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, February 28, 2011

Faan Rautenbach citing - part three.

In a previous post, I dealt with what would appear inconsistencies between the way that Faan Rautenbach's citing hearing was dealt with and the procedures set out in the International Rugby Board (IRB's) Regulation 17 covering these citings. I mentioned at that point that there exist even if the player is fine with those changes, which, as it turned out, Rautenbach was.

Now, if the player is fine with those changes; if he agrees to them without demur at the start of the hearing, as set out in Regulation 17 (to be precise, Regulation ), then the problem to a large extent goes away. The player, presumably aware of the issue, has agreed to it; and from that point on, chances are any Court asked to look at that the fairness of the procedures would - given the general and frequently-stated reluctance of the Courts to get involved in issues of sporting discipline - more than likely decide that, if you were happy with the procedure before you got a result you didn't like, then it may be a bit late to change your mind afterwards. And I think one can see a certain common sense in that, even if the hearing was conducted over the phone across three different countries.

The problem arises where the player - or his representatives - raise an issue about the procedure. This has happened. To give examples, there are the decisions in . So, let's say the player, in a case where he has been told the main witness against him will be giving evidence by video, says that he wants the person making the allegations there, in person, so he can be cross-examined.

What happens then?

Well, one of two things. The first is that the Disciplinary Officer agrees. At that point, the problem goes away; the hearing will almost certainly be adjourned, but the problem has been solved.

The second is that the Disciplinary Officer refuses, and the hearing goes ahead. And then the next question is the immortal one from A Question of Sport - what happens next?

Well, at that point, you have to ask what constitutes a fair hearing. We'll work on the assumption that, the ERC being based in Dublin and being an Irish-registered company, that it works under Irish law and the IRB regulations - albeit there is a note at the end of the decision which seems to suggest that the ERC works under its own regulations, not generally available for the public to look at.

For a professional rugby player, a citing hearing is a disciplinary hearing affecting his work. He is entitled to a fair hearing if he is to be suspended. Even if he is not directly party himself to contract between his club or province and the ERC, he is treated as such, and it entitled to a fair hearing. Those rights in a fair hearing include: being able to challenge witnesses, face to face; and that the person making the decision will follow the proceedings laid down (it's only fair to say at this point that the evidence of David Wallace was not accepted in the decision; but, since he was saying that as far as he was concerned, it was nothing, Faan Rautenbach couldn't complain on that front).

Those rights are long-since settled; in Irish law, it's usually referred to as the short-hand of Consitutional justice, or In Re Haughey rights, after the case where they were properly laid out. But a case that would be really relevant is one called And the crux of that is; is not to be set aside, just because it causes logistical or administrative difficulties.

So, just because it may be tricky following Regulation 17 and giving the player cited the right to have the   witness there to be asked the questions is not an excuse should the player demand that right.

Of course, that just means that a Disciplinary Officer who refuses to do so is wrong at law. Once it gets to this point, the question exercising a player's mind would be - what can be done about ?

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