As of 1 January 2022, important changes were made to World Rugby’s disciplinary regulations (Regulation 17), in relation to the sanctioning of acts of foul play.

This article will focus on two of those changes, which are of particular significance for players and their clubs/unions.[1] The first concerns the relevance of a ‘guilty’ plea as an off-field mitigating factor. The second relates to the mandatory minimum mid-range sanctioning entry point for making contact with the head/neck of an opponent. Both amendments are welcome and in the interests of players, as will be explained in detail below.

It is to be expected that these amendments will be adopted by unions worldwide[2] (see, for example, the amended RFU Regulation 19) and, thus, will apply to all rugby disciplinary matters moving forward.

1. Guilty Plea

Once it has been determined that an act of foul play meets the red card threshold, a rugby disciplinary panel will impose a sanction based on an assessment of seriousness of the relevant conduct, followed by the application of off-field aggravating and mitigating factors.[3]

Prior to 1 January 2022, Regulation 17.19.1 provided that the first factor for a disciplinary panel to consider when applying off-field mitigation was:

(a) the presence and timing of an acknowledgement of culpability/wrong-doing by the offending Player; […]

In other words, a player would be given credit for a ‘guilty’ plea. Typically, this would result in a player’s ban being reduced by an extra week (or, in the case of longer bans, approximately 20%).

However, what constituted a guilty plea was somewhat open for debate. Was it sufficient for a player to accept that they had committed an act of foul play, whilst contesting that it had met the red card threshold? Or did players have to accept that a red card was warranted in order to benefit from such a reduction in sanction?

Whilst this author was successful in arguing that the former approach should apply in a case before an EPCR disciplinary panel in December 2021,[4] this was by no means a foregone conclusion and it was a question that required substantial attention at and before the hearing. In practice, the latter approach applied more often than not.

As such, very few red cards/citings were contested, as players feared being banned for longer if their defence failed. It was considered a risk not to accept the charge in full.

Yet many (this author included) considered this situation to be unfair. Though there is good reason for wishing to avoid unnecessarily contested hearings, the ‘chilling effect’ it had on challenges to debatable refereeing and citing decisions was significant and, arguably, disproportionate, particularly in an era when red cards for unintentional foul play have become far more frequent.

Presumably as a result of these concerns, Regulation 17.19.1 has been amended to provide that the first mitigating factor is instead (emphasis added):

(a) the presence and timing of an acknowledgement of the commission of foul play by the offending Player; […]

Therefore, in order to be given credit for a guilty plea, it is now clear that players only need to admit that they committed an act of foul play. They do not have to accept that it warranted a red card. Thus, a player can contest an on-field red card decision and argue that the referee should only have awarded a yellow card (or even just a penalty) without risking a longer ban.

In this author’s view, such an approach is far more proportionate, striking an appropriate balance between the desire for disciplinary proceedings to be efficient and a player’s right to defend themselves.

The effect of this change has already been seen in RFU disciplinary proceedings this year. The players in RFU v. Callum Chick and RFU v. Duhan van der Merwe both unsuccessfully disputed that their dangerous tackles merited a red card but both were granted full mitigation of their sanctions.

However, in Van der Merwe, the panel held that:

Although the Player contested the Red Card, there was some merit to his argument, which could not be said to be entirely misplaced. Given that fact, and the other mitigating features in his favour, the Panel determined to allow the maximum possible 50% reduction from the entry point.

This would seem to suggest that mitigation might not be available where challenges are frivolous. Whilst the logic behind such an approach is clear (i.e. to discourage time wasting) it is not necessarily consistent with new wording of the regulations.

Nonetheless, the amendment is a positive one for players who may feel aggrieved by a red card or citing, increasing the freedom for them to challenge such decisions, and it will likely lead to more fully contested hearings.

2. Mid-Range Entry Point

Appendix 1 to Regulation 17 provides that:

Any act of foul play which results in contact with the head and/or the neck shall result in at least a mid-range sanction

In other words, the mid-range sanctioning entry points in Appendix 1 are the mandatory minimum where there is head and/or neck contact.

However, as of 1 January 2022, a new footnote has been added to Appendix 1, which states that this provision does not apply:

Where the Disciplinary Committee or Judicial Officer having completed steps 1-3 of Regulation 17.17-17.20 inclusive, and having taken into account the application of the Coaching Intervention Programme where relevant, considers that the sanction would be wholly disproportionate to the offending player’s fault and the consequences thereof. 

Therefore, the mandatory minimum mid-range entry point will be disapplied where it would result in a sanction wholly disproportionate to the player’s degree of fault.

This change has seemingly been brought in because of concerns that players are being too harshly punished for certain acts of foul play which result in contact with the head. As noted above, red cards for unintentional foul play have become frequent in recent years – primarily, for making contact with the head. Often, it is the case that there is very little that the offending player could reasonably have done to avoid such dangerous contact – for example, where there are late changes in the dynamics of a tackle situation which are perhaps insufficient for the act to fall below the red card threshold under the Head Contact Process, but which are nonetheless mitigating of the player’s degree of fault, or where a player’s only real option was to allow an opponent to score. Against the background of negligible evidence to suggest that the policy behind these heightened measures – i.e., reducing the incidence of concussion – is working,[5] it is easy to feel sympathy for players who find themselves banned for three or more weeks as a result of such incidents.

This regulatory amendment is thus a welcome one. The heightened sensitivity around head contact in-game, coupled with the increased sanctions post-game, often leads to somewhat unfair results and, though the coaching intervention programme mitigates this unfairness to a degree, it is hoped that this new provision will more broadly protect players against unduly onerous sanctions.

There is, as yet, no published case law on this amendment to provide guidance on its interpretation, but it will no doubt be subject to much debate before rugby’s judiciary (and on this blog) in the near future.

3. Publication and Transparency

Whilst the reforms themselves are welcome, it is disappointing that they were not announced publicly.

Although certain, significant regulatory changes have been the subject of media releases and fanfare, this author has noticed a tendency for other adjustments to World Rugby’s regulations to slip by announced.[6] That is not to say that any fanfare is necessary for all such amendments. However, the RFU has, in the past, published a document outlining the changes to its regulations at the start of each season, and World Rugby would be well-advised to follow suit.

These amendments, though, were made mid-season (at least, in Europe), making their (non-)announcement, by World Rugby and the unions, all the more important. One would imagine that unions notified their member clubs, but for greater transparency would be preferable, not least from a good governance and accountability perspective. It would also assist those working with regulations (such as representatives of players and clubs) who, like this author, might only otherwise become aware of regulatory changes by chance.

Article by Ben Cisneros. Ben is a Trainee Solicitor at Morgan Sports Law, though this article reflects only the author’s personal views. He regularly acts for players before rugby disciplinary panels. Please email ben.cisneros@morgansl.com for any legal or media enquiries. 

References

[1] The other changes saw “leading with the elbow/forearm” re-classified as a Law 9.11 offence (as opposed to a Law 9.12 offence) and the removal of “good character” from the list of off-field mitigating factors in Regulation 17.19.3(b). Thus, on one view, it will no longer be open to players to argue that their good character generally is mitigating of their sanction for foul play; only their disciplinary record will be considered. However, Regulation 17.19.3(f) allows for weight to be placed on “any other off-field mitigating factor(s) that the Disciplinary Committee or Judicial Officer considers relevant and appropriate”, so, in practice, such arguments can still be made (notwithstanding that they do not tend to be given much, if any, weight).

[2] See World Rugby Regulation 3

[3] See Regulation 17.16-17.20

[4] See EPCR v. Schonert (2021) at p.10

[5] See M. Aylwin, ‘Red erring: players the losers in rugby’s card-happy campaign for a safer game’ (Guardian, 2021)

[6] For example, when changes were recently made to World Rugby’s regulations on approaches to players (Regulation 4.9)