Last month, we considered Tom Arscott’s sacking by the Aviva Premiership Rugby side Sale Sharks.  Not only was this a fairly novel occurrence of a member of a sports team being sacked by their current employer for a breach of confidentiality, it also served to highlight, in a broader employment context, the obligations of confidentiality that an employee owes to their employer.

In addition, we also considered the potential sanctions that the Rugby Football Union (“RFU”), the governing body for rugby union in England, could impose on a club that was found to have breached the RFU’s Rules and Regulations (“Rules and Regulations”) in relation to the alleged leaking of information that could be regarded as “confidential”.

To quickly re-cap of the events leading up to Arscott’s sacking:

• 1 January 2017 – the home side, Sale Sharks, lose a tightly-fought match, against fellow strugglers Bristol Rugby, 23-24, with the visitors mounting a stirring fight-back from 15 points down.

• 4 January 2017 – days after the game, members of Sale Sharks’ squad approach director of rugby, Steve Diamond, with allegations that Arscott had passed “information” to Bristol in advance of the game. Arscott is suspended by Sale Sharks and internal investigations commence.

• 16 January 2017 – media report first emerge that the RFU is investigating a complaint from Sale Sharks’ that “tactical information” was leaked to their opponents in advance of the fixture and that Tom Arscott met his brother Luke (who plays for Bristol Rugby) at Bristol Rugby’s team hotel the night before the game.

• 19 January 2017 – with the RFU investigation still in progress, Sale Sharks confirm that Tom Arscott has been sacked following the conclusion of an internal disciplinary investigation and hearing.

The RFU has now confirmed the outcome of its investigation in a statement released earlier this week. Whilst it was unclear from media reports at the time, it is now apparent from the statement that Sale Sharks lodged their complaint to the RFU on the basis that the leaked “confidential tactical information” had been passed to coaches and players at Bristol Rugby and had subsequently been used by their opponents for their own benefit during the New Year’s Day fixture. Moreover, the RFU’s statement confirms that this leak was alleged to have amounted to a breach of Regulation 17 of the Rules and Regulations, which relates specifically to Anti-Corruption and Betting.

The RFU’s key findings were as follows:

• Tom Arscott was found to have discussed tactical information with his brother ahead of the match. More specifically, this information related to Sale Sharks’ plans to occasionally use some backs in their lineout and that another back would be defending in a different position at certain times.

• Pursuant to Regulation 17.2, the RFU determined that the “non-public information” provided by Tom to Luke fell within the definition of “Inside Information”, which expressly refers to “tactic(s) and/or strategy(ies)” but also includes information relating to selection and injuries.

• Inside Information which related to the proposed defensive structure in the Sale backline was provided to two Bristol Rugby coaches. However, the RFU found that there was no evidence to demonstrate that Bristol Rugby “changed any of their game strategy to deal with Sale’s defensive positional changes”.

• In addition, having made inquiries with various betting operators and having found no evidence of any betting or fixing, it came to the decision there had been no breach of RFU Regulation 17 by either Tom Arscott or anyone who was provided with the Inside Information in question.

• Moreover, the absence of any evidence of any suspicion of any fixing or betting by anyone involved in the incident, meant that Bristol Rugby had not failed to comply with the relevant reporting requirements in relation to the Inside Information that the club received.

• However, the RFU did deem Tom Arscott’s behaviour to be “inappropriate” and issued him with a written warning for his conduct, as well as requiring him to undertake “a relevant World Rugby education module”.

Under Regulation 17.4, the RFU has extensive investigatory powers, which include the ability to:

1. request copies or access to all records relating to the alleged breach, including telephone records; bank accounts; credit card and transaction details; emails; and betting account records; and

2. request written statements from those involved.

In order to reach its decision, the RFU appears to have utilised its investigatory powers to good effect, interviewing 25 individuals from the respective clubs and making the afore-mentioned inquiries with various betting operators.

Duties of Connected Persons to report

The RFU’s statement raises interesting questions about the purpose of Regulation 17; the reasons why Sale Sharks submitted a complaint to the RFU; and reasoning behind the decision that was reached.

In particular, reference is made in the RFU’s statement to Bristol Rugby having not failed to comply with the “relevant reporting requirements”.  These requirements are found in Regulation 17.3.5(a) and state that:

• any Connected Person – the definition of which includes (amongst others) players, match officials, coaches, selectors and team officials – who has knowledge of various behaviours (i.e., approaches, invitations, inducements etc) to any other Connected Person;

• which relate to:

  • Prohibited Betting (defined in Regulation 17.3.1) and/or Fixing (defined in Regulation 17.3.2) and the provision of Inside Information for such purposes; and/or

  • any other conduct, information and/or credible suspicion in relation to any conduct which may breach any provision of and/or be relevant with respect to Regulation 17; and/or

  • any other conduct, information and/or credible suspicion in relation to any conduct which “may otherwise pose a threat to the integrity of the Game”;

• must make a report to the designated Anti-Corruption Officer.

Regulation 17.3.5(b) goes on to confirm that, if a Connected Person fails to fulfil their reporting obligations, they will receive the same sanction as if they had committed the Anti-Corruption Breach themselves.

Why did Sale Sharks make a complaint to the RFU under Regulation 17?

The RFU’s press release confirms that the basis of Sale Sharks’ complaint was that the leaked tactical information had been used by Bristol Rugby to its benefit during the game and that this, in itself, constituted a breach of Regulation 17.

At first blush, this seems intriguing, given that Regulation 17 does not set out to deal with instances where Inside Information is used to a participant’s sporting advantage.  Instead it seeks to prohibit, prevent, and provide sanctions for, situations where Inside Information could be, or has been, used to participate in Prohibited Betting and/or Fixing.

However, Sale Sharks may have submitted their complaint for fear of falling foul of Regulation 17.3.5(b), on the basis that the passing of Inside Information by Tom Arscott to his brother constituted behaviour that posed a “threat to the integrity of the game”, particularly if they felt it may have influenced the eventual result. Indeed, this seems to have been reflected in Steve Diamond’s comments to the media at the time the news first broke, when he stated that “under the regulations, we have to report it”.

What does the RFU’s decision reveal about the scope of Regulation 17?

Despite Sale Sharks complaint, the RFU’s investigation clearly led it to the conclusion that:

1. no Prohibited Betting and/or Fixing, or attempts to do the same, had taken place – this conclusion was no doubt reached, in part, after enquires that were made with various betting operators and presumably confirmed that no Prohibited Betting and/or Fixing had taken place; and

2. that the provision of the Inside Information did not influence the outcome of the game in any way, given that the RFU was satisfied that Bristol Rugby had not “changed any of their game strategy” after receiving the tactical details – this no doubt assuaged any concerns that the RFU may have had that the more nebulous concept of the “integrity of the game” had, in some way, been threatened.

These findings will be a relief to Bristol Rugby, who published a brief statement expressing their disappointment at being “wrongly accused” and “that the complaint was made public at such an early stage in the process”.

For his part, Tom Arscott has since confirmed that he never intended any harm to Sale Sharks, that informing his brother about a “a new move that I thought we would score off” amounted to “banter” and, rather than sporting espionage, it was more an expression of “sibling rivalry”.

Arscott will now be keen to find a new club and resume his playing career as soon as possible.  Indeed, when explaining the decision to only issue Arscott with a written warning, the RFU’s head of discipline, Gerard McEvilly, stated that it had “taken into account that Tom Arscott has already paid a heavy price for his conduct in having been dismissed from his employment by Sale Sharks”.

McEvilly went on to note that the RFU had strongly recommended that both clubs remind their players of their “contractual and ethical obligations to their employing clubs”. This seems to be the salutary lesson of this affair, with Tom Arscott stating that, when he was engaging in sibling “banter” with his brother Luke,  he “didn’t realise I was saying anything that I shouldn’t have been saying”.

The RFU’s advice to Sale Sharks and Bristol Rugby, along with the headlines the incident has garnered,  will no doubt be heeded by other rugby clubs and lead them to remind their own players of their contractual and ethical obligations, so as to avoid further stories of confidential leaks relating to “Inside Information” distracting them from their efforts on the pitch.