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.

Sunday, February 13, 2011

Referees, Bias and the Joy of Silence.

There was a fair-sized controversy after the Italy-Ireland game over the refereeing of the scrums by Roman Poite.

Now, let me state at the outset that I am no fan of Roman Poite as a referee. In point of fact, I can't stand him as a referee, and can never understand why he is given games ahead of his countryman, the far-superior Jerome Garc├ęs. But, that said, Ireland's scrum problems were largely of our own making.

But the issue arose because, before the game, the Italian coach, Nick Mallett, stated Poite had sent a letter to the Italians apologising for his refereeing of them the previous season. The Irish management were distinctly unhappy with this, not surprisingly. Poite denies the letter was ever sent. Someone certainly has questions to answer.

The issue this brings up is what lawyers call objective bias. Referees are - the reptilian tans of one or two aside - human. They will make mistakes, but no-one doubts that they are doing their best (what their best is the subject for another day). They do not go out to do one team down. That sort of bias, what most people would call bias, is in legal terms called subjective bias.

There is, however, another kind, objective bias. This is where, even though the person making a decision is not actually biased, a fair-minded person looking objectively at it would perceive a real risk of bias. It's linked with the idea that justice must not just be done, but be seen to be done. So, there has been a case in Ireland in the recent past where the judge recused himself from deciding a case because he had made a decision in an interlocutory part of the case and did not want any perception that he might have made his mind up on the case already.

Now, if Poite had sent a letter to a team apologising for how he reffed a game in the past, their opponents might well feel hard done by if they suffered in that same phase of the game against that team; but it would be stretching it a bit too far to say that a fair observer would feel there was a real risk of bias in how he would ref the game.

But what if a referee had called a team a set of cheats at that phase, or said that they were no good, and therefore to blame, for anything happening there?

Robbie Deans, coach of Australia, felt hard-done by in this way back in November of last year, and stated openly that referees had a down on Australia, and had preconceived ideas of how Australia scrummage. Paddy O'Brien, head of refereeing at the IRB, said referees only referee what they see (a summation of the discussion can be seen HERE).

The only problem was, the preceding week, the official website for South African referees had passed pretty clear opinions on the Australian, and Irish scrums. And those opinions? "A blight on the game", "dismal", "the worst scrummaging sides in international rugby" - something that it would be hard-put not to see as pretty clear preconceived opinions, and a definite view before a match refereed by the person who wrote this - the posts are, notably, unattributed, but no SA test referee has disassociated themselves from them.

Now, were the person who wrote this to referee a game involving Ireland or Australia, they would arguably be well within their rights to raise these preconceptions, and the way in which they would seem to lay the feet of anything going wrong in a scrum automatically at the feet of one team, as being cases of objective bias. The refereeing would probably be fair; but it would certainly raise questions about whether there was a reasonable risk of unfairness, and that's what's crucial. If it were raised, and made public, it would surely cause an appalling furore in the run-up to the game and, ironically, put the referee in a completely impossible position.

Of course, all of this can be avoided. Players and spectators might not like a referee, but they do respect the office he holds. The gift of that respect, however, is not to be taken lightly. Referees are decision-makers, like judges. Like judges, the decisions of top-level referees can affect people's livelihoods. And it would not seem too much to ask of top-level referees that they exercise some judicial discretion and not fan the fires of supposition with singularly ill-thought out comments that only encourage people to think the worst.

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