The long-awaited reports into the unsavoury Keith Russell affair and the Scottish Rugby Union’s use of non-disclosure agreements to effectively gag former employees were finally handed down like tablets of stone yesterday afternoon but if that was designed to draw a line under the matter, for which we would all be grateful, they failed spectacularly in that respect.
Most pertinently, the report was not actually made public. Instead, we got a “joint statement from the Scottish Rugby Council and Board” which was long on verbiage but short on detail.
While there was talk of “lessons learned” and “moving on”, there was little of substance. Indeed, Russell was not mentioned once in the statement, nor was Mark Dodson, Scottish Rugby’s chief executive, the man who sacked Russell from his post of director of domestic rugby.
What we did get was talk of beefing up the SRU’s human resources department and giving the remuneration committee more powers.
In future, the committee will be required to approve the dismissal of employees whose initial hiring was subject to their approval.
Russell, the father of Scotland stand-off Finn, won an unfair dismissal case against the union in June. He refused to sign an NDA when he was sacked in 2017 and later described the governing body as “toxic”.
At last month’s agm, outgoing SRU president Rob Flockhart admitted the Russell affair had cast “a dark cloud” over the game, while SRU board chairman Colin Grassie went on to describe it as a “low moment” for the union.
Lesley Thomson, an independent board member and the former solicitor-general for Scotland, was charged with conducting a review into the Russell affair, while the SRU’s use of 14 non-disclosure agreements (NDAs) was the subject of a separate report by external auditors PwC, who struggled to find a reason for the NDAs.
The report stated: “PwC considered that the documentation available did not make it immediately obvious why those settlement agreements were considered necessary. Scottish Rugby provided additional context in this regard.”
But the report then goes on to talk about the content of the settlement agreements rather than the motivation behind them, and says: “In relation to the content of the settlement agreements themselves, PwC considered them to be in line with what would be expected.”
If you were cynically minded, you might conclude that the reader is supposed to conclude that the soothing words “in line with what would be expected” referred to the motivation behind the NDAs rather than just their content.
After all this time, goodness knows how many man/women hours were spent compiling this report and all the money it cost to do so, we are still absolutely none the wiser as to why Murrayfield issued those 14 controversial NDAs. Were they a commercial necessity or were many of them simply designed to silence disgruntled former employees?
When pushed on the matter, one Murrayfield insider suggested that Scottish Rugby was unable to say any more about the reasons for those 14 NDAs for fear of interpreting what PwC had said in its original report.
So why not just give us the unabridged version of PwC’s judgment?
That was not possible, according to the same source, because the report was compiled in confidence and the full version would breach that confidence.
It is difficult to conclude anything other than the entire thing was a complete waste of everyone’s time while acknowledging that restraints have at least been put in place to prevent the chief executive from making the same sort of mistake again. Future use of NDAs will be subject to oversight by the remuneration committee along with any sackings of senior management of Russell’s ilk.
The bullet points of Thomson’s report were as follows:
l Strengthening human resource capability and resource at a senior level to reflect the growing scope of Scottish Rugby as a diverse and complex organisation with multiple staffing needs and expanding legal responsibilities.
l Recognition that settlement agreements (NDAs) are a legitimate facility which should be retained, but are not to be used as part of performance management procedures.
l Any other use of settlement agreements to be in exceptional circumstances only, with advance approval of the Board’s remuneration committee and following ACAS codes of practice and guidance, if they are to be used.
l An enhanced remit for the remuneration committee of the Board providing for:
(i) reporting to the committee of performance management issues,
(ii) Committee approval for any dismissals of any employee whose initial appointment was subject to committee approval, and
(iii) Committee approval in future of any request to use a settlement agreement.
There was also a piece in the report about the new survey regarding the payment of players. This sort of consultation and listening is a million miles from Dodson’s original stance since the chief executive of Scottish Rugby had initially threatened to report his own clubs to HMRC should they pay players outside the Super 6, the new tournament being introduced next season to try to bridge the gap between the club game and pro teams. Moreover, there was still no sign of two things that would help Scottish Rugby park this sorry mess and move on.
There is still no apology from Dodson or General Council Robert Howat for their treatment of Keith Russell or their use of NDAs.
And there is still no explanation from Grassie, the chair of Scottish Rugby, about why he saw fit to extend Dodson’s contract by three years before the findings of the industrial tribunal had been made public.
Thomson might argue that these things are beyond the narrow remit of her investigation – and she may even have a point – but they remain open sores in Scottish rugby that undermine the credibility of the organisation and continue to cast doubt on who, exactly, is working for who?
Meanwhile, Gavin MacColl QC, chair of the Council Standing Committee on Governance, continues to beaver away in the background on governance. On that issue the report stated:
“There is a clear need for the governance structure based on the Dunlop Report of 2005 to be updated to better reflect the growing organisation Scottish Rugby has become and the challenges of administering the modern game. ”
But that isn’t necessarily true. The Dunlop Report doesn’t need updated, it just needs implemented.
Most importantly, the clubs need to vote for the sort of president and council members who will fight their corner and fulfil their oversight responsibilities even when faced with a strong-willed chief executive like Dodson.