JACK ANDERSON: Disaster averted but iceberg of discontent has not melted

The Kildare team who faced Mayo earlier this year in the NFL in Newbridge

The dispute between Kildare and the GAA’s Central Competitions Control Committee (CCCC) regarding the venue for their round 3 qualifier fixture against Mayo has been resolved.

From the moment the qualifier draw was made, Kildare were adamant that they are entitled to play the match in Newbridge.

And yet within hours, the CCCC had fixed the game as part of a double-header at Croke Park and appeared equally unyielding.

Kildare always had the stronger case and here’s why.

In the GAA’s Official Guide, CCCs at the various levels have “overall responsibility” for scheduling of all games.

Fixing matches at central, provincial and club level is a difficult task. It cannot realistically be done on a consensual basis with the clubs and counties involved and so the CCCs are given wide-ranging powers.

These powers are supported in the Official Guide by the CCCs unusually privileged status. There is no right of appeal against a decision of a CCC with regard to arrangements for the date and venue of a game.

CCCs’ powers are not however unfettered. They must act in compliance with the provisions of the GAA’s Official Guide.

In the 2017 GAA Official Guide, Rule 6.28A provided for how the All-Ireland Football championship was to be organised and scheduled. In one, and only one, subsection of that rule (Rule 6.28(A) (v) (2)) it was stated clearly that home venues must (the GAA rulebook favours the word “shall”) be used in Rounds 1, 2 and 3 of the All-Ireland Qualifier Series, with the first team drawn having home advantage.

This meant that the CCCC had to fix such games at home venues. There were however four exceptions.

Three of the exceptions were technical in nature, prescribing what, for instance, the CCCC should do in the event that two teams who had already met in a provincial championship of that year were drawn to meet etc.

The fourth exception stated expressly that the arrangement for rounds 1-3 of the football qualifiers were conditional on the home venue being deemed to meet the criteria set down by the National Health and Safety Committee (NHSC) and the CCCC.

As far back as 2012, the CCCC used this power with regard to a round 3 qualifier involving Kildare, moving a tie against Limerick from Newbridge to Portlaoise. The Kildare Country Board felt aggrieved but decided not to appeal, nor would they have succeeded because the CCCC were entitled to do so.

The 2017 version of the Official Guide also noted that Rule 6.28(A) would be temporarily set aside in 2018, 2019, and 2020 to allow the three-year introduction of the provincial round robin series in hurling and the Super 8 concept in football.

To facilitate these changes, Rule 6.28A was amended in the 2018 version of the GAA’s Official Guide. In making that amendment, a specific sub-section for the football Super 8s (All-Ireland Quarter-Final Group Stage) appeared, namely Rule 6.28A(iii).

That subsection outlines the sequencing of the Super 8s and provides that teams will get at least one home game. In doing so, the clause on home venues being conditional to the criteria laid down by the NHSC and CCCC was moved into the Super 8 subsection and deleted from the subsection on round 1-3 qualifiers.

This means that on a strict reading of the current GAA Official Guide, the team drawn first out of the hat (Kildare) had to get a home venue and the current exception (for a division 3 or 4 NFL team) does not apply to Mayo.

The CCCC could have argued that the current Rule 6.28A on the football championship must be read as a whole and that the condition on home venues generally applies regardless of where in the rule it appears.

Moreover, the CCCC could have said that health and safety concerns with regard to stadia go beyond GAA rules and are tied into statutory provisions under Irish law.

So what might Kildare have done if CCCC had not backed down?

Kildare might have sought an injunction on the ground that the CCCC was acting outside its powers and not in compliance with the GAA’s own rules.

Equally, Kildare might simply have waited for Mayo to be awarded the game by the CCCC and then object using the full array of the GAA’s disciplinary mechanisms and including the Disputes Resolution Authority (DRA), the GAA’s independent arbitral body.

Both options would have been highly disruptive of the tight scheduling of qualifier games left before the Super 8s in mid-July.

Neither adversarial legal options might even have brought a resolution. An injunction would only have put a hold on the fixture and the DRA might have remitted the matter to the CCCC to come up with an alternative.

Both an injunction and (less so) the DRA would, of course, have entailed legal costs.

Injunctions and the courts are to be avoided if at all possible. A legal case would have involved one GAA unit (Kildare) using GAA money to claim against another GAA unit (CCCC) also using GAA money to defend its case. Whatever about where the dispute might have ended up, what might Kildare have argued to counter the CCCC?

Kildare’s arguments would have been fourfold in nature.

First, and straightforwardly, they’d have argued that under the rule book they were entitled to a home venue. Some media commentary seems to have suggested provocatively that in this Kildare was giving the GAA an “ultimatum”. All Kildare was asking was that the GAA’s delegate on fixtures, the CCCC, abide by the GAA’s rules.

Second, there is DRA authority (DRA case 21 of 2016) involving the Kilcoo club in Co Down, which holds that, although CCCs have a privileged position in the GAA’s rules, they must, like all units within the GAA, not act in a wholly unreasonable manner. In that complicated, fact-specific case, the decision to award a game against Kilcoo for an unfulfilled fixture was overturned and a re-fixture arrangement directed by the DRA.

Thirdly, Kildare could have argued that if home venues in rounds 1-3 of the qualifiers were to remain conditional on NHSC review, as the CCCC said, then the 2018 rulebook should have expressly said so as it did in 2017.

The legal argument here is the so-called contra preferentum rule. It is one that has been argued many times at the DRA. It means that in a document such as the GAA’s Official Guide, an ambiguity should be interpreted against the party (the GAA) who drafted the document. The GAA cannot fill a gap in the rule book by saying ‘what we meant to include in that section was etc.’ The final argument that Kildare would have needed to have addressed was on health and safety.

In this, Kildare rightly questioned the exact nature of the CCCC’s concerns given that it was feasible to sell tickets to Conleth Park’s safe capacity and cater for obligations to season ticket holders (obligations which are not absolute but qualified).

The health and safety concerns that the CCCC based their decision to fix the match for Croke Park were key to this whole affair.

The intervention by the chair of the CCCC, Ned Quinn, that suggested they were in part driven by potential animosity between frustrated, ticketless fans was misguided.

In a risk analysis of a GAA match, animosity between fans outside the ground would be a negligible risk. Getting them to stop chatting to each other in nearby pubs and take their place inside the ground on time would be the greater concern.

As seen in the GAA’s press statement yesterday, the health and safety concerns that CCCC had, relating to access, traffic management etc were genuine but needed to be better articulated.

Further, in articulating them, they needed to be communicated directly to Kildare.

From afar, I could not see why, given the rule book supported Kildare, the CCCC did not back down slightly earlier.

Remember, no precedent would have been set here for the GAA in 2018. From round 4 of the qualifiers onwards and into the Super 8s, the CCCC has clear powers with regard to changing home venues. The loophole that currently exists on rounds 1-3 of the qualifiers can be changed for next year. If anything, the CCCC has made things worse for itself and focus will now switch to Dublin’s ‘neutral’ venue in the Super 8s.

Three final points.

First, part of the problem with many GAA disputes is that the GAA’s Rule Book is overly complicated. The Gettysburg Address has as many words as the GAA official Guide Part 1 has single-spaced pages.

Second, this debate as with others in the GAA has become somewhat personalised.

Ned Quinn of the CCCC is an excellent GAA official as evidenced by his success as Kilkenny County Board chairman. His comments on fan animosity were regrettable and he should have said less but the GAA needs people of his calibre in the CCCC, which also has important disciplinary functions.

In contrast, the new director general probably should have said more on this issue, though he may have worked in the background. What’s important is that a mediation type settlement was reached.

Third, in mediation training you are always told that disputes are like an iceberg. The top 10% or so of what you see and think the dispute is about usually hides the real source of trouble below.

Was this dispute ever really about Kildare’s right to a home venue or was it about a growing disillusionment, perceived or otherwise, with the GAA’s direction?

The Kildare match goes ahead at the weekend. The weather is likely to be warm but the iceberg of discontent with the GAA has not melted.

<b>PaperTalk Munster final podcast with Anthony Daly and Ger Cunningham</b>

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