Thursday, 7 March 2013

Rugby - Breach of Natural Justice?

The Rugby Football Union is under fire this week following the case of Milton Keynes number 8 Stuart Tomkinson. He was found guilty by an RFU Independent Appeal Panel of racially abusing Slough's Gavin Connor. Tomkinson, who is 39 years old, was banned for 12 weeks.
Tomkinson was cited by Slough, but he was cleared last October at the original hearing. The match referee, who was close to the action, stated that he did not hear the alleged abuse.
 Slough exercised their right to appeal as they were entitled to do under RFU Regulations if they were 'dissatisfied' with the original decision. They sought and were allowed to introduce fresh evidence, the testimony of other Slough players.
The decision of the RFU Independent Panel, which was comprised of 3 independent lawyers is final meaning that Tomkinson has no further right of appeal within the RFU regulations even though this was the first time a panel had found against him.
The reason why the case is controversial is because Milton Keynes RUFC and Tomkinson accuse the  RFU of taking sides. Under RFU Regulations they appointed the independent lawyers who made up the Panel. However the RFU also appointed Slough's legal representatives claiming that'it was in the interests of the game to have Slough's case 'professionally represented' given the seriousness of the allegation'.
Milton Keynes Chairman John Theobald has resigned in protest accusing the RFU of taking sides. The RFU claimed that it was a 'complex case' and that 'slough needed support in their case'. This statement suggests that Milton Keynes may have some cause for their argument.
Stuart Tomkinson was said to be considering whether to take the case to the Court of Arbitration for Sport and ask them to consider the appropriateness of the whole RFU disciplinary process. However any such appeal is out of time and in any event in the absence of a specific arbitration clause granting CAS jurisdiction, and without RFU agreement, the CAS route is closed.
Perhaps it is time for the RFU to consider removing itself from its role in appointing the members of its disciplinary panels, and most certainly from involving itself in the provision, in any way whatsoever, of legal representation. A proper right of appeal would be appropriate as well.

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