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, 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.


  1. Where can we read the recent full Thomson decision?

  2. Thanks Tim, I posted the link also on my brother's FB wall. He is the Leopards Rugby Union president and a Advocate as well, so will appreciate the writing as well.

  3. The Thomson decision isn't out yet: normally, decisions aren't published until the final disposal, meaning the appeal has been determined or the deadline for appeal has passed. As soon as it's to hand, I'll be writing on it.