In May 2019, World Rugby published its Decision-Making Framework for High Tackles (the “Framework”). It was intended as a “systematic tool” to guide decision-making by referees, citing commissioners and disciplinary panels as to the appropriate sanction for potential acts of foul play. Last year, I wrote an article explaining and analysing how the Framework would work and considering where its sticking points might be. Since then, the Framework has been applied widely, both on and off the field. This article will therefore seek to provide an update on the Framework and its application by referees and disciplinary panels.

As I wrote in my first article on the subject, the Framework is a very positive step towards more accurate and consistent outcomes, with player welfare concerns at its core. It is the “embodiment of World Rugby’s commitment to player welfare as its number one priority”.

Nonetheless, as I noted then, the Framework has not been a panacea in this area. It allows for a margin of discretion and interpretation, and thus, as I had predicted, there has been disagreement over its finer details. Indeed, in this weekend’s final Bledisloe Cup match, the two red cards shown to players for dangerous tackles were still disputed by some online. This piece will try to pull together some of the key decisions on those finer details, in the hope of bringing clarity to this potentially confusing area.

1. The Framework

The Framework is available here, along with a helpful explanatory video. It breaks the decision-making process for high tackles (i.e. tackles above the line of the shoulders – Law 9.13) down into four broad stages:

i. Is the incident a high tackle or a shoulder charge?

ii. If so, was there contact with the head or neck of the ball-carrier?

iii. What was the degree of danger – high or low?

iv. Are there clear and obvious mitigating factors?

The starting point is the distinction between a “Shoulder Charge” and a “High Tackle”. A Shoulder Charge is defined as being where:

“[The] arm of the shoulder making contact with the ball carrier is behind the tackler’s body or tucked in the sling position at contact”

A High Tackle, meanwhile, is:

“An illegal tackle causing head contact, where head contact is identified by clear, direct contact to [the ball-carrier’s] head/ neck OR the head visibly moves backwards from the contact point OR the ball carrier requires an HIA”

This seems a sensible distinction, as a Shoulder Charge suggests there was no attempt to make a legal tackle at all and is perhaps more likely to cause harm to the ball-carrier. The key question seems to be the position of the tackler’s leading arm: is it behind, or in front of the tackler’s body? In other words, has the tackler led with the arms, or the shoulder?

a. Shoulder Charges

If there is a Shoulder Charge, the first question is whether there was contact with the head or neck of the ball-carrier. The second question is whether there was a high or low degree of danger. If the answer to the first question is yes, a high degree of danger is presumed, and the appropriate sanction will be a red card. If there no head/neck contact, a shoulder charge with a high degree of danger will result in a yellow card and, if there is only a low degree of danger, merely a penalty.

What does a high degree of danger look like? World Rugby cite the following as signs of a high degree of danger:

“The tackler draws the arm back prior to contact;

The tackler may leave the ground;

Arm swings forward prior to contact;

The tackler is attempting an active/dominant tackle, as opposed to passive/soak, or “pulling out” of contact;

The tackler speed and/or acceleration into tackle is high;

Rigid arm or elbow makes contact with BC head as part of a swinging motion Contact;

The tackler completes the tackle (as opposed to immediate release/withdrawal)”

b. High Tackles

If the incident is a High Tackle, the first consideration is the point of contact on the tackler’s body – does the tackler make the high contact with the ball-carrier with their shoulder, head or arm? If the tackler makes contact with the ball-carrier’s head or neck, using the tackler’s shoulder or head, the question is then whether there was a high or low degree of danger. A high degree of danger will lead to a red card, a low degree to a yellow.

If the tackler makes the high contact with their arm, the question is then whether contact is made with the head or neck of the ball-carrier. If not, where the arm is above or over the shoulder (which World Rugby now defines explicitly as a “seat belt tackle”), a penalty should be awarded.

If the tackler’s arm does make contact with the ball-carrier’s head/neck, the question is then whether the degree of danger was high or low (considering the same factors as above). If the degree of danger was high, the tackler will be shown a red card. If the degree of danger was low, the tackle merits a yellow card.

c. Mitigation

The process outlined above gives the “initial decision”. However, this can then be altered by the consideration of mitigating factors. Firstly, World Rugby states that any mitigating factor must be “clear and obvious”, and that any mitigation will only take the sanction down “one level” – i.e. from a red card to a yellow card, or a yellow card to a penalty, or a penalty to ‘play on’. The possible mitigating factors given are:

“The tackler makes a definite attempt to change height in an effort to avoid ball carrier’s head

The ball-carrier suddenly drops in height (e.g. From earlier tackle, trips/falls, dives to score)

The tackler is unsighted prior to contact

“Reactionary” tackle, immediate release

Contact is indirect…”

It will be an aggravating factor that “the tackler and ball-carrier are in open space and the tackler has clear line of sight and time before contact”.

This graphic provides a good summary:

2. Interpretation by Rugby’s Judiciary

a. The World Rugby U20 Championship 2019

The Framework was first applied during the World Rugby U20 Championship 2019. The disciplinary decision against Samipeni Finau, a New Zealand U20 player, was perhaps the most eye-catching during that tournament. Finau made a high tackle on the Welsh fullback, Ioan Davies, who had just caught the ball from a kick by New Zealand. Davies bent at the knee when landing and Finau’s shoulder made direct contact with his head. The referee awarded a yellow card but, after the player was cited, the disciplinary panel held that the incident warranted a red card, suspending Finau for four weeks.

Applying the Framework, the panel found that there had been a High Tackle and that the tackler’s shoulder made direct contact with the Davies’ head. Given that the player was “attempting to make a dominant tackle” and “followed through and completed the tackle”, there was a high degree of danger. Prima facie, therefore, the incident merited a red card.

The key issue was whether there were sufficient mitigating factors to lower the sanction from a red to yellow card. Finau argued that the ball-carrier’s drop in height after catching the ball meant that the tackle deserved only a yellow card but the committee considered that it was insufficient – the drop, they said, was not “sudden” and was distinct from the examples given in the Framework (trips/falls, diving etc.). It was also aggravating that the players were in open space and that Finau had a clear line of sight, and time before contact.

The committee also cited one of the stated purposes of the Framework: to “support protection of the head of both players by consistently and frequently sanctioning the tackle behaviour that is known to be the highest risk…”. They continued:

“Whilst the Committee had sympathy for the Player…he had a duty to exercise care towards that player who was in a vulnerable position. It would be dereliction of our duty and responsibility as a Committee to the wider interests of the game not to recognise this.”

This was a strong statement of intent. It reflected the shift in approach to high tackles and demonstrated a willingness to punish strongly conduct which poses a danger to players’ health, even where it is unintentional, placing the onus on tacklers to be careful. It is a core part of World Rugby’s long-term strategy of changing behaviour to reduce the risk of players suffering brain injuries (discussed here).

b. Rugby World Cup 2019

Prior to the Rugby World Cup 2019 (the “RWC”), All Black Scott Barrett’s red card for a shoulder charge against Australia in the Bledisloe Cup caused great controversy. The Framework was applied by the referee and by the disciplinary panel in handing Barrett a three-week ban. His case was discussed here.

The disciplinary cases of the RWC considered the Framework thoroughly, and I wrote a detailed piece on this for LawInSport with Kevin Carpenter, available here. The most significant points to emerge from the tournament concerned “accidental head contact”, the factors used to determine the degree of danger, and, most importantly, the application of mitigating factors. It is also worth noting that the Framework was applied outside of the tackle context – for example, in Larsen it was (in my view, sensibly) applied to Law 9.20 (dangerous play in a ruck or maul).

Accidental Head Contact

During the RWC, several players argued that they had committed neither a High Tackle nor a Shoulder Charge but that the incident was merely a collision rather than a tackle – i.e. that the contact was purely accidental. The appeal committee in the Gattas case emphasised that “Accidental head contact is not Foul Play”.

However, these arguments were given short thrift, with the disciplinary committees (for example in Hodge and Gattas) looking at the tacklers’ body positions and movements to find that they had made contact intentionally (albeit that they had not necessarily intended to hit the player high).

The Degree of Danger

As regards the degree of danger, the crucial factor appeared to be that the player was “attempting an active or dominant tackle”, and this alone was sufficient for a high degree of danger to be found (for example, in Hodge and Gattas). Even where a player argued that he was making a passive tackle, the disciplinary committees readily found that there was an “active component” in the players’ actions.[1]

Importantly, the factors listed in the Framework were considered not to be exhaustive (Hodge and Francis). It therefore remains open to player to plead alternative factors to establish a low degree of danger.

Mitigating Factors

This part of the Framework has proved the most contentious, as was previously foreseen. Indeed, even since the RWC, this has proved to be the element that creates most disagreement. Of course, if a player can prove that there were sufficient mitigating factors, the red card test will not be met, and the player will thus avoid sanction.

Again, the mitigating factors listed in the Framework were held to be “neither exclusive nor exhaustive”.[2] The most frequently disputed factor was the ball-carrier’s drop in height. However, only in Francis did the argument succeed and result in the player avoiding a ban – and, even then, this was only in combination with other factors.

As regards the drop in height, the disciplinary committee in Francis emphasised that the “suddenness of [the] drop” is the crucial factor – i.e. it must be both “quick and unexpected” and that the “unexpected has to be something occurring outside the expectations of a reasonable rugby player in the particular circumstances”.

A player bracing for contact, or dipping as they catch a ball, are unlikely to be sufficient for a tackler to avoid a red card, as these are things that would likely be within the expectations of a reasonable rugby player. Indeed, this was found to be the case in the Hodge, Matu’u and Lee-Lo cases. As the disciplinary committee in Matu’u emphasised, “the head is regarded as sacrosanct” and, as such, “the Player had a duty of care to ensure he engaged with [the ball-carrier] in a safe manner”.

The fact that Piers Francis avoided sanction seemed somewhat out of place but, importantly, the mitigating factors must be considered cumulatively and thus, where more than one factor is present, the player is more likely to be exonerated.

Of course, there may also be factors against mitigation – such as the fact that “the tackler and ball-carrier are in open space and the tackler has clear line of sight and time before contact”. The disciplinary committee in Francis and the appeal committee in Gattas explained that there must be a weighing up process. Importantly, a factor against mitigation does not “of itself, prevent a decision maker from going on to look at whether there were mitigating factors present”[3] and it will only be considered if it has a “real bearing”[4] on the incident.

This idea of a “real bearing” was explored in particular in Francis, where it was held that the tackler’s line of sight and the time before contact only become relevant “when the change occurs, which the tackler is able to see”. As such, if there is a sudden drop in height by the ball-carrier, the fact that the tackler had a clear line of sight and time prior to that drop is irrelevant: this factor against mitigation can only be considered from the time when the ball-carrier drops, and the tackler is able to see that. Thus, as the time between the drop and the tackle decreases, there is a “lessening effect” on this factor against mitigation.

Therefore, where there is a sudden drop in the moments before contact, there is less likely to be a factor against mitigation. As we explained in the LawInSport article, this does seem logical but is somewhat at odds with the intention behind the Framework – i.e. encouraging players to take greater care. The Francis decision suggests there is room for players to dispute their liability to sanction. It also reveals the potential complexity of decision-making under the Framework.

c. Post-RWC

Since the RWC, the application of the Framework has been markedly less controversial. Controversy now appears to have shifted to the length of the ban a player subsequently receives. For a detailed discussion on that issue, please see my article here.

However, two cases are worthy of mention. First, in January 2020, Sale Sharks centre Rohan Janse van Rensburg was shown a yellow card after making a high tackle on Exeter’s Gareth Steenson. He was subsequently cited and faced a disciplinary hearing. However, the charge was dismissed and van Rensburg avoided sanction.

The RFU Disciplinary Panel held that the degree of danger was low and, thus, that a yellow card was sufficient. However, the RFU appealed. It argued that the panel had erred in finding that the degree of danger was low, not least given the speed at which the tackle had been made, the fact that van Rensburg was attempting a dominant tackle and the fact that van Rensburg had, himself, been knocked unconscious. Yet, the RFU Appeal Panel disagreed. It found that the first panel had not made an unreasonable decision.

This is a surprising decision. As the RFU argued, where a player hits a ball-carrier with such force as to knock himself out, the conclusion must be that the degree of danger was “high”. The RFU stressed that “to do otherwise is unreasonable and, frankly, a damaging conclusion for player welfare in rugby union”. It is hard to disagree.

Second, Manu Tuilagi was banned for four weeks during the 2020 Six Nations after making a Shoulder Charge on Wales’ George North. Though the written disciplinary decision was not made public (much to my frustration), it was reported that the referee considered that mitigation was not relevant because the act of foul play was a shoulder charge rather than a tackle.

With respect, that cannot be right – and I understand that the disciplinary panel did not follow that approach. The Framework incorporates Shoulder Charges and, thus, such acts of foul play must be analysed using the Framework – which includes mitigation. Any alternative approach would infringe the principle of legal certainty. It is hoped that this approach is not repeated, on or off the field.

3. Conclusion

The Framework appears to be achieving its aims of enhancing consistency in decision-making and changing player behaviour. Notably, at the RWC, the incidence of concussion fell. The Framework appears to be working.

Nonetheless, some inconsistencies remain and there is still some room for players to argue against the imposition of a sanction for high tackles. However, on the whole, the situation is vastly improved from what it was prior to May 2019. Decision-making on high tackles is – and should be – far less controversial now.

With that in mind, it was disappointing to see some of the reactions to the red cards shown to players from both sides in the Australia vs New Zealand match on Saturday 7 November. Neither incident was controversial. The Framework was applied in a clear and orthodox manner, and I expect both Ofa Tu’ungafasi and Lachlan Swinton to be banned. Their red cards are necessary in order to achieve the behavioural change that World Rugby seeks.

The principles behind the Framework are clear, and its purpose is hugely important – players’ brains and lives are at stake.

Article by Ben Cisneros. Ben is a Trainee Solicitor at Morgan Sports Law. Please email ben.cisneros@morgansl.com for any legal or media enquiries. 

 

[1] World Rugby v Reece Hodge, p.7.

[2] World Rugby v Piers Francis, para 44.

[3] World Rugby v Reece Hodge, p.7.

[4] World Rugby v Piers Francis, p.50.