Back in October of last year, I wrote Part I of this. In it, I pointed out that the failure on the part of the IRB to restrict big-hit scrummaging, crooked feeds and pushing before the ball was not just dangerous, not just opening up the IRB to legal liability, but was terrible, terrible rugby. Brian Moore and others have been beating the same drum; Moore, in particular, deserves enormous credit for a relentless, focussed insistence that the Laws be applied for the sake of safety and of scrummaging.
In a development as unexpected as it is delightful, it looks like it's all had an effect. The IRB have moved to get rid of big-hit scrummaging. You can read the announcement HERE, and I recommend it as a very interesting piece, especially in the small details it contains; in essence, the engage goes to crouch, bind, set. Since props have to bind before the engage, refs can now see that they are binding up. Since they have to be so much closer together before the set to be able to bind, it means that the big hit is effectively now neutralised (25% less, on the studies). You can see how it works in practice on the video in THIS piece from Stuff.co.nz.
No big hit means a more stable engage; and all offences of not binding up now become free kick offences, which means that there's no benefit to trying to gull the ref by breaking an opponent's (or your own) bind. The most important part is that the ball cannot go in before the scrum is square and stationary, and most go in straight; in other words, trying to get over the midline and knock the other scrum back on the engage is just so much wasted effort, because you'll be brought back to the mark.
If enforced - and that's an "if" the size of Brad Thorn - it is a proportionate, sensible response that has been shown to address the mischief of dangerous impacts causing bad rugby. It is a reasonable step taken to reduce the risk faced in a scrum to a reasonable one accepted by all in the course of a physical game - and that's all that the law asks.
In other words, it is a perfect example of how you can address problems of liability and player safety while making the game better. And that is good day's work all round.
I repeat, we will have to see if it's enforced, and consistently enforced: there have been false dawns before. But, even as a first step, it's a pleasure to be able to say: well done, the IRB.
Thursday, May 9, 2013
Friday, April 26, 2013
Harlequins v. Munster - Tickets
So, off we went to the Stoop, more nervous than a brass monkey when the temperature drops below freezing.
Instead, it turned out to be a marvellous day; early spring sunshine, a great game in a great rugby ground (the pitch cut so close it would probably have taken spin from 60 minutes on), and the Harlequins supporters doing themselves and their club proud. It was everything European rugby should be about.
Including, of course, the now-traditional Snaffling of the Tickets by Munster fans; the stadium would have been about 45% Munster red, 20% more than the allocation. It led to considerable questioning afterwards "how the hell did they get all those tickets?". Harlequins themselves announced that they were going to be checking up what happened, to see if any season ticket holders had sold their tickets on to Munster supporters.
It would be interesting to see how far they go. Because - and this is where the law element comes in - Harlequins' Twickenham neighbours, the RFU, have gone to Court to obtain details of people reselling tickets - and won.
The case was about the resale of tickets for internationals above face value on a website called Viagogo. The RFU took umbrage at tickets being touted, and took action to stop it (as it has before) seeking an order from the Courts forcing Viagogo to give the information about who was selling these tickets on their site - what's known as a Norwich Pharmacal order.
The RFU won in the High Court, in the Court of Appeal, and on appeal to the UK Supreme Court. You can read the decision HERE - it's an interesting one on the balance between free speech and privacy, and trying to do right by the ordinary fans who can be priced out of it by touts, and Lord Kerr's sympathy for the game is obvious - but the key is that the RFU's interest in preventing wrongful sale of its tickets or breach of the tickets under which the conditions under which tickets sold was not disproportionate, and it was reasonable to oblige Viagogo to hand over the information.
So, what if Harlequins were to look at Munsterfans.com, which, when it comes to organising getting extra tickets for Munster fans for games, and getting to them, may be likened to crowd-sourcing Operation Bagration? There's a very, very strong ban on over-priced selling - anyone trying it will be banned from the site in short order - but would it be proportionate for Harlequins to seek information about who sold Munster fans the extra tickets? Would it be excessive, if it was just the same as someone with a spare swapping it with an opposition fan - something which everyone in rugby is familiar with and cherishes? Would it be classed as a fishing expedition?
My gut feeling is that Harlequins - whose hospitality won them nothing but praise from Munster - have far too much sense to take it that far. In fact, they may well find that many of the season ticket holders were Munster expats who reverted coming to home colours for one game - and that their hospitality may well bring in more such season ticket holders to a great club for the coming seasons. But it does mean that when looking at your ticket it might, just might, sometimes be worth reading the terms on the back.
Edited to update some links.
Instead, it turned out to be a marvellous day; early spring sunshine, a great game in a great rugby ground (the pitch cut so close it would probably have taken spin from 60 minutes on), and the Harlequins supporters doing themselves and their club proud. It was everything European rugby should be about.
Including, of course, the now-traditional Snaffling of the Tickets by Munster fans; the stadium would have been about 45% Munster red, 20% more than the allocation. It led to considerable questioning afterwards "how the hell did they get all those tickets?". Harlequins themselves announced that they were going to be checking up what happened, to see if any season ticket holders had sold their tickets on to Munster supporters.
It would be interesting to see how far they go. Because - and this is where the law element comes in - Harlequins' Twickenham neighbours, the RFU, have gone to Court to obtain details of people reselling tickets - and won.
The case was about the resale of tickets for internationals above face value on a website called Viagogo. The RFU took umbrage at tickets being touted, and took action to stop it (as it has before) seeking an order from the Courts forcing Viagogo to give the information about who was selling these tickets on their site - what's known as a Norwich Pharmacal order.
The RFU won in the High Court, in the Court of Appeal, and on appeal to the UK Supreme Court. You can read the decision HERE - it's an interesting one on the balance between free speech and privacy, and trying to do right by the ordinary fans who can be priced out of it by touts, and Lord Kerr's sympathy for the game is obvious - but the key is that the RFU's interest in preventing wrongful sale of its tickets or breach of the tickets under which the conditions under which tickets sold was not disproportionate, and it was reasonable to oblige Viagogo to hand over the information.
So, what if Harlequins were to look at Munsterfans.com, which, when it comes to organising getting extra tickets for Munster fans for games, and getting to them, may be likened to crowd-sourcing Operation Bagration? There's a very, very strong ban on over-priced selling - anyone trying it will be banned from the site in short order - but would it be proportionate for Harlequins to seek information about who sold Munster fans the extra tickets? Would it be excessive, if it was just the same as someone with a spare swapping it with an opposition fan - something which everyone in rugby is familiar with and cherishes? Would it be classed as a fishing expedition?
My gut feeling is that Harlequins - whose hospitality won them nothing but praise from Munster - have far too much sense to take it that far. In fact, they may well find that many of the season ticket holders were Munster expats who reverted coming to home colours for one game - and that their hospitality may well bring in more such season ticket holders to a great club for the coming seasons. But it does mean that when looking at your ticket it might, just might, sometimes be worth reading the terms on the back.
Edited to update some links.
Friday, March 22, 2013
Concussion - New Rules, Part 2
Part One was written just after the Ireland-France match. In that game, Brian O'Driscoll and Luke Marshall both got concussed. Marshall then got concussed again in the Italy-Ireland game.
Given the track record of what happens when something is noted on this blog, I'm becoming very tempted to pay special attention to Harlequins in the first week of April, running up the game against Munster in the Stoop.
However, glib comments aside, concussion is back in the news. And a particular feature of the discussion has been people asking how O'Driscoll or Marshall were left play again.
It's that feature I want to touch on in this post, and look at the idea of contributory negligence.
There's been a fair bit on this blog about the duty of care owed by officials and coaches to players, a duty not to expose them to a foreseeable risk of harm. There's also a duty on players not to expose themselves.
This isn't about ducking out of tackles or not playing the game as hard as possible; far from it. The idea that a brain injury, which is what concussion is, is somehow not a "real" injury, or that it's somehow an indication of weakness if you have put yourself in a place where you are hit so hard your brain function is affected, is one that bedevils this area and one that needs to be removed from rugby as fast as possible. Praising a player who keeps going when clearly concussed is nonsense; the player might be an animal, but if playing concussed, then he's doing his best to turn himself into a vegetable.
Players will be injured playing the game, and that is accepted; as one case put it, anyone playing must accept their fair share of bruises, injuries and minor fractures. We all do, and it's well worth it to play the game. But players have a duty to be honest about those injuries, and not to expose themselves to the risk of further injury. If they do, then they have, of their own choice, placed themselves in a situation where they have voluntarily assumed a foreseeable risk of harm to themselves. Like driving a car without a seatbelt, they have chosen to make things more dangerous for themselves. As a result, they are at least partly to blame if they do get hurt, and must take the consequences.
This, with concussion, is where the real issue comes in. The Graduated Return to Play Protocol - the means whereby it is seen if players can safely return to the game - requires players to be symptom-free at each stage. The problem is, so many of the symptoms of concussion, for example feeling "fuzzy", or headaches, are ones that don't have external, objective symptoms; if someone chooses to keep quiet about them, they won't turn up. The same is true of baseline psychometric tests; if one choses, one can "game" the test, slowing down one's reactions so that if tested later, one can always match or beat the baseline.
The problem is, of course, that in so doing, a player who wants to play and who covers up his symptoms exposes himself to a clear risk of not just the same injury, but a worse one by being concussed again while still symptomatic. That it's foreseeable is, to be honest, now a question of stating the obvious; when it's been in the news, when the RFU announces in an injury survey released today that concussion is now the most common form of match injury in elite rugby in England and one whose incidence is not dropping, then anyone in the game is well aware that multiple concussions are a major risk.
So, then, what does this mean in practice? Well, let's return to that analogy with the seatbelt. If you are in a road-traffic accident, suffer injury because you're not wearing a seatbelt, and sue the other driver for causing you the injury, the other driver will point out that a lot, if not all, of your injury is down to your own negligence in not wearing your seatbelt. A judge hearing your case will then knock off a considerable amount of any damages you might get - 25-50% would not be uncommon - because so much of it is your fault.
In like fashion, a player who isn't honest with the team doctor, says he's asymptomatic when he's not and plays when he's still fuzzy - something O'Driscoll stated on the Off The Ball radio show that he has done - would be contributing to any subsequent injury he may suffer as a result of concussion. The IRB itself states as a basic principle in its concussion management guidelines: Players must be honest with themselves and medical staff for their protection. I stress we don't know if it happened in these cases, but an interesting comparison, in the same 13 jersey, is with Conrad Smith - a practising solicitor - who was recently suspected of concussion, left the pitch after failing a pitch-side assessment and, while frustrated, accepted entirely that it was right and necessary that this should be the case.
The problem with concussion, of course, is that it can take years, even decades for the effects of multiple concussions, suffered when the player was hiding previous ones, to show up. By which stage, it's too late for the player.
Therefore, it's clear that there is a duty on coaches and team doctors not to put players unnecessarily in harm's way; but if they are making their assessments honestly, capably, following the GRTP and based on the information given to them by the player as to what his or her symptoms are, can it reasonably be said they have failed in that duty? And can not the finger of blame for the injuries sustained outside the framework aimed to protect players be pointed at the player who wasn't honest about his symptoms?
And all this, let us remember, when you still have the unanswerable question: if you train so hard to be able to make the right decisions, not make mistakes and not leave down your teammates, how are you helping them when you can't think straight at all?
It's time for honesty. Concussion is a brain injury, it is a risk in the game, and players need to be honest about it - with their doctors, with their teammates and with themselves.
Given the track record of what happens when something is noted on this blog, I'm becoming very tempted to pay special attention to Harlequins in the first week of April, running up the game against Munster in the Stoop.
However, glib comments aside, concussion is back in the news. And a particular feature of the discussion has been people asking how O'Driscoll or Marshall were left play again.
It's that feature I want to touch on in this post, and look at the idea of contributory negligence.
There's been a fair bit on this blog about the duty of care owed by officials and coaches to players, a duty not to expose them to a foreseeable risk of harm. There's also a duty on players not to expose themselves.
This isn't about ducking out of tackles or not playing the game as hard as possible; far from it. The idea that a brain injury, which is what concussion is, is somehow not a "real" injury, or that it's somehow an indication of weakness if you have put yourself in a place where you are hit so hard your brain function is affected, is one that bedevils this area and one that needs to be removed from rugby as fast as possible. Praising a player who keeps going when clearly concussed is nonsense; the player might be an animal, but if playing concussed, then he's doing his best to turn himself into a vegetable.
Players will be injured playing the game, and that is accepted; as one case put it, anyone playing must accept their fair share of bruises, injuries and minor fractures. We all do, and it's well worth it to play the game. But players have a duty to be honest about those injuries, and not to expose themselves to the risk of further injury. If they do, then they have, of their own choice, placed themselves in a situation where they have voluntarily assumed a foreseeable risk of harm to themselves. Like driving a car without a seatbelt, they have chosen to make things more dangerous for themselves. As a result, they are at least partly to blame if they do get hurt, and must take the consequences.
This, with concussion, is where the real issue comes in. The Graduated Return to Play Protocol - the means whereby it is seen if players can safely return to the game - requires players to be symptom-free at each stage. The problem is, so many of the symptoms of concussion, for example feeling "fuzzy", or headaches, are ones that don't have external, objective symptoms; if someone chooses to keep quiet about them, they won't turn up. The same is true of baseline psychometric tests; if one choses, one can "game" the test, slowing down one's reactions so that if tested later, one can always match or beat the baseline.
The problem is, of course, that in so doing, a player who wants to play and who covers up his symptoms exposes himself to a clear risk of not just the same injury, but a worse one by being concussed again while still symptomatic. That it's foreseeable is, to be honest, now a question of stating the obvious; when it's been in the news, when the RFU announces in an injury survey released today that concussion is now the most common form of match injury in elite rugby in England and one whose incidence is not dropping, then anyone in the game is well aware that multiple concussions are a major risk.
So, then, what does this mean in practice? Well, let's return to that analogy with the seatbelt. If you are in a road-traffic accident, suffer injury because you're not wearing a seatbelt, and sue the other driver for causing you the injury, the other driver will point out that a lot, if not all, of your injury is down to your own negligence in not wearing your seatbelt. A judge hearing your case will then knock off a considerable amount of any damages you might get - 25-50% would not be uncommon - because so much of it is your fault.
In like fashion, a player who isn't honest with the team doctor, says he's asymptomatic when he's not and plays when he's still fuzzy - something O'Driscoll stated on the Off The Ball radio show that he has done - would be contributing to any subsequent injury he may suffer as a result of concussion. The IRB itself states as a basic principle in its concussion management guidelines: Players must be honest with themselves and medical staff for their protection. I stress we don't know if it happened in these cases, but an interesting comparison, in the same 13 jersey, is with Conrad Smith - a practising solicitor - who was recently suspected of concussion, left the pitch after failing a pitch-side assessment and, while frustrated, accepted entirely that it was right and necessary that this should be the case.
The problem with concussion, of course, is that it can take years, even decades for the effects of multiple concussions, suffered when the player was hiding previous ones, to show up. By which stage, it's too late for the player.
Therefore, it's clear that there is a duty on coaches and team doctors not to put players unnecessarily in harm's way; but if they are making their assessments honestly, capably, following the GRTP and based on the information given to them by the player as to what his or her symptoms are, can it reasonably be said they have failed in that duty? And can not the finger of blame for the injuries sustained outside the framework aimed to protect players be pointed at the player who wasn't honest about his symptoms?
And all this, let us remember, when you still have the unanswerable question: if you train so hard to be able to make the right decisions, not make mistakes and not leave down your teammates, how are you helping them when you can't think straight at all?
It's time for honesty. Concussion is a brain injury, it is a risk in the game, and players need to be honest about it - with their doctors, with their teammates and with themselves.
Tuesday, March 12, 2013
Concussion - New Rules
A very short post, as much as a heads-up as anything else (if I might be pardoned the phrase) that the new Zurich Consensus has been published.
You can read it HERE.
This is now the standard to be followed in dealing with concussion. The Pocket SCAT2 has been tweaked, and is now the Pocket Concussion Recognition Tool, the CRT.
I'll go through it in more detail, teasing out the details, but, given the manner in which we saw both Ireland's centres concussed in the game against France this weekend just gone, concussion in rugby is once again - alas - a live issue. And it is one on which knowledge is not so much power as safety. Hence my appeal to anyone reading this to please read the new Zurich Consensus, familiarise yourself with it and apply it, every single time concussion crops up in a game.
You can read it HERE.
This is now the standard to be followed in dealing with concussion. The Pocket SCAT2 has been tweaked, and is now the Pocket Concussion Recognition Tool, the CRT.
I'll go through it in more detail, teasing out the details, but, given the manner in which we saw both Ireland's centres concussed in the game against France this weekend just gone, concussion in rugby is once again - alas - a live issue. And it is one on which knowledge is not so much power as safety. Hence my appeal to anyone reading this to please read the new Zurich Consensus, familiarise yourself with it and apply it, every single time concussion crops up in a game.
Tuesday, March 5, 2013
Transfer Fees
The day can't be far off when you could play an over-30's version of the Rugby Championship in France. It's not quite that the T14 is the Dunrucking Retirement Home for Aged Southern Hemisphere Rugby Players, but, dear Lord, how the likes of Toulon are buying up players.
Of course, one of the latest, and one of the most expensive, acquisitions is Jonathan Sexton, moving to Racing Metro for the reported figure of €600,000 per annum. The strip-mining of Welsh talent has reached a pitch that is uncomfortably reminiscent of how League denuded Wales of players in the late '80s and early '90s. And still it continues, with Rocky Elsom now going to Toulon. There is a lot of money in French rugby, as THIS infographic from Green & Gold Rugby shows.
It is, in many respects, very like the manner in which the English Premiership in soccer has cornered the market. One must also wonder about the sustainability of it all, even given the strict financial rules that the Top14 imposes (and it must be said, the T14 is very transparent on this).
It's in this light that recent moves by the European Commission are interesting. Sport is an area over which the European Union has some oversight - it's a European competence, in the jargon - and decisions such as Bosman and Kolpak highlight this (on which this blog has touched in the past). Some of the work on the subject is excellent - I thoroughly recommend the European Parliament's document on the European dimension in sport, drawn up by the man who opened up Croke Park to rugby games which you can read HERE (it's long, but genuinely worth taking the time to read and reread at leisure). - and when the Commission turns its attention to sport and the insane money sloshing around some sports, then it's worth paying attention.
You can read the original document HERE and a good precis of it from the Guardian HERE. In essence; money, and beserk inflation of transfer fees, is destroying competition in European football and creating a de-facto closed shop. It has a raft of concrete proposals, largely aimed at rebalancing the effect of this closed shop and going some way to addressing the issues raised in the original Bosman case about protecting player development. Even the Premiership in soccer is now starting to take these issues of sustainability seriously as you can see in THIS piece from the Guardian (although the numbers involved are still eye-watering).
It will, of course, also affect rugby. And it's interesting to reflect on how this would work. Already, the president of Aviron Bayonnais has been speaking about a similar division between the haves and have-nots developing in the T14 to the extent of floating the idea of a union between the two Basque rivals to stay competitive (and to get an idea of that rivalry, Google "Imanol Harinordoquy father"). and we are now in the position where French clubs are outbidding national unions who develop the players. It has an effect on French rugby, too; while the T14 isooming, French coach Philippe Saint-André has been in the press bemoaning the dearth of French out-halves, and - in a sentence I never thought I would see - France are currently bottom of the Six Nations table, winless, after three games (although grim familarity with what it's like supporting Irish rugby leads me to just know that come the game against Ireland, they'll turn back into the sort of French team that can cut the All Blacks to ribbons).
It also seems to be affecting the international game. The issue of player release for the Lions this summer has been a touchy subject, and the (French) President of the IRB, Bernard Lapasset has been speaking on the subject of how money is now causing problems for the test game and player release - HERE. It is interesting to note that the European Parliament document referred to above also notes the problem and emphasises clubs should release players for tests.
It has not yet reached the point where legislation on the subject has come in. But it is as well to flag the issue, because it is one of the major factors in rugby as a professional game, and it is not going to go away soon. And the steps taken to deal with the dysfunctional elements in other sports will certainly hit rugby, too. Best we know what's coming down the tracks before it hits us.
Of course, one of the latest, and one of the most expensive, acquisitions is Jonathan Sexton, moving to Racing Metro for the reported figure of €600,000 per annum. The strip-mining of Welsh talent has reached a pitch that is uncomfortably reminiscent of how League denuded Wales of players in the late '80s and early '90s. And still it continues, with Rocky Elsom now going to Toulon. There is a lot of money in French rugby, as THIS infographic from Green & Gold Rugby shows.
It is, in many respects, very like the manner in which the English Premiership in soccer has cornered the market. One must also wonder about the sustainability of it all, even given the strict financial rules that the Top14 imposes (and it must be said, the T14 is very transparent on this).
It's in this light that recent moves by the European Commission are interesting. Sport is an area over which the European Union has some oversight - it's a European competence, in the jargon - and decisions such as Bosman and Kolpak highlight this (on which this blog has touched in the past). Some of the work on the subject is excellent - I thoroughly recommend the European Parliament's document on the European dimension in sport, drawn up by the man who opened up Croke Park to rugby games which you can read HERE (it's long, but genuinely worth taking the time to read and reread at leisure). - and when the Commission turns its attention to sport and the insane money sloshing around some sports, then it's worth paying attention.
You can read the original document HERE and a good precis of it from the Guardian HERE. In essence; money, and beserk inflation of transfer fees, is destroying competition in European football and creating a de-facto closed shop. It has a raft of concrete proposals, largely aimed at rebalancing the effect of this closed shop and going some way to addressing the issues raised in the original Bosman case about protecting player development. Even the Premiership in soccer is now starting to take these issues of sustainability seriously as you can see in THIS piece from the Guardian (although the numbers involved are still eye-watering).
It will, of course, also affect rugby. And it's interesting to reflect on how this would work. Already, the president of Aviron Bayonnais has been speaking about a similar division between the haves and have-nots developing in the T14 to the extent of floating the idea of a union between the two Basque rivals to stay competitive (and to get an idea of that rivalry, Google "Imanol Harinordoquy father"). and we are now in the position where French clubs are outbidding national unions who develop the players. It has an effect on French rugby, too; while the T14 isooming, French coach Philippe Saint-André has been in the press bemoaning the dearth of French out-halves, and - in a sentence I never thought I would see - France are currently bottom of the Six Nations table, winless, after three games (although grim familarity with what it's like supporting Irish rugby leads me to just know that come the game against Ireland, they'll turn back into the sort of French team that can cut the All Blacks to ribbons).
It also seems to be affecting the international game. The issue of player release for the Lions this summer has been a touchy subject, and the (French) President of the IRB, Bernard Lapasset has been speaking on the subject of how money is now causing problems for the test game and player release - HERE. It is interesting to note that the European Parliament document referred to above also notes the problem and emphasises clubs should release players for tests.
It has not yet reached the point where legislation on the subject has come in. But it is as well to flag the issue, because it is one of the major factors in rugby as a professional game, and it is not going to go away soon. And the steps taken to deal with the dysfunctional elements in other sports will certainly hit rugby, too. Best we know what's coming down the tracks before it hits us.
Friday, February 15, 2013
Cian Healy Suspension.
Ireland v. England in the 2013 6 Nations. God-awful day, God-awful game in a weekend of God-awful games, dissappointing (if not quite God-awful) result for the home side. And it got worse.
So, there is no doubt whatsoever that the Committee have the power and right to defer the start of a suspension if a player is not scheduled or permitted to play.
In the first quarter of the game, Cian Healy saw his opponent, England tighthead Dan Cole, lying on the wrong side of a ruck. He decided to take matters into his own hands. You can see what he did HERE, HERE, and HERE (my thanks, as always, to Snedds). He stamped on Cole's ankle.
I am a fan of rucking; I have rucked, and been rucked, and worn my stripes with pride. I am a fan of Healy; always a great prop around the pitch, he has turned himself into a very good scrummager by dint of dedication and effort. But this wasn't rucking. If he had wanted to, he could have raked Cole's thigh, or calf, to free the ball and let him know not to lie there again, and that would have been well within the unwritten rules by which players self-police. It was a stamp, onto a joint, much like Jamie Joseph on Kyran Bracken back in the day, with sufficient force that Healy managed to clip the back of Rory Best's leg in passing and cut it.
It was deliberate, it was unacceptable, and it was rightly cited.
The hearing was on Wednesday last, the 13th of February. Healy was suspended from the 18th of February until midnight on the 10th of March. This is unusual; the suspension did not kick in immediately, but only until after the Ireland-France game. This, according to the press release, which you can read HERE was because the Committe, "in imposing a suspension of three weeks, recognised that the player would not have played for his province this weekend is that the suspension will end at midnight on Sunday 10 March 2013" (it should be noted as a caveat that we still don't have the written judgement in the case yet, nor, seemingly do the parties, so there may be clarifications on that topic when we do have the judgement to hand).
This has led to some confusion and comment yesterday, including a statement that he had been released to Leinster (this particular piece was updated over the course of yesterday, following the rugby fora), seemingly based on Jonno Gibbes of Leinster claiming they intended to play Healy against Treviso in the RaboDirect Pro12 fixture tomorrow, and culminating in a report that legal advice is being sought on this. The aim of this post is to set out the Regulations and hopefully clear up some of the confusion caused by those who should be informing the public clearly not bothering to read the background material.
Citings, disciplinary hearings and suspensions are governed by IRB Regulation 17, which you can read HERE.
Regulation applies generally to all in the game. As it says in the Preamble:
Preamble... (D) All participants in the Game shall by means of their participation recognise and agree to be bound by this Regulation including the core principle of universality which means that Players who are suspended at any level of the Game shall have their suspension recognised and applied at all levels of the Game and in the territories of all Unions and Associations. The IRB has identified certain Core Principles which must be implemented by all Unions and Associations at all levels of the Game in the implementation of disciplinary rules for Foul Play.
In those Core Principles in Regulation 17.1, we see the following:
(b) All Matches are equal. A Player suspended from playing the Game shall be suspended from participating in any Match at any level during the period of his suspension.
Unions, clubs and associations have a duty to impose it (Regulation 17.2).
17.2 (1) All Unions, Associations and their recognised Tournament Organisers have an obligation to put in place and implement disciplinary regulations within their jurisdictions and in respect of their tournaments and Matches which incorporate fully the Core Principles.
(4) In the event of non-compliance or improper implementation of this Regulation by any Union or Association, the IRB may undertake such action as it considers reasonable and appropriate in the circumstances in order to address the matter with the Union or Association. Where a Rugby Body does not comply with or fails to properly implement this Regulation, the Disciplinary Officer or the Board may require the relevant Union(s) or Association to undertake appropriate investigations and/or proceedings to remedy the matter. In any event the IRB shall have the authority to ensure the proper implementation of this Regulation 17 within the Game.
It should be noted that the IRB has already stepped in this season to ensure the proper implementation of Regulation 17 - the Adam Thomson case. The Justice4 case involving the Springbok management and team and their armbands would be another example.
Regulation 17.19.10 says:
on sanctions and suspensions imposed on Players under IRB Regulation 17 shall:... (b) not allow Players to avoid the full consequences of their actions by, for example, playing in Matches prior to the commencement of their suspension, or playing in Matches during a break in the suspension and/or serving their suspension during a period of inconsequential pre-season and/or so-called friendly Matches [Emphasis added]Regulation 17.19.11 says:
When imposing suspensions on Players under Regulation 17 Disciplinary Committees or Judicial Officers shall comply with the requirements set out in Regulation 17.19.10 above. In doing so Disciplinary Committees or Judicial Officers:...
(b)may defer the commencement of a suspension provided that the Player is not scheduled to play (and will not be permitted to play) prior to the commencement of the suspension; [Emphasis added]
So, there is no doubt whatsoever that the Committee have the power and right to defer the start of a suspension if a player is not scheduled or permitted to play.
So far as the question of appeals go, Declan Kidney was right to be cautious on this: Regulation 17.19.24 says
Suspension
17.24.1 A Player Ordered Off or cited by a Citing Commissioner may not take part or be selected for any further Match until his case has been dealt with by a Disciplinary Committee or Judicial Officer.
17.24.2 Without in any way limiting the effect of Clause 17.19.11, a Player that is subject to an Ordering Off or citing in a domestic or any other Match is not entitled to play the Game (or any form thereof) or be involved in any on-field Match day activities anywhere in the world until his case has been finally resolved.
17.24.3 A suspended Player who elects to appeal may not take part or be selected for any further Match until his case has been dealt with by an Appeal Committee or Appeal Officer or the expiry of his suspension whichever occurs earlier. [Emphasis added]
So, when Jonno Gibbes said that "There are complications for others, maybe, but he's available for us", one might be permitted to raise a quizzical eyebrow at this juncture. Given that the IRB have already appealed one sentence for stamping this season, it would have been rash in the extreme for Leinster to attract the ire of the IRB and 6N by trying to play him - especially when their second row, Tom Denton, is before a disciplinary hearing today, and when they have a serious prospect at loosehead in McGrath who is well worth another run-out. Thankfully, and to their credit, once the confusion was cleared up, wiser counsels prevailed.
So far as legal advice, the Committee have acted within their powers under the Regulations, and the Regulations giving them those powers are set out above. They have acted intra vires, to use the technical term. Given the reluctance of the Courts to get involved with the supervisory jurisdiction even when a sporting body has acted ultra vires which has been discussed before on this blog, it's hard to see how one could persuade a Court to step in when you're seeking to challenge a decision that the decision maker was entitled to make. This is all the more the case when there's an Appeal open to the player as a perfectly satisfactory alternative remedy.
Of course, there is always the risk at Appeal that the sentence could be increased, and it does raise the question of the awareness of changes in the disciplinary regulations. On which note, we might leave this for further discussion when the decision becomes available.
Edit: updated to reflect the team announcement.
Edit: updated to reflect the team announcement.
Tuesday, February 12, 2013
Minimum Bans - Webb and O'Gara.
In this post, I want to contrast two one-week bans for players using the boot on an opponent, as much to highlight the importance of publishing decisions as anything else.
In what was, even by the high standards of that fixture, a remarkably bad-tempered West Wales derby between the Ospreys and the Scarlets, Rhys Webb, the replacement Ospreys scrum-half, stamped several times on a Scarlets player. You can see it HERE. Although missed at the time, it was cited later, and he received a one week ban.
The minimum ban for stamping is two weeks. Webb got less than the minimum. And the thing is, because the RaboPro12 does not publish decisions, we have no idea if the minimum ban regulation was properly taken into consideration, what was argued, whether they were just plain wrong in breaking the IRB Regulation in going below the minimum - we don't know. It's a black box, and remarkably unsatisfactory, not least for those in other teams who want to know where the boundaries of rucking as opposed to stamping are.
By contrast, the ERC is meticulous about publishing. So, let us contrast the opaque Pro12 with the transparent HEC. About seventy minutes into the Edinburgh-Munster game in round five of the HEC, Sean Cox of Edinburgh followed through and clipped Ronan O'Gara of Munster with a lateish shoulder. O'Gara promptly became furious, followed Cox, and threw a boot at him, bringing him down. You can see it HERE. O'Gara was cited for it, and received a one-week ban - less than the minimum ban for this offence.
I should, at the outset, repeat that I am an unabashed Munster supporter; at matches, probably unabashed at volume levels comparable with a 747 on takeoff. I have been a fan of O'Gara since he was playing for PBC, then UCC, and on up the rankings; for some 20 years now, the fortunes of teams I support have depended on him, and he has delivered time and again. Therefore, I am fully aware that I may well not be coldly objective on this, despite my best efforts; but the decision raises some very interesting issues, so it has to be discussed, warts on the discussion and all.
You can read the decision, by his Honour Judge Jeff Blackett, HERE. It's short, but very interesting. First, it accepts, in line with the Martyn Williams decision, that late shots, people swinging off you or those out to get a response can be provocation. It will not excuse retaliation - the learned judge makes that very clear at the end of the decision - but it will be taken into account. It's clear that this is an emerging viewpoint, and contrasting it with the approach taken by the same judge in O'Connell makes for a neat counterpoint.
Secondly, it deals with the question of what is "wholly disproportionate" under the new Regulation 17; indeed, it's the key issue in the decision, as from the outset, that was the plea made, that the minimum ban would be wholly disproportionate. The disciplinary officer submitted that this should be considered solely in light of on-pitch events. In that submission, he was, I would say, wrong; to go below the minimum, there is a two-part test, involving it being wholly disproportionate but also that there are compelling off-pitch reasons. In other words, it is not limited solely to what happens or happened on the pitch.
The learned judge started at the minimum ban of four weeks; so far, so good. He then reduced it by 50%, examined the remaining two weeks, felt it would be wholly disproportionate and reduced it to one week. This, I would say, was an error, because it was back to front. The maximum mitigation is 50% of the relevant entry point, but even then one cannot go below the minimum ban unless wholly disproportionate, at which point, if it is wholly disproportionate, one is at large on sentencing. The learned judge put the cart before the horse on this; it should have been:
Minimum - wholly disproportionate, Y/N? If Y, mitigation up to 100%, if N, minimum.
Instead, it was:
Minimum - Mitigation of 50% - Wholly disproportionate, Y/N? Y, so mitigation.
It ended up at the same result - if the learned judge felt that a sentence over 1 week was wholly disproportionate, gave his reasons and was not irrational, that's what the sentence would have been through either route - but through the wrong route. It is, however, a good example of what I've described as an error within jurisdiction; it was wrong, but it made no odds, so it would not be upset.
The main thing is, it sets out the reasons, and one can see them, and get guidance as to what may or may not be wholly disproportionate in the future. The contrast with the Pro12 could not be clearer.
There is no reason not to publish. If a decision is right, then let people see it, let them read it, and let them learn from the precedent. The ERC's success in largely stamping out tip-tackles in this year's HEC should be a testament to just how effective that can be.
Speaking of stamping out, there'll be another decision on the subject coming out of the Ireland-England Six Nations game. Of which more in due course...
In what was, even by the high standards of that fixture, a remarkably bad-tempered West Wales derby between the Ospreys and the Scarlets, Rhys Webb, the replacement Ospreys scrum-half, stamped several times on a Scarlets player. You can see it HERE. Although missed at the time, it was cited later, and he received a one week ban.
The minimum ban for stamping is two weeks. Webb got less than the minimum. And the thing is, because the RaboPro12 does not publish decisions, we have no idea if the minimum ban regulation was properly taken into consideration, what was argued, whether they were just plain wrong in breaking the IRB Regulation in going below the minimum - we don't know. It's a black box, and remarkably unsatisfactory, not least for those in other teams who want to know where the boundaries of rucking as opposed to stamping are.
By contrast, the ERC is meticulous about publishing. So, let us contrast the opaque Pro12 with the transparent HEC. About seventy minutes into the Edinburgh-Munster game in round five of the HEC, Sean Cox of Edinburgh followed through and clipped Ronan O'Gara of Munster with a lateish shoulder. O'Gara promptly became furious, followed Cox, and threw a boot at him, bringing him down. You can see it HERE. O'Gara was cited for it, and received a one-week ban - less than the minimum ban for this offence.
I should, at the outset, repeat that I am an unabashed Munster supporter; at matches, probably unabashed at volume levels comparable with a 747 on takeoff. I have been a fan of O'Gara since he was playing for PBC, then UCC, and on up the rankings; for some 20 years now, the fortunes of teams I support have depended on him, and he has delivered time and again. Therefore, I am fully aware that I may well not be coldly objective on this, despite my best efforts; but the decision raises some very interesting issues, so it has to be discussed, warts on the discussion and all.
You can read the decision, by his Honour Judge Jeff Blackett, HERE. It's short, but very interesting. First, it accepts, in line with the Martyn Williams decision, that late shots, people swinging off you or those out to get a response can be provocation. It will not excuse retaliation - the learned judge makes that very clear at the end of the decision - but it will be taken into account. It's clear that this is an emerging viewpoint, and contrasting it with the approach taken by the same judge in O'Connell makes for a neat counterpoint.
Secondly, it deals with the question of what is "wholly disproportionate" under the new Regulation 17; indeed, it's the key issue in the decision, as from the outset, that was the plea made, that the minimum ban would be wholly disproportionate. The disciplinary officer submitted that this should be considered solely in light of on-pitch events. In that submission, he was, I would say, wrong; to go below the minimum, there is a two-part test, involving it being wholly disproportionate but also that there are compelling off-pitch reasons. In other words, it is not limited solely to what happens or happened on the pitch.
The learned judge started at the minimum ban of four weeks; so far, so good. He then reduced it by 50%, examined the remaining two weeks, felt it would be wholly disproportionate and reduced it to one week. This, I would say, was an error, because it was back to front. The maximum mitigation is 50% of the relevant entry point, but even then one cannot go below the minimum ban unless wholly disproportionate, at which point, if it is wholly disproportionate, one is at large on sentencing. The learned judge put the cart before the horse on this; it should have been:
Minimum - wholly disproportionate, Y/N? If Y, mitigation up to 100%, if N, minimum.
Instead, it was:
Minimum - Mitigation of 50% - Wholly disproportionate, Y/N? Y, so mitigation.
It ended up at the same result - if the learned judge felt that a sentence over 1 week was wholly disproportionate, gave his reasons and was not irrational, that's what the sentence would have been through either route - but through the wrong route. It is, however, a good example of what I've described as an error within jurisdiction; it was wrong, but it made no odds, so it would not be upset.
The main thing is, it sets out the reasons, and one can see them, and get guidance as to what may or may not be wholly disproportionate in the future. The contrast with the Pro12 could not be clearer.
There is no reason not to publish. If a decision is right, then let people see it, let them read it, and let them learn from the precedent. The ERC's success in largely stamping out tip-tackles in this year's HEC should be a testament to just how effective that can be.
Speaking of stamping out, there'll be another decision on the subject coming out of the Ireland-England Six Nations game. Of which more in due course...
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