The Rugby World Cup 2019 – Litigation Looming on All Fronts

Today we see the major discussions on the Rugby World Cup are more about compensation and potential litigation than what’s happening on the field.

After Saturday’s England v France and New Zealand v Italy games were called off after forecast showed that Typhoon Hagibis was set to ravage the Tokyo area, Alan Gilpin, Chief Operating Officer and Head of the Rugby World Cup at World Rugby has stated that Scotland’s matchup with Japan would again be treated in exactly the same manner if the weather did not abate or infrastructure damaged caused safety concerns.

This fate has clearly upset Scotland who in effect would be ousted from the competition with insufficient points in Pool A. If the match goes ahead, there are a number of permutations which could see Scotland go through to the knockout stages which includes needing to beat Japan and deny the hosts a losing bonus point or by beating Japan and hoping Ireland fail to defeat Samoa.

This has got Scotland running to its lawyers and we read that a leading QC (Nick De Marco QC) has advised in respect of the interpretation of the World Rugby Participation Agreement; no doubt pointing to ambiguous clauses and flexibility in the Rugby World Cup schedule to ensure the match is played. The interpretation by World Rugby clearly differing in respect of the Participation Agreement, with the governing body stringently not deferring from what they say the rules state – this that pool matches can only be played on their scheduled dates.

This begs the question as to what opportunities are out there for Scotland to seek legal remedy. One would imagine that initially they will be arguing very strongly that the game against Japan should take place even if it’s moved to another part of Japan and/or to be played indoors. World Rugby, pointing to the Participation Agreement will most probably argue strongly that all of the participating countries agreed to abide by the rules before the competition. To a certain extent Scotland have very little to lose by forcefully arguing its corner, but absent an injunction to restrain World Rugby from awarding just 2 points on a cancelled game (and effectively dumping them out of the tournament), the next best thing would be a potential claim in damages which in the fullness of time may prove difficult to succeed. If the game does not go ahead on Sunday, arguably no amount of damages claim would suffice in what could see 4 years preparation culminating in an early flight home.

We now learn that broadcasters will be demanding compensation over the cancelled fixtures, all of which will add to a rather painful headache for World Rugby over the next 72 hours and ensuing weeks.

No question the legal representatives for World Rugby will be looking closely at the various contracts and will probably point to what’s known as a “force majeure” clause which provides a complete defence to any claim for compensation on the basis that the forecasted Typhoon is an “act of God” and as such, World Rugby should have no responsibility/liability to pay compensation/damages. However, interestingly in this occasion, the force majeure clause could in fact have a double meaning with Scotland seeking to rely on such a clause which could allow room for manoeuvre and/or allowing their game to be rearranged.

There will then be thousands of spectators who will lose out on experiencing the cancelled games. Whilst they might receive a refund for the cost of the ticket, it would pale into insignificance as to the overall cost of travelling out to Japan with expensive air flights and accommodation. Spectators will be wanting to ensure that any bookings will have ATOL or the equivalent type of protection and failing that, travel insurance policies to cover the losses arising from this unfortunate weekend of weather.

Clearly whether it’s a broadcaster, Scotland or individuals seeking some sort of recourse, the million-dollar question is whether it is reasonable for World Rugby to cancel these matches on the basis that there was no other viable alternative. No doubt evidence will be gathered by Scotland to demonstrate that the game could be hosted at an alternative venue and/or indoors; if it was able to do so then clearly the broadcasters will piggyback on that argument. One would have thought however that the appropriate contingencies would already have been put in place prior to the competition in any event?

The safety of the public and the players is obviously paramount.

With Italy’s game with the All Blacks already cancelled, ending their slim hopes of reaching the quarter final, are World Rugby going to accommodate the Scottish? England, France and New Zealand now have a nicely timed break, arguably putting them at an unfair advantage to the other teams that remain in the competition (by having to play one less tiresome group match) but that is an argument for another day. As things stand, Scotland’s clash with Japan will go ahead as scheduled, with World Rugby to assess and make a final decision on the morning of the game.
It therefore appears that some kind of legal battle is on the horizon over the next 72 hours and we wait to see what transpires, all of which becomes an unwelcome distraction from one of the biggest sporting showcases taking place.

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