A review of the disciplinary process and sanctioning decisions from Rugby World Cup 2015 - Part 2: Decisions and appeals

Published 14 January 2016 | Authored by: Kevin Carpenter

Rugby World Cup 2015 (RWC 2015) saw its fair share of drama and controversy, and one area that didn’t escape attention 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 of playing and refereeing rugby union.

Part 1 of the blog (available here) examines the applicable regulations, the citing process, the nature of the hearings, and the use of video evidence.

Part 2, below, moves on to examine the sanctioning decisions and the appeals, and provide commentary and suggestions for future editions of the tournament.

 

How the decision making process works for disciplinary sanctions

Once the Judicial Officer is satisfied on the balance of probabilities that the evidence provided by World Rugby has proved the offence, sanctions are handed down in accordance with the system set out in Regulation 17.19.

The table in Appendix 1 of Regulation 17 provides sanctioning ranges for each offence in Law 10.4.1

In essence, the Judicial Officer has to:

  1. Identify the offence in Appendix 1 for the ranges of sanction;
  2. Decide whether the seriousness of the offence makes it a Low End, Mid-Range or Top End offence which provides the entry point – the factors in determining seriousness are to be found in Regulation 17.19.1;
  3. Consider any aggravating or mitigating factors as set out in Regulations 17.9.4 and 17.9.5 respectively (also see the next paragraph); and
  4. Decide on the sanction.

Additional factors

The RWC 2015 decisions also exhibited some additional factors (not unique to the tournament) that Judicial Officers considered when arriving at their sanctions. These were:

  • World Rugby memoranda – See Part 1 for an explanation.
     
  • Deterrent effect – Regulation 17.19.4(b) specifically states that an uplift on the sanction can be applied, as an aggravating factor, to act as a deterrent effect against similar future foul play by players.

  • This was applied in the decision concerning a dangerous ‘ neck roll’ by Canadian player Nick Blevins in the Pool D match against Romania (6 October 2015, Leicester City Stadium2 - see video here.3 The Judicial Officer’s analysis on this point in paragraphs 8.2 and 8.3 of the decision led to the entry point period of suspension being increased by 1 week.
     
    This aggravating factor is often applied where such foul play offence is also the subject of one of the aforementioned memoranda, as in the Blevins case.
     
  • Continuing patterns of offending – Complementing the deterrent effect, there is also mention in Regulation 17.19.4(b) of combatting a “pattern of offending” in the game. Once again, this is often closely tied to the memoranda issued by World Rugby.

  • A good example of the use of this additional factor can be found in the Galarza decision at paragraph 6.84 - see video here.5
     
    As paragraph 2 of the 2014 Memorandum [on contact with the eyes or eye area] observed, cases of contact with the eye or eye area continue to occur, notwithstanding the earlier Memorandum. The Memoranda remain in force and so have not been withdrawn. The only sensible inferences are that offending of this kind continues and such offending remains a matter of concern for World Rugby. I have not approached the question automatically but rather have considered whether in this case an additional period for this offence is required. Looking at this act of Foul Play, I have concluded that there is a continuing pattern of offending of this kind and the need for a deterrent to combat it remains. I therefore add a period of one week to the entry point of 12 weeks.
     
    In the decision concerning Australia’s Michael Hooper6 (see below for further details), the Judicial Officer said there was no evidence of a pattern of charging into rucks without the use of the arms for which a deterrent uplift was necessary.7
     
    Of greater interest however was the argument World Rugby put forward as to the appropriate sanction for the stamp by Fiji’s Manasa Saulo in the Pool A match against Wales (1 October 2015, Millennium Stadium).8 Up to the point of the hearing on 4 October 2015, it was the third time a Fijian player had been subject to disciplinary hearing for foul play in the 3 games they had played in the tournament up to that point. Therefore World Rugby asked the Judicial Officer to increase, “the entry level applicable to this Player…as a need for a deterrent to combat a pattern of offending in the Game by the Fijian Team in Tournament”.
     
    So in essence, if the Judicial Officer had accepted the submission, it would be making an example of one player as a punishment against the whole team for previous offences of foul play by other players in that team which had already been dealt with in previous disciplinary proceedings. Intuitively to the author this does not seem fair.
     
  • Any other off-field aggravating factor – This comes from Regulation 17.19.4(b) and will be touched upon below.

Therefore overall the Regulations try to balance the need for certainty (the entry point) with some flexibility with no conduct or circumstance being the same when an offence is committed (e.g. aggravating and mitigating factors).

Decisions

World Rugby published a full list of all cases heardduring the tournament after the conclusion of the pool stage,9 including the sanctions handed down where appropriate. It also provided an explanatory press release.10

Criticisms

There was much criticism11 of the sanctions awarded during the tournament for proven acts of foul play, including claims12 that the sanctions were inconsistent and even discriminatory against the smaller (tier-two13) competing nations.

To illustrate this we will look briefly at a couple of decisions on sanctions, where on both occasions the players subject to the charge admitted the offence so only the sanction had to be decided upon.

Michael Hooper

In the decision regarding Michael Hooper of Australia,14 who admitted to entering a breakdown with force and without using his arms ( video here15) an offence under Law 10.4(h), “A player must not charge into a ruck or maul. Charging includes any contact made without use of the arms, or without grasping a player”, the Judicial Officer considered it to be only low end in terms of seriousness, with an entry point of only 3 weeks, despite making the following statements:

  • [Mr Hooper] knew or ought to have known that [his conduct] was a dangerous and inherently reckless action”;
  • Mr Hooper made “forceful contact” narrowly missed the head of his opponent; and
  • His opponent was “in a very dangerous situation…and a high risk of injury was clearly present”.

He then reduced the 3 weeks down to 1 week due to mitigating factors.

Whilst understandable, in the author’s opinion this was not necessarily the correct decision given the primary need to protect the health and welfare of the players and the guidance match officials had been given prior to the tournament to look out specifically for such charging around the head area given the heightened sensitivity regarding concussions and the avoidance of head injuries.

The author believes this would have been a good opportunity for World Rugby to have exercised its right to appeal under Regulation 17.22.2(b).

Sean O’Brien

A further case of note was that involving Sean O’Brien of Ireland in the final group game of Pool D against France (11 October 2015, Millennium Stadium, Cardiff).16 [VIDEO] Having hit his opponent in the stomach at the side of a breakdown, Mr O’Brien was charged under Law 10.4(a), “A player must not strike an opponent with the fist or arm, including the elbow, shoulder, head or knee(s).” Once again, the Judicial Officer in this case judged Mr O’Brien’s to be low end in terms of seriousness despite holding:

  • The offending was intentional”;
  • a strike with a fist to the sternum region has the potential to cause quite serious injury”;
  • the injury had an immediate and significant effect on the opponent”; and
  • “the Player’s striking was dangerous”.

Having decided it was a low end offence the entry point was a 2 week suspension. However, again due to mitigating factors, this was reduced to only 1 week. In coming to his conclusions, the Judicial Officer referred to evidence from two doctors (one team doctor and one independent). However, given the action of Mr O’Brien was clear dangerous foul play the author is not convinced this was necessary.

Comment: alternative sanctioning approach?

Despite the criticism from some quarters about sanctioning during the tournament, as the Judicial Officer pointed out in the Galarza decision, “It is worth noting that the sanctions are of universal application and were determined at the 2012 Morality of the Game conference, with contributions from all stakeholders.17

Yet the author wonders whether a possible alternative to the current sanctioning system would be to retain the low end, mid-range, top end approach but only allow any alterations to those in exceptional circumstances which would provide more consistent and certain decisions on sanctions.

This would remove the aggravating and mitigating factors which are applied too inconsistently and perhaps adopting the notion of “wholly disproportionate to the level and type of offending involved” [Regulation 17.19.7(b)] which currently only potentially applies to the low end entry point.

The “wholly disproportionate” test for exceptional circumstances would seem to be appropriate given the restrictive interpretation given to it during the RWC 2015 decisions, in particular in the Galaraza decision (also referred to in the O’Brien decision18 and Tuilagi appeal19), “The adverb “wholly” means completely, totally or entirely and modifies by addition “disproportionate”. It connotes a sanction which is really exceptional for that level and type of offending."20

 

Appeals and scope

Despite the very short timeframes involved, World Rugby exhibited good practice by having an appeal procedure in place, with a right of appeal available to both the player subject to a disciplinary decision and World Rugby.21

The two decisions appealed (one being a joint appeal on the same facts) raised some interesting issues about the scope and purpose of a disciplinary appeal. The Tournament Disciplinary Process stated the following on these two issues, “The Appeal Committee shall determine the basis on which the appeal shall proceed.…the Chairman of the [three-person] Appeal Committee will be members of the independent RWC judicial panel and/or independent former rugby administrator(s) and/or retired player(s). The Appeal Committee may dismiss the appeal, quash, vary and/or increase any decision and/or penalty appealed and take any other steps in order to deal with the matter justly.22

This is an extremely wide power for a sports tribunal appeal and involves an Appeal Committee inviting submissions, and making a decision, on whether or not the appeals is de novo in nature, by way of review only or a hybrid of the two, before hearing the substantive appeal.

Alesana Tuilagi

The first decision appealed was the most controversial of the entire tournament as it involved Alesana Tuilagi of Samoa essentially being suspended for his running style, as when carrying the ball with his force he sent the Japanese tackler flying backwards with his leg/knee (3 October 2015, Milton Keynes Stadium).23 [ VIDEO]

He was cited and charged pursuant to Law 10.4(a) which prohibits striking an opponent. At first instance he was given a 5 week suspension which drew outrage from all stakeholders given it appeared it was just a collision (albeit a strong one) in the normal course of the game and it was no surprise he appealed.

Mr Tuilagi asked the Appeal Committee to review the Judicial Officer’s decision de novo principally on the basis of this passage from paragraph 5.2 of the first decision, “I have watched, played, coached and refereed much rugby. I have seen Mr Tuilagi play rugby many times from 2004 onwards – enough to know what I have seen is not his normal running style.24

The Appeal Committee found that the Judicial Officer’s failure to put this to Mr Tuilagi during the first hearing for him to respond was vital, “The Committee accepted the submission that such failure on the part of the JO, on the balance of probabilities, made the hearing procedurally unfair. For this reason, the Committee concluded that it was in the interest of justice that the case be heard de novo.

Upon a re-hearing of the evidence, including allowing Mr Tuilagi to submit further evidence in the form of clips to illustrate his ‘usual running style’ of ‘running through’ opposition players, but that on this occasion he had got into the “wrong position”, the Appeal Committee ultimately relied on a photograph included at paragraph 3.4 to conclude he had, “’drove’ from a distance with his right knee raised high up with no lowering or ‘dipping’ of the upper body” and therefore the citing was upheld.

As regards the sanction, the Appeal Committee decided it merited a low-end entry point (3 week suspension on the World Rugby Sanctions table), which was in contrast to the Judicial Officer at first instance who believed it was a mid-range seriousness offence. Of note, the Appeal Committee decided that despite having had disciplinary issues in 2005, 2009 and 2013, it was not a mitigating factor given only one of those within the past 6 years.

Overall, despite Mr Tuilagi largely refusing to accept his conduct amounted to foul play (which the author fully understands), they applied a 1 week reduction for his good character and exemplary conduct (before and at the hearing) meaning he was suspended for 2 weeks.

Ross Ford and Jonny Gray

The second appeal during the tournament concerned Scottish players Ross Ford and Jonny Gray who were cited for an illegal clear out of an opponent at a ruck during their final Pool B match against Samoa (10 October 2015, St James’ Park, Newcastle)25 – see video here.26 For this they were cited in the alternative under Law 10.4(e), “A player must not tackle an opponent early, late or dangerously”, or Law 10.4(j), “Lifting a player from the ground and dropping or driving that player into the ground whilst that player’s feet are still off the ground such that the player’s head and/or upper body come into contact with the ground is dangerous play.” After a 7 hour first instance hearing, the Judicial Officer found on the balance of probabilities that acts of foul play contrary to Law 10.4(j) had been committed and suspended the pair for 3 weeks.27 As this meant they would miss the quarter-final match, it was of little surprise they appealed.

As to the standard of review applied by the Appeal Committee in this appeal, they allowed a de novo (new) hearing in part, in order to permit a rehearing of the evidence but limited to the issue of whether the Players drove the opponent into the ground, this being the third of four component parts to Law 10.4(j).

The Appeal Committee took this approach because the players successfully showed that they had not been questioned on the issue of downward pressure by the Judicial Officer with the Appeal Committee deciding, “While our assessment of the JO’s decision is that the evidentiary record before him was capable of supporting the decision he made, as a matter of fairness, the Players’ evidence concerning the issue of drive/no drive should, in the circumstances, have been tested with greater rigour. It was an issue lying at the very core of the decision the JO had to make.

The Appeal Committee further explained their reasoning clearly in the paragraphs of the decision that followed this statement, including distinguishing it from the Tuilagi appeal, “For the avoidance of doubt, the Tuilagi case is clearly distinguishable. In that case the JO based his decision in part on something that went beyond the evidentiary record before him, namely his knowledge of the player’s running style. In the present case there is no indication that the JO’s decision was based on evidence that was not before him”, which highlights the flexibility in the process which is welcome in the author’s opinion.

The submissions then made by the players during the substantive part of the hearing on the relative downward pressures applied by them was, in the opinion of the Appeal Committee, “consistent with the video evidence and explains the dynamics of the players’ actions”. Therefore, “viewing the Players’ actions both in isolation and together, the evidentiary record, and in particular the evidence admitted de novo, does not, on a balance of probabilities, support a conclusion that [the opponent] was driven into the ground.” Therefore not all elements of Law 10.4(j) were satisfied on the balance of probabilities and there was no finding of foul play on this basis.

That did not however preclude the Appeal Committee from considering the incident under Law 10.4(e), which the Citing Commissioner had also stated in his report, because, “an appeal committee can take any other step that it thinks is appropriate to deal justly with the case in question. It would be contrary to the interests of justice to send the issue of Law 10.4(e) back to the JO or to ignore the fact that the citing complaints referred to it. Furthermore, as RWCL notes, consideration of Law 10.4(e) falls to be made on the same evidentiary record as we have considered in respect of law 10.4(j).

However, given the evidence, the Appeal Committee decided that they ‘placed’ the opponent down which led to a safe outcome and therefore they emerged from the appeal with no finding of foul and no suspension.

Finally of note from this appeal, the Appeal Committee supported the Judicial Officer’s finding that the following statement from the match referee was opinion evidence and was rightly excluded, “After our internal performance review process I am satisfied that that I dealt with the incident appropriately.

 

Creative submissions from legal teams

During the hearings, lawyers for both the players and World Rugby put their full training and experience forward with some creative submissions on different issues, a couple of which stood out to the author as worth mentioning briefly.

In Saulo, when it came to sanctioning, World Rugby suggested to the Judicial Officer that the serious nature of the offence of stamping may have been viewed by a considerable worldwide television audience which should be an aggravating factor.28

Although not expressly stated, parallels can be drawn with the submission to the finding in the Australian case Rogers v Bugden and Canterbury-Bankstown.29 Here, an enhanced award of damages were awarded to Mr Rogers, a professional rugby league player, for the emotional impact of knowing that he had been victim of a deliberate assault carried out by an opposing player live on national TV.30 Although the Judicial Officer did not apply this on the facts in Saulo, “the offending was not replayed as part of the television broadcast…[and]…there was no evidence before me as to the numbers or likely number of viewers who may have observed the Player’s offending”, surprisingly he did not did not dismiss the possibility in principle.31

Finally, in O’Brien, the evidence as to his good character included, “the charitable works the Player conducted with his community including being an Ambassador for Special Olympics Ireland arranging cycling events for the disabled.” The author feels this kind of character evidence, being not related in any way to rugby, should not be submitted as part of an attempt to have the sanction reduced.

 

Comment and suggestions for Rugby World Cup 2019 Japan  

First, World Rugby must be praised for the overall efficiency of the disciplinary process put together for RWC 2015, including the quality of the written decisions which were usually provided within World Rugby’s 24 hour target of the decision being made and communicated. For example, the entire process for Mr Tuilagi (including both the first instance and appeal decisions) took just over a week from the day of the game in which the incident occurred to the written Appeal Committee decision being released.

However the disciplinary cases from RWC 2015, as analysed in this blog, did provide learning points that the author submits can be used to improve the process at future Rugby World Cups (in no particular order):

  • World Rugby should be able to challenge a Citing Commissioner’s decision but only on the ground that it is, "is so unreasonable that no reasonable Citing Commissioner could ever have come to it.” It would be an on-paper procedure to another Citing Commissioner on the panel.
  • First instance hearings should have an ex-player or ex-coach from international rugby involved in the hearing, for example, acting as an adviser to the Judicial Officer regarding the actual conduct on the field cited as foul play. Even perhaps the first instance hearing should be presided by a 3-person panel: with a member of World Rugby’s independent judicial panel as Chairman and then the other two members being a combination of other independent judicial panel members and/or former rugby administrators and/or retired players (i.e. the same three panel constitution as for the Appeal Committees).32 Especially as there are more than enough ex-professionals working for media at such tournaments who would undoubtedly be happy to help.
  • Far greater weight must be given to the video evidence when it is played at full speed given the ferocity of top level international rugby and the far greater instinctive behaviour by players.
  • Character evidence should be limited to that which relates to the game.
  • Hearings should have a time limit on them as, for example, up to 7 hours is manifestly excessive. This can be achieved by more stringent management of the evidence allowed and submitted.
  • Tournament Disciplinary Regulations must be publicly available, and easy to find, on the Rugby World Cup website.
  • Only allow any alterations to the entry points for sanctions for each offence where there are exceptional circumstances to do so, namely the entry point would be wholly disproportionate in all the circumstances.    

Overall the disciplinary process should be a relatively simple balancing of prima facie evidence regarding the welfare of the player against the speed and physicality of modern day international rugby. This would preclude too much legal picking apart of slow motion images and artificial retrospective guesswork about the inner workings of player’s minds in the heat of the game.  

 

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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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