Mediation in rugby.

The ERC are taking disciplinary action against Newcastle Falcons and Bourgoin over their respective parts in an Amlin Challenge Cup game in January not being played due to the state of the pitch.

Now, it should be said at the start that if there has been a breach of the regulations, then fair enough; it has to be addressed. But I can't help wondering if this is the best way to go about it.

I've spoken before about using arbitration in rugby discipline, based on the lessons from other sports (the GAA). This time, I want to look at using another type of Alternative Dispute Resolution (ADR), mediation, based on sailing.

Sailing has its own disciplinary system to enforce its rules. Sometimes, if there are on-the-water judges, it's like having a referee; if not, it's done by protest hearings, much like a case being decided before a tribunal. But it has also developed its own system of mediation of protests, of which these Australian links should give a flavour  (although strictly speaking, this is closer to a form of concilation than mediation)

Right-of-way disputes would be much like the the playing Laws in rugby; was there a knock-on, was a tackle dangerous, etc. If not dealt with there and then, they have to be dealt with afterwards, by a protest hearing or a citing commissioner.

But the Newcastle/Bourgoin disputes are ones that strike me as being eminently suitable to mediation. After all, both teams would want the game played, as do the ERC; the issue now is resolving the dispute to the satisfaction of all. Sailing deals with these disputes by mediating them, instead of full disciplinary hearings (with the delays and inevitable entrenchment of positions that come with them); and issues that can be sorted out this way will be sorted out this way, with less delay and trouble.

Rugby could do a lot worse than doing similar for these, or indeed other disputes like that between the ERC and the Ospreys over tickets last season. Mediation is not only faster, but it has a very, very high success rate, and in particular preserves relationships between the parties - which, when it comes down to it, is what the IRB talks about in the bit in the Laws about the spirit of the game.

Of course, even better would be if the problem were mediated at the time to prevent it ever becoming a problem - for all concerned, teams, ERC, broadcasters, fans, everyone.

So, a modest proposal; the ERC should consider, very seriously indeed, keeping a panel of mediators available on call at various HEC or Amlin Challenge Cup venues who can, if called on, step in to mediate off-the-pitch issues between teams. It can't hurt, and if it saves just one game a season, or prevents one disciplinary stoush, it would pay for itself.

Unintended consequences.

Being a front row is a bit like classic Vietnam movies; it's dark, hot, humid, bad things happen in there, and you can't talk unless you were there.

And, the Six Nations having just ended, there's been an awful lot of talk about scrummaging in the media, most of it rubbish; your average out-half would be lucky to know one end of a scrum from the other, still less comment intelligently on it.

However, there's a local issue that I have been thinking about for a while. In Munster (and, as far as I know, in some other provinces), at J2 level and below, the Under-19 Law Variations are used in scrums. That means that a scrum can only be pushed 1.5 metres over the mark, that there are limitations on the amount it can wheel - basically, it's a depowered version of proper scrums.

As someone who enjoyed scrummaging, I loathed it as a player. The idea is perfectly sound for underage players, who are developing and need some protection while they learn their trade. However, I have always had very serious doubts about it at adult level.

The main reason, apart from my own grumpy preference, is that it prevents players from ever learning how to scrummage properly. There is an entire generation of club front rows who will always be in these depowered scrums. That might seem fine; but it's not.

Suppose a small club has two teams, a first team, playing J1 at the highest level, where the winners of provincial leagues go on to a round robin to get into the semi-pro Ulster Bank League, and their second team, who play J2. Now, let us suppose that, as very frequently happens, there is an injury crisis, and the usual props for the first team are injured. Normally, the props from the J2 would be promoted, and would get their chance to play on the first team - where there are full scrums.

Now, this is where it becomes interesting. Let's assume that these props are part of the new generation who have gone from underage to J2. Because they have never been taught, and have no experience of, scrummaging in full scrums, they are underprepared for this scrummaging. They are going straight into a more demanding, more dangerous form of scrummaging, with no proper training or preparation. And if this sounds dangerous, it is. It's not a million miles at all from what happened in Vowles v. Evans, where an under-prepared and inexperienced loosehead slipped and the hooker broke his neck as a result.

So, you now have the situation where, if a team runs out of first-team front-rows, it can't safely play games, and exposes itself to a risk if it asks J2 players to scrummage at a level for which they're not - to quote Vowles - "suitably trained or experienced" - and, to put that beyond doubt, the court in Vowles held that "it is obvious that the training/experience which the Law required related to training for or playing in the front row of the scrum. It would be spectacularly unwise for the Munster Branch to force them to play like this, once made aware of it, because that would put the Branch, too, in the firing line; once aware of the danger, they would have the same duty of care as the WRU in Vowles to look after the players' safety. It's debatable whether a sensible referee would even let it go ahead, but it's unfair to put a referee in that situation, in my opinion.

What's even worse is; how on earth, without proper training and gradually giving players coming out of underage scrummaging are players to learn how to scrummage properly to prevent this arising? And this is where we get to the unintended consequences. Something aimed at making players safer but to keep the scrum at the heart of the game looks like it could, down the line, have exactly the opposite effect.

Better to get decent training out there for front rows coming out of the underage ranks - and let them learn how to scrum, safely, before they get thrown in at the deep end.

We Need To Talk About Jonathan...

Jonathan Kaplan will not want to watch the highlights reels from last weekend's internationals. Nor will Peter Allan. Or Paddy Wallace, come to that.

Kaplan awarded a try that should not have been given, because it came from a quick lineout that should not have been allowed. Peter Allan got that call completely and utterly wrong. It was a pretty horrendous error.

But, these things happen. Players make pretty awful mistakes too.

But whenever referees make mistakes like this, someone, sooner or later, demands a replay.

Now, from a sporting perspective, that's nonsense; you roll with the punches that are thrown, that's just life, and these things even out in the long run however infuriating it is at the time.

What I want to talk about is the legal issue of whether or not someone could seek a replay. The answer is; no. A referee is a decision maker, and the basic rule of thumb for all decision makers at law is that they have the right to be wrong, so long as they're wrong according to procedure. This was a plainly wrong decision, but according to the correct rules (the TMO, for example, cannot adjudicate on matters outside the in-goal area, so they couldn't go to the TMO, however tempting it would have been).

There's an Irish case on this, Carew Park AFC v. FAI, from 1999. There, the referee awarded a goal; changed his mind after one team protested; changed his mind again when the other team protested; and the game ended 1-0. The losers challenged the decision. The judge, Barr J., sympathised with them, but pointed out that the Courts would not strike down a referee's decision, even if it was wrong, unless "something appalling" had happened - which would seem to mean that short of a demonstrable fix, the decision stands. The reason was because that if not, if the Courts had to decide challenges to every crucial incorrect decision, it would lead to "a hopeless degree of anarchy".

And, given the state of the breakdown, the scrum, and refereeing in general at the moment, the last thing the game needs is yet more of that.

Faan Rautenbach citing - part three.

In a previous post, I dealt with what would appear inconsistencies between the way that Faan Rautenbach's citing hearing was dealt with and the procedures set out in the International Rugby Board (IRB's) Regulation 17 covering these citings. I mentioned at that point that there exist even if the player is fine with those changes, which, as it turned out, Rautenbach was.

Now, if the player is fine with those changes; if he agrees to them without demur at the start of the hearing, as set out in Regulation 17 (to be precise, Regulation ), then the problem to a large extent goes away. The player, presumably aware of the issue, has agreed to it; and from that point on, chances are any Court asked to look at that the fairness of the procedures would - given the general and frequently-stated reluctance of the Courts to get involved in issues of sporting discipline - more than likely decide that, if you were happy with the procedure before you got a result you didn't like, then it may be a bit late to change your mind afterwards. And I think one can see a certain common sense in that, even if the hearing was conducted over the phone across three different countries.

The problem arises where the player - or his representatives - raise an issue about the procedure. This has happened. To give examples, there are the decisions in . So, let's say the player, in a case where he has been told the main witness against him will be giving evidence by video, says that he wants the person making the allegations there, in person, so he can be cross-examined.

What happens then?

Well, one of two things. The first is that the Disciplinary Officer agrees. At that point, the problem goes away; the hearing will almost certainly be adjourned, but the problem has been solved.

The second is that the Disciplinary Officer refuses, and the hearing goes ahead. And then the next question is the immortal one from A Question of Sport - what happens next?

Well, at that point, you have to ask what constitutes a fair hearing. We'll work on the assumption that, the ERC being based in Dublin and being an Irish-registered company, that it works under Irish law and the IRB regulations - albeit there is a note at the end of the decision which seems to suggest that the ERC works under its own regulations, not generally available for the public to look at.

For a professional rugby player, a citing hearing is a disciplinary hearing affecting his work. He is entitled to a fair hearing if he is to be suspended. Even if he is not directly party himself to contract between his club or province and the ERC, he is treated as such, and it entitled to a fair hearing. Those rights in a fair hearing include: being able to challenge witnesses, face to face; and that the person making the decision will follow the proceedings laid down (it's only fair to say at this point that the evidence of David Wallace was not accepted in the decision; but, since he was saying that as far as he was concerned, it was nothing, Faan Rautenbach couldn't complain on that front).

Those rights are long-since settled; in Irish law, it's usually referred to as the short-hand of Consitutional justice, or In Re Haughey rights, after the case where they were properly laid out. But a case that would be really relevant is one called And the crux of that is; is not to be set aside, just because it causes logistical or administrative difficulties.

So, just because it may be tricky following Regulation 17 and giving the player cited the right to have the   witness there to be asked the questions is not an excuse should the player demand that right.

Of course, that just means that a Disciplinary Officer who refuses to do so is wrong at law. Once it gets to this point, the question exercising a player's mind would be - what can be done about ?

Referees, Bias and the Joy of Silence.

There was a fair-sized controversy after the Italy-Ireland game over the refereeing of the scrums by Roman Poite.

Now, let me state at the outset that I am no fan of Roman Poite as a referee. In point of fact, I can't stand him as a referee, and can never understand why he is given games ahead of his countryman, the far-superior Jerome Garcés. But, that said, Ireland's scrum problems were largely of our own making.

But the issue arose because, before the game, the Italian coach, Nick Mallett, stated Poite had sent a letter to the Italians apologising for his refereeing of them the previous season. The Irish management were distinctly unhappy with this, not surprisingly. Poite denies the letter was ever sent. Someone certainly has questions to answer.

The issue this brings up is what lawyers call objective bias. Referees are - the reptilian tans of one or two aside - human. They will make mistakes, but no-one doubts that they are doing their best (what their best is the subject for another day). They do not go out to do one team down. That sort of bias, what most people would call bias, is in legal terms called subjective bias.

There is, however, another kind, objective bias. This is where, even though the person making a decision is not actually biased, a fair-minded person looking objectively at it would perceive a real risk of bias. It's linked with the idea that justice must not just be done, but be seen to be done. So, there has been a case in Ireland in the recent past where the judge recused himself from deciding a case because he had made a decision in an interlocutory part of the case and did not want any perception that he might have made his mind up on the case already.

Now, if Poite had sent a letter to a team apologising for how he reffed a game in the past, their opponents might well feel hard done by if they suffered in that same phase of the game against that team; but it would be stretching it a bit too far to say that a fair observer would feel there was a real risk of bias in how he would ref the game.

But what if a referee had called a team a set of cheats at that phase, or said that they were no good, and therefore to blame, for anything happening there?

Robbie Deans, coach of Australia, felt hard-done by in this way back in November of last year, and stated openly that referees had a down on Australia, and had preconceived ideas of how Australia scrummage. Paddy O'Brien, head of refereeing at the IRB, said referees only referee what they see (a summation of the discussion can be seen HERE).

The only problem was, the preceding week, the official website for South African referees had passed pretty clear opinions on the Australian, and Irish scrums. And those opinions? "A blight on the game", "dismal", "the worst scrummaging sides in international rugby" - something that it would be hard-put not to see as pretty clear preconceived opinions, and a definite view before a match refereed by the person who wrote this - the posts are, notably, unattributed, but no SA test referee has disassociated themselves from them.

Now, were the person who wrote this to referee a game involving Ireland or Australia, they would arguably be well within their rights to raise these preconceptions, and the way in which they would seem to lay the feet of anything going wrong in a scrum automatically at the feet of one team, as being cases of objective bias. The refereeing would probably be fair; but it would certainly raise questions about whether there was a reasonable risk of unfairness, and that's what's crucial. If it were raised, and made public, it would surely cause an appalling furore in the run-up to the game and, ironically, put the referee in a completely impossible position.

Of course, all of this can be avoided. Players and spectators might not like a referee, but they do respect the office he holds. The gift of that respect, however, is not to be taken lightly. Referees are decision-makers, like judges. Like judges, the decisions of top-level referees can affect people's livelihoods. And it would not seem too much to ask of top-level referees that they exercise some judicial discretion and not fan the fires of supposition with singularly ill-thought out comments that only encourage people to think the worst.

Faan Rautenbach citing - part two.

I had intended - indeed, promised - to deal with the Faan Rautenbach citing further.

As it happens, it got over-taken by events. Rautenbach was given a three week suspension.

The decision - click here - is not short, but is interesting. It's well worth a read, and it's one which I will deal with in more detail.

For the moment, what I would say about it is that it's in many ways exemplary, but also makes me deeply uneasy about issues of fair procedure. The reasoning, the way in which it's set out, the way in which the issues are dealt with, and the way in which what would seem at first glance to have been a very light suspension indeed for the offence actually turns out to have been entirely justifiable - all these are models of their kind.

But, while Faan Rautenbach didn't raise the issue of the hearing being dealt with over the telephone, and was quite happy for the hearing to be dealt with in that way, it's this that makes me uneasy about fair procedure. There's also an issue about the London Irish forwards coach being present and giving evidence about rucking, which in another case could have raised problems.

It's to those issues that I'll return in separate posts, as soon as possible.

Good ideas, bad ideas, dropped ideas.

The Irish parliament, the Dáíl, was dissolved yesterday. Given how the 30th Dáil performed, I doubt it will be missed.

But that doesn’t mean everything it did was bad; and some of the good ideas have fallen by the wayside with the dissolution of the Dáil. One of particular relevance to rugby is Part 3 of the Civil Law (Miscellaneous Provisions) Bill 2010.

The Bill itself is a bit of a jumble. But Part 3 is interesting, because it gives a defence to legal liabillity to, amongst others, those carrying out unpaid work in and connected to sport. Those volunteers would not have been liable for accidents caused by them unless they had been grossly negligent – a much, much higher threshold than the usual standard for imposing liability – or had wilfully disobeyed the instructions of the volunteer organisation concerned.

The reason I mention this in the context of rugby is, first and foremost, the scrum. The refereeing of the scrum at the moment is an absolute mess; and one of the main reasons is the idea of depowering the hit. There are other ways to do this, which we won’t discuss here, but the original idea of the crouch-touch-pause-engage sequence was to make it safer. The problem is, of course, that it has made things less stable, and worse.

It’s even worse when you go down the levels. The fear that players will be injured, and the fear that referees will be sued in that case, has led to the under-age scrummaging restrictions being brought into senior rugby below a certain grade. There will now be forwards who will go through the whole of their playing lives without ever participating in a full scrum.

This is a good example of what’s known as the chill effect. This is where a perceived risk of litigation leads to defensive changes in how an activity is carried out and regulated. Referees have been sued, successfully, for injuries caused in a collapsed scrum; but what may not be appreciated is just how unique those two cases – Smoldon and Evans – were on their facts. I have written elsewhere on the issue of negligence on the pitch, and discussed these cases in more detail there; but, simply, letting a game go on with 46 collapsed scrums, or letting someone who had never played prop play in the front row causing a collapse which injured the hooker was grossly negligent, in anyone’s terms. Even then, the Courts made it clear that these cases were not normal run-of-the-mill ones; as it was put in Evans, the threshold of liability is a high one. Perception, however, is the key; and the chill effect is apparent.

This is why Part 3 would have been of such benefit. Referees could have reffed the scrum properly, confident in the knowledge that as long as they used their common sense and followed the instructions on reffing the scrum, that they were safe; the knowledge of this, of course, being the key. It would, with an emphasis on the fact that everyone stepping onto a pitch to play rugby voluntarily assumes a fair bit of physical risk, have permitted proper, full scrummaging to have trickled its way back down the levels to some extent. It’s too good an idea to drop casually.

There was enough damage done by the last Dáíl. It seems daft that one of their few good ideas would be left drop. Hopefully, someone in the next Dáíl will pick up this ball and run with it.


Edit; and, the good news is; someone did. It's now Part 3 of THIS Act.