Castres’ Rory Kockott was this week handed a three-week suspension for “making contact with the eye area” of Munster’s Chris Cloete during Round 4 of the Champions Cup. The incident was not spotted by the referee during the game but was picked up by the match Citing Commissioner. A video of the incident is available here.

Headlines in the early part of the week suggested that the 32-year-old might have been facing a career-ending ban but, as it turns out, he will be back playing in under a month. This has, understandably, left many confused. Chris Ashton received a 10-week ban for making contact with the eye area of an opponent in 2016, while Kyle Sinckler was given 7 weeks in 2017 (discussed by this author here).

On the face of it, there is little to distinguish the cases. Indeed, it is arguable that Ashton’s actions were far less intentional and more the result of a poorly attempted tackle. But the foul play sanctioning guidelines changed as of 1 January 2018, allowing the present outcome to be reached.  

This article will discuss the rules in this area of foul play, explain the decision reached in Kockott’s case and will consider whether the sanction imposed was appropriate. Spoiler: it wasn’t.

The Law

World Rugby Law 9.12 on Dangerous Play states:

“A player must not physically or verbally abuse anyone. Physical abuse includes, but is not limited to…contact with the eye or eye area…”

It is therefore an offence to make contact with the “eye or eye area” of an opponent. The sanctions for this offence are set out in Appendix 1 to World Rugby Regulation 17. Prior to January 2018, these guidelines stated that the lower end entry point suspension for “contact with the eye(s) or the eye area” was 12 weeks, the mid-range 18 weeks and the top end 24 weeks plus. However, this changed on 1 January 2018.

Under the current rules, the offence has been divided into three, as the following table demonstrates:

This shows why the sanctions in Ashton and Sinckler’s cases differ from the sanction given to Kockott.

The Decision

According to European Professional Club Rugby (EPCR), an independent Disciplinary Committee heard evidence and submission from Kockott, who pleaded guilty to the charge of making contact with the eye area. The Committee found that Kockott had made contact with Cloete’s eye area but that it was an act of foul play at the low end of World Rugby’s sanctions. It therefore considered four weeks to be the appropriate entry point.

This period was then reduced by a week due to the player’s guilty plea and good conduct at the hearing. Kockott is thus banned for three weeks and is free to play from 7 January 2019.

Opinion

An inappropriate entry point

Three weeks does not seem an appropriate sanction for this act of foul play. As the footage and still image of the incident clearly show, there was definitely intent, or at least recklessness, from Kockott to make contact with the eye(s) or eye area of Cloete. As this author has written before, this is one of the most heinous offences that can be committed on the rugby field and it must thus be sanctioned severely. Granted, it was not the clearest example of intentional ‘gouging’ ever seen, but there was certainly a deliberate attempt to interfere with the eye(s) or eye area of an opponent.

Furthermore, the victim was lying on the floor, unable to defend himself – in a vulnerable position – which is a factor which World Rugby Regulation 17.19.2(j) states should be considered in assessing the seriousness of foul play.

Firstly, therefore, it is unclear why the entry point should have been the lower end at four weeks.

To give some context, it is interesting to note some of the other bans which have been handed out by EPCR this season. Alex Lozowski was banned for four weeks for a dangerous tackle (video here); Danny Cipriani was given a three-week ban for making unintentional contact with the head of an opponent in the tackle (video here); and Jerome Kaino was given 5 weeks for the same offence (video here). Each of these merited their suspensions, but it is suggested that Kockott’s actions bore far greater malicious intent than any of them. This should be reflected by a more severe sanction.

Were more serious charges satisfied?

Secondly, as the full judgment has not yet been published, it is not clear whether the more serious charges of intentional or reckless contact with the eye(s) were seriously pursued by EPCR. The statement that the ban had been reduced owing to the player’s guilty plea would suggest they were not. Proving intention can be difficult but, in this case, recklessness could surely have been established – Kockott shoves his hand into the face of Cloete, with his fingers spread.

The third category of “contact with the eye area” is residual – designed to catch any case in which there is evidential uncertainty, such that it cannot be determined whether contact was made with the eye itself or simply the surrounding area. It is therefore submitted that this charge should only be considered once the first two have been ruled out.

This image would suggest that contact was made with the eye of Cloete, meaning that the third need not have come into consideration:

However, the Committee appear not to have thought there to be sufficient evidence for the more serious charges to be made out. Thus, Kockott was ‘convicted’ of the lesser offence.

This is not satisfactory. Firstly, there are unlikely to be many cases where there is clearer evidence of a finger in someone’s eye. Moreover, according to EPCR’s statement, there was no evidence heard by the victim (Cloete). In a case such as this, where evidential findings are key to determining the length of the sanction, it is submitted that such evidence should have been sought.

Grounds for Appeal

Given the above, it is suggested that EPCR should appeal the Committee’s decision. They must do so within three working days of receiving the full written decision of the Disciplinary Committee. The grounds for appeal should be as follows:

(1) There was sufficient evidence (and further supporting evidence could have been adduced) to convict Kockott of the more serious offence of “reckless contact with the eye(s)”, if not “intentional contact with the eye(s)”.

(2) Even if this is wrong and there was insufficient evidence of contact with the eye(s), the offence was one deserving of more than the low-end sanction. The mid-range entry point would have been more appropriate.

A Gripe: reductions for ‘good conduct’

Finally, it is worth commenting on the reduction of the initial four-week ban for “good conduct” at the hearing. Conduct at the hearing is explicitly recognised as a mitigating factor in World Rugby Regulation 17.19.5(d) and was therefore properly applied in this case.

However, it is submitted that this should be removed from the Regulations. Good conduct at a disciplinary hearing should be expected as a minimum; it need not be rewarded. It is different from pleading guilty, which saves disciplinary panels time, or remorse which suggests a degree of moral repentance which is something a ban is designed to effect. Good hearing conduct is an element of common courtesy and has no relevance to the on-field conduct in question. The only way that conduct should affect a disciplinary sanction is negatively – i.e. bad conduct at a hearing should aggravate a sanction.

Conclusion

In conclusion, it is hoped that EPCR will appeal and that Kockott’s ban is extended. Rugby in France has a bad history when it comes to players making contact with the eyes of opponents; EPCR should see this as an opportunity to ensure that this sort of behaviour does not make a return.  

It is also argued that World Rugby should consider eliminating Regulation 17.19.5(d), as it serves no valid purpose.