Rugby World Cup: a festival for lawyers too

The laws of Rugby are notoriously incomprehensible to most spectators, many players and top referee Craig Joubert.

But if you thought the rules about behaviour in the scrum were murky, spare a thought for the maul of rugby loving lawyers who administer an equally complex set of disciplinary rules.

The game at international level is run by an organisation called World Rugby, which has its own body of rules and regulations. In this country the Rugby Football Union administers discipline in a very similar way.

The World Rugby judicial officers, who make up the disciplinary panels, include:

Prof. Lorne Crerar (Scotland), Adam Casselden (Australia), Jean-Noël Couraud (France), Antony Davies (England), Alan Hudson (Canada), Sheriff Katherine Mackie (Scotland), Roger Morris (Wales), Christopher Quinlan QC (England), Simon Thomas (Wales), Terry Willis (Australia).

The appeal committee is even more erudite, containing three Commonwealth High Court judges and one of Scotland’s leading litigation solicitors:

Justice Lex Mpati (South Africa), Mr Justice Sir James Dingemans (England), Justice Graeme Mew (Canada), Rod McKenzie (Scotland)

For many years now it has been not only the referee who can invoke disciplinary procedures against errant players. Play is also watched by a team of “citing commissioners” – rugby experts from around the world – who have power to refer acts that the referee may have missed.

Such a system is essential, because referees can often miss the most appalling behaviour, such as that of Springbok prop Johan Le Roux who bit deeply into the ear of the All Black hooker Sean Fitzpatrick during a 1994 Test between South Africa and the All Blacks. Although the the referee missed the incident at the time, Le Roux’s career was ended after he was handed an 18-month worldwide ban for his attack. If he was given any credit for showing remorse he certainly didn’t deserve it:

“For an 18-month suspension, I feel I probably should have torn it off,”

he told The New Zealand Herald,

“Then at least I could say, ‘look, I’ve returned to South Africa with the guy’s ear.”

Discipline during the match

During the actual games the referee has complete power to discipline the players.

Obviously, if the referee orders a player off the field his decision can directly affect the result of the match – as when a Springbok was sent off in the last few minutes of the dramatic Japan / South Africa match – but it can also have serious longer term repercussions for the player. One probable result of being sent off is that a player will be suspended, a potentially career destroying sanction for a professional.

So what standard of proof does a referee need before sending someone off? Does he need to be sure beyond reasonable doubt?

No. The answer is contained deep within the body of rules and regulations that the referees need to carry around in their heads: he applies the civil standard of proof and can send someone off provided he thinks it is more likely than not that he committed the relevant foul play.

During the match itself it is a waste of time to appeal to higher authority: no appeal is possible against the referee’s decision. Under regulation 17.7.2:

“The … referee’s position as sole judge of fact and law during the Match is unassailable.”

So during the match the ref’s word is final.

After the match, however, things are very different.

A player who has been sent off – or cited by one of the roving commissioners – faces the prospect of a disciplinary procedure that is as legalistic as the most obstreperous prop forward could hope for.

Disciplinary Committees

The immediate effect of a sending off is that the player is banned until he has appeared before a disciplinary committee.

The committee can impose sanctions ranging from a lifetime ban – a sanction that is (cases of serious injury aside), rather surprisingly, reserved for “physical abuse of match officials” – to a short suspension from the game, or, for minor misdemeanours, a reprimand.

Unfortunately for the players, the odds are deliberately stacked against them. Unlike in a criminal court, there is no presumption of innocence; in fact there is a presumption of guilt.

“the Disciplinary Committee … shall not make a finding contrary to the referee’s decision unless it/he is satisfied, on the balance of probabilities that the referee’s decision was wrong.”

In other words, it is up to the player to prove his innocence, although he can of course admit his guilt in which case his admission and any remorse should count in his favour in determining the eventual sanction.

He is entitled to a copy of the referee’s report (which forms, in effect, the case against him) and he can, if he wishes, be legally represented.

The rules seem to envisage a more inquisitorial system than most English lawyers are used to, without a great deal of adversarial cross-examination. Regulation 17.18.8 reads:

“… there shall be no cross-examination of any witness other than by Disciplinary Committee members or the Judicial Officer except to the extent allowed by the Disciplinary Committee or Judicial Officer.”

If the player fails to overturn the referee’s decision the committee will have to decide on the appropriate punishment.

Sentencing Guidelines

The regulations provide a set of “sentencing guidelines” which will look familiar to English criminal lawyers.

For any particular offence there is a maximum sentence, most commonly 52 weeks suspension. However, the maximum sentence can be irrelevant for “mid range or top end” offending which results in “serious/gross consequences to the health of the victim.” In such cases a life suspension can be imposed.

In all cases the committee must first decide whether the offence was a “lower end” “mid-range” or “top end” offence of its type. The guidelines then provide an entry point sentence before any aggravating or mitigating features are taken into account.

Thus, to take but one example, there is a specific offence of “testicle grabbing, twisting or squeezing.” Quite rightly one might think, it is regarded as more serious than spitting, say, or collapsing a scrum, and carries a maximum sentence of 208 weeks – 4 years – suspension.

(Oddly enough, there is no specific offence of “penis grabbing, twisting or squeezing,” which might give ideas to the unscrupulous, although perhaps in the thick of the scrum a would-be squeezer would find it hard to discriminate between generative organs. In the smaller and more intimate world of Rugby League, however, penis grabbing is sometimes possible and occasionally even acceptable. When Sydney player Korbin Sims grabbed the penis of the appropriately named Willie Mason (who plays, equally appropriately, for Manly) during a match in Sydney earlier this year, Mason said he found the incident “hilarious:”

“I knew what he was doing. I was talking to him as he was doing it. I didn’t even flinch. It was quite funny to me. He’s just a good young kid and I would hope that nothing is done because of it. It’s just two good teammates from the last three years having a good old…just having a good reacquaintance.”

Back to the sentencing guidelines.

The entry point sentence for a “top end” testicle grab is 24+ weeks: in other words it could be anywhere between 24 weeks and 208 weeks suspension, with the maximum presumably being reserved for something approaching a castration (a completed castration would be considered “serious/gross consequences” and would cerrtainly deserve a life ban, if not a life sentence). For a “low end” testicle grab – perhaps a relatively gentle but unwanted squeeze – the entry point is 12 weeks.

How is the level of the offence to be determined? The answer is that there is a detailed check list of factors, including matters such as the player’s intent, the effect on the victim, whether there was provocation, whether the action was in premeditated or in retaliation, and so on.

Having placed the offence in one of the three categories, the committee next considers any aggravating features, which largely relate to the player’s seniority and previous conduct, and any mitigation. As in the general criminal law an immediate admission and genuine remorse is likely to result in a substantial reduction in the period of suspension. However, except in very exceptional cases, the regulations specifically prevent the “entry point” sentence being reduced by more than 50%. The hypothetical testicle squeezer thus could not – in the absence of such features – hope to escape with less than a 6 week suspension.

Appeals

An appeal is possible from the Committee’s decision, but there are strict time limits. The appellant must appeal, by written notice, within 48 hours of notification of the decision, and he must lodge £1,000 before his appeal can be heard.

In international competitions it is not just the player concerned but also his own Home Union that can appeal any decision.

The procedure adopted at appeals is flexible, and the appeal committees have power to rehear the evidence in whole or in part. Further evidence is permitted, but only if the appellant can show that it was not available “on reasonable enquiry” at the original hearing.

Criminal Law

Of course the criminal law can sometimes be used for especially egregious behaviour on the sportsfield, and – belying its reputation as a game played by gentlemen – rugby has had more than its fair share of bloodstained collars felt. Single incidents of biting or punching leading to convictions under S.20 of the Offences Against the Person Act have generally attracted prison sentences of 12 months or less. In 2008, for example, Cardiff flanker Gareth Jones was less fortunate than Johan Le Roux when he was gaoled for 12 months for deliberately biting the ear of an opposing player after the award of a disputed penalty. His victim needed 20 stitches to reattach the lobe. A single punch thrown by David Bowyer, was playing for a Dunlop team against Silhillians in the final of a county competition, broke an opponent’s jaw in two places and landed Mr Bowyer with an 8 month sentence, described by the Court of Appeal as “severe, but not excessive.”¹

So as you watch this fascinating World Cup boil to its conclusion, please don’t forget the lawyers working behind the scenes to keep the players’ earlobes intact, jawbones unbroken and testicles untwisted.