FrontRow Legal - Front Row Legal

Following our virtual breakfast seminar held on Wednesday 8 April, the speaker being Sir Ian McGeechan OBE, here are some short clips of the event. Thank you to everyone that attended. The testimonials to the seminar can also be read here.

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Front Row Legal are a boutique law firm that specialises in Sport, Media and Business Law in England and Wales. They have specialist knowledge in these areas of law, which means they can help where many law firms won’t have the experience. They are based in Leeds with a national client base. frontrowlegal.com

Click here to read Richard Cramer's interview with The Guardian where he discusses The Premiership Rugby and insurance.

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With social distancing and lockdown measures still being implemented in the UK, many of us have had to make adjustments to a new way of working. This can pose even more difficulties if an employee is dealing with a grievance or disciplinary action. Guidance has recently been published by ACAS so that employers and employees alike know where they stand.

Every employee is different. During this time, some may be facing other stressful circumstances. To add a grievance or a disciplinary matter on top of everything can naturally cause further stress.

For this reason, employers have a duty to carefully assess the following factors:

The employee’s position and circumstances: Are they in furlough, working from home or resuming work as normal?
The seriousness of the grievance or disciplinary action: Is the matter urgent or can it be addressed at a later stage?
Objections: Do the parties involved have any reasonable objections?
Fair and reasonable: If the procedure goes ahead, is it fair and reasonable?

To those wishing to raise a grievance or are in the middle of a disciplinary action, it will be useful for the employer to outline the various options available to the employee in question. If the procedure is to go ahead, the employer should state what the next steps are. If it is to be postponed, the employer should state the reasons as to why this is.

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Furlough

Employees currently on furlough should note that they may still be able to take part in any grievance or disciplinary matter in certain circumstances. This includes if they themselves have raised a grievance, are currently under investigation in a disciplinary procedure or are involved as a party to these hearings. In these circumstances, a furloughed employee can partake provided that they do so voluntarily and that their involvement is in line with public health and safety.

Open workplace

As expected, there are still a number of employees who leave home and make their way to their usual work setting. This includes “key workers” who are still carrying out essential jobs whilst the virus is still present. In this instance, ACAS rules will still apply. In the same vein, employers will need to ensure their next steps are in line with public health and safety. If a grievance or disciplinary meeting is to be held at the workplace, it will need to allow for social distancing and privacy.

Working from home

For the remainder of employees, the majority have had to work from home. ACAS advises that if an employer is to carry out a grievance or disciplinary procedure, this should be conducted in a “fair and reasonable” manner. This means having to use video chat services such as Skype and Zoom. To assess fairness, the employer should take into account aspects such as internet connection, reasonable adjustments for employees who have a disability and even clarity of screens so that those involved can see evidence clearly.

It should be noted that video chats should not be recorded, unless there is a good reason, in which case this should be in accordance with the Data Protection Act 2018.

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If the procedure goes ahead…

An employee going through a grievance or disciplinary hearing will have the right to be accompanied, even if this is remotely. During the hearing, the companion has the right to sum up the case, respond on behalf of the employee and talk privately when necessary.

If it is the case that the companion cannot attend at the scheduled date and time of the hearing, the employee can rearrange this provided that the new date is reasonable and not more than 5 working days after the original hearing date. With Covid-19 still very much present, this means that the availability of companion can prove trickier than in normal circumstances. Should there be a delay of more than 5 days, an employer will need to question if this reasonable. Furthermore, If a disciplinary hearing results in dismissal, the employer will need to show that they took steps to avoid unfair dismissal.

Steps to take after the procedure

If after the procedure has gone ahead and the employee feels they want to appeal, they have the right to do so. The employee may also make a claim to an employment tribunal. If so, they will firstly need to inform ACAS. In terms of time limits, the claim should be made within 3 months less 1 day. The same time limits apply even during Covid-19, regardless of whether a disciplinary or grievance procedure has been postponed.

Should the matter be taken to litigation, the courts will check to see if the employer has abided by ACAS’s Code of Practice, all whilst ensuring every action taken by the employer has been both fair and reasonable.

For more information on disciplinary and grievance procedures, please visit the ACAS website here.

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Ken Jones is a successful Business Consultant whose initial career was in the Military serving with many notable Regiments including the Special Forces.

Since leaving the Army Ken spent 20 years in the Telecoms industry for T Mobile, O2 and as Vice President International for Marconi Services.

In his career as a Consultant Ken has worked for several Blue-Chip organisations providing Change and Transformation projects, his clients included the BBC, Npower, Tunstall Telehealth, McGee, Samsung and the RFL.

Ken has a wide-ranging experience in Rugby League not only at the governing body but on the front line with Featherstone Rovers, Sheffield Eagles and Bradford Bulls RLFC.

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Transformation or Die

It is now time to be open and honest with ourselves, the game of Rugby league has been struggling for many years to not just grow; but to simply survive. Operating costs (coupled with reduced revenues (lower crowds, poor sponsorship and reduction in commercial income due to increased competition) has created a perfect storm.

Covid-19 is not the cause of the situation, it has simply accelerated the problems which have beset the game.

Things started to really go awry after the vote in Manchester to essentially allow a break away by Super League to run its own competition. As was stated many times during this process the game would become fractured and incur significant additional costs which the game could not fund.

There is perhaps a sudden realisation that maybe this was not the way to go, however to simply continue to bumble along hoping upon hope that the virus disappears and we can continue as normal, is not facing up to reality.

What we must to do now is stop all competition for the season and conduct a full, open, honest and radical review of the game as a whole. Now is not the time for emotion or to be distracted by tradition.

Change is best managed when you are in control, it requires a radical and painful Transformation to ensure it is fit for the future, it needs to re-focus on becoming truly sustainable, here is a radical 10-point blueprint for success:

A Clear Strategic Direction – This has to be a clear and concise realisation of what we are, what we do well, and what we do badly. The starting point for any effective strategic plan is the “Vision” and what success looks like.
Transformation – A whole game review undertaken by independent professionals. This review is a full top down, sidewise review looking at, Skills, Staff, Systems, Structure, Leadership Style and Systems. Most radical of all is the Structure, currently too top heavy and with too many Clubs offering a poor return in investment and a major consolidation would be required.
A Professional Game Board – Urgently needed to be the driving force behind both any changes needed for implementation but also to ensure the game is managed effectively and remove conflict of interest from decision making.
Sticking to the Knitting – This is a Marketing Term which means stick to what you are good at (Core Competencies), let’s be honest we are poor at expansion. Let’s look at Paris, Wales on numerous occasions, plus the multiple reincarnations of London. We should be honest with ourselves and accept that we are a Northern game. We can be proud of our heritage, focus on our strengths and remove the weaknesses. Rugby League simply cannot afford financially to continue with an expansion strategy that clearly has little benefit in the current climate.
Reduction/Removal of Overseas Players – Overseas players which do bring enjoyment to the game is unfortunately costing the Clubs large amounts in financial resources (Wages/Travel/Schooling etc), which perhaps could be better spent elsewhere.
Focus on Home Grown Players – Every £ saved on overseas players could be spent on developing our own talent and growing participation. If we use Bradford as an example, (even after all the troubles that they have encountered) they have maintained a superb academy and player pathway system. This has netted some substantial revenues to ensure their survival. Hull KR have designed and developed an Academy system that will benefit them for years to come. This in turn aids the National Team by producing top quality talent.
Franchise – Bring back Franchising but not as it was previously, by implementing a fixed 3-year term governed by strict KPI’s the game would benefit by periods of stability and growth. The Franchise would not be simply for Super League but the levels below to ensure consistency and ensure any Clubs wishing to be promoted via the system are fit for purpose. Further benefits are sustainable growth and businesses capable of moving seamlessly between levels of competition.
New Governance – The game in many ways is stifled by regulation and not flexible to be able to react quickly to issues or opportunities. Continuous rounds of consultation followed by poor decision making has hampered the growth and effectiveness of the game. A new governance model is urgently needed to ensure the game can meet the challenges of the future.
Business Ethos – Rugby League needs a greater approach to working as a business at all levels, the focus on player spend hampers Clubs with little ability to invest in the resources to run a business, being more reliant on well-meaning volunteers. Club’s should be working to a standard structure with Skills appropriate to their needs. KPI’s would therefore drive the need to invest in appropriate skills and resources in order to run and grow businesses effectively.
Consolidation – Not enough money to go around what should we do? Consolidation is critical requirement, we have too many underperforming Clubs both on and off the field. The game simply cannot afford to maintain so many Clubs. With a new TV deal probably not producing the same levels of income, distribution levels are expected to dramatically reduce. Reducing the number of Clubs will ensure a slimmer more sustainable financial model for the game, the player pool will be improved rather than damaged as players can move elsewhere and the games themselves become more competitive.

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In the absence of games being played and logistical difficulties the Government bailout, as requested by the RFL, becomes critical especially with the Rugby League World Cup in 2021.

With the backdrop of the UK Government’s 5 point action plan that must be met before it considers lifting the lockdown measures and as we approach the next review date, 7 May 2020, in this first part blog we examine some of the current challenges faced by professional rugby league clubs, the impact it has on players and the legal issues that stem from complying with the Government regulations.

Duty of Care

The RFL (the national governing body for Rugby League in the UK) has a duty of care to its members. In turn, each UK based professional club has a duty of care, as employers, to their employees (whether it’s players or staff members) as well as comply with employment and health and safety legislation.

Putting economic pressures aside, for the sport to be in a position to ‘bounce-back’ there’s going to have to be some careful strategic planning which doesn’t fall foul of the Government regulations, doesn’t put anyone at unnecessary health risk or breach any terms of contract. The RFL, in line with their duty of care, have already collected feedback from Stakeholders to canvass opinions from across the game whether it be Men’s, Women’s and Wheelchair; players and their representatives; coaches, match officials, media and medical professionals to aid discussions with Clubs and Council members as to the future of the game. With a total of 183 completed surveys there’s a lot of issues (understandably) being raised.

Health & Safety

We hear daily at the Government’s press conferences the scientific advice delivered by the senior medical advisors. The consistent message being ‘Stay at Home. Protect the NHS. Save Lives.’

To see games back in action once the restrictions are relaxed, a lot will depend on how the RFL agree on fixtures, how Clubs intend to operate in line with the limitations, to provide a safe working and playing environment. Stating the obvious but being a full-contact sport how can Clubs ensure social distancing between the players even if matches take place behind closed-doors? How do you prevent players from spitting on pitch or from hugging each other during celebratory win?

What about the fans? There’s been talk generally about having matches behind closed-doors with a limited number of attendees, but even with a limited number of attendees that in itself can potentially bring problems for the owners of stadiums who owe a duty of care (under the Occupier’s Liability Act 1957) to people who visit.

Player Welfare

Players are employees and have the same employment rights as everyone else. There are a lot of uncertainties for players coming out of contract at the end of November (June for rugby union/football). Player safety has to be paramount and it’s not uncommon for players to feel vulnerable about returning to the field before it is safe to do so for fear of contracting the virus and passing it to their families. The key issue for Clubs will be if a player objects that the venue for training or games are not safe and so not reasonable for them to participate. The thought of seeing players playing in masks and gloves would feel surreal.

Club Finance in the UK

We’ve all heard about CBILS (set up by the Government to help small and medium-sized businesses affected by Covid-19 to access finance of up to £5m). Sounds great in theory but the reality of qualifying for CBILS is much more challenging than first meets the eye. Whilst it took some time for the Government to let go off the personal guarantee criteria, the remaining general requirements to provide banks with profitability and cashflow forecast is a challenge for any business let alone a rugby league club which relies on its fan-based revenue to survive. So how can it realistically forecast its cashflow with sport on hold, lockdown measures in place and players and staff in furlough?

Only recently we’ve seen it reported that Hull FC owner, Adam Pearson, has been critical of the Government and the bank after being denied a loan which would have helped them get through a period with little to no income.

The CJRS (set up by the Government as a job retention scheme) to cover wages for employees on temporary leave (furlough) comes to an end at the end of June with no sight of that period being extended. Really this scheme has been the lifeline of Clubs, so how can they be expected to survive when this scheme ends and lockdown measures in situ?

Even with the recent initiative of the Government’s Bounce Back Loan (to help small and medium-sized businesses affected by Covid-19 to access finance of up to £50k) which we’re told is a one-page simple application and money given within 24 hours of approval, may well help a Championship Club but for a Super League Club they may in the short term see some benefit but they certainly won’t see much major benefit in the long-term.

Overseas Clubs

It was announced recently by the French Prime Minister that sport, including behind closed doors, wouldn’t continue until September.

That leaves both Catalan Dragons and Toulouse Olympique not being able to host matches for the majority of the season. An issue both Super League and the RFL probably hadn’t anticipated. It’s highly unlikely that a pandemic would feature in a contingency plan. How and when will fixtures be set and be fair?

We’ve also seen a three phased plan unfold ‘Framework to restart Ontario’ which sees sporting events continued to be restricted for the foreseeable future. Where does that leave Toronto Wolfpack?

Travel Restrictions

Even if we dare ourselves to imagine fixtures taking place, how can players and the like be expected to travel and attend? Whether it be Catalan or Toulouse or Toronto entry restrictions may well see them being quarantined for at least 14 days, how is that even practical let alone the health and safety risks it could impose and duty of care on the Clubs?

The consensus will be its never-ending, no win, situation.

If lockdown measures or social distancing continue for the foreseeable future and if Clubs can’t get access to the finance that it desperately needs, isn’t it inevitable that the game will die?

The Government clearly has a duty of care to the public and whilst it’s good news to hear the Prime Minister announce today that we’re ‘past the peak’ there is still a lot of uncertainty. The biggest danger would be to start bringing games back into the calendar but then finding that the reproduction rate “R” rises above 1 meaning a further lockdown period making it very difficult to start planning ahead. Guest blogger, Ken Jones, explores in the second part blog his 10 point blueprint to reset the game of Rugby League and to see it prosper as a success in the future.

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In the first of our series ‘Covid-19 Legal Surgery’ we focus on wedding cancellations.

It’s becoming more and more the norm to see stories like these hitting the headlines, brides and grooms across the country in battles with wedding venues charging thousands of pounds in cancellation and postponement fees for weddings that can’t go ahead due to Covid-19 lockdown. Is that even legal?

Our senior partner, Richard Cramer, gives an insight into his first hand experience of dealing with such matters when he was faced with the cancellation of his eldest daughter’s wedding which was due to take place on 29 March 2020.

“What I was able to do through legal knowledge and skill was achieve an overall satisfactory outcome resulting in all contracts being rolled over to a postponed wedding later in the year.”

It goes without saying that wedding contracts and wedding insurance policies need to be carefully analysed. One wrong move could leave you in a much worse position with little recourse.

It’s important to remember that it’s not just venue contracts but also associated suppliers whether it’s caterers, photographers, band, florists, make-up artist and hairdressers, hotel bookings and of course travel arrangements for guests and the like. Each contract will need careful examination on the terms that it was entered into.

Litigation is always the last resort, we actively encourage ADR to bring about a satisfactory resolution, more so in these testing times.

We are happy to provide an initial advice on a fixed fee of £85 plus VAT to cover one hours’ worth of work dealing purely with the contractual issues. Simply call Richard on 07850 943 892 or email richard@frontrowlegal.com.

In line with our commitment to you, dependent on the advice, we again would be looking towards a fixed fee arrangement in order to raise issues with the wedding suppliers/wedding insurer.

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Click here to read on how Richard Cramer explains how the Super League could face contract minefield if the season goes on beyond 30 November.

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Click here to read on how Richard Cramer explains that players must agree to wage cuts and that contracted stars could walk away, leaving clubs vulnerable.

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Richard Cramer's interview with BBC Sport here highlights how the current pandemic is affecting the Premiership Rugby and suggests what could have been done.

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Take a read here, where Richard Cramer discusses with The Telegraph how the current coronavirus pandemic could affect which team Jonny May will play for.

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Click here to read Richard Cramer's interview with I-news where he discusses how Jonny May's transfer from Leicester Tigers back to Gloucester will set a precedent that could cause havoc.

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Richard Cramer provides his insight on Sky Sports regarding the latest FIFA corruption charges. Click here to watch.

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