Head contact in rugby union has come under heightened scrutiny in recent years, owing to increased concern about brain injuries in the sport. However, this “zero tolerance”[1] approach has not been without controversy.
January 2017 saw the start of World Rugby’s crackdown, with a huge increase in the number of red cards being shown for dangerous tackles, albeit in a somewhat inconsistent manner. That led World Rugby to introduce the Decision-Making Framework for High Tackles (the “Framework”) in May 2019, shortly before the Rugby World Cup in Japan (discussed here). The Framework was a flow chart which referees, citing commissioners and Disciplinary Committees could apply to determine whether a particular incident warranted a red card, a yellow card, a penalty or no sanction at all.
The Framework was subsequently modified,[2] before being replaced by the Head Contact Process (the “HCP”) in March 2021.[3] The HCP was itself recently revised, in March 2023, with the current version available here.
With the Rugby World Cup in France now just around the corner, there will inevitably be much discussion amongst fans and in the media, before and during the tournament, about players being sanctioned for making head contact.
This article will seek to explain how the HCP works and how it has been applied to date.
1. What is the Head Contact Process?
The HCP is a World Rugby Law Application Guideline. As it explains (emphasis added):
Under 9.11, the referee is always entitled to issue a red or yellow card for anything deemed to be reckless or dangerous. However, this process is intended to aid consistency in the application of sanctions by providing guidance on how contact with the head should be approached by match officials and disciplinary personnel.
In contrast to the Framework, which strictly applied only to high tackles and shoulder charges (although it was applied more broadly, by analogy[4]), the HCP can be applied to (a) high tackles, (b) shoulder charges, (c) dangerous cleanouts at rucks and mauls, (d) head-to-head collisions, and (e) the use of a leading elbow/forearm by a ball-carrier.[5]
The HCP has thus simplified the Framework and broadened its scope, which is a welcome development (given the previous uncertainty as to the precise scope of the Framework).
As set out in the graphic below, the HCP has four stages, as follows:
(i) Has head contact occurred?
(ii) Was there foul play?
(iii) What was the degree of danger?
(iv) Is there any mitigation?
If there is no head contact (which includes contact with the head, neck and/or throat) in the relevant incident, the HCP will not apply. If there is head contact, the HCP will apply but, if there is no foul play, there will be no sanction for the incident.
However, if there is foul play, the question is then what the degree of danger was. This will determine whether the starting point for a sanction will be a penalty, a yellow card, or a red card.
Finally, once the degree of danger has been assessed, one must consider whether there are any mitigating factors. If there are, a yellow card would be downgraded to a penalty and a red card would be downgraded to a yellow. However, the guideline expressly states that “Mitigation will not apply for intentional or always-illegal acts of foul play”.
Each stage of the HCP is considered in detail, below.
2. Head Contact
This is typically the most straightforward aspect when applying the HCP, particularly at elite level where broadcast cameras are so numerous (such that there are typically multiple camera angles which can be used to determine whether there was, in fact, head contact).
Nevertheless, such footage must be analysed carefully, as these incidents typically take place at high speed, such that the point of contact is not always clear-cut,[6] and it is (of course) possible, for example, for a player’s head to move as a result of a tackle, despite there being no contact between the tackler and the ball-carrier’s head. Indeed, it is possible for a player to be concussed without suffering a blow to the head.[7] The question is always whether it is more likely than not that there was head contact (i.e., the test is on the balance of probabilities).[8]
In cases where the video evidence is inconclusive, witness evidence – in particular, the evidence of the tackled player – is likely to be key.[9] However, a referee will not have the benefit of such evidence. This will only come into consideration at any subsequent disciplinary hearing.
3. Foul Play
The second stage of the analysis – whether there has been any foul play – can be more contentious.
For example, in the recent case of Six Nations Rugby v. Freddie Steward (2023), where the England full-back was shown a red card for colliding with the head of Ireland’s Hugo Keenan, there was debate over whether Steward had actually committed any foul play at all. As the video footage shows, Steward rushed up in defence to cover a possible line-break by Ireland, but the ball was then lost forward and bounced awkwardly. Whilst still moving forward Keenan bent down to re-gather the ball. As this happened, all in a fraction of a second, Steward (who was, by then, trying to avoid the contact) collided with Keenan, striking his head.
On one argument, there was no foul play because Steward had been trying to avoid contact with Keenan, following a sudden and unexpected change in the dynamics of the game. What else could he have done to avoid contact with his head?
The Six Nations Disciplinary Committee, however, determined that there was foul play under Law 9.11 (“Players must not do anything that is reckless or dangerous to others”) because Steward “had been reckless in his actions and in his upright positioning as he approached” Keenan.
Although the red card was downgraded to a yellow, in this author’s view, this was harsh, given that, had the dynamics of the collision not changed so drastically as they did, Steward would have had time to lower his height and make a legal tackle. Indeed, as the HCP notes “[t]here needs to be an understanding that tacklers stay up to allow them to ‘adjust and react’ – dropping quickly into the low tackle entry position – using their ‘eyes and feet’ to get their timing right.” There was nothing inherently reckless or dangerous in his actions, it was simply an unfortunate ‘rugby incident’. Nevertheless, this goes to show the difficulties that can often arise at this stage of the HCP, given the highly dynamic nature of the sport.
The criteria listed by the HCP for determining whether there has been foul play are whether the conduct was “intentional”, “reckless”, or “avoidable”.[10]
Contact with the head must be intentional or reckless to amount to foul play.[11] In this context, “reckless” means that “the Player knew (or should have known) there was a risk of committing an act(s) of Foul Play” (emphasis added).[12] This is a relatively low standard. It is sufficient that a player has been negligent (i.e. they should have realised there was a possibility that foul play might result from their actions) – and, importantly, is lower than the standard of recklessness found in the criminal law, for example.[13]
However, as the Appeal Committee in Facundo Gattas v. World Rugby (2019) explained (emphasis added):
Not every contact with an opponent’s head in a game of Rugby Union is foul play. Contact with an opponent’s head may (obviously) occur accidentally. Accidental head contact is not foul play.
But what makes something “accidental”, as opposed to “reckless”? This is where the HCP’s “avoidable” factor comes in. Head contact will be accidental where it is unavoidable – i.e., where there is nothing that player could have done to avoid head contact (i.e., where it was outside of their control, such that they cannot reasonably be said to have been at fault).
However, even this test can be difficult to apply, as the Steward case shows.
The case of EPCR v. Guy Porter (2022) is another good example. As the video footage shows, Porter ran forward, out of the defensive line, in an attempt to block off a pass by the Clermont Auvergne fly-half. As he did so, he ran into a Clermont player, who was running an attacking line. Neither player saw the other coming (they were both watching the ball) and Porter had not intended to make any contact at all, but the collision resulted in head contact to the Clermont player. Whilst it appeared accidental, the EPCR Disciplinary Committee deemed it reckless and thus foul play.[14]
The opposite conclusion was reached in the RFU v. Ah See Tuala (2020) and SANZAAR v. Jordie Barrett (2021) cases, where players lost balance whilst catching the ball in the air, resulting in one of their legs inadvertently striking an opponent in the head. Both incidents were deemed accidental.
Ultimately, the question to be asked in determining whether head contact is accidental or reckless is whether the player should have known that, by their actions, there was a risk of making head contact (i.e., whether head contact was a reasonably foreseeable possibility, in the particular circumstances of the case). If the answer is no, it is accidental. Importantly, this question must be asked at the last possible moment before contact when the player could reasonably have taken steps to avoid making head contact (i.e. at the last moment when head contact would have been avoidable).
Thus, in Steward, it was clear that, once Steward had started advancing into the defensive line, head contact had become unavoidable. At the moment he started advancing, should he have known there was a risk of foul play? In this author’s view, no – there was nothing to suggest he might make head contact at that moment. It was thus accidental.
The position in Tuala and Barrett is similar. Once the player jumped to catch the ball, the head contact had become unavoidable (as the player was no longer in control of their movements). At the moment of jumping, should the player have known there was a risk of foul play? No, the loss of balance, the resulting biomechanics and the impact this might have on an opponent, once in the air, was not something the player should reasonably have foreseen in simply jumping to catch a ball.
What about Guy Porter? Head contact was unavoidable once Porter was a few steps away from his opponent. Immediately prior to that moment, should he have known there was a risk of foul play? Arguably, yes. Had Porter looked where he was going (and it is arguable that he should have done so), he would have seen the opponent and contact could have been avoided. However, this was an unusual case and could certainly be argued the other way (as it is arguably not unreasonable to watch the ball).
The recent case of SANZAAR v. Juan Cruz Mallía (2023) is another good example. As Mallía launched himself at his opponent to make a charge down, he should have known there was a risk of making contact with his opponent’s head, given the nature of his actions, notwithstanding that he successfully made contact with the ball. Thus, there was foul play (contrary to the view of the match referee).
Notably, the HCP gives the examples of a “sudden and significant drop in height by the ball carrier”, situations where a “no time to readjust”, and an “involuntary collision” as examples of “no fault” or “accidental” instances of head contact.[15] There is a fine line between a finding of no foul play and a finding of mitigation (see further below). The question is ultimately one of fault – did the player do anything wrong?
4. Degree of Danger
The next question in the HCP is the degree of danger.
This is the most subjective element of the HCP[16] and has generated no shortage of controversy. In contrast to the Framework, which primarily differentiated between incidents on the basis of the part of the tackler’s body that made contact with the head (with some being deemed more dangerous than others), the HCP takes a more holistic approach, with the degree of danger considered in the round.
The HCP lists the following factors as being indicative of a low degree of danger:
Indirect contact
Low force
Low speed
No leading head / shoulder / forearm / swinging arm
The HCP lists the following factors as being indicative of a high degree of danger:
Direct contact
Lack of control
High speed
Dynamic
Leading head / shoulder / elbow / forearm
Swinging arm
Reckless
Intentional or an always-illegal act of foul play
These criteria are largely self-explanatory. However, there are several points worth noting.
First, it is misleading for the term “reckless” to be included as an indicator of a high degree of danger, given that we have already established that recklessness is necessary for there to be any foul play (whether of high or low danger). “High force” should be added to the list in its place.
Second, it is clear that the focus of the analysis “must be on the actions of those involved”, rather than any injury suffered.[17]
Third, it will be the task of the referee and/or disciplinary personnel to weigh up these factors. It is not necessary for all of the factors listed in the high danger list to be present in order for an incident to be classed as having a high degree of danger and the same is true of the low danger factors – there may well be factors pointing in different directions.[18] The degree of danger is a matter of (largely subjective) evaluation.[19]
For example, the Disciplinary Committee in EPCR v. Charles Ollivon (2023) held (emphasis added):
It was found that the player had reduced his speed prior to the contact and had remained in control of the tackle. It was found that the player did not in any manner lead with his shoulder but had used both arms to wrap B15 in the tackle. It was found that the player made efforts to minimise the contact, particularly with the head of B15 and that whilst direct contact was made with the head of B15, the contact was with the upper chest / lower part of the front of the player’s shoulder. It was found that the efforts of the player had reduced the speed and force of the contact. It was also found that much of the force was taken through the chest of the player. Having considered all of these elements the Committee disagreed with the referee’s assessment of the level of danger and found the level of danger to be low.
Further, in this author’s view, there cannot be a binary choice between ‘high’ or ‘low’ danger. There must be a spectrum (i.e., low, medium, and high). For example, in World Rugby v. Andrew Porter (2022), the panel held that the degree of danger was “medium to high”.[20] As World Rugby’s graphic suggests, a medium degree of danger will result in a yellow card, whilst a low degree of danger will warrant only a penalty. However, this is not how all Disciplinary Committees have approached this issue.[21]
Finally, there are two distinctions within the dangerousness criteria which require particular attention: “direct vs indirect” head contact and “dynamic vs passive” actions.[22]
There are two schools of thought on the direct vs indirect distinction. The first is that head contact will only be indirect where the part of the alleged offender’s body that makes contact with the head first strikes another part of the victim’s body and then slips up to the head.[23] It will otherwise be direct contact. However, indirect contact has also been found where the head contact is merely secondary – i.e., where the initial contact between the alleged offender and the victim is to another part of the victim’s body and then there is subsequent contact with the head (even if the part of the body which strikes the head has not itself made contact elsewhere first before slipping up to the head).[24]
To this author, the latter approach ought to be followed, as secondary contact will typically be less significant than the initial contact, such that it will typically be less dangerous. Ultimately, however, this is only one consideration in the assessment of the degree of danger. The key issue will almost always be the amount of force that is applied to the head. If it is clear that there is a high amount of force to the head, even indirectly, there will likely be a high degree of danger. However, if the secondary impact to the head is more minor, it is more likely to be low danger.[25]
As the Disciplinary Committee held in RFU v. Adam Coleman (2022), in finding there was a low degree of danger (emphasis added):
[…] head to head contact may not have occurred but if it did, it was secondary to the shoulder to jaw initial contact and, as such, was indirect contact with the head and at a relatively low force (the majority of the force being taken by the initial contact).
As for the dynamic vs passive distinction, this has become a common point of discussion when applying the HCP and is often the difference between a red and a yellow card (see for example, EPCR v. Jamison Gibson-Park (2022); World Rugby v. Andrew Porter (2022); EPCR v. Piers Francis (2023); RFU v. Robin Hislop (2023); EPCR v. Zach Mercer (2023) where red cards/citings were overturned on the “Passive” basis).[26]
However, somewhat strangely, in the latest version of the HCP, the term “Passive” has been removed from the indicators of a low degree of danger and added to the list of mitigating factors, but the term “Dynamic” has been added to the indicators of a high degree of danger (despite “Passive” and “Dynamic” being the converse of each other). The previous version of the HCP had also listed “passive vs dynamic” as mitigating considerations. This has led to some confusion as to how exactly these factors are to be considered, with some Disciplinary Committees analysing with them when determining the degree of danger and several others applying them at the mitigation stage.[27]
In this author’s view, it is clear that the question of whether the alleged offender was passive or dynamic when making head contact is a question relevant to assessing the degree of danger. These factors are closely related to the speed and force of the player’s actions, and thus to the level of danger inherent in those actions. A passive tackle is inherently less dangerous than a dynamic tackle.
In order to qualify as a “Passive” tackle, the HCP provides the following criteria:[28]
Tackler feet planted and body absorbs/falls backwards
Zero forward movement into the ball carrier
In contrast, the criteria for a “Dynamic” tackle are:
Feet can be stationary or moving
Body moves forwards or upwards with force through the hips/legs/shoulder
As the Disciplinary Committee in Andrew Porter (2022) explained in assessing a “passive” tackle:
In our opinion the Player was upright and passive in the tackle. He was not upright and dynamic. At no time does the Player seek to carry out a dominant tackle. He does not move forward with his body. Whilst he was upright he did not lead with his head, shoulder or arms. The Player before the tackle is stationary and clearly sets himself to absorb the contact with NZ #4 and does absorb the contact as he is pushed backwards from the force of the contact.
5. Mitigation
The final stage of the analysis is whether there is any mitigation.
In this regard, the HCP lists the following as possible mitigating factors:
Sudden/significant drop in height or change in direction from ball carrier
A late change in dynamics due to another player in the contact area
An effort to wrap/bind and having no time to adjust
Passive tackler
Each of these circumstances may allow the sanction (i.e. red card, yellow card) to be downgraded.
Indeed, common examples of circumstances which have resulted in red cards/citings being overturned on the basis of mitigation include (i) a second tackler suddenly and significantly changing the position of the ball-carrier (e.g. Brad Shields v. EPCR (2021)); (ii) a sudden and significant drop in height by the ball-carrier (e.g. Freddie Steward (2023); World Rugby v. Piers Francis (2019));[37] (iii) a late change in direction by the ball-carrier, leaving the tackler no time to adjust their position (e.g. Ben Earl (2022), EPCR v. Zach Mercer (2023); RFU v. Ben Stevenson (2022)); and (iv) a passive tackler (see above).
It is clear that, for a change in dynamics to amount to mitigation, it must typically be “sudden and significant”, where “sudden” bears its “ordinary meaning of quickly and unexpectedly”.[35] As the Disciplinary Committee in World Rugby v. Piers Francis (2019) put it, “the unexpected has to be something occurring outside the expectations of a reasonable rugby player in the particular circumstances.”[36]
This is different from the question of the foreseeability of risk, which is considered at the ‘foul play’ stage of the HCP. There, the question is whether the player should foresee what might happen, whereas here the question is whether the player should anticipate what will (or is likely to) happen. However, this is clearly a subtle distinction and thus there is inevitably a fine line between a finding of no foul play and a finding of mitigation (as demonstrated in Freddie Steward (2023)).
However, the HCP also states that “mitigation will not apply for intentional or always-illegal acts of foul play”. This has proved somewhat controversial, as it is difficult to assess intent on-field and/or whether something was “always-illegal”. Indeed, the precise meaning of “always-illegal” is unclear. This author understands it to be referring to a situation in which a player makes no attempt to make a legal challenge (for example, a shoulder charge). However, this has been extended in practice to tacklers who are upright, for example, despite the fact that this is not illegal per se.[32] Indeed, the HCP expressly states, at p.1, that there “needs to be an understanding that tacklers stay up to allow them to ‘adjust and ‘react’ – dropping quickly into the low tackle entry position”.
The difficulties of refereeing this approach were demonstrated by the case of RFU v. Ben Earl (2022), where the player was sent off for a shoulder charge but the red card was subsequently overturned by the Disciplinary Committee on consideration of all of the evidence (including from the player), as it was satisfied that he had been attempting to effect a legitimate tackle but had been obstructed from doing so by the unusual dynamics of the incident in question (such that he was entitled to mitigation, contrary to the view of the referee).
In this author’s view, the approach to mitigation could be simplified by posing one single question: was there a change in the dynamics of the incident prior to contact which was outside the control of the alleged offender and without which the head contact would not have occurred? If the answer is yes, there is mitigation. If the answer is no, there is not. The key issue should ultimately be whether the potential mitigating factor was causative of the head contact.[33]
Once we have reached the mitigation stage, it has already been established that the risk of head contact was created by the fault of the alleged offender. Thus, the question effectively becomes whether or not that risk materialised due to factors outside of the control of the alleged offender. If so, there should be mitigation, as the alleged offender was only partially at fault for what happened. [34]
6. Conclusions
The HCP is an important document which will undoubtedly be at the heart of much debate prior to and during Rugby World Cup 2023. It offers critical guidance on the sanctioning of head contact on the field of play and is thus something with which all teams, and their representatives, should be familiar. Indeed, it is hoped that this article will assist those seeking to apply and explain the HCP over the coming months.
The HCP is an improvement on the Framework that was in place during Rugby World Cup 2019, as it allows for a more holistic and nuanced approach to be taken, ensuring that the sanctions imposed properly reflect the circumstances of the incident in question. However, this does create more room for subjectivity and disagreement (particularly as regards the ‘degree of danger’), which is liable to give rise to controversy. Yet, in a game with as many moving parts as rugby union, this is inevitable. To eliminate these subjective elements of the process would be to ignore the many nuances of these incidents and to sanction players unfairly.
Still, the HCP would benefit from some further clarity, in the areas identified above, for the benefit of all concerned.
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 the Head Contact Process, at p.1
[4] See, for example, World Rugby v. Joshua Larsen (2019)
[6] See, for example, RFU v. Adam Coleman (2022) and RFU v. Mike Williams (2021)
[7] As the HCP states, at p.1, “the need for an HIA does not necessarily mean that there has been illegal head contact”. See also, for example, RFU v. Matthew Cannon (2023) at p.5, a case in which this author acted for the player, where the Disciplinary Committee accepted that it was possible for a concussion to have been caused “only by a “whiplash” effect (as opposed to impact)”.
[8] See World Rugby Regulation 17.15.1
[9] See also RFU v. Chris Ashton (2023)
[11] Whilst there are various specific offences under Law 9, Law 9.11 is a catch-all which provides that “Players must not do anything that is reckless or dangerous to others”.
[12] World Rugby Regulation 17.18.1(b)
[13] Criminal recklessness requires that the defendant knew there was a risk and deliberately disregarded it (i.e. subjective recklessness).
[14] See also EPCR v. Will Muir (2021)
[16] Note the comments of the Disciplinary Committee in World Rugby v. Andrew Porter (2022): “To answer this question requires, in part, a subjective evaluation. It is the answer to this question where we accept reasonable minds may differ because of the evaluative exercise the decision maker has to undergo to arrive at their answer. This incident is a good case in point. By way of example, the Referee in his report determined that the degree of danger was not high. The Citing Commissioner in his report determined that the degree of danger was high. After careful analysis the Judicial Committee has determined that the degree of danger was medium to high.”
[17] See p.1 of the HCP. See also World Rugby v. Andrew Porter (2022), at pp.6 & 7; and EPCR v. Jamison Gibson-Park (2022), at p.3.
[18] See, for example, EPCR v. Abraham Papali’i (2022) and EPCR v. Charles Ollivon (2023)
[19] See World Rugby v. Andrew Porter (2022), at p.6.
[20] The Disciplinary Committee then went on to apply mitigating factors, such that the red card test was not met.
[21] See, for example, RFU v. Greg Peterson (2023)
[23] See, for example, EPCR v. Henry Slade (2023) and RFU v. Robin Hislop (2023)
[24] See, for example, EPCR v. Abraham Papali’i (2022) and World Rugby v. Piers Francis (2019) at para. 27
[25] See, for example, EPCR v. Charles Ollivon (2023)
[26] C.f. World Rugby v. Angus Ta’avao (2022), which was similar to the Andrew Porter case, save that it involved a dynamic, as opposed to a passive, collision.
[27] See, for example, EPCR v. Jamison Gibson-Park (2022), where the passive nature of the contact was considered when analysing the degree of danger (at p.3); RFU v. Aled Davies (2022), where dynamism was considered as relevant to the degree of danger (at p.2); World Rugby v. Angus Ta’avao (2022), where the dynamic vs passive distinction was considered when analysing the degree of danger (see para. 20.b); World Rugby v. Andrew Porter (2022) where the Disciplinary Committee considered the tackler’s passivity at the stage of analysing mitigation, in contrast to the referee who had considered it at the degree of danger stage (at pp.7-8); and EPCR v. Piers Francis (2023), RFU v. Robin Hislop (2023) and EPCR v. Zach Mercer (2023), where the Disciplinary Committee treated the passive nature of the tackle as a mitigating factor (at p.4, p.6 and p.3, respectively).
[29] See World Rugby v. Piers Francis (2019), at paras. 48-49
[30] See, for example, RFU v. Greg Peterson (2023) at p.5; World Rugby v. Reece Hodge (2019), at p.7; World Rugby v. Piers Francis (2019), at para. 49
[31] World Rugby v. Piers Francis (2019) at paras. 50-51
[32] See, for example, EPCR v. Charles Ollivon (2023), at p.3
[33] See, for example, the approach of the Appeal Committee in Brad Shields v. EPCR (2021), at para. 23
[34] This is another reason why it does not seem logical to consider the passive vs dynamic distinction at the mitigation stage.
[35] See World Rugby v. Piers Francis (2019), at para. 49. See also, for example, World Rugby v. Motu Matu’u (2019), at para. 22; World Rugby v. Ray Lee-Lo (2019), at para. 19; World Rugby v. Reece Hodge (2019), at p.6; and EPCR v. Jules Plisson (2022), at p.4 (albeit the Disciplinary Committee treated this as relevant to the degree of danger, which seems to be at odds with the HCP).
[36] See World Rugby v. Piers Francis (2019), at para. 35.
[37] This may include circumstances in which a ball-carrier dives in the acting of scoring a try (see here).