Court proceedings.

I am precluded by the rules of my profession from commenting on this case. I post the link to show, simply: when I talk about a real risk of challenge to decisions, that risk should not be discounted by decision-makers.

http://www.irishexaminer.com/archives/2012/0913/ireland/rugby-club-wins-challenge-over-rescheduled-game-207365.html

Concussion - Fatality.

On 30th January 2011, a 14 year old boy died in Belfast apparently because he was left on-pitch after being concussed to get a second, fatal, concussion.

You can read the details HERE, HERE, and HERE.

This happened two years after the Zurich Consensus was released.

I've written before, on this blog and elsewhere, about the failure to deal properly with concussion. As the inquest is ongoing, I will not comment on it until the verdict is returned. However, at that time I will be updating this post in full. 

For the moment, I just want to extend my sympathy to the family. 

The Strange Death of the Minimum Bans - Hartley.

Some games, I never want to watch again. This may explain the gap in dealing with incidents from them.

In this post, I want to return to a topic I've dealt with previously, the apparent death of the minimum ban - and what has happended since. You can read the previous posts on that HERE, HERE and HERE. These decision involves the England-Ireland 6 Nations game.

In the first, Dylan Hartley was charged with biting Stephen Ferris. Ferris complained about it on-pitch to the ref, Nigel Owens, who - quite reasonably - pointed out that he could see the marks, but he hadn't seen the incident, and he could only ref what he saw. After the game, which all went horribly wrong for Ireland, Hartley was charged with biting. You can read the decision HERE. There is a noticeable clash of evidence, and not one the decision makes any clearer, as it tries to accept two inconsistent accounts at the same time; however, despite the way in which the defence was run, it is clear that Hartley DID bite Ferris, and was so found to have bitten him. The interesting part is the sentencing.

Hartley has a previous sentence of six months for gouging two players in the one match. He denied the allegation, and fought it, hard, with no expression of remorse. A previous example of the sentence one would expect for this offence would be Danny Grewcock, convicted of biting Kevin Mealamu's fingers in the first Lions test in 2005 and who served two months as a result (Grewcock is now a member of the IRB's Morality Panel).. The minimum ban for this offence is 12 weeks; and a lesser ban than this minimum can only be imposed in exceptional circumstances, which I have dealt with in the earlier posts.

Now, the minimum ban has been under considerable attack for quite some time. But in this case, there was a new and dramatic departure. Despite the fact that previous offences must be taken into account, the Disciplinary Committee disregarded Hartley's previous six-month ban entirely. To put this into context, Paul O'Connell's case, the Appeal Hearing expressly found that full mitigation could not be given where there was a previous suspension and the allegation had been fought or there was no expression of remorse. In that case, the previous suspension was seven years beforehand, of three weeks; Hartley's was five years beforehand, for six months (and the East Terrace was somewhat droll on the topic).

Not only does this depart from the requirements of the previous judgements on minimum bans, as well as the plain wording of Regulation 17 as it the stood that the previous bans must be taken into account (there was discretion as to whether to regard them as aggravating, but all bans as an adult player had to be taken into account), it is so inconsistent with the manner in which mitigation has been applied in the past that either it is regarded as an outlier and entirely inconsistent, or else this style application of mitigation has now become entirely arbitrary and inconsistent between hearings. If it is this latter, that would be an open invitation for players whose livelihoods are, or could be, affected by such arbitrary hearings to go to Court on the matter.

Matters have, however, since changed. And it is this change that I want to look at in the second part of this post.

Concussion and the GAA - Updated.

A former Munster fullback* was supposed to have said that the true Irish sports were rugby and hurling. And, with my beloved Cork now in the All-Ireland quarter-finals, I'm delighted to see at least one of them is dealing properly with the issue of concussion.

I wrote before about Fermanagh player Mark McGovern, who suffered a serious concussion injury from an on-pitch incident in San Francisco last May while playing Gaelic Football, and how his case highlighted the failures of the Gaelic Athletic Association (GAA) to address the subject of concussion management and the effect this could have on liability for such injuries.. He spoke at the recent launch of the GAA's concussion management program, in association with the excellent Acquired Brain Injury Ireland (ABII) and the Gaelic Players' Association (GPA).

The management program is excellent, and there is no question that the GAA are now taking the steps needed to deal with concussion on-pitch in as required by the Zurich Consensus, to which the GAA has signed up since 2008. However, as with rugby, the problem is historical. It has taken five years to actually bring in an active pitch-side concussion management program when the data showed that such a program is the best way to deal with the duty of care to player safety. In that time, there has been, as there has been and regrettably continues to be in rugby in Ireland, a failure properly to deal with concussion as required by the Association's own rules.

The statistics gathered by the GPA and ABII that over half of all players at elite levels have sustained a concussion, and 44% have sustained repeat concussions gives an indication that the number of players affected by this is not small. In fact, it's probably a majority of those who play at the elite levels of GAA, which are effectively professional in all aspects but for being paid. Mercifully, the numbers who will be symptomatic as a result are much smaller. But it is far, far too much of a leap to assume that there will be no-one who will not be symptomatic as a result of this sustained failure to address this issue since 2007.

However, at least the GAA is now addressing this issue and taking it seriously. To my astonishment, the IRFU site still states, in defiance of the comments of international referees on the IRB site to which it links to the effect that referees should bring the Pocket SCAT2 onto the pitch and use it, that

While referees will see a reference to Pocket Scat2 in the iRB Guidelines, it is important to clarify that it is not necessary to attempt to use this to assist in the identification of suspected concussion.

Begging the question, of course, of just what on earth they think the Pocket SCAT2 is for if not for its designed function of managing concussion on-pitch accurately and safely for the benefit of all.

By this stage, one has to ask: is it really too much to ask that the IRFU give those who could end up being sued as a result of its failures the proper information to help prevent that happening, and, more importantly, protect the players on the pitch?




*The quotation is attributed to Eamon de Valera, who played full-back for Munster in the 1900s.

Concussion update - Warburton, Lipman and Concussion Bins

"Everyone's getting bigger, stronger and faster, [but] the brain's the brain, if you drop a computer that many times eventually it's not going to turn back on."

I wish, fervently wish, that I did not have to keep revisiting this issue. But, alas, it keeps on coming up.

In the last month, the IRB announced it was going to trial concussion bins - not dissimilar to a blood bin - at the Under-20 Rugby World Cup in South Africa. It was an excellent idea, not one that I recall having to be used on the squelchy pitches of a winter Stellenbosch, but a definite step forward.

However, it then followed up with a step backwards on-pitch. You will recall that, in the Rugby World Cup final, Morgan Parra of France appeared to be concussed - was certainly showing symptoms of concussion - left the pitch then came back on only to get concussed again and have to leave the pitch. It was in breach of the IRB Concussion Regulations, and downright dangerous. The failure of referee Craig Joubert to enforce the Regulations attracted comment on this blog and elsewhere.

You will also recall that, back in February, Wales openside and captain, Sam Warburton said that he was getting headaches for days after games - concussion symptoms. Again, nothing came of it.

In the third Australia-Wales test, refereed by Joubert, Warburton took a huge hit to the head from a knee, which you can see from various angles HERE, HERE and HERE (once more, the work by the poster Snedds on the Gwlad rugby forum in compiling this archive of clips is invaluable as a resource), and was unmoving for a while and wobbly on his feet when getting up - concussion symptoms under the Regulations. Warburton was not removed from play as the Regulations would require, but despite playing on, was clearly and visibly not right. Ten minutes later, Warburton was on all fours, being sick, as you can see HERE.

So, a referee with a record of leaving concussed players on the pitch in defiance of the Regulations did not comply with the duty to apply Regulations made for player safety in the case of a concussed player with a history of concussion symptoms. That sort of persistent refusal apply the laws made for player safety is asking for trouble.

One has the contrast of Kieran Read of the All Blacks being rested because of sustaining a second concussion in two weeks, even with the clearance periods (that the All Blacks could then move Richie McCaw to 8 and bring in his 20 year-old MiniMe Sam Cane shows why, even when you admire NZ rugby as much as I do, it's hard to love an opposition with that sort of limitless depth. Just a small bit of weakness like the rest of us would be so much more endearing). But the real lesson was in case of Michael Lipman.

Lipman, late of Bath and the Melbourne Rebels, had to retire this last week, after sustaining over 30 concussions in his professional career (which career spans more or less the time period since concussion was first being managed properly in New Zealand, and the last five years of which post-date the reported study on the success of that concussion management regime). He is now, it would seem, permanently symptomatic as a result, judging from the litany of symptoms he talks about in that article. The quotation at the start of this post is from him, and it reflects the simple truth of the matter.

The Concussion Regulations are in place for a reason, and that reason is to protect players. If those with a duty of care towards players, like referees, persist in refusing to apply those rules of the game, then players will get hurt, and those players who end up with symptoms for the rest of their lives as a result of that failure will, sooner or later, sue. No-one wants that, but it is coming, and coming closer each time a referee fails to do what he or she is supposed to do. There is no down-side in applying the Regulations, which makes that failure all the more baffling.

So, to once again make the plea: for the sake of the game, of the referees, and the players, please - apply the Regulation and do not let concussed players keep playing to get hurt worse.

Because sooner or later, not applying them will turn out to be much the more painful option, for all concerned.

Calum Clark Citing Decision.

When a disciplinary system rewards misleading a tribunal and punishes eating biscuits, it's very hard not to think that system is broken.

In the final of the Anglo-Welsh Cup on the 18th of March, Calum Clark of Northampton Saints was involved in a ruck. The whistle went, awarding a penalty to Saints. Clark grabbed the right arm of hooker Rob Hawkins of Leicester Tigers and then used his weight to bend Hawkins' arm backwards and hyper-extended the elbow joint, breaking the arm in several places. You can see that action from in-field HERE, and also an unimpeded view from the other side, HERE and HERE (the footage is originally from Sky via Rugbydump.com, and converted into a slower format by a poster on the Gwlad forum).

Note, in particular, what Clark does with his right arm, looking down, then bringing it down on the right elbow of Hawkins before he then rocks himself backwards. Note further that all the way through this, the referee is signalling a penalty to his side - you can see on the first view that the referee blows for the penalty at 0:13, and Clark does not grab Hawkins' arm with his left arm until 0:15 - and the ball is clearly visible and available.

Let us be absolutely blunt about this. This was an absolutely sickening act, and one that has no place on the rugby pitch. It was not accidental; it was after the whistle had gone - three seconds after, according to the recital of facts at the start of the decision - more than enough time to let go. Clark did not bring his left elbow down to pin Hawkins' arm by accident, and he did not then throw his weight backwards by accident. Claims that it was an effort to move a player who, even on the decision itself, was trapped under another player, may be disregarded; anyone who has played the game knows that you will not shift someone trapped under 100kg of player by bending their elbow the wrong way until it snaps.

If the word "thuggish" cannot be applied to this behaviour, then it should be retired from the language as being of no further value or use.

After that match - which Saints lost - Clark tweeted:

Another final. Another runners up medal. In the bin.

You can see the original tweet HERE; it is from 6:08 that evening, shortly after the game.

He was cited for his actions. In the meantime, Hawkins - who was out of contract, and playing to try and get a new one - had to have surgery on his elbow: the break was so bad that reconstructive surgery was impossible. It is unclear if he will be able properly to straighten his arm again.

The citing hearing was on the 29th of March, and the decision came out on the 30th. Clark was suspended for 32 weeks, reduced by half from 64 weeks. You can read the full decision HERE. Astonishingly, Saints appear to have felt hard done by, judging by their press release. To appreciate just how incredible a position this is, let us now look at the decision.

It should be noted that this was not the first time that Clark had been in trouble. On the 20th of June, 2008, he was sent off in the Under 20 World Cup Final for attacking two different opponents - you can see the offences HERE. Clark was born on the 10th of June, 1989; he was 19 when he was sent off in the U20 RWC final.

Except that's not what he told the Judicial Officer, His Honour Judge Jeff Blackett. Clark claimed that he was 17 at the time, and Richard Smith QC, acting for him, made submissions on that basis for which he was thanked by the learned judge: to quote the decision:

Mr. Smith submitted that the one previous incident of foul play could be ignored because it was five years old and committed when the player was under 18 and that he could be treated as a man of good character.

Clark was not under 18 when he was sent off. He was 19. It was stated as a fact by Counsel that he was under 18. This is highly significant. Clark was given a 50% discount on the sentence for having a clean record past the age of 18 when he did not have such a record. Crucially, and astonishingly, neither a QC not a judge appear to have been able to twig that a player in an Under 20 final is almost always going to be over 18: Under 20 is the next age group up from Under 18. Neither realised, or appeared to do the elementary mathematics to realise, that a player born in early June 1989 must have been 19 in late June 2008.

It should be noted, in passing, that Counsel have a duty not to knowingly or recklessly mislead a tribunal in front of which that Counsel appears. In this case, one presumes it was mere inadvertence; but it is somewhat surprising that no steps to apprise the tribunal of the correct age of Clark appear to have been taken in the intervening three weeks.

As it stands, whether by inadvertence or by Counsel being misled as to the age of his client, the tribunal was misled as to a crucial piece of evidence that was entirely material and central to the decision and the sentence handed down. Clark got the benefit of the hearing being misled as to his age.

It should be added, nor was it the only factually debatable statement: Clark claimed that "[f]or me, the result of the game was insignificant". You may compare and contrast that statement with his actual tweet straight after the game ended which you may see above. There are many other such statements: it's well worth reading his account and watching the videos at the same time to contrast and form one's own opinion.

Now, here we have a situation where, unquestionably, the JO was told something that was not true, as a palpably and demonstrably false mitigation, and on the basis of which an offender got the maximum discount allowable. Yet, by contrast, Brendan Venter ate a biscuit provided at his hearing - and this was an aggravating circumstance to be treated as expressing disdain for the system.

So, bluntly, when misleading a judge about maiming opponents gets fulsome praise for upholding the system but eating biscuits strikes at the root of rugby discipline, how can it be said that this disciplinary system is now not teetering on the verge of the genuinely arbitrary?

This needs to be addressed by the game. Fast. Because someone who is willing to do this to an opponent and then mislead the citing hearing has no place on the pitch.

Edit: slight typos fixed.

White Card, White Flag.

It's one thing to say the referee's decision is final. But what if he's not making any decision at all?

Those watching the Super 15 will know there is a trial of a new card, the white card. It means that the referee doesn't give a red, or a yellow, but flags to a Citing Commissioner that there is something that happened that the Citing Commissioner should look at. It's taken from rugby league's On Report system. Like most league imports, from tip-tackles to ignoring crooked put-ins at the scrum to Chris Ashton, it's not working out half as well as was thought.

In the first round, Mark Lawrence yellow-and-white-carded a clear, unquestionable, red-card tip tackle offence by Andries Strauss of the Cheetahs on Wikus van Heerden of the Lions; van Heerden was concussed by the tackle and had to leave the field. You can see it HERE (which, in passing, shows how dangerous these tackles are, and why scrum caps don't protect from concussion) and read a discussion of the system HERE.

This weekend, Bryce Lawrence didn't even white-card a tip-tackle that you can watch from different angles HERE, HERE and HERE. Again, an offence where the player was lifted, both feet off the ground, dropped without regard for safety, and head or upper body hit the ground first - a category 2 red card - and nothing done.

Of course, the point is, a Citing Commissioner will watch the game and cite what he or she feels is worthy of citing regardless. All the white card does is offer a way out of a straight red by passing the buck for the suspension to the Citing Commissioner, not arising from a - warranted - red card.

Perhaps the worst example of this of late was Dave Pearson in the Bradley Davies case. In his evidence to the citing hearing, he stated that he did not recommend a red card for Bradley Davies clear category 2 red card offence because he felt it should be left to the Citing Commissioner. Bluntly, that was a cop-out.

The problem is, human nature. Making decisions is hard, and making decisions in a pressurised situation is even harder. That's why good refs are rare. It's why judges are paid well; making pressurised decisions is a rare skill. It's a lot easier to leave the job to someone else who has more time to look at it slowly. But, if you take the job of being a decision-maker in a pressurised situation, not making a decision is a luxury you don't have. If you don't make the decision, if you leave it to someone else, you are not doing your job.

There is more to this than just commenting on failure to make a decision affecting the game. There is a legal liability aspect to this. Once again, we have to look at the core reason why the respective referees in Smoldon v. Whitworth and Vowles v. Evans were found liable; they failed to make a decision. In each case, the referee failed to apply a law made for player safety and a player was injured as a result of that breach of duty of care on the part of the referee.

Law 10 (4) (j) is just such a law; it was amended to read as it now does to protect players, and the memo directing referees to send off players who commit category 1 or category 2 offences makes it clear that that, too, is based on player safety. A player who has been injured as a result of a failure to send off players who commit those offences, or a player who could make a case that the failure to act on that memo meaning players have not been deterred from tip-tackles contributed to his injury, could then point to Vowles v. Evans and say: you had a duty to apply this law for my protection; you did not; and because of that failure I have been injured; so you are now liable.

These tackles are dangerous. The deterrence to stop players from committing them is needed to protect players. And, the more referees reach for white card instead of the harder, but correct, red, then the closer  the day comes when an injured player sues a referee for failing to do his duty and deter a tackler from tipping someone upside-down and dropping them onto his neck.

 One of the core tenets of rugby is: the referee's decision is final. But that means the referee has to make an on-pitch decision. The white card cop-out just makes the tempting, dangerous and weak option too easy. It should go no further.