A review of the disciplinary process and sanctioning decisions from Rugby World Cup 2015 - Part 2: Decisions and appeals

Rugby World Cup 2015 (RWC 2015) saw its fair share of drama and controversy, and one area that didn’t escape attention was “foul play” committed by players and the disciplinary actions that followed.

This two-part blog examines the disciplinary process and sanctioning decisions at RWC 2015. It provides an overall retrospective analysis using the author’s knowledge of sports law and experience of playing and refereeing rugby union.

Part 1 of the blog (available here) examines the applicable regulations, the citing process, the nature of the hearings, and the use of video evidence.

Part 2, below, moves on to examine the sanctioning decisions and the appeals, and provide commentary and suggestions for future editions of the tournament.

How the decision making process works for disciplinary sanctions

Once the Judicial Officer is satisfied on the balance of probabilities that the evidence provided by World Rugby has proved the offence, sanctions are handed down in accordance with the system set out in Regulation 17.19.

The table in Appendix 1 of Regulation 17 provides sanctioning ranges for each offence in Law 10.4.¹

In essence, the Judicial Officer has to:

1. Identify the offence in Appendix 1 for the ranges of sanction;
2. Decide whether the seriousness of the offence makes it a Low End, Mid-Range or Top End offence which provides the entry point – the factors in determining seriousness are to be found in Regulation 17.19.1;
3. Consider any aggravating or mitigating factors as set out in Regulations 17.9.4 and 17.9.5 respectively (also see the next paragraph); and
4. Decide on the sanction.

Additional factors

The RWC 2015 decisions also exhibited some additional factors (not unique to the tournament) that Judicial Officers considered when arriving at their sanctions. These were:

• World Rugby memoranda – See Part 1 for an explanation.
   
• Deterrent effect – Regulation 17.19.4(b) specifically states that an uplift on the sanction can be applied, as an aggravating factor, to act as a deterrent effect against similar future foul play by players.

This was applied in the decision concerning a dangerous ‘ neck roll’ by Canadian player Nick Blevins in the Pool D match against Romania (6 October 2015, Leicester City Stadium² - see video here.³ The Judicial Officer’s analysis on this point in paragraphs 8.2 and 8.3 of the decision led to the entry point period of suspension being increased by 1 week.
 
This aggravating factor is often applied where such foul play offence is also the subject of one of the aforementioned memoranda, as in the Blevins case.
 
• Continuing patterns of offending – Complementing the deterrent effect, there is also mention in Regulation 17.19.4(b) of combatting a “pattern of offending” in the game. Once again, this is often closely tied to the memoranda issued by World Rugby.

A good example of the use of this additional factor can be found in the Galarza decision at paragraph 6.8⁴ - see video here.⁵
 
“As paragraph 2 of the 2014 Memorandum [on contact with the eyes or eye area] observed, cases of contact with the eye or eye area continue to occur, notwithstanding the earlier Memorandum. The Memoranda remain in force and so have not been withdrawn. The only sensible inferences are that offending of this kind continues and such offending remains a matter of concern for World Rugby. I have not approached the question automatically but rather have considered whether in this case an additional period for this offence is required. Looking at this act of Foul Play, I have concluded that there is a continuing pattern of offending of this kind and the need for a deterrent to combat it remains. I therefore add a period of one week to the entry point of 12 weeks.”
 
In the decision concerning Australia’s Michael Hooper⁶ (see below for further details), the Judicial Officer said there was no evidence of a pattern of charging into rucks without the use of the arms for which a deterrent uplift was necessary.⁷
 
Of greater interest however was the argument World Rugby put forward as to the appropriate sanction for the stamp by Fiji’s Manasa Saulo in the Pool A match against Wales (1 October 2015, Millennium Stadium).⁸ Up to the point of the hearing on 4 October 2015, it was the third time a Fijian player had been subject to disciplinary hearing for foul play in the 3 games they had played in the tournament up to that point. Therefore World Rugby asked the Judicial Officer to increase, “the entry level applicable to this Player…as a need for a deterrent to combat a pattern of offending in the Game by the Fijian Team in Tournament”.
 
So in essence, if the Judicial Officer had accepted the submission, it would be making an example of one player as a punishment against the whole team for previous offences of foul play by other players in that team which had already been dealt with in previous disciplinary proceedings. Intuitively to the author this does not seem fair.
 

• Any other off-field aggravating factor – This comes from Regulation 17.19.4(b) and will be touched upon below.

Therefore overall the Regulations try to balance the need for certainty (the entry point) with some flexibility with no conduct or circumstance being the same when an offence is committed (e.g. aggravating and mitigating factors).