In 1823, William Webb Ellis first picked up the ball in his arms and ran with it. And for the next 156 years forwards have been trying to work out why. - Tasker Watkins VC, LJ.

Friday, February 15, 2013

Cian Healy Suspension.

Ireland v. England in the 2013 6 Nations. God-awful day, God-awful game in a weekend of God-awful games, dissappointing (if not quite God-awful) result for the home side. And it got worse.

In the first quarter of the game, Cian Healy saw his opponent, England tighthead Dan Cole, lying on the wrong side of a ruck. He decided to take matters into his own hands. You can see what he did HERE, HERE, and HERE (my thanks, as always, to Snedds). He stamped on Cole's ankle.

I am a fan of rucking; I have rucked, and been rucked, and worn my stripes with pride. I am a fan of Healy; always a great prop around the pitch, he has turned himself into a very good scrummager by dint of dedication and effort. But this wasn't rucking. If he had wanted to, he could have raked Cole's thigh, or calf, to free the ball and let him know not to lie there again, and that would have been well within the unwritten rules by which players self-police. It was a stamp, onto a joint, much like Jamie Joseph on Kyran Bracken back in the day, with sufficient force that Healy managed to clip the back of Rory Best's leg in passing and cut it. 

It was deliberate, it was unacceptable, and it was rightly cited.

The hearing was on Wednesday last, the 13th of February. Healy was suspended from the 18th of February until midnight on the 10th of March. This is unusual; the suspension did not kick in immediately, but only until after the Ireland-France game. This, according to the press release, which you can read HERE was because the Committe, "in imposing a suspension of three weeks, recognised that the player would not have played for his province this weekend is that the suspension will end at midnight on Sunday 10 March 2013" (it should be noted as a caveat that we still don't have the written judgement in the case yet, nor, seemingly do the parties, so there may be clarifications on that topic when we do have the judgement to hand).

This has led to some confusion and comment yesterday, including a statement that he had been released to Leinster (this particular piece was updated over the course of yesterday, following the rugby fora), seemingly based on Jonno Gibbes of Leinster claiming they intended to play Healy against Treviso in the RaboDirect Pro12 fixture tomorrow, and culminating in a report that legal advice is being sought on this. The aim of this post is to set out the Regulations and hopefully clear up some of the confusion caused by those who should be informing the public clearly not bothering to read the background material.

Citings, disciplinary hearings and suspensions are governed by IRB Regulation 17, which you can read HERE

Regulation applies generally to all in the game. As it says in the Preamble:
Preamble... (D) All participants in the Game shall by means of their participation recognise and agree to be bound by this Regulation including the core principle of universality which means that Players who are suspended at any level of the Game shall have their suspension recognised and applied at all levels of the Game and in the territories of all Unions and Associations. The IRB has identified certain Core Principles which must be implemented by all Unions and Associations at all levels of the Game in the implementation of disciplinary rules for Foul Play.

In those Core Principles in Regulation 17.1, we see the following:

(b) All Matches are equal. A Player suspended from playing the Game shall be suspended from participating in any Match at any level during the period of his suspension.

Unions, clubs and associations have a duty to impose it (Regulation 17.2). 

17.2 (1) All Unions, Associations and their recognised Tournament Organisers have an obligation to put in place and implement disciplinary regulations within their jurisdictions and in respect of their tournaments and Matches which incorporate fully the Core Principles.

(4) In the event of non-compliance or improper implementation of this Regulation by any Union or Association, the IRB may undertake such action as it considers reasonable and appropriate in the circumstances in order to address the matter with the Union or Association. Where a Rugby Body does not comply with or fails to properly implement this Regulation, the Disciplinary Officer or the Board may require the relevant Union(s) or Association to undertake appropriate investigations and/or proceedings to remedy the matter. In any event the IRB shall have the authority to ensure the proper implementation of this Regulation 17 within the Game.

It should be noted that the IRB has already stepped in this season to ensure the proper implementation of Regulation 17 - the Adam Thomson case. The Justice4 case involving the Springbok management and team and their armbands would be another example.

Regulation 17.19.10 says:

on sanctions and suspensions imposed on Players under IRB Regulation 17 shall:... (b) not allow Players to avoid the full consequences of their actions by, for example, playing in Matches prior to the commencement of their suspension, or playing in Matches during a break in the suspension and/or serving their suspension during a period of inconsequential pre-season and/or so-called friendly Matches [Emphasis added]
Regulation 17.19.11 says:

When imposing suspensions on Players under Regulation 17 Disciplinary Committees or Judicial Officers shall comply with the requirements set out in Regulation 17.19.10 above. In doing so Disciplinary Committees or Judicial Officers:... 

(b)may defer the commencement of a suspension provided that the Player is not scheduled to play (and will not be permitted to play) prior to the commencement of the suspension; [Emphasis added]

So, there is no doubt whatsoever that the Committee have the power and right to defer the start of a suspension if a player is not scheduled or permitted to play.

So far as the question of appeals go, Declan Kidney was right to be cautious on this: Regulation 17.19.24 says

17.24.1 A Player Ordered Off or cited by a Citing Commissioner may not take part or be selected for any further Match until his case has been dealt with by a Disciplinary Committee or Judicial Officer.
17.24.2 Without in any way limiting the effect of Clause 17.19.11, a Player that is subject to an Ordering Off or citing in a domestic or any other Match is not entitled to play the Game (or any form thereof) or be involved in any on-field Match day activities anywhere in the world until his case has been finally resolved.
17.24.3 A suspended Player who elects to appeal may not take part or be selected for any further Match until his case has been dealt with by an Appeal Committee or Appeal Officer or the expiry of his suspension whichever occurs earlier. [Emphasis added]
So, when Jonno Gibbes said that "There are complications for others, maybe, but he's available for us", one might be permitted to raise a quizzical eyebrow at this juncture. Given that the IRB have already appealed one sentence for stamping this season, it would have been rash in the extreme for Leinster to attract the ire of the IRB and 6N by trying to play him - especially when their second row, Tom Denton, is before a disciplinary hearing today, and when they have a serious prospect at loosehead in McGrath who is well worth another run-out. Thankfully, and to their credit, once the confusion was cleared up, wiser counsels prevailed.

So far as legal advice, the Committee have acted within their powers under the Regulations, and the Regulations giving them those powers are set out above. They have acted intra vires, to use the technical term. Given the reluctance of the Courts to get involved with the supervisory jurisdiction even when a sporting body has acted ultra vires which has been discussed before on this blog, it's hard to see how one could persuade a Court to step in when you're seeking to challenge a decision that the decision maker was entitled to make. This is all the more the case when there's an Appeal open to the player as a perfectly satisfactory alternative remedy.

Of course, there is always the risk at Appeal that the sentence could be increased, and it does raise the question of the awareness of changes in the disciplinary regulations. On which note, we might leave this for further discussion when the decision becomes available.

Edit: updated to reflect the team announcement.

Tuesday, February 12, 2013

Minimum Bans - Webb and O'Gara.

In this post, I want to contrast two one-week bans for players using the boot on an opponent, as much to highlight the importance of publishing decisions as anything else.

In what was, even by the high standards of that fixture, a remarkably bad-tempered West Wales derby between the Ospreys and the Scarlets, Rhys Webb, the replacement Ospreys scrum-half, stamped several times on a Scarlets player. You can see it HERE. Although missed at the time, it was cited later, and he received a one week ban.

The minimum ban for stamping is two weeks. Webb got less than the minimum. And the thing is, because the RaboPro12 does not publish decisions, we have no idea if the minimum ban regulation was properly taken into consideration, what was argued, whether they were just plain wrong in breaking the IRB Regulation in going below the minimum - we don't know. It's a black box, and remarkably unsatisfactory, not least for those in other teams who want to know where the boundaries of rucking as opposed to stamping are.

By contrast, the ERC is meticulous about publishing. So, let us contrast the opaque Pro12 with the transparent HEC. About seventy minutes into the Edinburgh-Munster game in round five of the HEC, Sean Cox of Edinburgh followed through and clipped Ronan O'Gara of Munster with a lateish shoulder. O'Gara promptly became furious, followed Cox, and threw a boot at him, bringing him down. You can see it HERE. O'Gara was cited for it, and received a one-week ban - less than the minimum ban for this offence.

I should, at the outset, repeat that I am an unabashed Munster supporter; at matches, probably unabashed at volume levels comparable with a 747 on takeoff. I have been a fan of O'Gara since he was playing for PBC, then UCC, and on up the rankings; for some 20 years now, the fortunes of teams I support have depended on him, and he has delivered time and again. Therefore, I am fully aware that I may well not be coldly objective on this, despite my best efforts; but the decision raises some very interesting issues, so it has to be discussed, warts on the discussion and all.

You  can read the decision, by his Honour Judge Jeff Blackett, HERE. It's short, but very interesting. First, it accepts, in line with the Martyn Williams decision, that late shots, people swinging off you or those out to get a response can be provocation. It will not excuse retaliation - the learned judge makes that very clear at the end of the decision - but it will be taken into account. It's clear that this is an emerging viewpoint, and contrasting it with the approach taken by the same judge in O'Connell makes for a neat counterpoint.

Secondly, it deals with the question of what is "wholly disproportionate" under the new Regulation 17; indeed, it's the key issue in the decision, as from the outset, that was the plea made, that the minimum ban would be wholly disproportionate. The disciplinary officer submitted that this should be considered solely in light of on-pitch events. In that submission, he was, I would say, wrong; to go below the minimum, there is a two-part test, involving it being wholly disproportionate but also that there are compelling off-pitch reasons. In other words, it is not limited solely to what happens or happened on the pitch.

The learned judge started at the minimum ban of four weeks; so far, so good. He then reduced it by 50%, examined the remaining two weeks, felt it would be wholly disproportionate and reduced it to one week. This, I would say, was an error, because it was back to front. The maximum mitigation is 50% of the relevant entry point, but even then one cannot go below the minimum ban unless wholly disproportionate, at which point, if it is wholly disproportionate, one is at large on sentencing. The learned judge put the cart before the horse on this; it should have been:

Minimum - wholly disproportionate, Y/N? If Y, mitigation up to 100%, if N, minimum.

Instead, it was:

Minimum - Mitigation of 50% - Wholly disproportionate, Y/N? Y, so mitigation.

It ended up at the same result - if the learned judge felt that a sentence over 1 week was wholly disproportionate, gave his reasons and was not irrational, that's what the sentence would have been through either route - but through the wrong route. It is, however, a good example of what I've described as an error within jurisdiction; it was wrong, but it made no odds, so it would not be upset.

The main thing is, it sets out the reasons, and one can see them, and get guidance as to what may or may not be wholly disproportionate in the future. The contrast with the Pro12 could not be clearer.

There is no reason not to publish. If a decision is right, then let people see it, let them read it, and let them learn from the precedent. The ERC's success in largely stamping out tip-tackles in this year's HEC should be a testament to just how effective that can be.

Speaking of stamping out, there'll be another decision on the subject coming out of the Ireland-England Six Nations game. Of which more in due course...