Faan Rautenbach citing - part three.

In a previous post, I dealt with what would appear inconsistencies between the way that Faan Rautenbach's citing hearing was dealt with and the procedures set out in the International Rugby Board (IRB's) Regulation 17 covering these citings. I mentioned at that point that there exist even if the player is fine with those changes, which, as it turned out, Rautenbach was.

Now, if the player is fine with those changes; if he agrees to them without demur at the start of the hearing, as set out in Regulation 17 (to be precise, Regulation ), then the problem to a large extent goes away. The player, presumably aware of the issue, has agreed to it; and from that point on, chances are any Court asked to look at that the fairness of the procedures would - given the general and frequently-stated reluctance of the Courts to get involved in issues of sporting discipline - more than likely decide that, if you were happy with the procedure before you got a result you didn't like, then it may be a bit late to change your mind afterwards. And I think one can see a certain common sense in that, even if the hearing was conducted over the phone across three different countries.

The problem arises where the player - or his representatives - raise an issue about the procedure. This has happened. To give examples, there are the decisions in . So, let's say the player, in a case where he has been told the main witness against him will be giving evidence by video, says that he wants the person making the allegations there, in person, so he can be cross-examined.

What happens then?

Well, one of two things. The first is that the Disciplinary Officer agrees. At that point, the problem goes away; the hearing will almost certainly be adjourned, but the problem has been solved.

The second is that the Disciplinary Officer refuses, and the hearing goes ahead. And then the next question is the immortal one from A Question of Sport - what happens next?

Well, at that point, you have to ask what constitutes a fair hearing. We'll work on the assumption that, the ERC being based in Dublin and being an Irish-registered company, that it works under Irish law and the IRB regulations - albeit there is a note at the end of the decision which seems to suggest that the ERC works under its own regulations, not generally available for the public to look at.

For a professional rugby player, a citing hearing is a disciplinary hearing affecting his work. He is entitled to a fair hearing if he is to be suspended. Even if he is not directly party himself to contract between his club or province and the ERC, he is treated as such, and it entitled to a fair hearing. Those rights in a fair hearing include: being able to challenge witnesses, face to face; and that the person making the decision will follow the proceedings laid down (it's only fair to say at this point that the evidence of David Wallace was not accepted in the decision; but, since he was saying that as far as he was concerned, it was nothing, Faan Rautenbach couldn't complain on that front).

Those rights are long-since settled; in Irish law, it's usually referred to as the short-hand of Consitutional justice, or In Re Haughey rights, after the case where they were properly laid out. But a case that would be really relevant is one called And the crux of that is; is not to be set aside, just because it causes logistical or administrative difficulties.

So, just because it may be tricky following Regulation 17 and giving the player cited the right to have the   witness there to be asked the questions is not an excuse should the player demand that right.

Of course, that just means that a Disciplinary Officer who refuses to do so is wrong at law. Once it gets to this point, the question exercising a player's mind would be - what can be done about ?

Referees, Bias and the Joy of Silence.

There was a fair-sized controversy after the Italy-Ireland game over the refereeing of the scrums by Roman Poite.

Now, let me state at the outset that I am no fan of Roman Poite as a referee. In point of fact, I can't stand him as a referee, and can never understand why he is given games ahead of his countryman, the far-superior Jerome Garcés. But, that said, Ireland's scrum problems were largely of our own making.

But the issue arose because, before the game, the Italian coach, Nick Mallett, stated Poite had sent a letter to the Italians apologising for his refereeing of them the previous season. The Irish management were distinctly unhappy with this, not surprisingly. Poite denies the letter was ever sent. Someone certainly has questions to answer.

The issue this brings up is what lawyers call objective bias. Referees are - the reptilian tans of one or two aside - human. They will make mistakes, but no-one doubts that they are doing their best (what their best is the subject for another day). They do not go out to do one team down. That sort of bias, what most people would call bias, is in legal terms called subjective bias.

There is, however, another kind, objective bias. This is where, even though the person making a decision is not actually biased, a fair-minded person looking objectively at it would perceive a real risk of bias. It's linked with the idea that justice must not just be done, but be seen to be done. So, there has been a case in Ireland in the recent past where the judge recused himself from deciding a case because he had made a decision in an interlocutory part of the case and did not want any perception that he might have made his mind up on the case already.

Now, if Poite had sent a letter to a team apologising for how he reffed a game in the past, their opponents might well feel hard done by if they suffered in that same phase of the game against that team; but it would be stretching it a bit too far to say that a fair observer would feel there was a real risk of bias in how he would ref the game.

But what if a referee had called a team a set of cheats at that phase, or said that they were no good, and therefore to blame, for anything happening there?

Robbie Deans, coach of Australia, felt hard-done by in this way back in November of last year, and stated openly that referees had a down on Australia, and had preconceived ideas of how Australia scrummage. Paddy O'Brien, head of refereeing at the IRB, said referees only referee what they see (a summation of the discussion can be seen HERE).

The only problem was, the preceding week, the official website for South African referees had passed pretty clear opinions on the Australian, and Irish scrums. And those opinions? "A blight on the game", "dismal", "the worst scrummaging sides in international rugby" - something that it would be hard-put not to see as pretty clear preconceived opinions, and a definite view before a match refereed by the person who wrote this - the posts are, notably, unattributed, but no SA test referee has disassociated themselves from them.

Now, were the person who wrote this to referee a game involving Ireland or Australia, they would arguably be well within their rights to raise these preconceptions, and the way in which they would seem to lay the feet of anything going wrong in a scrum automatically at the feet of one team, as being cases of objective bias. The refereeing would probably be fair; but it would certainly raise questions about whether there was a reasonable risk of unfairness, and that's what's crucial. If it were raised, and made public, it would surely cause an appalling furore in the run-up to the game and, ironically, put the referee in a completely impossible position.

Of course, all of this can be avoided. Players and spectators might not like a referee, but they do respect the office he holds. The gift of that respect, however, is not to be taken lightly. Referees are decision-makers, like judges. Like judges, the decisions of top-level referees can affect people's livelihoods. And it would not seem too much to ask of top-level referees that they exercise some judicial discretion and not fan the fires of supposition with singularly ill-thought out comments that only encourage people to think the worst.

Faan Rautenbach citing - part two.

I had intended - indeed, promised - to deal with the Faan Rautenbach citing further.

As it happens, it got over-taken by events. Rautenbach was given a three week suspension.

The decision - click here - is not short, but is interesting. It's well worth a read, and it's one which I will deal with in more detail.

For the moment, what I would say about it is that it's in many ways exemplary, but also makes me deeply uneasy about issues of fair procedure. The reasoning, the way in which it's set out, the way in which the issues are dealt with, and the way in which what would seem at first glance to have been a very light suspension indeed for the offence actually turns out to have been entirely justifiable - all these are models of their kind.

But, while Faan Rautenbach didn't raise the issue of the hearing being dealt with over the telephone, and was quite happy for the hearing to be dealt with in that way, it's this that makes me uneasy about fair procedure. There's also an issue about the London Irish forwards coach being present and giving evidence about rucking, which in another case could have raised problems.

It's to those issues that I'll return in separate posts, as soon as possible.

Good ideas, bad ideas, dropped ideas.

The Irish parliament, the Dáíl, was dissolved yesterday. Given how the 30th Dáil performed, I doubt it will be missed.

But that doesn’t mean everything it did was bad; and some of the good ideas have fallen by the wayside with the dissolution of the Dáil. One of particular relevance to rugby is Part 3 of the Civil Law (Miscellaneous Provisions) Bill 2010.

The Bill itself is a bit of a jumble. But Part 3 is interesting, because it gives a defence to legal liabillity to, amongst others, those carrying out unpaid work in and connected to sport. Those volunteers would not have been liable for accidents caused by them unless they had been grossly negligent – a much, much higher threshold than the usual standard for imposing liability – or had wilfully disobeyed the instructions of the volunteer organisation concerned.

The reason I mention this in the context of rugby is, first and foremost, the scrum. The refereeing of the scrum at the moment is an absolute mess; and one of the main reasons is the idea of depowering the hit. There are other ways to do this, which we won’t discuss here, but the original idea of the crouch-touch-pause-engage sequence was to make it safer. The problem is, of course, that it has made things less stable, and worse.

It’s even worse when you go down the levels. The fear that players will be injured, and the fear that referees will be sued in that case, has led to the under-age scrummaging restrictions being brought into senior rugby below a certain grade. There will now be forwards who will go through the whole of their playing lives without ever participating in a full scrum.

This is a good example of what’s known as the chill effect. This is where a perceived risk of litigation leads to defensive changes in how an activity is carried out and regulated. Referees have been sued, successfully, for injuries caused in a collapsed scrum; but what may not be appreciated is just how unique those two cases – Smoldon and Evans – were on their facts. I have written elsewhere on the issue of negligence on the pitch, and discussed these cases in more detail there; but, simply, letting a game go on with 46 collapsed scrums, or letting someone who had never played prop play in the front row causing a collapse which injured the hooker was grossly negligent, in anyone’s terms. Even then, the Courts made it clear that these cases were not normal run-of-the-mill ones; as it was put in Evans, the threshold of liability is a high one. Perception, however, is the key; and the chill effect is apparent.

This is why Part 3 would have been of such benefit. Referees could have reffed the scrum properly, confident in the knowledge that as long as they used their common sense and followed the instructions on reffing the scrum, that they were safe; the knowledge of this, of course, being the key. It would, with an emphasis on the fact that everyone stepping onto a pitch to play rugby voluntarily assumes a fair bit of physical risk, have permitted proper, full scrummaging to have trickled its way back down the levels to some extent. It’s too good an idea to drop casually.

There was enough damage done by the last Dáíl. It seems daft that one of their few good ideas would be left drop. Hopefully, someone in the next Dáíl will pick up this ball and run with it.


Edit; and, the good news is; someone did. It's now Part 3 of THIS Act.