A review of the Chris Ashton disciplinary decision: lessons on sanctioning under RFU Regulation 19

Published 17 October 2018 | Authored by: Graham Gilbert

Amongst much hype, Chris Ashton returned to English club rugby earlier this year having spent the previous season playing for Toulon in the Top 14, breaking the divisions scoring record in the process1. The significance of the move back was plain: Ashton was making himself available to play for England once again and potentially reigniting an international career that had seemed over when he left Saracens for France. However, it was not long before Ashton made life difficult for himself by committing an act that resulted in a 7-week ban2.

This article reviews the Ashton decision (a copy of which is available here3), examining the rules he broke and how the sanction imposed came to be handed to him following a hearing on 23 August this year.

The Match

Ashton’s misdemeanour occurred in what the RFU Disciplinary Panel referred to as a game “played under the misnomer of a pre-season friendly” on 17 August, during which Ashton’s Sale Sharks took on Castres Olympique. Referee Roman Poite’s report on the game sets the scene: “this game has been played in an electric atmosphere between two teams and I had to manage many times some scuffles”.

It was in this febrile atmosphere that Ashton was penalised for holding on to the ball in the 46th minute of the game. After the whistle had been blown, Castres’ scrumhalf Rory Kockott attempted to rip the ball from Ashton’s grasp. After doing so, Poite reports that “Kockott threw the ball in Ashton’s face. Ashton caught Kockott like spear tackle, lift him from the ground, drove him to the ground and released him”. This resulted in a short scuffle after which both Ashton and Kockott were shown red cards.

The Rule

Ashton was charged with breaching RFU Regulation 9.18 which provides that

a player must not lift an opponent off the ground and drop or drive that player so that their head and/or upper body make contact with the ground”.

As the Panel noted, this offence is one of strict liability: “the offence is committed if the prohibited act occurs” adding that the rule “exists to penalise players whose foul play is other than purely accidental and is one of its most important principles”.

The Hearing

Ashton’s counsel, Mr Richard Liddell, initially advanced two lines of argument on his client’s behalf:

  1. The red card was wrongly awarded and that any foul play only warranted a yellow card, or, alternatively,

  1. Any foul play was more appropriately met by Regulation 9.11 (which prohibits players from doing anything that is reckless or dangerous to others) as opposed to Regulation 9.18 (which it was submitted was not intended to cover scuffles after the whistle was blown).

The latter is significant because it will normally result in a far lower ban than an offence under Regulation 9.18.

However, during the course of the hearing and after a brief adjournment following the Player having given evidence, Ashton withdrew his first line of argument, and Mr Liddell advanced the only remaining submission (2), prior to then addressing sanction.

For his part, Ashton contended at the hearing that he did not understand why Poite had reported a ball had been thrown at his face. He contended that his reaction was down to feeling a player’s hands across his face, which was being squeezed. He kept hold of the leg of the player he thought was doing this as he wanted to be able to identify his assailant. In the light of the offence being one of strict liability, none of this amounted to a defence to the charge – a point that was conceded by Mr Liddell; and the issues to be determined by the Panel were (a) was this a breach of Regulation 9.18? and (b) what was the appropriate sanction?

The Panel’s Decision

On the Event

The Panel were shown various footage of the incident and concluded that:

the Other Player [Kockott] appeared to make contact using his left arm/elbow with the back of the head/upper neck area of the Player [Ashton]. The Panel concluded that the Player took hold of the leg of the other player and lifted that leg to head height with speed. The Player then rotated his shoulder and left arm to fling the player”.

The Panel took the view that Ashton did not drive Kockott into the ground, as suggested by the referee, but did conclude that this was a deliberate and intentional act on Ashton’s part.

However, the Panel also noted that Ashton appeared to have been the recipient of significant provocation before reacting as he did. They did not conclude precisely what the provocation was but did not consider that there had been intentional contact with Ashton’s face. They also considered that it was unclear whether Ashton had exaggerated the provocation in the hearing. They did note that Poite had dismissed Kockott for throwing the ball in Ashton’s face and that Ashton can be seen on the video of the event feeling the back of his head after the incident in what appeared to be an immediate reaction to something.

In accepting that there had been provocation, the Panel considered itself able to conclude that the act was a reckless reaction to that provocation. It concluded that Ashton’s reaction “was a dangerous and petulant reaction to provocative action”. Perhaps moving into the realm of semantics in which the legal world specialises, the Panel concluded that although he meant to react in some form to Kockott’s acts, and certainly intended to take hold of his leg and lift it and fling him, he did not think through the consequences of what he was doing: he did not intend to throw Kockott to the ground on his head, but simply reacted to the provocation. As the Panel put it: “the Panel was not satisfied that it was carried out with the intention that the Other Player necessarily would land on his head, it was clearly reckless as to whether the Act would have that consequence”.

On the Charge

The Panel considered that Ashton’s actions fell squarely within the Foul Play envisaged by Regulation 19.8, noting that the purpose of Regulation 19.8 was to “maintain and promote fair play and to protect the health and welfare of players”. They added that all foul play was caught by Regulation 19.8 unless it was purely accidental, in line with the comments outlined above regarding the offence being one of strict liability. They concluded that: “this was not an accident. It was foul play that falls squarely within the foul play envisaged by Rule 19.8. In these circumstances the Panel was satisfied that the appropriate charge was brought”.

On the Ban

The Panel’s findings regarding provocation, as outlined above, were significant when it came to consider what sanction Ashton should be subject to. Under the new Regulation 19.11.8 (which came into force on 1 August 2018), provocation and a player’s reaction to it are specific factors that a Disciplinary Panel must consider when establishing the gravity of the offending (Regulations 19.11.8(e)&(f) respectively). The Panel’s findings that there was an unknown act of significant provocation by Kockott gain additional significance as a result.

Also significant in the Panel’s conclusion on sanction was the absence of any injury to Kockott4. This is also a factor a Panel must consider when weighing up the appropriate starting point: Regulation 19.11.8(h).

The Disciplinary Panel was required to consider a range of other factors outlined in RFU Regulation 19.11.8. This sets outs 13 specific points that a Panel should consider when assessing whether the conduct falls within the low end, mid-range or top-end sanction for breach of Regulation 19. Of particular relevance in this instance were:

  1. Whether the player’s conduct was intentional or deliberate (Reg.19.11.8(a)) & Whether the offending was reckless (Reg. 19.11.8(b))

As has already been noted, the Panel concluded that Ashton’s acts constituted a deliberate and intentional act to lift the player, whilst being reckless as to where on his person he would land.

  1. The gravity of the Player’s actions in relation to the offending (Reg. 19.11.8(c))

This was informed by the Panel’s decision as to intention: Ashton had not intended to cause Kockott to land on his head, but his actions were reckless. Consequently, the Player’s actions did not fall into the more serious (intentional) category of offending.

  1. The nature of the actions and manner in which the offence was committed including part of body used (Reg.19.11.8(d))

Here, the Panel’s conclusion that Ashton did not drive Kockott into the ground was significant: it removes a degree of malice from the actions.

  1. The Vulnerability of the Victim (Regulation 19.11.8(j)).

The Panel noted that the whilstle had gone – the implication being that no player should have been coming into contact with another. A player’s vulnerability is therefore heightened as they would not be expecting the contact – and particularly not the kind that Ashton dealt out.

Having considered all the factors, the Panel determined that the offence fell into the lowest bracket for the purposes of concluding what ban should be handed out. For offences under Regulation 9.18, this provides for an entry point of 6 weeks.

However, at first blush, this conclusion appears to fly in the face of a note that sits at the top of Annex 2 of Regulation 19. Annex 2 provides for the entry points for each relevant regulation breach. The note in the annex states: “any act of foul play which results in contact with the head shall result in at least a mid-range sanction” (emphasis added).

The Panel concluded that this note did not apply to offences which inherently involved contact with a player’s head in their commission, such as Regulation 9.18 (or, for example, Regulation 9.12, which involves contact with eyes). In reaching this conclusion, the Panel also noted that “the sanction for those offences at the low-level entry point was the same for other offences at the mid-entry point”.

A brief study of the entry levels for various offences confirms the validity of this observation. Comparing the entry points for the offence suggested by Mr Liddell as the appropriate one in this instance (Regulation 9.11), and the offence the Panel concluded was appropriate (Reg. 9.18), demonstrates this neatly. However, it should be noted that breach of Regulation 9.18 does not necessarily require contact with the head, but requires contact with the upper body and/or head.

It has already been noted that the low-entry point for a breach of Reg.9.11 is lower than the equivalent for one of Reg. 9.18: 2 weeks for the former, 6 for latter. However, the mid-entry point for a 9.11 breach is the same as for a low-entry for 9.18. This indicates that offences which, by their very nature, involve contact with the head are immediately treated more seriously. By extension, offences that do not require contact with the head and face are to be treated more seriously if contact with the head or face is made. Head contact has become an immediate aggravating factor – unsurprisingly, given the recent concerns5 over concussion in the game.

Equally, if the note in Annex 2 was applied to all offences involving contact with a player’s head then the low-entry point for offences which must involve such contact would arguably never be used. It cannot have been the RFU’s intention to limit the use of the lowest category to offences involving contact with the upper body. There must be some cases in which there is contact with the head that can still sensibly be placed into the lowest category. If this was not the case, a whole range of sentencing would never be employed. It seems quite reasonable for the panel to conclude that this cannot have been the RFU’s intention in such instances. It is also interesting to note that, when asked by the Panel for its submissions on Annex 2, the RFU did not submit that the Panel was obliged (given Kockott’s head did make contact with the ground) to apply the mid-range entry point.

Having concluded that a low-entry point of a 6-week ban was the appropriate starting point, the Panel then had to consider whether there were any relevant aggravating or mitigating factors that merited a reduction or increase of that starting point.

Regulations 19.11.10&11 now specify specific off-field aggravating and mitigating factors that a Panel must consider when considering whether an increase or decrease in sentence. In Ashton’s case, the Panel concluded that “Mr Ashton’s poor disciplinary record was an aggravating feature and the panel added one week to reflect that. The panel considered at length the prescriptive list of factors in relation to mitigation, but none were sufficient to reduce the length of the sanction”.6

The extra week gave a total of a 7-week ban, which expired yesterday (16 October 2018).

Comment

Given the hopes with which Ashton returned to the club game in England and the hopes he expressed of gaining an international recall7 when doing so, it is now up to him to keep out of this kind of trouble – something he has struggled to do in the past, as the additional week for his record in this instance suggests. However, it does not appear to have proved fatal: he was in the last England training squad8, despite his lack of game time.

Kockott got let off rather more lightly than Ashton – he was banned for one week and missed the first game of the season against Montpellier.

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About the Author

Graham Gilbert

Graham Gilbert

Graham is a barrister at 3PB. Having gained a wealth of knowledge in other areas, Graham has most recently begun accepting instructions in sports law matters and has a keen interest in regulatory and disciplinary aspects of the area, both domestically and internationally. He regularly prosecutes in prohibited substance matters for the British Horseracing Authority, as well as assisting with other disciplinary matters on the Authority's behalf.

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