A High Level Overview of the Disciplinary Process in Rugby Union
There is no doubt that a robust disciplinary system is a requirement for Rugby Union. However, there is a fundamental lack of understanding surrounding the disciplinary process in Rugby Union, and the process is an area of significant contention.
Ultimate responsibility for the disciplinary process rests with World Rugby, but for the most part is delegated to the underlying Unions and Competitions. Regulation 17 of the World Rugby Handbook outlines the core principles which every Union and Competition must adhere to. Within reason, beyond those core principles, the Competitions and / or Unions are able to vary the regulations to meet their specific requirements. The best example of this is SANZAAR who have implemented an expedited disciplinary process for players who plead guilty to the indiscretion. The player must agree to accept the penalty decided by the Duty Judicial Office and forfeits the right of appeal. In exchange the sanction is handed down within 24 hours. This expediency allows teams to make alternative arrangements quickly, which can be of huge importance given the distances the competition covers.
World Rugby stipulates that the delegated disciplinary process must be properly structured and capable of dealing with every type of disciplinary matter, ranging from minor transgressions to more serious offences. The process also needs to be able to manage off-the-field incidents, primarily those which are alleged to bring the game into disrepute. Finally, the process must be impartial and strictly applied. Clearly, with the delegation to the various Unions and Competitions, there may be more than one body involved – for example, if a Scottish player, participating in the Pro14, receives a ban for an incident in a European match. The EPCR would be responsible for the hearing and for the sanction, but the application of the sanction is universal, meaning that it applies across all competitions. The sole limitation is that the matches which make up the suspension must be ‘meaningful’.
Whilst World Rugby delegates much of the responsibility for the disciplinary process (World Rugby retains it for the autumn internationals and for the Rugby World Cup), Appendix 1 of World Rugby Regulation 18 articulates very clearly how the disciplinary tribunals are to be set up. It is important for the sport that a universal approach is adopted as a means of trying to ensure a level of consistency. The Disciplinary Hearing comprises a Panel of three, including the Chair, who must be legally qualified. There has been a big swing recently in having former players on the panels, and in minimising the number of lawyers involved. This has several advantages and disadvantages, depending on the participants. For the most part, the hearings take place within 72 hours of the citing, at a neutral venue. However, there is nothing in the rules which states that these hearings cannot take place via video call – this medium is coming into greater use. If the competition is a multi-jurisdictional competition, the Panel members should be neutral; if the competition is domestic, for example, the Premiership or the Top 14, the Panel members should not be affiliated with either club involved in the specific match.
During a disciplinary hearing, the first role of the Panel is to determine whether or not the player is guilty of the offence. The player may admit the offence, in which case the Panel
moves onto the decision of what sanction to apply. However, if not, very much like a legal case, the player is able to stage a defence. This may include legal representations, character references, testimony from other players, including the opposition, medical reports etc. This is counterbalanced by the evidence provided by the Union / Competition, in support of the citing. The Panel will also review the reports made by the Citing Commissioner, the Referee and will discuss the matter with the other Match Officials. The fundamental purpose of the Disciplinary Hearing is to determine what actually happened.
The Panel has two options when it comes to determining the guilt of the player. The citing or red card (a red card results in an automatic disciplinary hearing) is either upheld or dismissed. If the charge is dismissed, there is no further action to be taken and the player is free to play.
If a player is found guilty, or admits guilt, sanctions will then be applied. World Rugby has adopted a three tier approach, with entry points marked as either Lower End (LE), Mid-Range (MR) or Top End (TE). Appendix 1 of World Rugby Regulation 17 clearly sets out the escalating scale of sanctions and includes an absolute maximum sanction. Clearly there is an element of discretion and opinion in deciding which entry point is appropriate, although World Rugby has provided additional guidance, in particular in relation to eye gouging, biting, top tackling and all incidents involving a collision with the head. The most recent example of this is the Ross Batty case, heard this week. Batty pled guilty to a neck roll; given that there was contact with the head, the guidance from World Rugby stipulates that the offence has to be deemed Mid-Range or higher. Upon review, the Panel concluded that the offence was not Top End, imposed a sanction of 6 weeks, which was reduced by 50% due to the clean record of the player, his obvious remorse and his admission of guilt.
This 50% reduction of sanction is one of the areas in this process which causes the greatest consternation. Once the entry point has been determined, the Panel then has the discretion to increase or to decrease the duration of the sanction due to aggravating or mitigating circumstances. Aggravating circumstances may include a poor disciplinary record, and the need for a deterrent, either for the player or for the offence, or for both; mitigating circumstances include a clean disciplinary record, remorse, a guilty plea and personal circumstances. At most, mitigation can halve the original sanction. This use of discretion raises questions about the transparency and integrity of the entire process. There have been numerous cases where the suspension appears unduly lenient, and on occasion unduly harsh, with little coherent explanation. This lack of transparency leaves the process open to criticism, when it could be argued that the process works; the application of it perhaps less so.
A player can appeal both the finding and the sanction, as can the Union or the Competition. SANZAAR in particular, has form for appealing bans which it believes are not sufficiently severe, the case in point being Francois Steyn in March 2015. World Rugby has also intervened, but where delegation has taken place, can only do so if it believes that the process has not been followed correctly. The most obvious example is that of Joe Marler, and the racist remark he made to Samson Lee during the England v Wales match in the 2016 Six Nations Championship. However, these cases are rare – World Rugby goes to great lengths to respect the independence of the process.
CASES HEARD BY THE DISCIPLINARY PANEL
All red cards are automatically subject to a disciplinary hearing.
All citings are made by the Citing Commissioner. A citing is made if the Citing Commissioner believes that a red card should have been shown for an incident occurring during the match. The Citing Commissioner has, of course, the advantage of numerous TV angles, and also the benefit of time and hindsight. Different competitions have different citing windows, but none of these exceed 48 hours from the end of the match.
If the Citing Commissioner believes that an incident does not meet the threshold of a red card, but does warrant sanction, a Citing Commissioner Warning (CCW) can be issued. CCWs are historically rare in the Northern Hemisphere, but are coming into greater use; their use has been prevalent in Super Rugby for some years. In Super Rugby, should a player be a persistent offender, they may be handed a one match ban, or be summoned to a disciplinary hearing. This is the fundamental criticism of CCWs – they are for offences which are deemed to be more severe than those meriting a yellow card, but carry no worthwhile punishment.