Rugby’s disciplinary process has come in for a lot of criticism this week; much of it undeserved. The controversies of Owen Farrell’s high tackle and the punch-up between Siale Piutau and Andrew Kitchener in the Gallagher Premiership have dominated the rugby headlines. The disciplinary system has been branded “farcical”, “ludicrous” and “broken” all in the space of seven days, with supposed inconsistencies leading to calls for root-and-branch reform.

But how much of this criticism is warranted? This article will attempt to provide an objective analysis of the week’s big decisions and will respond to the criticisms levelled at the system, arguing that it is not as fundamentally flawed as many have made out. Though inconsistencies do arise, and minor adjustments should be made, there is no need for a radical overhaul.

Owen Farrell’s 5-Week Ban

The decision to ban Owen Farrell for “only” five weeks, has caused more outrage than most in recent memory. Yet, I have sympathy for Farrell and would argue that his ban could (indeed, perhaps should) have been shorter still.

Assessment of Seriousness

Farrell admitted that he had committed an act of foul play contrary to Law 9.12 that warranted a red card, after making contact with the head of Wasps’ Charlie Atkinson in an attempted tackle whilst playing for Saracens last weekend. The disciplinary panel (the “panel”) found that he had done so recklessly – not intentionally – but that his offence was sufficiently serious to deserve a “top-end” entry point for sanctioning. This was in large part due to their holding that “significant weight should be given to the injury sustained” (Atkinson lost consciousness and sustained a concussion). The panel also considered it relevant that the tackle had caused a “severe blow” to Atkinson’s head, at “high speed”, and that he was in a “slightly more vulnerable” position than in most tackles, as he had not seen Farrell coming.

This formed the “assessment of serious”, the exercise each disciplinary panel must conduct when an act of foul play deserving a red card has been committed, to determine the “entry point” for sanctioning. The selected entry point for the suspension was thus 10 weeks, the minimum entry point for dangerous tackles considered to be “top-end” under RFU Regulation 19 Appendix 2.

Some felt that, because the “top-end” provides for an entry point of “10+ weeks”, the entry point should have been higher, with one commentator calling for a 16-week entry point. To this author, such a finding would itself have been “ludicrous”. Indeed, this author would have selected the “mid-range” entry point of six weeks. The was not an intentional act of foul play, and Farrell was making a genuine attempt at a legal tackle – as he said in evidence, he “was aiming for his arm below the shoulder…in the hope of dislodging the ball”.

Further, as the following images show, Atkinson’s height dropped and he changed direction, moments before Farrell made contact. Farrell reasonably should have expected this sort of movement and, thus, this does not mitigate his offence down from being a red card, but this author considers that it does make Farrell somewhat “unlucky”. The change in Atkinson’s body position in the milliseconds before contact were the difference between a “top-end” sanction and no foul play at all. This must mitigate the “gravity of the player’s actions” (RFU Regulation 19.11.8(c)).

Lastly, the panel placed “significant weight” on the injury suffered by Atkinson. Many wondered whether the fact that Atkinson would not be eligible to play again until 21 September, due to his age and the enhanced “age grade return to play protocol” for concussion, but the panel insisted that it would have reached the same decision had Atkinson been an adult player on these facts.

However, last month Worcester’s Melani Nanai was banned for just 3 weeks (mid-range entry point), after making a shoulder charge (with no attempt to use his arm) on Gloucester’s Jonny May that seemingly left him unconscious, and caused him to suffer a concussion and a “left sided Cervical facet joint sprain”. Earlier in the season, Northampton’s Tom Collins received a two-week ban (low-end entry point) for tackling Wasps’ Jacob Umaga in the air, despite Umaga having suffered a concussion, causing him to miss at least one match. The effect on the victim as a factor within the assessment of seriousness thus appears to have been used inconsistently, again suggesting that Farrell may have been unfortunate.

Such inconsistencies could be remedied by a regulatory amendment to introduce a specific weighting of factors, rather than relying on the discretion of each disciplinary panel. This was a suggestion made by this author and co-author Kevin Carpenter in an earlier LawInSport article, ‘A detailed review of disciplinary proceedings at the Japan 2019 Rugby World Cup (Part 2)’. It submitted:

The assessment of seriousness should focus on the conduct (and its level of premeditation/ intentionality) and not the outcome, because the effect of a particular act of foul play on a victim can vary significantly depending on a range of subjective elements.

Mitigation

After determining the entry point, based on the assessment of seriousness, a disciplinary panel will consider whether there are any “Off-Field Aggravating Factors” (Regulation 19.11.10), which may lead to weeks being added to a period of suspension, or any “Off-Field Mitigating Factors” (Regulation 19.11.11), which may lead to weeks being deducted.

Though the panel noted that Farrell had a previous, two-week suspension for a dangerous tackle in 2016, he is “not an habitual offender” and, hence, there were no aggravating factors. As regards off-field mitigating factors, the panel said:

The Player’s disciplinary record is not perfect. However, the only matter on his record is a two week ban from four and a half years ago when he was 24. The Regulations do not refer to a time when a previous sanction may be disregarded for mitigation purposes. There is an element of discretion. The Panel concluded that such is the weight of other mitigating factors, including acknowledgment of culpability, obvious and genuine remorse and considerable (and exceptional) evidence as to the Player’s good character, that the two week ban from four and a half years ago should not prevent the Player from receiving the maximum reduction by way of mitigation available.

The factors considered, including the significant evidence of good character, were entirely permissible under the Regulations. The maximum reduction of 50% (Regulation 19.11.12), was thus awarded, resulting in a five-week ban.

However, this author does not agree with such an approach to mitigation. A player ought only to benefit from full mitigation, where all factors in favour of mitigation are present. It is not submitted that the panel’s approach is necessarily wrong as a matter of interpretation of the Regulations, but that a more exacting approach would be more consistent with their purpose. A previous disciplinary sanction should preclude a player from benefiting from full mitigation unless it falls outside of a prescribed period – perhaps five years. This would require a regulatory change from World Rugby.

The author again reiterates a suggestion made in the earlier article that:

there should be a formal weighting system given to each of these [mitigating] factors. In rugby disciplinary generally, the authors believe players are given far too much credit for simply attending hearings, giving evidence and answering questions politely. This should be a minimum requirement and not something that provides significant mitigation. The focus ought to be on admissions of wrongdoing, genuine remorse, and the disciplinary record of the player.

The Farrell decision has caused much debate and controversy – some warranted, some not. Though this author is of the view that the sanction imposed was too high, other practitioners consider it to be correct – or too low. It certainly sends a strong message about the importance of avoiding the head/ neck area when tackling, and once again highlights the duty of care owed between players, which is a positive. The perceived inconsistencies, and doubts over mitigation, could be fixed with minor tweaks to the regulations.

Siale Piutau’s 3-Week Ban

Only the second-most controversial disciplinary incident of the week was Siale Piutau’s three-week ban for punching Worcester’s Andrew Kitchener. The ban followed a fight between the two players, which also saw Kitchener banned. Footage of the incident can be viewed here.

Kitchener appeared to attempt to punch Bristol’s Piutau in the face, but was blocked by Piutau, before a melee ensued. Kitchener was held back by another Bristol player and was then punched in the head by Piutau. The brawl continued and the players fell to the floor, with Kitchener swinging at least twice at Piutau’s head, and connecting at least once. Neither player suffered any identifiable injury. Kitchener was red-carded, and Piutau subsequently cited over the incident.

Piutau accepted the charge of striking contrary to Law 9.13 and admitted that his actions merited a red card. The panel found that the punch was “deliberate” and that he had retaliated in response to an attempted punch by Kitchener. Piutau had sought to characterise his actions as “self-defence”, giving evidence that he had been concerned about being struck in the head. However, the panel determined that this was not “the dominant reason behind his decision to punch” and considered that “the presence of other Bristol Bears RFC players at the time…could be thought to diminish the Player’s concerns for his safety”. Further, given the “clear gap in time” between Kitchener’s attempted punch and Piutau’s punch, “it cannot be sensibly viewed as an immediate or instinctive reaction”.

In these circumstances, the panel found the offence to merit a “mid-range” entry point of six weeks – which is the minimum where contact is made with an opponent’s head (RFU Regulation 19 Appendix 2).

As regards off-field mitigation, the panel noted that Piutau admitted the charge, had apologised to Kitchener post-match and had “received a glowing tribute from Pat Lam in which his role within the club and his community was praised” – not dissimilarly to Farrell. Piutau had one previous disciplinary suspension from 2013 (also for punching) but, given that it was more than seven years ago and given the character references, 50% maximum mitigation was granted. Piutau was thus banned for three weeks.

This decision seems perfectly well reasoned. The circumstances of the fight made a “mid-range” entry point appropriate – particularly because Piutau had not initiated it – while full mitigation seems reasonable given the long period between sanctions. This author also agrees with the panel’s finding on self-defence. When Piutau threw the punch, he could not be said to be in immediate danger, as Kitchener had been restrained by another Bristol player, such that a punch was not objectively reasonable. In any event, given that he had pleaded guilty to the offence, it was not open to the panel to impose a lesser sanction.

Nonetheless, Bristol head coach, Pat Lam, was outraged, criticising the decision on live TV for its inconsistencies and for sending the wrong “message”. He insisted that it was a case of self-defence, and that his player should have been able to use force to defend himself in those circumstances. While this author does agree that Kitchener should have been sanctioned more severely (see below), I cannot agree with the assertion on self-defence, as explained above. Lam ought to be careful to avoid sanction himself, for conduct prejudicial to the interests of the Game/the RFU under RFU Rule 5.12.

The club subsequently appealed the panel’s decision. At the appeal hearing, Piutau was represented by teammate Dave Attwood, who is studying to become a barrister. However, this was swiftly rejected. It argued that the finding on self-defence was unreasonable, but the appeal panel accepted the first instance panel’s reasoning and noted that it, in any event, made no difference to the entry point, given the minimum 6-week entry point mandated by Regulation 19 Appendix 2. It was further argued that, to comply with the overriding requirement of fairness (Regulation 19.1.5), the panel ought to reduce the sanction further. This was also rejected by the appeal panel, as this would deviate from the regulatory framework which exists for purposes of consistency. This must be correct.

It is worth dwelling on the appeal panel’s comment that “under the RFU Regulations, a punch in self-defence, is still foul play contrary to the laws of the game” (para 20). This could be read as suggesting that a minimum three-week ban will follow wherever a punch is thrown in self-defence. However, this author submits that such an interpretation cannot be right. In a case of genuine and objectively reasonable self-defence, it should be open to a player to argue that, although they have technically committed an act of foul play, it should not meet the red card threshold because they were acting in self-defence. This would be consistent with the position as common law (R v Beckford [1987]). In Piutau’s case, though, this was not open to the panel because he had already pleaded guilty and accepted that the red card test was met.

Andrew Kitchener’s 3-Week Ban

For his part in the above incident, Kitchener also received a three-week suspension. The panel found that he had deliberately punched Piutau and had missed with at least two other attempts. The punch which connected was thrown in retaliation for the punch by Piutau. It also noted that Piutau was “vulnerable to some extent” as he was on the ground below Kitchener when the punch was thrown. The panel concluded that:

As this was a punch to the head, the mandatory minimum entry point is mid-range. In the absence of any injury and premeditation there were no factors present to warrant a top-end entry point.

This author, respectfully, disagrees. Kitchener attempted to punch his opponent multiple times – and was fortunate that he only connected with him once. That most of these were thrown when Piutau was already falling to the floor, in a position where he could not defend himself, is significantly aggravating. That no injury resulted from this brutal attack is, again, fortunate and should not weigh heavily.

It was also aggravating that, having been shown a red card, Kitchener said to the referee “that’s fucking ridiculous”. The panel concluded that these words had been used to express criticism of the referee and “were a disrespectful act”. The RFU argued that this should be an aggravating factor under Regulation 19.11.10 (off-field aggravating factors), but this was properly rejected by the panel. The panel suggested that the RFU should have brought a separate charge under Law 9.28 (Players must respect the authority of the referee) and considered it as part of the assessment of seriousness of the punching offence.

Earlier this season, Paulo Odogwu was given a “top-end” ban for a kick and, though the panel said that this act alone justified the sanction, the fact he had laughed and applauded after being sent off “justified an increase in terms of sanction…[and] only served to reinforce” the view that it was a “top-end” offence. This author is very surprised that the panel in Kitchener’s case did not take a similar approach, particularly given that the player swore at the referee.

This author would have categorised Kitchener’s actions as deserving a “top-end” entry point and, with 50% mitigation not disputed, would have thought a 5-week ban more appropriate. Indeed, as Ben Kay pointed out in his column for The Times, it is somewhat incongruous that Owen Farrell has been banned for longer for a poorly executed tackle than a man who intentionally set out to hurt an opponent by throwing multiple punches.

As above, this author considers that this inconsistency could be remedied with an express weighting of factors in the regulations, prioritising intent/premeditation over the effect on the victim.

A Need for Reform?

The above analysis might suggest that this author is critical of rugby’s disciplinary process. That is true to an extent, but the flaws pointed out are relatively minor. As explained, this week’s decisions have shown some inconsistencies, but this does not mean the system is “broken”. In any system of sanctioning, there is a necessary element of discretion and, with discretion, there will always be room for disagreement. None of these decisions are obscene, nor glaring miscarriages of justice.

Of course, all of rugby’s stakeholders want consistency, and this author’s suggestion of a more structured assessment of seriousness would go some way to remedying existing issues; but no system is ever perfect. By and large, the sanctions imposed by rugby’s disciplinary panels are reasonable and proportionate and keep foul play in check effectively.

One columnist this week decried the role of lawyers in the process, but it is essential that rugby’s disciplinary process is legally robust. The process plays an important role in protecting players, and in policing the boundaries of lawful violence. Sport is one of the few exceptions to the criminal legal principle that one cannot consent to actual bodily harm (R v Brown [1993]), and the rugby judiciary thus plays an important role in ensuring that appropriate punishments are handed out when players go too far, while keeping the Crown Prosecution Service out of the sport. A similar point can be made about its role in protecting the game from civil lawsuits. The system is, therefore, necessarily juridified.

Lawyers also defend player’s rights to a fair hearing effectively which, in the professional era – where livelihoods and reputations are on the line and where clubs need their stars on the pitch – is more important than ever.

There have also been accusations of a lack of independence, given the role that RFU has in organising disciplinary hearings as well as ‘prosecuting’ acts of foul play. However, these concerns are over-stated. The RFU Judiciary is independently headed by Philip Evans QC, and managed separately from the RFU’s Discipline Team, which has the prosecutorial role. Panel members are also independent of the RFU, and this is how most sports disciplinary systems operate. It has been suggested that the system would be less conflicted, and more consistent, if it was all managed by World Rugby. However, this would be an administrative nightmare. World Rugby’s regulations set the standards that must be applied and allow for World Rugby to intervene if it considers a decision to be wrong, but there is a necessary degree of delegation, given the sport’s global reach.

A final gripe appears to be about transparency, with Ben Kay suggesting that “much greater clarity” is needed. The disciplinary regulations and decisions are all available on the RFU’s website, so it is not clear how much more can be done. Perhaps a simple infographic detailing how the sanctioning process works could be published by the RFU, or a brief video explainer akin to that produced by World Rugby – or perhaps more people should just read this blog…

Rugby’s disciplinary system is neither “farcial”, nor “ludicrous”, nor “broken”. It may have some flaws, but it is not fundamentally flawed.