On Tuesday 20 August, World Rugby announced that France second-row Paul Gabrillagues (the “Player”) had been handed a six-week suspension for foul play in the France vs Scotland match on Saturday 17 August. The player appeared before an independent World Rugby Disciplinary Committee (the “Committee”) charged with making contact with the head of an opponent contrary to Law 9.20 – “a player must not charge into a ruck or maul”.
The incident in question occurred in the 16th minute of the match, when the Player entered a ruck at speed, making contact with the head of Scotland back-row John Barclay. The incident can be seen here.
The Committee held that the foul play was intentional and, given that it took place at considerable pace and with considerable force (causing injury to Barclay), decided that it merited a “top-end entry point” which, according to Appendix 1 to World Rugby Regulation 17, equates to a minimum 10-week suspension.
The Committee then took into consideration mitigating factors – in line with World Rugby Regulation 17.19.5. The Player’s early acknowledgement of guilt, apology, expression of remorse and his good conduct at the hearing led the Committee to reduce the 10-week ban by 40%, resulting in a sanction of six weeks.
Taking into account the Player’s playing schedule – as a member of France’s named Rugby World Cup (“RWC”) squad – the suspension ends at midnight on Sunday 6 October. This would see the Player miss France’s first three RWC fixtures, before becoming available for the final match against England.
This article will consider the implications of this disciplinary decision, as well as the possible grounds of appeal which the Player might have.
The Implications
The Big Picture
The first thing to say about this decision is that it has been a long time coming, and that it is good to see World Rugby taking the laws around the ruck seriously – or some of them, at least.
I have written (here) previously about the lawlessness that has become commonplace at the breakdown, and identified reckless, off-feet clear-outs as one of the major areas which needed to be addressed. This is a step in the right direction. The Player’s actions were reckless and, in line with their policy of reducing the risk of head injuries, it is important that World Rugby try to eliminate this type of conduct from the game.
However, it remains to be seen whether this will set a new precedent for disciplinary sanctions. To date, these types of clear-out – particularly at international level – have been too often ignored. If World Rugby is serious about such a strong approach to sanctioning such foul play, we can expect to see a number of long bans handed out during the RWC.
It is questionable whether now is the time to start such a crackdown – with just weeks to go before the tournaments kicks off – but it is an area which has long needed attention.
France’s World Cup Squad
The Player was named in France’s RWC 31-man squad on 18 June 2019. Had this suspension occurred during the tournament – or once France’s official squad had been submitted – the Player could not have been replaced: only injured players can be replaced in RWC squads.
However, the France squad at present is only preliminary, with six more players in camp who, as head coach Jacques Brunel confirmed, are still competing for places in the final 31. As such, France will be able to replace the Player if they see fit. Given that he will be unavailable for three out of four pool matches, one would expect them to take someone else.
The Player
As it stands, therefore, the Player’s RWC 2019 dreams appear likely to be over. However, given these implications, and the relative rarity of a World Rugby sanction for such conduct, it would not be a surprise to see the Player appeal: though the incident definitely merited a red card, he may well feel that he has been made an example of. The possible grounds on which this might be based will now be considered.
Grounds for Appeal?
Under World Rugby Regulation 17.22.2(a), the Player and/or the Player’s Home Union has the right to appeal the decision of the Committee, within 48 hours of the decision being notified.
According to Regulation 17.22.7, appeals are governed by Appendix 1 to Regulation 18 which, at 4.5, provides that:
Except where an appeal proceeds in whole as a de novo hearing it is for the Appellant to establish that the decision being challenged on appeal:
(a) was in error (either as to central factual findings or in law);
(b) in the interests of justice should be overturned;
(c) the sanction imposed was manifestly excessive or wrong in principle…
Given that it is unlikely for there to be a ‘de novo hearing’ (it is not clear that such a hearing would be necessary in the interests of justice – 4.3), (a) – (c) of this provision seem to be the appropriate route. This should more accurately be described as a review, rather than an appeal. As the Appeal Committee in Romania and Spain v World Rugby [2018] put it, in such a scenario:
an Appeal Committee must be accorded what has long been described accurately as a “significant margin of appreciation”. Accordingly, such evidential assessments and factual findings should only be disturbed if they are clearly wrong or wrong principles have been applied. That threshold is high and deliberately so.
The Player would thus face an uphill struggle to get the sanction reduced, or overturned. Nonetheless, the possible arguments might include the following:
(a) Error of Law
Firstly, the Player could seek to argue that the Committee’s decision was made in error (in law). This could be established in two ways – (a) by arguing that there was a breach of World Rugby’s Regulations, or (b) of the general law which is applicable. Given that Regulation 17.1.1(d) specifically states that disciplinary proceedings are to be conducted in accordance with the principles of natural justice (principles of the general law) this article shall proceed on the basis that the substantive reasoning would be the same either way. Under Bye-Law 15(b), it is English law which is applicable.
(i) Wrong Entry Point
The Player could argue that the Committee erred in finding that the foul play (which he admitted) required a high-level entry point sanction. He could argue that, though it did occur with force, he had not intended to commit foul play – he had merely been careless as to the point of contact. He did not appear to lead with his shoulder and might argue that he was simply trying to get under Barclay, to effect a clear-out. He might also note that Barclay was not replaced as a result of the incident; so he did not cause serious injury.
Though these are not factors which should mean he receives no punishment for a clearly dangerous act, they are factors which, under Regulation 17.19.2 are used to determine the seriousness of the offence. It may thus be arguable that this was not of the highest seriousness and, therefore, the entry point should have been lower than 10 weeks.
Moreover, the player might point to other, similar incidents which have received lesser sanctions or no sanction at all to demonstrate that the top-end entry point was inappropriate. For example, as this video shows, there was an incident in Wales vs England this weekend in which Ken Owens made a similar clear-out on Willi Heinz, resulting in the England 9 being removed for a HIA.
Arguably, the Owens incident was more serious because (a) he had his armed tucked in the ‘sling position’, showing no intention to bind and a clearer intention to commit foul play, and (b) Heinz had to go for a HIA and was eventually replaced. Nonetheless, this was not sanctioned on-field and was not subsequently cited.
A similar incident occurred in Ireland vs New Zealand last November (see here) and, again, there was no citing.
In light of such decisions – which can ultimately be attributed to World Rugby – there is an argument that the Player’s act should not have been deemed deserving of a top-end entry point.
(ii) Inconsistent Decision-Making
There might be a stand-alone argument premised on this inconsistency. The Player could argue that this, in itself, amounted to an error of law, as a breach of natural justice principles or the overriding obligation of fairness which is readily implied into Sports Governing Bodies’ (“SGBs”) disciplinary procedures (e.g. Cronin v Greyhound Board of Great Britain Ltd [2013]). The Player may rightly feel that he is being made an example of.
Legal certainty is a fundamental legal principle and a tenet of the ‘rule of law’. Given that World Rugby purports to administer a system of law (governed by English law), it ought to comply with such fundamentals. It is in the interests of good governance to uphold the principle of legal certainty. Sanctioning one incident as a most serious breach of Law 9.20, and others not at all is no way to do this.
However, is there a definitive legal principle which the Player could employ here? This has been an area of some debate. As Mark Elliott has noted, the Supreme Court in Mandalia v Secretary of State for the Home Department [2015], and the Court of Appeal in R (Nadarajah) v Secretary of State for the Home Department [2005] and R (Rashid) v Secretary of State for the Home Department [2005] suggested that there is a stand-alone principle of administrative law that public bodies must make consistent decisions. However, though Elliott argues for such a principle, the Supreme Court in R (Gallaher Group Ltd) v Competition and Markets Authority [2018] held that it does not exist in English law.
This is not to say that consistency is never considered. Consistency may be relevant to determining whether a decision is irrational or whether there has been a breach of a legitimate expectation. The Gallaher decision suggested that inconsistency would be prima facie evidence of irrationality. Therefore, the Player might be able to mount an argument that the Committee’s decision was irrational (and thus unlawful).
Yet irrationality is a high standard. Following Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1947], a decision will only be irrational if it is so unreasonable that no reasonable decision-maker could have made it. Given the Committee’s broad powers, it would be difficult to establish this, but it might be arguable. It certainly appears arbitrary that one player can be banned for six weeks and yet others are free to play. However, the better view must be that those decisions not to sanction were aberrations and that this is the proper (albeit harsh) application of the law. The non-sanctioning decisions might be irrational, but not this one.
Nevertheless, another way of making the same argument might be through the principle of equal treatment in EU law, as enshrined in Art.20 of the EU Charter of Fundamental Rights. EU Treaties have been held to be directly effective in national law as between individuals and SGBs (e.g. Walrave and Koch v UCI) and thus, presumably, the general principles enshrined in the Charter would be too, following cases such as Mangold, AMS and Bauer. The Player could argue that, in light of the above, he has not been treated equally to other players.
This is also a principle which has been upheld by the Court of Arbitration for Sport (e.g. CAS 2017/A/5299 Olympique Lyonnais v. UEFA) as part of the lex sportiva. Though the CAS has no authority over World Rugby matters, the lex sportiva is a body of legal principles which has developed specific to sport, which ought to be considered. The equal treatment argument might have a greater chance of success, as it amounts to a substantive right, but the fact remains that the Committee will be given a “significant margin of appreciation”.
(b) Manifestly Excessive Sanction
Lastly, the Player could try to argue that the sanction was “manifestly excessive or wrong in principle”. The argument would be similar to the above – that the entry point was wrong and the fact that some players have received no sanction at all suggests it is manifestly excessive.
However, as the Appeal Committee in Romania and Spain v World Rugby noted, “manifestly excessive means what it says: it is not simply too much or too long but manifestly so”. Even if the Committee had found the Player’s offence to merit a mid-range entry point (the minimum when there is head contact) and had applied 40% mitigation as they did here, the ban would still have been four weeks. No one is genuinely going to argue that he ought not to have been banned at all – as noted above, the unsanctioned incidents are themselves errors. Whether a two-week difference could be “manifestly excessive” is highly doubtful.
What’s more, Regulation 17.19.4 states that disciplinary committees should consider aggravating factors when determining the period of suspension, including “the need for a deterrent to combat a pattern of offending in the Game”. There is certainly a case for applying this provision – though it is unclear whether the Committee did so. Any Appeal Committee, however, might consider the sanction to be justified in light of this provision.
It is worth noting that it is generally accepted that the law imposes an obligation on decision-making SGBs to impose sanctions which are proportionate (e.g. Bradley v Jockey Club [2005]). The Player might thus be able to make an argument regarding the length of the sanction under (a) “error of law” or even (b) “in the interests of justice”, by arguing that the sanction was disproportionate in all the circumstances. How this would interact with the “manifestly excessive” provision is unclear but, given the “significant margin of appreciation”, it would be surprising if a sanction was found to be unlawfully disproportionate if it wasn’t “manifestly excessive”.
Conclusion
In all, it appears unlikely that Gabrillagues’ sanction will be overturned or reduced owing to the Committee’s “significant margin of appreciation”. He would have a greater prospect of success if he could successfully argue for a ‘de novo’ hearing but this seems unlikely, particularly given that the “review” procedure was followed in the recent disciplinary appeal of Asaeli Fanua, during the World Rugby U20s Trophy. This brings into focus the narrow nature of World Rugby’s appeal procedure – as previously discussed here and here – which is, in my view, unsatisfactory.
Though perhaps harsh for Gabrillagues, as he does appear to have been singled out, such a strong sanction is in the broader interests of the game. Such reckless behaviour at the ruck is all too frequent and poses a serious threat to players’ safety. Referees are far too willing to allow the laws around the ruck to be broken and it is hoped that this decision is part of a ‘crackdown’ on such behaviour. If so, this should be reflected on the field, in decisions of the referees and TMOs, and not just by disciplinary panels off it.
Finally, if the Gabrillagues decision is allowed to stand, it must then be followed. Consistency is a crucial element of good governance and, as the RWC approaches, World Rugby will be under greater scrutiny than ever.