In 1823, William Webb Ellis first picked up the ball in his arms and ran with it. And for the next 156 years forwards have been trying to work out why. - Tasker Watkins VC, LJ.

Monday, January 24, 2011

Do props have human rights?

Dr. Jack Anderson, in an article in the Irish Times last Monday, was talking about Irish rugby as being the only real professional sport in Ireland, and went on to discuss issues that raised about sports law in general.

One thing in particular stood out for me; his statement that “if players commit playing offences their hearings will be heard by tribunals that seek to adhere to the principles of a fair trial ineherent in Article 6 of the European Convention on Human Rights”  (ECHR). Because, as far as that goes, the answer is – it depends.

Now. It should be remembered at this point that rugby in Ireland is odd. It is one sport, run under one body, across two jurisdictions. Moreover, Irish law – as in the law of the Republic of Ireland – has a lot more relevance across world rugby because the International Rugby Board (IRB) and the European Rugby Cup (ERC) are both run out of the same building on Stephen’s Green by Irish-registered companies.

This has a large effect. Participation agreements for the various tournaments run by those bodies would be signed with an Irish company. Unless there is anything to the contrary, one would presume Irish law rules those contracts, and, as a result, the disciplinary systems under those contracts would also be subject to Irish law.

That is where the interesting part comes in. Because, under the European Convention on Human Rights Act, 2003, the ECHR only applies to state bodies – of which a rugby disciplinary tribunal most certainly is not one. So, the standard of fair procedure in three of the Irish provinces isn’t Article 6 of the ECHR.

But it does affect disciplinary tribunals in Northern Ireland. You can contract out of it, but it does affect how the disciplinary tribunal is to be run. So, you could have different standards of fairness, and different possibilities for challenging a decision, for a citing hearing, with the same decision makers, between exactly the same teams, subject to the same union, depending on which team is playing away.

This would not be the first time this anomaly has cropped up; up until last year, if a hearing of the Gaelic Athletic Association’s Dispute Resolution Authority (DRA) involved a player from any of the six counties in Northern Ireland, it was an international arbitration and subject to different laws as well. However, just because it’s happened before, doesn’t mean it’s a good idea to let it happen again.

If the IRFU have not already done so, they should simply state, as part of the participation agreement in any competition running across the border which they run, which law applies. A fair disciplinary system needs consistency and certainty; it can’t have it if different law applies in one league.

Of course, the question as to what might be unfair in the current world of rugby disciplinary tribunals is another days work altogether. In fact, probably several weeks worth. But we’ll come to that in good time.

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