Faan Rautenbach citing - part one.

Faan Rautenbach of London Irish has been cited for allegedly stamping on David Wallace of Munster in the game between the two teams at Thomond Park last Saturday in the last round of the Heineken Cup (HEC).


I won't comment on the incident - I was at the game, as it happens - but what's interesting is how the hearing is to be held.


It's to be held, today, by conference call. 


Now, in the case of Richie Rees of Cardiff Blues, who was suspended for contact with the eye area of Dylan Hartley of Northampton Saints, Hartley gave his evidence by telephone - and was cross-examined - rather than in person. This would appear to be a step further. And it raises some interesting (dread word) issues.


Disciplinary hearings in the competitions run by European Rugby Cup (ERC) are subject to the Regulations of the International Rugby Board (IRB) - in this case, Regulation 17 (it should be noted that if there are any changes to this that the ERC have put in place, they aren't in the general public domain). And that sets out how hearings are supposed to be carried out.


Now, it should be noted at the outset that the Disciplinary Officer at a hearing can adjust the procedure at the hearing from that set out in Regulation 17.13 - but he or she must attempt to keep it as near to that procedure as possible. 


As regards conference calls and that procedure, there seems to be a rather large gap.

David Wallace is in the Irish camp at the moment in the University of Limerick; Faan Rautenbach in London; the Disciplinary Officer in Wales. All are easily accessible one to the other by flights or, indeed, the M4 motorway. 


Under Regulation 17, the player cited is entitled - in fact, supposed - to attend in person (Regulation 17.9.8 (c)). It can be heard in absentia, but the Disciplinary Officer would seem to have to at least try to make sure the player is there (Regulation 17.12.3).

The Best Evidence rule applies - Regulation 17.13.6 - and that would seem to mean direct, viva voce evidence wherever humanly possible.

Moreover, under Regulation 17.18.4, hearings are supposed to be at the match venue, and appeals in the country where it originated. So, it should be in Thomond Park, or Limerick, or at least (because I doubt anyone would quibble) in the ERC offices in Dublin, as is very often the case.

The only references to appearing by conference call are seem to be in relation to the Citing Commissioner himself - 17.9.9 - and to referees in a sending off case (which doesn't apply here). There's no reference to witness attending by video conferencing, as there is for referees in a sending off case, or the Citing Commissioner. There's a reference to witnesses attending by direction, in person - Regulation 17.13.9. But the specific references to attending by video conference or conference call you have for others are not there in relation to witnesses.

On which basis, going on the text of Regulation 17, it looks very like witnesses and the accused have to attend in person under the Regulation.


Yet, in this case, as in the Rees/Hartley incident - they aren't. And while convenience is a fine thing, one would have to question why the Regulations are being ignored. 


And that, let it be noted, is assuming that the player cited has no complaints about this procedure. Because, as we shall see later, if the player does, it could leave the ERC open to challenge.

New Disciplinary System for the Magner's League

It's been announced that there will be a new, independent, disciplinary system for the Magner's League (ML).

It's long overdue. The in-house system used to date has long been criticised for lack of transparency, for lack of consistency in the citing and sentences, and for the fact that - not to put a tooth in it - no-one knows why any decision is reached because there aren't proper decisions published.

And that is even before one gets to the fact that an away player who was cited would be up in front of a committee from the union of the player or players he was alleged to have fouled. That would be an arguable breach of fair procedure in terms of the nemo iudex in causa sua rule, and certainly something that, were one to try to raise the question of an appearance of bias to an objective observer, would need very careful consideration as regards how one would defend it.

As a result, it's somewhat of a miracle that an opaque, inconsistent, and arguably biased system hasn't yet been before the Courts, given what's at stake - for example, results, livelihoods, and international and Lions selection.

But there can be no question that, if it's to be reformed, it needs to be done properly. A good model to take would be the disciplinary system used by the Rugby Football Union (RFU) in England. There is a clear, unified system, a very clear system of precedents that give certainty to the player and the decision maker alike, and decisions are published - which, at the very least, means decisions have to be justified and able to stand up to scrutiny. One could do a lot worse than adapt this system for the ML.

One thing that would be important, however, is that it be designed to achieve finality and keep the Courts out of things. In that regard, rugby could do a LOT worse than follow the lead of the Gaelic Athletic Association (GAA).

The GAA's Dispute Resolution Authority (DRA) - set up in response to a rash of court challenges by players aggrieved at the GAA's disciplinary system - is an arbitration. That means that, come what may, both parties are bound by the outcome, and that so far from running to the Courts to challenge a decision, the Courts will - unless in truly exceptional circumstances - enforce that decision. The net result is that the court challenges that were a feature of GAA discipline have now vanished. This certainty, and enforceability across national boundaries, would be enormously attractive for a tournament that plays across five different legal systems (Ireland, Northern Ireland, England and Wales, Scotland and Italy).

Even better; the Courts in UK jurisdictions (all three of which would be involved in the ML to some extent) have held that they will not bring the European Convention on Human Rights issues to bear on arbitration - the actual case in question involving arbitration of a sport-related issue. This would deal with the fears of Dr. Jack Anderson which he recently raised in the Irish Times.

So, if the ML wants to do things right, a good place to start would be to copy the English system in a version of the DRA. Build a better wheel from the ideas of others, instead of trying to reinvent it from scratch.

The game-plan.

The disciplinary system in rugby at the moment is a mess. Everyone agrees that.

There's no consistency in disciplinary sentences, no consistency in interpretation, questions about whether or not the sentences handed down by the various tribunals will even be enforced; and that's when you get copies of the decisions, which, in some cases, appear from behind the curtain like the voice of the Wizard of Oz, with no inkling as to the workings behind the veil.

Outside of the disciplinary system, there are questions about legal liability on the pitch, what risks referees face, what risks players face from issues like concussion and big-hit scrummaging, and what the legal effect of those are.

This is where rugby intersects with the law. That intersection is what this blog is about; examining issues that crop up in the game from a legal perspective, especially the more interesting ones.

Given that "interesting" from a lawyer's point of view usually means there's a big problem of some kind for someone else, I would hope that there would be a big gap between posts; unfortunately, experience over the last few years would seem to suggest that might be a bit over-optimistic.

I'll also be adding some bits I've been working on which, while not perhaps currently in the headlines, have been bubbling under as issues in the game and which I suspect may come to the boil in the near future.

Hope you enjoy it; and any feedback would be more than welcome.

Do props have human rights?

Dr. Jack Anderson, in an article in the Irish Times last Monday, was talking about Irish rugby as being the only real professional sport in Ireland, and went on to discuss issues that raised about sports law in general.

One thing in particular stood out for me; his statement that “if players commit playing offences their hearings will be heard by tribunals that seek to adhere to the principles of a fair trial ineherent in Article 6 of the European Convention on Human Rights”  (ECHR). Because, as far as that goes, the answer is – it depends.

Now. It should be remembered at this point that rugby in Ireland is odd. It is one sport, run under one body, across two jurisdictions. Moreover, Irish law – as in the law of the Republic of Ireland – has a lot more relevance across world rugby because the International Rugby Board (IRB) and the European Rugby Cup (ERC) are both run out of the same building on Stephen’s Green by Irish-registered companies.

This has a large effect. Participation agreements for the various tournaments run by those bodies would be signed with an Irish company. Unless there is anything to the contrary, one would presume Irish law rules those contracts, and, as a result, the disciplinary systems under those contracts would also be subject to Irish law.

That is where the interesting part comes in. Because, under the European Convention on Human Rights Act, 2003, the ECHR only applies to state bodies – of which a rugby disciplinary tribunal most certainly is not one. So, the standard of fair procedure in three of the Irish provinces isn’t Article 6 of the ECHR.

But it does affect disciplinary tribunals in Northern Ireland. You can contract out of it, but it does affect how the disciplinary tribunal is to be run. So, you could have different standards of fairness, and different possibilities for challenging a decision, for a citing hearing, with the same decision makers, between exactly the same teams, subject to the same union, depending on which team is playing away.

This would not be the first time this anomaly has cropped up; up until last year, if a hearing of the Gaelic Athletic Association’s Dispute Resolution Authority (DRA) involved a player from any of the six counties in Northern Ireland, it was an international arbitration and subject to different laws as well. However, just because it’s happened before, doesn’t mean it’s a good idea to let it happen again.

If the IRFU have not already done so, they should simply state, as part of the participation agreement in any competition running across the border which they run, which law applies. A fair disciplinary system needs consistency and certainty; it can’t have it if different law applies in one league.

Of course, the question as to what might be unfair in the current world of rugby disciplinary tribunals is another days work altogether. In fact, probably several weeks worth. But we’ll come to that in good time.