David Johnston column: Reviews welcome but must deliver on NDAs and governance

AGM offered hope that SRU hierarchy want to deal with fall-out from Russell-gate properly, but proof will be in the pudding

Lesley Thomson QC
Lesley Thomson QC, a former Solicitor General has been charged with leading the enquiry into the Keith Russell Affair

THE mood music at Saturday’s AGM appears to have been very different from last year with a large dose of contrition evident in the approach of Chairman of the Board Colin Grassie and of outgoing President Rob Flockhart, and most clubs seem to be satisfied with the outcomes.

Russell-gate Stage 1, the internal investigation into the Keith Russell affair, is apparently complete but we will not hear about it for another month or so. Stage 2 is underway, an externally assisted investigation into 14 former employees with non-disclosure agreements or clauses in termination contracts (NDAs). A Stage 3, however, might have to follow.

Lesley Thomson did not address the meeting and rather Grassie gave a report, going back to when he received an email to the Board on 7th June, presumably from Chief Executive Mark Dodson or his General Counsel Robert Howat, notifying him of the Russell judgement.

Grassie: “It was a very tough read, to say the least. The Board and I recognised immediately that was a low moment for Scottish Rugby”

We must assume that Thomson got the same email as she is a Board member.

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The email seems to have taken Grassie by surprise, which is possibly a matter for another review. Whatever, he “immediately turned” to Thomson to lead the enquiry, so it might be his decision and his alone not to go to a fully external review.

Dodson in Houston a week or so later confirmed that “we” decided not to go external for reasons of expediency, so perhaps it was a group decision, involving either the whole Board or a sub group, to have an internal review. Dee Bradbury was asked by the press after Saturday’s AGM to confirm who had taken the decision, but she refused to answer.

Grassie went on to state that the Board “moved quickly” to define a remit for Ms Thomson, and this was “shared with Council” eight days later on 15th June. It is not known if the Council were given the opportunity to approve the remit or not.

Grassie: “The remit was fully confirmed by the Board on 15th June with the focus on better understanding the decisions made by all parties, the processes followed, with clarification sought on how we arrived – how did we get – to that tribunal decision. We called for conclusions and recommendations.”

Seven weeks in to her review, Thomson reported to the Board on the morning of 24th July.

Grassie: “She had at her disposal, external, independent experts in various areas including legal and HR, relevant to her review. She has fully delivered in line with what she was asked to do by the Board. The report is very substantial, both in volume and in substance. The report provides analysis, it makes observations, it reaches conclusions and it makes clear recommendations. The Board are now reviewing this comprehensive report in detail and are discussing the matters that arise from it. The Board is externally advised while carrying out this work. It is our intention to conclude these matters in early September, we will share these with Council and make a public statement thereafter.”

The Council are understood to have been briefed at a joint meeting of the Board and Council at Norton House on or about 26th July. I wonder if they were given a synopsis rather than the full report?

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As forecast on Friday, it appears that this internal report deals with Russell’s dismissal alone. Though external assistance is now being emphasised, it has to be instructed from the inside, by Board member Lesley Thomson, which is not the same as having an external review. One expects, however, that she will have been very aware of the legal, constitutional and corporate governance minefields she is operating in and that is comforting.

Having taken seven weeks to produce, the Board and Council now require six or seven weeks to digest the report before releasing all, or most likely some of it, in September. Why? Why not release it now?

Grassie went on to announce Stage 2 of the review to examine 14 NDAs, which again seems to be internally led by Thomson with external assistance instructed by her. But Russell did not receive an NDA, he refused one. So, I ask again, why not release this first report now?  Why wait until early September, seven weeks after it was issued to the Board and Council? Why lump it in with the investigation of the 14 NDAs they admit to? The Russell case surely demands separate explanation given the nature of the judgement and the process followed.

Therefore, my reading of the current position is that, as matters stand, there will be no externally-led, fully-objective examination of how the executive team and Board dealt with Russell (i.e. Who knew what and when? How this impacted on the Board’s relationship with the senior executive team – and particularly the CEO, when dealing with his contract extension?).

There is also going to be a separate governance review. That will, or should, delve into the minutiae of Russell-gate from the Board and Council’s perspective. And, indeed, the process of Agenda 3. The terms of that review – the remit – will clearly be very important for the clubs, and their representatives on the Council and the Board must get it right to ensure that all relevant matters are investigated.

With regard to Stage 2, and the externally assisted review into NDAs, Grassie tried to compare apples with oranges with some disingenuous figures, noting that there were only 14 NDAs out of 600 departures, with the 14 being non-players/coaches, while the 600 includes players and coaches accounting for the vast majority of activity. One wonders who scripted that for the Chairman?

How many non-player/coach departures were there in total, out of which 14 received NDAs? That would have been a more relevant comparison.

I understand that there are a good number of NDAs among player and coach departures, perhaps several dozen. If so, mentioning 600 was not that smart a move at all.

Grassie then tried to raise the possibility of commercial confidentiality being an issue for the 14 NDAs admitted to, which would be okay if the departees were in the senior executive team, but certainly not with a good number of the personnel believed to be subject to these confidentiality agreements.

I am not sure if Stage 2 covers just the 14 NDAs mentioned.  Unfortunately, I think it might, even though Grassie made mention of settlement agreements “as a whole”.

Grassie: “The Board, as part of its current deliberations, is reviewing – with the help of external, independent experts – settlement agreements as a whole used within Scottish Rugby.”

So, if former staff – non-playing, playing, coaching and whatever else – are as confused as I am, why not remove any doubt and openly invite all 600 to get in touch with details of their experience, both good and bad.

As noted, it is understood that a large number more have NDAs in addition to the 14 non-playing and coaching staff, but many more do not. A detailed look at all departures would go a long way to making Russell-gate Stage 2 a truly valuable exercise. It might take another six weeks to early September to examine 14 settlement agreements with NDAs. If there are, say 50 in total out of the 600, that would take longer, but it would be worth it because it would lance the boil.

In a generally uplifting interview following her appointment as President, Dee Bradbury repeated the party line that she does not recognise the culture claimed by Russell – “corporate bullying” as described by Tom English of the BBC. It could be that Board and Council are kept so far back from the coal face that they are not aware of behaviour that a good number of people are describing.

I suspect that if this corporate bullying culture does exist, it would come out in a truly external review of all 600 departures (those with NDAs and otherwise). In fact, even this externally assisted review we are getting should make it clear one way or another – but only if all 600 are canvassed.

If they do not do it now, there will most likely need to be a Russell-gate Stage 3 at some point in the near future, to look at the management culture within Murrayfield as reflected in the manner departing staff are dealt with. Why not go for broke and merge Stage 2 and 3 right now? Ask all 600 to get in touch with Lesley Thomson. Until they examine this in full it is not going to go away.

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About David Johnston 6 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.