An appeal by Hawick Harlequins and Duns over their disqualification from the Scottish Hydro Electric Cup has tonight been upheld by an independent appeals panel.

The panel, comprising chairman, Sheriff Bill Dunlop, Ken Scotland and Donald Naismith, ruled that as the clubs had shown enterprise by agreeing to play their third round tie tonight, and that their scheduled fourth round opponents, Hamilton, would now have a fixture at the weekend, it served the "best interests of the game" to uphold the appeal.

The Panel also considered an appeal from Hawick Linden, similarly disqualified by the independent Championship Committee following their non-fulfilment of a third round Scottish Hydro Electric Cup tie against Langholm last weekend.

Here the Panel upheld the Championship Committee's decision to exclude Hawick Linden from this seasons competition but felt it was harsh and oppressive to exclude them from next years competition. Accordingly the Panel ruled that Hawick Linden could compete in next years Scottish Hydro Electric Cup competition.

A full copy of the Panels decision - of which all involved clubs have been informed  follows.



SRU Cup Appeals 14th February 2008

It is well settled law that an appellate body such as this may not interfere with the decision of a tribunal of first instance on the ground simply that those sitting in the appeals would have exercised their discretion in a different manner. In other words this Appeals Panel is not entitled to substitute its opinion for that of the Championship Committee.

What we are empowered to do is to allow an appeal if one of the grounds in Rule 16 is made out. These are;

16.3.1 the decision of the Championship Committee,
Championship Convenor and/or Championship Secretary
was unduly harsh or oppressive.

16.3.2 the Championship Committee, Championship Convenor
and/or Championship Secretary misdirected itself in the
application (but not the interpretation, which matter is
exclusively for the Championship Committee,
Championship Convenor and/or Championship Secretary
whose decision thereon shall be conclusive and binding
on all parties) of the Laws of the Game and/or the
National Competition Rules.

16.3.3 there has been a breach of natural justice; or

16.3.4 the Championship Committee, Championship Convenor
and/or Championship Secretary reached a decision which
no reasonable Championship Committee, Championship
Convenor and/or Championship Secretary would have reached.

It is not suggested that there is any point taken under 16.3.2 or 16.3.3. The submissions concentrated on 16.3.1 and 16.3.4.
The main thrust of the arguments for the appellants was the unfairness of penalising clubs when the inability to fulfil the fixtures was due to their players being unavailable as they were at an away international supporting the national team. It was further complained that notice of the requirement to play the postponed games was given far too late for other arrangements to be changed. At first glance these points have some attraction.

However, we bear in mind that it was the clubs themselves who decided, and whose decision was recognised in the Competitions Working Party report delivered to the RU AGM in June 2005 that, when necessary, away internationals would be used as standby dates. We quote;


The view of the club representatives was that they would prefer to hold club matches on International match days with kick-off times arranged so as to allow the International to be watched in the clubhouse thereby creating the opportunity for a whole afternoons rugby event and increased bar revenue. The view was also expressed that the majority of players did not attend Internationals and would prefer to play on these days. Accordingly, despite the obvious concerns raised by the SRU representatives in regard to Murrayfield attendances, the recommendation of the club representatives is that when necessary home international Saturdays are used for scheduled fixtures with away international Saturdays used as standby dates.


Further, it is significant that clubs were advised as long ago as June of the standby dates to be used in the event of enforced postponements (adverse weather, ground conditions, etc.). These included 9th February. While the weather this year has been particularly inclement, such conditions are not unknown between December and February. Clubs electing to allow players to take leave for whatever purpose, do so at the risk that they will run foul of the regulations.

On 4th February 2008 the Championship secretary wrote to clubs confirming the requirement that ties be played on 9th February. He also advised that if clubs could agree an alternative date permission should be sought for that. There was the rider that in cup ties such permission would be rare given the strict time parameters. As we understand it no dispensation was sought by any of the present appellant clubs.


Decisions.

Duns and Hawick Harlequins

Had Duns and Hawick Harlequins sought permission with a view to playing the tie on Thursday 14th February, before the next scheduled round, we imagine permission might well have been granted. That fixture was in fact being played as this panel was sitting. As presently advised retrospective permission has been refused by the Championship Committee on the ground that they did not consider it appropriate to review their own decision. We understand that, but in all the circumstances consider that the best interests of the game would be served if we uphold these appeals. We would have considered sending them back to the committee to review but in the light of the lack of time that is not possible. We gave considerable weight to (a) the fact that these two clubs have shown some enterprise in arranging to play the match. The fixture has therefore been fulfilled without causing any problem in respect of the next round; and (b) the fact that the winners opponents will be left without a game at all if both teams remain disqualified

Hawick Linden

As far as the other appeal is concerned we cannot find that the decision to impose the sanction was one which no reasonable Championship Committee, would have reached. The terms of regulation 9 are;

NON-FULFILMENT OF FIXTURES
Any Club not fulfilling a fixture on a date notified by the Championship
Secretary shall be disqualified from the tournament, shall forfeit the right to
any prize money and shall be disqualified from entry to the competition the
following Season. Any appeal against any or all of these sanctions must be
made in accordance with National Competition Rule 16.


It can be seen that these terms are mandatory. A regulatory body cannot be said to be unreasonable in applying a mandatory sanction. The SRU may wish to consider whether the Championship Committee should in the future have their discretion curtailed in such a way, but that is the regulation that was in effect at the time we are concerned with.

This Panel is not so inhibited. It seems to us that it is open to us to hold that the result of the committee below applying the mandatory sanction has had consequences that could be said to be harsh and oppressive but that to the extent only in respect of the exclusion from next years competition.

Linden admit that the proper protocol when problems with fulfilling fixtures arise was not adhered to. As we have already noted, the time strictures that apply in knock-out competitions inevitably require that timetables be strictly adhered to. That is enough to justify the exclusion from this years event. However such considerations do not have such force in relation to next years and we believe that exclusion from that is harsh and oppressive.

For these reasons we uphold Lindens appeal in so far only as the exclusion from next years contest is concerned but refuse it in respect of the ongoing competition.



W Dunlop,
Chairman,
Competitions Appeals Panel

FOOTNOTE FROM CLUB SEC-GORDON MACCALLUM
(A) Langholm were due to play Dalziel on Saturday 9 February in a league fixture. Langholm sought and were given dispensation to cancel the fixture as they intended to travel to Cardiff.

(B) Hawick Linden to play Langholm in cup on Saturday 2 February. This fixture postponed due to weather. SRU rescheduled fixture to Saturday 9 February (along with P1 fixtures, you may recall).

(C) SRU issued email to all clubs informing that cup games must be played on Saturday 9 February due to time constraints on the cup competition which did not apply to league. I was informed verbally last week whilst attempting to resolve the Heriots situation, that some clubs had applied for dispensation from cup games due to Cardiff trips but had been told to play or forfeit.


(D) Hawick Linden's misdemeanour appears to be that they did not (i) attempt to re-arrange the fixture at short notice - see Hawick Harlequins playing Duns tonight with winner now playing Hamilton (who had arranged to play Currie as they had no fixture) on Saturday; (ii) contact Murrayfield.

(E) As a result of the above Langholm now have to play their cancelled fixture against Dalziel on Saturday, who were gearing up to host the Hawks

This article was originally posted on 14-Feb-2008, 20:50 by Hugh Barrow.
Last updated by Hugh Barrow on 14-Feb-2008, 21:45.