The disciplinary sanctions for foul play have been coming thick and fast at the 2019 Rugby World Cup. After Hodge, Lee-Lo and Matu’u were handed three-week bans for dangerous tackles (previously analysed here), it was hoped that players might take greater care and that referees would be more rigorous in applying World Rugby’s High Tackle Framework (the “Framework”).

Yet, on Thursday, USA flanker John Quill was shown a Red Card for a shoulder charge on England’s Owen Farrell, while Piers Francis was cited for a high tackle that went unnoticed by the referee during the game. Quill was subsequently banned for three weeks, ultimately ending his World Cup, while Francis escaped punishment altogether.

This article will analyse both incidents, and the disciplinary decisions that followed, and will argue that both players escaped lightly – thanks, in no small part, to the clever arguments put forward by their lawyers. It will also be suggested that the Francis decision could be appealed by World Rugby.

John Quill (USA)

In the 70^th minute of USA vs England on 26 September, Owen Farrell spilled the ball in the England 22 and, after picking the ball up, was struck in the head by Quill’s shoulder – as the below images show. Quill was then shown a Red Card. The incident can be seen in this video. The disciplinary decision can be read here.

Quill’s actions evidently breached Law 9.13:

A player must not tackle an opponent…dangerously. Dangerous tackling includes…attempting to tackle an opponent above the line of the shoulders…

Though this is what he was charged with in front the Disciplinary Committee (the “Committee”), it is worth noting that his actions must also amount to an offence under Law 9.12 (striking with the shoulder).

Applying the Framework, such conduct must result in a Red Card. It was clearly a “shoulder charge”, as his leading arm was tucked in the “chicken wing position”, there was contact with Farrell’s head, and no mitigating factors. Referee Nic Berry was absolutely correct to send the player off.

Indeed, Quill admitted as much at the hearing. As such, the only question for the Committee was as to the sanction. As discussed previously, the Committee must determine the “entry point” for the sanction under Appendix 1 to World Rugby Regulation 17, according to the “seriousness” of the player’s conduct (Regulation 17.19.2).

As there was contact with the head, the minimum entry point is the “mid-range”. Factors such as the degree of intention, the nature of the conduct, the effect on the victim, the effect on the Match and the vulnerability of the victim are then considered to determine whether the incident might merit a harsher starting point.

In Quill’s case, the Committee held that the “mid-range” entry point was appropriate which, for the offence in question means a six-week ban (prior to reduction for mitigation). In arriving at this decision, the Committee was persuaded that “this was not deliberate offending but was reckless” and gave weight to evidence from England’s team doctor that Farrell “suffered no injury” as a result of the hit. The Committee also noted that Farrell said the impact was not “as forceful as the footage seems to suggest”. Such factors led them to find that the appropriate entry point was the mid-range.

The Committee then considered the relevant off-field mitigating factors to reduce the ban to just three weeks – giving the maximum 50% reduction. They considered the fact Quill had sought out Farrell at full time to apologise, and later repeated his apology in the sheds, giving him credit for his good character, timely expression of remorse and guilty plea. It was also noted in evidence that “this RWC was/is to be his rugby swansong. He regrets ending his rugby career on such a note”.

Intention or Recklessness?

In my view, it is somewhat surprising that the Committee found Quill to have acted only recklessly, and not intentionally. The Committee found the player’s explanation credible – that he was unsure whether there had been a knock-on, and that he thought Farrell would pass the ball meaning that, when he carried in his direction, he was in a bad position to make a tackle and unfortunately made contact with his shoulder. He argued it was a defensive reaction to an unexpected situation.

With respect, I find such an explanation to be doubtful. Firstly, though Quill emphasised that he was tired by this point in the game, it was clear that Farrell had knocked the ball on. Indeed, prior to the collision, the referee blew his whistle – there was no need for him to make any sort of tackle. Secondly, from the limited footage available, it appears that Quill moves towards Farrell with his left shoulder to make the hit – and there was time for him to adjust his body position to wrap his arm and hit lower. If anything, Farrell is stepping away from him slightly in the moment before contact, and Quill moves his shoulder in that direction – not to evade him, but to make contact.

Proving intention is difficult in any court of law, but it appears that the Committee gave the player the benefit of the doubt. The relevant standard of proof is the “balance of probabilities” (Regulation 17.17.1), so the Committee must be convinced it is more likely than not that the foul play was deliberate before finding that the player acted intentionally but, nonetheless, this seems somewhat lenient. This is a victory for Quill’s legal counsel, Aaron Lloyd.

Had the Committee found the act to be intentional/deliberate, Quill would likely have been facing a “top-end” entry point of 10 weeks. As it is, his World Cup is over and so, it appears, is his professional rugby career.

The Relevance of Injury

Lastly, it is worth making a more general point. It sits uncomfortably that whether the “victim” of foul play is injured is relevant to determining the seriousness of the offence. Though the existence of an injury might give a good indication that the player’s conduct was particularly dangerous, the non-existence of an injury should not be such a central consideration (as I have argued previously here).

Quill was, frankly, lucky that Farrell was not injured – his actions could very easily have caused serious injury. That outcome luck can determine the severity of the conduct is illogical – it is the intention and doing of the act of foul play which is being penalised.

Piers Francis (England)

The Quill incident was not the first dangerous tackle of USA vs England. The very first tackle of the game, by Piers Francis on Will Hooley, was undoubtedly dangerous, but was missed by the Match Officials. Francis was cited for committing foul play under Law 9.13 but was cleared by the Committee at the subsequent hearing.

The full incident can be viewed here. The disciplinary decision can be read here.

Francis, represented by England’s trusty legal counsel Richard Smith QC, accepted that he had made contact with Hooley’s head, and that this constituted foul play. He also accepted that there was a high degree of danger in the tackle, as it was both dominant and at high speed. The Committee found that he had been reckless.

However, in applying the “Red Card test” – i.e. determining whether the conduct did deserve a Red Card and thus a suspension – the Committee decided, on the balance of probabilities, that there was “clear and obvious mitigation” such that the incident had warranted only a Yellow Card. There were three main reasons for this decision.

Firstly, that the initial contact was between Francis’ head and Hooley’s shoulder (“which absorbed a large degree of force”) before Francis’ shoulder slipped up to make indirect and “minor” contact with Hooley’s head, causing “no apparent injury”.

Secondly, the Committee considered that the Player was in control of the tackle and attempted the avoid Hooley’s head by “making a definite attempt to change his own height and his body position”.

Thirdly, it was considered that there was a “sudden change of height” by Hooley immediately before contact. It was only at that moment that the clear line of sight factor (against mitigation) came into play and could be of relevance – so was limited in its application.

Each reason shall now be considered.

Indirect Contact

The footage does suggest that Francis’ head did bear the brunt of the collision, and the fact that the contact with Hooley’s head was indirect must therefore be mitigating. This is listed as a mitigating factor in World Rugby´s guidelines to the Framework, which makes sense as the Framework exists to protect players, and there is less need for protection if the impact is smaller.

Evasion

Evasion is similarly listed. This suggests the tackler understands the need to avoid head contact and there is thus less of a need to punish him. The way that Francis seems to spin out of the contact supports this argument – it may be that he was trying to avoid making head contact.

However, the fact remains that Francis was upright at the moment of impact. Had he lowered his body position, he would not have made contact with Hooley’s head at all. In other words, he did not try particularly hard to avoid the contact. It is thus surprising that the Committee accepted this reasoning so readily.

Sudden Change of Height

At first viewing, Hooley’s fall in height does not appear to be all that “sudden”. However, as the two images below show, Hooley was upright when catching the ball but, by the moment of contact, had his knees at an almost 90-degree angle. I estimate the actual time between these two moments to be approximately half a second. It is thus arguable that the change in height was “sudden”.

That said, this is perhaps a generous view. The examples given in the Framework of a sudden change in height are those of a ball-carrier falling from earlier tackle, tripping over or diving to score. The interpretation in the Francis case, goes beyond this list. Though the Framework is not intended to be exhaustive, this is on the more lenient end of the possible interpretations. Indeed, it conflicts with an earlier decision – the Finau case, during the World Rugby U20 Championships (discussed here) – as well as several examples given by World Rugby in its guidance on the Framework (as considered in relation to the Lee-Lo and Matu’u decisions, last week).

As the below image shows, the drop in height was even more significant in that case, but was not deemed to be mitigating. Though Finau may have been more reckless than Francis, this inconsistency is unfortunate, and may merit reconsideration by World Rugby. Under Regulation 17.22.2, World Rugby may appeal decisions of disciplinary committees within 72 hours of receiving the decision. The ground of “error of law” (Appendix 1 to Regulation 18) would provide an avenue for doing so.

Of further interest is the application of the “aggravating factor” that “the tackler and ball-carrier are in open space and the tackler has clear line of sight and time before contact”. The Framework makes clear that an aggravating factor will prevent mitigation. Francis thus had to explain why there was no aggravation. As the below images show, though Francis may initially be unsighted, there is a clear line of sight as he lines up Hooley. Perhaps at speed, this would be brief.

However, the Committee suggest – as was presumably argued by Smith QC – that the sight, time and space factor is only relevant from the moment Hooley dropped in height – i.e. the instant before contact. This is a canny argument, as it discounts the fact that Francis had lined Hooley up from a way out, by emphasising that there was a late change in body position.

It makes sense in instances where a player is falling/diving that this be the case – that the player had a clear line of sight and time to prepare is irrelevant if the player’s height changes at the last moment. However, in this case, it feels somewhat generous, as Francis had time/space and yet still made an upright tackle, which risked contact with the head.

Conclusion

The above analysis suggests that Richard Smith QC made an incredibly convincing case on Francis’ behalf, which stretched the limits of the Framework and relied on detailed use of the available evidence.

Whether World Rugby will seek to appeal remains to be seen. However, in the interests of clarity and consistency, it is suggested that this would be worth doing.