Zander Fagerson’s ban during the 2021 Six Nations has caused widespread controversy. Fans and commentators have been outraged by the fact he was sent off, by the length of his ban, and by the matches for which he has been banned.

The Scotland prop’s case has dragged on for two weeks now, so this article will try to answer the key questions that it raises.

Overall, this author’s view is that the controversy over the length of the ban is misplaced, though fans may legitimately question why it includes certain matches but not others.

1. The Disciplinary Committee’s Decision

Fagerson was shown a red card for charging into a ruck and making contact with the head of Wales prop, Wyn Jones, contrary to Law 9.20(a), in Round 2 of the 2021 Six Nations.

As a result of the red card, Fagerson faced a Six Nation disciplinary committee (the “Disciplinary Committee”).

Fagerson accepted that he had committed an act of foul play but did not accept that his actions had warranted a red card. He thus argued that he should face no further sanction in respect of his on-field actions. The disciplinary committee rejected that argument and banned him for four-weeks.

In this author’s opinion, the incident (video here) clearly warranted a red card because Fagerson made no attempt to bind onto a player when entering the ruck and his shoulder made direct contact with the head of an opponent. There were no on-field mitigating factors and, if anything, the fact that Wyn Jones was being cleared out at the moment of impact only served to reduce the degree of impact.

The mandatory starting point for a ban under Law 9.20(a) whenever there is contact with the head of an opponent is six weeks.[1] The Disciplinary Committee did not find that the act of foul play warranted a “high entry point” of 10+ weeks. Fagerson was given credit for his previously clean disciplinary record, good character and remorse – all off-field mitigating factors – which enabled the Disciplinary Committee to reduce his ban by two weeks, under World Rugby Regulation 17.20.[2]

Disciplinary committees have the power to reduce bans from their entry point by up to 50% (see Regulation 17.20.2). The previous week, a Six Nations disciplinary committee reduced Peter O’Mahony’s six-week ban to three weeks, on this basis.

The apparent inconsistency between O’Mahony’s three-week ban and Fagerson’s four-week ban caused great controversy, particularly because the two acts of foul play were almost identical (see the O’Mahony incident here).

However, there was one simple difference between the cases. O’Mahony accepted that his actions had warranted a red card, while Fagerson did not. A guilty plea is a key off-field mitigating factor in Regulation 17.20.1. Both players had not previously been banned, so had clean disciplinary records.

The rugby disciplinary case law makes it very clear that a player will not be entitled to the full 50% mitigation where they contest their red card (or citing). This point was made explicitly on a number of occasions by the disciplinary panels at Rugby World Cup 2019 (as discussed here). The Appeal Committee in the Motu Matu’u case at RWC 2019 said:[3]

“It is apparent that in an earlier case in this tournament involving the player Reece Hodge a full discount of 50 per cent was applied even though a citing was fully contested. For the sake of consistency in this particular tournament that approach has been followed in the case of this player, and other players…

However it is not readily apparent why the reduction should have been a full 50 per cent when the player was contesting that the red card test had been met, other than to ensure consistency with earlier decisions in this particular tournament. Therefore nothing that we say in this judgment is intended to endorse the approach of allowing a 50 per cent reduction for mitigation in circumstances where the player has not fully acknowledged his wrongdoing by accepting that the red card test has been satisfied. Giving a full discount of 50 per cent where the player continues to contest the extent of his wrongdoing risks discouraging players from accepting the full extent of their wrongdoing. It also risks judicialising the process of sanctions for foul play because there will be more contested hearings and appeals, none of which is desirable for the game of rugby.” (Emphasis added)

This quote highlights the importance of giving credit for guilty pleas: it encourages players to accept their wrongdoing and discourages drawn-out and contested disciplinary processes. Such a policy encourages players to learn from the incident and saves time and, more importantly, costs for all involved.

The controversy over Fagerson’s sanction was thus misplaced. The Disciplinary Committee acted perfectly properly in reducing his ban by less than 50%.

Fagerson was suspended for Scotland’s three remaining Six Nations matches, and a subsequent fixture for his club, Glasgow Warriors.

2. The Appeal Committee’s Decision

Nonetheless, Fagerson (or rather, the SRU) appealed the Disciplinary Committee’s decision.

The appeal was brought on various grounds, including that the incident had not warranted a red card, that a 50% reduction should have been applied and that Glasgow’s fixtures during the two Six Nations fallow weeks should have been included in the suspension.

The challenge to the length of the ban was (rightly, in this author’s view) dismissed. However, the Appeal Committee did accept that the Glasgow fixtures should have been included in the ban.

Rugby disciplinary suspensions are counted in weeks.[4] However, when imposing a sanction, a disciplinary committee will specify which matches are to be included in the ban.[5]

Thus, the four-week ban was held to apply instead to Glasgow v Ulster (19 February), Scotland v France (28 February), Glasgow v Zebre (6 March) and Scotland v Ireland (14 March). Fagerson was therefore free to play against Italy, on 20 March.

In this author’s view, this aspect of the Appeal Committee’s decision is surprising. World Rugby Regulation 17.21.3(a) provides that, when imposing a suspension, a disciplinary committee shall take into account weeks in which there is a Match which:

“until such time as the Player was suspended, the Player would otherwise have been scheduled to play in…the burden resting with the Player to prove that he was scheduled to play”

Thus, the question is: but for the suspension, would the player have been scheduled to play in that match?

As regards Glasgow’s fixtures during the Six Nations fallow weeks, the obvious answer in Fagerson’s case would seem to be “no”. Though some Scotland international players were released to their clubs in the first Six Nations fallow week, none of those players had started Scotland’s first two matches in the tournament. They were all players who had been on the bench, or who had not played at all.[6] Fagerson had started both games and is a core member of the squad. It would thus have been very surprising if Scotland had released him to Glasgow.

Nonetheless, the Appeal Committee must have been sufficiently convinced that this would have been the case, and Fagerson would likely have adduced evidence from the Scotland coaches to this effect.

As the Appeal Committee in Matu’u explained:[7]

“The sanctions set out in regulation 17 are required to be meaningful…Sanctions must be meaningful so that if a player is not scheduled to play, or there is a week off in league competitions, that week will not apply…” (Emphasis added)

However, given the identity of players released by Scotland, this author does have doubts over how meaningful Fagerson’s sanction really is.

3. The Postponement of France vs Scotland

Following the postponement of France v Scotland, the Appeal Committee will have to further review the matches included in Fagerson’s ban.

Last year, players banned during the Six Nations (Joe Marler, Manu Tuilagi and Mohamed Haouas) saw their bans expire when matches were postponed – even though no matches had taken place in which they would have been scheduled to play. Thus, it might be thought that, in the interests of consistency, the postponement of France vs Scotland should not affect the ban, and it should still expire prior to Scotland vs Italy on 20 March.

However, last month, World Rugby’s independent Judicial Chair, Christopher Quinlan QC, provided guidance for disciplinary personnel, recognising the disruption caused by COVID-19. Though this guidance has not been published, it confirmed that:

“in the event of a match being cancelled but deemed to have ‘taken place’ and points awarded, that the match may count towards a player’s suspension.”

Though this does not directly address the postponement issue, it implies that matches may only count towards a suspension where they are deemed to have taken place. A postponement would not satisfy that criteria.

Nonetheless, Scotland released some players to their clubs this weekend after the postponement was announced. Thus, Scotland may again argue that Fagerson would have been released to Glasgow if not for his suspension, as a number of players have been. This would enable this weekend to count for the purposes of his suspension, allowing him to be free to play in Scotland final Six Nations match, against Italy. However, this author would again suggest that such an argument would be somewhat spurious, given that the players released by Scotland were largely not members of the starting XV.[8]

4. Conclusion

Zander Fagerson’s four-week ban is in itself entirely uncontroversial. His (reckless) conduct warranted a red card, and a four-week ban was rightly imposed. However, the approach of the Appeal Committee to determining the matches included in that suspension is surprising.

There would be greater clarity over this case if the decisions of the Disciplinary and Appeal Committees had been published. It is disappointing that the Six Nations does not publish its disciplinary decisions. It is this author’s view that the decisions should be published, in the interests of transparency and good sports governance. It will also aid fan engagement.

Notably, World Rugby Regulation 20.1.6 now provides that:

“Unions, Associations and Judicial Tribunals shall ordinarily publish reports of their proceedings, findings and sanctions save where the Judicial Tribunal has directed otherwise.” (Emphasis added)

This represents a change for 2021. The previous position under the World Rugby regulations had been that disciplinary decisions “may” be published. The presumption is now that they should be published. The change is particularly gratifying for this author, as it is something that was proposed to World Rugby’s governance review in the Veilomani Report last summer.

Though this regulation may not strictly apply to the Six Nations or its disciplinary committees,[9] it is suggested that it ought nonetheless to be respected in the interests of good governance.

Much of the confusion over rugby’s disciplinary process could be avoided by fans and commentators watching of this explanatory video (and perhaps by reading this blog), but publication of all disciplinary decisions would certainly help.

Article by Ben Cisneros. Ben is a Trainee Solicitor at Morgan Sports Law. Please email ben.cisneros@morgansl.com for any legal or media enquiries. 

References

[1] World Rugby Regulation 17 Appendix 1

[2] Though it may be the Six Nations disciplinary regulations that apply to this case, they would likely mirror World Rugby’s regulations. The Six Nations regulations are not published.

[3] Motu Matu’u v World Rugby (2019), paras 31-32.

[4] World Rugby Regulation 17.3.1(b)

[5] World Rugby Regulation 17.21.2

[6] See here and here.

[7] Matu’u, para 26.

[8] Darcy Graham, who started on the wing against Wales, though did not play the whole game, was released to Edinburgh after the clash with France was postponed.

[9] The Six Nations is not a Union nor an Association, and its disciplinary committees may not be “Judicial Tribunals” as defined in World Rugby Regulation 20.