Professor Jack Anderson joined Tuesday's OTB AM to offer a legal context to the current stand-off between the Kildare County Board and the GAA.
He was appointed to the Court of Arbitration for Sport in 2016 and is uniquely placed to offer an insight into the possibilities which might play out in the coming days.
The situation intensified this morning when Chairman of the CCCC, Ned Quinn, offered a multitude of reasons as to why the game was switched from St. Conleth's Park, Newbridge to Croke Park - including the possibility of animosity outside the ground among fans due to the limited capacity.
Kildare have insisted they will not travel to GAA headquarters at the weekend but Professor Anderson believes mediation is the best solution to the predicament.
"The interesting thing about CCCC is that is that it's a really unusual position in the rule book in that you can't appeal decisions internally from the CCCC so your only option then is, it's a quirk of the thing, your only option is to go maybe legal," he told Ger.
"But, that depends of course, whether or not, the GAA disciplinary body gets involved so there's maybe nothing stopping the Disputes Resolution Authority coming in and saying 'Listen, we can mediate this and keep it out of the courts' so that maybe a simple solution because technically, the DRA is independent of the GAA and it'll just settle down between the parties and do it that way which I think is advisable for everyone.
"With a legal thing, the best you'll get is an injunction to stop things but what happens then? So, you're going to have to decide this in some way. So, I think a mediated solution is probably the best one.
"You're in a kind of strange situation because first of all, if you look at Kildare, who entered the competition and had a legitimate expectation that once they were first out of the draw - they had a home match but you balance that against the overall powers that the CCCC have in terms of fixing the matches which is quite a considerable power both at central level and at club level. So, you're kind of in a strange situation in that sense.
"And, the CCCC's arguments seem to be, obviously it's a bigger capacity but they also have other health and safety concerns and other concerns as well in regards to the season ticket holders but we seem to have a very entrenched scenario in this and I don't think going legal on it will solve anything, to be honest. You're going to have to sit down and do that and talk to each other.
"In the long term - there are so many other sports that this happens so many times and all other sports would have licencing arrangements whereby, at certain stages in the competition if your ground doesn't have the capacity then you can't hold it or, and this might be a solution in this case - where you go to Kildare, explain in a reasonable way, 'Look, we have concerns about capacity etc, we'll allow you to nominate another nearest home venue' and that occurs in other rugby competitions as well...so this can be done.
"It's interesting that immediately and somewhat cynically it's come down to compensation but it doesn't seem that Kildare will accept compensation and how do you fix that and what kind of precedence does that set?
"So, even if you ring fence the compensation for coaching purposes or whatever - is this going to happen again in the future? I think the solution is if you sit down with Kildare and you give them a choice as to what their nearest and best home venue is and that's probably the way to solve it. Legally - you're in a complete mess.
"Strictly under the official guide - there's very little power in internal appeal from a CCCC's decision but what can happen and I've seen it happen before where you have the mess at the weekend where the two teams turn up at different venues and say, for example, Kildare are thrown out - and then there maybe a right of appeal under a different avenue to go through the whole process and use the Adherence Committee and the Appeals Committee and all that but I just think that you need to intervene now and try and come to some sort of solution because inevitably it will be either a legal or internal appeal and I don't think anyone's going to win by that.
"It'll just disrupt the whole schedule of the qualifiers and cause legal costs so this is something that can be done and lessons learnt after.
"Let's say if it went legal, from my point of view as the outsider, Kildare's argument is based on expectation as they were first out of the hat but you can see the CCCC's arguments in regards to health and safety, with regards to season ticket holders and with regard that they have an overall right within the rule book that they set the agenda with regards to fixtures and that's a long-standing thing so I think, in legal terms, they probably have the slightly more technical and better argument in that whether or not they want to exercise that or whether or not Kildare wants to test that is another thing.
"Personally I wouldn't - I'd just get a mediator and sort it out," he added.
#sportslaw thanks to @offtheball for having me on earlier to talk about the Kildare v Mayo fixture debacle - did some further research on this and actually think @KildareGAA may have a solid legal argument here - thread
— Jack Anderson (@sportslawMELB) June 26, 2018
1. Under the GAA Official Guide r3.47 (a), the Central Competitions Control Committee has overall responsibility for Competition Scheduling and Arrangements for and Control of Games under the jurisdiction of the Central Council
— Jack Anderson (@sportslawMELB) June 26, 2018
2.Under the GAA Offical Guide r7.11(e)(3) there is no right of appeal against a decision of the Central Competitions Control Committee or a Provincial Competitions Control Committee with regard to arrangements
for the date and venue of a Game— Jack Anderson (@sportslawMELB) June 26, 2018
3. There is DRA authority that in exceptional circumstances a decision of a CCC can be overturned where it is unreasonable and irrational in the circumstances - high bar but can be done e.g., DRA 21 of 2016 Kilcoo GAC v Down CCC and Ulster HC
— Jack Anderson (@sportslawMELB) June 26, 2018
4. Kildare can argue that CCCC is unreasonably in breach of r6.28(A) (v) (2): "Home Venues SHALL be used in Rounds 1, 2 and 3 of the All-Ireland Qualifier Series, with first Team drawn having Home Advantage" and only exception is "Venues for Rd 4 shall be determined by CCCC"
— Jack Anderson (@sportslawMELB) June 26, 2018
4. Kildare can argue that CCCC is unreasonably in breach of r6.28(A) (v) (2): "Home Venues SHALL be used in Rounds 1, 2 and 3 of the All-Ireland Qualifier Series, with first Team drawn having Home Advantage" and only exception is "Venues for Rd 4 shall be determined by CCCC"
— Jack Anderson (@sportslawMELB) June 26, 2018
5. If there is any exception to the home venue rule in rounds 1-3 of the All-Ireland Qs (e.g., ground capacity, health and welfare, season ticket etc) GAA probably should have thought of that beforehand and expressly given the CCCC a discretion but it didn't
— Jack Anderson (@sportslawMELB) June 26, 2018
6. In sum, while CCCC has wide discretionary powers (that usually can't be appealed) under GAA rules, the GAA Official Guide has expressly and clearly limited the CCCC's powers in rounds 1-3 of the qualifiers and it must give Kildare home advantage.
— Jack Anderson (@sportslawMELB) June 26, 2018
7. If @KildareGAA go for injunctive relief in the courts, they look like they have a good arguable case and would get it on the above grounds. CCCC are not in any way willfully breaching the Guide, doing their best, just more restricted than normal by Guide & haven't realised.
— Jack Anderson (@sportslawMELB) June 26, 2018
8. CCCC may have to back down this time & revisit matters at end of year to give themselves greater discretion with Qs. I would recommend that they do that: ensures game is played, Kildare get what their due & from next rd of qualifiers (R4) CCCC have power to fix venues anyway
— Jack Anderson (@sportslawMELB) June 26, 2018
9. hope that all sides see the sense in the above and avoid legal or even DRA route - it will cost money and time and disrupt the tight fixtures schedule, possibly impacting on the Super 8
— Jack Anderson (@sportslawMELB) June 26, 2018
10. I am home in Ireland at the weekend for a month, this free legal advice is provided on condition that I get a go at the Sunday paper review on @offtheball ...
— Jack Anderson (@sportslawMELB) June 26, 2018
