DECISION OF THE EXECUTIVE COMMITTEE ON THE REFERENCE OF THE WELSH RUGBY UNION (WRU) IN RESPECT OF A RULING BY THE REGULATIONS COMMITTEE ON 6TH JULY 1999 AS TO THE ELIGIBILITY STATUS OF JASON JONES- HUGHES. Procedure And Evidence 1. On 26 August 1999 the Executive Committee of the IRB having considered written submissions received from the Australian Rugby Union (ARU) and the WRU decided to hear the Reference of the WRU (“Reference”) in respect of the Ruling by the Regulations Committee on 6 July 1999 (“Ruling”) as to the eligibility status of Jason Jones Hughes (“the Player”) on an expedited basis. 2. On 27 August 1999 the WRU and ARU were notified of the procedures and timetable pursuant to which the Reference would proceed. Neither the WRU or ARU objected to the directions, procedures or means of disposal of the Reference. The WRU through their legal representatives (Messrs Hugh James Ford Simey), however, sought to introduce new evidence in the form of an additional statement from the Player dated 31 August 1999; an additional letter from the Scottish Rugby Union (SRU), dated 3 September 1999; a letter from RAG Rogers dated 2 September 1999; a statement of John Welborne dated 2 September 1999 and a statement of Anthony Dempsey dated 2nd September 1999. 3. The Executive Committee Decision on the Reference was not influenced by this additional evidence upon which the WRU sought to rely. In the opinion of the Executive Committee, such evidence was available on reasonable enquiry by the WRU at the time of the Regulations Committee proceedings. Therefore, the Executive Committee made its decision on the documentation and material before the Regulations Committee as appended to the Regulations Committee’s Ruling, the Ruling itself and the additional submissions, correspondence and representations set out in Appendix A of this Decision. Background 4. The Regulations Committee held that, on the facts of the Jason Jones Hughes case, pursuant to Regulation 7 of the IRB Regulations Relating to the Game (“Regulations”), the Player was not eligible to play for Wales. 5. The relevant provisions of Regulation 7 are set out below: 7.1 A player may play for the Senior National Representative Team or the next Senior National Representative Team of the Union of the country in which: (a) he was born; or (b) one parent or grandparent was born; or (c) he has completed 36 consecutive months of residence immediately preceding the time of playing. 7.2 For the purposes of this Regulation a player is deemed to have played for the Senior National Representative Team or the next Senior National Representative Team of a Union if he is selected for such team to play in an International Match against the Senior National Representative Team or the next Senior National Representative Team of another Union only and is present at the match played by that team either as a replacement or a playing member of that team and has then reached the age majority. 7.3 A player who has played for the Senior National Representative Team or the next Senior National Representative Team of a Union is not eligible to play for the Senior National Representative Team or the next Senior National Representative Team of another Union. 6. The Player was born in Australia. However, his father was born in Wales and therefore, subject to Regulation 7.3, the Player qualifies under Regulation 7.1(b) to play for Wales. As set out above, Regulation 7.3 provides that a player who has played for the Senior National Representative Team or the next Senior National Representative Team of a Union is not eligible to play for the Senior National Representative Team or the next Senior National Representative Team of another Union. 7. Regulation 7.2 provides that a player is deemed to have played for the Senior National Representative Team or the next Senior National Representative Team of a Union if he is selected for such team to play in an International Match against the Senior National Representative Team or next Senior National Representative Team of another Union only. 8. On 9 June 1998, the Player was a member of the AIS Australian Barbarians Team (“the AB’s”) which played a match (“the Relevant Match”) against the touring Scotland Team in Penrith near Sydney. 9. The ARU contend that the AB’s were the next Senior National Representative Team of the ARU and in the Relevant Match the AB’s played at a minimum, the next Senior National Representative Team of the SRU. Accordingly, the ARU claims that the Player was not eligible to play for Wales pursuant to Regulation 7. 10. The WRU contend that the AB’s were not the next Senior National Representative Team of the ARU and in the Relevant Match the AB’s opponents were not the Senior National Representative Team or the next Senior National Representative Team of the SRU. 11. There was no dispute between the WRU and ARU that at the date of the Relevant Match, the Player had reached the age of majority. As at 18 June 1999 the Player was 22 years of age . 12. The Regulations Committee found that in playing for the AB’s in the Relevant Match the Player was playing for the next Senior National Representative Team of the ARU and that the opponents of the AB’s in the Relevant Match was the Senior National Representative Team of the SRU. 13. In its Reference the WRU challenged the Ruling of the Regulations Committee on a number of grounds. In summary the WRU : a) Questioned the procedures of the Regulations Committee; b) Challenged the Ruling that the AB’s were the next Senior National Representative Team of the ARU; c) Challenged the Ruling that the opponents of the AB’s in the Relevant Match was the Senior National Representative Team or the next Senior National Representative Team of the SRU; and d) Claimed Regulation 7.3 constituted an unlawful Restraint of Trade and was unlawfully restrictive. 14. In its Response document dated 3 September 1999, the WRU confirmed that it did not now assert that paragraph 7.3 of the Regulations was an unlawful Restraint of Trade or a Restrictive Practice. 15. On 5 September 1999 in Dublin, the Executive Committee considered the outstanding issues set out in paragraph 13 above. The Procedures of The Regulations Committee 16. The WRU claim that in the absence of notice of the ARU objection to an SRU representative siting on the Regulations Committee constituted a failure to afford natural justice. In particular, because the WRU did not have an opportunity to address the Regulations Committee on this issue. 17. Although it would have been preferable for the WRU to have been given the opportunity to make submissions in relation to the eligibility of Regulations Committee members when an objection was raised by the ARU, it was not strictly necessary. The Regulations Committee was a properly constituted, independent body competent to determine whether its members should sit on the Committee in any given case (whether due to a reasonable apprehension of bias or otherwise). 18. Furthermore, in view of, inter alia, the evidence submitted by the SRU in support of the contentions of the WRU it was not, in any event, appropriate for an SRU representative to sit on the Regulations Committee. Therefore, any submissions made by the WRU would not have altered the decision that the SRU representative was ineligible. The Executive Committee holds that all parties involved in issues in contention were properly disqualified from sitting on the Regulations Committee. 19. The Executive Committee noted the WRU position in Relation to the Memorandum of Matt Carroll dated 5 July 1999. The Executive Committee have now had the opportunity to consider the contents of the Memorandum and the WRU Response. Although the WRU claims that it would have responded to the Memorandum before the Regulations Committee hearing (and has now done so), as set out below, the Response does not in the opinion of the Executive Committee affect the substantive findings of the Regulations Committee. Were The AB’s The Next Senior National Representative Team Of The ARU? 20. The Regulations Committee held that, in playing for the AB’s in the Relevant Match, the Player was playing for the next Senior National Representative Team of the ARU. Paragraph 23 of the Ruling underpinned this finding: “The Committee considers that it is implicit in Regulation 7 that a Union may designate which team is the next Senior Team. There is no criteria specified in Regulation 7 as to the make up of the team”. 21. It is accepted that, pursuant to Regulation 7, each Union is entitled to choose and designate its next Senior National Representative Team, provided such team is selected by the national selectors. It is not accepted, however, that there is no criteria specified in Regulation 7. Seniority is a criterion. The question for the Executive Committee, therefore, is whether the ARU designated the AB’s as its next Senior National Representative Team. 22. The ARU by way of the letter dated 17th March from Matt Carroll, ARU General Manager, Rugby, advised the President of the AB’s of new arrangements and position of the AB’s. 23. The ARU Board of Directors considered the matter at its meeting of 29th May 1997. The Minutes of the meeting confirm: “Australian Barbarians……. Mr O’Neill advised that agreement had been reached with the Australian Barbarians for the ARU “second XV” to now play under the Barbarians brand. Such teams would wear the Barbarians jumper but would be selected by the ARU Selectors. The Chairman expressed the view that the successful branding as the Barbarians should lead to the extinguishment of titles such as Australia A, Australia B and even the emerging Wallabies.” 24. In a letter to Mr Graham (President of the Australian Barbarians) dated 17th March 1997 Matt Carroll summarised outstanding discussion points between the ARU and the AB’s. Point 1 of that letter stated: “Australian Barbarians Team to become in effect the “2nd XV and/or development team of ARU” 25. In a memorandum dated 9th June 1997 by Matt Carroll it was confirmed that: “The Australian Rugby Union and the Australian Barbarians have reached agreement in relation to the role of the Australian Barbarian team under the new order. The team will in effect become the ARU’s 2nd XV/Development team and will replace Australian “A” and the Emerging Wallabies. The traditional Barbarian’s playing strip will be worn and the Barbarian Committee will be involved with the match day activities. ARU will be responsible for selecting the team and appointing team management”. That memorandum was distributed to the following Australian Rugby Bodies. Executive Directors – State Unions Members of the Board – ARU Australian Barbarians – Ron Graham Australian Junior Rugby Union – Mark Malloney Australian Schools Rugby Union – John Rae Australian Service Rugby Union – CMDRE Mick Dunne Australian Sports Commission – Peter Topp Australian Universities Rugby Union – Andrew Murray Australian Society of Rugby Referees – Sandy MacNeill NSW Suburban Rugby Union – Mike Benn NSW Country Rugby Union – Bruce Worboys Rugby Union Players Association – Anthony Dempsey 26. Mr Carroll wrote a separate letter to Mr Graham dated 9th June 1997 regarding the merger of the Australian Barbarians and the ARU 2nd XV. In that letter the following matters, amongst others, were confirmed: “the ARU Board has confirmed the change of name for the ARU team to the Australian Barbarians. The team will wear the on-field AB strip and include the AIS logo on the jumper. The AB team will be selected by the ARU Selectors. Team management will be appointed by ARU. For matches outside the ARU program, the AB Committee will select the team and team management. ARU Selectors to be consulted for any recommendations.” The Regulations Committee inferred from this letter that there was to be a formal announcement of the new agreement following the second state of the Union match the following week. The Regulations Committee had before it a press clipping dated 7th June 1997 dealing with the matter, and stating “the Australian Barbarians in reality a Wallaby 2nd XV…. 27. The WRU contend that the meaning of the minute and correspondence is unclear and does not constitute a proper designation of the AB’s as the next Senior National Representative Team of the ARU. It also contends that the evidence of the ARU is confused and in-complete. Furthermore, the WRU state that the status of the AB’s as the next Senior National Representative Team of the ARU is unclear due to the apparent selection of Tongan players in AB Team’s. 28. Having considered the WRU contentions, the Executive Committee supports the finding of the Regulations Committee that the AB’s Team in the Relevant Match was the next Senior National Representative Team of the ARU. The minute is accepted as complete and an accurate record. In addition, although the minute of the meeting and relevant correspondence could perhaps, have been expressed with greater clarity nevertheless, it is sufficiently clear to demonstrate that when the AB’s team was selected by the ARU National Selectors it constituted the next Senior National Representative Team of the ARU. 29. For the Relevant Match, the AB’s were selected by the ARU National Selectors. Therefore, for the Relevant Match the AB’s were, ipso facto, the next Senior National Representative Team of the ARU. It is necessary to consider whether other factors override this designation. 30. The WRU has raised a number of other issues that it considers to be relevant to the designation of the AB’s as the ARU’s next Senior National Representative Team of the ARU. Save where expressly commented on herein, the Executive Committee accepts and adopts the Ruling of the Regulations Committee in relation to the WRU’s ancillary submissions on the designation of the AB’s as the ARU’s next Senior National Representative Team. 31. The Executive Committee believe that the ARU’s dissemination procedures in respect of the designation of the AB’s as the ARU’s next Senior National Representative Team could have been improved. However, it is clear that efforts were made by the ARU to circulate the information to constituents who could have been expected and should have communicated the information to their own members. 32. It would appear that following the distribution of the information concerning the change of status of the AB’s no queries were raised by the recipients as to the meaning of the communication or the change of status of the AB’s. In such circumstances, the ARU was entitled to rely on the fact that the re-designation of the AB’s had been accepted and understood. 33. Since in the opinion of the Executive Committee there is no doubt as to the status of the AB’s, representations made by the WRU to the effect that in the event of uncertainty over the status of a team, the player concerned should be given the benefit of the doubt on the grounds of natural justice or otherwise, are not relevant. 34. The designation of teams pursuant to Regulation 7 is only relevant in the context of eligibility. It is necessary that Unions are able to exercise control over the status of their teams in this way so that certainty can be achieved in relation to important player status and eligibility matters. 35. Although the criticisms of the ARU communications policy by the WRU are noted and the need for players to understand the status of teams in which they participate acknowledged, on the facts of this case, having taken into account all further submissions by the WRU and ARU none of the issues raised by the WRU override the designation by the ARU of the AB’s as its next Senior National Representative Team when selected by ARU National Selectors. Finding 36. The Executive Committee upholds the Regulations Committee’s Ruling that for the Relevant Match the AB’s were the next Senior National Representative Team of the ARU. What was the Status of the Scotland Team in the Relevant Match? 37. The Regulations Committee held that the Scotland Team that played the AB’s on 9 June 1998 was the Senior National Representative Team of the SRU. 38. In reaching its conclusion on this issue, the Regulations Committee disregarded the evidence of SRU representative Mr Bill Hogg in letters dated 21st June 1999 that were in evidence before the Regulations Committee. In those letters, Mr Hogg stated that in the Relevant Match, the Scotland team was neither the Senior National Representative Team or the next Senior National Representative Team of the SRU. The Regulations Committee also observed at paragraph 36 of its decision. “Whoever the players were they were the team representing Scotland on that day. It is artificial to regard only those players who play the internationals as the Senior National team, and the balance of the tour party as having no status.” 39. The WRU submit that the Regulations Committee made a fundamental error when considering how the status of the AB’s and Scottish Teams respectively should be determined. In particular the WRU note that in paragraph 28 of the Ruling, the Regulations Committee stated. “It is considered that the decisive factor (WRU emphasis) was that the AB Team was the next team of the ARU in accordance with the decisions of the ARU Board.” In essence, the WRU contend that the Regulation Committee’s decision making process and reasoning is internally inconsistent since on the one hand it took into account the designation by the ARU of its next Senior National Representative Team as decisive, but did not do so in relation to the status of the SRU’s team in the Relevant Match. 40. The ARU do not accept that the Regulations Committee made such an error or that, in the absence of a prior designation by a Union of a Team’s status, such designation made subsequently is the decisive factor in determining a team’s status. Further, the ARU suggest that if a team, each player wearing the full Senior Representative playing kit which takes to the field during an International Tour, is not the Senior National Representative Team, it is totally non-sensical. 41. In considering the issue of the status of the Scottish Team in the Relevant Match it is necessary to consider, as a matter of construction, the meaning of Senior National Representative Team in Regulation 7. The Executive Committee finds that the meaning of “Senior” in the context of “Senior National Representative Team” means best. It is a reference to playing ability. Accordingly, the Senior National Representative Team of a Union will be made up of that Union’s best available players. The Senior National Representative Team may also be described as the “Test Team” that plays in International Matches against the Test Teams (i.e the Senior National Representative Teams) of other Unions. 42. Based on this construction of Senior National Representative Team, it is necessary to consider the Regulations Relating to the Game, the IRB Tours Agreement and relevant evidence to identify whether the Regulations Committee conclusion that the Scottish Team in the Relevant Match was the Senior [Best] National Representative Team of the SRU was an accurate characterisation of that team’s status. 43. There are a number of competing arguments to consider in relation to the status of teams selected by a National Touring Team. The IRB Tours Agreement defines Team as “the players selected by the visiting Union to represent the visiting Union of the Tour and shall consist of not more than 36 players at any one time”. 44. Could it therefore be claimed that Team as defined in the IRB Tours Agreement constitutes a Union’s Senior National Representative Team? On examination of the relevant Regulations such a construction is not supported. It is inconsistent with Regulation 7 and Law 3 of the Laws of the Game which identifies the number of players, replacements and substitutes in a Team. In the opinion of the Executive Committee, the Senior National Representative Team cannot be deemed to extend to 36 members of a touring Team. 45. There is nothing in the IRB Regulations or Tours Agreement that provides that a touring Team is the Senior National Representative Team or automatically should be construed as the Senior and Next Senior National Representative Teams of a Union. Nor is there a requirement that the touring Team be so constituted. 46. It follows therefore that in respect of a touring Team the Senior National Representative Team of a Union is the Team that plays Test Matches during that tour (i.e. the best team available to that Union made up of its best players). The Team that plays midweek Matches or “non-Test” Matches (including non-International Matches) is not deemed to be the next Senior National Representative Team unless so designated by the Union concerned. 47. When a touring team is selected, a Union is entitled to select players who may play in the Senior National Representative Team in Test Matches or be selected for other Matches on tour. There may also be mixed teams that include Test players. 48. The right of a Union to designate its next Senior National Representative Team is provided in the Regulations. This was recognised by the Regulations Committee in accepting the designation of the AB’s by the ARU. 49. This fundamental right to designate is not lost due to the fact that a Union selects a touring party. It is a matter for each Union to determine the status of a team since if it does not then a Union or its players may suffer prejudice in relation to eligibility matters. 50. In support of its position, the ARU draw parallels with the definition of National Squad in the Regulations . However, the Executive Committee does not accept that the definition of National Squad is of relevance when considering the definition of a Team pursuant to a Tour Agreement. National Squad is referred to in Regulation 8 which deals with the availability of players. It is separate and distinct from eligibility matters that are addressed in Regulation 7. 51. The issues in this case relate solely to the application of the eligibility criteria set out in Regulation 7. Regulation 7 defines the way in which the eligibility to represent a Union’s Senior or next Senior National Representative Team is to be determined. Eligibility is established under Regulation 7.2 by means of a participation test involving Matches between the Senior or next Senior National Representative Teams of two Unions. 52. The Senior National Representative Team is a Union’s best team (i.e. its Test Team). Under the current Regulations, the next Senior National Representative Team is designated by each individual Union. The fact that a National Touring Team is neither the Union’s Senior National Representative Team (i.e its Test Team) or has not been designated as the next Senior National Representative Team by the Union concerned does not mean that the team selected to play in a Tour Match by a Union is not a National Team of that Union. It simply means that participation in such a National Team will not impact upon the status of a player for eligibility purposes as provided in Regulation 7. 53. Contrary to the Ruling of the Regulations Committee the Executive Committee does not accept that the Scottish Team that played in the Relevant Match was the Senior National Representative Team of the SRU. Nothing in the Regulations or Tours Agreement supports this finding of the Regulations Committee and as has been acknowledged by the ARU in a letter to the IRB dated 16th June 1999 the team that played in the Relevant Match was not the SRU’s Test Team (i.e. its Senior National Representative Team). 54. The Executive Committee also finds that in the Relevant Match the Scottish team was not the next Senior National Representative Team of the SRU since it had not been so designated by the SRU. The Executive Committee noted, in particular, that the SRU had confirmed in a letter to the IRB dated 21st June 1999, that the Scottish team that played in the Relevant Match was not the Scotland Senior National Representative Team nor the next Scotland Senior National Representative Team. Finding 55. The Executive Committee finds that the SRU team in the Relevant Match was not the Senior or next Senior National Representative Team of the SRU. In the circumstances, although the Player played in an International Match for the next Senior National Representative Team of a Union (the AB’s) the Relevant Match was not played against the Senior National Representative Team or the next Senior National Representative Team of another Union. Accordingly, pursuant to Regulation 7, Jason Jones Hughes is eligible to play for Wales. Costs 56. The Executive Committee have determined that the costs of the IRB Regulations Committee proceedings and the Executive Committee proceedings should be dealt with in the following manner; (a) each party shall bear their own costs; (b) and each party shall be responsible for meeting 50% of the costs incurred by the IRB Regulations Committee and Executive Committee. Moving Forward 57. The Executive Committee believe that this case has raised a number of important issues in relation to eligibility matters. Moving forward, the Executive Committee would wish to recommend that all Unions have regard to the following: a) Their obligation to notify the IRB of their next Senior National Representative Team in accordance with revised Regulation 8; b) The importance of notifying all constituents, in particular, players concerned of the identity of their next Senior National Representative Team; c) The need to avoid, wherever possible, the use of a dual status of teams for eligibility purposes. Ends. For further information please contact the IRB Press Centre Tel: +353 1 662 5444 Fax: +353 1 676 9334 IRB Website: www.irfb.com