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.

Afoa, Hayman, Tuilagi - Tip-tackles and consistency.

Back in October, in the Rugby World Cup semi-final, Alain Rolland did what a referee is supposed to do: he made a brave, and correct, decision according to the Laws of the game, no matter what stick he would take for it.

Now, just under a year later, he must be wondering why the hell he bothered.

In this post, I want to look at three recent tip-tackle decisions, all cited, and all dealt with differently; to examine those citing decisions in terms of consistency; and to tease out what this means in terms of disciplinary systems.

The three are: John Afoa, on Felix Jones in the HEC quarter final, which you can see HERE, HERE and HERE; Carl Hayman on Takudza Ngwenya of Biarritz in the Amlin Cup Final, which you can see HERE, HERE and HERE; and Manu Tuilagi on Danny Care in the AP Final, which you can see HERE and HERE (my thanks, again, to the posters on the Gwlad forum for the files).

The first thing to comment on is the remarkable similarity between all three in terms of the tackle: the tackled player is lifted, turned (in two, turned upside-down), and the tackler drops on top of him. In the case of Hayman and Afoa, even the number on their back are the same.

The referees looking at the offence were, respectively, Roman Poite; Wayne Barnes; and Barnes again. The  on-pitch responses, were, respectively: advantage to the tackler's team; a yellow card; and a warning.

In the first, John Afoa tip-tackled Felix Jones of Munster. It was clear at the time, and commented on at the time, but the referee - Romain Poite - not only did not punish it, but gave a scrum to Ulster and, according to the decision which you can read HERE, claimed at the hearing that he did not see the incident because the Ulster loosehead was between him and the tackle (on which claim, the pictures HERE and HERE cast an interesting light, given that Court isn't even in shot). Afoa fought the case. Of interest in the decision is that the same line that was run in the Ferris decision - of which more HERE and HERE - was run in this case and (rightly) dismissed. It's notable that the issue of "not driving" was addressed, and also dismissed: the JO found that the weight of Afoa dropping onto Jones constitued driving Jones into the ground. If you think about it, this is sensible: after all, a tight-head dropping onto you into the ground will drive you into the ground a lot harder than just being dropped on your own from the same height, and is therefore clearly more dangerous. In dismissing this argument, the JO relied on and followed the precedent of the Ian Gough decision, which you can read HERE.

In the second, Carl Hayman. You can read the decision HERE. It was, in many respects, a near copy of the Afoa incident. What is of note is that the very eminent JO, Christopher Quinlan QC, who handled these cases at the RWC analysed the submission that merely dropping onto a player wasn't enough to constitute driving into the ground for the purposes of the Memorandum. He rejected that submission at page 14 of the decision.

He [Ngwnenya, referred to in the decision as "TN"] was not dropped in the conventional sense of the tackler letting go. The Player remained in contact with TN as he descended. By his contact with and his weight upon TN, he accelerated his decent. That is to drive for the purposes of Law 10.4(j). It is of some note that the Player also went off his feet, ultimately landing on top of TN. [Emphasis added] 

In the third, Manu Tuilagi lifted Danny Care of Harlequins and dropped onto him. He was cited for this; and the case was dismissed. The Decision can be read HERE. It is, in many respects, a very precise analysis of the law on the issue, by, again, Christopher Quinlan QC. What is of note, however, is that the reason the case was dismissed was that it was felt that Tuilagi did not drive Care into the ground, but just fell on him; and that this was not enough to consitute "driving" for the purposes of Law 10 (4) (j). The decision turned on this point, but it is an approach entirely inconsistent with the ERC cases of Gough, Afoa and Hayman, and, moreover, at odds with what the learned JO himself held in Hayman, despite the claims to the contrary. When the being in contact and accelerating the descent by being in contact is driving in Hayman, it is simply not possible to square the quotation from Hayman above with the statement that:

It is correct that he remained in contact with him: he had his right hand under his torso and his head appeared to be in contact with the right side of DC’s torso. However, we were not satisfied that was driving him, even within the meaning of the ERC decisions in Gough 27 December 2011 and Hayman, 26 May 2012. 

In passing, it should be noted that when the decision refers to a lack of response from Care being indicative at a time of heightened sensitivity to tip-tackles, it appears to miss the Harlequins player who can be seen in the first clip clearly remonstrating with the referee about the tackle.

What is certain is that there is now a markedly different approach on what constitutes "driving" for the purposes of the laws in this between European competitions and English domestic ones. When consistency is being stressed, this difference is one which would need to be sorted out as soon as possible, not least for the players themselves; it does a player no favours to be sent off or cited in Europe for what he is left do in the Aviva Premiership, and all because he has become used to a seemingly-looser standard in England.

Quite apart from the issue of inconsistency in the approach of the judicial officers, there is also a worrying trend developing on the issue of "horizontal" which may also land players in trouble.

Tuilagi claimed, after being cleared, that "Danny didn't go above horizontal". It should be noted that while the DC hearing this mention that Care is flat as he hits - which is different from saying he never went above horizontal - they did not fall into the error made in Ferris and take this as meaning no tip-tackle occurred. Instead, as noted, it was the absence of dropping or driving that was crucial (which is not to say that they do not flirt with this on page 6 of the decision).

However, while one might say this argues that England coach Stuart Lancaster may not only have to explain that the law on that has changed but also work on his outside centre's awareness of angles, the fact that someone who is now a settled professional player can be labouring under this misconception as to what the law is argues the deterrent effect is demonstrably not working.

And it is this that is worrying. The tip-tackle Memorandum specifically stated that the failure to award on-pitch red cards was not working to prevent demonstrably dangerous tackles, that these tackles "must be dealt with severely by referees and all those involved in the off-field disciplinary process": and "that the lifting of players in the tackle and then either forcing or dropping them to the ground is dangerous and must be dealt with severely." As Lancaster fairly pointed out, in agreement with the ERC and IRB, there must be a deterrent and these are "red-flag" situations (nor is it just an NH problem, as the suspensions in the Super 15 have showed). Clearly, if players consider these "good" tackles, they are not learning from citings. Only on-pitch sanctions will work - as was recognised by the admonishment to referees to deal with them "severely" on-pitch.

And this is the danger for the game. It has here a situation where there is a clearly dangerous pattern, unquestioned and acknowledged as such (and mentioned in Hayman); where there is a need for deterrence; where the only effective deterrence is on-pitch; where this is necessary for player safety; and where the referees are persistently failing to apply that, then they are failing to apply a law for player safety which players are entitled to rely on for their safety. That may sound a familiar list for any readers of this blog, and there is a reason for that: those are the tick-list questions for liability from Smoldon v. Whitworth and Vowles v. Evans.


There is no rugby reason to turn someone upside down for a good tackle: arguably the opposite. Hold him up and frog-march him backwards, like THIS; or if you lift to stop, bring him down arse-first, as this - superb - tackle by Julian Savea on Rob Kearney in the summer shows. If players persist in doing something dangerous that is not necessary in rugby terms, then it needs to be stopped for player safety. That is up to the referees and the Citing Commissioners, as the IRB have told them. And if they won't, then the day that an injured player points out this failing in Court comes closer.

Edit: tidied up some broken link and punctuation, a correction as to the cases mentioned plus one small addition about the Harlequins player remonstrating.

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.