6 Nations Round One - Davies, Ferris and Tip-Tackles Part 2

And so to the decision itself.

You can read the decision HERE.

While going through it, I'd ask you not just to remember the points from Part 2, but also look at the picture just below, originally from the Daily Telegraph the day after the game.

The first thing to note is that the Decision's statement of the facts of what happened is, frankly, bizarre. You'll note from the picture above that Evans (W5 in the Decision), has his left arm outstretched to break the fall. Yet, at paragraph 7 of the decision, it says that "There is a point where the Player's left elbow can be seen as the uppermost part of his body, but his body position is itself at 45 degrees to the ground and not perpendicular to it". It then goes on at paragraph 8 to say "The effect of the tackle is that W5 goes to ground, making contact with his left shoulder and right hand simultaneously, the latter of which he has put out to break his fall" - Evans, as you will see, has his LEFT hand out, with the ball in his right. That confusion of left and right runs all the way through the Decision. That is, at best, sloppy. There is another, catastrophic, error on the facts, which I will deal with in due course.

The second thing to notice is that, although this is just like the Bowe case, that case is never mentioned. In fact, no case is ever mentioned. Given that at least one legal representative in this case was involved in Bowe, and would have known the outcome of that case that the yellow card and penalty given in that case by Wayne Barnes for a similar offence were upheld, this is surprising.

Wayne Barnes, the referee, stood by his guns in paragraph 10 and 11 that it was a penalty. He did felt he could not be that there was no dropping of the player, but felt that it was from no great height (paragraph 10) if it was there and that there was definitely a failure to bring the player safely to ground - which as you will remember, is Category 3 from Part 2, and what happened in Bowe. On what is recorded in the decision, Barnes does not accept that there was no dropping.

Thirdly, the issue of the four points arose, especially the issue of point 3), both legs being in the air. The case was made that the video evidence confirmed that Ian Evan's right leg - that's the one up in the air - was "at all relevant points... still in contact with the ground". Well, it wasn't; and as you can see from the picture above, neither was his left leg (which suggestion was put to Wayne Barnes in paragraph 11). The Findings at paragraph 16 state that "the lifting of a leg in this situation where the other leg remains on the ground, is not sufficient of itself to make this a dangerous tackle". And on that basis, they dismissed the citing.

In other words, the entire decision is based on the idea that 3) is missing; that Evan's left leg was on the ground at all times. Now, look up at the picture; and ask yourself how that one snuck through.

Thus far, the decision is clearly fundamentally in error. The entire basis of its reasoning is, not to beat around the bush, just plain wrong. But, these things happen; it's what one would term an error within jurisdiction. It's an error, but not one that would lead to any recourse had they stopped there.

The real problem is what they said about the Law. The Decision states at paragraph 16 "[t]he angles involved (the Player's body and W5's shoulders, hips, knee and angle) are less than 45 degrees to the perpendicular at the relevant points. In our view, the dynamic is not such that the law reference is designed to address."


Now, with all due deference, that's nonsense. There is no reference whatsoever in the Law to horizontal, or perpendicular. That reference was removed to give us the current Law 10 (4) (j). Reinserting it, and claiming the amended Law requires it, is simply untenable. It also flies in the face of the cases already decided - not one of which is referred to. It is, for example, utterly inconsistent with Bowe and Tuitupou, which have been approved and followed by IRB and ERC panels as illustrating exactly what this law, especially Categories 2 and 3, refer to. It is, in essence, one panel going off on a flier and trying to redraft the law by inserting a requirement into it that for any offence under 10 (4) (j), it has to be more vertical than not, instead of the requirement that the first contact be with the upper body. It is throwing out exactly what the amended law is meant to address.

Wayne Barnes stood his ground; he was right to. The Decision is wrong at law here, no bones about it..

Worse, it then goes far, far beyond its remit. The Citing had been dismissed (on fundamentally flawed grounds). That was that; no further comment was necessary. Wayne Barnes stood his ground that it was a penalty. But the Decision goes on to say that he "did not have the luxury of sitting with the Disciplinary Committee of playing, reviewing, analysing and dissecting with unlimited time so to do, what was a rapidly moving, fluid and dynamic situation. If he had such a luxury he may well have come to a different decision, but that is not to say that he was wrong coming to the decision he did."

Now, after a game, international referees do go through the video, in detail, both on their own and with the assessors. Wayne Barnes had done so - and, unlike the Committee, didn't confuse right and left, or say a player's foot was on the ground when it wasn't. But suggesting he "may well have come to a different decision" when he had said, clearly and unequivocally, that he would not, is going way beyond the remit of the Committee, and is ignoring what they are required by Regulation 17 to do. They are going behind a ref's on-pitch decision, to at least imply that decision was wrong, when dismissing a Citing. And that they cannot do.

The IRB referee assessors - the people who went through the videos with Wayne Barnes - felt moved to come out and comment that it was still a penalty. They were right on that, but having the Six Nations and the IRB openly disagreeing with a Committee is not just worryingly close to that for which the Springboks were fined in the Justice4 Bakkies Botha case, but is a mark of just how far outside their remit this Committee went.

When one looks at the ERC decisions, and then at this deeply, deeply flawed decision, one cannot but feel that the Six Nations, the highlight of the Northern Hemisphere game, deserves better than this.

6 Nations Round One - Davies, Ferris and Tip-Tackles Part 2

In the last post, I compared this to eating an elephant. Right now, it's more like an overblown Christmas turkey. I started it ages ago, and I'm still only half-way through it a week later.

The decision is now available. What I want to do first is follow the classic legal structure, and, having set out the facts in the first part, set out the law in this one, before analysing the decision in the third (and I assure you, there's a reason why the turkey analogy leapt to mind).

The basic law on tip-tackles is Law 10 (4) (j). You can read it as part of Law 10, the law on foul play HERE. The law reads:

Lifting a player from the ground and dropping or driving that player into the ground whilst that player’s feet are still off the ground such that the player’s head and/or upper body come into contact with the ground is dangerous play.

So, to break that down into what criminal lawyers call the particulars of the offence - in other words, the pieces that must all be proven for the crime to be proven - a tip-tackle needs the following (and I've broken it down as far as possible, here, to give every opportunity to mount a defence):

1 - Lifting a player from the ground - and at this point I'll run ahead of myself and interject that it just says "lifting", not "lifting both feet"; and
2 - Dropping or driving the player into the ground; and
3 - While the player's feet are still off the ground - and this is why I ran ahead above; both feet must be off  the ground, but not necessarily lifted by the tackler; and
4 - Doing it so the tackled player's head or upper body come into contact with the ground.

A couple of things: first, there is NO mention of "past horizontal" in the law. There used to be: it was changed  back in 2009 in the new law 10 (4) (i) and changed again to the current Law 10 (4) (j) as of the start of December 2010. Now, there is nothing about past horizontal, vertical, or anything about the angle; it's whether the first contact is the the head or upper body while the feet are off the ground. "Upper body" includes an outstretched arm, as cases like Tuitupou and Cooper have decided.

Secondly, you do NOT have to lift both legs for an offence under this law, so long as both feet come off the ground. Just to take ERC cases in the last three seasons, cases where only one leg was lifted when the tackled player went off the ground include Bowe, Shingler, Marty, and Gough. Tuitupou and Brits were cases where no leg was lifted, but because the player was lifted off the ground, it was an offence. 

Thirdly, and, crucially, you need to have all the elements for an offence.

So, to give an example: if I am the tackler and I lift the tackled player off the ground with the impact (1), and driving him into the ground (2) while both his legs are off the ground (3) and he comes down on his upper body (including hands) first (4), that's a penalty. Tuitupou is an example of that.

But if I lift the tackled player off the ground with by hooking a leg (1), drive or drop him towards the ground (2) while his legs are off the ground (3) but he comes down on his rear-end or flat instead of his upper body - well, he didn't come down upper-body first, so (4) is missing, so it's not a penalty. An example of a case just on that point is Tommy Bowe's case from December 2009, which you can read HERE (and to which I'll be returning in Part 3). And you can see a rather fine example of just that HERE on Quade Cooper in the RWC semi-final (in a digression, watching it again, it's great rugby by Kahui, and Cooper, who gets the ball back really well).

Similarly, if I lift both legs (1), drive to the ground (2) head or upper body first (2) and, by the time the head or upper body come into contact with the ground, one or both feet are on the ground, it's not a penalty, because (3) is missing.

Remember that checklist for part 3, because it will be crucial.

The next crucial piece of law is the 2009 memorandum on tip-tackling, which you can read HERE (and you'll note, by the way, the reference to Law 10 (4) (e) and "horizontal"; that's the old law, although the memo applies to the new one, 10 (4) (j), without any reference to "horizontal").

Crucial features of this would be first, intent is irrelevant; it is explicitly stated that referees and Citing Commissioners should not make their decision based on the intent. In other words, it is, in legal terms, a strict liability offence; an accidental one is as bad as an intentional one.

Secondly, one starts at a red card and works backwards: but if the particulars of the offence are there, it's never less than a penalty as a minimum.

Thirdly, there are three categories: what I'll refer to as Category 1 (driving into the ground - red card); Category 2  - (dropping with no regard for safety - red card); and Category 3 (all other offences - penalty or yellow card). Bowe is an example of a Category 3 case.

Those are the laws on the subject. They have been applied, with consistency and no small amount of rigour, since before the RWC. There are enough posts on this blog detailing that application; there have been five in the pool stages of the Amlin Cup and HEC alone, as well as the slew at the RWC.

One more crucial detail isn't strictly a law but a Regulation, Regulation 17. This is the Disciplinary Regulation, which sets out how citings are to be run, and you can read it HERE (and I'd recommend the full 65 pages if you're suffering from insomnia). The crucial point here is Regulation 17.11; the principle in the Laws that a referee's word is final is to be upheld wherever possible. If the referee has made a decision on-pitch, then under Regulation 17.11.4 (a), the citing hearing shall only make a different finding if it feels the referee was wrong in the reasons for that decision.

As the only reason they would make that decision is in upholding the citing, then the only reason a citing hearing can go against the referee is in upholding a citing. Now, remember that citings only arise when the referee has, at worst, given a yellow card (red cards are a hearing, not a citing); for a citing to be upheld, the offence must warrant more than that yellow card, it must be a red card offence.

So, if the hearing find that the offence does not meet the red-card threshold for upholding a citing, then it just dismisses the citing. It doesn't go into whether the referee's decision was right, it just dismisses the citing and moves on (again, Bowe give a flavour).

So, remember the four-part checklist; that you don't need to lift both legs so long as both feet come off the ground; the Bowe case; that citing hearings can only go behind the referee's decision; forget all about horizontal; and let's look at the decision in Part 3.

IRB Concussion Guidelines - updated

To give credit where deserved, the IRB appear to be listening on the topic of concussion. When commenting on the new training modules on their player welfare website, I (and others) pointed out it seemed daft to have them behind a registration wall when the aim was to have them easily available to everyone.

Well, they're not any longer. There is now a proper concussion management page on the IRB website. You can see it HERE. It's open to everyone, it's excellent, and it's something I'd recommend as a concussion management structure to anyone involved in any sport who wants to help reduce their exposure and prevent injury to players.

Finally, it looks like this is being dealt with properly by the IRB. There will probably be slips and relapses, but the trend is all in the right direction.

It is a good day's work by the Medical Officers and it deserves to be recognised as such.

Update on the update (with the admitted risk of getting recursive): I've been told by people to whom I've recommended this that they have had to register. It may be that the IRB site recognises cookies and logs you in automatically. If it is, I would still recommend the concussion management to anyone in any sport, but I would strongly encourage the IRB to make it available without registration. The easier to access and use in a hurry, the more likely it is people will do the right thing pitch-side.

6 Nations Round One - Davies, Ferris and Tip-Tackles Part 1.

The longer this one has gone on since the Ireland-Wales game, the more it's become like eating an elephant. There it is, plonked down on the plate in front of you, as vast as it is unappetising. It's all fine and dandy saying you do it one bite at a time; but where the hell do you even start?

There's the tackles, then the citing, then the decision, then the comments on the decision, then the comments on the comments on the decision...  A huge, grey, indigestible lump, steaming gently in front of you.

To quote one Welsh fan (Dylan Thomas): to begin at the beginning. What has happened thus far is as follows: about sixty five minutes into the Ireland-Wales game, Welsh second row Bradley Davies took umbrage at Irish substitute second row Donncha Ryan's counter-rucking. After the ball was cleared from the ruck, Davies - off the ball - picked Ryan up, inverted him, and dropped him on his neck. You can see it HERE; it's about as clear-cut a red card as one could wish. Referee Wayne Barnes didn't see it, but Assistant Referee (touch-judge, to you and me) Dave Pearson did, and flagged it. Barnes told Pearson he hadn't seen it, asked what happened and asked for a recommendation; at which stage, for some reason, Pearson recommended not a red, but a yellow card. At that point, Wales were behind by a point; Ireland then went scored a try.

Wales got back to within a point from another try; then Davies came back on. In the last two minutes, they put together some great phases in which Davies was heavily involved, taking it from 22 to 22. Then Irish blindside, Stephen Ferris tackled Welsh second row Ian Evans. You can see it HERE (for the sake of comparison, I've gone with one showing both incidents); Ferris lifts him past horizontal, and Evans comes down upper-body first. Barnes awarded a penalty, gave Ferris a yellow card, Wales kicked the penalty, and won by two points.

There was near-universal agreement afterwards (including, to their credit, from the Welsh coaching team) that Davies should have been sent off. Citing Commissioner Achille Reali cited both Ferris and Davies. Their cases were heard on the Wednesday of last week (the 8th of February).

Under the memo on tip-tackling, and the cases such as Shingler and the others that I've been looking at here over the past few months, there was no question that Davies was a straight red card under, at best, the second of the three categories of this offence under that memo - and a top-level one for sanction, too, given the aggravating circumstances. Shingler, which you can read HERE, is the ERC disciplinary system at the top of its game; an appellate decision analysing what it stresses are two perfectly well-argued approaches in Brits and Shingler, and deciding which one is to be preferred as better reflecting the policy. No-one reading it - including the manner in which it was treated as being of importance for the game, with no order for costs being made - could fail to understand the reasoning, or fail to approve of the clarity and seriousness which which a panel of very, very heavy-hitting judges came to their decision. It would be a credit to most appellate courts, and makes it clear beyond doubt.

Of more interest was Ferris. Here, the elements of the offence under Law 10 (4) (j) - lifting the feet off the ground (and it was both feet - you can see that HERE, and from 3:13 on the video above), bringing beyond horizontal (although that's not part of the test: on which more in part 2) and the upper body of the tackled player making contact first were all present. The question was, was it a category two or a category three offence? If category three, then a penalty (and possibly a yellow card) was sufficient punishment. However, no-one really knows where category two - red card - stops and category three - penalty/yellow card - starts. So, a proper, published decision on this would give final clarity to the whole area, and we would all have been able to say: this is red, this yellow, this is okay.

So, one would have thought that, come last Thursday, building on the work done at the RWC and by the ERC, we'd have final clarity on the law in this area.

So much for wild optimism. Because, while Davies was given seven weeks (light, in my opinion, but not outrageously so, given the tendency in international rugby to give much lighter bans), Ferris' case was dismissed. That would have been fine - after all, one needs a red card offence for a citing to be upheld, and if it's not, the Committee must uphold the on-pitch decision of the referee. The problem was, they appear to have gone further and said that it wasn't even a penalty. Irish manager, Michael Kearney, who was in the hearing reported this directly to the press, and it has not been denied by anyone that he was accurate when he said this.

Two days later, the IRB and 6 Nations decided to get stuck into the "not a penalty" issue and came out and said - in the perfect response for this pantomime - "Oh, yes, it was". Significantly, it was the IRB referee assessors who said this, NOT the Committee who heard the case (although you'd want to be reading that carefully to notice it). I'll deal later with the issue of publicly disagreeing with the findings of a citing hearing. And, yesterday, we had Gerry Thornley in the Irish Times quoting the decision, where the Committee appear to have been introducing considerations about angles and claims that one foot was on the ground all the time in a way that would make one want a protractors to work out.

So, right now, instead of clarity, we have complete and utter confusion, with the IRB, Six Nations, referees and Disciplinary Committee all disagreeing amongst themselves. And that's about as much as I can choke down right now before it provokes indigestion, so I'll return to it tomorrow.

Sam Warburton and Concussion.

Much though I love the game, there are some elements of the modern game we could do without. Swan-diving wingers, jerseys that look like Jackson Pollock went mad in a paint factory, marketing campaigns. Oh, Lord, the marketing campaigns...

And against all these abominations in the sight of the Lord, we have long had The East Terrace, upholding the traditions of hooped jerseys and that no more celebration of a try is needed than an about turn and jog back to the halfway, fighting the good fight against the gathering darkness of fake tan and pre-try celebrations.

Which is why today's East Terrace was particular dispiriting.

It's HERE, and the article it refers to is HERE. It's poking fun at Sam Warburton for wearing a red scrum-cap.

The reason it's dispiriting is why Warburton is doing it. To quote him:

 I am definitely more of a target at the breakdown these days – I am getting a lot of elbows and knees. I am really getting smashed and I am getting headaches for a couple of days after games. That’s why I now wear a head guard – I have got a special red one for the Six Nations. [Emphasis added].

That's not funny. Those are concussion symptoms, persistent and lingering concussion symptoms, in a 23 year old. If you're getting headaches for a couple of days after the game, then something is wrong. I presume - I hope - that Sam Warburton is being monitored for this, and the Welsh Rugby Union (WRU) are, unlike the Australian Rugby Union (ARU) (or, indeed, the IRB), applying the concussion regulations. I do know that head gear is unlikely to do anything to prevent concussions.

And I also know this; if even The East Terrace laughs these concussion symptoms, so do most people.so long as the game laughs off concussion symptoms, so long will concussion not be taken seriously. And that means that, sooner or later, people like me - the lawyers - will have fun with the way that concussion regulations are not being applied by those with a duty of care to the players.

And, to quote Terry Pratchett: the strange thing about what lawyers have fun with is that no one else ever sees the joke.

The IRFU Non-Irish Eligible Policy.

Over the past fortnight, I've been in the news by pointing out just why the Irish Rugby Football Union (IRFU)'s new policy on Non-Irish Eligible players at Irish provinces won't work.

The original articles in the Irish Independent - which you can read HERE and HERE - caused a fair stir, and a fair few follow-up articles, some of which you can read HERE and HERE, including comments from Joe Schmidt of Leinster.

The reason for this post is that I feel it's only fair to, as it were, show my workings.

First, it's as well to recap on the details of the IRFU's policy, the Player Succession Strategy.

The basic idea behind is entirely right and laudable; the Irish provinces should develop young Irish players, not being a pension fund for Southern Hemisphere journeymen. To that end, the IRFU proposed that from 2013 onwards, only one player ineligible to play for Ireland (Non-Irish Eligible - NIE) in each of the 15 positions on the pitch would be able to play across three of the four provinces (it doesn't apply to Connacht). So, if there was a NIE tight-head at Munster, then Leinster and  Ulster would not be allowed to renew, or sign, a contract with another NIE tight-head.

It should be noted, in passing, that there's a difference between, say, the Munster Branch of the IRFU, which runs the domestic game, and Munster Rugby, which is the beast taking the pitch in Thomond Park in the Heineken Cup; the two sides of the game were split off into different entities in the provinces a few years back, so players at Munster, Leinster and Connacht aren't directly employed by the IRFU unless they have central Irish contracts (in which case, of course, Irish eligibility is academic).

The problem with the policy is, of course, and as was pointed out swiftly, that without top-class overseas players, the development of local players would have been stunted. There would have been no Paul O'Connell without Jim Williams and John Langford, no Sean O'Brien without Rocky Elsom, no Keith Earls orSimon Zebo withoutDougie Howlett. Suffice to say there's been enough debate on this in the Irish press, and a quick look through the archives of the Irish papers will give a full guide to it.

The question then arose, naturally: what of the effect of this on players from overseas who aren't Irish-eligible, but are EU citizens, or have similar rights?

Now, some of this - the Kolpak and Zambrano situation - I've already covered on this blog back in May of last year, and I'm not proposing to go over that again; you can read it HERE.

What I want to do in this post is to give those who wanted to look at the Bosman judgement to which I referred in the interview a quick guide to what Bosman said.

The Bosman judgement is one of the best known EU cases ever. It's the source of the phrase "a Bosman transfer" in football, for starters. You can read the decision HERE; it's surprisingly readable for the layperson. Jean-Marc Bosman was a footballer with RFC Liege in Belgium who wanted to move to the French team, Dunkerque. As Dunkerque wouldn't pay the transfer fee demanded for the out-of-contract Bosman, he wasn't allowed move by Liege and his wages were cut. He went to court, and wound up in front of the European Court of Justice (ECJ), the chief EU court.

It turned on two issues; transfer fees for out-of-contract sports players, and restrictions on the numbers of foreign players in a given sports team - "foreign" being defined as "ineligible for the national team in the country where that team was based". The first is largely irrelevant to this post. The second is crucial, because the question the European Court of Justice was asked, at paragraph 49, was :

Are Articles 48, 85 and 86 of the Treaty of Rome of 25 March 1957 to be interpreted as:...

(ii) prohibiting the national and international sporting associations or federations from including in their respective regulations provisions restricting access of foreign players from the European Community to the competitions which they organize?'"

One of the reasons put forward at paragraph 124 of the judgement was the exact same as the IRFU's rationale:

Secondly, those clauses are necessary to create a sufficient pool of national players to provide the national teams with top players to field in all team positions.

And the ECJ was unambiguous: that wasn't good enough. 

128 Here, the nationality clauses do not concern specific matches between teams representing their countries but apply to all official matches between clubs and thus to the essence of the activity of professional players.

129 In those circumstances, the nationality clauses cannot be deemed to be in accordance with Article 48 of the Treaty, otherwise that article would be deprived of its practical effect and the fundamental right of free access to employment which the Treaty confers individually on each worker in the Community rendered nugatory (on this last point, see Case 222/86 Unectef v Heylens and Others [1987] ECR 4097, paragraph 14).

130 None of the arguments put forward by the sporting associations and by the governments which have submitted observations detracts from that conclusion... 

And so the ECJ laid it out in black and white: you can't restrict they number of EU nationals on any professional team below international level.

136 It follows from the foregoing that Article 48 of the Treaty precludes the application of rules laid down by sporting associations under which, in matches in competitions which they organize, football clubs may field only a limited number of professional players who are nationals of other Member States.

As was remarked; this isn't very complicated law, it's actually pretty simple once you know it's there. And, with Kolpak and Zambrano extending it further, it's now a very live point for people like Isa Nacewa, Doug Howlett and Lifiemi Mafi, all of whom have to look at their contract situation.

For the good of those players, who've done so much for the Irish game, and for the good of the Irish game itself, the last thing we all need is for this to end up in the Courts for want of attention. The current policy is unlawful, however much everyone agrees the idea behind it is a good and desirable one. It needs to be changed; and the faster that the IRFU sort this out with the provinces, the better for everyone.