded.
On 10 May 2022, the full reasons for that decision were published by Premiership Rugby (the “Decision”), and Gloucester announced that they would be seeking compensation from Worcester for the losses suffered by the club as a result of the cancellation.
This article will explain and analyse the Decision and will then briefly consider Gloucester’s claim for compensation.
1. Factual Background
In the week of the Match, Worcester had several players who were self-isolating following positive COVID-19 test results. The squad also had a number of injured players, and others who were showing symptoms of a viral illness but were either not tested for COVID-19 or were tested and found to be negative. Some were both injured and unwell.[1]
Worcester’s club doctor gave evidence to the Panel that, whilst he could not rule out the possibility that some of the ill players without positive COVID-19 tests had COVID-19, he considered it likely that they had another virus. Indeed, the club doctor himself had this illness at the relevant time.[2]
Worcester had two hookers and two loosehead props (“LH1” and “LH2”) available. LH2 had previously played at least one match at tighthead – although Worcester apparently did not want to play him there. Another loosehead prop (“LH3”) was unavailable due to COVID-19.[3]
Of Worcester’s six registered tighthead props, two were ruled out due to injury, one was unavailable due to COVID-19 (“TH1”) and three (“TH2”, “TH3” and “TH4”) had upper respiratory tract symptoms, a fever and myalgia. TH2 also failed a late fitness test due to a tight calf and, although ill, TH3 tested negative twice for COVID-19 using a lateral flow test.[4]
By lunchtime on Thursday 24 March, Worcester were concerned about the risk of having insufficient registered front row players for the Match. As loan front row players could be registered up to 5pm on the day of the Match, the club’s team manager circulated a WhatsApp message to the team managers of the other Premiership clubs explaining the predicament and asking if anyone had any props available – but no one replied. Worcester then contacted two Championship clubs at which they had contacts (Hartpury RFC and Cornish Pirates RFC), but they did not have any props available either.[5]
Later that day, Worcester warned Premiership Rugby and Gloucester of their lack of tighthead cover, noting that TH2 faced a fitness test on the morning of the Match to determine whether he could play. After he failed that test, Worcester confirmed that they only had three fit and available props.[6]
Gloucester offered to loan them a prop and Premiership Rugby urged them to find cover, but Worcester confirmed at 2pm that they would be unable to play the fixture.[7]
Gloucester’s chairman also gave evidence that, after the Match had been cancelled, Worcester co-owner, Jason Whittingham told him that he had been “outvoted” by his fellow co-owner, Colin Goldring, and head coach, Steve Diamond, who did not wish the Match to be played because Worcester had an important Premiership Cup match against Bath the following Wednesday. Mr Whittingham accepted that he may have said he had been “outvoted” but denied suggesting that the Match had been cancelled because of another fixture.[8] The Panel ultimately did not have to consider this difference in recollections.
2. Applicable Regulations
The cancellation of matches and the consequences that follow is dealt with specifically in the Regulations. However, as the Panel recognised in the Decision, the drafting of the Regulations “was not as clear as it might have been”,[9] primarily as a result of the urgent amendments made to account for the challenges posed by COVID-19. Much of the dispute before the Panel was thus as to the proper interpretation of the Regulations.
Regulation 3.4(b) provides that:
In the interests of safety each team playing in the Premiership must have at least six (6) fit and able Players in the squad who can play at hooker, tight head prop and loose head prop who are suitably trained and experienced to ensure that on the first occasion that a replacement in any front row position is required (whether due to injury or consequent to a Player(s) being temporarily suspended or ordered off) the team can continue to play safely with contested scrums. In the event that a Club is unable to field those six players, the Match shall be cancelled. PRL shall determine whether this is the direct result of Covid-19 and:
(i) if it is as a direct result of Covid-19, then Schedule 5 shall apply; or
(ii) if it not as a direct result of Covid-19, then Regulation 3.4(c) and Regulation 4.4(j) shall apply.
Thus, each match-day squad must contain a full, fit, and able starting and replacement front row. If a club is unable to field such players in their squad, the match will be cancelled.
If a match is cancelled for this reason, it is then for Premiership Rugby (i.e., PRL) to determine whether the cancellation is the direct result of COVID-19. If it is, the provisions drafted to deal specifically with the challenges of COVID-19 in Schedule 5 of the Regulations apply to determine the outcome of the match (which, in this case, would have meant a 0-0 draw, four league points to Gloucester and two league points to Worcester).
However, if PRL determines that the cancellation is not as a direct result of COVID-19, one must apply Regulation 3.4(c) and Regulation 4.4(j). Regulation 3.4(c) relates to matches which involve uncontested scrums and thus does not actually apply to cancellations.[10]
Regulation 4.4(j) forms part of Regulation 4.4, which is entitled “Non-Fulfillment [sic] Of Fixture Obligations”. Under the sub-heading “Failure to Fulfill [sic] Obligations”, Regulation 4.4 provides, insofar as is relevant, that (emphasis added):
(i) No Club shall, without just cause (it being for a PRL SRUK Panel, to determine whether or not just cause exists (provided that if a match cannot take place for reasons of Covid19, Schedule 5 shall apply)), fail to fulfil its fixture obligations in respect of a Match on the date and at the time appointed for such fixture.
(j) In the event that a Club shall so fail to fulfil a Match for reasons other than Covid-19, PRL shall, and subject to the Club’s right of appeal pursuant to Regulation 15.2, convene a PRL SRUK Panel to decide the matter as follows:
(iii) Where the unfulfillment of a Premiership League Match is due to the unavailability of players due to injury or unavailability (which is not related to Covid-19), the match result shall be 20-0 and 5 league points shall be awarded to the opposition Club who could play the match.
(iv) Where a Premiership League Match is unable to be played due to a Club’s inability to fulfil the fixture due to non-playing issues (e.g. bad weather, frozen pitch), points shall be attributed as follows
a. Where no fault is attributed and a Club has taken all possible steps to ensure that the fixture is played, each Club shall be awarded 2 league points;
b. Where a Club has been shown not to have undertaken all possible steps (e.g. not complied with the agreed bad weather protocols), the Club not at fault shall be awarded the 20 – 0 win and 5 league points
(v) All decisions of PRL and/or the PRL SRUK Panel pursuant to this Regulation 4.4 shall be subject to the right of the affected Clubs to appeal the decision pursuant to Regulation 14.2.
Therefore, at least on one interpretation of Regulations 3.4(b) and 4.4(j), the issue is a very simple one. If PRL determines that the cancellation was not the direct result of COVID-19, PRL shall appoint a panel, and if that panel finds that the cancellation was due to player unavailability, the club who were able to fulfil the fixture will be awarded a 20-0 win and 5 league points. That was, in essence, the interpretation seemingly advanced by Gloucester.[11]
However, where (as here) the cancellation issue has arisen under Regulation 3.4(b), it will inevitably be because of player unavailability and, thus, on this interpretation, there would be nothing for a panel to decide (PRL having already taken the decision as to whether their unavailability was a direct result of COVID-19 under Regulation 3.4(b)). That would be rather odd.
The provision arguably makes more sense if one considers the wording of the first sentence, “In the event that a Club shall so fail to fulfil a Match” (emphasis added). The word “so” seems to imply that Regulation 4.4(j) and 4.4(i) must be read together – i.e., that the jurisdiction of a panel to award a 20-0 and 5-league-point victory to the club able to fulfil the fixture only arises where it determines that the failure to fulfil the fixture was “without just cause”.
This appears, in essence, to have been Worcester’s argument.[12] Their submission was that they had taken reasonable steps to field six appropriate front row players, were not otherwise at fault and thus had “just cause” for their failure to fulfil the fixture, such that Regulation 4.4(j) did not apply.
Worcester further argued that the cancellation was the direct result of and/or related to COVID-19, that the Panel had the power to overturn PRL’s decision in that respect, and thus that the more favourable provisions of Schedule 5 should apply instead.
3. Decision
The Panel considered that neither interpretation advanced by the clubs was “entirely satisfactory”,[13] but ultimately favoured that advanced by Gloucester.
First, it held that, under Regulation 3.4(b), it is for PRL to determine whether the cancellation was, in all the circumstances, a sufficiently direct result of COVID-19. There was no power for the Panel to redetermine the issue, under Regulation 3.4(b) or Regulation 4.4(j). The Panel did not apply the “but for” test suggested by Worcester but found that, consistent with the approach taken in PRL Panel decisions relating to cancellations caused by COVID-19, PRL was entitled to consider the number of players unavailable as a result of COVID-19 as well as the steps taken to obtain players on loan, to enable a team to be fielded.[14]
Second, the Panel held that Regulation 4.4(i), regarding “just cause”, did not need to be considered, as Regulation 3.4(b) refers only to Regulation 4.4(j) and Regulation 4.4(j)(iii), regarding player unavailability, does not refer to any question of fault, in contrast to Regulation 4.4(j)(iv), regarding cancellation for non-playing issues.[15] In other words, save where player unavailability is “related to Covid-19”, failure to fulfil a fixture for this reason is a matter of strict liability.
Third, it found that, rather than introducing a concept of reasonableness, the reference to “just cause” in Regulation 4.4(i) was merely shorthand for the circumstances described in the Regulations where there is a cancellation and the consequences that follow are other than a match result of 20-0 and five league points being awarded – i.e., under Regulation 4.4(iv) or Schedule 5.[16]
Therefore, as PRL had determined that the cancellation was not as a direct result of COVID-19, there was (strangely) nothing further for the Panel to determine – the consequences in Regulation 4.4(j)(iii) applied automatically. Gloucester were thus awarded a 20-0 win and 5 league points.
However, such an approach does not sit all that comfortably with the wording of Regulation 4.4 as a whole. What was the significance of the word “so”? Further, why would the PRL introduce the phrase “just cause”, unless the intention was to recognise that clubs may, in certain circumstances, be unable to fulfil fixtures for legitimate reasons?
Regulation 4.4(l) also provides for the possibility of further sanctions and/or compensation to be ordered against the defaulting club (see further below). Would any of these consequences appropriate where a club does everything in its power to field a team, or where events totally outside of their control result in their squad being unavailable? Why else would an independent panel be required to adjudicate where the issue is one of player unavailability?[17]
Nonetheless, as the Panel pointed out, Regulation 4.4 does not provide for what alternative consequences would apply in the event that the failure to fulfil a fixture due to player unavailability were deemed to have “just cause” – it only refers to awarding a 20-0 result and 5 league points.[18] That would seem to fit with an interpretation whereby a panel really does have nothing to decide.
Ultimately, it is impossible to disagree with the Panel’s conclusion that neither interpretation of the Regulations is “entirely satisfactory” and that their drafting leaves plenty to be desired.
The consensus between the parties that the Regulations were to be treated as a “business document” and therefore to be “construed so as to make them workable” thus seems significant.[19] This author wonders whether the outcome would have been different if it had instead been contended that the consequences in Regulation 4.4(j) were sanctions and that the Regulations therefore had to comply with the principle of legal certainty in order to be enforceable.[20]
Nevertheless, the Panel’s interpretation of the Regulations was not definitive, as it held that, had it needed to determine whether the cancellation was caused by COVID-19, the “but for” causation test was not satisfied because had TH1 not had COVID-19, Worcester would still not have had sufficient tighthead cover and,[21] further, the club had not taken “all possible or even reasonable steps” to obtain loan cover in order to fulfil the fixture.[22]
This author does have some sympathy for Worcester. Two props were unavailable due to COVID-19: TH1 and LH3. Given that LH2 was capable of playing tighthead prop, Worcester could have fulfilled the fixture had TH1 and LH3 not had COVID-19 – LH1 and LH3 would have been their loosehead props, and TH1 and LH2 would have been their tighthead props. However, this argument may have been undermined by Worcester’s unwillingness to play LH2 at tighthead.
In any event, the steps taken by Worcester to fulfil the fixture were also deemed relevant to determining whether the cancellation was COVID-related and the Panel found that by failing to make calls to any other Premiership clubs to seek loan cover, the club had simply not done enough.[23] This approach sensibly demands that COVID-19 be the sole cause of a club’s inability to fulfil a fixture (rather than a partial cause, along with a club’s failure to take all possible/reasonable steps to secure loan cover), in order to benefit from the more generous provisions of Schedule 5.
4. Additional Penalties and Compensation Claim
Following the Decision, Gloucester have publicly announced their intent to recover compensation from Worcester for their failure to fulfil the fixture.
Regulation 4.4(l) expressly provides that:
In addition to and whether or not a penalty is imposed upon a Club by PRL or the RFU where in the opinion of the RFU the Club failed to honour its Match obligations a Club shall be liable to pay to any opposing Club compensation in respect of the losses, damages liabilities, costs or expenses suffered or incurred by such opposing Club as a result of such failure. The amount of such compensation will in default of agreement between the Clubs be determined by the RFU.
This would seem to provide that a club who fails to fulfil a fixture in breach of the Regulations is liable to be sanctioned further by PRL or the RFU, and must pay the opponent club compensation for its losses and/or costs incurred as a result.
This provision is somewhat strange in two respects. First, it refers to the possibility of further penalties from either PRL or the RFU.[24] If PRL takes disciplinary action, the matter will go before another PRL panel to be dealt with under Regulation 14 of the Regulations. If the RFU takes disciplinary action, it will be dealt with under RFU Regulation 19. Whether the RFU would intervene in the absence of a PRL charge remains to be seen, reflecting an awkward separation of disciplinary powers between the two governing bodies in the Regulations.
Second, it seems that the obligation to pay compensation arises only where “in the opinion of the RFU the Club failed to honour its Match obligations”. It thus seems that the matter would need to be re-heard by an RFU panel in order to determine whether Worcester failed to honour its obligations before compensation would be payable – although the clubs are seemingly invited to agree upon the amount. Though perhaps unlikely in practice, this would seem to leave open the possibility that an RFU panel could come to a different conclusion than the Panel and decline to award compensation.
Both aspects of Regulation 4.4(l) raise questions of procedural efficiency, as well as consistency. One would have thought that it would make most sense for the issues of the match result, league points, further penalties and/or compensation to be dealt with in a single procedure, or at least for each of the matters to be dealt with by the same panel, successively.
Nonetheless, as regards further penalties, whilst PRL and/or the RFU may consider the alleged comments made by Worcester’s owner worth investigating, it might be argued that the Match result and league points awarded to Gloucester were a sufficient penalty.
With respect to compensation, Gloucester have suggested that their losses amount to approximately £250,000, including ticket refunds and lost food/drink sales. Their legal costs for the proceedings before the Panel (and any RFU panel) ought also to be recoverable. It seems very likely that the club’s claim would succeed (it being unlikely that an RFU panel would disagree with the Panel’s Decision, out of principle) and it would thus be advisable for the clubs to agree upon the amount of compensation without the need for further proceedings.
5. Conclusion
In summary, the dispute between Gloucester and Worcester as to the consequences of the cancelled Match was, and may continue to be, far more complicated than it ought to have been. On the evidence available, the outcome seems the correct one, but it was not reached without significant difficulty for both the clubs and the Panel.
The lack of clarity in the Regulations – caused in part because of the disruption of COVID-19 – created an unnecessary conundrum, while the separation of powers between PRL and the RFU raises the prospect of further convoluted proceedings.
It is therefore surprising that PRL itself did not intervene in the proceedings before the Panel, given that the interpretation of its Regulations and the consequences for its competition were at stake, but it must be hoped that PRL will nevertheless take note of the Panel’s interpretive difficulties and re-draft (at least) Regulations 3.4 and 4.4 before the start of next season, whether or not they continue to contain special provisions to deal with COVID-19.
Article by Ben Cisneros. Ben is a Trainee Solicitor at Morgan Sports Law, though this article reflects only the author’s personal views. Please email ben.cisneros@morgansl.com with any legal or media enquiries.
References
[1] See para 18 of the Decision
[2] See para 20
[3] See para 19
[4] See para 23
[5] See paras 25-26
[6] See paras 27 and 29
[7] See paras 30-35
[8] See para 32
[9] See para 41
[10] See para 9(i)
[11] See paras 43-63
[12] See paras 43-63
[13] See para 41
[14] See paras 43 and 58. See previous PRL Panel decisions relating to COVID-19 cancellation here.
[15] See para 51
[16] See para 57
[17] Several of these issues were contemplated by the Panel, but it is not clear that their answers are satisfactory (see, for example, para 58).
[18] See para 52
[19] See para 40
[20] See, for example, CAS 94/129 USA Shooting & Quigley v. Union Internationale de Tir
[21] See para 60
[22] See paras 61-63
[23] See paras 61-63
[24] Both governing bodies appear to have disciplinary jurisdiction under Regulation 14.1 of the Regulations