The Horwill Lions hearings and the future of rugby disciplinary proceedings
One of the biggest sporting events of this past summer was the quadrennial British & Irish Lions rugby tour to Australia. As ever this was not without controversy in the form of allegations of stamping made against the Australian captain James Horwill and the protracted disciplinary process which followed. In this article Kevin Carpenter analyses the two hearings and the ramifications for the future of the rugby union disciplinary process.
Much has been written about the unclear and inconsistent approach taken to disciplinary procedures in the sport of rugby union (see my blog post from earlier this year). This has once again been brought to the forefront of the sporting agenda during the British & Irish Lions' ('the Lions') rugby tour to Australia. In the First Test held in Brisbane on Saturday 22nd June 2013, the Australian captain and lock forward (second row) James Horwill was cited after the match by the Citing Commissioner for stamping on the head of the BIL second row Alun Wyn-Jones. This was not seen by any of the match officials in the 3rd minute of the game. Subsequently it was announced that a hearing was to take place the following day before a Judicial Officer ('the JO') of the International Rugby Board ('IRB'), Nigel Hampton QC from New Zealand. His decision not to ban Horwill for his actions caused a great deal of consternation in the rugby world ('the Reasons for Decision' can be read in full here) and led the IRB to exercise its own recently available right of appeal to the decision. The appeal was heard by Appeal Officer ('the AO') Graeme Mew of Canada, who upheld the JO's decision ('the Decision on Appeal' can be read in full here) and therefore Horwill was cleared to play in the final test match held in Sydney on Saturday 6th July. Now the exhilarating series has concluded it is worth examining the Reasons for Decision and the Decision on Appeal to consider what this may mean for the sport's disciplinary procedures moving forward.
The Reasons for Decision of the JO began promisingly enough by succinctly setting out the question before him, "The question for me is to determine was whether I was satisfied on the balance of probabilities that the Player had committed the action of foul play – the alleged stamping or trampling." (para 5.1) The JO was also mindful of the distortions that can be provided by slow motion multi-angle replays of incidents during high speed and dynamic sporting contests, with rugby union being a prime example (paras 5.6 & 5.7).
However, it was surprising the JO then went on to discuss guidance provided by the IRB in relation to rucking (see the definition from the Laws of the Game here) despite Horwill himself claiming "he was not engaged in actual rucking at the time of the incident." (paras 5.10 - 5.13) Following on the JO decided that Horwill had not made intentional, deliberate, or reckless contact with the face of Wyn-Jones and therefore he could not find him guilty of the alleged offence. (paras 5.14 – 5.16) This reasoning appears somewhat problematic as were the JO's concluding remarks, "I concluded that there was, and is, a reasonably plausible explanation for this incident which I could not reject, with such explanation having inherent in it the view that the contact was both unintentional and inadvertent, and accidental contact and one not as a result of recklessness on the part of the [Horwill]." (para 6.1)
Upon viewing the principal video evidence of the incident it is correctly stated in the Reasons for Decision that the head of the player should remain sacrosanct[i], yet it is possible for such contact to be made accidentally, especially at the professional level given the forces and strength of the players involved. However one could argue that before Horwill became off-balance, he had raised his right foot and was moving it down towards the face of Wyn-Jones with some intentional force and this alone would have overcome the standard of proof on the balance of probability and meant a ban for Horwill.
The media reaction to the Reasons for Decision of the JO was generally one of surprise. This was clearly also the case at the IRB Headquarters in Dublin as it exercised its recently available right of appeal on Friday 28th June. The IRB had utilised this right only once previously, in the context of seeking to have a ban increased where a player had been found guilty of stamping on an opponent.[ii] Given what was said in the preceding paragraph, despite the surprise, one could not say for certain that the not guilty finding would be overturned by the AO.
The IRB's grounds of appeal were that:
- the JO wrongly took into account the IRB guidance on rucking;
- the JO committed an error of law in failing to apply the balance of probabilities as the standard of proof;
- and the evidence presented to the JO provided sufficient evidence to establish on the balance of probabilities either reckless or intentional conduct on Horwill's part.[iii]
The appeal was set for Monday 1st July, which meant Horwill was free to play in the Second Test, which Australia duly won 21-19 in Melbourne on Saturday 29th June to level the Series and send it to a decider a week later. In the interest of certainty it would have been preferable had this appeal been heard prior to the Second Test so that a dark cloud did not hang over the Melbourne match causing a distraction for all those involved. Indeed Horwill broke down after the victory due to what he admitted was the strain of the entire process, heightened by being the Wallabies captain. Yet with the IRB not deciding until the day before the match to make its appeal, the hearing could not take place beforehand. This was even more regrettable given the AO, Graeme Mew, has shown previously through the CAS ad hoc Division's hearings at the Olympic Games over which he has presided, his great flexibility, speed and yet quality of judgment.[iv]
The AO was at pains to stress, quite rightly, at the outset that "on an appeal, any evidential assessment or decision involving an exercise of discretion or judgment of or by a JO shall not be overturned save in circumstances where: the relevant findings made by the JO are manifestly wrong or the JO applied wrong principles in the exercise of discretion which had resulted in an erroneous decision being made." (para 10) This is the usual function of an appeal in any judicial system and therefore the AO had very narrow parameters within which to operate.
In a well written and clearly carefully thought out Decision on Appeal, the AO began by setting out the reasons why the IRB felt it necessary to take the unusual step of appealing the judgment of one of its own JOs, "It is a central tenet of the Game that the head is sacrosanct given the injurious implications that can involve from contact with it. The IRB must also consider the impact of serious Foul Play incidents more generally on the image and reputation of the Game and its attractiveness to future generations of players." However, despite the stated concerns about player safety and the message a not guilty verdict would send in the eyes of the IRB, the AO nevertheless concluded that the JO had looked at more than reasonable doubt and indeed he did not read the JO's decision as a confusing approach to the standard of proof. (paras 52 - 54)
Although the AO was somewhat critical of the lack of connection provided by the JO between his rucking law discussion and his evaluation of Horwill's state of mind, the AO said that there may be situations, depending on the facts, in which contact and indeed injury can be caused inadvertently and is therefore neither reckless or dangerous and hence not illegal. In this regard the JO had not made an error of principle. (paras 55 – 57) Consequently the appeal was dismissed.
Subsequent to the initial hearing incidents have come to light from the past few months of Horwill having stamped on opponents in club rugby games[v], however it does not appear that these were brought to the attention of the JO (or would be admissible in an any event as to the question of guilt).
Although the Australians were understandably happier than the Lions, with their captain being free to play in the deciding Test Match, the rugby world in both hemispheres believes this entire episode creates further uncertainty regarding the disciplinary processes of the IRB and its member unions. This concern is amplified by the fact that the IRB actually gave itself this right to appeal with the intention to create some uniformity in the areas of disciplinary proceedings and sanctioning.[vi] Indeed one journalist (clearly British) said, "The one positive thing that may emerge from the travesty is an overhaul of rules within the [rugby] judicial system."[vii] Some quarters have cited the public law concept of the separation of powers saying the IRB's actions, as the global governing body of the sport, amount to an attempt to act as administrator and judiciary by having this right of appeal to the decisions of its own appointed Judicial Officers.[viii]
This is not the first disciplinary controversy during a Lions' Tour, as back in 2005 during their tour to New Zealand the Lions talismanic centre Brian O'Driscoll was injured for the remainder of the Series due to what appeared to be a pre-meditated illegal spear tackle by Tana Umaga and his team mate Keven Mealamu in the first minute of the First Test of that Series. Despite apparently not having been seen by the match officials, the Citing Officer, a Mr Willem Venter from South Africa, also subsequently decided not to charge either player, despite clear video evidence to the contrary (which can be seen here). This drew howls of division from around the rugby world with the IRB up in arms in the aftermath. The memories of this may have indeed contributed to the desire of the IRB to have the appellate right put into the regulations.
Although it was not successful with the appeal, the IRB is not the only governing body in sport which has a right to appeal of its own judicial procedures, in fact UEFA is one such body in football and has exercised this right in recent years, it being seen as a positive development.[ix] Perhaps one way for the IRB to avoid such heavy criticism in the future, as was levelled at it throughout this process, would be for a minimum of three Judicial Officers to sit for each hearing so that the decision does not rest on the whim of one person alone. The hearings could be improved even further by at least one of the three Officers being an ex-international player, coach or referee to provide opinion from a different perspective in the sport. The English Football Association have what are termed 'Football Panel Members' who are part of their Judicial Panel and described as, "those individuals with appropriate experience of the game of association football."[x]
It would be surprising to see the IRB use its right of appeal again in the near future given the AO's decision and the fact that an appeal is after all a process whereby the correct procedures and application of the law/regulations are reviewed, not a re-examination of the facts. However, thankfully Horwill's controversial presence on the field in the Third Test in Sydney was not material to the outcome, with a historic 41-16 win and Series victory for the Lions.
[i] See para 17 of the Decision on Appeal.
[ii] 'Lions 2013: how James Horwill escaped suspension for stamp on Alyn Wyn Jones despite IRB appeal', Oliver Pickup, telegraph.co.uk, 2 July 2013
[iii] See paras 32 - 38 of the Decision on Appeal for more details.
[iv] See CAS OG 12/11 Russian NOC v ISAF, 11 August 2012
[v] 'Clearing James Horwill is a sick joke on rugby', Mark Souster, The Times, 2 July 2013
[vi] 'The James Horwill case: this has not been the IRB's finest hour', Paul Rees, Guardian.co.uk, 2 July 2013
[vii] 'Clearing James Horwill is a sick joke on rugby', Mark Souster, The Times, 2 July 2013
[viii] 'ARU: pull the pin on cause of Horwill 'grenade'', Georgina Robinson, smh.com.au, 3 July 2013
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