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.

Minimum Bans Part III - Adam Thomson

I ended Part Two of these posts on the Return of the Minimum Ban with the the words, "it'll definitely be one to keep an eye on this NH season."

If only I had the same gift of prescience with the numbers for the Euromillions.

In the Scotland-All Blacks game, All Black flanker Adam Thomson went to ruck Scottish flanker Alistair Strokosch. Strokosck, by his own cheerful admission on Twitter, was killing the ball - and good luck to him, because that's part and parcel of a flanker's job. So is taking the occasional lick of the studs in the cause; but the problem was, Thomson caught Strokosch on the head.

It is perhaps a sign of increasing age that I would happily see rucking come back on the rugby pitch, but the unwritten code even back in those far-off days of the last century, when it was the mark of one's success in defensive rucks that one came off the pitch looking like a raspberry-ripple zebra from the rake-marks, that contact with the head, or joints, was a strict liability offence; hit them, even accidentally, and off you went.

Thomson was cited; and, at the initial hearing, got a sentence of one week from the JO, Noel Couraud. The minimum sentence for this offence is two weeks.

There was instant furore. Various members of the press in the Northern Hemisphere were furious that this was too lenient, various members of the press in New Zealand were furious that they were furious. When Brett Gosper, CEO of the IRB, let it be known that the IRB were looking at this case and were thinking of appealing it, the outrage and umbrage from both sides went up even further (in ease of those looking for links, the volume of them is such that I suggest you look at Twitter as a start point, rather than the endless number of links that would be required).

What is, again, surprising is that none of them seemed to pick up on the key point; the requirement under the new regulation 17 that minimum bans mean minimum.

The IRB appealed; and the appeal was heard by a panel of His Honour Judge Jeff Blackett, Pat Barriscale and Jeffrey Summers; a very, very heavy-hitting panel. The full decision is not yet available, yet we can say what the essence of it was: the ban was increased to two weeks not because the one week was too lenient - that part was rejected - but because it broke the requirements of the minimum ban part of Regulation 17.

So, we now have the first-ever appeal of a sentence by the IRB; the enforcement of the minimum ban regulation; and an almighty eruption of vitriol in the press that might have been avoided if journalists actually read the press releases from the IRB and SANZAR. The vitriol is regrettable, but the others are not. It is refreshing to see the IRB backing up its one rules, and actually following through. however much sympathy one has for Thomson, a fine and clean player with the immense misfortune to be playing in the same county and same position as one of the greatest players the game has ever seen, it is right that where the rules are broken in a hearing that it be rectified.

It should be noted that this is not a question of leniency; one may feel an outcome is too lenient, but it is the process that is the key. So long as the process is correct and the rules followed, one may err. It is unfortunate, but it is what is referred to in the Courts reviewing matter of this kind as an error within jurisdiction. A breach of the rules, such as happened here, is a different matter, and is open to challenge; and the IRB is to be commended for facing up to the responsibility to deal with the matter, not least because this pre-emption and this willingness to enforce the rules properly makes it more likely that rugby does not end up in the Courts.

It's now over and dealt with, as are the November tests. It is to be hoped that the IRB will continue to hold this line, in all cases; and it's to be hoped that journalists might read press releases from June before things blow up in November.

Minimum Bans II - The Return of the Minimum Bans From Beyond the Grave?

In Part I of this, I dealt with the Dylan Hartley case that, amongst other cases, showed how the minimum ban had become a dead letter.

The reason I say "had" not "has" is: they're back. And this time they seem to mean business.

June is an interesting time for anyone interested in the laws of rugby, because it's the time when the changes are usually quietly slipped in. In this case, Regulation 17, the Regulation dealing with discipline in rugby, was subjected to some pretty large changes that came into effect on June the 6th last. And, let me state here and now, they are changes of which I approve; most of them are ones that I've been calling for on this blog. Not the least heartening thing is that the message that simplicity and clarity are NOT the same as brevity appears to have been learnt, so the Regulation is broken down into much clearer, simpler steps (while Danie Craven was, in many respects, a great man, he was, when he said all the laws of rugby should be able to be written on one page, dead wrong, and following that dictum has led to all sorts of terrible law changes). It is, I have to say, good work on the part of the IRB (and I note in passing that the IRB counsel sat in on several ERC disciplinary cases last season, to see the process in action).

You can read the announcement on it HERE and the new Regulations HERE. The most interesting part is contained in Regulation 17.19.6 and 17.19.7. Basically, these state the entry level for an offence, the minimum ban, means just that, a minimum ban unless in exceptional cases. It should also be noted the minimum bans for some offences have been increased, and that suspensions do not now run over the close season (so, Dan Ward of Cornish Pirates and now Harlequins, having the dubious honour to be the first person done under these new Regulations, was given six weeks on June 12th for THIS but was out until September 20th).

It's a good idea, one most rugby supporters agree with, and gives admirable clarity and certainty to the system - exactly what it states it wants to do, and exactly what the systems needs.

Yet, for some reason, it appears not just to have passed by the press completely (I haven't seen a single comment on it in the mainstream press in Ireland or the UK), but its application also appears patchy.

Let's put some flesh on those bones. Take the suspensions from the recent Rugby Championship. These were (player name, offence and law, minimum ban, actual ban, decision):

Eben Etzebeth; headbutt, 10 (4) (a); four weeks; two weeks; Decision (limited)

Dean Greyling; elbow to the head, 10 (4) (a); two weeks; two weeks; Decision.

Scott Higginbotham; knee and headbutt, 10 (4) (a); four weeks; four weeks.

SANZAR don't seem to publish their decisions, giving at best excerpts, but there seems to be no mention of how"wholly disproportionate" to apply the minimum ban in Etzebeth's cae; with a pattern of attacks on the head of one player, Richie McCaw, as well as a pattern of headbutts, it would be hard to see how it would be disproportionate. Certainly, this is a pattern of offending such as was identified in the HEC last season and the RWC in 2011. Yet Etzebeth received half the minimum ban when, from what we have the of the decision, the Judicial Officer was quite trenchant on it being deliberate - an aggravating factor. This is all the more inexplicable when one looks at the SANZAR site and sees that it mentions the new minimum-means-minimum Regulations HERE.

At the same time, in the Northern Hemisphere, there have been three red cards confirmed where no sanction has been applied; two in the Pro12, for Ian Gough of the Ospreys and Damien Varley of Munster, and one in the HEC for Morgan Stoddart of the Scarlets. Gough's and Stoddart's were what one might call "silly second yellow"red cards, but Varley's was for allegedly kicking one of the Ospreys players in the head. Varley's was, somewhat bizarrely, found to be reckless and upheld when the Assistant Referee on whose recommendation he was sent off stated, twice, that he felt it was deliberate. As the one precludes the other, it is fair to question why it was not either rescinded if it was felt the AR was wrong or a suspension imposed if it was felt he was right; but, since the Pro12 refuses to publish decisions, we cannot follow the logic of the decision to see how this compromise was reached. 

We can, however, look at the HEC decision. The ERC is very clearly aware of the new Regulation 17, as it it refers to the new sanctions when it states players have been cited (which, in passing, makes the lack of press comment even more inexplicable). It also applies in the judgements. In the case of Morgan Stoddart, the JO, Antony Davies, it was held that the red card for two "technical" offences was enough punishment in itself, considering it was a major contributor to the final score of 49-16 against Stoddart's Scarlets; you can read the Decision HERE. 

However, in the case of Sisa Koyamaibole of Bordeaux-Begles, cited for biting Declan Danaher of London Irish, although Koyamaibole didn't turn up for the hearing, he himself was aware of the minimum-means-minimum situation (as you can see from page 2 of the decision HERE), and the Antony Davies, also the JO in this case, went  on to say at pages 6 and 7 that, while under the former regime Koyamaibole would have got less than the entry-level ban, this was no longer possible. Koyamaibole, with only two weeks suspension on his entire record, got the minimum 12 weeks, and the contrast between this case and the Hartley decision discussed in Part 1 neatly highlights the changed environment.

From this, we can see that, at least in Europe, the minimum ban is back, and this time it has teeth (bad puns fully intended). No-one would object to that. What's worrying is the inconsistency across the globe when this was meant to bring consistency of, same offence, same punishment, everywhere in the world of rugby.

As to which approach wins out, we'll see. It'll definitely be one to keep an eye on this NH season.

Legal Liability and Scrums Part II

Following on from the post on this yesterday, I have come across THIS case from South Africa.

It involves a case where one schoolboy hooker caused the neck of another to break.

In a game in July 2005 between Hoerskool Stellenbosch and Hoerskool Labori from Paarl, the defendant, Alex Roux, was playing for Stellenbosch. The Plaintiff, Ryand Hattingh, was playing hooker for Labori. Early on in the game, Hattingh complained about the way that Roux was scrummaging. At the fourth or fifth scrum, Roux called "jack-knife", and moved his head to close the gap between his head and that of his tight-head - the gap into which Hattingh's head was to go. Hattingh was forced downwards, the scrum collapsed, and Hattingh's neck was broken. He sued in delict - the equivalent of tort in South African law.

The witnesses were, to say the least of it, impressive: former Springbok and scrum guru Balie Swart, referee André Watson and others. The trial judge, Fourie J., decided that Roux's actions were deliberate, and in breach of the Laws of the game. Accordingly, he found him liable. You can read that decision HERE (it should be noted for those unfamiliar with the language that, unsurprisingly for a game in Stellenbosch, some of the testimony is in Afrikaans). Roux appealed to the Supreme Court of Appeal, sitting in Bloemfontein,  which upheld the decision. You can read those judgements HERE.

It should be noted at this point that South African law is not quite the same as most Common Law systems, being a mix of Common Law and Roman Dutch; it would be closest to Scots law. But it is close enough for this to be at the least illustrative, and probably a precedent.

And it is highly significant. A deliberate, and dangerous, action gave rise to a liability to another player. What, then, of collapsing a scrum? Every prop has. Every single one. What about deliberately popping a hooker, or a pincer movement between hooker and loosehead to pop a tight head? Those are deliberate - ask Phil Vickery on the 2009 Lions - but they are also dangerous. These are part and parcel of the normal risks of the game, but where does normal pushing of the boundaries in the scrum lie, and where does it go beyond the pale? Would, for example, the deliberate joint action of hooker and loosehead to pop a tighthead up be worse than a tighthead's liability for letting a scrum drop where he was unhappy with the position he got on the engage but without any deliberately illegal or dangerous action?

Moreover, this makes the duty of a referee all the clearer. A referee has a duty to enforce the Laws made for player safety, and if the players do not observe these, then he will be liable for his failure to make them so do by enforcing those laws. If a player is scrummaging in a way brought to the attention of a referee, or which a referee should know is illegal - early, unstable drives or collapsing - the referee must stop this. Yet, to give a practical example, it's illegal (and dangerous) to drive an opponent up out of a scrum, and a referee MUST stop such a scrum immediately, and penalise the player driving up. It is no offence to stand up or be driven up - yet this is what usually gets penalised.

This case does not cite Vowles or Smoldon. It was the player who was found liable, not the referee (who was not sued; paragraph 62 of Fourie J.'s decision is interesting). Yet, when the referee has a greater duty of care to the player than another, opposing, player does, it seems very hard to see why this does not point to the same conclusion as those cases - and all the more so when one considers the cases, and reports, I dealt with yesterday. Wilful failure to follow or apply Laws made for the safety of players in the scrum can lead to liability for injuries arising from breach of those Laws.

And, again, the solution is simple; make such changes as are necessary to the Laws, and apply them. Apply the Laws made for player safety as they now are. Give us better and safer rugby, in one go. All that has to be done is to apply the Laws of the game.

So why does this seem to be regarded as such an unreasonable request?

(My thanks to Mnr. Pieter Koornhof of the University of the Western Cape and Universiteit Stellenbosch who first mentioned the High Court decision in this case to me.)

Legal Liability and Scrums.

Take a small car - this being rugby, let's say a French one, a Citroen C4. In fact, take two. Suspend one 15 centimetres - six inches - over each of your shoulders.

Now let them drop.

That's what it is each member for a professional front row to take the hit of a modern scrum. If you're an international hooker, since hookers take a bit more of the hit, you're talking a family saloon like a C5, onto each shoulder. 3kN of an impact. Ten or fifteen times a game.

Brian Moore - referee, former international hooker and lawyer - has been pointing out for a while - correctly - that big-hit scrummaging is both dangerous and pointless. It's pointless because if you referee according to the laws of the game, which demand that the scrum be steady and static before the ball goes in, you get little or no benefit from it. It's dangerous because massive impacts are not just dangerous in and of themselves, and especially over the long term, but because they are unstable and destabilise a scrum.

And in the Daily Telegraph today, he points out that the three year study, conducted by Bath University, on scrums at all levels of the game now provides the evidence, which can - via BokSmart - be seen HERE (I note in passing that if the figure of 18kN peak force on the engage means what I think it does, you're dropping those family saloons from twice the height I mention above). He thinks this could lead to legal liability for the IRB for failing to legislate to make the game safer.

He is right, but what he doesn't know is this point has already been litigated. It was an Australian case, Agar v. Hyde. It was not successful, but the key reason why it failed was that the the IRFB was not an incorporated body with a duty of care, but rather enthusiastic amateurs giving their time up. That has now changed: the IRB is now a company incorporated in Dublin, and the referees, and many of the law makers, work for it. The reason why Agar v. Hyde failed no longer exists.

The dangers do. About 20 years ago, a truly ground-breaking piece of research was done at Stoke Mandeville hospital in the UK, where every catastrophic neck injury from rugby going back forty years was analysed. What it showed, in the paper by JR Silver (a man whose ground-breaking work has doubtless saved the necks of many rugby players, and who deserves the thanks of the entire game), was that what broke necks was big, unstable impacts and twisting (you can get a flavour of it in more recent papers HERE and HERE). As a result, collapsing the maul was banned, and scrums were made steady and static, instead of the moving feasts they had been. This worked not just well, but brilliantly: the number of broken necks dropped off dramatically.

But around ten years ago, things started going wrong. The requirement for scrumhalves to put the ball in straight died a death, as did the requirement not to push before the ball. As Brian Moore has pointed out, the net result was a one-third increase in the pushing, as hookers no longer had to hook, and a positive reward for pushing before the ball and loading up the impact on the engage to get that ball rolling. It's supposed to be strictly enforced that the ball go in straight: in practice, the ball can now be fed into the second row with impunity. A new offence of "not taking the hit" was invented: you could now be penalised because the other team were pushing before the ball, and making the scrum unstable and not on the mark. If you want a perfect example of where this lunacy, see THIS clip from the weekend, where Leicester Tigers are driving before the ball - second rows' legs pumping - yet Romain Poite sinbins the Ospreys loosehead for not pushing back.

It is dangerous, it is illegal under the laws of rugby, it has destroyed the art of proper scrummaging, yet the requirement to increase the impact imposed by this made-up rule has led to ever bigger, and ever more dangerous. As you can see from the data in the BokSmart presentation linked to above: neck injuries are going up again.

The net result has been more dangerous scrums, more resets, worse scrummaging and more dangerous scrummaging: bad rugby, and dangerous rugby. You have here an active failure to apply laws made for player safety some 20 years ago, when the risks have increased as a result of that failure. That has led to referees being held liable for broken necks arising out of collapsed scrums in Smoldon v. Whitworth and Vowles v. Evans. 

And there is no excuse for it. Three years ago, when the insane proposals to allow the maul to be collapsed formed part of the unloved and unmourned Experimental Law Variations (ELVs), I wrote an article* setting out in more detail why this created a liability. The reasoning is exactly the same here; in fact, it is stronger.

The failure by the IRB is not just bad at law, it is bad rugby. I love scrummaging. I have played as a prop, as has every male member of my family for the last three generations at some stage. I have also held my hooker's neck immobile, waiting for an ambulance to come after he broke his neck on a slipped engage (thankfully, his cord was fine). Scrummaging has risks, and always will. I know the risks, and have accepted them, as has every other prop. But it is NOT acceptable to make those risks greater by ignoring the Laws of the game, and at the same time removing the art, the technique and the skill of good scrummaging and replacing them with a hit-drive-drop charge. It is no part of good rugby to destroy the art of hooking, to substitute races over the mid-line for real propping duels and to have endless resets because of huge, artless impacts. Not only is there no legal reason to stand for this, there is no rugby-playing reason - and, ironically, that just increases the legal risks.

All this requires to protect the game, and protect players, is to make the recommended changes, apply the Laws and thereby bring back proper scrummaging. In fact, even applying the laws as they stand would go a long way to safety, because there's no point in putting everything into a huge hit if you then have to give ground back to the mark. Everyone would benefit.

So why on earth does it seem to be so very, very hard to have the Laws of the game, made to protect players, enforced?



*Bringing It Down On Their Own Heads: Negligence and Changes to the Law of Rugby (2009) 27 ILT 98.

Update: one typo corrected.