With so many disciplinary incidents taking place during this Rugby World Cup, it is hard to keep up. Rather than try to cover them all, I am trying to focus on the most significant during the tournament and will then draw out the most interesting points of principle from the remaining cases in a post-tournament round-up.

This article will consider the case of the two Italian props – Andrea Lovotti and Nicola Quaglio – who were charged with foul play contrary to Law 9.18 for their joint spear ‘tackle’ on South Africa’s Duane Vermeulen during Italy’s match against the Springboks on 4 October. The incident occurred in the 42^nd minute and, at the time, referee Wayne Barnes only gave a Red Card to Lovotti – though Quaglio was later cited for his contribution.

It is undoubtedly the most heinous and dangerous act of foul play we have seen this tournament, yet both players escaped with just three-match bans. The full decision of the independent disciplinary committee (the “Committee”) can be read here.

This article will consider the disciplinary decision and will argue that the sanction ought to have been more severe. Indeed, it is a decision which World Rugby ought to appeal.

The World Cup disciplinary process was discussed in detail in an earlier article, here.

The Facts

As the video below shows, both Quaglio (17) and Lovotti (1) clear Vermeulen out of the ruck and, after doing so, lift his legs and tip him upside down, before driving him into the ground, head first. The lift happens after Vermeulen is well clear of the ruck (indeed, he took the ball with him) and after the referee had blown his whistle – to award Italy a penalty!

Contrary to the decisions of both the referee and the Committee, it appears to me that it is Quaglio and not Lovotti who initiates the lift.  Quaglio lifts Vermeluen’s left leg, then Lovotti lifts Vermeulen’s right leg. They then tip him forwards, beyond the horizontal, almost to the vertical. Quaglio then appears to push Vermeulen downwards, while Lovotti appears to fall to ground himself, taking Vermeulen with him.

The result is that Vermeulen’s head is driven towards the ground. He braces his fall with his left arm which prevented his head making direct contact with the ground. The initial impact is on Vermeulen’s left shoulder, but his head subsequently hits the ground.

The medical evidence before the Committee was that Vermeulen suffered a ‘stinger’ injury on his left shoulder but that he continued to play after treatment and that there will be no long-term complications.

Lovotti accepted the charge but denied committing the act of foul play intentionally. He said that he intended to lift Vermeulen “laterally” but, with the “intervening” actions of Quaglio, lifted him vertically and lost control due to the weight of Vermeulen on his arm.

Quaglio, meanwhile, denied the charge. He argued that his role was “secondary” and that he was aiming to support the “tackle” of his teammate. He, too, said that the dynamics of the action were unintentional. What’s more, he denied that he had lifted Vermeulen’s left leg and said he did not realise Lovotti had already lifted him in the air. The  footage suggests Quaglio did lift his leg.

In other words, both players blamed the other for what happened.

Both players were apologetic for what had happened, and according to the referee’s statement, Lovotti apologised to Vermeulen after the final whistle.

The Law

World Rugby Law 9.18 states:

A player must not lift an opponent off the ground and drop or drive that player so that their head and/or upper body make contact with the ground.

There is no mention of intention (though this is relevant to sanction) – it is a ‘strict liability’ offence. If a player does what Law 9.18 says they must not, an act of foul play has been committed.

The Decision

Firstly, the Committee note that both players appeared before them together, because of the possibility that each of their actions impacted on those of the other. However, it added that:

it is essential as a matter of fairness to both players to consider their actions and responsibilities separately…We note that this is the approach which has been taken in a number of other cases, see Ford & Gray (Rugby World Cup 2015). This means that we must…assess separately whether the red card test has been met for each player.

This must be correct as a matter of logic – to be ‘guilty’, both players must have committed acts of foul play – and it is also the approach seen in criminal trials of co-defendants.

Lovotti

The Committee accepted Lovotti’s guilty plea, but found that:

he was attempting to move South Africa number 8 who was secured in a “jackal position” over the ball but the dynamics changed when [Quaglio] came from the other side and…also attempted to move South Africa number 8. We therefore do not find that there was an intentional breach of law 9.18 but that the actions of [Lovotti] were reckless because he should have been aware of [Quaglio] and of the effect of [Quaglio’s] actions. [Lovotti] should have controlled the descent of South Africa number 8 given his role in lifting him.

With respect, this ignores the fact that by the time the players lifted Vermeulen, he was already (a) cleared from the ruck, (b) stood upright on his feet and (c) the referee’s whistle had been blown. Further, given the way in which Lovotti follows through with the lift even though Vermeulen is already off the floor, it is doubtful that he did not act intentionally. His body action shows a clear twisting motion, lifting Vermeulen forward – not laterally.

Lastly, it is doubtful that Lovotti could not have realised that Quaglio was also lifting their opponent. Vermeulen weighs 108kg. While Lovotti must be a strong man, that he was able to lift someone of Vermeulen’s size with such ease must surely have made him doubt that he was acting alone.

Proving intention in any area of law is incredibly difficult but I would suggest that there is sufficient video evidence to cast doubt on the player’s account. The burden of proof in World Rugby’s disciplinary process is the “balance of probabiltiies” (World Rugby Regulation 17.17.1). In this case, the Committee have given Lovotti the benefit of the doubt.

Quaglio

Quaglio argued that while he had committed an act of foul play – i.e. he admitted breaching Law 9.18 – his actions did not pass the “Red Card Test”. As noted above, he denied lifting Vermeulen. However, the Committee found that he did, and that he also turned Vermeulen through 90 degrees and dropped him. The Committee said:

It is right to note that [Quaglio] was also attempting to clear out South Africa number 8 by driving him off the ball and did not intend to lift and drop South Africa number 8. It was apparent from his evidence that the event happened very quickly and [he] did not have a clear understanding of what actions he had carried out.

The Committee nonetheless found him to have been reckless, on the same grounds as Lovotti, and held that the Red Card Test had been satisfied.

However, there are strong reasons to doubt this finding of fact. Firstly, as above, at the time of the lift, Vermeulen had already been cleared out and the whistle had gone. The footage shows Quaglio bend at the knees before driving upwards to lift Vermeulen. He does so before Lovotti, and then continues the lifting motion. What’s more, the side angle shows him pushing Vermeulen towards the ground once he is upside down. Far from not intending to drop his opponent, it is my view – based on the footage – that he deliberately drove him into the ground.

The same caveat applies as to the difficulty of proving intention, but it is not significant that Quaglio “did not have a clear understanding of what actions he had carried out”. In the heat of the moment, he may have acted in a rash manner and, indeed, it was over very quickly; but this does not mean that in that moment he was not acting intentionally.

The Committee was generous in its interpretation of the evidence and I would argue that there was sufficient evidence, on the balance of probabilities, to find that Quaglio acted with intention. It is worth reiterating that the standard of proof is lower than the criminal standard of “beyond reasonable doubt”. It only needs to be more likely than not that the player acted intentionally for such a finding to be made.

Sanction

As both players had passed the Red Card Test, the Committee then turned to consider the appropriate sanction. As explained in an earlier article, Appendix 1 to World Rugby Regulation 17 sets out the “entry point[s]” for sanctions, offering a “Low-end”, “Mid-range”, “Top-end” and “Maximum” for each type of offence, to be determined depending on the seriousness of the player’s conduct (Regulation 17.19.2). This is assessed by reference to various factors (see below).

Appendix 1 states that “any act of foul play which results in contact with the head…shall result in at least a mid-range sanction”. However, the Committee explained that “contact” has been interpreted to mean “contact between the tackler and the head of the tackled player”. This is logical given (a) the offence under 9.18 already mentions contact with the head and (b), as the Committee noted, the starting points for offences such as tip tackles have already been increased to reflect the danger to players. Given there was no contact between the players and Vermeulen’s head, this provision was not applicable.

The Committee considered that the following factors meant a low-end entry point of  a six-week suspension was appropriate for both players: it was reckless but unintentional and the actions of each player affected the actions of the other, there was no provocation or retaliation, Vermeulen suffered no serious injury, the conduct was “completed” and Vermeulen was vulnerable when upended.

The final step is to consider off-field mitigating factors to determine the appropriate reduction for the ban (Regulation 17.19.5). The Committee gave the players credit for their apologies, clean disciplinary records, good conduct at the hearing and genuine remorse. Lovotti was also given credit for his guilty plea.

Both players were given full mitigation of 50% (Regulation 17.19.6), culminating in their three-week bans. This was in spite of the fact that Quaglio contested the charge.

It is argued that these sanctions are insufficient and that the Committee erred in reaching its decision.

Firstly, I would argue that the appropriate entry point was the mid-range of 10 weeks. As aforementioned, the Committee, in my view, ought to have found the players to have acted intentionally. This immediately makes the offence more serious.

Secondly, though it is listed as a relevant factor under Regulation 17.19.2(h), I have argued in my previous article, that it should be given little weight. That Vermeulen did not suffer a catastrophic injury is, frankly, due to nothing more than good fortune. He was able to extend an arm to brace his fall and avoided a direct impact through his head and neck. Had he not managed to do so, the consequences could have been life-changing.

This was a serious act of foul play and, though I accept that the actions of each player made the other look worse, I suggest that the mid-range entry point would have been more appropriate. With full mitigation, this would have meant a five-week ban for both players.

Thirdly, this World Cup has seen questionable principle applied to the reduction of sanctions. Though I have no issue with Lovotti receiving full mitigation – he has a clean record, was very apologetic and pleaded guilty – the same cannot be said of Quaglio. It seems inappropriate that he received the same sanction despite contesting the charge and trying to use Lovotti’s guilty plea to get off.

The same approach was seen in the Reece Hodge decision (discussed here) and, in the interests of consistency, has been adopted in all subsequent disciplinary decisions (as noted in the Motu’u appeal decision, and by the Committee in Quaglio’s case). However, the Committees in this case and Motu’u’s seem to recognise that this is not ordinarily the approach adopted in World Rugby’s disciplinary process. Though consistency is important, the better approach would, in my view, to have been to recognise the error and set the record straight. This has been another victory for the lawyers.

World Rugby’s Right to Appeal

As explained in my article on the Piers Francis decision, under Regulation 17.22.2, World Rugby may appeal decisions of disciplinary committees within 72 hours of receiving the decision. The deadline for this is fast approaching, but World Rugby should act.

No one likes seeing players banned but a three-week sanction for an act of foul play as dangerous as this does not send the right message. It does not promote World Rugby’s message of protecting player welfare and suggests that bare denials will lead to a short ban. This is not something World Rugby should wish to encourage.

In this case, World Rugby could appeal on the ground of error of fact (that the conduct was not unintentional) and that, consequently, the sanction imposed was wrong in principle (Appendix 1 to Regulation 18, 4.5).