Details Can Be Extremely Difficult Little Devils

WE ARE NOW FIVE DAYS PAST MID-SEPTEMBER:

WHERE IS YOUR PROMISED REVIEW LESLEY THOMSON?

I HAVE been consistently saying two things, since right from the first mention of Super-6:

• The devil will be in the detail
  
  
• If anyone or anything can mess it up – it will be the SRU.

BUT, even bearing that alleged/supposed anti-SRU bias of mine in mind, sometimes the devil in the detail conspires against them regardless of what they do. For instance, everything the guys inside BT Murrayfield (BTM) do, is governed by the SRU bye laws.

Bye Law 2 covers the objects of the SRU, and defines these, among other things as:

2.1

to act as the governing body of the game of rugby football in Scotland;

2.2

to promote, encourage and extend the game of rugby football throughout Scotland;

2.4

to arrange trial, representative, international and other matches which may be for the good of rugby football; and

2.5

to assist clubs which are Full Members or Associate Members, and Associated Bodies in furtherance of the Objects of the Union.

We then need to look at bye law 15, which covers the activities of the Board; this says:

Powers and Specific Functions of Scottish Rugby Board

15.1

The Union may perform the following matters acting directly or through Scottish Rugby Union plc, namely:-

15.1.1

The achievement of the objects of the Union.

15.1.2

The management of the whole affairs of the Union and/or of the game of rugby football.

15.1.3

The exercise of any power granted to the Union in terms of the Bye-Laws.

Therefore, when whoever within BTM came up with the idea of Super-6, and sold that idea to The Fat Controller. When TFC took the notion to the Board, and got their agreement – within the bye laws, Super-6 would happen.

However – as we know, the Super-6 idea was spawned within the SRU's Performance Department, which is directly controlled by the Board.

But: as far as the clubs – the main stakeholders in the SRU are concerned, while the Board has a lot of power, THE important body is the SRU Council. The Council's powers and responsibilities, as outlined in the bye-lines, in Bye-Law 14 are many; bye-law 14 has no fewer than 11 sub clauses, the vital ones in which, in respect of getting Super-6 up and running are:

14.1

The Scottish Rugby Council shall have responsibility for overseeing the management of the affairs of the Union and reviewing the executive management thereof delegated to the Scottish Rugby Board.

14.2.3

To determine the format of the national club competitions which are defined in the National Competition Rules.

Thus, while it was OK for the Performance Department to say: “The Premiership is not fit for purpose, so we need to come-up with a new tier of rugby between the top of the club game and the professional game.”

And while it was OK for TFC and the Board to decide to implement Super-6, they cannot do this without the approval of the Council. And, surely, once the Council got wind of Super-6, they were surely duty bound to consult their clubs about it. What the clubs need to know is:

• Did TFC give the Council prior knowledge of his intention to announce Super-6 before the 2017 agm, and was that approval forthcoming?

Because, the announcement certainly appeared to come as a big surprise to everyone at that agm.

The clubs also need to know:

• How far down the road are the Council towards establishing, under their brief via Appendix one, bye-law clause 14.2.3: the format of the Super-6 competition?

Now we come to perhaps THE most-contentious part of the whole Super-6 moger – the status of the clubs.

As we have established:

• The SRU Board has the right to decide – we will start a new franchised tier of rugby in Scotland: Super-6
  
  
• But that right has to be rubber-stamped by the Council.
  
  
• Even if it was, that Council decision still has to be signed off at an agm or sgm – since, at the agm on 4 August, the clubs re-emphasised their right to have the final say on such matters.
  
  
  
  
  

PERHAPS, IF the Board and Council had announced the Super-6 franchises as being initiatives from the Performance Department, they could have avoided much of the upset which has gone on over the past year or more. But, the decided instead to make the franchises part of the Domestic Game Department, and therein lies the source of most of the problems.

Because – bye-laws five and six, which deal with such matters, throw-up several issues which need to be overcome.

For instance:

• Are the franchised clubs “new” clubs?
  
  
• Or are they associate clubs/teams with an established club?

If they are new clubs – then they only need to properly negotiate the membership protocols as outlined in bye-law five, and for their application for associate membership to be approved by the board; with that decision rubber-stamped by the clubs at the agm.

HOWEVER, there are potential pitfalls for the six franchises, via bye-law six, where we learn:

Qualification for New Full Members and control of clubs

6.1.

No Associate Club shall be eligible for Full Membership of the Union unless it has all the following qualifications:-

6.1.1

unbroken Associate Membership of the Union for a period of not less than three years.

6.1.2.

ownership or satisfactory tenure of, or the right to use a ground with adequate facilities.

6.1.3

membership of not less than fifty covering a period of not less than three years immediately prior to nomination.

6.1.4

playing in a league for three full seasons (excluding age group leagues) and which league is designated as a qualifying league for the purpose of this Bye-

Law by the Scottish Rugby Board.

6.2

In the event that a Full Member Club fails to maintain the criteria for Full Membership of the Union for a continuous period of three years the Scottish Rugby Board may resolve to remove the Club from the list of Full Member Clubs and such Club shall henceforth become an Associate Club.

6.3

In the event that a Full Member Club or an Associate Club wishes to transfer its assets and liabilities to another legal entity for the purposes of re-structuring or reorganisation then such club may do so and the other legal entity shall replace such club as the club admitted to Full or Associate Membership of the Union, provided the Scottish Rugby Board has approved the proposed scheme of re-

structuring or re-organisation.

6.4.

In the event that a Full Member Club or Associate Club is connected in the operation of its affairs to another legal entity such club may seek recognition by the Union of such entity as a body or organisation affiliated indirectly to the Union. In granting such recognition the Scottish Rugby Board may impose such conditions as it considers appropriate.

6.5.

No legal entity (whether an individual, body corporate, unincorporated body, partnership or trust) may own or control more than one Full Member Club or Associate Club whether acting on its own or in concert with any other entity or entities. Entities will be deemed to be acting in concert if (a) they are controlled by another entity or (b) pursuant to an agreement or understanding (whether formal or informal) such entities actively co-operate to obtain or consolidate control of a club, or to share in the potential financial success or failure of such a club or any of its business enterprises.

For the purpose of this Bye-Law “control” means (a) in relation to any entities other than a body corporate, the power of a legal person or legal persons acting alone or in concert to secure, by virtue of the rules regulating the club that the affairs of the club are or could be conducted in accordance with their wishes,

or (b)

in relation to a body corporate that the entity or entities acting in concert either directly or indirectly has or would have a controlling interest in the club or (although not having such an interest in the club) such entities are capable of securing that the affairs of the club are conducted in accordance with their wishes, and for this purpose an entity has or entities acting in concert have a controlling interest in a club if it or they hold directly or indirectly 25% or more of the equity capital or voting power in it.

In the matter of the six franchises – I would suggest bye-law six, clauses three, four and five come into play, and present the six franchise-holding clubs, and the SRU, with some considerable local difficulties to overcome.

In particular, although I have no legal training, as I read it, bye-law 6.5 is an absolute legal minefield for the six franchise-holding clubs, particularly when it comes to running both the Super-6 franchise and the “amateur core” club.

Nothing wrong with Ayr forming “Ayr Raiders” to enter S6 – or Melrose opting to play in that competition, but forming “Melrose Mosquitoes” to play in the Tennent's Leagues.

However, there is an argument that by declaring “Ayr Raiders” and “Melrose” to be their organisation's prime club, the rugby entities at Millbrae and the Greenyards – not forgetting the other four S6 organisations, have to negotiate the minefield of bye law six.

In particular, they have to make a viable case whereby “The Glasgow Hawks Protocol” does not apply and the “amateur” arms have to go back to the Regional Leagues.

I am sure M'learned friends could have lengthy, lucrative and mentally-taxing fun with arguing that point through, and reaching an acceptable conclusion.

The details in this whole affair are devilish.