Mediation in rugby.

The ERC are taking disciplinary action against Newcastle Falcons and Bourgoin over their respective parts in an Amlin Challenge Cup game in January not being played due to the state of the pitch.

Now, it should be said at the start that if there has been a breach of the regulations, then fair enough; it has to be addressed. But I can't help wondering if this is the best way to go about it.

I've spoken before about using arbitration in rugby discipline, based on the lessons from other sports (the GAA). This time, I want to look at using another type of Alternative Dispute Resolution (ADR), mediation, based on sailing.

Sailing has its own disciplinary system to enforce its rules. Sometimes, if there are on-the-water judges, it's like having a referee; if not, it's done by protest hearings, much like a case being decided before a tribunal. But it has also developed its own system of mediation of protests, of which these Australian links should give a flavour  (although strictly speaking, this is closer to a form of concilation than mediation)

Right-of-way disputes would be much like the the playing Laws in rugby; was there a knock-on, was a tackle dangerous, etc. If not dealt with there and then, they have to be dealt with afterwards, by a protest hearing or a citing commissioner.

But the Newcastle/Bourgoin disputes are ones that strike me as being eminently suitable to mediation. After all, both teams would want the game played, as do the ERC; the issue now is resolving the dispute to the satisfaction of all. Sailing deals with these disputes by mediating them, instead of full disciplinary hearings (with the delays and inevitable entrenchment of positions that come with them); and issues that can be sorted out this way will be sorted out this way, with less delay and trouble.

Rugby could do a lot worse than doing similar for these, or indeed other disputes like that between the ERC and the Ospreys over tickets last season. Mediation is not only faster, but it has a very, very high success rate, and in particular preserves relationships between the parties - which, when it comes down to it, is what the IRB talks about in the bit in the Laws about the spirit of the game.

Of course, even better would be if the problem were mediated at the time to prevent it ever becoming a problem - for all concerned, teams, ERC, broadcasters, fans, everyone.

So, a modest proposal; the ERC should consider, very seriously indeed, keeping a panel of mediators available on call at various HEC or Amlin Challenge Cup venues who can, if called on, step in to mediate off-the-pitch issues between teams. It can't hurt, and if it saves just one game a season, or prevents one disciplinary stoush, it would pay for itself.

Unintended consequences.

Being a front row is a bit like classic Vietnam movies; it's dark, hot, humid, bad things happen in there, and you can't talk unless you were there.

And, the Six Nations having just ended, there's been an awful lot of talk about scrummaging in the media, most of it rubbish; your average out-half would be lucky to know one end of a scrum from the other, still less comment intelligently on it.

However, there's a local issue that I have been thinking about for a while. In Munster (and, as far as I know, in some other provinces), at J2 level and below, the Under-19 Law Variations are used in scrums. That means that a scrum can only be pushed 1.5 metres over the mark, that there are limitations on the amount it can wheel - basically, it's a depowered version of proper scrums.

As someone who enjoyed scrummaging, I loathed it as a player. The idea is perfectly sound for underage players, who are developing and need some protection while they learn their trade. However, I have always had very serious doubts about it at adult level.

The main reason, apart from my own grumpy preference, is that it prevents players from ever learning how to scrummage properly. There is an entire generation of club front rows who will always be in these depowered scrums. That might seem fine; but it's not.

Suppose a small club has two teams, a first team, playing J1 at the highest level, where the winners of provincial leagues go on to a round robin to get into the semi-pro Ulster Bank League, and their second team, who play J2. Now, let us suppose that, as very frequently happens, there is an injury crisis, and the usual props for the first team are injured. Normally, the props from the J2 would be promoted, and would get their chance to play on the first team - where there are full scrums.

Now, this is where it becomes interesting. Let's assume that these props are part of the new generation who have gone from underage to J2. Because they have never been taught, and have no experience of, scrummaging in full scrums, they are underprepared for this scrummaging. They are going straight into a more demanding, more dangerous form of scrummaging, with no proper training or preparation. And if this sounds dangerous, it is. It's not a million miles at all from what happened in Vowles v. Evans, where an under-prepared and inexperienced loosehead slipped and the hooker broke his neck as a result.

So, you now have the situation where, if a team runs out of first-team front-rows, it can't safely play games, and exposes itself to a risk if it asks J2 players to scrummage at a level for which they're not - to quote Vowles - "suitably trained or experienced" - and, to put that beyond doubt, the court in Vowles held that "it is obvious that the training/experience which the Law required related to training for or playing in the front row of the scrum. It would be spectacularly unwise for the Munster Branch to force them to play like this, once made aware of it, because that would put the Branch, too, in the firing line; once aware of the danger, they would have the same duty of care as the WRU in Vowles to look after the players' safety. It's debatable whether a sensible referee would even let it go ahead, but it's unfair to put a referee in that situation, in my opinion.

What's even worse is; how on earth, without proper training and gradually giving players coming out of underage scrummaging are players to learn how to scrummage properly to prevent this arising? And this is where we get to the unintended consequences. Something aimed at making players safer but to keep the scrum at the heart of the game looks like it could, down the line, have exactly the opposite effect.

Better to get decent training out there for front rows coming out of the underage ranks - and let them learn how to scrum, safely, before they get thrown in at the deep end.

We Need To Talk About Jonathan...

Jonathan Kaplan will not want to watch the highlights reels from last weekend's internationals. Nor will Peter Allan. Or Paddy Wallace, come to that.

Kaplan awarded a try that should not have been given, because it came from a quick lineout that should not have been allowed. Peter Allan got that call completely and utterly wrong. It was a pretty horrendous error.

But, these things happen. Players make pretty awful mistakes too.

But whenever referees make mistakes like this, someone, sooner or later, demands a replay.

Now, from a sporting perspective, that's nonsense; you roll with the punches that are thrown, that's just life, and these things even out in the long run however infuriating it is at the time.

What I want to talk about is the legal issue of whether or not someone could seek a replay. The answer is; no. A referee is a decision maker, and the basic rule of thumb for all decision makers at law is that they have the right to be wrong, so long as they're wrong according to procedure. This was a plainly wrong decision, but according to the correct rules (the TMO, for example, cannot adjudicate on matters outside the in-goal area, so they couldn't go to the TMO, however tempting it would have been).

There's an Irish case on this, Carew Park AFC v. FAI, from 1999. There, the referee awarded a goal; changed his mind after one team protested; changed his mind again when the other team protested; and the game ended 1-0. The losers challenged the decision. The judge, Barr J., sympathised with them, but pointed out that the Courts would not strike down a referee's decision, even if it was wrong, unless "something appalling" had happened - which would seem to mean that short of a demonstrable fix, the decision stands. The reason was because that if not, if the Courts had to decide challenges to every crucial incorrect decision, it would lead to "a hopeless degree of anarchy".

And, given the state of the breakdown, the scrum, and refereeing in general at the moment, the last thing the game needs is yet more of that.