Like many England rugby fans, I am waiting on tenterhooks to find out exactly how new head coach Eddie Jones eventually sets up his chosen coaching team and in particular just what he is going to do – or even ‘what he is going to be allowed to do’ by the crazy agreement in place between the RFU and the Premiership clubs – as regards the 2016 Six Nations squad selection to be announced early in the New Year.
Rugby tensions being always close to the surface chez nous, it will come as no surprise to regular readers that my husband is currently enjoying his festive period, not least by offering general advice on the travails facing the England team from his happy position of Scotland’s unexpectedly successful RWC performance and his erroneous conviction that the men singing Flower of Scotland will have the upper hand going into England’s opening match (the Calcutta Cup clash).
So far, as my dear old grandfather – no stranger to mixed metaphors – would have put it, it seems that Mr Jones, whose appointment has been generally well-received, has – since opening the batting on his new regime (and let’s forget for the moment that he came out of the pavilion slightly late due to the minor matter of not actually having a work permit) not been scoring many runs.
Within 90 minutes of the RFU rousing fanfare and announcement that Borthwick was joining Jones’s Homeric odyssey, Bristol Rugby – ostensibly Borthwick’s previous employers on a long term contract – blew a gasket by countering with a PR statement that no deal had been done, the RFU had not sought permission to speak to Borthwick and that in the current circumstances they were going to do everything within their power to retain him. With the heavy money lined up behind Bristol’s perennial quest to gain promotion from the Championship this season, one could see this one running and running.
Egg on faces all round at Twickenham, one would have thought – and by now it must be pretty hard to find a square inch of RFU skin not already bedecked in the scrambled variety anyway.
But as my personal lord and master helpfully pointed out – hang on, hasn’t everyone concerned forgotten something?
Back in the day, i.e. when he had a peripheral connection to employment law matters, one of the basic legal principles that applied in this area of law was that contracts for personal service could not be enforced. In other words, nobody – however watertight their contract – could be forced to perform their side of the bargain if turned out they didn’t want to do it. Instead, the offended employer could only sue for such damages as had been caused either by any non-performance and/or perhaps by another prospective employer who had induced the employee to depart.
Furthermore, I read today on the website of The Guardian in a report by Paul Rees that Bristol are actively pursuing the possibility of taking out an injunction – see here – THE GUARDIAN
My better half also points out that (in his day) injunction were normally only ever considered – let alone granted – by the courts when the claimant concerned had made a satisfactory case, as a first step, that the potential damage caused to him (or her) if something was allowed to go ahead would be so great and/or catastrophic to their interests that monetary compensation alone would not be enough.
In this case, I think we can take it as read that Mr Borthwick wishes to walk away from his Bristol Rugby employment contract – I call in evidence the fact that (on legal advice) he formally resigned from it 48 hours ago. Since Bristol cannot hold him to his contract (because it’s an employment one) in terms of forcing him to work it – or perhaps go on ‘gardening leave’ for its duration – then their only resort is to negotiate or litigate to gain as much compensation as possible.
I understand from media reports that Bristol were looking for £500,000 in compensation and the RFU were unwilling to pay that much.
So it is all about the money, then – but now just a question of how much.
With Bristol’s pockets being deep, they can of course spend cash making a lot of noise in the media, threatening whatever they like – even instigate legal proceedings if they wish – but the great likelihood is that at some point some deal will be done. Plus, since Mr Borthwick has indicated he wishes to depart to take up his RFU position, which sensible employer would really want to ‘keep’ him – even if it legally could – in a situation where his heart, and possibly mind, is going to be elsewhere for the remainder of his contract?
Separately, we now also learn overnight that, as regards the post-Lancaster England captaincy, Dylan Hartley is being touted – on seemingly good authority – as being in the frame if and as Chris Robshaw loses out.
I have no problem with Robshaw having the captaincy removed. Like Lancaster he’s an honest, worthy and decent fellow but the arguments over whether he was ever worth his position in the England team (at least as a 7), let alone as skipper, will never go away.
Beginning with a clean sweep-out of a previous regime (especially one that is perceived to have failed) is often a smart first move, whatever the organisation – political, commercial or public service-based. I’m just surprised that Jones and the RFU have taken this long to do it – perhaps it was something to do with not wishing to be seen to be hasty, or not being seen to give the incumbents the chance to be heard.
He’s a top player and a tough and uncompromising leader, but I wouldn’t choose him at this juncture on three grounds.
Firstly, his consistently poor disciplinary record.
Secondly, he’s currently been out injured – having had a couple of set-backs already in returning from a concussion several weeks ago.
And thirdly, he’s around the 30 mark age-wise – England has a number of young gun hookers coming through (Jamie George and Luke Cowan-Dickie to name but two prominent ones) and I only ask (1) what message would picking Hartley as captain convey to them, and (2) is Hartley really likely to be still England’s number one hooker in four years’ time when the 2019 RWC comes around?
The best way forward on the captaincy is for Eddie Jones is to pick the best possible Six Nations squad he can – then work swiftly to decide his starting XV for the Scotland game – and only then pick his captain from among those players. Assuming that Robshaw makes the Six Nations squad in some position or another (as a player), if it is really the case that the RGU feels it cannot announce its squad without also naming its captain simultaneously, then [possibly arguing against myself here] there is at least an argument that Robshaw should be made temporary captain, but on a strictly ‘pro tem’ basis only.
Lastly, I’m a bit worried for Jones on the English rugby politics front.
Apparently he’s already swallowed the ‘Only England-based players will be considered for the national team’ principle, despite most other nations being far more pragmatic than that, not least Jones’s own Australia.
Now he’s having to work with the stricture that – as per the agreement between the RFU and the Premiership clubs – at this moment in time he can only change a limited number (I’ve seen both seven and nine quoted) of the playing group that was previously selected by Stuart Lancaster for the RWC campaign.
This is ridiculous. Jones should have had the right to tear up the existing agreement and start with a completely new sheet.
Ah well, we shall see how things pan out. These are nervy times for those of us with England’s best interests at heart but no insider knowledge on what’s actually going on …