David Johnston long read: ‘They have been caught with their pants down but are now behaving like emperors’

A positive response may be happening behind the scenes but there needs to be greater transparency

Dodson and Grassie
Mark Dodson and Colin Grassie were under the spotlight at this year's SRU AGM at the start of August, and still are two months later Image: © Craig Watson - www.craigwatson.co.uk

IT is hard to see the SRU’s statement on the outcome of their internal review into the Keith Russell affair as anything other than a brazen attempt at self-preservation and reputation management by the old Board comprising of –

  • The two executives at the centre of the problem: Chief Executive Mark Dodson and General Counsel Robert Howat (as noted previously I am not sure why he is on the Board and why the Director of Rugby Scott Johnson is not)
  • Two of their subordinates: Chief Operating Officer Dominic McKay and Finance Director Andrew Healey
  • The Chairman, who also chairs the Board Nomination Committee (NomCom) which awarded Dodson his contract extension while the time-bomb of the Russell employment tribunal hearing was ticking away ominously in the background: Colin Grassie
  • The legendary former player and current non-executive director who chaired the Remuneration Committee (RemCom) which awarded Dodson his contract extension while the time-bomb of the Russell employment tribunal hearing was ticking away ominously in the background: Ian McLauchlan
  • The Chief Operating Officer of QBE, Australia’s largest insurer (top 20 worldwide), and SRU non-executive director: David McMillan
  • The person reviewing those named above and below, and SRU non-executive director: Lesley Thomson QC
  • The former President of the SRU: Rob Flockhart
  • Two former Council members who stood and failed to be appointed as Vice-President: Mike Munro and Jim Littlefair
  • The Council member from Whitecraigs since January 2018: Graeme Scott
  • The current president of the SRU, who sat at Board meetings as an observer: Dee Bradbury

The statement also appears to be a very strong power play by the executive and the non-Council non-executives led by the CEO and the Chairman: ‘Move along, nothing to see here, see you at next year’s AGM’. It looks as though they have been caught with their pants down by the employment tribunal judge but are behaving like emperors by conducting a near four- month enquiry and concluding, as far as we can see from the statement, that nothing much is awry.

So, what have President Bradbury, Willie Gardner of Lanark RFC and Adam Gray of Stewartry RFC – the three Council members recently appointed to join Scott on the Board – all got to say about it? Or indeed the new Vice President Ian Barr? Or the rather fresh Council, with five new members out of 14 and a new chair in President Bradbury?

Nothing at all, it seems, as they have tucked quietly in behind the Murrayfield bigwigs and approved this shameless attempt at a cover- up, by virtue of the statement being made on behalf of both the Council and the Board . An attempted cover- up which has been received with almost universal derision outwith the corridors of Murrayfield.

What is going on at the top of our game that allows this to occur?

The executive and independent non-executives seem to think they are omnipotent, entitled to ignore the clear findings of a respected employment tribunal chair, and the claims of a highly regarded former senior employee, backed up by the experiences of several more former employees who signed non-disclosure agreements(NDA’s) in “unusual” circumstances. Are the new Council members already as much asleep at the wheel as the old ones appeared to be? Sorry girls and guys, we need terriers not poodles representing our clubs.

From day one of this debacle, I have heard  the party line from within Murrayfield that Russell’s comments about there being a ‘toxic’ culture, or ‘corporate bullying’ as Tom English of the BBC put it, condescendingly dismissed as being ‘the just ramblings of a disgruntled former employee’.

These allegations were rejected out of hand by Grassie, Flockhart and Dodson before the Thomson review had even got off the ground, when surely they should have been addressed head on in order to put any doubts to bed. Russell is not even mentioned in the statement. Surely they knew they would be pilloried, as they rightly have been. It is almost beyond irony that the manner in which this whole review process has been conducted might easily be viewed as evidence of corporate bullying: a very limited internal review of the Russell case, no review of his allegations, no apparent review of Dodson’s contract extension, a review of NDAs which barely scratched the surface of that issue, and a statement which tells us virtually nothing of the detail of a near four-month review.

Lesley Thomson has been used by her colleagues but perhaps deserves little sympathy as she had ample opportunity to refuse the commission. The suspicion is that the Chairman came up with the plan to keep things in-house and to keep the lid firmly on to protect those responsible, including, quite possibly, some Board members themselves.

I am reminded of the clever words which cut down an attempt by a previous Murrayfield regime to defend their indefensible behaviour when they flourished a report supporting that indefensible behaviour, a report which they themselves had commissioned – as is the case here.

Those cutting words came from a captain of business with infinitely more gravitas than anyone at Murrayfield at the time and went something like this: ‘Never have I instructed a report when I have not known what the conclusion will be’.

But what we have been told in this pathetic statement surely does not stack up.

That just about everyone at Murrayfield comes out of this whiter than white, does not tally with the contrition displayed by the Chair and the past-President at the AGM, the talk of this being a low point for the game in Scotland, an embarrassing episode etc etc. Maybe the review report is spot on but it is the banal statement that is the problem?

A lot of conjecture I admit, but, as I say below, that is what happens when you do not tell the whole story. What is not open to conjecture, however, is that the management of the news cycle appears to have been very skilfully played.

There is only one open forum at which the Board can be challenged: the AGM. In between, through smooch, strong arm and the fatigue of those working hard to put teams on pitches each Saturday, the Board through the Council have become very adept at keeping the clubs quiet. I wonder if, in passing, so apparently meek as the Council appear to be, do we now need quarterly general meetings so as to allow thorough questioning of the executive?

Read the explosive details of the Keith Russell affair –

Keith Russell wins unfair dismissal case against the Scottish Rugby Union

Keith Russell: ‘It is so disappointing to realise that the guys at the top are not good guys and do not represent the values and culture of rugby’

Keith Russell: ‘Understanding that the clubs are the key stakeholders in the sport in Scotland is a distraction that they would prefer to avoid’

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

Anyway, the timing of the Russell judgement bombshell on 7th June could not have been worse for the Board, with the AGM less than two months away on 4th August. So, a cunning plan to kick the can down the road was hatched, and in this they got assistance from the NDA scandal a few weeks in to the Russell review. By unnecessarily lumping these in with the review of the Russell case and the Dodson contract extension (if that process has ever actually been reviewed) when there was no need whatsoever to do so, they again abused their former employees by using them as a smokescreen for further delay.

Then, eventually, we got the statement, delivered some 15 weeks after commission. As noted, that’s almost four months and remember, expedition was the reason given for an internal review. Believe that if you must. It is hard to conclude otherwise than that the process and timing of the review was tailored to protect the Board from questioning at the AGM. Grassie risibly said they had taken “an appropriate time” to review matters. For the Board? Yes. For Scottish rugby? No.

And from what little we have been told of the review in the statement, four months could have been condensed into four weeks or less, and there was ample time to have the matter fully discussed at the AGM.

So, what of the statement itself?

Dodson and Howat were found in court to have handled the process and substance of Russell’s dismissal very badly, to say the least. After Dodson and Flockhart promised there would be nothing to hide, they got the process of the Thomson enquiry very wrong and from what little we have been told, the substance of the Thomson report spectacularly wrong. What was the point, many have asked? The statement is almost worthless.  Unless that is, we are not being told anything like the whole story and good stuff is going on behind the scenes.

Also, from day one I have heard the party line: ‘Mark has been badly let down by his HR team’. The first of Thomson’s recommendations, or at least those few they are sharing with us, parrots this mantra and calls for that team to be strengthened. Read the Employment Tribunal judgement: Dodson and Howat – the head of HR according to the Annual Report – ignored the HR professionals and did it their way. What is the point in strengthening the HR capability if it is going to be ignored?

The next recommendation uses corporate pap in the term “performance management procedures” which does not help assuage the impression that this Board is very far detached from its membership. That settlement agreements/NDAs should not be used in such instances is a step forward, however.

And then there is the extended role for the Remuneration Committee [RemCom], which will now be involved in “performance management issues” and dismissals of employees they approved – which implies that the RemCom as well as the Nomination Committee [NomCom] are involved in appointments.

In setting out this extension of the role of the RemCom to cover appointments they approved, the Board shine a light on who might have been involved when Dodson got that contract extension. One might have thought that the NomCom would have been exclusively involved – Grassie, Flockhart, McLauchlan and Littlefair according to the Annual Report – but it seems likely that the RemCom had part responsibility.

According to the Annual Report, the RemCom consisted of McLauchlan, Munro, LESLEY THOMSON, David McMillan and Rob Flockhart. Note McLauchlan and Flockhart straddle both. Thomson is in capitals to highlight just how close she might have been to the process which awarded the person she was investigating in her review a substantially enhanced contract. Then again, I very much doubt all seven Board members played a part and most likely it was the Chairs of these sub-committees who led matters with maybe those on both most closely involved.

As noted, we do not know if Thomson was even asked to investigate what the NomCom, the RemCom and/or the sub-group dealing with Dodson’s contract extension, knew about the Russell affair –

  • Before he was escorted from Murrayfield?
  • Before the case went to tribunal?
  • When they awarded the contract extension, after the hearing but before the judgement?

Another key question for Thomson should surely have been –

  • Why they did not wait until the judgement had been issued before offering the contract extension?

Given the terms of that judgement, it is hard to fathom how any competent NomCom/RemCom or sub-group of both could carry on regardless with that contract extension for Dodson had it been in full possession of the all the facts.

Unless, of course, it was fully aware of the treatment of Russell and endorsed the Dodson/Howat strategy, which seems very unlikely given what we have heard, the contrition at the AGM and so on – but, which if true, would make the Thomson Review even more scandalous.

Alternatively, if they were not in full possession of the facts or if they were in possession of subjective over-optimistic reports from the hearing, then one suspects that the award of the contract extension could potentially be challenged.

A lot of conjecture but that is what happens when you do not tell the whole story and try to hide stuff.

Back to the statement.

PwC reviewed the cases of just 14 ex-employees and weren’t satisfied that NDAs were necessary in a number of instances. Scottish Rugby gave “context”. Were former employees able to respond to that one sided explanation of context from Murrayfield?

There are thought to be dozens more NDAs. The Board say they looked at some other non-playing on-field cases where fixed terms were terminated early. Why did PwC not look at these? The statement says that similar conclusions were made. Similar to what? PwC’s conclusions one assumes – and all we know is that PwC were initially surprised that NDAs had been used in a number of cases although legally they were sound. Hardly a ringing endorsement.

Then the shutters come down, and we are told that no more than what is in the banal statement can be released, citing staff privacy, data protection, and so on as the reason for that.

Staff privacy matters? The cases examined refer to former (not current) staff, many of whom are more than willing to go public. Data protection? Again, many of the 14 (15 if you include Keith Russell) are more than willing to go public.

My guess? Current employees within Murrayfield may have been identified as being responsible for HR failings and they may have been censured accordingly. But as they remain in the employ of Scottish Rugby the detail cannot be released because they, and by they I mean any affected employees not Scottish Rugby (because we were told on behalf of the Scottish Rugby by the President and the CEO that they would have nothing to hide) do not wish it so. If this is correct and if there are indeed employees at Murrayfield who have been formally censured, one wonders if this might impinge on the delivery of key policies going forward. “Damaged goods” may inhabit Murrayfield but that would be for another article …

This episode must surely be a wake-up call for Scottish rugby. Senior executives play fast and loose with employment law and are very publicly humiliated in court. Under pressure from the media they and the Board promise a quick open review but deliver a slow opaque farrago apparently designed to protect themselves. If there was ever a time for clubs and the Council to act it is now, before the game in this country is totally removed from your control.

10 questions which must be answered before SRU can move on from Keith Russell affair

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.