Saturday 20 April 2019

Irish rugby has a perfect right to decide when players cross the line

Revoking the contracts of Paddy Jackson and Stuart Olding is not without controversy, but it feels fair, writes Eilis O'Hanlon

Paddy Jackson and Stuart Olding
Paddy Jackson and Stuart Olding

Eilis O'Hanlon

In hindsight, it was hopelessly naive for supporters of Ulster rugby players Paddy Jackson and Stuart Olding to imagine that being found not guilty of the rape of a woman at a house party in Belfast in June 2016 would be the end of the matter. Securing the services of the best lawyers that money can buy won't save you from the court of public opinion.

Thousands of ordinary people looked on as the trial progressed and decided that they did not like the two men's behaviour at all. Nor did they like the treatment of the complainant at the centre of the case when she gave evidence.

Their collective voice has now ensured that the men will not play for Ulster or Ireland again, following yesterday's decision from the Irish Rugby Football Union (IRFU) to revoke Jackson and Olding's contracts with immediate effect following an internal review.

That decision is not without its dangers. The rousing of the mob on social media whenever a prominent person speaks out of turn, or dares to express the "wrong" opinions, can be a destructive and ugly force, and it has been deployed with terrifying effect in recent times. The IRFU could be accused of succumbing to pressure to unleash some kind of extra-judicial retribution on men who, whatever we might think of their morals or characters, have done nothing illegal in the eyes of the court.

The men are certainly not without their defenders. After more than a hundred people crowdfunded an advertisement in the Belfast Telegraph urging Ulster Rugby to make an example of the two men over their unarguably misogynistic text and WhatsApp messages, a rival group took out a full-page ad in the same newspaper demanding that Ulster Rugby reinstate the "innocent men" forthwith, on the grounds that to do otherwise might look as if they were repudiating the not guilty verdict. Fewer people than expected also turned up at a Belfast Feminist Network protest outside the game against Ospreys last Friday evening.

It is the men's cheerleaders, though, who seem to be conflating two entirely separate issues. The players' contracts have been terminated because they brought the game into disrepute, and that is within the IRFU's remit to decide, in addition to, rather than as a challenge to, the legal process.

One can be found not guilty of a criminal charge and still be deemed unfit to continue in a particular role. People are dismissed all the time on the grounds that they have brought the company for which they work into disrepute. Contracts will often specify that people remain representative of their employers even when not at work. People have been fired for behaviour which their bosses consider to be damaging to the firm's public image.

Cases have included a primary school teacher who was fired after posing for perfectly legal glamour photos, because the school considered the conflict between that and her work with children to be too great to tolerate. A Wetherspoons pub manager in England was also dismissed for posting derogatory comments about certain customers on Facebook, even though she had no clue her messages could be seen outside her small circle of friends.

Businesses need to use their powers sparingly, so as to avoid legal action by disgruntled former employees, because those who are dismissed have every right to take a case of their own in retaliation if they think their right to privacy and a good name has been undermined as a result; but that doesn't mean the court will automatically find in their favour.

In 2003, a man who worked for the UK's probation service was fired after his participation in certain sado-masochistic sexual activities became known. He went all the way to the European Court of Human Rights to challenge the decision, but it ruled in favour of the man's employers, saying that he may have had certain rights but that they were equally entitled to conclude that his private behaviour conflicted with his work rehabilitating sex offenders.

In the case of the pub manager, an employment tribunal again found for the company.

Given the situation faced by the IRFU, only one question needed to be settled, namely was it unreasonable, given the wider circumstances, to terminate two players' employment on the grounds that their misogynistic behaviour had brought Irish rugby into disrepute?

There may be differing opinions on whether that was the right call, but surely there can be no argument that rugby authorities were perfectly within their rights to take the decision they did last week, not least in light of the ubiquitous and influential platform which these games enjoy in modern society? Professional sport is about so much more than what goes on in the field of play.

What specific obligations were laid out in players' contracts to uphold certain standards of behaviour remains unclear. Stuart Olding did say in his response to the termination of his contract that "influences outside of my contractual arrangement" had made his continuing to play in Ireland impossible, suggesting perhaps that there is a grey area around the precise nature of the undertakings and liabilities contained therein which may have complicated the IRFU's decision - but the best legal advice will no doubt have been sought before taking action, to ensure its legality.

If someone is fired because their employer morally disapproves of their behaviour, that would indeed constitute discrimination and unfair dismissal; but that's not what has happened here. All a company has to do is prove that its reputation has been damaged by a particular employee's statements or actions, and, with sponsors expressing concern at any continued participation by Jackson and Olding in Ulster Rugby, including the Bank of Ireland, whose logo has appeared on Ulster shirts for two decades, their continued presence on the team quickly became unfeasible. Their supporters can kick up a stink about it, but money talks loudest in the modern game, and no sponsor wants to be associated with the sort of negative publicity that this nine-week trial attracted.

What the two men did at the party wasn't illegal, but it was such to make Paddy Jackson himself subsequently admit to feeling "ashamed that a young woman, who was a visitor to my home, left in a distressed state", as well as "truly sorry" for crudely joking about it the next day with his friends. He also acknowledged that "the criticism of my behaviour is fully justified and I know I have betrayed the values of my family and those of the wider public".

If he genuinely believes that, then the punishment is not disproportionate.

People are entitled to make unappealing remarks in private free from the judgmental eye of Big Brother, but if circumstances conspire to make those messages public then it is ridiculous to not expect there to be some consequences. Others may think worse of you as a result. It may be that you'll even lose your job. That's not "cyber persecution", as the ad taken out by the men's supporters dubbed it. It's just reality.

We wouldn't even be having this debate if the men had made equally toxic racist or homophobic remarks. They'd have been gone long before Friday, and it is unthinkable that anyone would be out defending them. Such a scenario is unlikely to arise because, even in the macho atmosphere of team sports, most players know enough black or gay fellow sportsmen not to feel that they were a legitimate target for denigration. They'd have more respect. That they don't consider women to be worthy of the same consideration is what has led to the backlash against the men for their WhatsApp messages.

That's not to say that those who called for the men to be reinstated without further ado, such as Lions legend Willie John McBride, who said in midweek that the authorities should "allow these guys to do what they do best, and that's playing rugby", deserve to be vilified for that view either; but it does mean there's a culture within rugby that needs to be challenged, and it needs to be done honestly without absurd accusations that the men are being unfairly hounded. The same thing happened with the #MeToo movement. No sooner had it begun than the backlash began, asking if it had gone too far.

The answer is the same now as it was then, namely that the outpouring of disgust at the actions of certain men contains the seeds of a possible over-reaction, but that it still has some way to go before it reaches that point. The men themselves have little cause for complaint, and, to their credit, seem to be accepting the sanction with dignity, and seeing it as a challenge to prove themselves worthy of esteem in the future. That's entirely in their own hands.

Anyone still tempted to defend them needs to remember it's their own words which have been used to condemn them, and if that is unjust then surely the determination of Paddy Jackson's lawyers to pursue anyone who tweeted on the #IBelieveHer hashtag in the wake of the not guilty verdict is similarly draconian? Will that hunt continue? It will be instructive to find out.

It's not an exact parallel, because social media is a public platform and WhatsApp isn't, but it does make the hunting down of individuals for the mere expression of an opinion look somewhat unbefitting. In fact, that response may itself have contributed to the backlash against the men which emerged at the end of the nine-week trial, a feeling that these attitudes needed taking down a peg or two.

If so, it proves that the more penitent approach taken by Stuart Olding at the start was the wise response. Paddy Jackson apologised for his behaviour a week later, but it was too little, too late.

The IRFU does not have the power to change how the alleged victims of rape are treated in the justice system, but it has made a serious contribution to changing a culture which disrespects women and leaves them exposed to unacceptable manifestations of toxic masculinity.

Sunday Independent

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