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.

Wednesday, January 26, 2011

New Disciplinary System for the Magner's League

It's been announced that there will be a new, independent, disciplinary system for the Magner's League (ML).

It's long overdue. The in-house system used to date has long been criticised for lack of transparency, for lack of consistency in the citing and sentences, and for the fact that - not to put a tooth in it - no-one knows why any decision is reached because there aren't proper decisions published.

And that is even before one gets to the fact that an away player who was cited would be up in front of a committee from the union of the player or players he was alleged to have fouled. That would be an arguable breach of fair procedure in terms of the nemo iudex in causa sua rule, and certainly something that, were one to try to raise the question of an appearance of bias to an objective observer, would need very careful consideration as regards how one would defend it.

As a result, it's somewhat of a miracle that an opaque, inconsistent, and arguably biased system hasn't yet been before the Courts, given what's at stake - for example, results, livelihoods, and international and Lions selection.

But there can be no question that, if it's to be reformed, it needs to be done properly. A good model to take would be the disciplinary system used by the Rugby Football Union (RFU) in England. There is a clear, unified system, a very clear system of precedents that give certainty to the player and the decision maker alike, and decisions are published - which, at the very least, means decisions have to be justified and able to stand up to scrutiny. One could do a lot worse than adapt this system for the ML.

One thing that would be important, however, is that it be designed to achieve finality and keep the Courts out of things. In that regard, rugby could do a LOT worse than follow the lead of the Gaelic Athletic Association (GAA).

The GAA's Dispute Resolution Authority (DRA) - set up in response to a rash of court challenges by players aggrieved at the GAA's disciplinary system - is an arbitration. That means that, come what may, both parties are bound by the outcome, and that so far from running to the Courts to challenge a decision, the Courts will - unless in truly exceptional circumstances - enforce that decision. The net result is that the court challenges that were a feature of GAA discipline have now vanished. This certainty, and enforceability across national boundaries, would be enormously attractive for a tournament that plays across five different legal systems (Ireland, Northern Ireland, England and Wales, Scotland and Italy).

Even better; the Courts in UK jurisdictions (all three of which would be involved in the ML to some extent) have held that they will not bring the European Convention on Human Rights issues to bear on arbitration - the actual case in question involving arbitration of a sport-related issue. This would deal with the fears of Dr. Jack Anderson which he recently raised in the Irish Times.

So, if the ML wants to do things right, a good place to start would be to copy the English system in a version of the DRA. Build a better wheel from the ideas of others, instead of trying to reinvent it from scratch.

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