HEC, PRL & Competition Law.

Who would have thought competition law would be of such interest to rugby players?

One of the features of the ongoing travails of European rugby has been intense reference to competition law (often under the title of "restraint of trade") by those involved in the discussions.

Various chairmen of the clubs in Premiership Rugby Limited (PRL), the company which runs the Aviva Premiership in England, have been waving the stick of competition law since the Fédération Francaise du Rugby (FFR), the IRB and various other unions have made it clear that the proposed breakaway tournament that PRL wish to set up, the originally-named Rugby Champions Cup, is viewed distinctly less favourably than the European Rugby Cup's (ERC) Heineken European Cup (HEC). The FFR has been reported all along as having turned its face against this newcomer, and the current position would seem to be that the French clubs have fallen into line (although in a dispute which feels as if it is approaching the length as well as complexity of the Thirty Years War, it remains to be seen how definite this is).

This positon led to club chairmen such as Nigel Wray of Saracens coming out with the comment "See you in Court, mate" to the IRB and unions he needed to persuade - which Metternich-like masterpiece of diplomacy suggests he may be somewhat confused about the operative word in the phrase "charm offensive".

There is an irony in this, of course. Sports is indeed subject to competition law (one can see a good background guide HERE); and PRL found that out when subjected to investigation by the Office of Fair Trading in the UK, and, more recently (with the RFU), when the rules about primacy of tenure in grounds as a qualification for promotion into the AP were challenged, successfully, by London Welsh via the RFU's own disciplinary systems.

The jurisprudence of the European Courts, referred to in that London Welsh decision, is clear that each incidence will be looked at on a case-by-case basis, with a recognition that, while they are subject to competition law, considerable margin of appreciation afforded to governing bodies like the unions who are looking at the benefit of the sport as a whole, as one can see in the MOTOE case about the organisation of Greek motorcycling. So, in Meca Medina, a case of the European Court of Justice (ECJ), where two athletes tried to have anti-doping rules struck down as affecting competition, the ECJ stressed that, while governing bodies are subject to competition law, purely sporting rules are not, and each case will be dealt with individually. So, it is hard to be definitive in advance about whether decisions where there is a mixed element of purely sporting organisation and the commercial side of sport will be anti-competitive, still less be so confident as to, in effect, dare the French state to back up its legislation whereby sporting bodies are bound by law by the decisions of their governing bodies.

The further irony is this: PRL has apparently contractually committed all its members to play in a new tournament which will be broadcast by BT, and to have no truck with an ERC-run competition (recently confirmed by Simon Cohen, CEO of the European and English giants, Leicester). It is an economic actor, in (by its own admission in the London Welsh decision) a dominant position in the English market - and it is restraining competition about which clubs can play what across Europe as a result of that committment. It is not a governing body, and attracts no margin of appreciation for its actions. And the recent reports from the Commission about the cartelisation of football are not what one might term sympathetic to the club side of the club-v-country arguments. Certainly, one doubts the Top14 would have relished attention being drawn to the acquisition habits of some of its clubs by being sucked into a case of this kind just as it is in the throes of negotiating a new broadcast deal of its own. This is all the more so  when litigation of this kind (involving assessment of what the relevant market is, the nature and shape of the market, and all sorts of other detailed examinations and documentation such as keep the lever-arch-file and banker's box business so buoyant) is of a length and complexity as could swallow half a playing career to resolve.

Even more pointedly, the European Commission, when examining the sale of broadcasting rights in the UEFA Champions League decision, laid down basic ground rules for the sale of exclusive broadcasting rights by an organising body to a broadcaster. These would include an open tender process - and a duration of no more than three years. BT Sport's deal with PRL to broadcast the Aviva Premiership - the foundation stone of the whole dispute, and the bread-and-butter of PRL clubs - is for four years.

On which note, one looks at the announcement (in Spanish) of some €14.5m in fines for selling exclusive broadcast rights in Spanish for four, as opposed to three, years - HERE - as well as the recent Commission announcement into the basic concept of selling exclusive territorial broadcast rights (as dealt with in THIS excellent blogpost from Blackstone Chambers), looks at that aspect of the BT Sports deal, and at the very least check wonder as to the footing of those at one stage so eager to litigate.

And it is at this point one is reminded why lawyers so rarely use phrases like "see you in Court" outside of the pages of fiction, and instead spend so much of their careers trying to settle cases outside of Court instead. Before telling someone you'll see them in Court, it it is always best to be entirely sure there's no way they could be happy to see you there, too.

HEC - Player Release Regulations, Unions and the Law

One thing that has constantly cropped up in discussions about the future of European rugby is the threat, if not naked then certainly in varying degrees of undress,  that players will be withheld from international duty by the English and/or French clubs unless their respective unions acquiesce.

It's surprising that it has been repeated so often without being critically assessed. Firstly, there are, of course, the requirements of the International Rugby Board Regulations on player release which you can read HERE (specifically, it's Regulation 9). Under IRB Bye-Law 7, there is a binding agreement between the IRB and the Rugby Football Union (RFU) to obey these and other IRB Regulations, and the RFU agrees to bind any and all rugby organisations  under its jurisdiction in like fashion. The RFU does so in its Regulations, specifically Regulation 2, which you can read HERE. Premiership Rugby Limited, and its constituent clubs, are bound to obey those regulations.

Secondly, and in a belt-and-braces approach, there is a binding agreement between Premiership Rugby Limited and the RFU that players will be released for international duty above and beyond the requirements of the IRB Regulations, details of which Long-Term Agreement you can read HERE. Notably, in all the ongoing kerfuffle, it requires that England players are rested by their teams - a plank in one's own eye ignored while pointing out the mote in others. Be that as it may, the teams cannot withhold their players from the international duty agreed under without breaking that agreement. As it is the same agreement giving them the right to sell broadcasting rights, which is the origin of most of this sorry mess, one doubts they'd be eager to see it torn up. It runs until June 30th 2016 - well after the next Rugby World Cup.

And lest there be any doubt, this point has been litigated. To no great astonishment, it was in Wales, where rugby seems on occasion to be less the national sport than a pretext for the real national sport of ferocious warfare over how rugby should be organised (a search of legal databases on rugby law turns up an entirely disproportionate number of results involving the Welsh Rugby Union (WRU) and its clubs and regions). Back in 2008, the Welsh regions were objecting to having to release players for a training session with Warren Gatland's Welsh team, Grand Slam winners of the previous Six Nations. They refused to release the players; and the WRU went to the IRB seeking a ruling. The IRB, interestingly, ruled that this was a private contractual dispute between the WRU and the regions. The WRU then sought an injunction compelling the regions to release the players on the grounds that there was a binding agreement between the regions and the WRU with which the regions had to comply.

The judge, Havelock-Allen QC, agreed in an unreported decision (the citation is [2008] EWHC 3399 (QB)), finding that each region had a participation agreement with the WRU whereby it agreed to be bound by the IRB Regulations, including player release. Applying a more stringent test than would be usual in deciding the balance of convenience for an injunction, he found that since losing players and prestige would damage the WRU in a way that money could not compensate, then he would grant an injunction directing that the players be released to attend the training sessions. The report in the Welsh media at the time can be read HERE.

In the context of the Long-Term Agreement and the RFU Regulations, the parallel can plainly be seen.

So, that's why I wonder just why this keeps being put forward as a real risk when the plain victor on this point when it came to the crunch the last time out was the union, not the clubs.

Rugby Law and the Heineken Cup

Anyone who's dived can tell you that shoals are a very effective defence. They work because a load of individual fish band together in a huge collective, swirling around, so anything targeting them doesn't know where to even start and just gives up in confusion.

Much like approaching how law and rugby interact in Europe at the moment.

Just to give a hint of the issues raised by the Heineken Cup mess at the moment, we have:

Company Law - duties of directors. Peter Wheeler of Leicester is a director of ERC Limited, the company running the Heineken Cup. He's also a director of PRL Limited, the company who are now, if we are to take their policies and statements at face value, not just trying to remove ERC's main asset but shut ERC down. Can one square a fiduciary duty as director to both?

Choice of Laws - the HEC Participation Agreement runs (or certainly ran) under Irish law. Disputes between Unions and the IRB run under English Law in the English Courts, under IRB Bye-Law 11, as a binding contract under IRB Bye-Law 7. The Unions undertake to bind all their members to the same agreement under Bye Law 7. So, if it comes to litigation about the IRB regulations under an Irish law contract involving the interpretation of those regulations under English Law, where is it heard?

Contract Law - far, far too much of this; interpretation of contract, interpretation of rules under those contract like the IRB Regulations restricting sale of broadcasting rights (Regulation 13.2, and 13.3), and cross-border tournaments (Regulation 16.2.7), get-out clauses, exemptions, and so many more. And the Contract (Rights of Third Parties) Act 1999 floating in the background, a piece of UK legislation allowing those not party to a contract to have it enforced that could cause all sorts of fun and games if things fall out right.

Tort - possibly interference with business relations, and inducement to break a contract (and one can be assured there are many more such of which we have heard nothing).

EU Law - Competition law, obviously, such as in the London Welsh decision. And enforcement of judgements, and the possibility of injunctions being enforced in other EU states.

And Sports Law itself, with the question of review by the Courts of the decisions of sporting governing bodies.

And all this just a flavour. Never before have the contents of the IRB Handbook been of such interest to so many.

Because the fate of Northern Hemisphere rugby may well be decided by Sports Law. It has become a huge element in other sports; now rugby is facing up to it. Whatever happens, the days of muddling through are drawing to an end.

Minimum Bans - Dead Again?

Last year, the IRB announced changes to the disciplinary regulation, Regulation 17. You can read the press release HERE, and the new Regulation it linked to HERE. It announced, amongst other things, that minimum bans would mean minimum (and that all parts of Regulation 17.19 were core principles of the system); the relevant portion was Regulation 17.19.6 which said:

Subject to Regulations 17.19.7 and 17.19.8, for acts of Foul Play the Disciplinary Committee or Judicial Officer cannot apply a greater reduction than 50% of the relevant entry point suspension and nor can it/he apply a reduction that would mean the suspension imposed is less than the relevant lower end entry point suspension. In assessing the percentage reduction applicable for mitigating factors, the Disciplinary Committee or Judicial Officer shall start at 0% reduction and apply the amount, if any, to be allowed as mitigation up to the maximum 50% reduction. [Emphasis added]

I wrote several blogposts on this. In November last, Adam Thomson's one-week suspension was appealed by the IRB on the basis that it was less than the minimum ban, and that appeal was successful. That was discussed HERE.

Yet, looking at the latest IRB Handbook, which you can read HERE, and which is dated July 31st, and the Regulation 17.19.6, in that, it makes no reference to the minimum-means-minimum bit. It now says:

Subject to Regulations 17.19.7 and 17.19.8, for acts of Foul Play the Disciplinary Committee or Judicial Officer cannot apply a greater reduction than 50% of the relevant entry point suspension. In assessing the percentage reduction applicable for mitigating factors, the Disciplinary Committee or Judicial Officer shall start at 0% reduction and apply the amount, if any, to be allowed as mitigation up to the maximum 50% reduction.

As you will see, the reference, bolded in the first quote, to not going below the entry level has disappeared entirely.

Looking at decisions from the IRB Junior Rugby World Championship, those seem to be working on the basis that one can go below the minimum, entry-level ban. So, in the Luan de Bruin case, which I mentioned in THIS post and which you can read HERE, it talks about a reduction not below the entry level where it was wholly disproportionate, but below 50% of the minimum.

13. In respect of sanction, I accept Mr. Swart's submission this is an appropriate case whereby the Judicial Officer could have invoked Clause 11.10.7 of the Tournament Disciplinary Programme which permits the imposition of a sanction less than 50% of the lower end entry point sanction where there are both off-field mitigating factors and the sanction would be wholly disproportionate to the level and type of offending involved. 

And that was Tim Gresson, Chief Judicial Officer of the IRB, who pretty much by definition knows the regulations. Similarly, in the Hadleigh May case, which you can read HERE, the sentence was less than the minimum. Those cases were in June. In August, Leonardo Senatore of Argentina just got nine weeks for biting Eben Etzebeth of South Africa when the entry-level - what would have been the minimum - is 12 weeks.

If the minimum ban provision was in place in November, but not in June, then if it was changed it must, logically, have been changed between November and June. Back in February, in the Webb  and O'Gara cases, which I discussed HERE, the minimum ban provision was discussed in depth by His Honour Judge Jeff Blackett, so it must have been in force then. There may well have been an announcement which I missed; but I have looked through the media section of the IRB website back to last November when Adam Thomson's decision was appealed, and have seen no announcement that a core principle of the disciplinary system was being changed under a year after it was introduced.

So, one has to ask: first, has it been officially changed? Second, if so, why? Third, why so soon after the IRB took the unprecedented step of appealing a citing decision on the basis of the core principle? And fourth, if it was changed, why on earth was so important a change not announced the way that the change to that system was announced?

It is, to say the least, odd. If I find out any more on it, I will certainly update this.

Update: Brett Gosper, whose willingness to engage and respond to queries is, as always, exemplary, has confirmed that the minimum-means-minimum change was made at the IRB Council meeting on the 28th November 2012. It would seem that the reference to wholly disproportionate in the O'Gara case in February was in this light. The only seeming reference of any kind to this at the time, one week after the IRB had appealed a citing decision for the first time to enforce this minimum ban rule, was one paragraph tucked away in THIS:

The IRB Council also approved minor revisions to Regulation 17 governing illegal and foul play. The revisions address interpretation matters following the introduction of the restructured Regulation in June of this year.  

In terms of clarity, it's a long, long way from the clear announcement of five months earlier. In fact, it actually says nothing about deleting the product of the IRB Morality Conference that had, in Thomson case, been making headlines all that week, and which had attracted a fair degree of praise in turn when the IRB stood over making its regulations against foul play meaningful. Why this coyness, so soon after standing over the change, one cannot say. So, on the list of questions above, the answers would seem to be: yes to the first, and even more head-scratching as to the rest.

Cite Them All, Let God Sort It Out.

A paraphrase of a paraphrase for a title. The origin of which title comes from the heartland of French rugby.

The Albigensian Crusade is called after the town of Albi, in the heat of l'Ovalie, the south west of France where rugby is played. It was aimed after the Albigensians, heretics from Albi (not, strictly, that being from Albi is a heresy in and of itself, despite what Castres Olympique fans think).

When the town of Beziers - where Munster played Castres in the 2002 HEC semi final, of happy memory - was attacked, Arnald Amary, a leader of the crusade was supposed to have been asked what should be done with the prisoners and to have replied, "Kill them all. God will know his own" (in fairness, there's no direct record of this, and it was only ever that he was reported to have said it).

On which note, I would like to look at a case from the Junior Rugby World Cup in France, the appeal of Luan de Bruin, tighthead prop of the Baby Boks, against his suspension for a tip-tackle. You can read the Decision HERE; significantly, it was Tim Gresson hearing it. As head of the IRB Judicial Panel, Gresson's opinions carry very considerable weight indeed as a pointer of how the IRB see things developing.

The tackle in question, as with so many tip-tackles, involved two players lifting plus the tackled player, but de Bruin was the only one cited. In the appeal, it largely turned on whether the tip was largely down to the other player. That line was rejected, and the appeal failed on that grounds. Interestingly, the case of Toby Flood, a controversial decision which, in my opinion, was out of line with the ERC and IRB approach to this, was relied upon by Counsel for de Bruin, Adv. Swart, and was implicitly if not openly distinguished by the hearing which held that the approach of leaving off the cited player who played a lesser role was not the approach to be followed.

Adv. Swart, correctly accepted in argument that it was open to hold that the tip-tackle was the fault of both players, or indeed largely of the other player, and that if this was found to be the case, then the sentence of four weeks was wholly disproportionate in the circumstances; this was accepted.

The real significance is in paragraph 12 of the judgement, which, while it is strictly a comment instead of a finding, is worth reproducing in full:

A final comment. This is yet another case which gives rise to the issue as to whether it is appropriate for Citing Commissioners to cite more than one player in respect of incidents similar to that which has occurred in this case. In my view where more than one player has contributed to a dangerous lifting situation (whether in a tackle or otherwise) Citing Commissioners could give serious consideration to reviewing the totality of the actions of all the participants in relation to the incident and then decide whether the cumulative effect of their actions warranted the awarding of a red card to any and/or all of those players involved. If the Citing Commission considers that a participant's actions in such an incident do not meet the red card threshold but another participant's actions do and such player(s) is cited than that determination should be particularised in the citing report. It follows, if there are multiple citings of players involved in the incident and they are upheld then it would be the responsibility of the Judicial Officer to assess the extent to which each of the players involved contributed to the incident of Foul Play and sanction accordingly. What is paramount is that acts of Foul Play which meet the red card threshold are cited and subject to the rigours of judicial scrutiny. [Emphasis added]

So, in other words: if there are more than one player involved in a red card incident, look at what the actions added up to and cite that if it meets the threshold - and make it clear why you're not citing all of them if you only cite one, because red card offences should be cited.

So, to give recent examples: Toby Flood would on this basis almost certainly have been done for the tackle along with his team-mate, as both contributed to an unquestionably dangerous tackle. Joint lifting tackles are now even more risky, because a coach who trains his players to do this could lose more than one player to citing. Bringing the tackled player down safely - which, somewhat paradoxically, is tricker with two players, because there are two people who can misread a situation or get it wrong - is now even more important. At a time when Dan Lydiate's remorselessly-efficient ankle-chopping style contributed in no small part to the Lions series, it would make one wonder whether, when it comes to the lifting tackle, that game is worth the candle anymore.

Be that as it may; whether coaches make that decision, it looks like we may well be in for a continued crackdown on tip-tackles at IRB level. Whether this lasts into the upcoming Rugby Championship will be interesting to watch.

James Horwill Citing.

Three minutes the first Lions test, James Horwill, the Australian captain, kicked Alun Wyn Jones in the face.

He was then cited for it. The decision came out today, and this is, I must emphasise, very much by way of a holding post, as I have not been able yet to get a copy of the decision by Nigel Hampton QC. The citing was dismissed.

However, there is a phrase quoted from the decision in reports of the decisions which gives very significant pause.

I found that I could not reject as being implausible or improbable Horwill's explanation that as he was driving forward with his right leg raised he was spun off balance through the impact of Lions players entering the ruck from the opposite side.

In an endeavour to regain his balance Horwill brought his right leg to the ground unknowing that Alun Wyn Jones' head was in that area, due to having his sight impeded by the presence of Michael Hooper and Tom Croft who were beneath him and over the top of Alun Wyn Jones. Due to these reasons I cannot uphold the citing.

Leaving aside one's view of how one squares the explanation with the action, it is the first paragraph that seems off. The standard of proof in a citing is the balance of probabilities - more likely than not. "Possible, but not in the least probable" is the classic formulation from Denning J. (as he then was, in 1948), of the much stricter test for criminal cases, of beyond reasonable doubt.

Applying a test of whether something is "implausible or improbable" is the standard for beyond reasonable doubt. Something doesn't have to be improbable to be less likely than not: if it's 49% likely, 51% unlikely, it's not at all improbable, but it hasn't met the test of the balance of probabilities. If it was dismissed on the basis of the criminal standard, that would be a clear error.

I am, expressly, reserving comment on this until I have the full judgement to hand, at which stage I will return to this. But at first glance, the use of phrases one would associate with a different standard of proof than should have been applied is one that would make one even more curious to see the decision in full.

Edit: one typo in the last paragraph fixed.

Update: The full decision is now available. You may read it HERE. However, the IRB have, in a new departure, also announced that the decision is being appealed by the IRB. It therefore seems appropriate that, lest in some small way it unfairly queer the pitch for either party, that I hold off on commenting on the decision in full until that hearing has been held, and then deal with this decision, and that of the appeal, together.

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.

Cian Healy Suspension.

Ireland v. England in the 2013 6 Nations. God-awful day, God-awful game in a weekend of God-awful games, dissappointing (if not quite God-awful) result for the home side. And it got worse.

In the first quarter of the game, Cian Healy saw his opponent, England tighthead Dan Cole, lying on the wrong side of a ruck. He decided to take matters into his own hands. You can see what he did HERE, HERE, and HERE (my thanks, as always, to Snedds). He stamped on Cole's ankle.

I am a fan of rucking; I have rucked, and been rucked, and worn my stripes with pride. I am a fan of Healy; always a great prop around the pitch, he has turned himself into a very good scrummager by dint of dedication and effort. But this wasn't rucking. If he had wanted to, he could have raked Cole's thigh, or calf, to free the ball and let him know not to lie there again, and that would have been well within the unwritten rules by which players self-police. It was a stamp, onto a joint, much like Jamie Joseph on Kyran Bracken back in the day, with sufficient force that Healy managed to clip the back of Rory Best's leg in passing and cut it. 

It was deliberate, it was unacceptable, and it was rightly cited.

The hearing was on Wednesday last, the 13th of February. Healy was suspended from the 18th of February until midnight on the 10th of March. This is unusual; the suspension did not kick in immediately, but only until after the Ireland-France game. This, according to the press release, which you can read HERE was because the Committe, "in imposing a suspension of three weeks, recognised that the player would not have played for his province this weekend is that the suspension will end at midnight on Sunday 10 March 2013" (it should be noted as a caveat that we still don't have the written judgement in the case yet, nor, seemingly do the parties, so there may be clarifications on that topic when we do have the judgement to hand).

This has led to some confusion and comment yesterday, including a statement that he had been released to Leinster (this particular piece was updated over the course of yesterday, following the rugby fora), seemingly based on Jonno Gibbes of Leinster claiming they intended to play Healy against Treviso in the RaboDirect Pro12 fixture tomorrow, and culminating in a report that legal advice is being sought on this. The aim of this post is to set out the Regulations and hopefully clear up some of the confusion caused by those who should be informing the public clearly not bothering to read the background material.

Citings, disciplinary hearings and suspensions are governed by IRB Regulation 17, which you can read HERE. 

Regulation applies generally to all in the game. As it says in the Preamble:

Preamble... (D) All participants in the Game shall by means of their participation recognise and agree to be bound by this Regulation including the core principle of universality which means that Players who are suspended at any level of the Game shall have their suspension recognised and applied at all levels of the Game and in the territories of all Unions and Associations. The IRB has identified certain Core Principles which must be implemented by all Unions and Associations at all levels of the Game in the implementation of disciplinary rules for Foul Play.

In those Core Principles in Regulation 17.1, we see the following:

(b) All Matches are equal. A Player suspended from playing the Game shall be suspended from participating in any Match at any level during the period of his suspension.

Unions, clubs and associations have a duty to impose it (Regulation 17.2). 

17.2 (1) All Unions, Associations and their recognised Tournament Organisers have an obligation to put in place and implement disciplinary regulations within their jurisdictions and in respect of their tournaments and Matches which incorporate fully the Core Principles.

(4) In the event of non-compliance or improper implementation of this Regulation by any Union or Association, the IRB may undertake such action as it considers reasonable and appropriate in the circumstances in order to address the matter with the Union or Association. Where a Rugby Body does not comply with or fails to properly implement this Regulation, the Disciplinary Officer or the Board may require the relevant Union(s) or Association to undertake appropriate investigations and/or proceedings to remedy the matter. In any event the IRB shall have the authority to ensure the proper implementation of this Regulation 17 within the Game.

It should be noted that the IRB has already stepped in this season to ensure the proper implementation of Regulation 17 - the Adam Thomson case. The Justice4 case involving the Springbok management and team and their armbands would be another example.

Regulation 17.19.10 says:

on sanctions and suspensions imposed on Players under IRB Regulation 17 shall:... (b) not allow Players to avoid the full consequences of their actions by, for example, playing in Matches prior to the commencement of their suspension, or playing in Matches during a break in the suspension and/or serving their suspension during a period of inconsequential pre-season and/or so-called friendly Matches [Emphasis added]

Regulation 17.19.11 says:

When imposing suspensions on Players under Regulation 17 Disciplinary Committees or Judicial Officers shall comply with the requirements set out in Regulation 17.19.10 above. In doing so Disciplinary Committees or Judicial Officers:... 

(b)may defer the commencement of a suspension provided that the Player is not scheduled to play (and will not be permitted to play) prior to the commencement of the suspension; [Emphasis added]

So, there is no doubt whatsoever that the Committee have the power and right to defer the start of a suspension if a player is not scheduled or permitted to play.

So far as the question of appeals go, Declan Kidney was right to be cautious on this: Regulation 17.19.24 says

Suspension
17.24.1 A Player Ordered Off or cited by a Citing Commissioner may not take part or be selected for any further Match until his case has been dealt with by a Disciplinary Committee or Judicial Officer.
17.24.2 Without in any way limiting the effect of Clause 17.19.11, a Player that is subject to an Ordering Off or citing in a domestic or any other Match is not entitled to play the Game (or any form thereof) or be involved in any on-field Match day activities anywhere in the world until his case has been finally resolved.
17.24.3 A suspended Player who elects to appeal may not take part or be selected for any further Match until his case has been dealt with by an Appeal Committee or Appeal Officer or the expiry of his suspension whichever occurs earlier. [Emphasis added]

So, when Jonno Gibbes said that "There are complications for others, maybe, but he's available for us", one might be permitted to raise a quizzical eyebrow at this juncture. Given that the IRB have already appealed one sentence for stamping this season, it would have been rash in the extreme for Leinster to attract the ire of the IRB and 6N by trying to play him - especially when their second row, Tom Denton, is before a disciplinary hearing today, and when they have a serious prospect at loosehead in McGrath who is well worth another run-out. Thankfully, and to their credit, once the confusion was cleared up, wiser counsels prevailed.

So far as legal advice, the Committee have acted within their powers under the Regulations, and the Regulations giving them those powers are set out above. They have acted intra vires, to use the technical term. Given the reluctance of the Courts to get involved with the supervisory jurisdiction even when a sporting body has acted ultra vires which has been discussed before on this blog, it's hard to see how one could persuade a Court to step in when you're seeking to challenge a decision that the decision maker was entitled to make. This is all the more the case when there's an Appeal open to the player as a perfectly satisfactory alternative remedy.

Of course, there is always the risk at Appeal that the sentence could be increased, and it does raise the question of the awareness of changes in the disciplinary regulations. On which note, we might leave this for further discussion when the decision becomes available.

Edit: updated to reflect the team announcement.

Minimum Bans - Webb and O'Gara.

In this post, I want to contrast two one-week bans for players using the boot on an opponent, as much to highlight the importance of publishing decisions as anything else.

In what was, even by the high standards of that fixture, a remarkably bad-tempered West Wales derby between the Ospreys and the Scarlets, Rhys Webb, the replacement Ospreys scrum-half, stamped several times on a Scarlets player. You can see it HERE. Although missed at the time, it was cited later, and he received a one week ban.

The minimum ban for stamping is two weeks. Webb got less than the minimum. And the thing is, because the RaboPro12 does not publish decisions, we have no idea if the minimum ban regulation was properly taken into consideration, what was argued, whether they were just plain wrong in breaking the IRB Regulation in going below the minimum - we don't know. It's a black box, and remarkably unsatisfactory, not least for those in other teams who want to know where the boundaries of rucking as opposed to stamping are.

By contrast, the ERC is meticulous about publishing. So, let us contrast the opaque Pro12 with the transparent HEC. About seventy minutes into the Edinburgh-Munster game in round five of the HEC, Sean Cox of Edinburgh followed through and clipped Ronan O'Gara of Munster with a lateish shoulder. O'Gara promptly became furious, followed Cox, and threw a boot at him, bringing him down. You can see it HERE. O'Gara was cited for it, and received a one-week ban - less than the minimum ban for this offence.

I should, at the outset, repeat that I am an unabashed Munster supporter; at matches, probably unabashed at volume levels comparable with a 747 on takeoff. I have been a fan of O'Gara since he was playing for PBC, then UCC, and on up the rankings; for some 20 years now, the fortunes of teams I support have depended on him, and he has delivered time and again. Therefore, I am fully aware that I may well not be coldly objective on this, despite my best efforts; but the decision raises some very interesting issues, so it has to be discussed, warts on the discussion and all.

You  can read the decision, by his Honour Judge Jeff Blackett, HERE. It's short, but very interesting. First, it accepts, in line with the Martyn Williams decision, that late shots, people swinging off you or those out to get a response can be provocation. It will not excuse retaliation - the learned judge makes that very clear at the end of the decision - but it will be taken into account. It's clear that this is an emerging viewpoint, and contrasting it with the approach taken by the same judge in O'Connell makes for a neat counterpoint.

Secondly, it deals with the question of what is "wholly disproportionate" under the new Regulation 17; indeed, it's the key issue in the decision, as from the outset, that was the plea made, that the minimum ban would be wholly disproportionate. The disciplinary officer submitted that this should be considered solely in light of on-pitch events. In that submission, he was, I would say, wrong; to go below the minimum, there is a two-part test, involving it being wholly disproportionate but also that there are compelling off-pitch reasons. In other words, it is not limited solely to what happens or happened on the pitch.

The learned judge started at the minimum ban of four weeks; so far, so good. He then reduced it by 50%, examined the remaining two weeks, felt it would be wholly disproportionate and reduced it to one week. This, I would say, was an error, because it was back to front. The maximum mitigation is 50% of the relevant entry point, but even then one cannot go below the minimum ban unless wholly disproportionate, at which point, if it is wholly disproportionate, one is at large on sentencing. The learned judge put the cart before the horse on this; it should have been:

Minimum - wholly disproportionate, Y/N? If Y, mitigation up to 100%, if N, minimum.

Instead, it was:

Minimum - Mitigation of 50% - Wholly disproportionate, Y/N? Y, so mitigation.

It ended up at the same result - if the learned judge felt that a sentence over 1 week was wholly disproportionate, gave his reasons and was not irrational, that's what the sentence would have been through either route - but through the wrong route. It is, however, a good example of what I've described as an error within jurisdiction; it was wrong, but it made no odds, so it would not be upset.

The main thing is, it sets out the reasons, and one can see them, and get guidance as to what may or may not be wholly disproportionate in the future. The contrast with the Pro12 could not be clearer.

There is no reason not to publish. If a decision is right, then let people see it, let them read it, and let them learn from the precedent. The ERC's success in largely stamping out tip-tackles in this year's HEC should be a testament to just how effective that can be.

Speaking of stamping out, there'll be another decision on the subject coming out of the Ireland-England Six Nations game. Of which more in due course...

Deterrence - Hartley.

Don't blame the sweet and tender hooligan, hooligan 
Because he'll never, never, never, never, never, never do it again (not until the next time)...

The Smiths, Sweet and Tender Hooligan.

In this post, I want to look at the concept of deterrence in the disciplinary system, and I'm going to choose the recent decision dealing with Dylan Hartley as the example. He is, I should state, not the only example one could choose of late in the disciplinary systems, and most rugby fans could name several such; but he is the most recent, and one of the more clear-cut, and will serve neatly to illustrate the point.

Hartley is no stranger to the disciplinary hearing room. In the last five years, he has served a total of 36 weeks suspension - a full season's worth - including for gouging and biting. There have been other incidents which have been, to put it no stronger than this, on the borderline, such as THIS incident with Richie McCaw and THIS one with Ross Ford of Scotland in 2010, neither of which was cited. I dealt with his last ban before this in THIS post, where despite his record, Roger Morris of Wales gave him less than the minimum ban for biting. Heavy emphasis was laid in this hearing on how Hartley was a reformed and reforming character.

Alas for the better angels of our nature. Come the new season, and the Northampton-Ulster HEC game in Franklins Gardens in December, and Hartley was seen attacking his opposite number, Rory Best, and cited. You can see the incident HERE and HERE (my thanks again to Snedds for the use of his work). The person hearing the case was, again, Roger Morris. One might think that, having given him the bounce on the basis of his reformed character, that to see him in in front of him again so quickly would lead to an increased sentence as a deterrent.

One would think wrongly. Hartley got two weeks, the minimum, and you can read the decision HERE. In it, Mr. Morris states that the reputation of a man who has been found guilty of biting, of attacking a player on the ground, and of gouging two players in one game is "perhaps unfair".

Now, let us be blunt and state: that is just plain daft. But, so long as not irrational or unreasonable, decision makers can make daft decisions within their jurisdiction. But if the decision ignores past records or the history of an offender, if offenders are treated as if sinless each time, what does that do to deterrence?

Punishment, in any form of tribunal, has several functions: rehabilitative - to make the offender into a law-abiding person; punitive - punishment for the offence; and deterrent - to warn the offender and others not to commit that offence. Usually, rehabilitation is part of the reason why those who admit their offences and face up to the wrong-doing get a discount on the punishment part; it's a carrot to reform, with the stick of punishment and deterrence in the background.

As it happens, I have serious doubts that increased sentences are the most efficient of deterrents. Historically, the death penalty didn't work as such; under what was called the Bloody Code in Georgian Britain, there were literally hundreds of offences for which one could be hanged, but it had no effect on crime. Certainty of detection and punishment works much better (and it cannot be coincidence that the number of tip-tackles in this year's HEC have dropped off dramatically with the certainty of detection and punishment for this).

However, it does have to be said that there comes a point where rehabilitation fails - the offender keeps offending - and deterrence and punishment come into play. Part of the consideration there is keeping someone who is patently not going to stop offending against others out of circulation for the safety of others, and to deter the offender and others from doing it again. This is part of why those who committed tip-tackles were given such stiff sentences; the message wasn't getting through, so the sentences went up until it did and players were deterred from risking being done for a tip-tackle.

So, one has to ask what the position is here. Deterrence is a feature of the citing hearing; that is why record is to be considered. It is hard to say Hartley is reforming, when he has been cited twice in one year, despite his pledge to reform back in March. So, we are left with deterrence - and that is where this sentence, on a repeat offender signally fails. I hate the phrase "sends out a message" - if you want to send a message, use your 'phone and text - but when someone with a record such as Hartley's is told that his reputation is unfair, what incentive does he have to mend his ways, what fear of punishment in the future does he have - and since there is a victim of each offence, who will be on the receiving end of  foul play? 

Because he'll never do it again - not until the next time.