A review of the disciplinary process and sanctioning decisions from Rugby World Cup 2015 - Part 1: Citing, hearings and video evidence

Published 14 January 2016 | Authored by: Kevin Carpenter

For all stakeholders in the game of rugby union (perhaps other than supporters of England, such as this author), the Rugby World Cup 2015 (‘RWC 2015’) held in England was widely considered to be the biggest and best edition to date in terms of attendances, reach and competitiveness.1

One area that saw its fair share of drama and controversy was “foul play” committed by players and the disciplinary actions that followed. This two-part blog examines the disciplinary process and sanctioning decisions at RWC 2015. It provides an overall retrospective analysis using the author’s knowledge of sports law and experience playing and refereeing rugby union.

Part 1, below, examines the applicable regulations, the citing process, the nature of the hearings, and the use of video evidence.

Part 2 (available here) examines the sanctioning decisions, the appeals, and provides comments and suggestions for future editions of the tournament.

 

RWC 2015 disciplinary process

Disciplinary action in rugby union for conduct on the field of play is commonly referred to in the sport as ‘foul play’, as this is how it is described in the title of the relevant Law (Law 10) of the World Rugby Laws of the Game (the “Laws”).2 The Laws contain all that is necessary to enable the Game to be played correctly and fairly. The referee, and other match officials on the day of the match, being the ultimate arbiters of the Laws must apply and enforce them safely and fairly.

In contrast, and yet complimentary, the World Rugby Handbook contains the Regulations governing off field matters in the global Game.3 World Rugby Regulation 17 deals with all procedural matters pertaining to foul play including core principles and application to disciplinary bodies and sanctions.4 The rationale behind the Regulation is to be found in the Preamble:

  1. The underlying rationale for Regulation 17 is to maintain and promote fair play, protect the health and welfare of Players, ensure that acts of Foul Play are dealt with expeditiously and appropriately by independent means within the Game and that the image and reputation of the Game is not adversely affected.
  2. This Regulation sets out a harmonised approach to the administration of discipline and the implementation of sanctions for Foul Play at all levels of the Game. The objective of this Regulation is to achieve consistency in the way in which discipline is administered and uniformity in the manner in which the assessment of the seriousness of Foul Play is conducted and sanctions imposed. Underlying the Regulation is the overall objective that the disciplinary process shall comply with the fundamental principles of natural justice.

Regulation 17 is well drafted and comprehensive. The challenge for World Rugby was how to apply it to their showpiece global tournament given, “the integrity and consistency of the tournament disciplinary process is central to the image and reputation of the sport.5    

Prior to the tournament starting World Rugby published the ‘ Tournament disciplinary process’, which dealt with foul play and misconduct and explained how the citing, hearing and sanctioning process set out in Regulation 17 would apply under expedited timeframes for the six-week tournament.6

Other sporting events and competitions have put specialist expedited procedures in place, most notably the International Olympic Committee engage the Court of Arbitration for Sport to provide an Ad Hoc Panel for the duration of each edition of the summer and winter Olympic Games.7

Citing process and citing commissioners

Eleven experienced and independent Citing Commissioners were used in RWC 2015. Their role was to refer players who commit acts of foul play for disciplinary action to World Rugby where the match officials on the day of the game missed the conduct/incident. They could also had the power to make referrals if they felt more stringent action should be taken against an offending player given the video evidence. Regulation 17.9.1 provides that, “Citing Commissioners shall be entitled to cite a Player for any act(s) of Foul Play which in the opinion of the Citing Commissioner warranted the Player concerned being Ordered Off.

During RWC 2015, the Citing Commissioner could cite a player himself within 36 hours of the match in question finishing having reviewed all the evidence available to him, in particular the multitude of cameras provided by a combination of the host broadcaster ITV and Hawkeye multi-camera feeds.8

The referrals (or non-referrals) made by the Citing Commissioners, and the consistency between them, was subject to criticism by stakeholders, which in some instances appears to have been justified.

In the game between England v Australia in the pool stages (3 October 2015, Twickenham Stadium), England centre Sam Burgess committed a high tackle against Australia’s Michael Hooper – see video here.9 Hooper did not have the ball when Burgess struck him in the neck with a swinging left arm. This was clearly a dangerous tackle in that it had the following characteristics listed in Law 10.4(e):

  • Late;
  • Around the opponent’s neck; and
  • The opponent did not have the ball.

For those reasons the tackle endangered Hooper’s safety, but thankfully he was not injured. Despite all the above surprisingly the Citing Commissioner only gave him a warning, which equates to a yellow card, and therefore Mr Burgess received no suspension.10

Later in the same Pool A, in the match between Australia v Wales (10 October 2015, Twickenham Stadium), Australia’s star player David Pocock appeared to drop his knee and strike Wales hooker Scott Baldwin off the ball, which is an act of foul play contrary to Law 10.4(a) (and arguably a deliberate act of retaliation for being held).

However, once again despite the obvious safety risks to Mr Baldwin, the Citing Commissioner only gave Mr Pocock a warning. This meant he was not suspended (which likely would have been for the remainder of the tournament) and was free to play in Australia’s quarter-final match against Scotland.

Credit should be given in relation to the most high profile incident involving the New Zealand captain Richie McCaw, which could have led to his suspension from the final. Despite intense media scrutiny, and accusations over the years that Mr McCaw had favourable treatment from match officials, the Citing Commissioner correctly, in the author’s view, did not cite Mr McCaw for what appeared to be him accidentally hitting South African Francois Louw with a stray elbow during the semi-final when he ran past him11 – see video here.12

 

Nature of the hearings

If a player was cited during the tournament he would have a hearing before an independent Judicial Officer, ordinarily within 48 hours of the match in question, and the Judicial Officer would review the available evidence. In addition, the player would be given an opportunity to present his case and has the right to be represented. The Judicial Officer would then determine if the player did commit an act of foul play and if so move on to consider the sanction.13

Most Commonwealth countries, from which the major rugby union nations come, are used to an adversarial system where factual, evidential and legal issues are argued by the respective legal counsels for the parties at a hearing on which the judge then makes a ruling. Sport tribunals are often the same in character (although not always).

However, World Rugby stated in the Ford and Gray appeal14 that:

The disciplinary system in place for RWC 2015 is inquisitorial. The role of the Judicial Officer is to ascertain the truth of what occurred on a balance of probabilities. It is not an adversarial process whereby either the Judicial Officer or [Rugby World Cup] is required to challenge an assertion from or on behalf of a Player before the Judicial Officer can make a finding contrary to that assertion.

This places a greater burden on the Judicial Officers (particularly given the tight timeframes), who are necessarily highly skilled and experienced in rugby union disciplinary matters, so as to avoid appeals made.

 

Practicalities of the hearings

It was pleasing to see in a number of the hearings that World Rugby did not insist that the player subject to the citing appeared in person to answer questions, although the player had the opportunity to do so, acknowledging that professional athletes cannot always miss training for example, and were allowed to answer questions by Skype.15

 

World Rugby memoranda

These documents provide specific guidance, and in some instances instruction, regarding specific foul play offences in which World Rugby sees a pattern of offending which needs to be tackled and most likely require some clarification. Memoranda referred to by Judicial Officers at RWC 2015:

Whilst these are of course intended as an aid to decision making, they in turn introduce an added level of complexity not mentioned anywhere in Regulation 17 and can lead to further inconsistency in the rulings on offences and particularly sanctions (see Part 2).

 

Use of video footage

As already mentioned in relation to the Citing Commissioners, the Judicial Officers and Appeal Committees also had available to them a variety of camera angles for each incident brought before them thanks to the host broadcaster and HawkEye.19

In a number of hearings the footage was played and viewed (with no sound) at full speed and in slow motion at 25%, 50% and 25% of full speed.20, 21 Although the majority of people quite rightly believe the more evidence and angles the better, the Judicial Officers and Appeal Committees have to be mindful the fact that repeated viewings of the same incident, especially at the slower speeds, can distort the ‘ordinary view’ of the conduct.

In many of the hearings this led to what the author believes were frame-by-frame questioning of the players of their thoughts and intentions as the incident is played. The lawyers sitting on such panels should consider whether this reflects the reality of what they are meant to be deciding upon?

Playing high-level intensity professional sport involves split-second, if not largely instinctive, decision-making and conduct in real time. The author is not convinced that the answers given at hearings by players about the on-field conduct for which he has been cited accurately reflects what the player was thinking at the time of the incident. The author’s suspicion is that answers are often concocted by the player in an effort to justify their actions with hindsight.

That concludes Part 1 of the article. Part 2 will take a detailed look at the sanctions metered out for proven cases of foul play and the two appeals that were made, before reflecting of what we’ve learned to give comment and suggestions for future editions of the tournament.

 

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About the Author

Kevin Carpenter

Kevin Carpenter

Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.

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