I wrote a while back about a GAA player who was in a coma in the US from an off-the-ball blow to the head.
Thankfully, from reports in the press, he appears to be on the road to recovery and is, at least, out of the coma.
However, it's worth noting that despite that, there were columns in the same paper demanding hurlers remove their helmets to be more visible, and never mind that oul' concussion nonsense.
It looks like getting people to take head injuries, and the liability for affording decent treatment for them, is going to be a long road.
Thursday, August 4, 2011
Wednesday, July 20, 2011
Concussion - After-Effects
A very harrowing article in today's Guardian about the effect of repeated concussions on an American Football player.
Now, it can fairly be pointed out that NFL players use their heads as weapons, and are trained to do just that. Even helmets won't stop injuries there. But it has to give you pause when you think about the effect of repeated concussions being so devastating.
The last few lines of the article are particularly worrying.
"In Duerson's heyday, she recalls, if a player took a knock, the coach would hold up two fingers and say "how many can you count?", the player would say "three" and the coach would send them back on to the field.
Now, contrast that with the words of referee George Clancy to the physios dealing with England player Chris Ashton when he was concussed playing against the Springboks last November:
"He's nearly asleep. He's slurring his words. Make a reasonable decision now."
And yet, Ashton stayed on, and played on; he's said himself since that he remembers nothing about the game, and it wasn't worth it. He's right.
And let's not forget, this happened in 2010, despite the evidence having been there since 2007 from the NZ study about the use of SCAT cards for concussions; and yet nothing was done until June this year.
This may well be an issue for more than just NFL.
Now, it can fairly be pointed out that NFL players use their heads as weapons, and are trained to do just that. Even helmets won't stop injuries there. But it has to give you pause when you think about the effect of repeated concussions being so devastating.
The last few lines of the article are particularly worrying.
"In Duerson's heyday, she recalls, if a player took a knock, the coach would hold up two fingers and say "how many can you count?", the player would say "three" and the coach would send them back on to the field.
"They treated it like a joke," Alicia says. "But that wasn't a joke."
Now, contrast that with the words of referee George Clancy to the physios dealing with England player Chris Ashton when he was concussed playing against the Springboks last November:
"He's nearly asleep. He's slurring his words. Make a reasonable decision now."
And yet, Ashton stayed on, and played on; he's said himself since that he remembers nothing about the game, and it wasn't worth it. He's right.
And let's not forget, this happened in 2010, despite the evidence having been there since 2007 from the NZ study about the use of SCAT cards for concussions; and yet nothing was done until June this year.
This may well be an issue for more than just NFL.
Tuesday, July 19, 2011
Only to prevent manslaughter?
I was talking in a recent post about the reluctance of the Irish courts to get involved in litigating sports disputes. The approach taken is a bit like the comment of an early referee not just of rugby, but at Rugby, that he had never intervened in a game as a referee except to prevent manslaughter (the referee who's supposed to have said that, Willam Temple, ended up Archbishop of Canterbury; muscular Christianity, I suppose...).
Pretty much right on cue, a judgement appeared on the (excellent) Irish Courts website confirming that view. Rather aptly, it's about a tug of war.
The case is Conway v. Irish Tug of War Association & Others. The others included the International Tug of War Association. By the time the case had come to court, the Irish Association had settled, and only the International Association. The case was about what should, or should not, have been done about a claim a team at a competition in Killarney were wearing illegal footwear. The Plaintiff took issue with the decision taken by the organisers; her club were okay with it, and went with the penalties imposed on them. There's a fair bit of technical legal stuff (which you can safely skim if you're a lay person reading the judgement). The pieces of relevance from a sporting perspective start from about 7.3 on.
The judge, Laffoy. J, looked at the Modahl decision I mentioned in the other post. Now, the line of cases following on from Modahl don't seem to have been mentioned to the judge, which may have queered her view of it; she side-stepped it, in large part. Moreover, this claim was based on tort, not contract, which was the point in Modahl.
However, it's worth noting that she accepted that she had the power to intervene; just that in this case, where on the facts it was pointless, she refused to and struck out the case.
So, it looks like the Irish courts are still at the position in Coughlan v. FAI that I mentioned in that post here, perhaps a little further on. Modahl may be up for grabs in Irish law, and I suspect a properly-argued case with the line of cases following on from it might well bed it properly. But, while the Courts here might hate intervening, it does seem to be accepted that they can, and sometimes should do so.
So, if the hearing is unfair enough to be on the manslaughter level, even a judicial referee might intervene. Of course, what would make the Courts reach for the whistle is the real question.
We'll see; pre-season 2011-12 has started, and there's a lot of rugby ahead of us until the end of May next year.
Pretty much right on cue, a judgement appeared on the (excellent) Irish Courts website confirming that view. Rather aptly, it's about a tug of war.
The case is Conway v. Irish Tug of War Association & Others. The others included the International Tug of War Association. By the time the case had come to court, the Irish Association had settled, and only the International Association. The case was about what should, or should not, have been done about a claim a team at a competition in Killarney were wearing illegal footwear. The Plaintiff took issue with the decision taken by the organisers; her club were okay with it, and went with the penalties imposed on them. There's a fair bit of technical legal stuff (which you can safely skim if you're a lay person reading the judgement). The pieces of relevance from a sporting perspective start from about 7.3 on.
The judge, Laffoy. J, looked at the Modahl decision I mentioned in the other post. Now, the line of cases following on from Modahl don't seem to have been mentioned to the judge, which may have queered her view of it; she side-stepped it, in large part. Moreover, this claim was based on tort, not contract, which was the point in Modahl.
However, it's worth noting that she accepted that she had the power to intervene; just that in this case, where on the facts it was pointless, she refused to and struck out the case.
So, it looks like the Irish courts are still at the position in Coughlan v. FAI that I mentioned in that post here, perhaps a little further on. Modahl may be up for grabs in Irish law, and I suspect a properly-argued case with the line of cases following on from it might well bed it properly. But, while the Courts here might hate intervening, it does seem to be accepted that they can, and sometimes should do so.
So, if the hearing is unfair enough to be on the manslaughter level, even a judicial referee might intervene. Of course, what would make the Courts reach for the whistle is the real question.
We'll see; pre-season 2011-12 has started, and there's a lot of rugby ahead of us until the end of May next year.
Monday, July 18, 2011
Red card offence = ?
Something that came to mind following a discussion this morning about citing.
Citings happen under IRB Regulation 17. For a citing, the Citing Commissioner has to be satisfied that the offence in question is one for which a player could be sent off - a red card offence (it's Regulation 17.6.2 (a), if you want to check it up; page 3 of the PDF link above).
In quite a few recent citings, the player cited has admitted the offence, but said it didn't merit a red card. In some cases - Jerry Collins' recent one, for example - that's been accepted (by a majority in Collins' case).
The problem is, there doesn't seem to be any definition at all in the Laws as to what is or is not an offence that merits a red card. Law 10 (5), which is the one dealing with sanctions for foul, illegal or dangerous play, is very much along the lines of, "Your call, ref, whatever you're having yourself." The only one at all seems to be the mandatory requirement that anyone committing the same offence for which they have been sin-binned must be sent off in Law 10 (5) (b). And, as anyone who watches the game will agree, that one's ducked all the time.
So, you have a central part of how citing is supposed to work - and it's entirely subjective.
It's a bit like the famous line from the American Supreme Court Justice, Potter Stewart, on obscenity in a case called Nicobellis v. Ohio:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it...
If only it were that simple in rugby. Or that precise.
Citings happen under IRB Regulation 17. For a citing, the Citing Commissioner has to be satisfied that the offence in question is one for which a player could be sent off - a red card offence (it's Regulation 17.6.2 (a), if you want to check it up; page 3 of the PDF link above).
In quite a few recent citings, the player cited has admitted the offence, but said it didn't merit a red card. In some cases - Jerry Collins' recent one, for example - that's been accepted (by a majority in Collins' case).
The problem is, there doesn't seem to be any definition at all in the Laws as to what is or is not an offence that merits a red card. Law 10 (5), which is the one dealing with sanctions for foul, illegal or dangerous play, is very much along the lines of, "Your call, ref, whatever you're having yourself." The only one at all seems to be the mandatory requirement that anyone committing the same offence for which they have been sin-binned must be sent off in Law 10 (5) (b). And, as anyone who watches the game will agree, that one's ducked all the time.
So, you have a central part of how citing is supposed to work - and it's entirely subjective.
It's a bit like the famous line from the American Supreme Court Justice, Potter Stewart, on obscenity in a case called Nicobellis v. Ohio:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it...
If only it were that simple in rugby. Or that precise.
Wednesday, July 13, 2011
Consistency in a World Gone Mad - Part II
So, to pick up this thread again - let's suppose you're a player, who's aggrieved at an inconsistent disciplinary hearing; you've been cited for something in a match when someone else, who did the exact same in the same incident, hasn't. That inconsistency is, you're saying, such that you're getting an unfair hearing.
What can you do about this, or, indeed, any unfair disciplinary hearing?
Good question. The answer may well depend on whether you're a professional player, or an amateur.
The reason is that the Courts - in Ireland, at least - really, really do not like getting involved in sporting disputes. Essentially, they are seen as being private disputes, between private parties, and to be resolved by the private bodies concerned. The Courts won't step in and exercise an oversight function in the same way that they would were there a public dimension to it. So, where there's a state or statutory body involved, overseeing the disciplinary hearing, then the Courts can and will intervene, because there's the public element. But, if not, then it's a private dispute, to be settled at a later date; and if it's a sporting one, that's all the more the case.
In the Coughlan v. FAI case, last January, that was more or less the reason why the judge, Hedigan J., hearing that case, held against the applicant (who was seeking to challenge the FAI's refusal to him of a licence to run Cork City FC). He quoted an aside from another judge, Smyth J., in Gould v. McSweeney:
Sports organisations do best to resolve differences under their own governing codes, rather than resort to courts of law. Issues of natural justice are important, but the substance of matters rather than their form are important in seeking to resolve internal disputes in such organisations and recourse to the courts should be a last resort, and that only in the rarest of cases.
It is only fair to point out that, even since that hearing, Cork Con injuncted the playing of the Munster Senior Cup final; but it's also fair to point out that the Coughlan v. FAI case wasn't cited to the judge in that case. If it had been, the result might well have been very different; from the judgement, it seems pretty that, at amateur level, disputes should almost invariably be sorted out in-house.
That's under Irish law. It should be noted that, despite similar reservations expressed (see for example the last two paragraphs in this case, Flaherty v. National Greyhound Racing), the UK Courts still seem more willing to step in to exercise a general supervisory role, and a case of this kind, properly argued before the Irish Courts with a full discussion of the UK caselaw, well change the Irish position.
Be that as it may; even as it stands, if you're a professional player, it's different. For one thing, it's your livelihood - a distinction made by Smyth J. in Gould v. McSweeney. Also, as a professional, you're playing for a professional team. You have a contract with them. And that professional team in turn takes part in whatever competition in which you were playing for them under a participation agreement - a contract between your team and the organisers. Now, it might be pointed out that that agreement is between your employer and someone else, not between you and that someone else. That's where the Modahl case comes in.
In Modahl v, British Athletics Federation, Diane Modahl, the British former athlete was charged with failing a drugs test (wrongly, as it turned out). She went in front of a disciplinary committee whose members she felt were not unbiased. She challenged this finding, appealed and succeeded; she then sued for damage caused by the first finding. The Court of Appeal in the UK held that, although she didn't have a contract directly with the organisers, the effect of her participating for years in meetings and clubs run under the BAF was that she had an implied contract with them.
So, you have what is, in effect, an agreement, about your work as a player, between you and the organisers of the tournament. You have a contract with your team; your team have a contract - the participation agreement - with the organisers; and when it comes to discipline, the organisers implicitly (or even expressly) agree with you and your team that they'll deal with it, and deal with it fairly.
That includes disciplinary hearings affecting your work; and that means there's an implied term about a fair hearing at work.
In a sporting context, that'll be interpreted pretty robustly; Diane Modahl lost her case, as it was held that all concerned agreed to accept what was a reasonably fair hearing with no prospect of a different outcome.
That's where professional players have an option. If they don't accept the system, or if they can show that the hearing was unfair, they can go to the Court for an injunction, based on contract, preventing the organisers or governing body from suspending them on the back of what they say is an unfair disciplinary hearing. This has happened in France on more than one occasion, and there are English cases on this, in sport, discussed in detail in Modahl and Bradley v. Jockey Club, both of which are well worth a look.
However, both the IRB and ERC are based in the same city, and operate (so far as anyone can tell). under Irish law. So, an aggrieved player could go straight from the ERC headquarters, get a taxi, and be in the Four Courts looking for an injunction restraining an unfair hearing within fifteen minutes, depending on the traffic down the Dublin Quays.
And, since this post is already long enough, we'll leave the player stuck in the traffic for the moment, and get back to this later.
What can you do about this, or, indeed, any unfair disciplinary hearing?
Good question. The answer may well depend on whether you're a professional player, or an amateur.
The reason is that the Courts - in Ireland, at least - really, really do not like getting involved in sporting disputes. Essentially, they are seen as being private disputes, between private parties, and to be resolved by the private bodies concerned. The Courts won't step in and exercise an oversight function in the same way that they would were there a public dimension to it. So, where there's a state or statutory body involved, overseeing the disciplinary hearing, then the Courts can and will intervene, because there's the public element. But, if not, then it's a private dispute, to be settled at a later date; and if it's a sporting one, that's all the more the case.
In the Coughlan v. FAI case, last January, that was more or less the reason why the judge, Hedigan J., hearing that case, held against the applicant (who was seeking to challenge the FAI's refusal to him of a licence to run Cork City FC). He quoted an aside from another judge, Smyth J., in Gould v. McSweeney:
Sports organisations do best to resolve differences under their own governing codes, rather than resort to courts of law. Issues of natural justice are important, but the substance of matters rather than their form are important in seeking to resolve internal disputes in such organisations and recourse to the courts should be a last resort, and that only in the rarest of cases.
It is only fair to point out that, even since that hearing, Cork Con injuncted the playing of the Munster Senior Cup final; but it's also fair to point out that the Coughlan v. FAI case wasn't cited to the judge in that case. If it had been, the result might well have been very different; from the judgement, it seems pretty that, at amateur level, disputes should almost invariably be sorted out in-house.
That's under Irish law. It should be noted that, despite similar reservations expressed (see for example the last two paragraphs in this case, Flaherty v. National Greyhound Racing), the UK Courts still seem more willing to step in to exercise a general supervisory role, and a case of this kind, properly argued before the Irish Courts with a full discussion of the UK caselaw, well change the Irish position.
Be that as it may; even as it stands, if you're a professional player, it's different. For one thing, it's your livelihood - a distinction made by Smyth J. in Gould v. McSweeney. Also, as a professional, you're playing for a professional team. You have a contract with them. And that professional team in turn takes part in whatever competition in which you were playing for them under a participation agreement - a contract between your team and the organisers. Now, it might be pointed out that that agreement is between your employer and someone else, not between you and that someone else. That's where the Modahl case comes in.
In Modahl v, British Athletics Federation, Diane Modahl, the British former athlete was charged with failing a drugs test (wrongly, as it turned out). She went in front of a disciplinary committee whose members she felt were not unbiased. She challenged this finding, appealed and succeeded; she then sued for damage caused by the first finding. The Court of Appeal in the UK held that, although she didn't have a contract directly with the organisers, the effect of her participating for years in meetings and clubs run under the BAF was that she had an implied contract with them.
So, you have what is, in effect, an agreement, about your work as a player, between you and the organisers of the tournament. You have a contract with your team; your team have a contract - the participation agreement - with the organisers; and when it comes to discipline, the organisers implicitly (or even expressly) agree with you and your team that they'll deal with it, and deal with it fairly.
That includes disciplinary hearings affecting your work; and that means there's an implied term about a fair hearing at work.
In a sporting context, that'll be interpreted pretty robustly; Diane Modahl lost her case, as it was held that all concerned agreed to accept what was a reasonably fair hearing with no prospect of a different outcome.
That's where professional players have an option. If they don't accept the system, or if they can show that the hearing was unfair, they can go to the Court for an injunction, based on contract, preventing the organisers or governing body from suspending them on the back of what they say is an unfair disciplinary hearing. This has happened in France on more than one occasion, and there are English cases on this, in sport, discussed in detail in Modahl and Bradley v. Jockey Club, both of which are well worth a look.
However, both the IRB and ERC are based in the same city, and operate (so far as anyone can tell). under Irish law. So, an aggrieved player could go straight from the ERC headquarters, get a taxi, and be in the Four Courts looking for an injunction restraining an unfair hearing within fifteen minutes, depending on the traffic down the Dublin Quays.
And, since this post is already long enough, we'll leave the player stuck in the traffic for the moment, and get back to this later.
Tuesday, June 28, 2011
Concussion in GAA
Although not, I grant, about rugby and law, it's unfortunately a live issue in other sports in Ireland, too. Specifically, in the Gaelic Athletic Association, with the news that a player, is in a coma after a head injury received while playing Gaelic Football in San Francisco over the summer.
Concussion is a problem for all sports. Rugby is addressing that problem; the GAA may well need to follow suit. I realise that in this post, I run the risk of repeating what I've said elsewhere on this topic; it's a risk I'm happy to run, given the subject.
In any contact sport, players can get concussed. Accidents happen, even with the best will in the world, and everyone – and the Courts – accept that. But sports can’t be wilfully dangerous when there’s no sporting reason not to make the game safer. Sometimes, the laws of the sports in question get changed to protect players; so, rugby has changed the laws at scrums to make it safer, and hurlers now have to wear helmets.
Making a game safer doesn’t mean it has to be, or even can be, absolutely safe. Rugby is a collision sport, and inherently dangerous. A proper shoulder on the GAA pitch can stop a player dead, and hurling is not or the faint-hearted at the best of times. All are in the nature of the game, and players will get injured. The question then is – what happens when they get injured? What’s the legal position?
In England, it’s been held that if the sideline treatment is inadequate, then the governing body can be liable for the injuries caused by the lack of adequate treatment; it was the case of the boxer, Michael Watson, and the brain injuries caused to him by lack of proper medical treatment, that settled this. So, players are entitled to expect that when playing a game, that reasonable steps will be taken to make sure that they’ll receive reasonable treatment for injuries.
That doesn’t mean you have to have a neurologist at the side of every pitch. That’s just not realistic. But it does mean that injuries can’t just be ignored; and it means concussion can’t just be shrugged off as, “Sure, it’s only a knock, run it off, you’ll be grand.”
It doesn’t help that concussion isn’t seen as being a real injury. Studies in New Zealand rugby have shown the same problem of ignoring concussions. But concussion is a brain injury. You get concussed because your brain has been traumatised enough by an impact that it’s not functioning properly. That scary fact is one that needs to be faced up to.
Concussion kills. That’s not an exaggeration; research in South African rugby shows head and concussion injuries are the leading killer of players over the last decade. And it’s been clear since 2007 from research done in New Zealand rugby that proper sideline treatment makes a big, big difference to preventing concussion injuries becoming worse.
Rugby has, in the past weeks, finally got around to addressing this. It’s introduced new concussion management programs. The key to these is that they are simple, and allow players even at amateur club level to be assessed, quickly and accurately, using a pocket card – the SCAT card. This was first done in New Zealand, copied in South Africa, and the results have been dramatic. Coaches and referees have been trained how to use the SCAT card, carry it with them, can assess players who’re concussed and get them the proper treatment.
The surprise is that it took four years to make this change when it’s been known since 2007 what works.
The GAA’s problem is that the GAA’s own 2007 position document on concussion mentions the SCAT card, yet no efforts to introduce training for non-doctors in its use have been made.
This is so crucial because studies show that at training – where there are normally no doctors present – GAA players have the highest injury rate of any major sport in Ireland. 87% of inter-county hurlers receive head or facial injuries of some kind during their career; and if helmets don’t save American Footballers from concussion, then at least some of those hurling injuries will be concussions. Similar rates would be expected at lower levels.
Yet how many of those concussions of a wet training evening, with no doctor around, will be properly diagnosed and treated using the SCAT card?
So, there’s a clear problem of serious injuries – and concussion, being a brain injury, IS a serious injury – with a clear, simple and workable method of giving proper treatment to those injuries at all levels and at all times. Yet the GAA has not followed through on its own recommendations. And there really is no good reason why.
The IRB is introducing training for non-doctors in the use of the SCAT card this autumn. Some rugby unions already have it. The training programs are there, ready to be lifted, tweaked if necessary, and used to protect players. There really is no excuse for the GAA not to do just that, as fast as possible.
It would protect both the games and the players; and that has to be what everyone wants.
Wednesday, June 15, 2011
Consistency In A World Gone Mad - Part 1.
The best way to start off this one is with some clips (with thanks to those on Gwlad who've put them together).
Sean O'Brien hits Yannick Nyanga in the HEC semi-final - not cited.
Gavin Henson hits Alex Moreno - banned for seven and a bit weeks on appeal.
Richard Yapp hits Mick O'Driscoll - yellow card, but no citing.
Paul O'Connell hits Justin Thomas - red card, banned for four weeks.
The offence in each of these is the same; striking an opponent under Law 10 (4). In three of the four, it was hitting a player holding the other player back off the ball.
The sentences - or, indeed, whether cited at all - are wildly at odds.
To make the point even clearer, you have the difference between the cases of Richie Rees of the Blues and Mark Cueto of Sale.
So, what to make of this? Is there any pattern at all? And what does this mean at law for players who are up before the disciplinary beak?
Consistency is important in any disciplinary system. If it's not consistent, it's arbitrary; and if it's arbitrary, it's unfair (I've dealt before with why a disciplinary system in rugby requires fair procedure). Consistency does not mean the same result in every case, though; one size fits all is also unfair, as it pays no attention to the individual case. So, what does consistency mean?
This is an issue that's come up a lot in Irish law over the past few years (I should enter a note here that I have been involved in some of those cases). The two competing elements can be seen in two cases, Fasakin, and Itaire. In Fasakin, the late O'Leary J. said.
In Itaire, McGovern J. said:
The synthesis between the two is a Supreme Court case called Atanasov. In essence; for fair procedure, outcomes will not be consistent, because as individuals vary, so will their case. But fair procedure also requires what is considered in those individual cases and the way in which those cases are dealt with must be consistent.
So, all fine and dandy; but what does that mean in terms of citings?
If the same things are to be considered, and the same treatment given to each case, that certainly suggests that the threshold for a citing - whether a red card could be justified - should be the same in each case; and once that threshold is met, then the player should (indeed, must, for reasons I'll get to in Part II) be cited. Never forget, at a citing, the citing can be upheld, but no further action taken - as witness Jerry Collins' recent case. If the disciplinary hearing considers after hearing all the evidence that no further action should be taken, that's fair enough; but the same offence should still lead to the same citing once the threshold is passed. If one player is cited, when another player committing the same offence is not, that's inconsistent treatment; and the player cited has good reason to feel aggrieved.
There's no question - none - that striking can be punished with a red card. It happens, of course; I would go so far as to say every player has probably thrown a punch at some stage. But in each case a player takes his chances of being sent off when he does it, and knows it. So; a punch can be a red. Throw a punch and connect, it can be a red; which means it meets the citing criterion; which means consistency and fairness requires you should have to explain yourself in front of a hearing just as everyone else who throws a punch should.
Similarly, if and when it comes to sentencing, the same matters should be considered in the same way; whether aggravating or mitigating. The disciplinary regulation, Regulation 17, has a list of them; what is aggravating for one player should not be mitigating for another for the same offence.
To give a perfect example of this; for Alan Quinlan, being "old enough and experienced enough to have known better" was an aggravating factor; yet Schalk Burger having 50 caps was treated as being a mitigating factor for the same offence charged (and it is noticeable that after that, the IRB itself was moved to protest over inconsistency). That's as good an example of arbitrary inconsistency as could be asked for (and it's one which, I regret to say, has been repeated in the Cueto case).
As to what weight those mitigating or aggravating factors are given, that depends on the individual case; again, fair procedure.
So, it would certainly seem that in at least some of the clips above, consistency would have required that players be cited who weren't. What that inconsistency means for an individual player up before a hearing is for Part II.
Sean O'Brien hits Yannick Nyanga in the HEC semi-final - not cited.
Gavin Henson hits Alex Moreno - banned for seven and a bit weeks on appeal.
Richard Yapp hits Mick O'Driscoll - yellow card, but no citing.
Paul O'Connell hits Justin Thomas - red card, banned for four weeks.
The offence in each of these is the same; striking an opponent under Law 10 (4). In three of the four, it was hitting a player holding the other player back off the ball.
The sentences - or, indeed, whether cited at all - are wildly at odds.
To make the point even clearer, you have the difference between the cases of Richie Rees of the Blues and Mark Cueto of Sale.
So, what to make of this? Is there any pattern at all? And what does this mean at law for players who are up before the disciplinary beak?
Consistency is important in any disciplinary system. If it's not consistent, it's arbitrary; and if it's arbitrary, it's unfair (I've dealt before with why a disciplinary system in rugby requires fair procedure). Consistency does not mean the same result in every case, though; one size fits all is also unfair, as it pays no attention to the individual case. So, what does consistency mean?
This is an issue that's come up a lot in Irish law over the past few years (I should enter a note here that I have been involved in some of those cases). The two competing elements can be seen in two cases, Fasakin, and Itaire. In Fasakin, the late O'Leary J. said.
In Itaire, McGovern J. said:
The synthesis between the two is a Supreme Court case called Atanasov. In essence; for fair procedure, outcomes will not be consistent, because as individuals vary, so will their case. But fair procedure also requires what is considered in those individual cases and the way in which those cases are dealt with must be consistent.
So, all fine and dandy; but what does that mean in terms of citings?
If the same things are to be considered, and the same treatment given to each case, that certainly suggests that the threshold for a citing - whether a red card could be justified - should be the same in each case; and once that threshold is met, then the player should (indeed, must, for reasons I'll get to in Part II) be cited. Never forget, at a citing, the citing can be upheld, but no further action taken - as witness Jerry Collins' recent case. If the disciplinary hearing considers after hearing all the evidence that no further action should be taken, that's fair enough; but the same offence should still lead to the same citing once the threshold is passed. If one player is cited, when another player committing the same offence is not, that's inconsistent treatment; and the player cited has good reason to feel aggrieved.
There's no question - none - that striking can be punished with a red card. It happens, of course; I would go so far as to say every player has probably thrown a punch at some stage. But in each case a player takes his chances of being sent off when he does it, and knows it. So; a punch can be a red. Throw a punch and connect, it can be a red; which means it meets the citing criterion; which means consistency and fairness requires you should have to explain yourself in front of a hearing just as everyone else who throws a punch should.
Similarly, if and when it comes to sentencing, the same matters should be considered in the same way; whether aggravating or mitigating. The disciplinary regulation, Regulation 17, has a list of them; what is aggravating for one player should not be mitigating for another for the same offence.
To give a perfect example of this; for Alan Quinlan, being "old enough and experienced enough to have known better" was an aggravating factor; yet Schalk Burger having 50 caps was treated as being a mitigating factor for the same offence charged (and it is noticeable that after that, the IRB itself was moved to protest over inconsistency). That's as good an example of arbitrary inconsistency as could be asked for (and it's one which, I regret to say, has been repeated in the Cueto case).
As to what weight those mitigating or aggravating factors are given, that depends on the individual case; again, fair procedure.
So, it would certainly seem that in at least some of the clips above, consistency would have required that players be cited who weren't. What that inconsistency means for an individual player up before a hearing is for Part II.
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