On 17 November 2021, the long-awaited decision in the World Rugby misconduct case against Springbok Director of Rugby, Rassie Erasmus, and the South Africa Rugby Union (“SARU”) was published (the “Decision”).

The case relates to the infamous 62-minute video (available here) that went viral during the 2021 Lions Tour, in which Mr Erasmus (inter alia) criticised the refereeing of the first Test. The video was widely condemned after its widespread circulation on 29 July 2021, and misconduct proceedings were soon started against both Mr Erasmus and his employer, SARU (together, the “Respondents”) by World Rugby with the Decision being published following hearings before an independent Judicial Committee (the “Panel”) in October and November 2021.

The Decision imposed an immediate, two-month suspension on Mr Erasmus from all rugby activities, and a further suspension from all match-day activities (including media engagement) until 30 September 2022. He was also warned as to his future conduct and ordered to publicly apologise to the relevant match officials. For its part, SARU was warned as to its future conduct, fined £20,000 and also ordered to apologise.

This article will seek to explain and analyse the Decision, and will reflect on the prospects of the reported appeal. In particular, it will address the line between fair public comment on match officials and misconduct, the Panel’s criticisms of World Rugby, and highlight the Decision’s useful guidance for Unions, players, coaches and administrators (and their representatives) across the game.

1. The Charges

The Respondents were charged with various alleged breaches of World Rugby Regulation 18 (“Regulation 18”) and World Rugby’s Code of Conduct (the “Code of Conduct”).

Mr Erasmus faced six charges, summarised as follows:[1]

(i) Threatening a match official that unless a requested meeting took place, he would publish footage containing clips criticising the match official’s performance and then making good on that threat; and publishing or permitting to be published the Video containing numerous comments that were either abusive, insulting and/or offensive to match officials, contrary to Regulation 18.4(b) and para 1.10 of the Code of Conduct.

(ii) Attacking, disparaging and/or denigrating the Game and match officials, contrary to Regulation 18.4(i).

(iii) Not accepting or observing the authority and decisions of match officials, contrary to para 1.4 of the Code of Conduct.

(iv) Publishing or causing to be published criticism of the manner in which a match official handled a match, contrary to para 1.5 of the Code of Conduct.

(v) Engaging in conduct or activity that may impair public confidence in the integrity and good character of match official(s), contrary to para 1.7 of the Code of Conduct.

(vi) Bringing the game into disrepute, contrary to para 1.9 of the Code of Conduct.

For its part, SARU was charged as follows, by way of summary:[2]

(i) Failing to ensure that Rassie Erasmus complied with the World Rugby Code of Conduct; and/or permitting Mr Erasmus to commit acts of misconduct; and/or failing to publicly correct any comments or publications by or on behalf of Mr Erasmus that amounted to misconduct, contrary to Regulation 18.5 and para 2 of the Code of Conduct.

(ii) Permitting and/or not preventing Siya Kolisi and Mzwandile Stick making comments at a press conference on 30 July 2021 that were not disciplined or sporting and adversely affected the game of rugby; and/or failing to publicly correct any such comments so adversely affecting the game of rugby, contrary to Regulation 18.5 and para 2 of the Code of Conduct.

The Respondents denied all of the charges. Ultimately, the Decision found each charge proven, save for the second charge against SARU.

2. Threatening a match official

The first of the charges against Mr Erasmus related to the previously unreported allegation that he had threatened Nic Berry, the referee of the first Test. The Panel found that Mr Erasmus did threaten Mr Berry that, unless a requested meeting took place (to discuss footage of incidents that had occurred during the match), he would publish footage criticising his performance. This allegation was disputed by Mr Erasmus.

However, the Panel heard evidence from Mr Berry, Dr Ben O’Keeffe (assistant referee during the first Test), Joël Jutge (Head of Match Officials, World Rugby) and Jaco Peyper (South African referee). Mr Berry’s evidence was that Mr Erasmus had called him on the evening after the first Test and had said that, if he was not willing to meet immediately that he would put the relevant footage online to go viral, and this was confirmed by the evidence of Dr O’Keeffe and Mr Jutge, who Mr Berry had spoken to shortly after his call with Mr Erasmus. Curiously, Mr Peyper and Mr Erasmus’ recollection differed, but this did not outweigh the “ample” evidence supporting Mr Berry’s version of events.[3] There were also two emails from the same evening in which Mr Erasmus made clear that he would be going to the media.[4]

The Panel thus found that there was a “clear threat to discuss matters in the media”[5] and that this was “wholly unacceptable”.[6]

3. Publication of the video

Central to the charges against Mr Erasmus was that he had published or permitted/caused to be published the 62-minute video (the “Video”).

Mr Erasmus accepted that he had commissioned the Video, which was produced by Russell Belter, the owner of a TV production company, Wildcam. Mr Belter uploaded the finished Video to his Vimeo platform and forwarded the link to Mr Erasmus. Mr Erasmus’ position was that this had been intended for viewing only by Mr Berry, certain officials at World Rugby, the CEO of SARU and the Springbok players and coaches, and that he had duly sent it to them (only), by email and WhatsApp respectively.[7] It was only possible to view the video using the specific link – i.e. it was not publicly listed online. However, nor was it password protected.[8]

The Panel held that Mr Erasmus was complicit in the uploading of the Video by Mr Belter to Vimeo and thus published or permitted/caused the Video to be published.[9]

The Respondents argued that this was not sufficient to establish the charges and that the Panel ought to be satisfied that Mr Erasmus published or permitted/caused the Video to be published to the public more widely. The Panel rejected that interpretation but nevertheless held that the manner in which Mr Erasmus shared the link without any warning as to confidentiality or any privacy setting made a leak to the public “an almost inevitable consequence; and a consequence readily foreseeable to any perceptive person, which we conclude [Mr Erasmus] is”.[10]

In any event, the Panel rejected Mr Erasmus’ argument that the Video was made only for a limited audience. In so holding, the Panel noted that the Video had been prepared with commentary, which would have been unnecessary if it was for internal use – likewise the long, 15-minute introduction and his identification of the roles of the individuals referred to.[11] The Panel also referred to several telling passages from the Video, including:[12]

…Yeah, if you think this was going over the top and this shouldn’t go out to the media then I did this in my personal capacity, not as part of the Springboks and I will withdraw myself from the Springboks Management Team.

Of course, there was also the fact that Mr Erasmus had, prior to recording the Video, threatened Mr Berry with going public with his criticism. The Panel thus concluded that “the only sensible inference from all the evidence” is that the Video was made public “by or at the behest” of Mr Erasmus.[13] On the balance of the evidence referenced in the Decision, this seems an inescapable conclusion.

4. Abusive, insulting and offensive conduct

The charges against Mr Erasmus variously characterised his conduct as abusive, insulting, offensive, attacking, disparaging, and denigrating towards, impairing the integrity and good character of, and criticising match officials. He was also accused of bringing the Game into disrepute.

Examples of such alleged conduct from the Video include the following comments:[14]

…How do you get that wrong? How do you give one team eight seconds and there is not even material or territorial advantage and obviously not time advantage and then you give the other one territorial and time advantage more than the other team? It is just something that is very tough to understand how he can do that. But, again, we couldn’t get the answer. He admitted afterwards, Joel, and you guys also saw that. That is a difficult one to explain, how do you make a mistake like that?

…It is comical the way, the respect the ARs and the guys show towards the South African players compared to the Lions players…

Remarkably, Mr Erasmus denied that his actions were in any way abusive towards Mr Berry and the Respondents considered the conduct to have been justified by virtue of, for example, (i) the mistakes made by the referee; (ii) the lack of any protocol for communications with match officials during the 2021 Lions Tour; and (iii) the alleged disrespect and/or differential treatment of the Springbok captain, Siya Kolisi.

However, the Panel had no difficulty in finding that the Video contained comments which were abusive, insulting and/or offensive to Mr Berry and the other match officials. The Panel held that:[15]

…Viewed objectively the Erasmus video was an attack on the impartiality and the integrity of the match officials, which can never have any place in the Game.

One of the points made by the Respondents is that referees must be able to accept feedback. That is a fair observation. However, there is a difference between feedback and abuse. This video was not feedback, properly understood. It was an ad hominem attack, which as we have said lacked detached analysis or balance.

The Panel further found that the Video contained comments which attacked, disparaged and denigrated the Game and the match officials; criticised refereeing decisions; did not accept or observe the authority and decisions of the match officials; engaged in conduct which may have eroded public confidence in the match officials; and, by reference to media reporting of the incident, brought the Game into disrepute.[16] All six charges were, therefore, proven.

Mr Erasmus pointed to other examples where coaches had publicly criticised referees without sanction (including the comments of Warren Gatland during the 2021 Lions Tour), but the Panel found that such examples were all “materially difference from the Erasmus video both in tone and in content”.[17] This was, quite clearly, an unprecedented case.

Nonetheless, there is a legitimate question to be asked about when criticism of referees crosses the line from acceptable public comment to misconduct. Indeed, elsewhere in the Decision, the Panel noted that “match officials are not and should not be beyond proper scrutiny nor fair comment or, where warranted, criticism”.[18] World Rugby addressed this in its submissions to the Panel, and stated that:

The rugby-watching public and fans have come to understand that coaches seek to use the media and other public avenues to put pressure on the opposition or in an attempt to influence how a game is officiated. Up to a limited point, this is part of the game. However, there is a line that must not be crossed to ensure that the values and spirit of our game remain intact.

This therefore suggests that there is conduct which, though on a literal reading of Regulation 18 would appear to amount to misconduct, cannot properly be so categorised. As the Panel held, determining whether there has been a breach of Regulation 18 is a contextual exercise:[19]

The correct approach, and the one we have adopted, is to decide whether a particular comment/s and/or conduct amount to Misconduct, in the sense that they breach Regulation 18 and/or the Code of Conduct. Such judgement involves, inter alia, consideration of the provisions of Regulation 18 and/or the Code of Conduct, as well as context and prevailing behaviour and standards.

Whilst this approach is, certainly, a reasonable one, it may give scope for those representing individuals charged with misconduct to argue against such charges. One might say that it does not go far enough, that it leaves a grey area, and that it risks legitimising abuse of match officials as it becomes more commonplace. However, it is the governing bodies’ duty to ensure that this does not happen and, in any event, an individual’s right to comment publicly is, to an extent, protected by their right to freedom of expression. The Panel’s approach, albeit not explicitly, gives respect to such rights whilst balancing them against the need to protect match officials and uphold the game’s core values.[20]

In the context of sanctioning, the Panel held (emphasis added):[21]

…match officials are not and should not be beyond proper scrutiny nor fair comment or, where warranted, criticism. Robust debate about all aspects of the Game is healthy. The press has an important part to play in such discussions. Directors of Rugby and coaches rightly are free to express general concerns about the Game. However, they must only do so in ways consistent with the core values…

This is important guidance for coaches, players, and administrators alike.

5. SARU’s vicarious liability

The first charge against SARU was that it (i) failed to ensure Mr Erasmus complied with the Code of Conduct; (ii) permitted him to commit acts of misconduct; and/or (iii) did not publicly correct his comments, in breach of Regulation 18.5 and para 2 of the Code of Conduct.

Regulation 18.5 provides that “Unions are responsible and accountable for the conduct of their Players and all Persons within their jurisdiction”. Similarly, para 2 of the Code of Conduct provides that:

Each Union and Association is under an obligation to comply with and to ensure that each of its members comply with this Code of Conduct and adopt procedures to monitor compliance with and impose sanctions for breaches of the Code of Conduct by Persons under its jurisdiction.

The Panel made clear that these provisions create “strict liability”[22] (i.e. liability without fault) that is parasitic (i.e. it depends upon the misconduct of the person within the Union’s jurisdiction). Thus, if Mr Erasmus was found to have committed misconduct, so would SARU be. This is akin to vicarious liability.[23]

SARU argued that this was not the right approach, and that they were only required to take reasonable steps to ensure that its members complied. However, the Panel pointed out that there were “good policy reasons” why this was not so, including that it would be too easy for Unions to avoid responsibility otherwise. Imposing such a strict standard also incentivises compliance. The Panel emphasised that a Union’s degree of fault is reflected in sanctioning.[24]

Prima facie, this creates the somewhat odd position that whenever someone under a Union’s jurisdiction commits an act of misconduct, the Union will also be liable for misconduct. In many cases, this would be absurd. However, what the Decision does not explicitly address is that Unions will, typically, take disciplinary action of their own to sanction such misconduct (as required by para 2 of the Code of Conduct). It is thus this author’s view that, when they do so, they will remedy the breach and no longer be liable. That SARU took no such action in this case was therefore significant and is, ultimately, the crux of the charge against it.

Indeed, the Panel noted SARU’s lack of action and, though “the genie cannot be put back in the bottle”, it was “at the very least surprising that SARU appears not to have taken any steps or made any public comment about the Erasmus video”.[25]

This aspect of the case provides useful guidance for all Unions on the importance of upholding and enforcing World Rugby’s regulations.

However, as regards the third limb of the charge (i.e. failure to publicly correct the comments), the Panel pointed out that this alleged a “separate and distinct species of liability”. It was not vicarious liability as the first two limbs were, but liability based on SARU’s own failure to act. The Panel thus held that it ought to have been pleaded as a separate charge and, given that it was not so pleaded, (properly) declined to consider it further.[26]

6. SARU’s second charge dismissed

The second charge against SARU, in respect of the answers given by Siya Kolisi and Mzwandile Stick to questions during a press conference following publication of the video,[27] was not proven. It was held that their comments were not “ill-disciplined or unsporting nor ones which adversely affected the Game”.[28] The Panel emphasized that “what Siya Kolisi did in his answer was to express his own feelings or belief”[29] and neither Mr Kolisi nor Mr Stick were charged with misconduct as a result of their comments.[30] Thus, in light of the ‘parasitic’ nature of the charges against SARU, the second charge could not be established.

7. Sanctioning

Having determined that the Respondents were liable for breaching Regulation 18 and the Code of Conduct, the Panel then considered the sanction(s) to be imposed.

7.1 General Principles

Its starting point was its broad sanctioning powers under Regulation 18.10.1, which include fines, suspensions (from playing, coaching and/or administration), cancellation of a match result and withdrawal of benefits of World Rugby membership. With respect to Mr Erasmus, the Panel further had regard to Appendix 1 to World Rugby Regulation 17, which provides sanctions for on-field misconduct (including verbal abuse of match officials), noting that “there is no good reason why the same conduct should attract a lesser sanction where it is committed off-field”.[31]

Moreover, recognising the “virtue in consistency of sanctioning”, the Panel considered the sanctions imposed in number of other cases involving coaches threatening match officials, the most severe of which resulted in Steve Diamond being suspended for 18 weeks, after he said to a match official that “your f***ing decision making is a shambles” and “you are a f***ing disgrace”.[32]

It also noted that SARU was fined £10,000 in 2009 after permitting its players to wear armbands protesting the disciplinary suspension of a Springbok player, during the previous Lions Tour of South Africa.[33] However, the Panel did not find any of the cited decisions an “especially useful precedent”, given the fact-sensitive nature of sanctioning.[34]

In any event, the Panel made clear that:[35]

Match officials are integral to the Game. They are entitled to, and must receive, appropriate respect, particularly from participants such as players, coaches and directors of rugby. They have a very difficult job. The constant sniping, questioning, and challenging of officials’ decisions by players besmirches the professional and international Game. One cannot watch an international match this November window without seeing it.

It acknowledged that referees are not beyond fair comment or criticism, and that robust debate is healthy, but held that:[36]

To suggest that a referee is a cheat or allege that they are making inaccurate decisions for the benefit of one side over the other is an attack on that official’s integrity. Such an attack undermines one of the core values of rugby and sport more widely. That is reprehensible and it is serious. The drain of people away from officiating is not helped by public shows of disrespect such in the instant case [sic].

7.2 Effect on Nic Berry

The Panel further considered the effect on Mr Berry who, in evidence, said (inter alia) that:[37]

Needless to say, the whole situation has been an extremely difficult time for my family and I…

…I considered officiating in a Lions tour comparable with that in a World Cup. The appointment is a honour which few achieve. However, due to the actions of Mr Erasmus, my family and I have endured a significant amount of distress and we will only have negative memories of the whole experience.

The reputational damage he had suffered was also emphasised and this “human cost”[38] was an important factor.

7.3 World Rugby’s submissions

World Rugby’s position was that Mr Erasmus’ misconduct was, at the very least, a mid-range offence in the terms of Regulation 17, Appendix 1 and, in line with the sanctions for threatening match officials, submitted that the appropriate sanction was 24 matches (in relation to the South Africa national teams). As regards SARU, it sought a fine of £25,000.[39]

7.4 Mitigation

In mitigation, Mr Erasmus adduced evidence from Siya Kolisi as to his general character, and his positive effect on South African rugby. The financial impact of a suspension was also considered, as was his previously unblemished disciplinary record, and the Panel acknowledged the effect his suspension would have on SARU and the Springboks.[40]

It was argued that a significant factor in the making of the video was Mr Erasmus’ perception that Siya Kolisi had been treated differently, on racial grounds. The Panel found that there was no evidence of any such discrimination and emphasised that Mr Erasmus’ belief that there was “does not get close to justifying the content of his video”.[41]

Lastly, the Panel noted that it was a “striking feature” of the Respondents’ case that there had been no acknowledgment that any part of the Video was abusive, insulting and/or offensive, and that there had been no apology to Mr Berry. This was not treated as an aggravating factor but deprived the Respondents of mitigation they might otherwise have received.[42] Indeed, this was surprising from both a human and strategic point of view.

7.5 Conclusions

With respect to Mr Erasmus, the Panel concluded that his misconduct was:[43]

…much more serious than any of the cases cited to us. This was an especially serious and egregious example of offending of this kind. It involved premediated, multiple abusive and insulting comments and attacks on the officials’ integrity in the course of that 62 minute video. That is compounded by three further facts (as we find them to be):

a. The Erasmus video was made for wider public dissemination.

b. It was made public by or at the behest of RE.

c. RE threatened the referee.

The Panel emphasised that any sanction must be “meaningful”[44] and was concerned that a suspension imposed in respect only of matches, as proposed by World Rugby, would bite only in respect of SARU matches (thus leaving it open for Mr Erasmus to coach elsewhere), and would not impact upon Mr Erasmus’ (extensive) role outside of match days.[45]

It thus warned him as to his future conduct; suspended him from “any involvement of any kind in Rugby Union at whatever level including all off-field as well as all on-field activities for a period of 2 (two) months”; suspended him from any match-day involvement in relation to all Rugby Union at any level (including entering the stadium and engaging in media duties in relation to the relevant matches); and ordered him to issue a full public apology to the first Test match officials, within 14 days.[46] In doing so, the Panel referred to the principles of totality[47] and proportionality,[48] and took account of the Springboks’ provisional match schedule.

As for SARU, the Panel sensed that “SARU did not consider that the Erasmus video represented any overstepping of the line” and took the view that the Video “was obviously the wrong side of that line”.[49] In assessing seriousness, the Panel considered the “grave”[50] underlying conduct, given the parasitic nature of the offence, and the aggravating factor that SARU were previously sanctioned for misconduct during the 2009 Lions Tour.[51]

The Panel thus warned SARU as to its future conduct; imposed a fine of £20,000 and ordered it to issue a fully, public apology to the first Test match officials, within 14 days.[52]

(The author’s view on the appropriateness of these sanctions is set out at Section 10, below.)

8. Procedural issues

Two procedural issues arising from the Decision are also worth (briefly) addressing.

First, the Respondents’ request for a public hearing. Though public hearings are permissible under Regulation 20.1.8, they shall only be held where all the parties agree or if the panel determines that it is in the interests of justice. Further, ‘public’ does not necessarily mean in a public place, but that the proceedings may be recorded and/or be broadcast to the public on a live or recorded basis.

In this instance, the Panel had regard to the interests of the witnesses and, in particular, Mr Berry (who had already been subjected to unfair and unwanted public criticism), and it was “concerned to ensure these proceedings did not develop into a spectacle detracting from the true issues we had to resolve”.[53]

Mr Erasmus sought to rely on Art.6(1) of the ECHR, which guarantees the right to a public hearing. However, he acknowledged that it did not directly apply to this case (it not being before a court[54]) and the Panel in any event held that making the proceedings public would not afford the parties any protection which privacy did not,[55] and that full publication of the Decision would ensure proper public scrutiny in due course.[56]

Second, the delay in sanctioning the Respondents’ misconduct. This was explained by the Panel as having arisen because of a multitude of factors, including the huge amount of written material submitted by the parties, the need for evidence and oral submissions to be heard (to ensure due process), and the complex and serious nature of the charges. It is clear that time zones also played a significant role in the delay, as well as the other professional commitments of those involved.[57] The Panel noted that it had “devoted not inconsiderable time and effort and tried very hard to get the case heard before now”.[58]

Whilst a period of almost four months between the misconduct and the imposition of sanctions is unfortunate – particularly in a case such as this, where the integrity of match officials and the Game has been called into question – it is plainly understandable in the circumstances. Though rugby disciplinary proceedings typically happen apace, this was not a typical case and ensuring procedural fairness ought always to take priority.

9. Criticism of World Rugby

Aside from the findings against the Respondents, the Decision makes a number of (constructive) criticisms of World Rugby.

First, the Decision highlights a flaw in the Regulations, which prevented World Rugby from successfully seeking the imposition of a provisional suspension on Mr Erasmus, following the Panel’s decision on liability (given on 10 November, before the final sanction was determined on 17 November). As the Respondents pointed out, Regulation 18.9.3 is defective and provides (emphasis added):

In exceptional circumstances where the conduct of a Player(s) or Person(s) is considered by a Judicial Committee or Judicial Officer to be of such a serious/gross nature that their continued involvement in the Game in any capacity pending the final determination of the matter, then the Judicial Committee or Judicial Officer may at their discretion impose a provisional suspension on a Player or Person subject to a Misconduct complaint pending the resolution of the case

There is clearly something missing in the middle of the highlighted passage, following “pending the final determination of the mater…”. The Panel suggested that World Rugby “will wish to remedy the defect…forthwith”.[59] That much is certainly clear.

Second, the Decision includes a ‘postscript’ which addresses the fact that “Nic Berry found himself in a position he should never been [in]”, owing to the “prevailing practice [in the professional game] which permits discussion (to put it neutrally) between head coaches and match officials” and the “absence of a formal protocol governing that practice”.[60]

The Panel recognised that such “discussions” may have merit and thus recommended that “if this practice continues it should always be regulated by a written protocol”, to provide clarity and transparency and to prevent match officials from being treated unfairly (as happened in this instance).[61] The Panel added various suggestions as to the content of such protocol(s), urged the sport’s regulators to attend to this issue “forthwith”, and added that:[62]

No doubt hard thought will now be given as to whether it is appropriate for match officials to be having such meetings with coaches once a series has begun.

In the interests of protecting match officials and upholding sporting integrity, this author would strongly endorse the Panel’s comments in this regard.

Third, the Panel made various comments about the way in which the charges had been framed. In particular, it suggested that there had been a “good deal of unnecessary duplication”[63] and that the third limb of the first charge against SARU (failure to take steps to publicly correct the content of the Video) ought to have been brought separately.[64] Had it been brought as a separate charge, and had that charge been proven, the Panel said the sanction on SARU “would have been considerably greater”.[65] This error is particularly surprising, given that SARU’s failure to take any action against Mr Erasmus appear to be at the heart of the case against it.

There are thus lessons for World Rugby – and other sports prosecuting bodies – to take from the Decision.

10. Grounds for appeal

At the time of writing, the Respondents have confirmed that they will be appealing the Decision, in accordance with their rights under Regulation 18.11.

In this regard, it is worth noting that such an appeal must be lodged in writing within 7 days of notification of the Decision (i.e. by 24 November 2021)[66] and, except where the interests of justice require that the case be heard de novo,[67] may only be brought on the (narrow) grounds that the decision:[68]

(a)     was in error (either as to central factual findings or in law); or

(b)     in the interests of justice should be overturned; or

(c)     the sanction imposed was manifestly excessive or wrong in principle; and/or

(d)     the sanction imposed was unduly lenient.

The standard of review in such an appeal is typically high,[69] so the Respondents will face an uphill battle.

In this case, based on the publicly available information, it is suggested that any appeal will most likely focus on reducing the sanction imposed. The central findings of fact and law appear principled and well-reasoned.[70] However, it may be arguable that the sanctions imposed were manifestly excessive or disproportionate.[71]

The suspension of Mr Erasmus from any and all rugby activities for two months is severe, and ultimately prevents him from working entirely during that time. Likewise, the 10-month match-day ban is very significant (although it perhaps sounds more severe than it is, given that the Springboks are not due to play again after this weekend until July 2022[72]).

An Appeal Committee might take the view that such sanctions are manifestly excessive or disproportionate to the misconduct, in circumstances where, for example, the attacks on the match officials’ integrity were perhaps more implicit than explicit. Mr Erasmus did not explicitly accuse the match officials of (deliberate) cheating. Rather, he criticised their decision-making and made some suggestions of unconscious bias. Further, there has never been such a wide-ranging sanction for abuse of match officials or misconduct in rugby. All previous cases have involved fines and/or match-day bans. As this author has previously argued, educational sanctions may also be more useful in these types of cases. This sanction is unprecedented.

However, whilst arguable, this author is not convinced about the prospects of such an argument succeeding, in light of the high standard of review. It will not be enough for Mr Erasmus to say that the sanction was “too long” or for the Appeal Committee merely to take the view that it might have reached a different decision had it been in the Panel’s shoes.[73] Further, and in any event, the unprecedented nature of the misconduct arguably justifies such a robust sanction, particularly given the wider context of protecting match officials. It sends a very clear message.

As regards SARU, it might be argued that the Panel erred in treating the 2009 misconduct offence as an aggravating factor, such that the fine imposed was manifestly excessive and/or disproportionate. This author is not sure that this previous offence ought to have counted against SARU simply because it related to the previous Lions Tour. Plenty of other important rugby matches and competitions took place in the interim, all without incident. Whilst it might properly have limited the amount of mitigation available to SARU, it ought not, in this author’s view, to have increased the sanction and thus be ‘double-counted’. That said, it would be surprising if the fine was reduced by any more than £5,000.

Nonetheless, the Respondents will be aware that appealing carries the risk of the sanction being increased and, if unsuccessful, being ordered to pay World Rugby’s costs.[74]

All eyes will now be on the Appeal Committee…

Article by Ben Cisneros. Ben is a Trainee Solicitor at Morgan Sports Law, though this article reflects only the author’s personal views. Please email ben.cisneros@morgansl.com with any enquiries. 

References

[1] See para 7 of the Decision

[2] Para 8

[3] Para 65

[4] Paras 66 and 68

[5] Para 67

[6] Para 75. The Panel also noted that “it was completely unreasonable for [Mr Erasmus] to demand a meeting with Nic Berry immediately”. Mr Berry had confirmed that he would respond to the clips produced (privately) by Mr Erasmus, following the first Test, after the match officials’ formal review the next day. Indeed, he did so, and accepted certain of Mr Erasmus’ criticisms.

[7] Paras 16-18

[8] Para 48

[9] Para 52

[10] Para 53

[11] Para 54

[12] Para 54(d)

[13] Para 54(h)

[14] Para 62. These are but two examples of many such comments.

[15] Paras 73-74

[16] Paras 77-94

[17] Para 93

[18] Para 138

[19] Para 58

[20] An example of an incident which fell on the other side of the ‘line’ is that involving Siya Kolisi and Mzwandile Stick in the context of this case (see Section 6 below).

[21] Para 138

[22] Para 98

[23] Indeed, it was argued that Mr Erasmus that he had made the Video in his personal capacity, and not as a representative of SARU, to avoid such liability. However, that argument was given short thrift by the Panel, which noted (inter alia) that he was “dressed in Springbok kit” (see para 56).

[24] Para 99

[25] Para 103

[26] Para 103

[27] Mr Kolisi confirmed that he felt disrespected by Mr Berry and Mr Stick accused the Lions of starting criticism of match officials (see here).

[28] Para 115

[29] Para 111

[30] Para 114

[31] Para 126

[32] Para 133. See also SANZAR v Eddie Jones (2007); RFU v Richard Cockerill (2009); RFU v Venter (2010); RWCL v Eliota Fuimaono-Sapolu and Samoan Rugby Union (2011); and RWCL v Scottish Rugby Union (2019) (see paras 128-135)

[33] Para 134

[34] Para 136

[35] Para 137

[36] Para 139

[37] Para 142

[38] Para 143

[39] Paras 144-145

[40] Paras 146-149

[41] Para 152

[42] Para 154

[43] Para 159

[44] Para 161

[45] Paras 163-164

[46] Para 168

[47] Ibid.

[48] Para 170

[49] Para 173

[50] Para 176

[51] Para 177

[52] Para 178

[53] Para 37

[54] Interestingly, the Panel mentioned the ECHR case of Mutu & Pechstein v Switzerland (discussed here), in which it was held that an athlete did have the right to a public hearing under the ECHR. However, that case concerned compulsory arbitration (which ousted the jurisdiction of national courts) and it was held that Art.6(1) ECHR applied in full, as the Court of Arbitration for Sport was deemed to be a court. By contrast, proceedings before World Rugby Judicial Tribunals are not arbitral and may, ultimately, be challenged before the English courts. World Rugby Judicial Tribunals are certainly not courts in the terms of Art.6(1).

[55] Para 39

[56] Para 40

[57] In particular, it is worth remembering that the panel members are volunteers.

[58] Para 43

[59] Para 123

[60] Para 185

[61] Para 188-189

[62] Para 189-190

[63] Para 168

[64] Paras 103 and 174

[65] Para 174

[66] Regulation 18.11.3

[67] Regulation 20.8.3. It does not appear that there are grounds for a de novo hearing here.

[68] Regulation 20.8.5

[69] In Federatia Romana De Rugby & Federación Española De Rugby v World Rugby (2018), the Appeal Committee explained, at paras 42-44, that:

…the test is emphatically not whether the AC would have reached a different decision than the first instance decision-making tribunal…

…in the context of an appeal by way of review, 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.

When assessing whether a sanction is manifestly excessive or wrong in principle the same margin of appreciation applies. Further, manifestly excessive means what it says: it is not simply too much or too long but manifestly so.

[70] Although there was perhaps a lack of clarity in the reasoning on SARU’s strict liability, as noted at Section 5, above.

[71] On the basis that proportionality is a general principle of law with which the Decision must comply and, thus, a breach of that principle amounts to an error of law.

[72] Although SA Women are due to play three matches in March 2022.

[73] See fn 69, above.

[74] See Regulation 20.8.14 and Regulation 19.6