A Spanish version of this article has been published on the website, ‘A Palos‘. Una versión española de este artículo se ha publicado en el sitio web, ‘A Palos‘.
1. Introduction
Despite the hopes of Spanish players and fans, an independent World Rugby Appeal Committee (the “AC”) this week dismissed Spain’s appeal against its disqualification from the 2023 Rugby World Cup (“RWC 2023”).
As this author explained in a previous article, Spain had been found by an independent World Rugby Judicial Committee (the “JC”) to have fielded an ineligible player (the “Player”) in two RWC 2023 qualifying matches, in breach of World Rugby Regulation 8 (“Regulation 8”). The JC imposed a fine of £75,000 and deducted 10 qualifying points from Spain, with the result that the team lost the place it had earned at RWC 2023 (the “JC Decision”).
As noted in the previous article, Spain’s appeal always faced an uphill struggle, given the nature of appeal proceedings under World Rugby’s regulations. However, this news will nonetheless have come as a crushing blow to Spain’s players, for whom one can only feel great sympathy.
This article will explain and consider the AC’s decision (the “AC Decision”).
Overall, whilst its outcome seems harsh, the AC Decision highlights some important issues for Unions and other parties to rugby disciplinary proceedings and raises questions for World Rugby about its eligibility system.
2. Spain’s Grounds of Appeal
As set out in the AC Decision, the Federación Española de Rugby (the “FER”) appealed against the JC Decision in relation to both (i) its finding of a breach of Regulation 8, and (ii) the sanction imposed. The FER also sought to introduce new and additional evidence that had not been before the JC to undermine the JC Decision. Each issue shall be addressed in turn.
3. Admissibility of Evidence
A key aspect of the FER’s appeal was its attempt to file new and additional evidence. However, as explained previously, such evidence is not generally admissible in World Rugby appeal proceedings unless “it was not, on reasonable enquiry, available at the time of the proceedings before the Judicial Committee”.[1]
The evidence which the FER wished to introduce fell into two categories: (i) evidence of the ineligible Player’s alleged complicity in the tampering of his passport (“Category 1”), and (ii) evidence that the Player was informed of and acknowledged the eligibility criteria (“Category 2”).[2]
Category 1
The Category 1 evidence was a witness statement of Mr Cherr – a club teammate of the Player – who had given evidence before the JC that the Player had not been involved in the passport tampering. Contrary to that position, Mr Cherr’s new statement alleged that the Player had known about the tampering and that his previous evidence had been given under duress.[3]
The FER argued that this was new evidence which had not been reasonably available to it at the time of the JC hearing, and that Mr Cherr had changed his position following legal advice in relation to disciplinary proceedings and a criminal investigation against him.[4]
However, the AC was concerned by the lack of information about the way Mr Cherr’s new evidence had come to light, and by the fact that the FER had made a criminal complaint against the Player the morning after the JC hearing (notwithstanding it claimed it was unaware of the Player’s complicity at the time). It therefore found that it was not reasonably available at the time.[5]
The FER argued, in the alternative, that the Category 1 evidence should nonetheless be admitted in the interests of justice, as it would demonstrate the Player’s awareness of the eligibility criteria (which, in turn, would be relevant to the sanction imposed on the FER). The FER further argued that this was analogous to cases where a first instance decision is obtained by fraud and would thus be grounds for a de novo hearing under English law – though the FER did not apply for this appeal to be heard de novo (which in itself is somewhat surprising, given the extent to which the FER hoped the Category 1 evidence would have challenged the evidence heard by the JC).[6]
However, the AC refused to admit the Category 1 evidence in the interests of justice, given that it was “incomplete”, and that the Player remained subject to proceedings in Spain:[7]
Whilst parallel proceedings are not per se a reason for the AC to decline to make a determination, based on the totality of the circumstances, including the probative value of the evidence, the risk of self-incrimination for the Player, that the Player is not a party to this appeal, the nascency of the disciplinary and criminal investigations, and the fact that the JC had found the fact of tampering to be irrelevant, it would be not be in the interests of justice to admit the Category 1 evidence. If the Player had been complicit in the tampering (which he denies), a serious and criminal act, then there are procedures and forums where due processes will be accorded to the Player to make that determination.
Given all the circumstances, this does not seem inappropriate.
Category 2
The Category 2 evidence consisted of witness statements from Spain’s two team managers and three players, which showed that the Player had been informed via text message of the number of days he had to have spent in Spain to be eligible and that the Player was aware of the eligibility criteria, based on his interactions with them between December 2021 and March 2022 (including a briefing given to players by team management prior to the Player’s first match for Spain in 2019).[8]
The FER argued that this evidence was not reasonably available before the JC as it could not reasonably have known that these interactions would be relevant and that it was only upon publication of the JC Decision that they came to light.[9]
However, the AC pointed out that reference was made to the “protocols and systems in place to regulate players’ eligibilities” in the FER’s own submissions before the JC, whilst World Rugby’s submissions repeatedly raised this issue (e.g. “It is also unclear whether the Player was provided with any education or information as to the requirements of Regulation 8 prior to his selection”). The issue was also discussed in evidence at the hearing before the JC, and the FER did not challenge the Player’s evidence there regarding his lack of education.[10]
The AC thus concluded it was “untenable” for the FER not to have reasonably known that this issue would be determinative and that:[11]
Regardless of assumptions made regarding and/or good faith placed the by FER in the Player (and his testimony), it was the duty of FER to apply all the necessary diligence and resources in preparing for the hearing before the JC to prove its case.
It was therefore not satisfied that the Category 2 evidence was not reasonably available to the FER before the JC.
Again, the FER argued in the alternative that the evidence should nonetheless be admitted in the interests of justice, as the Category 2 evidence showed the Player had lied to the JC.
The AC considered whether “such evidence would advance FER’s case on appeal” and “the need to strike a fair balance between the need for finality and the need for the judicial process to reach the right outcome”. It noted that, by the FER’s own submissions, the Category 2 evidence was irrelevant to the issue of breach and was only relevant to the sanction as one of several mitigating factors. It also noted that much of the Category 2 evidence related to steps the FER had taken “after the Player had already been selected and certified to be eligible by FER Eligibility Commission”.[12]
In these circumstances, the AC determined that the Category 2 evidence should not be admitted in the interests of justice.[13]
Whilst this author has not seen the Category 2 evidence itself, and whilst the FER’s failure to adduce it at first instance was indeed “inexplicable”,[14] the AC’s decision not to admit the evidence is nevertheless surprising. The FER’s failure to inform the Player of the eligibility criteria and to enquire of him as to his compliance underpinned the JC Decision in relation to sanctioning.
Yet, it would appear, from publicly available sources (discussed here), that the Category 2 evidence included evidence that the FER did exactly that, before and after inviting the Player to join the national squad, and prior to him playing in the match against the Netherlands on 18 December 2021.
In this regard, it is not entirely clear what the AC was referring to when referring to the Player already having “been selected”.[15] To this author’s mind, the relevant time under Regulation 8 by which a player must be suitably informed, is the time when the player is deemed to have played for the national team (defined in Regulation 8.3 as when a player “is selected for such team to play in an International Match…and is present at the Match played by that team either as a replacement, substitute or a playing member of that team”). It would seem inappropriate if evidence of the Player’s education prior to that time were to be treated as irrelevant.
Thus, whilst the FER must bear some responsibility for its failure to adduce the Category 2 evidence at first instance, it might well be disappointed that the evidence was not admitted by the AC in the interests of justice. It might also be noted that the AC could have instead penalised the FER for its late introduction of evidence by exercising its power to order costs against it under World Rugby Regulation 19.6. It would seem rather harsh on the Spanish players if relevant evidence was not considered, owing to the incompetence of the FER. This is not High Court litigation.
4. Ineligibility
In relation to the breach of Regulation 8, the FER argued that the JC had erred by considering only subjective factors (i.e., the Player’s view as to his permanent home) to determine the question of Residency and ignored objective factors, such as the Player’s Spanish National ID.[16]
However, this was readily dismissed by the AC. It held that the JC did not rely solely on the Player’s subjective evidence, but referred also to objective factors, such as the Player’s absences from Spain. The JC was entitled to exercise its discretion in weighing up these factors, and the AC found no “manifest error”. In truth, it is somewhat surprising that the FER pursued this point on appeal, given the Player’s admission before the JC (as discussed here), although it may have hoped that the Category 1 and 2 evidence might have cast doubt upon this, had it been admitted.[17]
Although the Residency issue was decisive, the FER also argued that the JC had erred in its consideration of the exceptional circumstances relating to the Player’s absence from Spain during the summer of 2019. It submitted that three months of that absence had been because of his father’s illness, that this should not be deemed an absence interrupting Residency, and that the JC had misunderstood the evidence.[18]
However, the AC referred to the “wide margin of appreciation” given to Judicial Committees under World Rugby’s regulations in finding that the JC was not “manifestly wrong” in assessing the evidence before it.[19] In support of this approach, the AC referred to a previous appeal decision in the case of Matu’u v. World Rugby (2019) which explained this standard of review on the basis that:[20]
[…] such committees have seen the players and taken into account the whole of the sea of the evidence as opposed to indulging in impermissible hopping on to islands or parts only of the evidence in an appeal.
As noted in this author’s earlier article, the World Rugby appeal threshold is a high one.
5. Sanction
As regards the sanction, the FER argued that the points deduction and financial penalty were manifestly excessive. It emphasised the role of the passport tampering and stressed that it had taken “all necessary steps” to comply with Regulation 8.[21] However, without the Category 2 evidence, the latter was always going to be a difficult argument to win.
The AC noted the five ways identified in the JC Decision in which the FER had not met the “all the necessary steps” test, which can be summarised as follows:[22]
(i) It failed to apply to the World Rugby Regulations Committee for a ruling on eligibility prior to selection;
(ii) It placed absolute reliance on the copy of the passport stamps, ignored the effects of the Schengen Agreement, and demonstrated a wilful blindness to other sources of inquiry;
(iii) It failed to interview the Player as to whether Residency had been met;
(iv) It failed to check the accuracy of the length of break in Residency set out in World Rugby’s charges against the FER and the Player; and
(v) It failed to educate and vet players on eligibility prior to selection.
It also emphasised the warning the FER had previously been given by the World Rugby Regulations Committee in the previous eligibility case of Bell (in which a Spanish player was retrospectively found to be eligible despite not having strictly fulfilled the Residency criteria, on the basis of exceptional circumstances), and thus found the JC’s approach to be “sound and without error”.[23] The AC noted:[24]
the strikingly similar circumstances that Bell bore to the present case (i.e., a South African born player whom FER had selected and found to be eligible by meeting the Exceptional Circumstances rule).
However, in this author’s view, much of this criticism seems unwarranted. First, at the time the FER selected the Player, it did not do so on the basis of “the Exceptional Circumstances rule” – it believed that he had met the Residency criteria in Regulation 8, on the basis of information contained in the tampered passport (which World Rugby confirmed prima facie satisfied the Residency criteria). As such, there would have been no reason for it to apply to the Regulations Committee. The comparisons to Bell thus seem misplaced.
Further, any failures by the FER in responding to the charges in these proceedings does not directly relate to its degree of fault in selecting the Player, whilst the Category 2 evidence tends to show that it had educated and vetted the Player (at least to some degree).
Thus, whilst the FER was wrong in placing absolute reliance on the passport (such that it did not take all necessary steps), its degree of fault was perhaps not as high as the AC Decision (and the JC Decision) makes out.
The FER also argued that there was an overreliance in the JC Decision on the failure to interview the Player because, if the Player was complicit in the passport tampering, the interview would likely have made no difference. Clearly, this argument was not helped by the non-admittance of the Category 1 evidence, but the AC emphasised that “the buck stops with Unions to ensure eligibility of the players” and the “strict liability nature of Regulation 8”.[25]
This author does feel that, whilst the FER could have done more, the wider apparent fraud deserved greater weight as a mitigating factor because, but for the passport tampering, the Player would not have been selected. However, the AC was unmoved.
In relation to the points deduction more specifically, the FER argued that by applying a five-point deduction per match as a “standard” sanction, the JC had erred in principle (as sanctioning is a matter to be determined on the facts of each particular case). However, the AC dismissed this argument, noting that the JC had referred to the RWCQ 2019 Case, and that it had considered whether to suspend the points deduction.[26]
The AC also dismissed submissions on previous cases from domestic leagues and the international “Grannygate” case from 2000, in which far less severe sanctions were imposed. The FER placed particular reliance on the case of RFU v. London Welsh (2013), which concerned a fraud perpetrated by a club employee, but which resulted in a points deduction equivalent to 0.5 points per match.[27]
However, the AC again relied on the RWCQ 2019 Case and held that the London Welsh decision offered little guidance, as it did not concern international rugby. Surprisingly, the AC did not seek to distinguish the “Grannygate” case.[28]
It is disappointing that the AC Decision did not itself re-examine the appropriateness of imposing a five-point deduction per match, instead of simply relying on the authority of the RWCQ 2019 Case. The sanction in that case seemed harsh, and so it does here too. It sits uncomfortably that, to borrow the words of International Rugby Players, the Spanish players have been “prevented from realising a life’s work by events entirely beyond their control”.
6. Conclusions
Overall, it is the Spanish players for whom one must feel great sympathy. Though the outcome of the case seems harsh, the FER did not help itself prior to and during the proceedings, and it is the innocent players who will now pay the price.
In theory, the FER could challenge the proportionality of the sanction in the English courts, but any such challenge would be both difficult and expensive, and thus seems unlikely. Instead, it could be the FER which finds itself taken to court, following reports that the players are considering legal action of their own against the federation.
However, there are perhaps two key takeaways for Unions and other parties to rugby disciplinary proceedings from this case:
(i) Any possible doubts regarding a player’s eligibility must be referred to the World Rugby Regulations Committee for a ruling, prior to the player’s selection. In this author’s view, the nature of the Residency criteria is such that Unions ought ordinarily to do so whenever relying on that basis for selection.
(ii) Owing to the limited nature of proceedings before an Appeal Committee, first instance proceedings before a Judicial Committee are of the utmost importance, in every case. An appeal is not simply an opportunity to have another go – it is typically only a review of the first instance decision, and new or additional evidence is not typically allowed.
Spain may yet be given a reprieve, as reports suggest the FER has made a complaint to World Rugby over the potential ineligibility of a Romanian player (Romania having taken Spain’s place at RWC 2023), but World Rugby must be concerned that, for the second Rugby World Cup in a row, European qualification has been determined away from the pitch, for reasons of player ineligibility.
It may be time for World Rugby to consider switching to a citizenship-based eligibility model (as suggested previously) or to a centralised pre-approval system, to reduce the burden on (often under-resourced) Unions and to enhance certainty for all concerned.
Article by Ben Cisneros. Ben is a Trainee Solicitor at Morgan Sports Law, who regularly acts in rugby disciplinary proceedings. This article reflects only the author’s personal views. Please email ben.cisneros@morgansl.com with any legal or media enquiries.
References
[1] See World Rugby Regulation 20.8.6(c)
[2] See para 28(b) of the AC Decision
[3] See paras 35-37 of the AC Decision
[4] Ibid.
[5] See para 41 of the AC Decision
[6] See paras 43-44 of the AC Decision
[7] See paras 45-46 of the AC Decision
[8] See para 48 of the AC Decision
[9] See para 49 of the AC Decision
[10] See para 50 of the AC Decision
[11] See para 51 of the AC Decision
[12] See paras 55-58 of the AC Decision
[13] It is, however, notable that the AC considered it had a discretion to admit the evidence on such a basis, notwithstanding the wording of World Rugby Regulation 20.8.6(c).
[14] See para 52 of the AC Decision
[15] i.e. it is not clear whether the AC was referring to the Player being invited to join the national squad, or to the Player playing against the Netherlands on 18 December 2021.
[16] See paras 62 and 68 of the AC Decision
[17] See paras 64-70 of the AC Decision
[18] See paras 72-73 and 76 of the AC Decision
[19] See para 78 of the AC Decision
[20] See para 77 of the AC Decision
[21] The “all necessary steps” test was relevant primarily to the FER argument that the minimum fixed fine imposed by the JC should be reduced. However, it also relates to the FER’s level of fault more broadly (and the mitigating and aggravating factors), and thus the points deduction. See paras 86-88 of the AC Decision
[22] See para 90 of the AC Decision. See also para 103.
[23] See para 91 of the AC Decision
[24] Ibid.
[25] See paras 92-93 of the AC Decision
[26] See paras 96-98 of the AC Decision
[27] See para 108 of the AC Decision
[28] See paras 109-110 of the AC Decision