Liability of amateur referees - Australia.

A physiotherapist in Australia is suing the New South Wales Rugby Union and a referee for injuries sustained when players ran into her.

Alison Donnan, a physiotherapist with Manly, ran onto the pitch (without being invited on by the referee) to tend an injured player. In the meantime, a free kick was taken, and in the ensuing play, players ran into her and she sustained injuries including three broken vertebrae. She is now suing the NSWRU and the referee for those injuries. You can read more HERE.

The injuries are real, and I have no doubt as debilitating as made out. But the question is, liability for those injuries. As the article makes clear issues of contributory negligence (run into the middle of ongoing play, you take your own chances) and vicarious liability are very much in issue (and given Agar v. Hyde was also an Australian case, it's one whose progress I'll be watching with interest). My interest is piqued not just by this but as much by wondering about whether the Irish legislation, if transposed to Australia, would usefully cover the point.

I wrote about that legislation HERE. Manly and Penrith being (as far as I am aware, and subject to correction) semi-pro, it seems the referee is also amateur (were he an employee of the NSWRU, then then vicarious liability would not be in issue). If similar legislation were in place in Australia, then normal negligence would not be enough to attract liability; it would need gross negligence, a much higher threshold to cross. If not now, it may well be something to which NSW and other Australian states may direct their minds in future.

It's a case that I will return to as it develops, because it could be a very interesting pointer to how liability of referees will develop in the Common Law world.

H/T to Greenandgoldrugby.com for first bringing this to my notice.

Dylan Hartley - Red Card.

In a game where the referee's word is final, and the referee's interpretation can decide matches, you have to wonder what's to be gained by calling him a f***ing cheat.

But that's just what Dylan Hartley did to Wayne Barnes in the Aviva Premiership final, gaining himself a red card, probably costing his team the game, and definitely costing himself a Lions trip with the ban of 11 weeks that followed.

There has been plenty written in this last week, in the run-up to the rugby-in-a-sauna first Lions game in Hong Kong, on Hartley's travails. Having written on deterrence of serial offenders before - HERE - a lot of it has already been covered. What I want to do in this post is look at three aspects of the decision, which you can read HERE. First, is the conduct at the hearing and how that was treated by the Tribunal; second in the light of that previous post, is deterrence; and third, which will link into the next post on Schalk Brit's embarrassment on creasing his Saracens team-mate Andy Farrell in Hong Kong, is the status of pre-season games for suspensions.

Hartley didn't deny saying the words, "f**king cheat"; he claimed he had simply said "f**king cheat", not "you f**king cheat", and that it was comment on the play of Leicester hooker Tom Youngs for an early drive (in passing, most rugby fans would acknowledge for Northampton to comment on an early drive from anyone is, in the immortal phrase from Apocalypse Now, like handing out speeding tickets at the Indy 500). Wayne Barnes was under absolutely no doubt that the comment was aimed at him by Hartley, whom he had warned about his conduct and comments as captain some two minutes previously.

Now, even if directed at Youngs, it's one of those comments that, when you've been warned, you might think, but shouldn't say. You certainly shouldn't say it looking at the ref, because that's asking for trouble. But the account given, in the words of paragraph 10 of the decision, "changed subtly"; at the hearing, Hartley there claimed not that he was speaking to Youngs, but that he was speaking to his loosehead prop about Youngs. The Tribunal was trenchant on this: "in our view, this is not a credible explanation". When one allows for the subtle manner in which judges with the experience of His Honour Judge Jeff Blackett couch matters, it's pretty damning: a comment like "the Player, on the other hand, has every reason to give an alternative explanation" is scathing, especially followed by:

We observed that this explanation changed subtly, no doubt after after he had examined the DVD footage showing that his eyes were not looking downwards.

In layman's terms, this is basically to the effect of: you're making this up. What is interesting in this light is the finding on sentence, where the Tribunal held:

By pleading not guilty the Player has not demonstrated any remorse nor can he claim any benefit from any of the other matters listed at mitigating factors. His conduct at the hearing was, however, impeccable – and that does deserve some credit because the Player was under enormous emotional pressure facing, as he was, a suspension which is likely to lead to him missing the Lions tour to Australia. That credit is one week.

This strongly suggests that when looking at the conduct at the Tribunal element of mitigation, what counts is not what one says, but how one says it. This would be to align rugby citing hearings very strongly indeed with an adversarial model of hearing, like a Common Law trial, and that's something to which I hope to return in the future. It certainly does not give any disincentive to running somewhat stretched cases as defences.

On which note of deterrence, the contrast between Hartley's previous two citings and this hearing is notable. His solicitor, Max Duthie - who presented the ERC case against Hartley in December when he was cited for striking Rory Best - made a plea in mitigation:

However, Mr Duthie suggested that the Player was not an offender against the laws of the game within the meaning of RFU Regulation 19 and there should be no increase in sanction from the entry point. 

This was the manner in which Hartley had been treated at his previous two citings. It didn't wash this time; he was treated as an offender, with brisk despatch.

We considered adding to that entry point on the basis that he is an offender of the laws of the Game. However, we determined that the positive aspects of his character should offset any increase.

It would have to be said that when a player has just been found guilty of his third red card-worthy offence in 14 months, it would fly in the face of reason to regard him in any other light.

Thirly, on the question of what matches are to count for suspensions, there was an interesting discussion in the decision about the Lions, in that players can frequently play more than one game a week and the Lions tour agreement requires citing hearings to reflect this. Although the Lions cover six weeks, the hearing found that "the Player may have expected to play in six of the matches and we have assumed that he might also be part of the match day squad for two other matches. This period, therefore, represents 8 of the 11 weeks of the suspension imposed." This is one that at first glance seems too light, but on reflection makes absolute sense. The aim of the Regulation on minimum bans is to reflect real bans from playing rugby. When a player, as on the Lions, is playing almost non-stop, then a shorter ban in time can actually be a much more severe ban in terms of rugby lost than a nominally longer one in time. It's sensible, and just; and some flexibility in a system is needed, a subject to which I intend to return in the future.

The interesting thing is that Northampton's pre-season games are assumed, automatically, to be meaningful ones which should count towards the sentence. This may well be the case, but it is that assumption to which I intend to turn in the post on Schalk Brits.

Legal Liability and Scrums - Part II

Back in October of last year, I wrote Part I of this. In it, I pointed out that the failure on the part of the IRB to restrict big-hit scrummaging, crooked feeds and pushing before the ball was not just dangerous, not just opening up the IRB to legal liability, but was terrible, terrible rugby. Brian Moore and others have been beating the same drum; Moore, in particular, deserves enormous credit for a relentless, focussed insistence that the Laws be applied for the sake of safety and of scrummaging.

In a development as unexpected as it is delightful, it looks like it's all had an effect. The IRB have moved to get rid of big-hit scrummaging. You can read the announcement HERE, and I recommend it as a very interesting piece, especially in the small details it contains; in essence, the engage goes to crouch, bind, set. Since props have to bind before the engage, refs can now see that they are binding up. Since they have to be so much closer together before the set to be able to bind, it means that the big hit is effectively now neutralised (25% less, on the studies). You can see how it works in practice on the video in THIS piece from Stuff.co.nz.

No big hit means a more stable engage; and all offences of not binding up now become free kick offences, which means that there's no benefit to trying to gull the ref by breaking an opponent's (or your own) bind. The most important part is that the ball cannot go in before the scrum is square and stationary, and most go in straight; in other words, trying to get over the midline and knock the other scrum back on the engage is just so much wasted effort, because you'll be brought back to the mark.

If enforced - and that's an "if" the size of Brad Thorn - it is a proportionate, sensible response that has been shown to address the mischief of dangerous impacts causing bad rugby. It is a reasonable step taken to reduce the risk faced in a scrum to a reasonable one accepted by all in the course of a physical game - and that's all that the law asks.

In other words, it is a perfect example of how you can address problems of liability and player safety while making the game better. And that is good day's work all round.

I repeat, we will have to see if it's enforced, and consistently enforced: there have been false dawns before. But, even as a first step, it's a pleasure to be able to say: well done, the IRB.

Harlequins v. Munster - Tickets

So, off we went to the Stoop, more nervous than a brass monkey when the temperature drops below freezing.

Instead, it turned out to be a marvellous day; early spring sunshine, a great game in a great rugby ground (the pitch cut so close it would probably have taken spin from 60 minutes on), and the Harlequins supporters doing themselves and their club proud. It was everything European rugby should be about.

Including, of course, the now-traditional Snaffling of the Tickets by Munster fans; the stadium would have been about 45% Munster red, 20% more than the allocation. It led to considerable questioning afterwards "how the hell did they get all those tickets?". Harlequins themselves announced that they were going to be checking up what happened, to see if any season ticket holders had sold their tickets on to Munster supporters.

It would be interesting to see how far they go. Because - and this is where the law element comes in - Harlequins' Twickenham neighbours, the RFU, have gone to Court to obtain details of people reselling tickets - and won.

The case was about the resale of tickets for internationals above face value on a website called Viagogo. The RFU took umbrage at tickets being touted, and took action to stop it (as it has before) seeking an order from the Courts forcing Viagogo to give the information about who was selling these tickets on their site - what's known as a Norwich Pharmacal order.

The RFU won in the High Court, in the Court of Appeal, and on appeal to the UK Supreme Court. You can read the decision HERE - it's an interesting one on the balance between free speech and privacy, and trying to do right by the ordinary fans who can be priced out of it by touts, and Lord Kerr's sympathy for the game is obvious - but the key is that the RFU's interest in preventing wrongful sale of its tickets or breach of the tickets under which the conditions under which tickets sold was not disproportionate, and it was reasonable to oblige Viagogo to hand over the information.

So, what if Harlequins were to look at Munsterfans.com, which, when it comes to organising getting extra tickets for Munster fans for games, and getting to them, may be likened to crowd-sourcing Operation Bagration? There's a very, very strong ban on over-priced selling - anyone trying it will be banned from the site in short order - but would it be proportionate for Harlequins to seek information about who sold Munster fans the extra tickets? Would it be excessive, if it was just the same as someone with a spare swapping it with an opposition fan - something which everyone in rugby is familiar with and cherishes? Would it be classed as a fishing expedition?

My gut feeling is  that Harlequins - whose hospitality won them nothing but praise from Munster - have far too much sense to take it that far. In fact, they may well find that many of the season ticket holders were Munster expats who reverted coming to home colours for one game - and that their hospitality may well bring in more such season ticket holders to a great club for the coming seasons. But it does mean that when looking at your ticket it might, just might, sometimes be worth reading the terms on the back.

Edited to update some links.

Concussion - New Rules, Part 2

Part One was written just after the Ireland-France match. In that game, Brian O'Driscoll and Luke Marshall both got concussed. Marshall then got concussed again in the Italy-Ireland game.

Given the track record of what happens when something is noted on this blog, I'm becoming very tempted to pay special attention to Harlequins in the first week of April, running up the game against Munster in the Stoop.

However, glib comments aside, concussion is back in the news. And a particular feature of the discussion has been people asking how O'Driscoll or Marshall were left play again.

It's that feature I want to touch on in this post, and look at the idea of contributory negligence.

There's been a fair bit on this blog about the duty of care owed by officials and coaches to players, a duty not to expose them to a foreseeable risk of harm. There's also a duty on players not to expose themselves.

This isn't about ducking out of tackles or not playing the game as hard as possible; far from it. The idea that a brain injury, which is what concussion is, is somehow not a "real" injury, or that it's somehow an indication of weakness if you have put yourself in a place where you are hit so hard your brain function is affected, is one that bedevils this area and one that needs to be removed from rugby as fast as possible. Praising a player who keeps going when clearly concussed is nonsense; the player might be an animal, but if playing concussed, then he's doing his best to turn himself into a vegetable.

Players will be injured playing the game, and that is accepted; as one case put it, anyone playing must accept their fair share of bruises, injuries and minor fractures. We all do, and it's well worth it to play the game. But players have a duty to be honest about those injuries, and not to expose themselves to the risk of further injury. If they do, then they have, of their own choice, placed themselves in a situation where they have voluntarily assumed a foreseeable risk of harm to themselves. Like driving a car without a seatbelt, they have chosen to make things more dangerous for themselves. As a result, they are at least partly to blame if they do get hurt, and must take the consequences.

This, with concussion, is where the real issue comes in. The Graduated Return to Play Protocol - the means whereby it is seen if players can safely return to the game - requires players to be symptom-free at each stage. The problem is, so many of the symptoms of concussion, for example feeling "fuzzy", or headaches, are ones that don't have external, objective symptoms; if someone chooses to keep quiet about them, they won't turn up. The same is true of baseline psychometric tests; if one choses, one can "game" the test, slowing down one's reactions so that if tested later, one can always match or beat the baseline.

The problem is, of course, that in so doing, a player who wants to play and who covers up his symptoms exposes himself to a clear risk of not just the same injury, but a worse one by being concussed again while still symptomatic. That it's foreseeable is, to be honest, now a question of stating the obvious; when it's been in the news, when the RFU announces in an injury survey released today that concussion is now the most common form of match injury in elite rugby in England and one whose incidence is not dropping, then anyone in the game is well aware that multiple concussions are a major risk.

So, then, what does this mean in practice? Well, let's return to that analogy with the seatbelt. If you are in a road-traffic accident, suffer injury because you're not wearing a seatbelt, and sue the other driver for causing you the injury, the other driver will point out that a lot, if not all, of your injury is down to your own negligence in not wearing your seatbelt. A judge hearing your case will then knock off a considerable amount of any damages you might get - 25-50% would not be uncommon - because so much of it is your fault.

In like fashion, a player who isn't honest with the team doctor, says he's asymptomatic when he's not and plays when he's still fuzzy - something O'Driscoll stated on the Off The Ball radio show that he has done - would be contributing to any subsequent injury he may suffer as a result of concussion. The IRB itself states as a basic principle in its concussion management guidelines: Players must be honest with themselves and medical staff for their protection. I stress we don't know if it happened in these cases, but an interesting comparison, in the same 13 jersey, is with Conrad Smith - a practising solicitor - who was recently suspected of concussion, left the pitch after failing a pitch-side assessment and, while frustrated, accepted entirely that it was right and necessary that this should be the case. 

The problem with concussion, of course, is that it can take years, even decades for the effects of multiple concussions, suffered when the player was hiding previous ones, to show up. By which stage, it's too late for the player.

Therefore, it's clear that there is a duty on coaches and team doctors not to put players unnecessarily in harm's way; but if they are making their assessments honestly, capably, following the GRTP and based on the information given to them by the player as to what his or her symptoms are, can it reasonably be said they have failed in that duty? And can not the finger of blame for the injuries sustained outside the framework aimed to protect players be pointed at the player who wasn't honest about his symptoms?

And all this, let us remember, when you still have the unanswerable question: if you train so hard to be able to make the right decisions, not make mistakes and not leave down your teammates, how are you helping them when you can't think straight at all?

It's time for honesty. Concussion is a brain injury, it is a risk in the game, and players need to be honest about it - with their doctors, with their teammates and with themselves.

Concussion - New Rules

A very short post, as much as a heads-up as anything else (if I might be pardoned the phrase) that the new Zurich Consensus has been published.

You can read it HERE.

This is now the standard to be followed in dealing with concussion. The Pocket SCAT2 has been tweaked, and is now the Pocket Concussion Recognition Tool, the CRT.

I'll go through it in more detail, teasing out the details, but, given the manner in which we saw both Ireland's centres concussed in the game against France this weekend just gone, concussion in rugby is once again - alas - a live issue. And it is one on which knowledge is not so much power as safety. Hence my appeal to anyone reading this to please read the new Zurich Consensus, familiarise yourself with it and apply it, every single time concussion crops up in a game.

Transfer Fees

The day can't be far off when you could play an over-30's version of the Rugby Championship in France. It's not quite that the T14 is the Dunrucking Retirement Home for Aged Southern Hemisphere Rugby Players, but, dear Lord, how the likes of Toulon are buying up players.

Of course, one of the latest, and one of the most expensive, acquisitions is Jonathan Sexton, moving to Racing Metro for the reported figure of €600,000 per annum. The strip-mining of Welsh talent has reached a pitch that is uncomfortably reminiscent of how League denuded Wales of players in the late '80s and early '90s. And still it continues, with Rocky Elsom now going to Toulon. There is a lot of money in French rugby, as THIS infographic from Green & Gold Rugby shows.

It is, in many respects, very like the manner in which the English Premiership in soccer has cornered the market. One must also wonder about the sustainability of it all, even given the strict financial rules that the Top14 imposes (and it must be said, the T14 is very transparent on this).

It's in this light that recent moves by the European Commission are interesting. Sport is an area over which the European Union has some oversight - it's a European competence, in the jargon - and decisions such as Bosman and Kolpak highlight this (on which this blog has touched in the past). Some of the work on the subject is excellent - I thoroughly recommend the European Parliament's document on the European dimension in sport, drawn up by the man who opened up Croke Park to rugby games which you can read HERE (it's long, but genuinely worth taking the time to read and reread at leisure). - and when the Commission turns its attention to sport and the insane money sloshing around some sports, then it's worth paying attention.

You can read the original document HERE and a good precis of it from the Guardian HERE. In essence; money, and beserk inflation of transfer fees, is destroying competition in European football and creating a de-facto closed shop. It has a raft of concrete proposals, largely aimed at rebalancing the effect of this closed shop and going some way to addressing the issues raised in the original Bosman case about protecting player development. Even the Premiership in soccer is now starting to take these issues of sustainability seriously as you can see in THIS piece from the Guardian (although the numbers involved are still eye-watering).

It will, of course, also affect rugby. And it's interesting to reflect on how this would work. Already, the president of Aviron Bayonnais has been speaking about a similar division between the haves and have-nots developing in the T14 to the extent of floating the idea of a union between the two Basque rivals to stay competitive (and to get an idea of that rivalry, Google "Imanol Harinordoquy father"). and we are now in the position where French clubs are outbidding national unions who develop the players. It has an effect on French rugby, too; while the T14 isooming, French coach Philippe Saint-André has been in the press bemoaning the dearth of French out-halves, and - in a sentence I never thought I would see - France are currently bottom of the Six Nations table, winless, after three games (although grim familarity with what it's like supporting Irish rugby leads me to just know that come the game against Ireland, they'll turn back into the sort of French team that can cut the All Blacks to ribbons).

It also seems to be affecting the international game. The issue of player release for the Lions this summer has been a touchy subject, and the (French) President of the IRB, Bernard Lapasset has been speaking on the subject of how money is now causing problems for the test game and player release - HERE. It is interesting to note that the European Parliament document referred to above also notes the problem and emphasises clubs should release players for tests.

It has not yet reached the point where legislation on the subject has come in. But it is as well to flag the issue, because it is one of the major factors in rugby as a professional game, and it is not going to go away soon. And the steps taken to deal with the dysfunctional elements in other sports will certainly hit rugby, too. Best we know what's coming down the tracks before it hits us.