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.

Tuesday, July 19, 2011

Only to prevent manslaughter?

I was talking in a recent post about the reluctance of the Irish courts to get involved in litigating sports disputes. The approach taken is a bit like the comment of an early referee not just of rugby, but at Rugby, that he had never intervened in a game as a referee except to prevent manslaughter (the referee who's supposed to have said that, Willam Temple, ended up Archbishop of Canterbury; muscular Christianity, I suppose...).

Pretty much right on cue, a judgement appeared on the (excellent) Irish Courts website confirming that view. Rather aptly, it's about a tug of war.

The case is Conway v. Irish Tug of War Association & Others. The others included the International Tug of War Association. By the time the case had come to court, the Irish Association had settled, and only the International Association. The case was about what should, or should not, have been done about a claim a team at a competition in Killarney were wearing illegal footwear. The Plaintiff took issue with the decision taken by the organisers; her club were okay with it, and went with the penalties imposed on them. There's a fair bit of technical legal stuff (which you can safely skim if you're a lay person reading the judgement). The pieces of relevance from a sporting perspective start from about 7.3 on.

The judge, Laffoy. J, looked at the Modahl decision I mentioned in the other post. Now, the line of cases following on from Modahl don't seem to have been mentioned to the judge, which may have queered her view of it; she side-stepped it, in large part. Moreover, this claim was based on tort, not contract, which was the point in Modahl.

However, it's worth noting that she accepted that she had the power to intervene; just that in this case, where on the facts it was pointless, she refused to and struck out the case.

So, it looks like the Irish courts are still at the position in Coughlan v. FAI that I mentioned in that post here, perhaps a little further on. Modahl may be up for grabs in Irish law, and I suspect a properly-argued case with the line of cases following on from it might well bed it properly. But, while the Courts here might hate intervening, it does seem to be accepted that they can, and sometimes should do so.

So, if the hearing is unfair enough to be on the manslaughter level, even a judicial referee might intervene. Of course, what would make the Courts reach for the whistle is the real question.

We'll see; pre-season 2011-12 has started, and there's a lot of rugby ahead of us until the end of May next year.

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