Nick Cain: Welsh are embroiled in new fight for justice

There are times, as we all know, when the law is an ass. Usually this coincides with legal technicalities getting in the way of, or subverting, natural justice. There is a grave danger that London Welsh could fall foul of this type of legal technicality in the case of the registration of Tyson Keats, the scrum-half they signed at the start of this season.
London Welsh will be appearing before an RFU competitions hearing on Tuesday charged with fielding an ineligible player – the Kiwi-born Keats – in nine Aviva Premiership matches this season.
The club brought the issue to the attention of the RFU after they had conducted the second of two internal investigations into Keats’ registration in February, rather than the RFU detecting any registration flaw.
The nub of the matter is that London Welsh wrongly classified Keats as English, when he was in fact in the UK on an ‘ancestral visa’ on the basis of having a British grandparent. However, the ancestral visa still entitled Keats to seek employment here, including as a professional rugby player.
It has emerged also that because Keats has never played for New Zealand, and is therefore available to play for England under the grandparent ruling, that he is also eligible for the England Qualified Player payments made by the RFU to Premiership clubs. This financial compensation was introduced as a means of limiting the number of foreign players, or players ineligible for England, plying their trade through the Kolpak dispensation in the Premiership. London Welsh have therefore claimed EQP payments for Keats legitimately.
The reality is that Keats was eligible to play for London Welsh in every one of the matches he has featured in this season, and that London Welsh have not sought to circumvent any eligibility rules, cheat in any way, or garner any unfair advantage over their Premiership opponents because of Keats being registered, wrongly, as English.
The detail of how Keats came to be registered in the wrong category – even though he shares the same eligibility to play in the Premiership, and for England, as any English-born player – is the subject of a separate disciplinary hearing involving Mike Scott, London Welsh’s former rugby manager.
Scott, who is believed to have left the club before Christmas following an illness, has been charged under RFU Rule 5.12  for ‘conduct prejudicial to the interests of the Union or the Game’. However, that case will be heard at a later date.
To any reasonable individual this renders the hearing on Tuesday little more than a formality at which London Welsh should be reprimanded, and possibly fined a nominal sum, for their player being registered in the wrong category.
And, because they did not benefit from that error in any way, that should be the end of it. In particular they should have no points deducted, leaving the club free to concentrate fully on the battle to stay clear of relegation.
Any other outcome will leave the RFU open to accusations of a severe miscarriage of justice, especially if it involves London Welsh being docked enough points to condemn them to relegation.
It is also legitimate to question the presence on the three-man panel for the hearing of Mark McCafferty, the chief executive of Premiership Rugby, who opposed London Welsh’s promotion last season.
London Welsh were eventually promoted after the success of a ground-breaking appeal which challenged the restrictive minimum ground standards imposed by the Premiership and approved by the RFU. Not only that, but despite having virtually no time to prepare or to sign new players pending the outcome of the court case, they confounded their Premiership rivals by winning four of their 11 games before Christmas.
The panel should consider whether the ridiculously short preparation time London Welsh had to prepare for the Premiership contributed to the registration glitch.
However, with a smaller squad than most Premiership clubs, and significantly less funding London Welsh are embroiled in a knife-edge fight to avoid the drop with Sale, who are three points below them in last place, and London Irish, who are two points above them in tenth place.
The bitterness surrounding the Premiership’s failure to stop London Welsh in the courts last summer surfaced in surprising fashion when they were heavily beaten at Exeter last weekend, having earned a one-point win over the Devon club in September.
Tony Rowe, the Chiefs chairman, appeared to relish the Welsh predicament, especially as Exeter had been docked two points by the RFU two years ago for fielding too many overseas players.
“They wanted to play the big boys’ game, so they’ve got to play by the big boys’ rules,” Rowe said.
“From our point of view, it was ‘welcome to the Premiership’. We got caned for it, so I’ve got no sympathy for them…when you’re in a professional business you can’t really have a slap on the wrist and people saying, ‘don’t be a naughty boy’, or, ‘don’t do it again’. Otherwise, everybody tomorrow would say, ‘sorry, it was just an administrative cock up, we didn’t mean to do it’.”
Rowe is entitled to his opinion, but most people will be able to detect that there is a difference between the Keats case, where there is no eligibility issue, and the Exeter situation, where there was. The inclusion of three overseas players – Nemani Nadolo, Hoani Tui and Ignacio Mieres – in the Exeter match day squad against Leeds in April 2011, as opposed to the permitted number of two, also incurred a £5,000 fine.
In my view London Welsh have done the Premiership a huge favour by forcing changes to the minimum standards criteria that were being used to ring fence the top league. Foremost among those changes is that the RFU/Premiership have now conceded that up to five clubs do not have to have primacy of tenure at their grounds provided they pass the audit. Another improvement is that the auditing process for Championship clubs has been brought forward a month to February 1, when any club wishing to be audited for promotion has to nominate their ground.
That favour has not been reciprocated. London Welsh are playing against a dealer with a stacked deck of cards because of  iniquities in Premiership central funding which allocate the promoted club little more than a third of the budgets paid to most of their rivals.
To make matters worse, it is rumoured that they also get less than Championship clubs like Bristol, who were relegated three years ago, and Leeds, who have been out of the top tier for two years.
If a similarly stacked deck at the RFU hearing deals them a relegation hand because of a flaw in the registration of Tyson Keats, then London Welsh will be within their rights to try and blow a few more holes in the Premiership ring-fence by continuing to fight in the courts.
Club rugby fans have paid this season to see a competition in which there is promotion and relegation, not one which is suddenly rendered nul and void by a technicality.
The articled was published on March 3.