David Johnston column: AGM update from Lesley Thomson is long overdue

Eight weeks after review was launched, it is time for some real answers to be given

Lesley Thomson
Lesley Thomson QC - Scottish Rugby Independent non-executive Director - is expected to address tomorrow's AGM to give an update on her review into the Keith Russell affair. ***Image: Fotosport/David Gibson***

IT is widely forecast that Lesley Thomson will address the AGM tomorrow, exactly eight weeks following her appointment on 8th June by her colleagues on the SRU Board and in the Council of club representatives to conduct a review into the Keith Russell affair

We were told of her appointment in a joint Board and Council statement on 17th June, nine days after the tribunal judgement on Russell’s unfair dismissal was issued, with the Chairman of the Board, Colin Grassie, noting that he had instigated the review of the “terms and outcome” of the ruling, to look at the “sequence of events” and the “matters in respect of the tribunal findings”.

The 17th June statement went on to note comments (made by Russell) about the culture at Murrayfield and continued to apparently pre-empt the review by noting in judge-and-jury fashion that the Council and Board “do not accept” these comments.  The culture referred to was described by Tom English of the BBC as “corporate bullying”.


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This precipitous conclusion from the Board and Council was issued notwithstanding the fact that such a culture is evident in the Russell judgement, which few of the Council or Board might have read in full prior to the statement being issued on their behalf. The culture was also clearly outlined by Russell in his subsequent interviews. And how else would you describe the CEO threatening to report his member clubs to HMRC at last year’s AGM, if not as corporate bullying? Yet the Board and Council do not accept this …

On 18th June, the CEO Mark Dodson [MD] and President Rob Flockhart [RF] were interviewed in Houston by Tom English [TE] of the BBC. READ HERE

It is well worth reading the whole transcript again, but these are some extracts of the article which was headed by a quote from Dodson: “We’re not hiding. There will be no secrets”

TE noted that Lesley Thomson [LT] is on the Board – so not independent.

RF appeared to answer a different question and said she would take external advice.

TE asked why not an independent review?

RF said, presumably from the Board and Councils perspective, that this was not appropriate at this time. Maybe LT would recommend that later.

TE commented that this does not look right. LT is reviewing the Board: herself, in effect.

RF embarked on a circular argument, saying it’s the role of non-executive directors to review the Board. But LT is a non-executive, so she has already had one shot at reviewing the Russell case!

TE broke into the circle and asked how a Board member could judge the Board.

RF struggled to deal with TE’s follow-up questions so he turned to Mark Dodson.

TE and MD had an exchange in which TE demonstrated his knowledge of the scathing nature of the Russell judgement, with MD responding with confirmation that he will not appeal, but that he disagreed with some of it.

TE noted that Russell had been removed from the workplace with immediate effect, phone cut-off etc, and asked Dodson if this was fair and if he had done it before?

MD appeared to answer a different question, noting at length his track record, and that this was the first tribunal he had been to.

TE retorted, noting allegations of it being Dodson’s way or the highway at Murrayfield. Dodson denied this and RF stepped in to support him: “The board regularly review Mark. The council have a quarterly review of what he does. There is a robust process in there. I don’t know why, suddenly, there’s a suggestion that it’s his way or no way.”

TE picked up immediately that LT is part of this on-going review process of the Board over the CEO and is now being asked to give it another go, noting that this internal review is not open and transparent.

One might have expected RF to respond, but surprisingly it was MD.

MD: “If WE [my capitals] went outside and got an independent company to look at it, it’s probably going to take months to understand the workings of the union. Then we’d be criticised for not doing it quickly enough. It’s a difficult balance.”

TE asked if the Thomson review would be published?

RF did not commit to a yes or no answer.

TE kept pushing.

MD said, again surprisingly not RF, that “we’re not hiding” and “there will be no secrets” and “we’ve got nothing to hide”.

TE asked again if that was a ‘yes to it being published’?

MD said yes. But. There would be redaction of confidential stuff – which is hardly reassuring –  before noting that “Lesley” would want the whole thing warts and all published.

RF noted, perhaps rather belatedly, that it would be a matter for the Board to decide on publication and in the concluding exchanges RF noted that Russell’s allegations where “laughable”.

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Apologies for extracting at length and please read the whole thing as it is very revealing. It is important to look at what was said back in early June when tomorrow we hope to hear what has happened in the interim.

The first thing to note is that Thomson can only do what she is told by the Board. The exact remit has not been released, which is hardly being “open” and “transparent” and not “hiding”, but based on the statements and the above, the remit must be the Russell case. Full stop. An extremely narrow focus then, a tactic often used by organisations with matters to hide. Here it was the only choice.

Expediency, and eight weeks on it doesn’t look to have been expedited very much at all, was given as the reason, but one can’t help thinking that this was the only choice open to them. Such was the outcry following the judgement they could not just brass it out – they had to take the heat off. However, a fully independent external review of each and every member of the Board and Council’s knowledge of the Russell affair – who knew the circumstances of the sacking; the nature of Russell’s claim; the decision to fight the claim; the weakness of the case; the humiliating nature of the tribunal experience for the SRU team; how all of this impacted on the decision to award Dodson his substantial contract extension within days of that tribunal – well, for an external, fully-independent person to review all of that, might have blown the lid off. So, the only option was the internal review.

Thomson had two options: to accept or to refuse the commission. She accepted so now heads-up the Board’s, and we assume the Council’s, attempt to keep the lid firmly on. It might be cynical to look at it this way but could we be about to get ‘our former Solicitor General trumps your senior tribunal judge’ and a statement noting that, in our/Thomson’s view, Dodson was correct to dismiss Russell in the manner he did?  I sincerely hope not because that would really confirm that Murrayfield has little respect for the law of the land.

One hoped at least that the can would not be kicked too far down the road. But here we are eight weeks later… Eight weeks to examine an open and shut case?


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Keith Russell: ‘The main thing Mark Dodson talked about for an hour was wanting to keep the Council quiet’


I wrote to Thomson early into the eight weeks, noting that she had been landed in it. I questioned her ability to take on the commission and whether or not in particular she was seriously conflicted. She acknowledged my email but did not come back on any of the substantive points I raised.

At about this time I became aware, as did the rugby world generally, of so called NDAs. These are variously known as non-disclosure agreements, settlement agreements or compromise agreements, the latter two perhaps with non-disclosure clauses. There could be other terminology used but the import is the same. Former employees must not reveal the reasons for or the terms of their departure. And are liable to a claim from the SRU if they do.

No doubt prompted by Dodson almost boasting that the Russell case was the first that had gone to tribunal, about a dozen former employees and at least one who resigned early have become known to various commentators. The implication is that these cases might well have gone to tribunal if silence had not been paid for. Some may well have now sent chapter and verse to Thomson. This would threaten to blow the lid off.

It is understood that Thomson had not actively gone looking for such cases, which is worrying, but if her remit is as limited as is outlined above, then she cannot review NDAs because the Board have not instructed her to. If that is the case, then here we are eight weeks down the road and no further forward.

I fear that this is what we will learn tomorrow, which would be a travesty, the worst possible outcome, an apparent abuse by the custodians of our game of their responsibilities – confirmation that the internal enquiry was simply a stalling tactic, and that the can is once again ready to be kicked, to who knows where, and for how long. Getting to and through the AGM appears to have been the plan.

‘Appalling’ would not be strong enough I think.

But there remains a faint hope that the lid has been blown off, that Thomson has looked into NDAs, has reported on their cases in detail, and has taken steps to ensure that the sort of executive action experienced by Keith Russell – Tom English’s “corporate bullying” – is never again seen at Murrayfield.

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A couple of footnotes if you are still there –

I noted to Thomson that I was not an employment lawyer but questioned if there might be grounds for taking disciplinary action against members of the executive team. Again, I got a polite acknowledgement.

It has been explained to me that one of the reasons Russell was sacked was that he wanted to take a more consultatiative approach with the clubs over Agenda 3 and Super 6.  I therefore sent Thomson copies of all the documentation I had. As ever, she politely acknowledged but did not respond on any of the detail, which is absolutely her prerogative. But disappointing, as Bill McLaren might have said in that courteous, understated way of his.


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David Johnston
About David Johnston 4 Articles
David Johnston played 27 times in the centre for Scotland out of Watsonians RFC, including all four matches during the 1984 Grand Slam season. He also coached the Myreside club, progressing through the ranks to Scotland A and ultimately the full national team between 1995 and 1998. He is a (now retired) lawyer and was an independent panellist on the Dunlop panel, which drew up the current SRU constitution after the previous governance structure imploded in 2005.

4 Comments

  1. Nice one David J, and well done David B for printing it.

    Perhaps we should organise one of these RBS Task Force Days, and scythe down the long grass around the Murrayfield boundary fences, we might well find Ms Thomson’s report lying there, where the Board have kicked it.

    I exect someone will rule, tomorrow, that since no properly-constituted question on the review had been received prior to the cut-off point, it cannot be discussed at the agm, and, in any case, Ms Thomson is still collecting evidence and it would be presumptious to discuss an on-going case…..blah de blah de blah, next question please.

    No way can a review into a board member’s conduct, already reported to the board and seemingly endorsed by that board, conducted by another board member. be considered independent.

    The outcome has to be, given Judge D’Inverto’s ruling, be: “Taxi for Dodson, and one or two others.”

  2. Interesting comment John. The AGM is for the union not Scottish Rugby PLC and that is one of the conundrums. The clubs are stakeholders in the plc – if it was wound up the member clubs would receive a share of the proceeds. But using the Plc board and council the SRU exec are managing to drive changes without agreement with the union members.

    That is a problem that needs addressed. As DJ pointed out in his previous interview, we need a “Dunlop “ 2

  3. It would be unusual to report on such matters to an AGM for a plc organisation. I’m not sure the clubs have a legitimate claim to be involved or consulted in what really should be a matter for the Chair and possibly the President to conclude.
    However, it does highlight that the governance and processes of the SRU are lacking clarity and open to varying interpretation.
    If only we could channel the same energy, money and scrutiny into solving the playing numbers and volunteer issues.

    • Is the real point not being missed here. We have a detailed judgement from the Employment Tribunal that makes it perfectly clear where the responsibility lies for the Russell fiasco, Mark Dodson!
      Consequently this amounts to gross misconduct and the Board should have
      commenced disciplinary proceedings against him. They failed in their governance role in allowing the toxic culture to develop and prevail at the SRU in the first place and they have failed again to deal properly with the aftermath. If they had any decent moral compass then they should have resigned!

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