Joe Marler’s two-week ban for verbally abusing Bristol Bears’ Jake Heenan in late December 2022 caused no shortage of controversy. Public opinion is split between those who found the ban too harsh, and those who thought it was too short. This author takes a Goldilocks view – that it was ‘just right’.

However, the decision (the “Decision”) of the RFU independent disciplinary panel (the “Panel”) does leave questions unanswered about the Game’s approach to so-called ‘sledging’ between players and, in this author’s view, does not fully address why Mr Marler’s comments merited the imposed sanction.

This article will examine the Decision and will consider when rugby players should, and should not, be sanctioned for ‘sledging’ an opponent.

1. Factual Background

The facts of the Marler case are, by now, well-known. During a Premiership match between Harlequins and Bristol Bears on 27 December 2022, Mr Marler (the “Player”) and Mr Heenan exchanged comments as the two teams set up for a scrum in the 35^th minute.

Some of these comments could be heard in footage of the match, including the Player’s comment that “your mum’s a f***ing wh*re”. When challenged by another Bristol player as to what he had said, the Player repeated: “I called his mum a wh*re”.[1]

A fracas then broke out between the two teams.

During the fracas, Mr Heenan explained to the referee that his mother is currently unwell, in hospital. However, as the referee did not hear the Player’s comments, no further action was taken.

After the match, the Player was not cited by a Citing Commissioner for what he had said. However, the RFU subsequently charged him with “conduct prejudicial to the interests of the Union and/or the Game”, contrary to RFU Rule 5.12. The RFU alleged that the Player had verbally abused an opponent.

The Player accepted the charge. However, in his evidence, he explained that he was not intending to “verbally abuse” Mr Heenan, but had made a “poor, unimaginative attempt to ‘sledge’ another player”, which he said was “commonplace winding each other up that goes on”.[2] He explained that he had not known that Mr Heenan’s mother was unwell until a private message exchange with Mr Heenan after the match, during which the Player apologised.

The Player accepted that what he had done was unsportsmanlike but argued that it could not be considered “abuse” as it was not based on “race, sexual orientation, ethnicity or the like”.[3]

2. Decision

As this case was brought as a misconduct charge under RFU Rule 5.12, rather than as a citing for an act of foul play contrary to the Laws of the Game, the Panel had a wide discretion as to the sanction. Notably, in misconduct cases (in contrast to foul play cases) the Panel has the power to suspend the effect of any sanction or to impose a reprimand or fine, rather than a suspension from playing.[4]

However, as in previous RFU disciplinary decisions,[5] the Panel followed the process of sanctioning set out in RFU Regulation 19 and had regard to the sanctioning guidelines for breaches of Law 9.12 (acts of verbal abuse) and Law 9.27 (acts contrary to good sportsmanship).

In assessing the seriousness of the offence, the Panel held that the Player’s comments were “insulting and offensive [and] wholly inappropriate”,[6] and that they had been made “deliberately in an attempt to put [Mr Heenan] off his game”.[7] It also noted that the Player’s actions had caused an “ugly confrontation” in a match which was being broadcast live on TV.[8] However, there was no evidence as to the effect of the comments on Mr Heenan and the Player informed the Panel that his apology had been accepted.[9]

The Panel noted England Rugby’s Core Values of mutual respect and sportsmanship, and referred to the oft-cited case of RFU v Steve Diamond, in which the panel said:[10]

Rugby’s Core Values are not empty words or slogans which can be signed up to and then ignored. They are not to be treated as useful bolt-ons dreamt up by a marketing team. They are integral to the game and are what make the game special.

The Panel determined that the Player’s comments “straddled the boundary between being an act of verbal abuse and an act contrary to good sportsmanship” but concluded that the comments “passed the red card threshold”,[11] though constituted a “low-end” offence.[12]

Turning to mitigation, the Panel noted the Player’s acceptance of the charge, contriteness at the hearing and apology to Mr Heenan. However, his poor disciplinary record (nine bans, totalling 34 weeks of suspension), including an offence of verbal abuse (2016) and an act contrary to good sportsmanship (2020), was treated as an aggravating factor.[13]

The Panel concluded that, under the sanctioning guidelines, the offence merited a ban of six weeks.[14]

However, the Panel then considered whether such a sanction was proportionate. In doing so, the Panel acknowledged that (emphasis added):[15]

regrettably, and to the Game’s detriment, such attempts to put opponent players off using abusive jibes have long-been part of the Game. That is not to excuse or condone such behaviour. But, when viewed in this context, the Panel considered it was not appropriate to single this particular player out for this particular incident by imposing an unduly severe sanction.

As has already been stated repeatedly, but so as to leave no room for doubt, comments such as these are wholly inappropriate and should form no part of the modern game. This is especially so in the elite game where rugby players are role models; such behaviour sets a poor example for others. In this Panel’s view, rugby players who make such comments to put opponent players off their game or otherwise, should expect to receive appropriate punishment that could include receiving an on-field red card.

On this basis, the Panel determined that it would be disproportionate to impose an immediate six-week ban and thus elected to suspend four weeks of the sanction, until the end of the 2023/24 season, resulting in an immediate ban of two weeks. The Panel also imposed educational measures, requiring the Player to give presentations on the core values of the Game.[16]

3. Analysis

As noted above, this author agrees with the sanction imposed by the Panel – the Player’s comments were such that a suspension was merited, but the Panel was right to take care to ensure the proportionality of the sanction, given that such abusive jibes are commonplace within the game. A six-week ban would have felt draconian.

However, in this author’s view, a finding that the comments were “insulting”, “offensive”, and/or “wholly inappropriate” is not itself sufficient to take the incident over the red card threshold and thus to justify a playing suspension.

This author is not aware of any previous disciplinary case in which a rugby player has been sanctioned for the verbal abuse of another player solely on the basis that their comments were insulting, offensive and/or inappropriate. The cases to date in which players have been sanctioned for verbal abuse have always involved discriminatory language.[17] Further, the sanctioning guidelines for “verbal abuse” contrary to Law 9.12 specifically refer (albeit non-exhaustively) to “abuse based on: religion, colour, national or ethnic origin, sexual orientation”.

The approach advocated by the Player – that comments will only amount to abuse where they are based on “race, sexual orientation, ethnicity or the like” – therefore does not seem too far off the mark.

However, and crucially, the Player’s comments did involve discriminatory language. Referring to someone’s mother as a “whore” is a misogynistic slur. It is a derogatory term based on sex / gender (which are protected characteristics under anti-discrimination law) and thus falls into the category of comments identified by the Player himself as being abusive.

Of course, the Player did not make the comment with any misogynistic intent – his intention was merely to wind his opponent up. Yet, he nevertheless used misogynistic language which has no place in sport. Consistent with the case law to date, his comments therefore passed the red card test and merited a ban.

However, it must be possible to commit an offence of “verbal abuse” without using discriminatory language. The question is the extent to which such conduct should be sanctioned. The Decision does not address this question in detail. It simply states that “attempts to put opponent players off using abusive jibes […] are wholly inappropriate and should form no part of the modern game”, and that players who make such comments “should expect to receive appropriate punishment that could include receiving an on-field red card” (emphasis added).[18]

Does this mean that all ‘sledging’ is “verbal abuse”, and therefore foul play, contrary to Law 9.12? Will sledging now always result in a red card?

In this author’s view, the answer to both questions is very clearly “no”. Not all ‘sledges’ will amount to verbal abuse, and not all verbal abuse will warrant a red card.

Verbal abuse is not expressly defined in the Laws of the Game, but this author would suggest verbal abuse to be where words are spoken to an opponent which are insulting, offensive or threatening. Whether something amounts to verbal abuse may depend on the words used, as well as the manner and context in which they are said.

‘Sledges’ may therefore fall within a spectrum ranging from humorous wind-ups (which will not be verbal abuse) to mildly abusive comments (which may warrant an on-field penalty) to moderately abusive comments (which may warrant a yellow card) to serious acts of verbal abuse (which may warrant a red card and, thus, a playing ban).

As indicated above, it is this author’s view that the red card threshold will ordinarily only be breached where a player uses discriminatory language, though there may be instances of particularly violent or aggressive language which would also merit such a sanction.

What about comments which, though not necessarily abusive, may be contrary to good sportsmanship under Law 9.27? Might George Gregan’s (in)famous “four more years” sledge amount to foul play? Perhaps. Taunting an opponent could well be deemed a breach of Law 9.27, but it would need to be egregious to warrant any sanction greater than an on-field penalty, and in any event most rugby players and fans would view good-humoured banter as being a healthy part of the game.[19] Further, it is difficult to conceive of a scenario in which a comment could be serious enough to meet the red card threshold under Law 9.27 without amounting to verbal abuse under Law 9.12.

Players would benefit from greater guidance and certainty from the RFU on the “appropriate punishment” for verbal abuse cases. This author has previously commented on the broad scope of RFU Rule 5.12 (under which the Player’s charge was brought) and, in this respect, introducing a more detailed Code of Conduct would clarify the obligations of those involved in the game and make the sanctioning of misconduct cases more predictable.

Indeed, it is perhaps surprising that this case was brought as a misconduct charge under RFU Rule 5.12 and not as a citing for an act of foul play, given that the comments were made during a match subject to the authority of a Citing Commissioner, reinforcing the need for greater clarity.

Nevertheless, this was ultimately in the Player’s favour, as it gave the Panel greater flexibility in sanctioning and, ultimately, produced a more proportionate outcome. Given the broad spectrum of incidents that may fall under the definition of “verbal abuse” such flexibility is welcome and, for consistency, ought to be extended to cases arising from red cards and citings, too.[20]

Article by Ben Cisneros. Ben is an Associate at Morgan Sports Law, who regularly acts in rugby disciplinary proceedings. This article reflects only the author’s personal views. Please email ben.cisneros@morgansl.com with any legal or media enquiries. 

References

[1] See para. 9 of the Decision

[2] See para. 11 of the Decision

[3] See para. 11 of the Decision

[4] See RFU Regulation 19.11.7 and RFU Regulation 19.11.20

[5] See para. 21 of the Decision

[6] See para. 28 of the Decision

[7] See para. 23.i. of the Decision

[8] See para. 23.v. of the Decision

[9] See para. 23.iv. of the Decision

[10] See para. 27 of the Decision

[11] See para. 29 of the Decision

[12] See para. 30 of the Decision

[13] See para. 25 of the Decision

[14] It is suggested that this could be viewed as the low-end entry point for verbal abuse, without any off-field mitigation / aggravation, or the low-end entry point for acts contrary to good sportsmanship, plus two weeks by way of off-field aggravation.

[15] See paras. 34 and 35 of the Decision

[16] See para. 37 of the Decision

[17] See, for example, in the professional game: EPCR v. Mathieu Bastareaud (2018); RFU v. Denny Solomona (2018); World Rugby v. Joe Marler (2016); ARU v. Jacques Potgieter (2015); SANZAR v. Justin Harrison (2005).

In the amateur game, see, for example: RFU v. Player A (2022); RFU v. Oliver Pope (2022); RFU v. Oliver Clayson (2022); RFU v. Player A (2022); RFU v. Jonathan Wand (2021); RFU v. Kieran Williams-Denton (2021); RFU v. Andrew Jones (2021); RFU v. Jamie Harrison (2021); RFU v. Thomas Emery (2019); RFU v. Adam Batt (2019) and RFU v. Thomas Mowle (2019).

[18] See para. 35 of the Decision

[19] See, for example, All Black Sam Cane’s reaction to being called a “sh*t Richie McCaw” by Ireland’s Peter O’Mahony.

[20] See a previous discussion of this issue by this author here.