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.

Friday, October 28, 2011

Morgan Parra & Concussion - update.

The blog of the Clinical Journal of Sports Management have picked up on this.

In essence, they, too, feel this raises very serious questions about how the IRB are dealing with concussion management.

You can read their blogpost HERE.

Wednesday, October 26, 2011

RWC Final - Aurélien Rougerie and Deadlines

About three days after the final whistle blew on the RWC Final, footage emerged of a ruck towards the end of the game. It was first shown properly on the NZ rugby show, Re:Union, and then it got picked up around the world. It showed Aurélien Rougerie, of Clermont and France, tussling with Richie McCaw, captain of New Zealand. It was claimed the footage showed Rougerie making contact with the area of McCaw's eyes (and if you think I'm being very neutral in my use of phrases; I am, deliberately so). 

You can see the footage, courtesy of HERE; a slow-motion gif HERE; and a screenshot from it HERE.

When you look at cases such as that of Richie Rees, it is hard to say that Rougerie does not have a case to answer on this - at the very least.

But, there's been nothing, even after this footage has come out. So - why not?

The Citing Commissioners hold their office for the RWC under the terms of the RWC Participation Agreement and the RWC Tournament Rules. They use the Tournament Disciplinary Code, which is based on - but not the same as - IRB Regulation 17 (this is with the caveat that, as I've commented on before, God forbid that we mere mortals who play, watch, and act as missionaries for the game be allowed to see them). So, they have office while the tournament lasts, but not after. The Judicial Officer (JO) is then appointed under the same TDC, and, again, that's only possible while the tournament lasts.

The citing window under Regulation 17 (and, so far as we know, the rules for the RWC) is open from 12 to 48 hours after the final whistle; outside that, on either side, you can't cite.

But, if the tournament ends less that 12 hours after the final whistle - and I include here the various ceremonies and dinners - can a citing for the final be made at all? If the tournament Citing Commissioner's powers end with the tournament, can he cite after the tournament has ended - which it did before the window opened? Even if he could, could the tournament JO hear after the tournament giving him his powers was over?

The mirror-image argument was raised in Eliota Fuimaono-Sapolu's case, where he tried to claim that as Samoa had been knocked out of the RWC before the hearing, he was no longer subject to the tournament rules. It was rejected; at paragraph 25 of the decision, the learned Judge Blackett stated that "the tournament continues until after the final match".

But after the final match, it therefore follows the tournament ends - and so, it would seem, do the powers of the RWC Citing Commissioners.

In passing, this does raise a wider question; if those powers end after the final, (functus officio to use the technical jargon), before a citing for the final is possible, can there actually be any citings for the final at all? 

It would be interesting; but, as it happens, it's a bit academic. There has been no citing. And there now can be no citing. 

It may seem a bit unfair or arbitrary that an offence like this goes uncited. If proven, it's agreed it's about the worst thing that can be done on the rugby pitch. There is a good reason why this is so, though.

Any judicial system - not just rugby, but legal systems - tries to balance two things; comprehensiveness and finality. The first means it tries to get every dispute, or offence, dealt with; the second is the idea that there comes a point when, decided or not, it's time to move on. And, with a match each weekend, that's how it has to be in rugby; there has to be a time when the shutters are drawn down and it moves on to the next match. All such time limits are arbitrary, to some extent; there will always be cases where something crops up afterwards that changes the situation. But, if you could come back six months later and re-open matters, it would be open-ended; and that's as bad as nothing being punished.

So, here you have a case in point; what looks like a perfect case for a citing, but too late. Like a ref's decision on the pitch, sometimes you just have to accept that's that, and get on with it. 

That does not, however, stop anyone from having an opinion on the conduct in question. I think you can guess mine. I don't think I'm alone in it.

Update; the IRB have today issued a statement on this. You can read it HERE. It looks like things may be expanded; if they are, a bit of clarity mightn't go amiss - and  lot of openness.

Sunday, October 23, 2011

RWC Final - Morgan Parra Part II

So, first off, congratulations to New Zealand. The hoodoo is dead.

Secondly, congratulations to France on playing a great game.

Thirdly, congratulations to François Trinh-Duc who came on for Morgan Parra and played an absolute stormer of a game.

The only problem being, of course, that he came on for him twice. Which should never, ever have happened.

Parra got concussed, clearly and visibly, by Richie McCaw's knee (a complete accident, by the way). He was down for an age (while play, dangerously, was continuing around him). He was wobbly-legged and stumbled getting up.

Now, let's remember at this point what the IRB Concussion Regulations say about when you have a suspected concussion:

If a Player shows any of the signs described in the Table (as a result of a direct blow to the head, face, neck or elsewhere on the body with a force being transmitted to the head) they have suspected concussion... Physical signs Loss of consciousness, vacant expression, vomiting, inappropriate playing behaviour, unsteady on legs, slowed reactions... [Emphasis added]
 Parra had a suspected concussion. He had to go off. He did.

It wasn't a substitution for blood; despite what he says HERE, no-one watching the game would see any evidence he was bleeding, as you can see HERE (it should be said, he himself says he was: but I cannot see any evidence of blood). Moreover, there's a specific signal for that, for which I was watching and - while I'm open to correction - I certainly didn't seeit  made.

So, once he went off, he had to stay off. The IRB Concussion Regulations are quite specific on this:
The Player MUST NOT resume play once removed from the field for suspected concussion.
And the Laws of the game say the same; it's Law 3, (more precisely, Law 3 (12) (a)), which says:

(a) If a player is substituted, that player must not return and play in that match, even to replace an injured player.
Exception 1: a substituted player may replace a player with an open or bleeding wound.
Now, Morgan Parra did not have an open or bleeding wound;  he was substituted, replaced by Trinh-Duc, because he was suspected of concussion. But, even assuming he was bleeding, he was certainly suspected of concussion under the regulations. So, either way, that was the end of his game.

Or should have been. Five minutes later, he was back on the pitch; five minutes after that, after shipping another knock, he was off for good.

This was a catastrophic failure on the part of the officials. The IRB Concussion Regulations, and the Laws of the game on injury, were thrown out the window in the most important match in the game. A player was put in danger - because, let's remember, a repeat trauma on top of a concussion is much more dangerous - by the FFR, and the officials, who let him back onto the pitch. As a result, he got injured again. If he suffers long-term consequences (and, please God, he won't), they will be liable, because they failed to enforce rules made for player safety.

It was inexcusable. Rugby claims to have gotten serious on concussion. I raised doubts about this over the manner in which the ARU was treating Will Genia's suspected concussion in August. Today, in the World Cup Final, concussion wasn't treated seriously; it was shrugged off. It was treated like a joke.

It looks more and more like the only way the IRB will really start taking concussion seriously is when it ends up in court, like the NFL. When it does, it can look back at how it handled concussion in the shop-window of the game to the world; and it will realise it only has itself to blame.

Update: I've added links to a Youtube clip HERE and screenshots of Parra just after he took the knock HERE and HERE. You may decide for yourselves if you see any blood on his face; I, for one, certainly cannot.

Further update; Interview with Morgan Parra himself HERE :

I was bleeding a bit, I took a knock and I was a bit dazed... I wanted to come back on...but my neck and head were hurting, and then I took another kick to it ... that's how it goes. [Emphasis added]

Now, even assuming he was bleeding, he was, by his own admission, dazed, had a sore neck and head, and yet nothing was done about enforcing the concussion regulations?

RWC Final - Morgan Parra

Just a very quick note as the final is being played - we have just seen the Concussion Regulation openly flouted, and a player who was clearly suspected of concussion going off the pitch and returning to play.

In the Rugby World Cup Final.

This is lunacy. It's the greatest showpiece of the game showing it really does not care about concussion. I'll follow this up; but this is the IRB pinning a big "Sue Me" sign on their back

And as I type this, Parra is down again.

Thursday, October 20, 2011

RWC Part XV - Eliota Fuimaono-Sapolu Decision.

It's hard not to feel sorry for Gloucester Rugby.

They have done everything right. They have a policy on social media, put in place after controversial Twitter posts. You can read the announcement on it HERE. And who do they have smiling happily at top left?

Yup. Eliota Fuimaono-Sapolu. As most Shedheads have learnt over the last few years; when your luck's out, your luck's out.

The decision on Fuimaono-Sapolu's citing for bringing the game into disrepute is now out, and can be read HERE. What I want to deal with in this post is the effect of this on the player's employers, especially the question of defamation.

I raised this issue in a previous post. It turned out to be pretty on the money. To quote from paragraph 23 of the decision:

The suggestion that this is an exercise of free speech is specious – there are limits to what one may say about others and those who are maligned without justification can seek relief through defamation proceedings – the statements used here cross those limits.
Now, let's pause here and think who said this; His Honour, Judge Jeff Blackett. Judges do not use words like "can seek relief through defamation proceedings" lightly. Now, I may be putting two and two together and making five; if I am, I apologise to the learned judge. But it's highly significant, because it's bringing the spectre of a player being sued for defaming a referee into sharp focus.

And for a player's employer, that's a nightmare. Because, this is the issue I raised the other day - the issue of vicarious liability, an employer being held liable for the actions of an employee. This is what the learned judge had to say on the topic:

I have no doubt that they have acted responsibly and done all that they could to control their players... In this case the Player was intent on speaking out and I do not believe that the SRU could have done anything else to prevent his misconduct. Nevertheless the Union is vicariously liable for the acts of its players and I must mark that relationship with a sanction. 
So, an union - or, presumably, a club - is, in rugby terms at least, liable for what its players do. There's now a precedent, from a judge - again, not a man who would lightly use terms of art like "vicarious liability" -  that Twitter use is close enough to the job of being a rugby player to make an employer liable for what the player tweets.

At which stage, if you're running a club or union, you should start getting worried. Not only is it enough to have a social media policy - there was one at the RWC, as one can see from the decision - not only is it enough to do one's best - Samoa did, everyone agrees - if it happens, one can be liable.

Ex-Harlequins player Sam Stitcher passed THIS article onto me. While I have no link to AIG - nor, so far as I know, does Sam - it strikes me as a good idea. Social media insurance now seems to be a very prudent investment for a club with players who can get them into trouble. It's a belt-and-braces approach; but, if a club or union is vicariously liable for what's tweeted, then the whole reason for belt-and-braces comes to the fore. It's to prevent being caught with your pants down. Samoa don't have a lot of money; they could well have ended up being fined a lot of it due to Eliota Fuimanoa-Sapolu's tweets. At that point, you're either glad you have, or wish to God you had, insurance.

This is an area that is developing fast. But no club can afford to take lightly the combination of vicarious liability, defamation, and "ambassadors" losing the run of themselves on Twitter; until this becomes more certain, it would seem prudent not to risk having to pay out if a player lands you in the unpleasantness.

Meantime, poor Gloucester are waiting to see if their "ambassador" will ever play rugby again, or even turn up to training [update; from his Twitter feed, he has]. As I said; it's hard not to feel sorry for them.

But I suspect they won't be the last dealing with these problems.

RWC Part XIV - Sam Warburton Hearing Decision

As already noted, Sam Warburton got three weeks for the tip-tackle on Vincent Clerc for which he was sent off.

The Decision is now available and can be read HERE.

The Judicial Officer (JO) was Christopher Quinlan QC, who dealt with the other cases in the RWC that I've already covered here. Suffice to say, it's therefore not all that surprising that the sentence was on exactly the same lines as the others, and covered largely the same ground.

It's also fair to say that there's universal sympathy for Sam Warburton, even from the JO. People know he didn't mean to land Clerc on his neck, and would never do it deliberately; it's just that the risks are so high that there has to be a deterrent, as the JO observed.

And that approach has spread. I've mentioned Justin Tipuric's citing; he also got three weeks for a more innocuous tackle in the Munster-Ospreys game (I'd link the decision but, thus far, it looks like the new RaboDirect Pro12 is keeping the old Magner's League policy of not publishing decisions). So, the crackdown is definitely on, and it's worldwide. If  the tackled player is lifted, and comes down anything other than arse-first, the tackler is in trouble.

If (God knows, stranger things have happened), there are any professional players or coaches reading this, once piece of advice I would definitely give them is this; don't lift in the tackle. Just don't; it's too easy for something to go wrong, and if it does, you're going off. Instead, go for what has been one of the most successful defensive strategies this RWC; chop, drop and steal. Go low, bring the ball-carrier down, and the next man in jackals the ball. Ironically, Wales, with Warburton, have been one of the very best at this; but Pocock and McCaw have been superb as well. There's a piece by Shaun Edwards of Wales from the Guardian HERE that's well worth a read on this.

But, there's no question; the crackdown on tip-tackles is on, and will be for the next few months. Those in the game would be well advised to plan on that basis.

Sunday, October 16, 2011

RWC Part XIII - Sam Warburton Red Card Part III - Transparency.

Wales is a country of people who know, and cherish, their rugby; always has been, hopefully always will be.

This blog is about rugby, and the laws of rugby, and how the laws of rugby and the law of the land intersect.

You might think that the Welsh, knowing and loving the game, would have less need of this blog than most.

Yet, at twenty past nine yesterday morning, the traffic on this blog went through the roof, almost all from one part of the UK. And that's because everyone in full Millennium Stadium was turning to each other and asking, "What the f*ck was that red card for...?" and hitting the web for answers. The leading Welsh rugby forum, Gwlad, has been tearing itself apart arguing over it since; yet Gwlad knows the laws better than most referees. And this is the problem; the people who know the game better than most are still finding it hard to find out what the laws of the game are.

I dealt yesterday with the background to this, and why Sam Warburton was, to a large extent, unlucky with that tackle at this time. But what I want to deal with now is why it seems so hard for the average rugby supporters to find out what the laws of the game are. And I do so as much as someone who loves this game to distraction as much as I do as a lawyer analysing a system.

Players and coaches have enough on their hands playing, and coaching. They need to know what the Laws are. They need to know how they're going to be applied. This blog, and others, can do our best to go through the citing decisions, and piece together patterns on discipline, and application of the laws, and hope it helps coaches, players, refs and those in citing hearings. But it shouldn't be up to us. It's not our job. It's the IRB's job. And they're failing at it.

Bluntly, it's not good enough that major rulings on the game come out not in the Laws, but as semi-private directives. It's not good enough that the rules on tournament discipline aren't available to the public, and that anyone trying to work out what they say has to piece them together from fragments in citing decisions, like rugby's answer to cracking the Enigma machine. It's not good enough that the citing decisions on many tests, and entire leagues like the RaboDirect Pro 12 aren't available. It's not good enough that, to find out about these, one has to trawl through the internet to see if a kindly referee society somewhere in the world has put these up. There is almost a culture of secrecy, that this information about the game is something to be hoarded, kept from the public, guarded safe from prying eyes.

And it's nonsense. It's as counter-productive as could be imagined. If you throw open the doors and let everyone see and access this information, then the nagging feeling that something is being kept from us (which it is) goes away. People stop yelling, "Why us, ref?" when they realise, "Damn, that's exactly what that other lad got done for the other day, isn't it?" They can accept it, because it's consistent, and clear. They explain why to others. They spread the word. People who are new to the game understand, and can enjoy the game for the thing of beauty it is.

But all of that is made impossible when the average supporter - indeed, international players who are commenting on games - have to go trolling through the bye-ways of the internet of a Saturday morning to find out why a clear red card is a clear red card.

The reason legal cases are reported is so that that people know how the law develops. That, in part, is what I'm trying to do here; to string together precedents in rugby, as one would in the law. That knowledge, that openness is what gives certainty to the law. It's what gives people certainty in their job; people know where the boundaries are, what they can and cannot do. It's what gives consistency.

Yet, when international players are baffled, and trying to work out what's going on; when a player, like the French player Estebanez, gets handed a decision coming into a citing hearing and given time to reconsider how he deals with that case because he has been so clearly taken aback by what he's being told the laws of the game are; then that certainty, that clarity, is missing. It's not just about the enjoyment of the game, by the way; this is about people's jobs, and the rules of those jobs are almost clandestine.

How can they have a fair, consistent disciplinary system when the rules that system enforces are half-hidden from them? The Judicial Officers try their best, but what can they really do in this impossible situation where baffled players appear in front of them, and men who play the game for a living are told, sorrowfully: sorry, no; the rules are different to what everyone thinks they are.

It's not enough for the IRB to now make its 2009 ruling available on the Rugby World Cup website. It should have done it before the RWC started. It should have shouted it to the world when it told managers and others during the RWC. It should have shouted it to the world in 2009; the world would have welcomed it. The clarifications on some laws that year are on the IRB website; some are now laws. But the important bit about how the game is played - drop a guy in a tackle, and you're off - that's not.

A test captain has a lot on his mind before any game. Going into a Rugby World Cup semi-final, he has a lot more. He should be able to know, simply, clearly, and for definite, what he has to do. He should be able to know: bring the tackled player down arse-first, or it's a red card. The people watching should know that, too. It should be all there for them to check, clearly and simply available.

And until it is, you'll get 60,000 people who're so dedicated to the game they'll get up at seven on a Saturday to go to a stadium to watch a game on the other side of the world turning to each other and going, "What the f*ck was that for?" And so long as that happens, the game won't grow as it should.

That's the IRB's job. It's past time it sorted it out.

RWC Part XII - Sam Warburton Red Card Part II

The IRB have released a statement on this.

AUCKLAND, 16 Oct. - The International Rugby Board has issued a statement of clarification regarding the Tip or Spear tackle. 
Law 10.4(j) reads: Lifting a player from the ground and dropping or driving that player into the ground whilst that player’s feet are still off the ground such that the player’s head and/or upper body come into contact with the ground is dangerous play.
A directive was issued to all Unions and Match Officials in 2009 emphasizing the IRB’s zero-tolerance stance towards dangerous tackles and reiterating the following instructions for referees:
The player is lifted and then forced or ‘speared’ into the ground (red card offence)
The lifted player is dropped to the ground from a height with no regard to the player’s safety (red card offence)
For all other types of dangerous lifting tackles a yellow card or penalty may be considered sufficient
Regular directives to Unions, Match Officials and Judicial Officers have been issued to reinforce the IRB’s zero-tolerance stance regarding dangerous tackles and the promotion of player welfare.
The policy was again reiterated to team officials at a Team Managers seminar in Auckland two weeks before the start of Rugby World Cup and during the Tournament and there have been a number of other Tip Tackle cases at Rugby World Cup 2011.

You can read it HERE.

It largely reiterates what I covered in the last post HERE but it does add the interesting details about the team managers having been told in advance of the RWC.

Saturday, October 15, 2011

RWC Part XI - Sam Warburton red card.

First off, to repeat; hard luck, Wales.

Now, to deal with The Tackle (note capitals).

Nineteen minutes in, off the back of a lineout, Welsh captain Sam Warburton tackled Vincent Clerc. He lifted Clerc up, lost his grip or dropped him, and Clerc came down on his neck and/or upper body.

Warburton was sent off. Wales were by far the better team, but lost, agonisingly, by a point.

The relevant law of rugby is Law 10 (4) (j). It was inserted last December, and reads:

Lifting a player from the ground and dropping or driving that player into the ground whilst that player’s feet are still off the ground such that the player’s head and/or upper body come into contact with the ground is dangerous play.

Back in 2009, the IRB sent out a directive to referees and other stakeholders about tip-tackles. You can read it HERE.

The crucial part for dealing with Sam Warburton's case is this:

The lifted player is dropped to the ground from a height with no regard to the player’s safety. A red card should be issued for this type of tackle.

As soon as Warburton dropped, or lost his grip on,  Clerc, he was in deep trouble. It's worth pointing out that this does not tell referees to work backwards from a red card, as I understand has been suggested; it says that that approach had been tried, had failed, and that instead of that approach, referees were to give red cards.

So, was it a freak, a completely inconsistent one-off refereeing decision?

Unfortunately, no. So far this RWC, there have been more citings for tip-tackles than any other kind of offence. The four have been Lekso Gugava of Georgia - decision HERE; Dominiko Waqaniburotu of Fiji - HERE; Sukanaialu Hufanga of Tonga - HERE; and Fabrice Estebanez of France  - HERE.

In each of the last three cases, the referee had seen the offence, but had not sent the player off. In each case, the referee was told by the Judicial Officer that he was wrong not to send the player off.

When you realise that the referee in Gugava was Alain Rolland, you realise just how significant this is; especially as Rolland has given a straight red for this in the recent past to Florian Fritz. In that case, he had not seen the offence; but referees were left in no doubt whatsoever that if they saw a tip-tackle, they should reach for the red card.

Four cases, and in each one the IRB made it clear that they believed that a tip-tackle should be a straight red. There is a clear crack-down on; and it would seem to be an international one, given Justin Tipuric's citing for this offence in the Munster-Ospreys game last Saturday.

Unfortunately, given all of the above, Sam Warburton could probably not have picked a worse time to get done for this offence, nor a worse match. As soon as the Frenchman came down shoulders-first, it was always likely to be a red card.

It is a real pity; but the signposts were there.

Update; Warburton got a three-week ban. I'll go through the decision, as soon as I have it.

To the Welsh - Part I

Hard luck.

I will do a proper post on Sam Warburton - I was holding back on the issue until I saw the decision in Tipuric's citing - but I'll try my best to get it up this evening so that you can look at the background.

In the meantime, I just want to say hard luck, because if "deserve" meant anything in sport, you'd be in the final.

Thursday, October 6, 2011

RWC Part X - Eliota Fuimaono-Sapolu Charge

As already commented on, Eliota Fuimano-Sapolu has been charged with bringing the game into disrepute following his outburst and attacks on referee Nigel Owens.

It's noticeable that in the last few days, including on the interview he attended instead of deigning to attend the hearing along with the Samoan RU he'd dragged into the mire with him, and especially on his Twitter feed, he's been changing his tack. The line now seems to be more that it was merely hyperbole to get the point across because it was his choice of expression.

Bluntly; that bird won't fight.

And looking at the history of recent decisions on this line should make it clear why.

This line was first raised by the Springbok team and management in the "Justice4" case, when, in the last Lions test in 2009, they wore armbands with "Justice4" written on them to protest about what they saw as an unjust suspension of Bakkies Botha. They were charged with bringing the game into disrepute, and heavily fined; the Springboks only narrowly escaped a suspended expulsion from this RWC. The decision can be read HERE. The "right to free speech" argument was rejected at paragraph 70 of that decision.

In January 2010 - when, by the way, Eloita Fuimaono-Sapolu was playing in England with Gloucester - Brenden Venter of Saracens stated in a post-match interview that "the referee was influenced at Half-time and that’s all I can think." The decision - and that it was in front of His Honour Judge Jeff Blackett, who will be hearing Fuimaono-Sapolu's case, might give Fuimaono-Sapolu pause - can be read HERE

The learned judge commented that: 
Robust debate about all aspects of the Game is healthy and the press has an important part to play in that debate. Directors of Rugby, and other representative should give live interviews to the media and must be free to express general concerns about the Game. However, when doing so they must be careful about what they say so that they do not offend the RFU’s Core Values which highlight the importance of teamwork and respect. Where specific concerns arise which might include criticism of individuals, they should be dealt with in private through the recognised channels (that have been agreed by the Premiership Clubs).

Venter had to make a public apology, and had a suspended sentence of four weeks imposed.

Alas that he didn't appear to learn his lesson; not only was he up in front of a hearing and appeal in May, 2010,  and was suspended for ten weeks (and, in passing, let me state my admiration for the exemplary way the RFU have their disciplinary judgements available on their website as a resource).

Dr. Venter then lost the run of himself in front of a microphone again after a HEC match against Leinster in October, 2010. After that outburst, he was charged by the ERC with misconduct. The decision can be read HERE. The "free speech" defence was raised; the ERC were of the view that:

The Committee agreed. They fined Dr. Venter €25,000, with €15,000 suspended.

Then, following the Amlin Challenge Cup final, Michael Cheika of Stade Francais lost it entirely with referee George Clancy (in passing, not the first time Cheika had been in trouble with a ref). The facts are in the decision, which can be read HERE.

The key part is the finding of the Committee: 

Whilst it was true that Mr Cheika's conduct near or towards the referee on the three occasions the subject of the hearing, had been wholly inappropriate, derogatory and insulting he had not directly threatened or swore at the referee itself and that was a significant factor which distinguished it from a number of the cases which had been produced by Mr Duthie. In terms of its seriousness, however, the Disciplinary Committee were keen to ensure that a severe and firm message is sent out that respect towards match officials and others involved in the game of rugby is at the forefront of its mind and accordingly a significant financial penalty should be imposed.
It should be very clear by now that, once you agree to take part in a tournament - player, coach, club or nation - you are bound by the rules of that tournament, including in how you express grievances. Once you agree to abide by the rules, you agree to limit what you say, and when; there's no crossed-fingers, no doubling back.

And it should be crystal clear that rugby takes any attacks on the honesty or integrity of referees very seriously indeed. And that any attack on a referee will be punished; and rightly so, because without referees, we don't have a game. Anyone who has ever played the game knows, from day one; the ref is sacrosanct.

Mr. Fuimaono-Sapolu's hearing has been adjourned to the 15th of October. He is a lawyer; he might like to consider the judgements before he commits himself any further. It might, all things considered, be a much wiser course than that he has followed to date.

RWC Part IX - Ghiraldini and Mitigation

Lorenzo Ghiraldini has been suspended for 15 weeks for going for Cian Healy's eye in the Ireland-Italy game last Sunday. The decision is HERE.

As regards the decision itself, I have to say I think it's on the light side as a sentence. I'd have started at 24 weeks, increased it to 30, as the Judicial Officer did, but I would have allowed no more than six weeks in mitigation. This offence needs to be stamped out.

That said, while I think the JO was wrong on that, the reasoning is transparent, and perfectly lucid. If it's an error, it's an error within jurisdiction, to use the legal terms; and that, I suppose, is as much as one can ask for before one starts moving from the realm of rugby law into that of rugby fan.

What I do want to highlight, however, is this comment towards the end of the decision.

In doing so [applying a 50% discount] I paused to note a 50% discount where all factors to be considered under Rule 12.4 are met does not follow as a matter of course. It is not prescribed in the Rules not is it a rule of practice as seems to be the perception in some quarters. What discount is applicable in any given instance is a matter for the discretion of the Judicial Officer concerned by reference to the facts and circumstances of each case as he finds them bearing on the issue of sanction.

Now, that may seem innocent enough; but when you look at it in the light of the recent slew of decisions where precisely this topic has come up at this RWC - and on which I've been commenting here - there is clearly an open debate taking place within the Judicial Officers at this RWC about exactly where, when, and how the maximum possible discount is to be applied. This is all the more so when that discount has been applied even in cases where some of the necessary mitigating factors are missing, and indeed even when the JO has held that it wasn't a case where a minimum on the sanction should not be breached before going right ahead and doing just that.

In that regard, this is welcome, because it brings that debate out into the open for all of us - lawyers, rugby supporters and those of us in both camps - to thrash out.

It'll come up again before this RWC is finished. It will be one I'll be watching with interest.

Tuesday, October 4, 2011

RWC Part VIII - Sapolu, Twitter, Defamation and Liability

After his last outbreak of sweet reason, Eliota Fuimaono Sapolu of Samoa was charged with breaching the IRB Code of Conduct by bringing the game into disrepute. Samoa were also charged with this, due to their failure to control him.

The disciplinary hearing was scheduled for today; except Mr. Sapolu decided he didn't feel like turning up (he was off doing an interview on an NZ radio show instead). The hearing was adjourned, until he does deign to turn up; and, as with any player who is cited, he remains suspended until his hearing is completed.

The Samoan RU accepted the charge against them of failing to control their player. It could not make the point clearer; teams need a policy on the use of social media, and need to enforce it. Or else they will suffer.

This is becoming a wider issue in the law. There are more and more defamation cases arising out of the use of social media, some of which involve sport; there are excellent articles HERE and HERE from the Guardian on the topic, including Chris Cairns the NZ cricketer suing the head of the IPL over an allegedly defamatory tweet, both of which articles I'd thoroughly recommend.

What is interesting is the question of vicarious liability; the legal concept that an employer will sometimes be liable for the actions of their employee. It can hardly be doubted that accusations of the kind made against a referee are defamatory; the only question is, if such an action were taken, would his employers be liable as well?

Given that, for many teams, interacting with fans through social media is now part of the players' duties, does their rugby-related Twitter activity fall within the boundaries of their employment? And, if so, does it mean their employer is liable for their actions? That their actions may be in breach of the laws of the game may well be irrelevant; in Gravil v. Carrol and Redruth RFC a player's foul play in punching an opponent was found to so closely conneted to what is involved in being a professional rugby player that the club was liable for it (not the least reason why this case is loved by everyone who's read it). 

The question would be, whether or not the Twitter activities of a player would be so closely connected to his employment as a rugby player in this day and age that his employer would be liable for him. Given that the Samoan RU accepts that it was responsible for his activities, it might be even easier in this particular case.

It would be interesting; and, as others have remarked, the last thing anyone wants to hear is lawyers saying something would be "interesting".

The lesson is, again; have a policy on social media, and enforce it, or pay the consequences.

Meanwhile, Sapolu's club employers, Gloucester, must be fit to be tied over this.

Monday, October 3, 2011

RWC Part VII - Delon Armitage - Updated

Were I to be sarcastic, then the current English team could be described as the best thing that ever happened to someone writing about rugby discipline. Hartley, Armitage, Cueto, Lawes - it's the gift that keeps on giving. And now, generous soul that he is, Delon Armitage has got himself in trouble again.

He's been banned for one game for a shoulder-charge into the head of Scotland's Chris Paterson in England's narrow win over the Scots last Saturday.

Many English fans and pundits consider this rough justice; many others consider he got off lightly.

Two things arise from this; first, I mentioned a while back about the IRB's directive about high tackles, which finally indicated to Citing Commissioners that such tackles would suffice for a red card for the purposes of citing hearings. Between Todd Clever, and this, the Citing Commissioners have been following through on this. It's worth noting that Armitage pleaded guilty. The IRB is to be commended on that; they took a position, made it clear, followed through on it, consistently, and as a result there is now some certainty in that part of the disciplinary process. I commended it at the time as being the way to avoid problems with challenges to consistency; and it looks like it's working in giving that consistency. It's an example to be noted and followed.

What isn't consistent is how someone who has already been suspendeded for a total of eleven weeks this year - better than one week in four in 2011 - can be given less than the minimum sentence prescribed in Regulation 17 when his disciplinary record is so clearly up for debate; and especially when at his last citing hearing, the sentence was increased because of that poor record. 

It would appear my fears about minimum bans not being minimum were right; to counter-balance consistency and certainty in one area of the disciplinary system, this clear-cut area has now been thrown into question. Swings and roundabouts.

I would love to go into the details of the judgements; but I can't, for the simple reason that the IRB has not published any of the decisions in the three citing results (Armitage, Estabanez of France and Gugava of Georgia) announced today. In that regard, the IRB have slipped back into a regrettable old habit, one that I hope is only temporary and to be cured by the release of those decisions as soon as possible.

Update; and I'm happy to say they now have the decision up (it may be time lag between getting the news out, and uploading the judgement, which is fair enough). And it's interesting that Armitage's record was considered an aggravating factor at his last disciplinary hearing is not mentioned; and that Michael Smith QC at 3.3 expressly asked the hearing to rely on a recent decision to go below the minimum where there were some, but not all, mitigating factors. That's the Tsnobiladze case; it is already being used as a precedent.

And what is truly astounding is that, at 3.4, the Judicial Officer found that he only had the power to go below the minimum in certain, very limited circumstances; that this was not such a case; and then proceeded to go below the minimum anyway and give him only one week.

That is, bluntly, farcical. To find that it's a case where the regulations require that the minimum sentence be imposed, and then impose less than it, is to ignore those rules. The rules disciplinary system are being openly flouted by those charged with imposing them.

Sunday, October 2, 2011

RWC Part VI - Tsnobiladze and Minimum Bans.

Russian hooker Valery Tsnobiladze missed the last match of this RWC after he was cited for, and found guilty of, using his head on Seán O'Brien.

The decisions of HH Judge Jeff Blackett is HERE.

It's hard enough not to make contact with the head at times when rucking, and it does happen; but there's no place for using your head as a weapon in the game.

That said, that's not the main point I want to address in this post. What I do want to look at is the decision; contrast it with previous decisions; see what that tells us about the Disciplinary Regulations for this RWC (and if anyone sees these mythical beasts, I'd be obliged for a copy) and see what possible repercussions it may have for citings and disciplinary hearings outside of this RWC.

The starting point here is the Regulations. These run to just under 400 pages, but the one to look at is Regulation 17, which deals with discipline.

Appendix 1 of Regulation 17 sets out the sanctions; the sentences, or bans, for various offences. These are a range; entry-level, mid-level and higher-level. There is a bottom and top to each level. The bottom level is the minimum for that level. That's set out in Regulation 17.14.4 (b), which says (emphasis added for clarity):
In cases involving offending that has been classified pursuant to Regulation 17.14.2 as lower end offending, where there are compelling on-field and/or off-field mitigating features and a complete absence of on-field and/or off-field aggravating features, Disciplinary Committees and Judicial Officers may apply sanctions less than the lower end entry sanctions specified in Appendix 1 and in this respect only, the lower end sanctions set out in Appendix 1 are not minimum sanctions.

Now, this means that you can only go below the bottom end of the lower end-sanction for compelling reasons. That's what happened when the learned judge looked at Todd Clever's case, and found there were compelling reasons to impose no sanction - he repeated that phrase several times.

Now, let's see what the learned judge said in Tsnobiladze's case:

The entry point for Lower End offending under Law 10.4(a) is a suspension of four weeks. There are no aggravating features in this case. The agreed maximum reduction from the entry point, where there are no exceptional circumstances, is 50% but only where all of the mitigating factors listed in Disciplinary Regulation 12.4 are present. They are not here because the Player did not admit culpability. I therefore reduce the sanction from the entry point by one week to reflect the Player’s good record, his co-operation with the disciplinary process and good conduct at the hearing.
Now, one of two things arises here; either the IRB itself has stated that sentences can go below the minimum for the RWC, and not told anyone that they're altering bits of the disciplinary regulations on the hoof (which, if you think about it, would probably be less unlikely); or the learned judge, despite holding that there were no exceptional or compelling factors which would allow him to reduce the sentence below the entry point, proceeded to apply the normal rules on mitigation and reduce the sentence below the entry point.

If "compelling" now means "some, but not all, mitigating factors are present", then it's meaningless; and the regulation saying entry level is a minimum unless there are compelling factors is also a dead rubber. 

This is because a case is either compelling - in which case, you can go below the minimum, but it's not the normal discount rules that apply; or it's not compelling, in which case the normal discount rules apply, with the floor of the minimum. The learned judge applied the rules giving maximum discount of 50% for normal bans, which cannot take it below the floor of the minimum, to take it below that minimum floor. And the lack of a finding of a compelling reason is in stark contrast with the repetition in Clever (which, for the record, I'd consider a fair case of a compelling reason).

All cases could now be compelling ones. The minimum entry-level ban, as a matter of practice, might well be dead.

If this is the case, it could have a huge effect on how one approaches disciplinary hearings. First off, it would be a clear case where the IRB aren't following through on applying their own disciplinary rules; as it helps the player out, no player's likely to complain. It would not be the first time; the All Blacks were allowed break the rule on naming a suspended player in a team pending an appeal when Kevin Mealamu was named in their team against Ireland last November.

However, it would have an effect in practice for those dealing with disciplinary cases, because it would now add a massive incentive for players to plead guilty to an offence, regardless of whether or not they think they are innocent. If, by pleading, they could get below the minimum even where there are only some mitigating factors, a player would be daft, or very badly advised, to fight and risk getting the minimum ban when he could plead and be back playing sooner (or perhaps even where he pleads; after all, Tsnobiladze didn't plead).

How this pans out will be interesting to watch. At the very least, there now seems to be a precedent to be argued out there.