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, December 3, 2012

Minimum Bans Part III - Adam Thomson

I ended Part Two of these posts on the Return of the Minimum Ban with the the words, "it'll definitely be one to keep an eye on this NH season."

If only I had the same gift of prescience with the numbers for the Euromillions.

In the Scotland-All Blacks game, All Black flanker Adam Thomson went to ruck Scottish flanker Alistair Strokosch. Strokosck, by his own cheerful admission on Twitter, was killing the ball - and good luck to him, because that's part and parcel of a flanker's job. So is taking the occasional lick of the studs in the cause; but the problem was, Thomson caught Strokosch on the head.

It is perhaps a sign of increasing age that I would happily see rucking come back on the rugby pitch, but the unwritten code even back in those far-off days of the last century, when it was the mark of one's success in defensive rucks that one came off the pitch looking like a raspberry-ripple zebra from the rake-marks, that contact with the head, or joints, was a strict liability offence; hit them, even accidentally, and off you went.

Thomson was cited; and, at the initial hearing, got a sentence of one week from the JO, Noel Couraud. The minimum sentence for this offence is two weeks.

There was instant furore. Various members of the press in the Northern Hemisphere were furious that this was too lenient, various members of the press in New Zealand were furious that they were furious. When Brett Gosper, CEO of the IRB, let it be known that the IRB were looking at this case and were thinking of appealing it, the outrage and umbrage from both sides went up even further (in ease of those looking for links, the volume of them is such that I suggest you look at Twitter as a start point, rather than the endless number of links that would be required).

What is, again, surprising is that none of them seemed to pick up on the key point; the requirement under the new regulation 17 that minimum bans mean minimum.

The IRB appealed; and the appeal was heard by a panel of His Honour Judge Jeff Blackett, Pat Barriscale and Jeffrey Summers; a very, very heavy-hitting panel. The full decision is not yet available, yet we can say what the essence of it was: the ban was increased to two weeks not because the one week was too lenient - that part was rejected - but because it broke the requirements of the minimum ban part of Regulation 17.

So, we now have the first-ever appeal of a sentence by the IRB; the enforcement of the minimum ban regulation; and an almighty eruption of vitriol in the press that might have been avoided if journalists actually read the press releases from the IRB and SANZAR. The vitriol is regrettable, but the others are not. It is refreshing to see the IRB backing up its one rules, and actually following through. however much sympathy one has for Thomson, a fine and clean player with the immense misfortune to be playing in the same county and same position as one of the greatest players the game has ever seen, it is right that where the rules are broken in a hearing that it be rectified.

It should be noted that this is not a question of leniency; one may feel an outcome is too lenient, but it is the process that is the key. So long as the process is correct and the rules followed, one may err. It is unfortunate, but it is what is referred to in the Courts reviewing matter of this kind as an error within jurisdiction. A breach of the rules, such as happened here, is a different matter, and is open to challenge; and the IRB is to be commended for facing up to the responsibility to deal with the matter, not least because this pre-emption and this willingness to enforce the rules properly makes it more likely that rugby does not end up in the Courts.

It's now over and dealt with, as are the November tests. It is to be hoped that the IRB will continue to hold this line, in all cases; and it's to be hoped that journalists might read press releases from June before things blow up in November.

Monday, November 12, 2012

Minimum Bans II - The Return of the Minimum Bans From Beyond the Grave?

In Part I of this, I dealt with the Dylan Hartley case that, amongst other cases, showed how the minimum ban had become a dead letter.

The reason I say "had" not "has" is: they're back. And this time they seem to mean business.

June is an interesting time for anyone interested in the laws of rugby, because it's the time when the changes are usually quietly slipped in. In this case, Regulation 17, the Regulation dealing with discipline in rugby, was subjected to some pretty large changes that came into effect on June the 6th last. And, let me state here and now, they are changes of which I approve; most of them are ones that I've been calling for on this blog. Not the least heartening thing is that the message that simplicity and clarity are NOT the same as brevity appears to have been learnt, so the Regulation is broken down into much clearer, simpler steps (while Danie Craven was, in many respects, a great man, he was, when he said all the laws of rugby should be able to be written on one page, dead wrong, and following that dictum has led to all sorts of terrible law changes). It is, I have to say, good work on the part of the IRB (and I note in passing that the IRB counsel sat in on several ERC disciplinary cases last season, to see the process in action).

You can read the announcement on it HERE and the new Regulations HERE. The most interesting part is contained in Regulation 17.19.6 and 17.19.7. Basically, these state the entry level for an offence, the minimum ban, means just that, a minimum ban unless in exceptional cases. It should also be noted the minimum bans for some offences have been increased, and that suspensions do not now run over the close season (so, Dan Ward of Cornish Pirates and now Harlequins, having the dubious honour to be the first person done under these new Regulations, was given six weeks on June 12th for THIS but was out until September 20th).

It's a good idea, one most rugby supporters agree with, and gives admirable clarity and certainty to the system - exactly what it states it wants to do, and exactly what the systems needs.

Yet, for some reason, it appears not just to have passed by the press completely (I haven't seen a single comment on it in the mainstream press in Ireland or the UK), but its application also appears patchy.

Let's put some flesh on those bones. Take the suspensions from the recent Rugby Championship. These were (player name, offence and law, minimum ban, actual ban, decision):

Eben Etzebeth; headbutt, 10 (4) (a); four weeks; two weeks; Decision (limited)
Dean Greyling; elbow to the head, 10 (4) (a); two weeks; two weeks; Decision.
Scott Higginbotham; knee and headbutt, 10 (4) (a); four weeks; four weeks.

SANZAR don't seem to publish their decisions, giving at best excerpts, but there seems to be no mention of how"wholly disproportionate" to apply the minimum ban in Etzebeth's cae; with a pattern of attacks on the head of one player, Richie McCaw, as well as a pattern of headbutts, it would be hard to see how it would be disproportionate. Certainly, this is a pattern of offending such as was identified in the HEC last season and the RWC in 2011. Yet Etzebeth received half the minimum ban when, from what we have the of the decision, the Judicial Officer was quite trenchant on it being deliberate - an aggravating factor. This is all the more inexplicable when one looks at the SANZAR site and sees that it mentions the new minimum-means-minimum Regulations HERE.

At the same time, in the Northern Hemisphere, there have been three red cards confirmed where no sanction has been applied; two in the Pro12, for Ian Gough of the Ospreys and Damien Varley of Munster, and one in the HEC for Morgan Stoddart of the Scarlets. Gough's and Stoddart's were what one might call "silly second yellow"red cards, but Varley's was for allegedly kicking one of the Ospreys players in the head. Varley's was, somewhat bizarrely, found to be reckless and upheld when the Assistant Referee on whose recommendation he was sent off stated, twice, that he felt it was deliberate. As the one precludes the other, it is fair to question why it was not either rescinded if it was felt the AR was wrong or a suspension imposed if it was felt he was right; but, since the Pro12 refuses to publish decisions, we cannot follow the logic of the decision to see how this compromise was reached. 

We can, however, look at the HEC decision. The ERC is very clearly aware of the new Regulation 17, as it it refers to the new sanctions when it states players have been cited (which, in passing, makes the lack of press comment even more inexplicable). It also applies in the judgements. In the case of Morgan Stoddart, the JO, Antony Davies, it was held that the red card for two "technical" offences was enough punishment in itself, considering it was a major contributor to the final score of 49-16 against Stoddart's Scarlets; you can read the Decision HERE

However, in the case of Sisa Koyamaibole of Bordeaux-Begles, cited for biting Declan Danaher of London Irish, although Koyamaibole didn't turn up for the hearing, he himself was aware of the minimum-means-minimum situation (as you can see from page 2 of the decision HERE), and the Antony Davies, also the JO in this case, went  on to say at pages 6 and 7 that, while under the former regime Koyamaibole would have got less than the entry-level ban, this was no longer possible. Koyamaibole, with only two weeks suspension on his entire record, got the minimum 12 weeks, and the contrast between this case and the Hartley decision discussed in Part 1 neatly highlights the changed environment.

From this, we can see that, at least in Europe, the minimum ban is back, and this time it has teeth (bad puns fully intended). No-one would object to that. What's worrying is the inconsistency across the globe when this was meant to bring consistency of, same offence, same punishment, everywhere in the world of rugby.

As to which approach wins out, we'll see. It'll definitely be one to keep an eye on this NH season.

Tuesday, October 23, 2012

Legal Liability and Scrums Part II

Following on from the post on this yesterday, I have come across THIS case from South Africa.

It involves a case where one schoolboy hooker caused the neck of another to break.

In a game in July 2005 between Hoerskool Stellenbosch and Hoerskool Labori from Paarl, the defendant, Alex Roux, was playing for Stellenbosch. The Plaintiff, Ryand Hattingh, was playing hooker for Labori. Early on in the game, Hattingh complained about the way that Roux was scrummaging. At the fourth or fifth scrum, Roux called "jack-knife", and moved his head to close the gap between his head and that of his tight-head - the gap into which Hattingh's head was to go. Hattingh was forced downwards, the scrum collapsed, and Hattingh's neck was broken. He sued in delict - the equivalent of tort in South African law.

The witnesses were, to say the least of it, impressive: former Springbok and scrum guru Balie Swart, referee AndrĂ© Watson and others. The trial judge, Fourie J., decided that Roux's actions were deliberate, and in breach of the Laws of the game. Accordingly, he found him liable. You can read that decision HERE (it should be noted for those unfamiliar with the language that, unsurprisingly for a game in Stellenbosch, some of the testimony is in Afrikaans). Roux appealed to the Supreme Court of Appeal, sitting in Bloemfontein,  which upheld the decision. You can read those judgements HERE.

It should be noted at this point that South African law is not quite the same as most Common Law systems, being a mix of Common Law and Roman Dutch; it would be closest to Scots law. But it is close enough for this to be at the least illustrative, and probably a precedent.

And it is highly significant. A deliberate, and dangerous, action gave rise to a liability to another player. What, then, of collapsing a scrum? Every prop has. Every single one. What about deliberately popping a hooker, or a pincer movement between hooker and loosehead to pop a tight head? Those are deliberate - ask Phil Vickery on the 2009 Lions - but they are also dangerous. These are part and parcel of the normal risks of the game, but where does normal pushing of the boundaries in the scrum lie, and where does it go beyond the pale? Would, for example, the deliberate joint action of hooker and loosehead to pop a tighthead up be worse than a tighthead's liability for letting a scrum drop where he was unhappy with the position he got on the engage but without any deliberately illegal or dangerous action?

Moreover, this makes the duty of a referee all the clearer. A referee has a duty to enforce the Laws made for player safety, and if the players do not observe these, then he will be liable for his failure to make them so do by enforcing those laws. If a player is scrummaging in a way brought to the attention of a referee, or which a referee should know is illegal - early, unstable drives or collapsing - the referee must stop this. Yet, to give a practical example, it's illegal (and dangerous) to drive an opponent up out of a scrum, and a referee MUST stop such a scrum immediately, and penalise the player driving up. It is no offence to stand up or be driven up - yet this is what usually gets penalised.

This case does not cite Vowles or Smoldon. It was the player who was found liable, not the referee (who was not sued; paragraph 62 of Fourie J.'s decision is interesting). Yet, when the referee has a greater duty of care to the player than another, opposing, player does, it seems very hard to see why this does not point to the same conclusion as those cases - and all the more so when one considers the cases, and reports, I dealt with yesterday. Wilful failure to follow or apply Laws made for the safety of players in the scrum can lead to liability for injuries arising from breach of those Laws.

And, again, the solution is simple; make such changes as are necessary to the Laws, and apply them. Apply the Laws made for player safety as they now are. Give us better and safer rugby, in one go. All that has to be done is to apply the Laws of the game.

So why does this seem to be regarded as such an unreasonable request?

(My thanks to Mnr. Pieter Koornhof of the University of the Western Cape and Universiteit Stellenbosch who first mentioned the High Court decision in this case to me.)

Monday, October 22, 2012

Legal Liability and Scrums.

Take a small car - this being rugby, let's say a French one, a Citroen C4. In fact, take two. Suspend one 15 centimetres - six inches - over each of your shoulders.

Now let them drop.

That's what it is each member for a professional front row to take the hit of a modern scrum. If you're an international hooker, since hookers take a bit more of the hit, you're talking a family saloon like a C5, onto each shoulder. 3kN of an impact. Ten or fifteen times a game.

Brian Moore - referee, former international hooker and lawyer - has been pointing out for a while - correctly - that big-hit scrummaging is both dangerous and pointless. It's pointless because if you referee according to the laws of the game, which demand that the scrum be steady and static before the ball goes in, you get little or no benefit from it. It's dangerous because massive impacts are not just dangerous in and of themselves, and especially over the long term, but because they are unstable and destabilise a scrum.

And in the Daily Telegraph today, he points out that the three year study, conducted by Bath University, on scrums at all levels of the game now provides the evidence, which can - via BokSmart - be seen HERE (I note in passing that if the figure of 18kN peak force on the engage means what I think it does, you're dropping those family saloons from twice the height I mention above). He thinks this could lead to legal liability for the IRB for failing to legislate to make the game safer.

He is right, but what he doesn't know is this point has already been litigated. It was an Australian case, Agar v. Hyde. It was not successful, but the key reason why it failed was that the the IRFB was not an incorporated body with a duty of care, but rather enthusiastic amateurs giving their time up. That has now changed: the IRB is now a company incorporated in Dublin, and the referees, and many of the law makers, work for it. The reason why Agar v. Hyde failed no longer exists.

The dangers do. About 20 years ago, a truly ground-breaking piece of research was done at Stoke Mandeville hospital in the UK, where every catastrophic neck injury from rugby going back forty years was analysed. What it showed, in the paper by JR Silver (a man whose ground-breaking work has doubtless saved the necks of many rugby players, and who deserves the thanks of the entire game), was that what broke necks was big, unstable impacts and twisting (you can get a flavour of it in more recent papers HERE and HERE). As a result, collapsing the maul was banned, and scrums were made steady and static, instead of the moving feasts they had been. This worked not just well, but brilliantly: the number of broken necks dropped off dramatically.

But around ten years ago, things started going wrong. The requirement for scrumhalves to put the ball in straight died a death, as did the requirement not to push before the ball. As Brian Moore has pointed out, the net result was a one-third increase in the pushing, as hookers no longer had to hook, and a positive reward for pushing before the ball and loading up the impact on the engage to get that ball rolling. It's supposed to be strictly enforced that the ball go in straight: in practice, the ball can now be fed into the second row with impunity. A new offence of "not taking the hit" was invented: you could now be penalised because the other team were pushing before the ball, and making the scrum unstable and not on the mark. If you want a perfect example of where this lunacy, see THIS clip from the weekend, where Leicester Tigers are driving before the ball - second rows' legs pumping - yet Romain Poite sinbins the Ospreys loosehead for not pushing back.

It is dangerous, it is illegal under the laws of rugby, it has destroyed the art of proper scrummaging, yet the requirement to increase the impact imposed by this made-up rule has led to ever bigger, and ever more dangerous. As you can see from the data in the BokSmart presentation linked to above: neck injuries are going up again.

The net result has been more dangerous scrums, more resets, worse scrummaging and more dangerous scrummaging: bad rugby, and dangerous rugby. You have here an active failure to apply laws made for player safety some 20 years ago, when the risks have increased as a result of that failure. That has led to referees being held liable for broken necks arising out of collapsed scrums in Smoldon v. Whitworth and Vowles v. Evans

And there is no excuse for it. Three years ago, when the insane proposals to allow the maul to be collapsed formed part of the unloved and unmourned Experimental Law Variations (ELVs), I wrote an article* setting out in more detail why this created a liability. The reasoning is exactly the same here; in fact, it is stronger.

The failure by the IRB is not just bad at law, it is bad rugby. I love scrummaging. I have played as a prop, as has every male member of my family for the last three generations at some stage. I have also held my hooker's neck immobile, waiting for an ambulance to come after he broke his neck on a slipped engage (thankfully, his cord was fine). Scrummaging has risks, and always will. I know the risks, and have accepted them, as has every other prop. But it is NOT acceptable to make those risks greater by ignoring the Laws of the game, and at the same time removing the art, the technique and the skill of good scrummaging and replacing them with a hit-drive-drop charge. It is no part of good rugby to destroy the art of hooking, to substitute races over the mid-line for real propping duels and to have endless resets because of huge, artless impacts. Not only is there no legal reason to stand for this, there is no rugby-playing reason - and, ironically, that just increases the legal risks.

All this requires to protect the game, and protect players, is to make the recommended changes, apply the Laws and thereby bring back proper scrummaging. In fact, even applying the laws as they stand would go a long way to safety, because there's no point in putting everything into a huge hit if you then have to give ground back to the mark. Everyone would benefit.

So why on earth does it seem to be so very, very hard to have the Laws of the game, made to protect players, enforced?

*Bringing It Down On Their Own Heads: Negligence and Changes to the Law of Rugby (2009) 27 ILT 98.

Update: one typo corrected.

Wednesday, October 3, 2012

Afoa, Hayman, Tuilagi - Tip-tackles and consistency.

Back in October, in the Rugby World Cup semi-final, Alain Rolland did what a referee is supposed to do: he made a brave, and correct, decision according to the Laws of the game, no matter what stick he would take for it.

Now, just under a year later, he must be wondering why the hell he bothered.

In this post, I want to look at three recent tip-tackle decisions, all cited, and all dealt with differently; to examine those citing decisions in terms of consistency; and to tease out what this means in terms of disciplinary systems.

The three are: John Afoa, on Felix Jones in the HEC quarter final, which you can see HERE, HERE and HERE; Carl Hayman on Takudza Ngwenya of Biarritz in the Amlin Cup Final, which you can see HERE, HERE and HERE; and Manu Tuilagi on Danny Care in the AP Final, which you can see HERE and HERE (my thanks, again, to the posters on the Gwlad forum for the files).

The first thing to comment on is the remarkable similarity between all three in terms of the tackle: the tackled player is lifted, turned (in two, turned upside-down), and the tackler drops on top of him. In the case of Hayman and Afoa, even the number on their back are the same.

The referees looking at the offence were, respectively, Roman Poite; Wayne Barnes; and Barnes again. The  on-pitch responses, were, respectively: advantage to the tackler's team; a yellow card; and a warning.

In the first, John Afoa tip-tackled Felix Jones of Munster. It was clear at the time, and commented on at the time, but the referee - Romain Poite - not only did not punish it, but gave a scrum to Ulster and, according to the decision which you can read HERE, claimed at the hearing that he did not see the incident because the Ulster loosehead was between him and the tackle (on which claim, the pictures HERE and HERE cast an interesting light, given that Court isn't even in shot). Afoa fought the case. Of interest in the decision is that the same line that was run in the Ferris decision - of which more HERE and HERE - was run in this case and (rightly) dismissed. It's notable that the issue of "not driving" was addressed, and also dismissed: the JO found that the weight of Afoa dropping onto Jones constitued driving Jones into the ground. If you think about it, this is sensible: after all, a tight-head dropping onto you into the ground will drive you into the ground a lot harder than just being dropped on your own from the same height, and is therefore clearly more dangerous. In dismissing this argument, the JO relied on and followed the precedent of the Ian Gough decision, which you can read HERE.

In the second, Carl Hayman. You can read the decision HERE. It was, in many respects, a near copy of the Afoa incident. What is of note is that the very eminent JO, Christopher Quinlan QC, who handled these cases at the RWC analysed the submission that merely dropping onto a player wasn't enough to constitute driving into the ground for the purposes of the Memorandum. He rejected that submission at page 14 of the decision.

He [Ngwnenya, referred to in the decision as "TN"] was not dropped in the conventional sense of the tackler letting go. The Player remained in contact with TN as he descended. By his contact with and his weight upon TN, he accelerated his decent. That is to drive for the purposes of Law 10.4(j). It is of some note that the Player also went off his feet, ultimately landing on top of TN. [Emphasis added] 

In the third, Manu Tuilagi lifted Danny Care of Harlequins and dropped onto him. He was cited for this; and the case was dismissed. The Decision can be read HERE. It is, in many respects, a very precise analysis of the law on the issue, by, again, Christopher Quinlan QC. What is of note, however, is that the reason the case was dismissed was that it was felt that Tuilagi did not drive Care into the ground, but just fell on him; and that this was not enough to consitute "driving" for the purposes of Law 10 (4) (j). The decision turned on this point, but it is an approach entirely inconsistent with the ERC cases of Gough, Afoa and Hayman, and, moreover, at odds with what the learned JO himself held in Hayman, despite the claims to the contrary. When the being in contact and accelerating the descent by being in contact is driving in Hayman, it is simply not possible to square the quotation from Hayman above with the statement that:

It is correct that he remained in contact with him: he had his right hand under his torso and his head appeared to be in contact with the right side of DC’s torso. However, we were not satisfied that was driving him, even within the meaning of the ERC decisions in Gough 27 December 2011 and Hayman, 26 May 2012. 
In passing, it should be noted that when the decision refers to a lack of response from Care being indicative at a time of heightened sensitivity to tip-tackles, it appears to miss the Harlequins player who can be seen in the first clip clearly remonstrating with the referee about the tackle.

What is certain is that there is now a markedly different approach on what constitutes "driving" for the purposes of the laws in this between European competitions and English domestic ones. When consistency is being stressed, this difference is one which would need to be sorted out as soon as possible, not least for the players themselves; it does a player no favours to be sent off or cited in Europe for what he is left do in the Aviva Premiership, and all because he has become used to a seemingly-looser standard in England.

Quite apart from the issue of inconsistency in the approach of the judicial officers, there is also a worrying trend developing on the issue of "horizontal" which may also land players in trouble.

Tuilagi claimed, after being cleared, that "Danny didn't go above horizontal". It should be noted that while the DC hearing this mention that Care is flat as he hits - which is different from saying he never went above horizontal - they did not fall into the error made in Ferris and take this as meaning no tip-tackle occurred. Instead, as noted, it was the absence of dropping or driving that was crucial (which is not to say that they do not flirt with this on page 6 of the decision).

However, while one might say this argues that England coach Stuart Lancaster may not only have to explain that the law on that has changed but also work on his outside centre's awareness of angles, the fact that someone who is now a settled professional player can be labouring under this misconception as to what the law is argues the deterrent effect is demonstrably not working.

And it is this that is worrying. The tip-tackle Memorandum specifically stated that the failure to award on-pitch red cards was not working to prevent demonstrably dangerous tackles, that these tackles "must be dealt with severely by referees and all those involved in the off-field disciplinary process": and "that the lifting of players in the tackle and then either forcing or dropping them to the ground is dangerous and must be dealt with severely." As Lancaster fairly pointed out, in agreement with the ERC and IRB, there must be a deterrent and these are "red-flag" situations (nor is it just an NH problem, as the suspensions in the Super 15 have showed). Clearly, if players consider these "good" tackles, they are not learning from citings. Only on-pitch sanctions will work - as was recognised by the admonishment to referees to deal with them "severely" on-pitch.

And this is the danger for the game. It has here a situation where there is a clearly dangerous pattern, unquestioned and acknowledged as such (and mentioned in Hayman); where there is a need for deterrence; where the only effective deterrence is on-pitch; where this is necessary for player safety; and where the referees are persistently failing to apply that, then they are failing to apply a law for player safety which players are entitled to rely on for their safety. That may sound a familiar list for any readers of this blog, and there is a reason for that: those are the tick-list questions for liability from Smoldon v. Whitworth and Vowles v. Evans.

There is no rugby reason to turn someone upside down for a good tackle: arguably the opposite. Hold him up and frog-march him backwards, like THIS; or if you lift to stop, bring him down arse-first, as this - superb - tackle by Julian Savea on Rob Kearney in the summer shows. If players persist in doing something dangerous that is not necessary in rugby terms, then it needs to be stopped for player safety. That is up to the referees and the Citing Commissioners, as the IRB have told them. And if they won't, then the day that an injured player points out this failing in Court comes closer.

Edit: tidied up some broken link and punctuation, a correction as to the cases mentioned plus one small addition about the Harlequins player remonstrating.

Monday, September 17, 2012

Court proceedings.

I am precluded by the rules of my profession from commenting on this case. I post the link to show, simply: when I talk about a real risk of challenge to decisions, that risk should not be discounted by decision-makers.

Monday, September 3, 2012

Concussion - Fatality.

On 30th January 2011, a 14 year old boy died in Belfast apparently because he was left on-pitch after being concussed to get a second, fatal, concussion.

You can read the details HERE, HERE, and HERE.

This happened two years after the Zurich Consensus was released.

I've written before, on this blog and elsewhere, about the failure to deal properly with concussion. As the inquest is ongoing, I will not comment on it until the verdict is returned. However, at that time I will be updating this post in full. 

For the moment, I just want to extend my sympathy to the family. 

Tuesday, August 28, 2012

The Strange Death of the Minimum Bans - Hartley.

Some games, I never want to watch again. This may explain the gap in dealing with incidents from them.

In this post, I want to return to a topic I've dealt with previously, the apparent death of the minimum ban - and what has happended since. You can read the previous posts on that HERE, HERE and HERE. These decision involves the England-Ireland 6 Nations game.

In the first, Dylan Hartley was charged with biting Stephen Ferris. Ferris complained about it on-pitch to the ref, Nigel Owens, who - quite reasonably - pointed out that he could see the marks, but he hadn't seen the incident, and he could only ref what he saw. After the game, which all went horribly wrong for Ireland, Hartley was charged with biting. You can read the decision HERE. There is a noticeable clash of evidence, and not one the decision makes any clearer, as it tries to accept two inconsistent accounts at the same time; however, despite the way in which the defence was run, it is clear that Hartley DID bite Ferris, and was so found to have bitten him. The interesting part is the sentencing.

Hartley has a previous sentence of six months for gouging two players in the one match. He denied the allegation, and fought it, hard, with no expression of remorse. A previous example of the sentence one would expect for this offence would be Danny Grewcock, convicted of biting Kevin Mealamu's fingers in the first Lions test in 2005 and who served two months as a result (Grewcock is now a member of the IRB's Morality Panel).. The minimum ban for this offence is 12 weeks; and a lesser ban than this minimum can only be imposed in exceptional circumstances, which I have dealt with in the earlier posts.

Now, the minimum ban has been under considerable attack for quite some time. But in this case, there was a new and dramatic departure. Despite the fact that previous offences must be taken into account, the Disciplinary Committee disregarded Hartley's previous six-month ban entirely. To put this into context, Paul O'Connell's case, the Appeal Hearing expressly found that full mitigation could not be given where there was a previous suspension and the allegation had been fought or there was no expression of remorse. In that case, the previous suspension was seven years beforehand, of three weeks; Hartley's was five years beforehand, for six months (and the East Terrace was somewhat droll on the topic).

Not only does this depart from the requirements of the previous judgements on minimum bans, as well as the plain wording of Regulation 17 as it the stood that the previous bans must be taken into account (there was discretion as to whether to regard them as aggravating, but all bans as an adult player had to be taken into account), it is so inconsistent with the manner in which mitigation has been applied in the past that either it is regarded as an outlier and entirely inconsistent, or else this style application of mitigation has now become entirely arbitrary and inconsistent between hearings. If it is this latter, that would be an open invitation for players whose livelihoods are, or could be, affected by such arbitrary hearings to go to Court on the matter.

Matters have, however, since changed. And it is this change that I want to look at in the second part of this post.

Sunday, July 15, 2012

Concussion and the GAA - Updated.

A former Munster fullback* was supposed to have said that the true Irish sports were rugby and hurling. And, with my beloved Cork now in the All-Ireland quarter-finals, I'm delighted to see at least one of them is dealing properly with the issue of concussion.

I wrote before about Fermanagh player Mark McGovern, who suffered a serious concussion injury from an on-pitch incident in San Francisco last May while playing Gaelic Football, and how his case highlighted the failures of the Gaelic Athletic Association (GAA) to address the subject of concussion management and the effect this could have on liability for such injuries.. He spoke at the recent launch of the GAA's concussion management program, in association with the excellent Acquired Brain Injury Ireland (ABII) and the Gaelic Players' Association (GPA).

The management program is excellent, and there is no question that the GAA are now taking the steps needed to deal with concussion on-pitch in as required by the Zurich Consensus, to which the GAA has signed up since 2008. However, as with rugby, the problem is historical. It has taken five years to actually bring in an active pitch-side concussion management program when the data showed that such a program is the best way to deal with the duty of care to player safety. In that time, there has been, as there has been and regrettably continues to be in rugby in Ireland, a failure properly to deal with concussion as required by the Association's own rules.

The statistics gathered by the GPA and ABII that over half of all players at elite levels have sustained a concussion, and 44% have sustained repeat concussions gives an indication that the number of players affected by this is not small. In fact, it's probably a majority of those who play at the elite levels of GAA, which are effectively professional in all aspects but for being paid. Mercifully, the numbers who will be symptomatic as a result are much smaller. But it is far, far too much of a leap to assume that there will be no-one who will not be symptomatic as a result of this sustained failure to address this issue since 2007.

However, at least the GAA is now addressing this issue and taking it seriously. To my astonishment, the IRFU site still states, in defiance of the comments of international referees on the IRB site to which it links to the effect that referees should bring the Pocket SCAT2 onto the pitch and use it, that

While referees will see a reference to Pocket Scat2 in the iRB Guidelines, it is important to clarify that it is not necessary to attempt to use this to assist in the identification of suspected concussion.
Begging the question, of course, of just what on earth they think the Pocket SCAT2 is for if not for its designed function of managing concussion on-pitch accurately and safely for the benefit of all.

By this stage, one has to ask: is it really too much to ask that the IRFU give those who could end up being sued as a result of its failures the proper information to help prevent that happening, and, more importantly, protect the players on the pitch?

*The quotation is attributed to Eamon de Valera, who played full-back for Munster in the 1900s.

Sunday, July 1, 2012

Concussion update - Warburton, Lipman and Concussion Bins

"Everyone's getting bigger, stronger and faster, [but] the brain's the brain, if you drop a computer that many times eventually it's not going to turn back on."

I wish, fervently wish, that I did not have to keep revisiting this issue. But, alas, it keeps on coming up.

In the last month, the IRB announced it was going to trial concussion bins - not dissimilar to a blood bin - at the Under-20 Rugby World Cup in South Africa. It was an excellent idea, not one that I recall having to be used on the squelchy pitches of a winter Stellenbosch, but a definite step forward.

However, it then followed up with a step backwards on-pitch. You will recall that, in the Rugby World Cup final, Morgan Parra of France appeared to be concussed - was certainly showing symptoms of concussion - left the pitch then came back on only to get concussed again and have to leave the pitch. It was in breach of the IRB Concussion Regulations, and downright dangerous. The failure of referee Craig Joubert to enforce the Regulations attracted comment on this blog and elsewhere.

You will also recall that, back in February, Wales openside and captain, Sam Warburton said that he was getting headaches for days after games - concussion symptoms. Again, nothing came of it.

In the third Australia-Wales test, refereed by Joubert, Warburton took a huge hit to the head from a knee, which you can see from various angles HERE, HERE and HERE (once more, the work by the poster Snedds on the Gwlad rugby forum in compiling this archive of clips is invaluable as a resource), and was unmoving for a while and wobbly on his feet when getting up - concussion symptoms under the Regulations. Warburton was not removed from play as the Regulations would require, but despite playing on, was clearly and visibly not right. Ten minutes later, Warburton was on all fours, being sick, as you can see HERE.

So, a referee with a record of leaving concussed players on the pitch in defiance of the Regulations did not comply with the duty to apply Regulations made for player safety in the case of a concussed player with a history of concussion symptoms. That sort of persistent refusal apply the laws made for player safety is asking for trouble.

One has the contrast of Kieran Read of the All Blacks being rested because of sustaining a second concussion in two weeks, even with the clearance periods (that the All Blacks could then move Richie McCaw to 8 and bring in his 20 year-old MiniMe Sam Cane shows why, even when you admire NZ rugby as much as I do, it's hard to love an opposition with that sort of limitless depth. Just a small bit of weakness like the rest of us would be so much more endearing). But the real lesson was in case of Michael Lipman.

Lipman, late of Bath and the Melbourne Rebels, had to retire this last week, after sustaining over 30 concussions in his professional career (which career spans more or less the time period since concussion was first being managed properly in New Zealand, and the last five years of which post-date the reported study on the success of that concussion management regime). He is now, it would seem, permanently symptomatic as a result, judging from the litany of symptoms he talks about in that article. The quotation at the start of this post is from him, and it reflects the simple truth of the matter.

The Concussion Regulations are in place for a reason, and that reason is to protect players. If those with a duty of care towards players, like referees, persist in refusing to apply those rules of the game, then players will get hurt, and those players who end up with symptoms for the rest of their lives as a result of that failure will, sooner or later, sue. No-one wants that, but it is coming, and coming closer each time a referee fails to do what he or she is supposed to do. There is no down-side in applying the Regulations, which makes that failure all the more baffling.

So, to once again make the plea: for the sake of the game, of the referees, and the players, please - apply the Regulation and do not let concussed players keep playing to get hurt worse.

Because sooner or later, not applying them will turn out to be much the more painful option, for all concerned.

Sunday, April 15, 2012

Calum Clark Citing Decision.

When a disciplinary system rewards misleading a tribunal and punishes eating biscuits, it's very hard not to think that system is broken.

In the final of the Anglo-Welsh Cup on the 18th of March, Calum Clark of Northampton Saints was involved in a ruck. The whistle went, awarding a penalty to Saints. Clark grabbed the right arm of hooker Rob Hawkins of Leicester Tigers and then used his weight to bend Hawkins' arm backwards and hyper-extended the elbow joint, breaking the arm in several places. You can see that action from in-field HERE, and also an unimpeded view from the other side, HERE and HERE (the footage is originally from Sky via, and converted into a slower format by a poster on the Gwlad forum).

Note, in particular, what Clark does with his right arm, looking down, then bringing it down on the right elbow of Hawkins before he then rocks himself backwards. Note further that all the way through this, the referee is signalling a penalty to his side - you can see on the first view that the referee blows for the penalty at 0:13, and Clark does not grab Hawkins' arm with his left arm until 0:15 - and the ball is clearly visible and available.

Let us be absolutely blunt about this. This was an absolutely sickening act, and one that has no place on the rugby pitch. It was not accidental; it was after the whistle had gone - three seconds after, according to the recital of facts at the start of the decision - more than enough time to let go. Clark did not bring his left elbow down to pin Hawkins' arm by accident, and he did not then throw his weight backwards by accident. Claims that it was an effort to move a player who, even on the decision itself, was trapped under another player, may be disregarded; anyone who has played the game knows that you will not shift someone trapped under 100kg of player by bending their elbow the wrong way until it snaps.

If the word "thuggish" cannot be applied to this behaviour, then it should be retired from the language as being of no further value or use.

After that match - which Saints lost - Clark tweeted:

Another final. Another runners up medal. In the bin.

You can see the original tweet HERE; it is from 6:08 that evening, shortly after the game.

He was cited for his actions. In the meantime, Hawkins - who was out of contract, and playing to try and get a new one - had to have surgery on his elbow: the break was so bad that reconstructive surgery was impossible. It is unclear if he will be able properly to straighten his arm again.

The citing hearing was on the 29th of March, and the decision came out on the 30th. Clark was suspended for 32 weeks, reduced by half from 64 weeks. You can read the full decision HERE. Astonishingly, Saints appear to have felt hard done by, judging by their press release. To appreciate just how incredible a position this is, let us now look at the decision.

It should be noted that this was not the first time that Clark had been in trouble. On the 20th of June, 2008, he was sent off in the Under 20 World Cup Final for attacking two different opponents - you can see the offences HERE. Clark was born on the 10th of June, 1989; he was 19 when he was sent off in the U20 RWC final.

Except that's not what he told the Judicial Officer, His Honour Judge Jeff Blackett. Clark claimed that he was 17 at the time, and Richard Smith QC, acting for him, made submissions on that basis for which he was thanked by the learned judge: to quote the decision:
Mr. Smith submitted that the one previous incident of foul play could be ignored because it was five years old and committed when the player was under 18 and that he could be treated as a man of good character.
Clark was not under 18 when he was sent off. He was 19. It was stated as a fact by Counsel that he was under 18. This is highly significant. Clark was given a 50% discount on the sentence for having a clean record past the age of 18 when he did not have such a record. Crucially, and astonishingly, neither a QC not a judge appear to have been able to twig that a player in an Under 20 final is almost always going to be over 18: Under 20 is the next age group up from Under 18. Neither realised, or appeared to do the elementary mathematics to realise, that a player born in early June 1989 must have been 19 in late June 2008.

It should be noted, in passing, that Counsel have a duty not to knowingly or recklessly mislead a tribunal in front of which that Counsel appears. In this case, one presumes it was mere inadvertence; but it is somewhat surprising that no steps to apprise the tribunal of the correct age of Clark appear to have been taken in the intervening three weeks.

As it stands, whether by inadvertence or by Counsel being misled as to the age of his client, the tribunal was misled as to a crucial piece of evidence that was entirely material and central to the decision and the sentence handed down. Clark got the benefit of the hearing being misled as to his age.

It should be added, nor was it the only factually debatable statement: Clark claimed that "[f]or me, the result of the game was insignificant". You may compare and contrast that statement with his actual tweet straight after the game ended which you may see above. There are many other such statements: it's well worth reading his account and watching the videos at the same time to contrast and form one's own opinion.

Now, here we have a situation where, unquestionably, the JO was told something that was not true, as a palpably and demonstrably false mitigation, and on the basis of which an offender got the maximum discount allowable. Yet, by contrast, Brendan Venter ate a biscuit provided at his hearing - and this was an aggravating circumstance to be treated as expressing disdain for the system.

So, bluntly, when misleading a judge about maiming opponents gets fulsome praise for upholding the system but eating biscuits strikes at the root of rugby discipline, how can it be said that this disciplinary system is now not teetering on the verge of the genuinely arbitrary?

This needs to be addressed by the game. Fast. Because someone who is willing to do this to an opponent and then mislead the citing hearing has no place on the pitch.

Edit: slight typos fixed.

Sunday, March 11, 2012

White Card, White Flag.

It's one thing to say the referee's decision is final. But what if he's not making any decision at all?

Those watching the Super 15 will know there is a trial of a new card, the white card. It means that the referee doesn't give a red, or a yellow, but flags to a Citing Commissioner that there is something that happened that the Citing Commissioner should look at. It's taken from rugby league's On Report system. Like most league imports, from tip-tackles to ignoring crooked put-ins at the scrum to Chris Ashton, it's not working out half as well as was thought.

In the first round, Mark Lawrence yellow-and-white-carded a clear, unquestionable, red-card tip tackle offence by Andries Strauss of the Cheetahs on Wikus van Heerden of the Lions; van Heerden was concussed by the tackle and had to leave the field. You can see it HERE (which, in passing, shows how dangerous these tackles are, and why scrum caps don't protect from concussion) and read a discussion of the system HERE.

This weekend, Bryce Lawrence didn't even white-card a tip-tackle that you can watch from different angles HERE, HERE and HERE. Again, an offence where the player was lifted, both feet off the ground, dropped without regard for safety, and head or upper body hit the ground first - a category 2 red card - and nothing done.

Of course, the point is, a Citing Commissioner will watch the game and cite what he or she feels is worthy of citing regardless. All the white card does is offer a way out of a straight red by passing the buck for the suspension to the Citing Commissioner, not arising from a - warranted - red card.

Perhaps the worst example of this of late was Dave Pearson in the Bradley Davies case. In his evidence to the citing hearing, he stated that he did not recommend a red card for Bradley Davies clear category 2 red card offence because he felt it should be left to the Citing Commissioner. Bluntly, that was a cop-out.

The problem is, human nature. Making decisions is hard, and making decisions in a pressurised situation is even harder. That's why good refs are rare. It's why judges are paid well; making pressurised decisions is a rare skill. It's a lot easier to leave the job to someone else who has more time to look at it slowly. But, if you take the job of being a decision-maker in a pressurised situation, not making a decision is a luxury you don't have. If you don't make the decision, if you leave it to someone else, you are not doing your job.

There is more to this than just commenting on failure to make a decision affecting the game. There is a legal liability aspect to this. Once again, we have to look at the core reason why the respective referees in Smoldon v. Whitworth and Vowles v. Evans were found liable; they failed to make a decision. In each case, the referee failed to apply a law made for player safety and a player was injured as a result of that breach of duty of care on the part of the referee.

Law 10 (4) (j) is just such a law; it was amended to read as it now does to protect players, and the memo directing referees to send off players who commit category 1 or category 2 offences makes it clear that that, too, is based on player safety. A player who has been injured as a result of a failure to send off players who commit those offences, or a player who could make a case that the failure to act on that memo meaning players have not been deterred from tip-tackles contributed to his injury, could then point to Vowles v. Evans and say: you had a duty to apply this law for my protection; you did not; and because of that failure I have been injured; so you are now liable.

These tackles are dangerous. The deterrence to stop players from committing them is needed to protect players. And, the more referees reach for white card instead of the harder, but correct, red, then the closer  the day comes when an injured player sues a referee for failing to do his duty and deter a tackler from tipping someone upside-down and dropping them onto his neck.

 One of the core tenets of rugby is: the referee's decision is final. But that means the referee has to make an on-pitch decision. The white card cop-out just makes the tempting, dangerous and weak option too easy. It should go no further.

Saturday, February 25, 2012

6 Nations Round One - Davies, Ferris and Tip-Tackles Part 2

And so to the decision itself.

You can read the decision HERE.

While going through it, I'd ask you not just to remember the points from Part 2, but also look at the picture just below, originally from the Daily Telegraph the day after the game.

The first thing to note is that the Decision's statement of the facts of what happened is, frankly, bizarre. You'll note from the picture above that Evans (W5 in the Decision), has his left arm outstretched to break the fall. Yet, at paragraph 7 of the decision, it says that "There is a point where the Player's left elbow can be seen as the uppermost part of his body, but his body position is itself at 45 degrees to the ground and not perpendicular to it". It then goes on at paragraph 8 to say "The effect of the tackle is that W5 goes to ground, making contact with his left shoulder and right hand simultaneously, the latter of which he has put out to break his fall" - Evans, as you will see, has his LEFT hand out, with the ball in his right. That confusion of left and right runs all the way through the Decision. That is, at best, sloppy. There is another, catastrophic, error on the facts, which I will deal with in due course.

The second thing to notice is that, although this is just like the Bowe case, that case is never mentioned. In fact, no case is ever mentioned. Given that at least one legal representative in this case was involved in Bowe, and would have known the outcome of that case that the yellow card and penalty given in that case by Wayne Barnes for a similar offence were upheld, this is surprising.

Wayne Barnes, the referee, stood by his guns in paragraph 10 and 11 that it was a penalty. He did felt he could not be that there was no dropping of the player, but felt that it was from no great height (paragraph 10) if it was there and that there was definitely a failure to bring the player safely to ground - which as you will remember, is Category 3 from Part 2, and what happened in Bowe. On what is recorded in the decision, Barnes does not accept that there was no dropping.

Thirdly, the issue of the four points arose, especially the issue of point 3), both legs being in the air. The case was made that the video evidence confirmed that Ian Evan's right leg - that's the one up in the air - was "at all relevant points... still in contact with the ground". Well, it wasn't; and as you can see from the picture above, neither was his left leg (which suggestion was put to Wayne Barnes in paragraph 11). The Findings at paragraph 16 state that "the lifting of a leg in this situation where the other leg remains on the ground, is not sufficient of itself to make this a dangerous tackle". And on that basis, they dismissed the citing.

In other words, the entire decision is based on the idea that 3) is missing; that Evan's left leg was on the ground at all times. Now, look up at the picture; and ask yourself how that one snuck through.

Thus far, the decision is clearly fundamentally in error. The entire basis of its reasoning is, not to beat around the bush, just plain wrong. But, these things happen; it's what one would term an error within jurisdiction. It's an error, but not one that would lead to any recourse had they stopped there.

The real problem is what they said about the Law. The Decision states at paragraph 16 "[t]he angles involved (the Player's body and W5's shoulders, hips, knee and angle) are less than 45 degrees to the perpendicular at the relevant points. In our view, the dynamic is not such that the law reference is designed to address."

Now, with all due deference, that's nonsense. There is no reference whatsoever in the Law to horizontal, or perpendicular. That reference was removed to give us the current Law 10 (4) (j). Reinserting it, and claiming the amended Law requires it, is simply untenable. It also flies in the face of the cases already decided - not one of which is referred to. It is, for example, utterly inconsistent with Bowe and Tuitupou, which have been approved and followed by IRB and ERC panels as illustrating exactly what this law, especially Categories 2 and 3, refer to. It is, in essence, one panel going off on a flier and trying to redraft the law by inserting a requirement into it that for any offence under 10 (4) (j), it has to be more vertical than not, instead of the requirement that the first contact be with the upper body. It is throwing out exactly what the amended law is meant to address.

Wayne Barnes stood his ground; he was right to. The Decision is wrong at law here, no bones about it..

Worse, it then goes far, far beyond its remit. The Citing had been dismissed (on fundamentally flawed grounds). That was that; no further comment was necessary. Wayne Barnes stood his ground that it was a penalty. But the Decision goes on to say that he "did not have the luxury of sitting with the Disciplinary Committee of playing, reviewing, analysing and dissecting with unlimited time so to do, what was a rapidly moving, fluid and dynamic situation. If he had such a luxury he may well have come to a different decision, but that is not to say that he was wrong coming to the decision he did."

Now, after a game, international referees do go through the video, in detail, both on their own and with the assessors. Wayne Barnes had done so - and, unlike the Committee, didn't confuse right and left, or say a player's foot was on the ground when it wasn't. But suggesting he "may well have come to a different decision" when he had said, clearly and unequivocally, that he would not, is going way beyond the remit of the Committee, and is ignoring what they are required by Regulation 17 to do. They are going behind a ref's on-pitch decision, to at least imply that decision was wrong, when dismissing a Citing. And that they cannot do.

The IRB referee assessors - the people who went through the videos with Wayne Barnes - felt moved to come out and comment that it was still a penalty. They were right on that, but having the Six Nations and the IRB openly disagreeing with a Committee is not just worryingly close to that for which the Springboks were fined in the Justice4 Bakkies Botha case, but is a mark of just how far outside their remit this Committee went.

When one looks at the ERC decisions, and then at this deeply, deeply flawed decision, one cannot but feel that the Six Nations, the highlight of the Northern Hemisphere game, deserves better than this.

Monday, February 20, 2012

6 Nations Round One - Davies, Ferris and Tip-Tackles Part 2

In the last post, I compared this to eating an elephant. Right now, it's more like an overblown Christmas turkey. I started it ages ago, and I'm still only half-way through it a week later.

The decision is now available. What I want to do first is follow the classic legal structure, and, having set out the facts in the first part, set out the law in this one, before analysing the decision in the third (and I assure you, there's a reason why the turkey analogy leapt to mind).

The basic law on tip-tackles is Law 10 (4) (j). You can read it as part of Law 10, the law on foul play HERE. The law 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.

So, to break that down into what criminal lawyers call the particulars of the offence - in other words, the pieces that must all be proven for the crime to be proven - a tip-tackle needs the following (and I've broken it down as far as possible, here, to give every opportunity to mount a defence):

1 - Lifting a player from the ground - and at this point I'll run ahead of myself and interject that it just says "lifting", not "lifting both feet"; and
2 - Dropping or driving the player into the ground; and
3 - While the player's feet are still off the ground - and this is why I ran ahead above; both feet must be off  the ground, but not necessarily lifted by the tackler; and
4 - Doing it so the tackled player's head or upper body come into contact with the ground.

A couple of things: first, there is NO mention of "past horizontal" in the law. There used to be: it was changed  back in 2009 in the new law 10 (4) (i) and changed again to the current Law 10 (4) (j) as of the start of December 2010. Now, there is nothing about past horizontal, vertical, or anything about the angle; it's whether the first contact is the the head or upper body while the feet are off the ground. "Upper body" includes an outstretched arm, as cases like Tuitupou and Cooper have decided.

Secondly, you do NOT have to lift both legs for an offence under this law, so long as both feet come off the ground. Just to take ERC cases in the last three seasons, cases where only one leg was lifted when the tackled player went off the ground include BoweShingler, Marty, and Gough. Tuitupou and Brits were cases where no leg was lifted, but because the player was lifted off the ground, it was an offence. 

Thirdly, and, crucially, you need to have all the elements for an offence.

So, to give an example: if I am the tackler and I lift the tackled player off the ground with the impact (1), and driving him into the ground (2) while both his legs are off the ground (3) and he comes down on his upper body (including hands) first (4), that's a penalty. Tuitupou is an example of that.

But if I lift the tackled player off the ground with by hooking a leg (1), drive or drop him towards the ground (2) while his legs are off the ground (3) but he comes down on his rear-end or flat instead of his upper body - well, he didn't come down upper-body first, so (4) is missing, so it's not a penalty. An example of a case just on that point is Tommy Bowe's case from December 2009, which you can read HERE (and to which I'll be returning in Part 3). And you can see a rather fine example of just that HERE on Quade Cooper in the RWC semi-final (in a digression, watching it again, it's great rugby by Kahui, and Cooper, who gets the ball back really well).

Similarly, if I lift both legs (1), drive to the ground (2) head or upper body first (2) and, by the time the head or upper body come into contact with the ground, one or both feet are on the ground, it's not a penalty, because (3) is missing.

Remember that checklist for part 3, because it will be crucial.

The next crucial piece of law is the 2009 memorandum on tip-tackling, which you can read HERE (and you'll note, by the way, the reference to Law 10 (4) (e) and "horizontal"; that's the old law, although the memo applies to the new one, 10 (4) (j), without any reference to "horizontal").

Crucial features of this would be first, intent is irrelevant; it is explicitly stated that referees and Citing Commissioners should not make their decision based on the intent. In other words, it is, in legal terms, a strict liability offence; an accidental one is as bad as an intentional one.

Secondly, one starts at a red card and works backwards: but if the particulars of the offence are there, it's never less than a penalty as a minimum.

Thirdly, there are three categories: what I'll refer to as Category 1 (driving into the ground - red card); Category 2  - (dropping with no regard for safety - red card); and Category 3 (all other offences - penalty or yellow card). Bowe is an example of a Category 3 case.

Those are the laws on the subject. They have been applied, with consistency and no small amount of rigour, since before the RWC. There are enough posts on this blog detailing that application; there have been five in the pool stages of the Amlin Cup and HEC alone, as well as the slew at the RWC.

One more crucial detail isn't strictly a law but a Regulation, Regulation 17. This is the Disciplinary Regulation, which sets out how citings are to be run, and you can read it HERE (and I'd recommend the full 65 pages if you're suffering from insomnia). The crucial point here is Regulation 17.11; the principle in the Laws that a referee's word is final is to be upheld wherever possible. If the referee has made a decision on-pitch, then under Regulation 17.11.4 (a), the citing hearing shall only make a different finding if it feels the referee was wrong in the reasons for that decision.

As the only reason they would make that decision is in upholding the citing, then the only reason a citing hearing can go against the referee is in upholding a citing. Now, remember that citings only arise when the referee has, at worst, given a yellow card (red cards are a hearing, not a citing); for a citing to be upheld, the offence must warrant more than that yellow card, it must be a red card offence.

So, if the hearing find that the offence does not meet the red-card threshold for upholding a citing, then it just dismisses the citing. It doesn't go into whether the referee's decision was right, it just dismisses the citing and moves on (again, Bowe give a flavour).

So, remember the four-part checklist; that you don't need to lift both legs so long as both feet come off the ground; the Bowe case; that citing hearings can only go behind the referee's decision; forget all about horizontal; and let's look at the decision in Part 3.

Wednesday, February 15, 2012

IRB Concussion Guidelines - updated

To give credit where deserved, the IRB appear to be listening on the topic of concussion. When commenting on the new training modules on their player welfare website, I (and others) pointed out it seemed daft to have them behind a registration wall when the aim was to have them easily available to everyone.

Well, they're not any longer. There is now a proper concussion management page on the IRB website. You can see it HERE. It's open to everyone, it's excellent, and it's something I'd recommend as a concussion management structure to anyone involved in any sport who wants to help reduce their exposure and prevent injury to players.

Finally, it looks like this is being dealt with properly by the IRB. There will probably be slips and relapses, but the trend is all in the right direction.

It is a good day's work by the Medical Officers and it deserves to be recognised as such.

Update on the update (with the admitted risk of getting recursive): I've been told by people to whom I've recommended this that they have had to register. It may be that the IRB site recognises cookies and logs you in automatically. If it is, I would still recommend the concussion management to anyone in any sport, but I would strongly encourage the IRB to make it available without registration. The easier to access and use in a hurry, the more likely it is people will do the right thing pitch-side.

6 Nations Round One - Davies, Ferris and Tip-Tackles Part 1.

The longer this one has gone on since the Ireland-Wales game, the more it's become like eating an elephant. There it is, plonked down on the plate in front of you, as vast as it is unappetising. It's all fine and dandy saying you do it one bite at a time; but where the hell do you even start?

There's the tackles, then the citing, then the decision, then the comments on the decision, then the comments on the comments on the decision...  A huge, grey, indigestible lump, steaming gently in front of you.

To quote one Welsh fan (Dylan Thomas): to begin at the beginning. What has happened thus far is as follows: about sixty five minutes into the Ireland-Wales game, Welsh second row Bradley Davies took umbrage at Irish substitute second row Donncha Ryan's counter-rucking. After the ball was cleared from the ruck, Davies - off the ball - picked Ryan up, inverted him, and dropped him on his neck. You can see it HERE; it's about as clear-cut a red card as one could wish. Referee Wayne Barnes didn't see it, but Assistant Referee (touch-judge, to you and me) Dave Pearson did, and flagged it. Barnes told Pearson he hadn't seen it, asked what happened and asked for a recommendation; at which stage, for some reason, Pearson recommended not a red, but a yellow card. At that point, Wales were behind by a point; Ireland then went scored a try.

Wales got back to within a point from another try; then Davies came back on. In the last two minutes, they put together some great phases in which Davies was heavily involved, taking it from 22 to 22. Then Irish blindside, Stephen Ferris tackled Welsh second row Ian Evans. You can see it HERE (for the sake of comparison, I've gone with one showing both incidents); Ferris lifts him past horizontal, and Evans comes down upper-body first. Barnes awarded a penalty, gave Ferris a yellow card, Wales kicked the penalty, and won by two points.

There was near-universal agreement afterwards (including, to their credit, from the Welsh coaching team) that Davies should have been sent off. Citing Commissioner Achille Reali cited both Ferris and Davies. Their cases were heard on the Wednesday of last week (the 8th of February).

Under the memo on tip-tackling, and the cases such as Shingler and the others that I've been looking at here over the past few months, there was no question that Davies was a straight red card under, at best, the second of the three categories of this offence under that memo - and a top-level one for sanction, too, given the aggravating circumstances. Shingler, which you can read HERE, is the ERC disciplinary system at the top of its game; an appellate decision analysing what it stresses are two perfectly well-argued approaches in Brits and Shingler, and deciding which one is to be preferred as better reflecting the policy. No-one reading it - including the manner in which it was treated as being of importance for the game, with no order for costs being made - could fail to understand the reasoning, or fail to approve of the clarity and seriousness which which a panel of very, very heavy-hitting judges came to their decision. It would be a credit to most appellate courts, and makes it clear beyond doubt.

Of more interest was Ferris. Here, the elements of the offence under Law 10 (4) (j) - lifting the feet off the ground (and it was both feet - you can see that HERE, and from 3:13 on the video above), bringing beyond horizontal (although that's not part of the test: on which more in part 2) and the upper body of the tackled player making contact first were all present. The question was, was it a category two or a category three offence? If category three, then a penalty (and possibly a yellow card) was sufficient punishment. However, no-one really knows where category two - red card - stops and category three - penalty/yellow card - starts. So, a proper, published decision on this would give final clarity to the whole area, and we would all have been able to say: this is red, this yellow, this is okay.

So, one would have thought that, come last Thursday, building on the work done at the RWC and by the ERC, we'd have final clarity on the law in this area.

So much for wild optimism. Because, while Davies was given seven weeks (light, in my opinion, but not outrageously so, given the tendency in international rugby to give much lighter bans), Ferris' case was dismissed. That would have been fine - after all, one needs a red card offence for a citing to be upheld, and if it's not, the Committee must uphold the on-pitch decision of the referee. The problem was, they appear to have gone further and said that it wasn't even a penalty. Irish manager, Michael Kearney, who was in the hearing reported this directly to the press, and it has not been denied by anyone that he was accurate when he said this.

Two days later, the IRB and 6 Nations decided to get stuck into the "not a penalty" issue and came out and said - in the perfect response for this pantomime - "Oh, yes, it was". Significantly, it was the IRB referee assessors who said this, NOT the Committee who heard the case (although you'd want to be reading that carefully to notice it). I'll deal later with the issue of publicly disagreeing with the findings of a citing hearing. And, yesterday, we had Gerry Thornley in the Irish Times quoting the decision, where the Committee appear to have been introducing considerations about angles and claims that one foot was on the ground all the time in a way that would make one want a protractors to work out.

So, right now, instead of clarity, we have complete and utter confusion, with the IRB, Six Nations, referees and Disciplinary Committee all disagreeing amongst themselves. And that's about as much as I can choke down right now before it provokes indigestion, so I'll return to it tomorrow.

Saturday, February 4, 2012

Sam Warburton and Concussion.

Much though I love the game, there are some elements of the modern game we could do without. Swan-diving wingers, jerseys that look like Jackson Pollock went mad in a paint factory, marketing campaigns. Oh, Lord, the marketing campaigns...

And against all these abominations in the sight of the Lord, we have long had The East Terrace, upholding the traditions of hooped jerseys and that no more celebration of a try is needed than an about turn and jog back to the halfway, fighting the good fight against the gathering darkness of fake tan and pre-try celebrations.

Which is why today's East Terrace was particular dispiriting.

It's HERE, and the article it refers to is HERE. It's poking fun at Sam Warburton for wearing a red scrum-cap.

The reason it's dispiriting is why Warburton is doing it. To quote him:
 I am definitely more of a target at the breakdown these days – I am getting a lot of elbows and knees. I am really getting smashed and I am getting headaches for a couple of days after games. That’s why I now wear a head guard – I have got a special red one for the Six Nations. [Emphasis added].
That's not funny. Those are concussion symptoms, persistent and lingering concussion symptoms, in a 23 year old. If you're getting headaches for a couple of days after the game, then something is wrong. I presume - I hope - that Sam Warburton is being monitored for this, and the Welsh Rugby Union (WRU) are, unlike the Australian Rugby Union (ARU) (or, indeed, the IRB), applying the concussion regulations. I do know that head gear is unlikely to do anything to prevent concussions.

And I also know this; if even The East Terrace laughs these concussion symptoms, so do most long as the game laughs off concussion symptoms, so long will concussion not be taken seriously. And that means that, sooner or later, people like me - the lawyers - will have fun with the way that concussion regulations are not being applied by those with a duty of care to the players.

And, to quote Terry Pratchett: the strange thing about what lawyers have fun with is that no one else ever sees the joke.

Thursday, February 2, 2012

The IRFU Non-Irish Eligible Policy.

Over the past fortnight, I've been in the news by pointing out just why the Irish Rugby Football Union (IRFU)'s new policy on Non-Irish Eligible players at Irish provinces won't work.

The original articles in the Irish Independent - which you can read HERE and HERE - caused a fair stir, and a fair few follow-up articles, some of which you can read HERE and HERE, including comments from Joe Schmidt of Leinster.

The reason for this post is that I feel it's only fair to, as it were, show my workings.

First, it's as well to recap on the details of the IRFU's policy, the Player Succession Strategy.

The basic idea behind is entirely right and laudable; the Irish provinces should develop young Irish players, not being a pension fund for Southern Hemisphere journeymen. To that end, the IRFU proposed that from 2013 onwards, only one player ineligible to play for Ireland (Non-Irish Eligible - NIE) in each of the 15 positions on the pitch would be able to play across three of the four provinces (it doesn't apply to Connacht). So, if there was a NIE tight-head at Munster, then Leinster and  Ulster would not be allowed to renew, or sign, a contract with another NIE tight-head.

It should be noted, in passing, that there's a difference between, say, the Munster Branch of the IRFU, which runs the domestic game, and Munster Rugby, which is the beast taking the pitch in Thomond Park in the Heineken Cup; the two sides of the game were split off into different entities in the provinces a few years back, so players at Munster, Leinster and Connacht aren't directly employed by the IRFU unless they have central Irish contracts (in which case, of course, Irish eligibility is academic).

The problem with the policy is, of course, and as was pointed out swiftly, that without top-class overseas players, the development of local players would have been stunted. There would have been no Paul O'Connell without Jim Williams and John Langford, no Sean O'Brien without Rocky Elsom, no Keith Earls orSimon Zebo withoutDougie Howlett. Suffice to say there's been enough debate on this in the Irish press, and a quick look through the archives of the Irish papers will give a full guide to it.

The question then arose, naturally: what of the effect of this on players from overseas who aren't Irish-eligible, but are EU citizens, or have similar rights?

Now, some of this - the Kolpak and Zambrano situation - I've already covered on this blog back in May of last year, and I'm not proposing to go over that again; you can read it HERE.

What I want to do in this post is to give those who wanted to look at the Bosman judgement to which I referred in the interview a quick guide to what Bosman said.

The Bosman judgement is one of the best known EU cases ever. It's the source of the phrase "a Bosman transfer" in football, for starters. You can read the decision HERE; it's surprisingly readable for the layperson. Jean-Marc Bosman was a footballer with RFC Liege in Belgium who wanted to move to the French team, Dunkerque. As Dunkerque wouldn't pay the transfer fee demanded for the out-of-contract Bosman, he wasn't allowed move by Liege and his wages were cut. He went to court, and wound up in front of the European Court of Justice (ECJ), the chief EU court.

It turned on two issues; transfer fees for out-of-contract sports players, and restrictions on the numbers of foreign players in a given sports team - "foreign" being defined as "ineligible for the national team in the country where that team was based". The first is largely irrelevant to this post. The second is crucial, because the question the European Court of Justice was asked, at paragraph 49, was :

Are Articles 48, 85 and 86 of the Treaty of Rome of 25 March 1957 to be interpreted as:...
(ii) prohibiting the national and international sporting associations or federations from including in their respective regulations provisions restricting access of foreign players from the European Community to the competitions which they organize?'"
One of the reasons put forward at paragraph 124 of the judgement was the exact same as the IRFU's rationale:
Secondly, those clauses are necessary to create a sufficient pool of national players to provide the national teams with top players to field in all team positions.

And the ECJ was unambiguous: that wasn't good enough. 
128 Here, the nationality clauses do not concern specific matches between teams representing their countries but apply to all official matches between clubs and thus to the essence of the activity of professional players.
129 In those circumstances, the nationality clauses cannot be deemed to be in accordance with Article 48 of the Treaty, otherwise that article would be deprived of its practical effect and the fundamental right of free access to employment which the Treaty confers individually on each worker in the Community rendered nugatory (on this last point, see Case 222/86 Unectef v Heylens and Others [1987] ECR 4097, paragraph 14).
130 None of the arguments put forward by the sporting associations and by the governments which have submitted observations detracts from that conclusion... 
And so the ECJ laid it out in black and white: you can't restrict they number of EU nationals on any professional team below international level.

136 It follows from the foregoing that Article 48 of the Treaty precludes the application of rules laid down by sporting associations under which, in matches in competitions which they organize, football clubs may field only a limited number of professional players who are nationals of other Member States.
As was remarked; this isn't very complicated law, it's actually pretty simple once you know it's there. And, with Kolpak and Zambrano extending it further, it's now a very live point for people like Isa Nacewa, Doug Howlett and Lifiemi Mafi, all of whom have to look at their contract situation.

For the good of those players, who've done so much for the Irish game, and for the good of the Irish game itself, the last thing we all need is for this to end up in the Courts for want of attention. The current policy is unlawful, however much everyone agrees the idea behind it is a good and desirable one. It needs to be changed; and the faster that the IRFU sort this out with the provinces, the better for everyone.