A Legal Opinion For The Super-6 To Consider

IN THE following post, the words in italics are those of Robert Holland – a partner at Balfour and Manson LLP, specialising in employment and sports law. Robert wrote the article for Monday's legal pages in the print edition of The Scotsman – so, obviously not many people got to read it, such is the diminished state of the venerable Hootsmon and the Scottish print media.

However, I thought there were lessons to be learned, and warnings to be heeded from Robert's excellent piece, so, with his permission, I reprint it below. I have underlined and emboldened those issues which I think require further consideration by the clubs and the rugby community, while my own comments and observations are at the end of the article and not in italics.

Robert Holland - his is a thought-provoking article

“The Scottish domestic rugby campaign is well under way, in what might well be the last season where we can watch our top amateur players and clubs perform for the love of the game. From 2019/20, the much-debated “Super 6” tournament is launched by the SRU, with the proclaimed aim of bridging the skills gap between the professional franchises at Glasgow and Edinburgh and the current premiership teams.

Among various proposals are for each of Ayr, Boroughmuir, Heriots, Melrose, Stirling County and Watsonians, to form elite squads of 35 semi-professional players, backed by full coaching and support staff. Teams will play each other three times, with the remaining fixtures to be cross-border, against English or Welsh league clubs.

This new set-up does pose a number of interesting legal issues for both the clubs, and those selected for one of the franchises. The principal issue will be the legal status of these players and coaches, and whether they will be employees, workers, or still amateur volunteers.

Employee status is the hot issue in employment law currently, with the cases of “Pimlico Plumbers Ltd and Mullins v Smith UKSC29 and “UberBV and Other v Aslam” attracting widespread attention by bestowing worker status on individuals previously thought to be self-employed.

With worker status meaning access to holiday pay, National Minimum Wage (NMW) and minimum rest periods, the impact on employers has been huge. While the rugby franchise documentation makes interesting reading, it is clear that players are to be offered “contracts”, initially for fixed 9-12 month periods.

They will not be paid a salary, but a “fee” for training or playing. They will not be allowed to play competitive rugby for anyone else and will be with their clubs at least 4/5 days a week for training and matches.

Taking the test in Pimlico, which concentrated on the “tight control” element of the relationship, it seems that these 250 new professionals will indeed be at least workers, if not employees.

Rugby bosses would be wise to have a careful look at the consequences of this when they come to their budgets for next year. While the SRU has promised minimum funding of £137,500 for each team per annum, with at least 50 per cent of that to be matched by the clubs, a budget of around £250,00 to run a semi-professional franchise is going to be tight.

While there is a salary cap of £12,500 per player, the average player will probably be paid half of that but be “working” for 18 hours a week. Even taking into account lower NMW rates for those under 21, it would seem that complying with the minimum wage requirements here will be difficult.

But many other employment benefits are then required. Players will be entitled to paid leave, as above. Each player will presumably be required to be auto-enrolled in a pension scheme, creating greater costs for the club. Employer Liability insurance will need to be increased, along with employer NI contributions.

Perhaps one of the most interesting scenarios will involve the mooted games against clubs in England or Wales. If say, Stirling County are travelling back on the bus overnight from playing Cornish Pirates, will the travelling time be “working time”? The case of Royal Mencap Society v Tomlinson-Blake 2018 EWCA looked at the issue of “sleeping time” in the context of care workers, and found they are only to receive NMW when “actually working” and not asleep. While this may be a temporary relief, the case may well proceed to the Supreme Court.

From the player’s perspective, a move into professional sport which may be their livelihood will mean a consideration of issues perhaps were not taken seriously before. Players should look at making Powers of Attorney, given the fact that serious injury, while rare, does happen. Legal expenses Insurance should be considered for claims, and even insurance for medical and dentistry might be on their wish-list for employee benefits. They should also make themselves aware of the protections against discrimination and unfair dismissal, albeit the initial one-year fixed term contracts seem designed to defeat any such claims.

While the move to Super 6 will hopefully lead to an increase in skill level and ultimately a better Scotland team, it may be that both employers and employees will look back fondly on a time when players played for a pie and a pint, without the legal complexities.”

Looking at the points I have under-lined; sorry Robert, but, there cannot be many, if any players, currently playing in the Tennent's Premiership, who are performing: “for the love of the game.” Semi-professionalism is already here – moving to the Super-6 will merely legitimise the situation.

The point about the legal position of the players is an excellent one. At the moment, probably to the relief of the SRU, the RPA – the English “trade union” headed by Damien Hopley, which looks after the interests of most of England's full-time Premiership and Championship does not operate in Scotland. The 100-plus full-timers with Edinburgh and Glasgow do not have the collective bargaining power or support of a trade union. Maybe that will come.

Significantly, the RPA does not work with semi-professional players, however, the footballer's trade union – PFA Scotland, does work with part-time footballers in the lower leagues up here. I can see the day when Scotland's rugby players, full and semi-professional, have that safeguard.

I can also see, as happens with footballers, even semi-professional ones, sports agents moving in, which will probably muddy the waters before they clear. This might impact on clarifying the legal position of the players and have an effect on how much money they earn and how it is paid.

That line about a budget of £250,000 per season being “tight” might come as a shock to some clubs. In a past post I reckoned £300,000 per annum might be a reasonable budget – and I was told by more than one person involved in franchises I was: “talking shite, and my figures were way over the top.” I don't think I am, and Robert Holland clearly doesn't either.

That £12,500 salary cap. Hmm!! Clearly, one or two Premiership players might be facing a pay cut to play Super-6. Aye Right!!

The devil, as ever, is in the detail. Robert Holland, in his excellent piece, has highlighted several less-obvious points which will require to be addressed. Clearly, the six clubs have an awful lot of work to do, before the big kick-off in less than one year.