The highly anticipated decision in EPCR’s misconduct case against Ireland captain, Johnny Sexton was published this week, with the player handed a three-match ban. His club, Leinster Rugby, were also given a €7,500 fine, albeit suspended until the end of the 2023/24 season.

The case concerned an allegation that Mr Sexton had disrespected and/or abused match officials following Leinster’s Champions Cup final defeat to La Rochelle on 20 May 2023. Mr Sexton had not been playing in the match, due to injury, but approached the match officials on the pitch after the game.

Following an investigation, EPCR charged Mr Sexton and Leinster with misconduct under its Disciplinary Rules and the case was subsequently heard by an independent disciplinary committee (the “Panel”) on 13 July 2023. The Panel upheld the charges and imposed the sanctions outlined above via a written decision dated 15 July 2023 (the “Decision”).

Mr Sexton’s ban means that he will now miss all of Ireland’s warm-up matches ahead of Rugby World Cup 2023 but will be free to play in the tournament itself.

Unsurprisingly, given the high-profile nature of the case, there has been a great deal of speculation and public comment on the Decision, much of it inaccurate. This article will therefore seek to explain the outcome and the process by which this was reached, and to offer some analysis of the same. It will also highlight some key takeaways for parties to rugby disciplinary proceedings moving forward.

1. Charges

Before setting out the specific charges against Mr Sexton and Leinster in this case, it is first worth setting out the legal framework under which the charges were brought.

EPCR may bring disciplinary proceedings against any player or club who it considers to have committed Misconduct, pursuant to Article 3.1 and 4.1(c) of the EPCR Disciplinary Rules.

Misconduct is defined broadly, in Article 3.2, as (emphasis added):

any conduct, behaviour, statements […] or practices by a Club and/or any of its Players, its other Persons or its supporters, on or off the Playing Enclosure, during a match or otherwise, that is unsporting and/or insulting and/or that brings or has the potential to bring the sport of rugby union, any of the Tournaments, other Clubs or Persons, match officials, or EPCR into disrepute.

Specific examples of such Misconduct are then listed in Article 3.3, including:

(e) failure or refusal by a Club to exercise reasonable and proper control over its Players, its other Persons and/or its supporters, on or off the Playing Enclosure;

(f) failure or refusal by a Club to observe and/or instil among its Players and/or its other Persons a sufficient degree of respect for the Laws of the Game, the disciplinary authority of EPCR and/or the Participation Agreement; […]

(i) making comments […] and/or conducting it/himself in connection with […] match officiating (or any aspect thereof) in such a way that … is prejudicial to the interests of the sport of rugby union and/or EPCR and/or any Club

(n) making comments … that attack, disparage or criticise (and/or conducting it/himself in a way that attacks, disparages or criticises) the sport of rugby union, any of the Tournaments, other Clubs or Persons, match officials, EPCR […]; […]

(p) unsportsmanlike conduct before, during and after a Match (including […] making inappropriate and/or sarcastic gestures to […] a Match official […], and intimidating and/or exhibiting a lack of respect for Match officials […]; […]

In this case, EPCR charged Mr Sexton as follows (emphasis added):

The Misconduct complaint alleged against Mr Mr Sexton is that, after the Match, he publicly confronted the match officials and made statements, gestures and behaved in a way that was disrespectful and/or insulting and/or abusive and/or impugned their integrity and/or denigrated their performance.

Specifically, the Misconduct is alleged to have been perpetrated in one or more of the following three incidents, which took place over a period of several minutes between the end of the Match and the match officials leaving the field […]:

(1) In ‘Incident 1’, shortly after the end of the Match, Mr Mr Sexton approached the match officials and on three separate occasions gestured towards them and/or spoke to them inappropriately (including at least – as acknowledged in the letter from the Club dated 23 June 2023 – stating that it was a “disgrace the match officials had not got the big decisions right” and using an “expletive” while doing so); and/or

(2) In ‘Incident 2’, at the start of the medals presentation, while accompanied by a young child, Mr Mr Sexton stood behind the match officials, looking at them and directing further inappropriate comments at them; and/or

(3) In ‘Incident 3’, after the medals presentation, Mr Mr Sexton approached the match officials and followed them a short distance as they left the field before walking away.

It also charged Leinster on the following basis:

The Misconduct complaint against Leinster Rugby is that it failed to prevent Mr Mr Sexton from interacting inappropriately with the match officials after the match on the relevant occasions that Mr Mr Sexton committed the alleged Misconduct identified above. That constitutes Misconduct pursuant to the Disciplinary Rules because:

a) it amounted to a failure or refusal by a club to exercise reasonable and proper control over its Persons, on or off the Playing Enclosure (which constitutes Misconduct under clause 3.3(e) of the Disciplinary Rules); and

b) it amounted to a failure or refusal by a club to observe and/or instil among its Persons a sufficient degree of respect for the Laws of the Game (as defined in the Disciplinary Rules), the disciplinary authority of EPCR and/or the Participation Agreement (which constitutes Misconduct under clause 3.3(f) of the Disciplinary Rules).

 2. Facts

The Panel were presented with a significant amount of evidence to consider, including video footage of the incidents; witness statements from the Champions Cup final match officials (i.e. the referee, assistance referees and the TMO), Tony Spreadbury (EPCR’s Head of Match Officials), Andy Farrell (Ireland Head Coach), David Nucifora (IRFU Performance Director) and Dr Ciaran Cosgrove (Ireland Team Doctor); and statements from both Mr Sexton and Leinster. At the hearing, the Panel heard evidence from Mr Sexton, several of the match officials and Mr Spreadbury.

(As a side note, it is thus entirely clear why the process last as long as it did which, in circumstances where the player was not due to play in any matches for several months following the incident, was entirely reasonable, contrary to much of the public opinion).

On the basis of this evidence, the Panel made the following findings of fact.

As regards Incident 1, the Panel found that the footage showed Mr Sexton walking onto the pitch, towards a group of Leinster players. As he did so, he looked at the match officials and pointed at them (“jabbing a finger/s at them”) before changing direction and walking towards them.[1]

Although he could not be heard on the recording, Mr Sexton accepted the evidence of the match officials that he was speaking loudly and angrily towards them, whilst continuing to point his finger. Mr Sexton also accepted that his demeanour was aggressive and confrontational, and admitted that he said something to the effect of “it’s a disgrace you guys can’t get the big decisions right” followed by expletives, “most likely the f-word”.[2]

The Panel noted that it was clear from the footage that Mr Sexton had “said more than just the words he admits”.[3] However, and perhaps crucially from the player’s perspective, all of the match officials were consistent in their evidence that they “could not hear what he was saying because of the noise in the stadium” (emphasis added).[4] Thus, and significantly, the only evidence as to what was said was the above admission by the player.

As regards Incident 2, the Panel found that the footage showed Mr Sexton walking to join Leinster players on the pitch, whilst they were waiting to receive their runners-up medals. He had not “pursued” the match officials.[5] The match officials were stood nearby, waiting to be presented with their medals. During some of this period, Mr Sexton stood staring at the match officials, alone, “watching them with a fixed star as though ‘brooding’”.[6] Then, as the match officials walked to the medal presentation, Mr Sexton mouthed something.

Mr Sexton’s evidence was that, although he accepted that the footage showed him using the expletive “f-ing”,[7] he did not recall what he had said, but he had not intended to be heard by the match officials; it was “simply a verbal expression to himself of the acute disappointment he was feeling at the time”.[8]

However, the Panel concluded that what he had said was “said aloud, directed at [the match officials], namely he was facing them, and we have no doubt it was about them”. It further held that “what he said was not complimentary and included something (at least) disrespectful about them”. Nevertheless, the Panel did not find that Mr Sexton had intended the match officials to hear what he had said, and were satisfied that the referees did not hear it.[9]

The referees were clear, though, that they turned their backs on Mr Sexton to avoid making eye contact, to discourage him from engaging with them further.[10]

As regards Incident 3, the Panel was satisfied that Mr Sexton was not “lying in wait” for the match officials, and was not trying to intimidate them.[11] As the assistant referee, Christophe Ridley, explained that Mr Sexton “asked me if we could speak at which point I said sorry but we can’t”, describing his approach as “measured and not confrontational”.[12] The match officials nevertheless left the field in order to avoid any further confrontation.

Mr Sexton’s evidence was that he had approached Mr Ridley in an effort to apologise for his earlier comment, although the Panel did not expressly accept his account in this regard.[13]

3. Liability

Johnny Sexton

Mr Sexton accepted that he had committed Misconduct in relation to Incident 1 but denied committing Misconduct in relation to Incidents 2 and 3.

In upholding the charge in relation to Incident 1, the Panel noted that his words and actions were “confrontational, aggressive and disrespectful of the match officials […] obviously unsportsmanlike and brought the sport of rugby union into disrepute”.[14] This was uncontroversial.

As regards Incident 2, the Panel decided that this did amount to Misconduct, as it was a “continuation of his hostile animus towards the match officials. […] His conduct was unsportsmanlike and aggravates Incident 1”.[15]

With great respect for the Panel, this seems somewhat harsh. Is it really unsportsmanlike and/or disrespectful to brood over a defeat whilst muttering to oneself, even if staring in the direction of the match officials whilst doing so? But for the video footage (which does not seem to have been broadcast), no one would have known that Mr Sexton had said anything. Indeed, had this incident not been preceded by Incident 1, it seems highly likely that nothing would have come of it at all. To the extent that it amounts to distinct Misconduct, it must be at the very lowest end of the spectrum.

The Panel dismissed the Misconduct charge in relation to Incident 3.[16] There was, clearly, no wrongdoing in this regard.

Leinster Rugby

The Misconduct charge against Leinster was put as a “failure or refusal […] to exercise reasonable and proper control” over Mr Sexton (contrary to clause 3.3(e) of the Disciplinary Rules) and a “failure or refusal […] to observe and/or instil among its Persons a sufficient degree of respect for the Laws of the Game […], the disciplinary authority of EPCR and/or the Participation Agreement” (contrary to clause 3.3(f) of the Disciplinary Rules).

Leinster argued that this required proof of fault by the club, in order for liability to be established – i.e. this was not a strict liability offence.

The Panel agreed with this submission but, somewhat surprisingly, went on to hold that “Leinster’s liability is not dependent upon proof of fault”, upholding the charge against Leinster on the basis that clause 2.2 provides that “each Club is responsible and accountable for its own conduct and for the conduct of its Players”.[17] Whilst clause 2.2 does import strict liability for clubs, the charge against Leinster in this case was brought under clause 3.3, and not clause 2.2 – i.e., EPCR had not alleged a breach of clause 2.2 (although it perhaps should have done). With great respect for the Panel, this finding thus sits somewhat uncomfortably.

Nevertheless, the Panel also held that there was a breach of clause 3.3(e) by Leinster, as it “must have been apparent to at least some Leinster officials, that [Sexton] was discontented (to say the least) with the performance of the match officials” such that “he should have been removed or at least reasonable steps should have been taken to ensure he behaved appropriately and did not engage with the match officials”.[18]

This serves as an important reminder for clubs of their duties to control their players and, thus, of the need to be alert to potential acts of misconduct on match days. Club officials should be prepared to take preventive action to avoid such misconduct materialising, particularly in relation to players’ interactions with match officials.

4. Sanction

Unlike in disciplinary cases concerning Foul Play, where the applicable ban for each offence is prescribed by detailed guidelines, sanctions for Misconduct are at the discretion of the Panel. The EPCR Disciplinary Rules provide that such a sanction may consist of, for example, a caution, reprimand and/or warning; a fine; or a playing suspension.

Counsel for Mr Sexton therefore argued that it was open to the Panel to impose a sanction other than a playing suspension, as in the recent misconduct case of RFU v. Nowell (where Jack Nowell was fined but not banned for disrespecting a referee’s decision on social media).[19] However, the Panel disagreed with “core aspects” of that decision and considered a playing suspension the only appropriate sanction.[20]

First, the Panel disagreed with the description of a playing suspension by the RFU panel in Nowell as a “blunt instrument”, emphasising that a playing suspension has “an important deterrent element” and “punishes in a far more effective and direct way than a fine”. Second, the Panel dismissed the suggestion of the RFU panel that a player’s teammates should not suffer because of his misconduct, stating that this is “by no means unusual”.[21]

The Panel then took the standard approach to determining the applicable sanction, assessing the seriousness of the misconduct, by reference to its factual findings, and then mitigation.[22]

Johnny Sexton

Assessment of seriousness

In assessing the seriousness of Mr Sexton’s offending, the Panel decided not to characterise it as a single course of conduct lasting several minutes, but as an episode of misconduct featuring two related, but distinct, incidents (the second aggravating the first). It emphasised that Mr Sexton’s actions were deliberate – he “targeted and sought out the match officials” – and were not an “immediate intemperate reaction to, for example, a decision with which he disagreed”.[23]

It was noted that Mr Sexton was not in the match day squad and yet involved himself in a confrontation with the match officials after the final whistle, and that this was a “public display of disrespect for the authority of the match officials”. Whilst the Panel recognised that his words may not have been heard by anyone, it was “clear from his body language and gestures that he was confronting the match officials […] in full sight of the packed stadium, at the end of a prestigious match shown live on television”.[24]

Finally, the Panel noted that the high profile of the player was relevant, as his conduct has a “greater capacity to be seen and so to cause harm”, and the “human cost” of his conduct on the match officials, who felt compelled to leave the pitch as a result of Mr Sexton’s behaviour, which “tarnished the obvious achievement of officiating in a prestigious final”.[25]

Upon consideration of all the relevant factors, the Panel determined that the appropriate starting point for the sanction, reflecting the “totality of his offending”, was a 6-match playing ban (subject to mitigation – see further below).[26]

It is not entirely clear how the Panel arrived at this length of sanction. It acknowledged that the sanctioning guidelines for acts of Foul Play contrary to Law 9.28 were relevant (in particular, for ‘disrespecting the authority of a match official’; ‘verbally abusing a match official’; and the ‘using threatening actions or words towards a match official’) but did not specify how it had used these guidelines to arrive at the 6-match entry point (though it clearly relied on case law in doing so).

Counsel for Mr Sexton had argued that this was a case of disrespect rather than one of verbal abuse (verbal abuse being the more serious offence, carrying potentially greater sanctions), by reference to rugby disciplinary case law. The Panel did not address this distinction expressly, but described Mr Sexton’s conduct as “confrontational, aggressive, and disrespectful of the match officials”.[27]

Notably, a 6-match ban is the top-end entry point under the Foul Play sanctioning guidelines for ‘disrespecting the authority of a match official’ and the low-end entry point for ‘verbally abusing a match official’. Based upon the Panel’s findings of fact, Mr Sexton’s conduct could perhaps have fallen within either category. It is, ultimately, immaterial and the sanction seems proportionate to the misconduct found by the Panel (given, in particular, that the Panel found that the words used by the player were not heard by the match officials, nor by any other person). It is also broadly consistent with previous cases, though Mr Sexton might (reasonably) have hoped that the Panel would start at 4 weeks.[28]

Crucially, from the player’s perspective, the Panel did not treat his misconduct as ‘threatening actions or words towards match officials’ which, under the sanctioning guidelines, carries a low-end entry point of 12 weeks. It might be thought that Mr Sexton is somewhat fortunate in this regard, given the Panel’s findings that his conduct was both “confrontational” and “aggressive”. However, the evidence of the match officials is, in this respect, key. Whilst they described wanting to avoid a confrontation with Mr Sexton, they did not say that they were intimidated or fearful as a result of his behaviour. The misconduct, thus, rightly fell short of the (significantly more serious) threshold of “intimidation”.

Mitigation

The Panel considered that there was a “good deal of genuine mitigation”, including his early admission of Misconduct “without which there would be no proof of any of the words he used”; his excellent disciplinary record; his remorse; his good character; and his apology to the EPCR Head of Match Officials (Mr Spreadbury).[29]

Although Mr Sexton had not apologised to the match officials directly, and had contested liability as regards Incident 2, the Panel was not bound by any strict rules as to the amount of mitigation to be applied (given that this was not a Foul Play case), and its approach nevertheless seems appropriate in the circumstances.

The sanction was thus reduced from the entry point of a 6-match ban to a 3-match ban, applicable to Ireland’s summer test matches. This underscores the value in making appropriate concessions in such proceedings, rather than fighting every point if there is a good chance you will lose them anyway.

No further sanction

Finally, the Panel held that it saw:[30]

[…] no purpose in […] directing [Mr Sexton] to undertake any sort of refereeing course. He knows how difficult it is to referee a rugby union match, especially at a high level. Compelling him to attend such a course serves no useful purpose.

Were it not for the fact that Mr Sexton is shortly to play in the Rugby World Cup, before retiring from professional rugby, this would be somewhat surprising. Such courses would seem to serve the laudable aim of making players see the game from the referee’s perspective, and thus to properly appreciate the difficulty of the decisions for which they are often criticised, and this author has previously commented on their utility when imposed in RFU disciplinary cases. However, in this particular case, it is understandable that the Panel did not see any need to make such an order.

Leinster Rugby

Having found Leinster vicariously liable for Mr Sexton’s misconduct and, taking account of the club’s ‘clean’ disciplinary record as regards match officials, the Panel imposed a fine of £7,500, suspended until the end of the 2023/24 season (which will, sensibly, act as a deterrent against future misconduct).[31]

5. Conclusion

Rugby has a habit of throwing up interesting disciplinary cases shortly before the Rugby World Cup, and this year is no exception. The Sexton case provides a useful case study on the treatment of incidents of misconduct against match officials in rugby (which are increasingly subject to disciplinary action by governing bodies).

The case underlines the importance placed on respect for match officials by the game as a whole and reminds clubs that, whilst the players will tend to be made primarily responsible for such matters, clubs, too, have a duty to uphold the game’s values.

The sanction imposed on Mr Sexton seems fair and proportionate, in light of the findings made by the Panel, and, of course, it ensures that his stellar career will not be ended prematurely.

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. 63 of the Decision

[2] Paras. 64-65

[3] Para. 66

[4] See paras. 19, 21, 23

[5] Para. 67(a)

[6] Para. 67(c)

[7] Para. 67(d)

[8] Para. 39

[9] Para. 67(d)

[10] Para. 68

[11] Para. 69

[12] Ibid.

[13] Para. 40

[14] Para. 70(a)

[15] Para. 70(b)

[16] Para. 70(c)

[17] Paras. 74-80

[18] Para. 81

[19] Para. 48

[20] Para. 86

[21] Para. 86

[22] Para. 87

[23] Para. 89

[24] Ibid.

[25] Ibid.

[26] Para. 93

[27] Para. 82

[28] See, for example, RFU v. Chris Boyd (2022), RFU v. Dean Richards (2022), RFU v. Hedgley (2022), RFU v. Ryan Lamb (2022), RFU v. Callard (2022), and RFU v. Vowles (2022). Whilst certain of those cases had entry point sanctions of 8 weeks and certain other of them 4 weeks, 6 weeks does not seem inappropriate in this case, given (a) the player’s profile, (b) that he sought the match officials ought after a match in which he had not played, (c) the aggressive nature of the player’s conduct, and (d) the significance of the occasion for the match officials, but also given that the player’s words were not heard by anyone. Nevertheless, a 4-week ban would not have seemed disproportionate (though an 8-week ban would have done, in this author’s view).

[29] Para. 91

[30] Para. 101

[31] Paras. 104-107