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, 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.

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