DAVID JOHNSTON – a 1984 Grand Slammer, former Scotland coach, retired lawyer and the only independent member of the Dunlop panel which recommended the basis of the SRU’s current constitution after the organisation’s governance structure imploded in 2005 – shakes his head in bewilderment as he considers Lesley Thomson’s enquiry into the SRU’s sacking of former Director of Domestic Rugby Keith Russell.
He points out that it took the Dunlop panel a month to put together a completely new constitution, while Thomson has been at it for seven weeks and there has still not been a word uttered publicly about how she is getting on. “Maybe we should have taken longer with Dunlop – it’s not working,” he wryly surmises.
It is worth noting that at the time the review was launched, SRU President Rob Flockhart justified the decision to entrust a Board member and not someone truly independent with the job on the basis that it would take too long for an outsider get their head around how Murrayfield works – but we are now six days away from the AGM, when the clubs will rightly demand answers as to why their Chief Executive Mark Dodson and General Counsel Robert Howat were humiliated in court, and we are still in the dark as to Thomson’s progress.
It is not just the timescale which is causing consternation. The scope of the review has never been properly explained. It is not clear whether Thomson is going to speak to any other former employees who have signed Non-Disclosure Agreements [NDAs] about their dealings with the organisation.
“The Keith Russell affair is not that complicated, because of the expedited way in which he was disposed of. The judgement shows it as a fairly open and shut case that wouldn’t take six weeks to investigate in isolation. The suspicion must be that what’s under consideration is broader than Keith Russell and that NDAs are indeed a feature. That’s a lot of individual cases, plus consideration of the appropriateness of their use and the prevalence,” says Johnston, rather hopefully.
“If what the other Board members were told was not truly reflective of what was happening, there are serious issues within the organisation that need to be addressed.”
“Those might be individual issues rather than structural issues. The structure is fine if everyone does their job and you’ve got the right people in the right places. Maybe it’s the internal workings that need examination. Maybe the delay in hearing from Lesley Thomson is due to her thinking that further work needs done.”
There is a link between the Russell affair and the other hot topic which is threatening to ignite next Saturday’s AGM tinderbox.
“My understanding is that underneath the Keith Russell case was Super 6, Agenda 3 and the apparent chore of consultation. Dodson wanted him to tell the clubs what was happening, whereas he wanted to speak to them. That links the Russell case to Super 6, Agenda 3 and that whole conversation about culture,” says Johnston.
Johnston was a sceptical consultant on the steering committee of his own club, Watsonians, as they considered and eventually decided to apply for a Super 6 franchise. Back in February he arranged a meeting with Dodson at which he posed a series of questions about the vision of Agenda 3 (specifically relating to Super 6) and the impact it will have on the fundamental fabric of the club game in Scotland. He was not encouraged by what he heard.
“I was amazed that the process had got that far without anyone really awakening to what was going on. At some of the roadshows, the clubs asked a lot of very pertinent questions and it was clear it hadn’t been thought through in multiple areas. I wasn’t persuaded [at the meeting with Dodson] that there had been any market appraisals, impact assessments or that the legal opinions or constitutional stuff was in place.”
“I didn’t leave that meeting any more convinced than when I went into it that the future of the Scottish club game was in good hands.”
Johnston took notes at the meeting and sent them to Dodson, who eventually got back in touch to say that as he had not commented in detail it should not be assumed that he agreed with the minutes.
A list of his conclusions, raising specific issues relating to the level of oversight carried out by the Board and Council, was sent to Colin Grassie, the Chairman of the SRU Board.
“He said that if I had any continuing concerns I should raise them through my club. I went back and said this had always been an individual initiative, and sometimes it takes individuals to shine lights where others aren’t looking.”
“What I can take out of the way the correspondence concluded was that I’d asked questions they didn’t anticipate and at that stage didn’t have answers to. The conversation was shut down. It seems to be that if someone asks a difficult question, they’ll pull up the drawbridge.”
So, where does Scottish Rugby go from here?
“I think we need a Dunlop 2. For the Chief Executive of a member association to threaten in a public forum at the AGM to report his member clubs to HMRC, is a sign that there is a culture, highlighted by Keith Russell, that the member clubs are – notwithstanding all the positive noise in the Annual Report – not being fully respected.”
“The evidence from the Keith Russell judgement suggests that a ‘need to know’ basis might be the way that certain things have been operating, and maybe that’s grown into a habit of just not telling, and some people [on the Board and Council] are completely in the dark about what’s happening and the reasons why.
“A Dunlop 2 or other independent process of wider review would look at how Agenda 3 got to a point where there’s that threat from the Chief Executive to report clubs to HMRC and 12 months later there’s suddenly a consultation document on the very same topic. That should have been published many months ahead of last year’s AGM and we wouldn’t be where we are now if that had been the case.
“It’s just a symptom, though. The actual problem is structural and the relationship between the Council and the Board. We don’t want this happening again, so it needs to be looked at.
“Scottish rugby hasn’t done very well with professionalism. Some very good things have happened recently, but at what cost? Given the findings of Judge D’Inverno in the Keith Russell judgement, and the subsequent revelations relating to the apparent use of Non-Disclosure Agreements in an organisation where, out-with the senior executive team, it is hard to think of any commercial information which would or should be covered by such agreements … we’re in danger of being in a situation where we can’t attract the right people into positions and people in positions can’t give the best of themselves because of the culture of the business.
“Keith Russell alluded to there being almost a bullying culture at Murrayfield. When announcing the Lesley Thomson ‘independent’ enquiry they then acted as judge and jury and said that it is a culture they don’t recognise. In defiance of a respected employment tribunal judge the President rubbished the claims of a former senior employee who was fully endorsed in that tribunal. But how else could a Chief Executive stand up at an AGM and threaten to report members to HMRC? That’s evidence of a culture of ‘do what you’re told, or else’.”
“With regard to the Thomson enquiry, clearly there is Dodson’s unilateral decision to sack Russell and the management culture that evidences. Then there is the apparent total lack of any legal process. The head of HR at Murrayfield is Robert Howat, a lawyer, titled General Counsel, and a full Board member, in a seat surprisingly not occupied by the Director of Rugby – it is after all a rugby business. Howat seems to be Dodson’s right-hand man, and between them they must have known the case was virtually indefensible. But they ran with it at great cost to reputation and purse.
“Who on the Board and who in the Council of clubs – whose Director of Rugby Russell was – knew what was going on? If not, why not? And how do we stop this happening again, not just in HR, but elsewhere in the business such as with Agenda 3?”